Himachal Pradesh High Court
Sukhdev Singh vs State Of Himachal Pradesh And Others on 17 June, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.245 of 2014 Reserved on : 11.6.2019 Date of decision: 17th June,2019 Sukhdev Singh .
... Petitioner.
Versus State of Himachal Pradesh and others ...Respondents Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. T.S.Chauhan, Advocate.
For the Respondents : Ms. Rita Goswami, Additional Advocate General, Ms. Divya Sood, Deputy Advocate General and Mr. Manoj Bagga, Assistant Advocate General for State.
Ms. Divyani Sharma, Adv. for the respondent no.3.
Anoop Chitkara, Judge The present petition is under Section 482 of the Code of Criminal Procedure for quashing of FIR No.239 of 2013 dated 31-07-2013, registered in Police Station-Sadar, District-Una, Himachal Pradesh, for the commission of offences punishable under Sections 420, 467, 468 & 471 of the Indian Penal Code as well as further proceedings arising 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -2-
out of the FIR which are pending in the Court of Judicial Magistrate Ist Class, Una, Distt. Una, HP in case No. 117-1-14 titled State Vs. Veena Devi & another pending since 12-11- .
2014.
2. The FIR in question was registered on the basis of complaint filed by Dinesh Kumar, S/O Sh. Chaman Lal, who is respondent no.3 in the present petition. The gist of the allegations contained in FIR is as follows:-
(a) That the accused no.1 Veena Devi, is the petitioner no. 2 in the present case, A-2 Sukhdev Singh, is the petitioner no.1 in the present case.
(b) The further allegations are that with malafide intentions,connivance, conspiracy, collusion and in league with each other, they have misrepresented the complainant, while entering into an agreement of sale of land comprised in Khasra No. 2262/1740/23.
(c) The main allegations are that at the time of sale agreement dated 07-05-2013, it was promised that the plot would be connected ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -3- with a road, whereas on the spot, no road is in existence, adjacent to the land described above and which is subject matter of the .
agreement.
(d) It was further mentioned in the complaint that the road did not mean only path or passage but road means motorable access to the plot of the land. It was prayed that prosecution be launched against the accused persons.
(e) Feeling aggrieved by this FIR, accused No. 1 and 2, Sukh Dev and Veena Devi have preferred this petition. The complainant has been arrayed as respondent no.3 in the present petition. The FIR which is sought to be quashed has been annexed as annexure P1. Petitioner has annexed record pertaining to khasra No. 2262/1740/23 as annexures P2, P3, P4. Petitioner has also annexed the agreement dated 7th May, 2013 as annexure P5 and its translation is also filed with the petition as part of annexure P-5.
::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -4-(f) The agreement reveals that it is executed between Veena Devi claiming herself to be the owner in possession of the alleged land, .
measuring 0-02-30 hectares, being 230/492 share out of land, measuring 0-04-92 hectares comprised in Khewat No. 268, Khatauni No. 316 bearing Khasra No. 2262/1740/23 as per Jamabandi for the year 2008-2009, situated in up Mahal Jalgarahan, Mahal Tabba, Tehsil & Distt. Una, HP, wherein she has agreed to sell this much land to the complainant/ respondent no.3 Dinesh Kumar for a sum of Rs. 1,15,800/-
per marla. In the foot of agreement it has been clarified through a note which reads as follows:
"Note- the plot will be sold alongwith the road at South and West."
3. The petitioner is further placing reliance on a legal notice dated 26-07-2013 issued from an Advocate to the respondent no.3. which is annexure P-6 .
::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -5-4. Another legal notice dated 26-07-2013 annexure P7 was issued to the present petitioner on behalf of the respondent no.3 and a copy also placed on record annexure .
P7. Vide annexure P-8 Tatima of the land has been placed on record.
5. Vide annexure P-9, location plan prepared by a draftsman, which is dated 7th December, 2013, has been placed on record. On the portion of this location plan, the plot in question has been shaded. At the bottom portion, one meter wide gate has been mentioned and other portion of this area which is in the shape of road, there is a brick wall.
6. The petitioner has also relied upon an application made against respondent no.3, to SP, Una, H.P. In this application it was stated by Sukh Dev Singh petitioner no.1, to close investigation and file cancellation report because the matter is Civil in nature and the Civil Courts have the jurisdiction to adjudicate the matter.
7. All these documents are supported by affidavits of the petitioners. Respondents no.1 & 2 filed reply to petition, wherein it is stated that it is absolutely wrong that petitioners were ready to execute the sale deed as per the agreement.
In fact the petitioners had committed fraud with respondent ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -6- no.3, by cheating him by entering into an agreement, in which it was specifically written that the plot will be given to respondent no.3 adjacent to road on the South & West, .
where in fact no road exists.
8. It has been stated on affidavit by Superintendent of Police Una which reads as follows:
"It has been reiterated that the exists of path does not mean that there exists any road. Over all the respondents no. 1 and 2 i.e. State has sought dismissal of the present petition in paragraph 8 (g) it is specifically stated that there was no road on any side of the plot and under the provisions of Town and Planning Act all the future upcoming residential houses can be constructed only on the plots connected with the roads. Thus no house can be constructed over the plots as the site plan will not be passed by the competent authority."
9. The complainant, respondent no.3, has also filed a reply in which he has sought for dismissal of the present petition on the following grounds that the allegations are incorrect and inherent jurisdiction under Section 482 Cr.P.C.
should not be invoked.
::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -7-10. The petitioner has filed rejoinder to replies reiterating his stands in the petition.
11. I have heard learned counsel for the parties and .
gone through the entire case files.
12. It appears that basic main grievance of the petitioner is that the allegations are Civil in nature and not penal in nature. It can further be inferred from the petition as well as arguments of the counsel of the petitioner that once the Civil case is pending on the same facts then there is no occasion for further proceedings to continue. The next contention is that on the perusal of these annexures, prima facie no case is made out.
13. To the contrary, as Ms. Reeta Goswami, Additional Advocate General and Miss Divya Sood, Deputy Advocate General, opposed quashing of this petition and Ms Divyani Sharma, Advocate for the respondent no.3 has vigorously opposed quashing of the petition and also drawn attention to the location plan annexure P9.
14. After applying my mind to the entire matter, I am of the opinion that the contention that once Civil case is pending then criminal case cannot continued has no substance, in the instant case, which has disputed facts. Civil ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -8- case is for adjudication of rights whereas criminal cases for violation of penal laws. They do not over lap unless the case is purely in Civil in nature and there is no penal infringement .
made out.
15. This Court is aware of the law laid down by three Judges bench of Supreme Court in Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, 1988 (1) SCC
692. The Court observed thus:-
"7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -9- of a case also quash the proceeding even though it may be at a preliminary stage.
8. Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is .
both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued."
16. While dealing with the over laping of Criminal and civil litigation, the facts are interalia different and this judgment is clearly not applicable in the disputed facts of present case.
17. In the present petition, the petitioner wants quashing of FIR, by placing reliance on location plan. Mr. Tara Singh Chauhan, counsel for petitioner says that road is clear ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -10- and five meters road goes up to the plot in question which has been shaded in this location plan annexure P9. To the contrary Miss Devyani Sharma, Adv. has brought to the .
notice of this Court that on one side of the road, there is a brick wall and only one meter wide gate, which means no vehicle can cross, because the gate is only one meter. She further says that other side of the road is blocked being no connectivity to any other road. The counsel for the petitioner has not even made a verbal statement that they have either removed this gate or they would like to remove it and even in the petition no such promise has been made.
18. During the course of arguments Ld. Counsel for the petitioner wants to draw the attention of the Court to one plan which is part of his brief. When questioned that this document is not part of the record of the Court file, then a submission was made by the counsel to look into this plan from the file of the counsel. It is unthinkable that this kind of approach is permissible in law. I am of the considered opinion that even by invoking powers under Section 482 Cr.P.C. it is not permissible to the High Court to place reliance on those documents, which are in the file of the counsel of the petitioner and not on the record of the Court. Therefore, this ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -11- court has refused to look into such documents. It is trite that each and every documents filed alongwith the petition under Section 482 Cr.P.C., cannot be looked into.
.
19. In the land mark case titled State of Bihar Vs. P. P. Sharma, AIR 1991 Supreme Court 1268, the Hon'ble Supreme Court observed as follows:-
"16. It is thus obvious that `the annexures' were neither part of the police-reports nor were relied upon by the investigating officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating `the annexures' and affidavits as evidence and by converting itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The last we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon "the annexures" in support of its findings, we may briefly examine these documents."::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -12-
20. In Ravindra Kumar Madhanlal Goenka and another Vs. Rugmini Ram Raghav Spinners Private Limited, (2009) 11 SCC 536, Hon'ble Supreme court hold as under:
.
"18. While entertaining a petition under Section 482 CrPC, the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is a well-settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases.
19. While considering the facts of the present case, we are of the considered opinion that the present case is not one of those extreme cases where criminal prosecution can be quashed by the Court at the very threshold. A defense case is pleaded but such defence is required to be considered at a later stage and not at this stage.
The appellants would have ample opportunity to raise all the issues urged in this appeal at an appropriate later stage, where such pleas would be and could be properly analyzed and scrutinized.::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -13-
20. In view of the aforesaid position, we decline to interfere with the criminal proceeding at this stage. The appeal is consequently dismissed."
21. In Vijayander Kumar Vs. State of Rajasthan, 2014 .
V 3 SCC 389, Hon'ble Supreme Court observed thus:
"10. Contra the submission advanced on behalf of the appellants, the learned counsel for Respondent 2 has submitted that there is no merit in the contention advanced on behalf of the appellants that the FIR discloses only a civil case or that there is no allegation or averment making out a criminal offence. For that purpose he relied upon the judgment of the High Court rendered in the facts of this very case in Vijayander Kumar v. State of Rajasthan, already noted earlier.
11. No doubt, the views of the High Court in respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -14- accordance with law for due consideration at appropriate stage.
12. The learned counsel for the respondents is correct in contending that a given set of facts .
may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd."
22. I am of the considered opinion that even if reference is made to annexure P-9, still unless the obstacles in the form of gate, is removed it would prima facie amount to misrepresention to the purchaser, by making him agree to pay a price which he was willing to pay for a drive in plot.
Judicial notice can be taken of the fact that in the present time, worth of the drive-in properties is much more valuable than those that are unconnected by road. Due to motorable connectivity the cost of construction comes down and it is extremely convenient for the occupants to use premises.
::: Downloaded on - 28/09/2019 23:31:55 :::HCHP -15-23. I am of the opinion that, prima facie, even if everything is admitted as if it stands proved, even then no case of quashing of FIR is made out at this stage.
.
24. However, it shall be open for the accused to make his contention at the time of framing of charges if the police report, if any, is filed under Section 173 Cr.P.C. and cognizance is taken with the concerned Court.
25. In case the petitioner provides motorable access to the plot of respondent no. 3, after doing that and proving such access, by photographic or video evidence, it shall be open for the petitioner to file fresh petition on the same and similar grounds. This order shall not come in way in filing such petition.
26. Needless to say that the observations made in the petition are only for the purpose of the present petition. This order shall not be read either at the time of summoning or framing of charges or at any further stage.
27. In the result the petition is dismissed.
28. Pending application(s), if any, also stand disposed of.
(Anoop Chitkara), Judge.
17th June, 2019(NK) ::: Downloaded on - 28/09/2019 23:31:55 :::HCHP