HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Reserved 1. Case :- U/S 48[SECTION]/378/407 No. - 1917 of [SECTION]008 Applicant :- [ENTITY] And Ors. Opposite Party :- State Of U.P.Through Prin. Secy. Home Lko.And [SECTION] Ors. Counsel for Applicant :- [ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Opposite Party :- [ENTITY],[ENTITY] And [SECTION]. Case :- U/S 48[SECTION]/378/407 No. - [SECTION]3[SECTION]4 of [SECTION]011 Applicant :- [ENTITY] & Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Govt. & Another Counsel for Applicant :- [ENTITY],[ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Opposite Party :- Govt. Advocate,[ENTITY] Hon'ble [ENTITY],J.
1. The present petitions under [SECTION] [ACT] have been filed for quashing of the order dated [SECTION]4.05.[SECTION]006 taking cognizance on charge-sheet filed in FIR at Crime No.373 of [SECTION]005, Police Station Wazirganj, District Lucknow under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT] pending before Special Additional Chief Judicial Magistrate, C.B.I./Ayodhya Prakran, Lucknow.
[SECTION]. It is stated that Secretary of State of India had executed a perpetual lease dated 0[SECTION].08.1917 of a nazul land measuring 9 Bigha [SECTION] Biswa 16 Biswansi situated at Butlerganj, Police Station Hazratganj, District Lucknow in favour of one [ENTITY]. The petitioners have jointly purchased the property bearing No.9, Butler Road, Lucknow from its absolute owners, [ENTITY] and [ENTITY] who are also the petitioners in the connected petition.
3. Late [ENTITY] had only one son living at the time of his death i.e. [ENTITY]. [ENTITY] inherited the properties including the property in question from his father. [ENTITY] died on [SECTION]8.11.1994. [ENTITY] was survived by his son [ENTITY] and two daughters namely, [ENTITY] and [ENTITY]. [ENTITY] was married to [ENTITY], the complainant and had three sons namely [ENTITY], [ENTITY] and [ENTITY].
4. It is also stated that [ENTITY] was married to [ENTITY]. It is said that [ENTITY] died on 0[SECTION].09.1995 and [ENTITY] died on 1[SECTION].09.1996. [ENTITY] had a daughter namely, [ENTITY] from his first wife and from [ENTITY], he had two sons namely, [ENTITY] and [ENTITY]. However, parentage of [ENTITY] and [ENTITY] is disputed. [ENTITY], son and legal heir of [ENTITY] had allegedly executed an unregistered will on [SECTION]6.06.1991 (Annexure-III). The said will was deposited in the safe custody of Additional District Magistrate (Finance and Revenue), Lucknow. Upon demise of [ENTITY], the will was opened and was registered in the office of Sub-registrar, Lucknow on [SECTION]6.09.1995. The relevant provisions in the will for the purpose of disposal of this case are that [ENTITY] bequeathed to his son, [ENTITY], [ENTITY] (Goldie), son of the complainant in equal shares of all Zamindari Abolition compensation bond and compensation payable under [ACT] and all other money to be found due or payable to him at the time of his demise wherefore, no provision was made in the will. He also bequeathed by the said will to his son, [ENTITY] exclusively the properties (a) ancestral property at Attari, Punjab together to its income including arrears; (b) firearm; and (c) tractor trolley and other equipments. The house abutting new Berry Road at No.9 Butler Road, Lucknow together with servant quarters including portion and tenancy of Irrigation Department. The said house together with open land adjoining in front of the house in occupation of Regional Psychological Centre was bequeathed to his son, [ENTITY] for his lifetime only and thereafter, absolutely to his children from [ENTITY], his wife. It is important to mention here that names of [ENTITY] and [ENTITY] were not mentioned and it is the matter of dispute whether they are the sons of [ENTITY] from [ENTITY]. The house newly build by [ENTITY] in the year 1978 together with two motor garages adjoining the said new house and the compound of the house at No.9, Butler Road, Lucknow, was bequeathed in favour of [ENTITY] (Goldie) son of Shri [ENTITY]. Provision was made in respect of her younger daughter, Ms. [ENTITY] to live in the said house for her lifetime there without any claim or interest therein affecting the title of Shri [ENTITY] (Goldie). In the entire will, names of [ENTITY] and [ENTITY] were not mentioned but the provisions have been made for bequeathing the properties and money etc., for children and male issues of [ENTITY] from [ENTITY], his wife.
5. On 08.1[SECTION].[SECTION]005, the complainant lodged an FIR at Case Crime No.373 of [SECTION]005 under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT], Police Station Wazirganj, District Lucknow against [ENTITY] and [ENTITY] who are the Directors of two companies in whose favour the sale deed in respect of the property in question was executed by [ENTITY] and [ENTITY] on [SECTION]8.11.[SECTION]005.
6. Allegations in the FIR are that the complainant is the owner in possession of House No.9, Butler Road Police Station Hazratganj. The said house was received by him by will of [ENTITY] dated [SECTION]5.11.1994 and the complainant has been living in the said House along with his family since lifetime of late [ENTITY]. His name has been registered in all the revenue records in respect of the said house. [ENTITY] had separated share of [ENTITY] in his lifetime and since 1964 [ENTITY] along with his wife, [ENTITY], daughter, [ENTITY] was staying at farmhouse situated at Atari District [ENTITY].
7. [ENTITY] and [ENTITY] have executed sale deed dated [SECTION]8.11.[SECTION]005 in favour of M/s Viraj Construction Private Ltd. and M/s S. Gupta Buildtech Limited in criminal conspiracy of [ENTITY], Director and [ENTITY], Managing Director of S. Gupta Buildtech Private Limited by committing forgery. [ENTITY] and [ENTITY] are land mafias and they are known for grabbing properties by forging the sale deeds etc. [ENTITY] had never been the wife of [ENTITY] nor [ENTITY] and [ENTITY] are sons of [ENTITY]. Will dated [SECTION]6.05.1991 on the basis of which the sale deed dated [SECTION]8.11.[SECTION]005 has been executed, was cancelled by late [ENTITY] vide his last will dated [SECTION]5.11.1994 in favour of the complainant. On the basis of will dated [SECTION]5.11.1994, names of the complainant has been entered into the revenue record.
8. The police after investigation of the offence had submitted the charge sheet on 18.01.[SECTION]006 against the accused. Learned trial court has taken cognizance on the charge sheet on [SECTION]4.05.[SECTION]006 and summoned the accused to face trial.
9. Heard Mr. [ENTITY], Senior Advocate assisted by Mr. [ENTITY], learned counsel for the petitioners, Mr. [ENTITY], learned counsel for respondent No.[SECTION] and learned AGA for the State.
10. Mr. [ENTITY], learned Senior Advocate submits that the dispute is purely of civil nature. Claims of petitioners, [ENTITY] and [ENTITY] are based on registered will dated [SECTION]6.06.1991 whereas claim of the complainant is based on unregistered will dated [SECTION]5.11.1994. The Will dated [SECTION]5.11.1994 has been doubted by the competent Civil Court. The question is which will is genuine and which is the forged one. This question can be decided by the competent Civil Court where the disputes are pending. The complainant has filed a regular suit bearing No.9[SECTION]8 of [SECTION]005 : [ENTITY] versus Viraj Construction Private Limited and others praying for a decree/ injunction forbidding the defendants from dispossessing him from the property. He has also filed an application for interim relief under [SECTION] and [SECTION] [ACT] wherein he has prayed for restraining the defendants from dispossessing him from the property. The Civil Court, however, did not find prima facie case in favour of the plaintiff and the application under [SECTION] and [SECTION] [ACT] had been rejected by the Civil Court (Senior Division), Lucknow vide dated 18.01.[SECTION]006. He further submits that learned Civil Judge/ Senior division has recorded a finding that prima facie the will in favour of the plaintiff appeared to be suspicious.
11. Against order dated 18.01.[SECTION]006 passed by learned Civil Judge (Senior Division), Lucknow, the complainant had preferred first appeal from order in FAFO No.105 of [SECTION]006 before this Court and this Court vide its judgment and order dated 31.01.[SECTION]007 placed on record as Annexure XIII to the petition had dismissed the appeal and held that the plaintiffs-appellant has failed to make out a prima facie case for temporary injunction.
1[SECTION]. It has also been submitted that vide order dated 07.06.[SECTION]006 passed by Additional Municipal Commissioner, Lucknow, it has been held that in respect of payment of house rent, the names of M/s Viraj Construction Private Ltd. and S. Gupta Buildtech Private Limited should be registered and this order would be subject to the final decision in the case pending before the Civil Court in respect of the ownership of the property in question. It has been held by the Additional Municipal Commissioner that the will onthe basis of which the complainant, [ENTITY] had got his name mutated in the property, is an unregistered document and subsequently certificate issued by District Magistrate, Lucknow in which it was said that [ENTITY] was the legal heir/ successor of the property of [ENTITY], had been found to be a forged document and thus, two documents which had been submitted by [ENTITY] in his favour to show that he was the successor of the properties of Late [ENTITY] i.e. Unregistered Will and the Succession Certificate, did not prove that he was the successor of the estate of Late [ENTITY].
13. Learned counsel for the petitioners, therefore, has submitted that the impugned criminal proceedings are nothing but abuse of process of the court and civil dispute has been tried to be given the colour of criminal offence.
14. Mr. [ENTITY], learned Senior Advocate has placed reliance on the judgment of Supreme Court in the case of Chandran Ratnaswami v. K.C. Palanisamy : ([SECTION]013) 6 SCC 740 to submit that when the continuation of proceedings would be an abuse of process of the court to secure the ends of Justice, proceedings ought to be quashed. Paras 39, 40 of the aforesaid judgment read as under: -
39. This Court in State of Karnataka v. L. Muniswamy [(1977) [SECTION] SCC 699 : 1977 SCC (Cri) 404] , observed that the wholesome power under [SECTION] [ACT] entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case: (SCC p. 703, para 7)?7. ? In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.?
This case has been followed in a large number of subsequent cases of this Court and other courts.
40. In State of Haryana v. Bhajan Lal [199[SECTION] Supp (1) SCC 335 : 199[SECTION] SCC (Cri) 4[SECTION]6] , this Court in the backdrop of interpretation of various relevant provisions of [ACT] under [SECTION] and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under [SECTION] of the [ACT] or the inherent powers under [SECTION] [ACT] gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: (SCC p. [SECTION], para 10[SECTION]) ?10[SECTION]. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.?
15. On the other hand, Mr.[ENTITY], learned counsel for respondent No.[SECTION] has submitted that [ENTITY] and [ENTITY] are not the sons of [ENTITY] from [ENTITY]. They are strangers and imposters. Their names have not been recorded in the revenue record at any point in time whereas the complainant' name has been recorded in the revenue record all the time. He has been in possession of the property even before death of Late [ENTITY] in 1995. He, therefore, submits that accused, [ENTITY] and [ENTITY] in criminal conspiracy with the accused, M/s Viraj Construction Private Limited and S. Gupta Buildtech Private Ltd have got the sale deed executed by forging the documents and, therefore, FIR has been registered against them which discloses prima facie commission of offence against all the accused.
16. It is also submitted by Mr. [ENTITY], Advocate that the police after investigation has filed charge-sheet against the accused and the court has taken cognizance and issued summons. Pendency of the civil dispute is of no consequence when the allegations in the complaint disclose commission of the cognizable offence. The accused in criminal conspiracy with one another have entered into agreement of sale and have got executed the sale deed. He has further submitted that the accused, M/s Viraj Construction Private Ltd. and S. Gupta Buildtech Private Ltd. are the land mafias and they have big political connections. They have grabbed the properties all over Lucknow entering in similar criminal conspiracies. He has further submitted that defence of the accused cannot be considered at this stage. Ongoing proceedings are neither abuse of the process of the court nor this court is required to exercise its inherent jurisdiction under [SECTION] [ACT] to quash the impugned proceeding in order to secure the ends of Justice. He has also submitted that the present case has been pending before this court since [SECTION]008 and once the accused got interim order from this Court, they have been successful in postponing the criminal proceedings against them for almost 11 years.
17. It has been submitted by Mr. [ENTITY], learned counsel appearing for respondent No.[SECTION] that [ENTITY], mother of accused, [ENTITY] and [ENTITY], was not the original wedded wife of Late [ENTITY]. His original wedded wife was [ENTITY]. During lifetime of [ENTITY], Smt. [ENTITY] came and started living with him in a live-in relationship without marriage. [ENTITY] had brought her three children along with her namely, [ENTITY], [ENTITY] and Ms. [ENTITY] from her previous matrimonial association.
18. After death of [ENTITY], Smt. [ENTITY] applied before the District Magistrate, [ENTITY] for issuance of Succession Certificate. The Succession certificate was opposed by Smt. [ENTITY]. Smt. [ENTITY] also produced a Succession Certificate in her favour from the office of District Magistrate, Lucknow. District Magistrate, [ENTITY] got the matter verified from the office of District Magistrate, Lucknow and found that the alleged Succession Certificate issued in favour of [ENTITY] was forged and fabricated document. It was not issued from the office of District Magistrate, Lucknow. Letter dated 1[SECTION].0[SECTION].1996 issued by District Magistrate, Lucknow to District Magistrate [ENTITY] saying that strict action should be taken against the person who had produced Succession Certificate as it was a fabricated document and was not issued from the office of District Magistrate, Lucknow has been placed on record to the counter affidavit as Annexure CA-5.
19. After getting aforesaid report from District Magistrate, Lucknow, District Magistrate Raibareli had issued Succession Certificate in favour of [ENTITY] on 19.0[SECTION].1996. It has further been submitted that [ENTITY] and [ENTITY] have inherited the same rights what their mother had in her association with Late [ENTITY] and his properties thereto. Late [ENTITY] had only one daughter, Ms. [ENTITY] who was born on 18.1[SECTION].1964. The Birth Certificate of [ENTITY], daughter of [ENTITY] w/o [ENTITY] has been placed on record as Annexure CA-7.
[SECTION]0. Initially, mutation with the Nagar Nigam, Lucknow in respect of house bearing No.9 Butler Road, Lucknow which was earlier [SECTION]1/4ka, Tilak Marg, Lucknow was done in favour of Late [ENTITY] on [SECTION]3.01.1995 and after the demise of [ENTITY] on 0[SECTION].09.1995 the property was mutated in the name of [ENTITY] vide order dated [SECTION]4.08.1996 (Annexure CA-9). Subsequently, the house was mutated in favour of the complainant on the basis of will dated [SECTION]5.11.1994 vide order dated [SECTION]0.1[SECTION].1999. It is further submitted that even under will dated [SECTION]6.06.1991 nothing was bequeathed in favour of [ENTITY] and [ENTITY] as they are not the children of [ENTITY]. He, therefore, submits that ongoing civil proceedings have nothing to do with the criminality of the action of the accused.
[SECTION]1. I have considered the rival submissions carefully.
[SECTION][SECTION]. It is true that the civil dispute in respect of the property in question is pending before the competent Civil Court. The issue is whether the pendency of the civil proceedings would be suffice to quash ongoing criminal proceedings which have been initiated by lodging of the FIR dated 08.1[SECTION].[SECTION]005 as mentioned above.
[SECTION]3. Considering the aforesaid aspects I am of the view that the allegations in the FIR, prima facie, constitute the commission of offence by the accused and mere pendency of the civil proceedings in respect of the property is of no consequence. The criminal proceedings cannot be quashed on this ground alone if the allegations otherwise disclose commission of a cognizable offence.
[SECTION]4. Hon'ble the Supreme Court in the case of Kamladevi Agarwal vs. State of W.B. and others, ([SECTION]00[SECTION]) 1 SCC 555 in paragraphs 7, 9, 15 and 17 held as under :-
"7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866: 1960 Cri LJ 1[SECTION]39] this Court held: (AIR p. 869, para 6) ?It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of the cases in which the inherent jurisdiction of High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under [SECTION] the High Court would not embark upon an inquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under [SECTION] in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point [vide: [ENTITY], In re [AIR 19[SECTION]8 Bom 184 : [SECTION]9 Cri LJ 317] , Jagat Chandra Mozumdar v. Queen Empress [ILR (1899) [SECTION]6 Cal 786 : 3 CWN 491] , [PRECEDENT] , Nripendra Bhusan Ray v. Gobinda Bandhu Majumdar [AIR 19[SECTION]4 Cal 1018 : [SECTION]5 Cri LJ 1[SECTION]58] and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar [ILR (19[SECTION]4) 47 Mad 7[SECTION][SECTION] : AIR 19[SECTION]5 Mad 39] ].?
9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in State of Haryana v. Bhajan Lal [199[SECTION] Supp (1) SCC 335 : 199[SECTION] SCC (Cri) 4[SECTION]6 : AIR 199[SECTION] SC 604] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC [SECTION]59 : 1999 SCC (Cri) 401] this Court in Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8 SCC 686 : [SECTION]000 SCC (Cri) 47] held: (SCC p. 690, paras 7-8) ?7. Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal [199[SECTION] Supp (1) SCC 335 : 199[SECTION] SCC (Cri) 4[SECTION]6 : AIR 199[SECTION] SC 604] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC [SECTION]59 : 1999 SCC (Cri) 401] ).
8. In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: (SCC p. [SECTION]63, para 10)
10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.? ?
15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of ?beyond reasonable doubt?. A Constitution Bench of this Court, dealing with similar circumstances, in [PRECEDENT] held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the Court held: (AIR p. 399, paras 15-16) ?15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under [SECTION]. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.?
17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the [ACT] and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings."
[SECTION]5. Further, Hon'ble Supreme Court in the case of Sau Kamal Shivaji Pokarnekar v. State of Maharashtra, [SECTION]019 SCC Online SC 18[SECTION], has held that at the time of taking cognizance and summoning the accused, the Magistrate is required only to apply his judicial mind to find out as to whether, prima facie, case is made out for summoning the accused or not. The merit of the material or evidence in support of the complaint at this stage, is not required to be evaluated. Paragraphs 5 and 6 of the aforesaid judgement are extracted herein below:-
"5. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.
6. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere."
[SECTION]6. It is also well established that while exercising the powers under [SECTION] [ACT], this Court cannot look at the materials furnished by the defence nor it can go into the disputed questions of fact.
[SECTION]7. Hon'ble Supreme Court in the case of Ravindra Kumar Madhaanlal Goenka and another v. Rugmini Ram Raghav Spinners Private Limited, ([SECTION]009) 11 SCC 5[SECTION]9 in paragraphs 16 and 18 held as under :-
"16. This Court in Indian Oil Corpn. v. NEPC India Ltd. [([SECTION]006) 6 SCC 736 : ([SECTION]006) 3 SCC (Cri) 188] at pp. 747-48 has observed as under: (SCC para 1[SECTION]) ?1[SECTION]. The principles relating to exercise of jurisdiction under [SECTION] of the [ACT] to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few?Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 69[SECTION] : 1988 SCC (Cri) [SECTION]34] , State of Haryana v. Bhajan Lal [199[SECTION] Supp (1) SCC 335 : 199[SECTION] SCC (Cri) 4[SECTION]6] , [PRECEDENT] , [PRECEDENT] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 6[SECTION]8] , Rajesh Bajaj v. State (NCT of Delhi) [(1999) 3 SCC [SECTION]59 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [([SECTION]000) 3 SCC [SECTION]69 : [SECTION]000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [([SECTION]000) 4 SCC 168 : [SECTION]000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [([SECTION]001) 8 SCC 645 : [SECTION]00[SECTION] SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [([SECTION]005) 1 SCC 1[SECTION][SECTION] : [SECTION]005 SCC (Cri) [SECTION]83] . The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.?
18. While entertaining a petition under [SECTION] [ACT], 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."
[SECTION]8. Hon'ble Supreme Court in the case of B. Jagdish and another v. State of Andhra Pradesh and another, ([SECTION]009) 1 SCC 681, has held that at the stage of quashing of an order taking cognizance, the accused cannot be permitted to use the material which would be available to him at the stage of his defence. Paragraph [SECTION]4 of the aforesaid judgement is extracted herein under :-
"[SECTION]4. The question is as to whether the High Court should have interfered with the order summoning the appellant at this stage? It is now a well-settled principle of law that at the stage of quashing of an order taking cognizance, an accused cannot be permitted to use the material which would be available to him only as his defence. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. The jurisdiction of the courts, at this stage, is limited as whether a case of reckless/gross negligence has been made out or not will depend upon the facts of each case."
[SECTION]9. Hon'ble Supreme Court in the recent judgment in the case of Md. Allauddin Khan v. The State of Bihar and others, Criminal Appeal No.675 of [SECTION]019, vide judgement and order dated 15.4.[SECTION]019, has reiterated that mere pendency of civil suit is not an answer as to the question whether the offence under Sections of [ACT] is made out against the accused or not. Paragraphs 14, 15 and 17 of the aforesaid judgement are extracted herein below:-
"14. The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under [SECTION], [SECTION] [ACT] is made out against respondent Nos. [SECTION] and 3 or not.
15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. [SECTION] and 3 have committed the offences punishable under [SECTION], [SECTION] [ACT], then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under [SECTION] of the [ACT] (for short ?[ACT]?) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
30. Allegations in the FIR as noted in the preceding paragraph, prima facie disclose commission of cognizable offence. The Investigating Agency after investigation has filed the charge-sheet. Learned Magistrate has taken cognizance and summoned the accused.
31. Considering the law laid down by the Hon'ble Supreme Court in the judgments cited in the preceding paragraphs, I do not find any merit in the present petitions which are hereby dismissed. However, the petitioners are given liberty to move an application for discharge and if such an application is moved within a period of ten days, the same shall be decided by the Trial Court within a period of thirty days thereafter. In the event an application for discharge is filed by the accused, no coercive steps to be taken against them for forty days from the date of the order.
Order Date:-30.04.[SECTION]019 prateek