A.F.R. f-^yw^ •!"i3t^s§& HIGtLCOURT OF CHHATTISGARH, BILASPUR Criminal Misc. Petition No.280 of 2008 APPLICANTS: NON-APPLICANT: 1. Rameshwar, S/o Heeralal, aged about 23 years, 2. Indraman, S/o Buddhu Ram, aged about 37 years, 3. Heera Lal, S/o Buddhu Ram, aged 40 years, 4. Ramvishal, S/o Dewan Ram, aged about 35 years, All are R/o Village Bansapara, Chowki Basdei, P.S. & Tahsil Surajpur, Distt. Surguja (C.G.) 5. Basantram, S/o Mansai, aged about 37 years, R/o Village Shivpur, Chowki Basdei, P.S. & Tahsil Surajpur, Distt. Surguja (C.G.)^t 6. Raghubar, S/o Girdhari, aged about 55 years, R/o Village Tulbul, P.S. Ramanujnagar, Tahsil Surajpur, Distt. Surguja (C.G.) Versus Rajeshwar Prasad, S/o' Prabhuram Sahu (said to be adopted son of Puroshottam), aged about 25 years, R/o Village Khada, P.S. Patna, Tahsil Baikunthpur, Distt. Koria (C.G.) {Application under Section 482 of the Code of Criminal Procedure, 1973} Present: Mrs. Meena Shastri, counsel for the petitioners. MF. Ashok Kumar Shukla, counsel for the respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORAL ORDER (11-9-2009) 1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashment of criminal proceeding pending before the Court of Judicial Magistrate First Class, Surajpur in Criminal Complaint Case No.364/2004 instituted at the instance of the respondent for the offence punishable under • Sections 419, 420, 205, 471, 465, 467, 468, 294, 506B & 323 of the I.P.C. against the petitioners. '^1!- 2. Quashment of criminal proceeding is prayed on the ground that on the basis of same set of facts the alleged father of the complainant/ respondent herein had filed a civil suit in the year 1998 and after lapseof more than three years from the date of alleged execution of sale deed, filing of criminal complaint relating to the act committed by the petitioners herein against deceased Purushottam in the year 1998, is only abuse of the process of the Court. 3. Brief facts giving rise to this petition are that one Purushottam (since deceased) had filed civil suit in the year 1998 against the petitioners herein & other persons for declaration of title & injunction in which it has been pleaded that the petitioners herein have got executed the sale deed dated 25-9-97 of the land belonging to him by committing forgery and presenting some fake person as Purushottam which has been specifically denied by the petitioners herein. According to the case of the respondent herein, on 3-4-2000 Purushottam had executed will deed in favour of the complainant/ respondent herein and after the death of Purushottam, the present complaint was filed against the petitioners & two others for the offence punishable under Sections 419, 420, 205, 471, 128, 465, 467, 468, 294, 506B,323 of the I.P.C. & 82 of the Registration Act. After making enquiry under Chapter-XV of the Code, learned Judicial Magistrate First Class registered case against the petitioners vide order dated 6-5-2002 in connection with offence punishable under Sections 419, 420, 205, 471, 465, 467, 468, 294, 506B & 323 of the I.P.C. Process has been issued, the petitioners have made their appearance and filed this petition on the ground that firstly, civil suit has been filed and during the pendency of such civil suit in absence of any admitted fact, criminal proceeding is not maintainable and the same is abuse of the process of the Court. 4. I have heard learned counsel for the parties. S.Learned co.unsel for the petitioners vehemently argued that in case of admitted facts civil & criminal proceedings may be initiated, but if the facts are disputed, criminal proceeding is not maintainable and parties are required to avail civil remedy before the civil Court. In this case, parties are already availing civil remedyand the alleged offence said to have been committed is against deceased Purushotfam, not against the respondent herein, therefore, the ^ '*e'SS >, 1 ~"'-T!s s •y respondent herein/complainant is not the person aggrieved and he is not competent to lodge F.I.R. or file complaint for taking cognizance against the petitioners. Most of the offences are punishable with imprisonment for three years, therefore, except for offence under Sections 467 & 468 of the I.P.C. taking cognizance after lapse of three years is bar in terms of Section 468 of the Code. Learned counsel further submits that the complaint does not disclose the commission of offence and statements of the complainant & his witnesses do not clearly disclose the commission of offence. Learned counsel placed reliance in the matter of B. Suresh Yadav v. Sharifa Bee & Anr. in which the Apex Court has held that contrary stand taken by the complainant in civil and criminal proceeding is not permissible, though liability of a person can be both civil and criminal at the same time, inconsistent stand taken by complainant assumes significance, and taking into consideration the inconsistent stand, criminal proceeding is required to be quashed. Learned counsel also argued that the petitioners have not cheated the complainant and they have not committed any offence of forgery. The most important material document i.e. the alleged forged sale deed has not been filed by the complainant before the criminal Court at the time of taking cognizance. 6. On the other hand, learned counsel for the respondent opposed the petition and vehemently argued that at the time of taking cognizance the Court below is required to see prima facie material for taking cognizance and initiating proceeding against the accused persons. Atthe time of taking cognizance, no meticulous scrutiny of evidence or production of all evidence is required. If the facts give rise to criminal liability & civil liability, parties may competently initiate civil & criminal proceedings simultaneously. Learned counsel placed reliance in the matter of M/s. Indian Oil Corporation v. M/s. NEPCIndia Ltd. & Ors. in which the Apex Court has held that on the basis of facts if criminal & civil liability arise, criminal proceeding &civil proceeding may be initiated against the parties and criminal proceeding is not liable to be quashed. 1. This is a petition under Section 482 of the Code against the order taking cognizance and for quashment of criminal proceeding. Scope 12008Cri.L.J. 431 22006AIRSCW3830 "<>—<•''iu:I\ (' i'?-s "*lil-.:'.' '~r':y l::;:-ii:;^fle»ssl of interference in terms of Section 482 of the Code is limited. Power under Section 482 of the Code is exceptional in nature and should be used sparingly. While dealing with exercise of power under Section 482 of the Codein the matter of M/s. Zandu Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque and others the Apex Court has held thus, "8. Exercise of power under Section 482 of the Code in a case ofthis nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends ofjustice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them. by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of adminis.tration ofjustice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an a'buse of process of the court to allow any action which would result in injustice and prevent promotion ofjustice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or AIR 2005 SC 9 W iWSm, •<i,..t r.-£-?^»t!/^^ ^^P^S^~S£.s^ quashing of these proceedings would otherwise serve the ends ofjustice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 7. At the time of taking cognizance on the basis of complaint, the Court is required to see that if the allegation made in the complaint is admjtted in its face value, it would be sufficient for warranting conviction of the accused, and then criminal proceeding may be initiated. 8. in the present case, complaint was filed by the respondent against the petitioners. Bar to taking cognizance after lapse of the period of limitation is credited in Section 468 of the Code which reads as under:- "468. Bar to taking cognizance after lapse of the period of limitation.-(l) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." 9. Sub-section (3) of Section 468 of the Code provides limitation for taking cognizance in cases of offences which may be tried together. In casesof offences which may be tried together, more severe punishment would be the deciding factor for taking cognizance. In the light of the provision of sub-section (3) of Section 468 of the Code, the argument advanced by learned counsel for the petitioners relating to the question of limitation for taking cognizance has no force. IO.AS regards maintainability of criminal proceeding initiated against the petitioners, as held in the case of B. Suresh (supra), inconsistent stand taken by complainant assumes significance and criminal proceeding may be quashed. Paras 12, 13 & 14 of the said judgment read thus, "12. While executing the sale deed, the appellant herein did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is acivil dispute. 13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to considerthe stand taken by a party in a pending civil litigation. We do not,however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale,the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforesaid Suit. She, for reasons best known to her did not choose to do so. 14. In this view of the matter, we are of the opinion that in the facts and circumstances obtaining herein, no case has been made out for proceeding with the criminal case." ll.In the matter of B. Suresh (supra), the Apex Court has held that 1 • . •' . • . crimlinal & civil proceedings may be simultaneously initiated but in the iight of inconsistent stand, criminal proceeding may be quashed. 12,While dealing with same question, the Apex Court in the matter of M/s. Indian Oil (supra) has held that there is no bar in initiating or invoking criminal& civil proceedings simultaneously, Paras 10, 12 & 13 of the said judgment read thus, 11 PA l«''. --;i.:'~'- ^! "•- '^, 'L IT ,''' -.€*' /''' s»s,t"ia'"*^/ '•'•^WSy^,f •^^^^s^^ "10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/ creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. (2000 (2) SCC 636), this Court observed: "It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any courtor otherwise to secure the ends ofjustice." While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may. 12. The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. They have taken pains to point out that the aircrafts are continued to be stationed at Chennai and Coimbatore Airports; that the two engines of VT-NEK though removed from the aircraft, arestill lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted to another Aircraft (VT-NEH) which had been taken on lease from 'M/s. Aircraft Financing and '^ /;f 'N. '•• ';';.J^../ ,^» Trading BV' and that the said Aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted to VT-NEJ (in places of the removed engines), when sent for overhauling to M/s. Hunting Aeromotive, U.K., were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control; no dishonest intent could be attributed to them. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not. 13. The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency ofseveral civil proceedings." l3.In the present case, the alleged original owner of the property in whose name thesale deed dated 25-9-97 has been executed, has filed civil suit in the year 1998 in which it has been specifically pleaded in para 3 of the plaint that the petitioners herein entered into'conspiracy with some person and by producing fake person they succeeded in executing sale deed of the land belonging to him. Para 3 ofthe plaint reads as follows: - -a^ fsf; yf?|c|i41 ^Tffcf? 1 cT 2 ^sn- 2 c^ ft^TT yft'|c||({1 cb'Hich 3 4 cTaiT 5 ^ war 3TPTO Tf <i-|jd<|id cf?? 'cIT^t •c^ ??t -l^ ^T f^ZT T^ f^ft 3{^ srte ^i' 'Q^T 'cR ^K v^ TRo 3T ^T 'iFil'i'd^ Rcjs^-ira ipuff 6[^' ^ p|t4lRd ?RT f^rar 11 i^w^ 'Epi^ uii'icbi'?! 'cir^t ^t •^f 11" 14.Allegation of para 3 of the plaint has been specifically denied by the petitioners. After the death of Purushottam, the alleged adopted son ofPurushottam, has filed complaint in which it has been specifically mentioned that the petitioners have committed cheating, forgery and other offences with his father, Criminal proceeding does not create any bar for taking cognizance at the instance of a person who is not directly aggrieved by the act ofthe accused persons, even otherwise, in the present case, the respondent is person who has claimed that he isthe adopted son ofdeceased Purushottam and Purushottam has executed will in his favour. The Court below has taken cognizance against the petitioners on the basis of evidence adduced on behalf of the complainant/respondent before it which is sufficient for taking cogriizance. At the time of taking ' cognizance, production of ;:ioma document is not sine qua non. The alleged document is subject matter of civil suit. is.The civil suit has been filed in the year 1998 within one year of the alleged execution of the document and deceased Purushottam has levelled allegation of forgery & cheating in his plaint from its inception. The complainant has not pleaded anything relating to cheating & forgery which has not been pleaded by deceased Purushottam. The Court below has rightly taken cognizance on the basis of statements of the witnesses. If the allegations made in the complaint and statements of the witnesses are admitted in their face value by the petitioners, same are sufficient for their conviction. The petitioners have utterly failed to make out a case for quashment of criminal proceeding against them. Even the petitioners have not alleged in their petition that as to when they made their appearance before che trial Court and after how many years of their participation in the criminal proceeding they have filed this petition for quashment. I do not find any scope of interference in terms of Section 482 of the Code. The petition is, therefore,liable to be dismissed and it is hereby dismissed in limine with cost of Rs.5,000/-. Cost shall be paid to the respondent. Sd/- T.P. Sharma Judge F ! ^?:s;E:ss»E8?