Full Judgment
The petitioner has filed this application under Section 482 Cr.P.C. for invoking the jurisdiction of this Court seeking relief that FIR (Annexure P-1) registered at Crime No. 29/2014 at Police Station Chinor district Gwalior for the offence punishable under Sections 419 and 420 of IPC, be quashed and proceedings arising out of that crime number be also quashed.
Briefly stated the facts are as follows:-
The petitioner has contended that an "agreement to sale" was made by non-petitioner/respondent No. 2 Jamuna Bai in favour of the petitioner on 21.10.2011, which was registered before the Sub-Registrar, Gwalior (Annexure P-2). Subsequently, the petitioner made a publication on 09.09.2013 in the local news paper regarding the registered deed of agreement to sale (Annexure P-3).
The petitioner sent a registered notice (Annexure P-4), which was duly served on the respondent No. 2. The petitioner preferred a civil suit before Additional District Judge, Gwalior seeking relief of specific performance of contract and permanent injunction on 21.10.2013 (Annexure P-5).
It is also contended that the respondent No. 2 filed her written statement (Annexure P-8) before the Civil Court on 03.03.2014. Meanwhile respondent No. 2 filed a Writ Petition No. 799/2014 on 03.02.2014 (Annexure P-7) against the State, Superintendent of Police, district Gwalior and Station House Officer, Police Station Chinor. In which it was prayed to direct the police to lodge FIR on the complaint of respondent No. 2. The petition was disposed of on 06.02.2014 with the direction to the Superintendent of Police, district Gwalior to take action on the complaint, within a period of 30 days from the date of receipt of the certified copy of the order along with copy of the complaint.
The petitioner further submitted that respondent No. 2 filed its written statement (Annexure P-8) on 03.03.2014 before the Court of Additional District Judge, Gwalior and pleaded that the respondent No. 2 is an old illiterate lady, she does not have much knowledge about the procedures. Petitioner came to her and requested to execute a power of attorney in his favour, which the executed. She also has taken the plea that the respondent No. 2 had no knowledge about the so called execution of "agreement to sale". It is also claimed that for the first time, she came to know that an agreement to sale was executed. Therefore, she made the complaint on 24.01.2014 by registered post to the Superintendent of Police, Gwalior, but no action was taken against the petitioner. Respondent No. 2 claimed that she is a victim of forgery.
Whereas the petitioner claimed that the respondent No. 2 was in knowledge of all the proceedings and she pretended that she was not aware of the execution of the "agreement to sale" and other proceedings launched by the petitioner. She requested to dismiss the civil suit. Learned counsel for the petitioner submits that the FIR (Annexure P-1) lodged under Sections 419 and 420 of IPC by the respondent No. 2 on 13.03.2014 alleging that the petitioner forged the execution of the "agreement to sale" (Annexure P-2). The petitioner has filed civil suit on the basis of this "agreement to sale". To avoid the civil action against her and to pressurize the petitioner, the FIR (Annexure P-1) has been lodged by respondent No. 2, therefore, FIR (Anneuxure P-1) is liable to be quashed.
Per Contra, on behalf of respondent No. 2 claims that she is a 76 old year lady suffering from diseases. She has no knowledge about the execution of the agreement to sale. She is being harassed by the petitioner and she has not received any "advance" as is mentioned in the agreement to sale (Annexure P-2).
It is also contended that the High Court would not in the ordinary course invoke its power to quash the proceeding except in rare and compelling circumstances. It is contended that the cost of the disputed land is more than two crores and why the respondent would sale it at a consideration of Rs.51.00 lacs. Argument is also advanced that in the agreement to sale, the respondent No. 2 has received Rs.50.00 lacs in advance and Rs.1.00 lac was to be given, whereas not a single pie was received by her. At the other hand, with the pretext that the petitioner has to look after the property and made her execute the power of attorney in his favour got the signatures or thumb impression of the respondent No. 2. He also obtained 50,000/- from the respondent No. 2.
Heard the rival contentions and perused the record. In the case of Lalita Kumari Vs. Government of Uttar Pradesh and another reported in (2014) 2 SCC 1, Hon'ble the Supreme Court held that:-
"However, where information received does not disclose a cognizable offence a preliminary inquiry may be conducted to ascertain whether cognizable offence is disclosed or not - Also, matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/ laches in initiating criminal prosecution are illustrations and not exhaustive of all cases which may warrant preliminary inquiry."
Claiming that the present case is a "commercial case" require preliminary enquiry the police has wrongly registered the FIR against the applicant, learned counsel for the petitioner submits that in the light of the Lalita Kumari's case (supra), FIR against the petitioner is liable to be quashed.
In paragraph 120 the Hon'ble the Supreme Court has given the guidelines as regarding registration of FIR:-
"120. In view of the aforesaid discussion, we hold:
120.1 The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police office cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases Preliminary Inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which Preliminary Inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes.
(b) Commercial Offences.
(c) Medical negligence cases.
(d) Corruption cases,
(e) Cases where there is abnormal delay/ laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant Preliminary Inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a Preliminary Inquiry should be made time bound land in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/ Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a Preliminary Inquiry must also be reflected, as mentioned above."
In case of Umesh Kumar Vs. State of Andhra Pradesh and another reported in (2013) 10 SCC 591, Hon'ble the Supreme Court has made it clear that the inherent power under Section 482(b) of Cr.P.C. can be exercised to save accused from undergoing agony of criminal trial. Hon'ble the Supreme Court has held that:-
"D. Criminal Procedure Code, 1973 - Ss. 482, 173, 227, 228 and 240 - Quashment of charge-sheet - Petition for, before charges are framed or application of discharge is filed or even during pendency of such application - Permissibility of - Held, is permissible - High Court cannot reject said petition merely on ground that accused can argue legal and factual issues at the time of framing of charge - However held, inherent power should not be exercised to stifle legitimate prosecution but can be exercised to save accused from undergoing agony of criminal trial."
When the civil proceeding is pending and the determination of the so called "forgery" is being dealt with criminal proceeding on the same issue is not a welcome move. Hon'ble the Supreme Court in Anjani Kumar Vs. State of Bihar and another reported in (2008) 5 SCC 248, has held that:-
"Criminal Procedure Code, 1973 - S. 482 - Exercise of power under - When justified - Complaint filed against government official as a counterblast to action taken by him in his official capacity - Facts also showed that complaint wa an afterthought to rope in appellant on account of action taken by him against Respondent 2 - Held, this case was of the nature mentioned at Category (7) in Bhajan Lal Case, 1992 Supp (1) SCC 335 - Continuance of proceeding against appellant would amount to abuse of process of law - Criminal Proceedings therefore quashed."
Keeping all the above in mind and the factual background noted above, if valued on the touchstone of legal principle set out above, the inevitable conclusion is that certainly malafides were involved. It is no doubt true that at the threshold interference exercise by Section 482 of the Code has to be in rare cases. But the present case appears to be of that commercial nature and falls under the category 120.6(b) in which preliminary enquiry is must. The continuous of the proceedings by the prosecution may amount to abuse of process of law.
In this regard, it would be appropriate to mention here that as the matter involved is of a civil nature, lodging of an FIR after a considerable period and initiating criminal proceeding would amount to abuse of process of law. In Suneet Gupta Vs. Anil Triloknath Sharma and others reported in (2011) 11 SCC 670, it is held that:-
"Criminal Procedure Code, 1973 - S. 482 - Quashing of FIR - Dispute of civil nature - FIR lodged after two years - Held on facts criminal proceedings initiated by complainant amounted to abuse of process of law - Hence, FIR rightly quashed by High Court."
As the civil dispute is pure and simple between the parties is pending and by way of this FIR the same is being converted into criminal offence by resorting to pressure tactics and taking police help is indeed abuse of process of law, therefore, needs to be prevented.
For the forgoing reasons in view of the above, the petition is allowed. FIR registered as Crime No. 29/2014 dated 13.03.2014 (Annexure P-1) is quashed.