1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE06H DAY OF OCTOBER, 2023 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.8076 OF2023BETWEEN:
1. . SRI N.BHARATH REDDY S/O SRI N.SURYANARAYANA REDDY AGED ABOUT32YEARS R/AT51 GOPALASWAMY ROAD GANDHINAGAR BALLARI - 583 103. 2 . SRI N.SURYANARAYANA REDDY S/O N.GOWRANNA AGED ABOUT68YEARS R/AT51 GOPALASWAMY ROAD, GANDHINAGAR BALLARI - 583 103. 3 . SMT. N.SUVARNA W/O N.SURYANARAYANA REDDY AGED ABOUT63YEARS R/AT51 GOPALASWAMY ROAD GANDHINAGAR BALLARI - 583 103. ... PETITIONERS (BY SRI RAVI VARMA KUMAR, SENIOR COUNSEL REPTD., AND SRI PRAVEEN P.TARIKAR, ADVOCATE) 2 AND:
1. . SRI C.SUNIL KUMAR S/O C.PRABHAKAR REDDY AGED ABOUT46YEARS R/AT No.D3, VEERANAGOWDA COLONY BESIDE BALLRI CLUB BALLARI - 583 103. 2 . THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH, DHARWAD THROUGH GANDHINAGAR POLICE STATION DR. RAJKUMAR ROAD SATYA NARAYANA PET BALLARI - 583 101. ... RESPONDENTS (BY SRI T.HANUMAREDDY, ADVOCATE FOR R1; SRI V.S.KALASURMATH, HCGP FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE COMPLAINT REGISTERED BEFORE THE PRL. CIVIL JUDGE AND JMFC BALLARI IN PCR NO.74/2022, ANNEXURE-A AND CONSEQUENTLY
ORDERDATED2802.2022 DIRECTING INVESTIGATION U/SEC. 156(3) OF THE CR.P.C., FOR THE OFFENCES PUNISHABLE U/SEC. 420, 465, 468, 471, 406 R/W SECTION120B, 114, 182, 191, 192 OF IPC PRODUCED AS ANNEXURE-C IN RESPECT OF ACCUSED NO.4, 5 AND6 THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0109.2023 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 3
ORDERThe petitioners are before this Court calling in question registration of a private complaint in P.C.R.No.74 of 2022 and the order of reference of the Principal Civil Judge & JMFC, Ballari for investigation under Section 156(3) of the CrPC for offences punishable under Sections 420, 465, 468, 471, 406 r/w 120B, 114, 182, 191 and 192 of the IPC. The petitioners are accused Nos. 4 to 6 in the said private complaint.
2. The facts adumbrated are as follows: The 1st respondent is the complainant. The complainant claims to have purchased land bearing Sy.No.35/A totally measuring 10 acres in Gavarala Village, Kukunoor Taluk, Koppal District including 2 guntas of kharab land. The complainant purchases the said property on 23-12-2002. The averment is that he has purchased the said land from out of his own earnings and claims to be in possession of the said land of 10 acres in total since then. It is alleged that accused 3 to 6 are the relatives of the complainant and accused 5 and 6, are husband and wife and 4 accused No.4 is the son of accused 5 and 6. Accused 5 and 6 are said to be partners of M/s Sree Raghavendra Enterprises and M/s Indian Minerals and Granite Company and accused Nos. 1 and 2 are said to be employees in the said partnership firm.
3. The complainant avers that he stayed in the residence of the accused while he was pursuing his Engineering degree in the years 1993 to 1997. Subsequent upon completion of graduation, the complainant shifts to United States of America to pursue his further studies. On coming back to India, the complainant is said to have assisted the management and administrative work of the business affairs of both the afore-mentioned partnership firms from 2002 to 2006. The narration is taken a little further and the narration turns into allegations. The complainant is said to have asked accused No.5 to return the documents concerning the schedule property on the decision of the complainant to quit of assisting and serving accused No.5 in the partnership firms. It is then accused No.5 misrepresents and lies about the sale deed dated 23-12-2002 and other property papers missing and assured the complainant that if the documents were traced, he would return 5 the same to the complainant immediately. This is in the year 2005- 2006.
4. In the year 2019, the firms and the houses of accused Nos. 4 to 6 were searched by the Income Tax officials and search led to seizure. The seizure was of several documents in possession of accused Nos. 4 to 6. The property papers which belonged to the complainant also became a subject matter of seizure. It is then a notice comes to be issued by the Income Tax Department to the complainant and he was summoned with regard to the affairs and business of the aforesaid partnership firms. It is then the complaint avers that the complainant realized that accused 4 to 6 along with others have played fraud upon the complainant. The fraud is that accused 4 to 6 have usurped the self-acquired properties of one N.Deva Reddy. The said N.Deva Reddy is the father-in-law of the complainant. It is then the subject complaint comes to be registered on the score that a General Power of Attorney (‘GPA’ for short) that was executed in the year 2012 is a product of fraud and based upon the said General Power of Attorney, properties have changed hands by forging the signatures of the complainant. Based 6 upon these incidents, the private complaint comes to be registered. The learned Magistrate, on perusal at the private complaint, refers the matter for investigation under Section 156(3) of the CrPC. Referring the matter to investigation is what has driven the petitioners to this Court in the subject petition. Since the 1st petitioner is a Member of the Legislative Assembly, the matter is placed before this Special Bench constituted to hear cases concerning political representatives.
5. Heard Sri Ravi Varma Kumar, learned senior counsel appearing for the petitioners, Sri T.Hanumareddy, learned counsel appearing for respondent No.1 and Sri V.S. Kalasurmath, learned High Court Government Pleader appearing for respondent No.2.
6. The learned senior counsel Sri Ravi Varma Kumar would take this Court to the documents appended to the petition to contend that the property of the complainant is said to have been purchased in the year 2002. GPA and sale deed that he seeks to question now are dated 04-08-2012 and 06-08-2012. The property that become the subject matter of complaint is Sy.No.35/3. 7 Sy.No.37/1 abuts each other and is in possession of the complainant. The complainant narrates that he is not aware as to how the sale deed in the year 2012 took place which cannot be believed as Sy.No.37/1 is owned by the complainant even today. If the property next to him is not belonging to him for the last 10 years it is highly ununderstandable as to how he had no knowledge of the same. The learned senior counsel further submits that a civil transaction has been given a colour crime. The complainant has also instituted civil suits on the same cause of action. He would therefore contend that delay of 10 years in registering the private complaint has gone completely unexplained on a flimsy ground of cause of action, which on the face of it, is improbable and unbelievable. He would contend that a stale complaint is referred for investigation by the learned Magistrate without even looking into its contents. The order of reference bears no application of mind. On all these facts, he would seek obliteration of entire proceedings against the petitioner.
7. On the other hand, the learned counsel appearing for the 1st respondent/complainant would refute the submission of the 8 learned senior counsel and seeks to contend that the complainant became aware of the fraudulent activity of the petitioners only when the Income Tax Department had issued a notice to him which is in the year 2020. It is then the complainant has taken all the documents that are necessary for registering a complaint and, therefore has registered the complaint. It is his submission that Smt.N.Gangamma wife of late N.Deva Reddy is his mother-in-law. These properties and the properties owned by her are sold by way of GPA said to have been executed by Smt.N.Gangamma. Since Smt.N.Gangamma is aged, she has not taken steps to register the complaint and therefore, the complainant had to take steps of registration of the crime. He would contend that the matter is referred for investigation. There is no cause of action or warrant to any accused to knock at the doors of this Court at this juncture, as mere reference to investigation will cause no prejudice to the petitioners. Therefore, he seeks dismissal of the petition, so that the investigation would continue in terms of the order of reference of the learned Magistrate.
8. I have given my anxious consideration to the submissions 9 made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute. The 1st respondent-complainant is said to be one of the relatives of accused Nos. 4 to 6, the petitioners herein. He was working in the partnership firms of accused 4 and 5 between 2002 and 2006. It is his claim that he had purchased the subject property in Sy.No.35/3 on 23-12-2002 and travels to United States of America for his higher studies; comes back, executes a GPA in favour of accused No.1. Accused No.1 on the strength of the GPA executes a sale deed in favour of accused No.4 on 06.08.2012 after execution of the GPA. 9 years have passed by. A complaint is sought to be registered before the jurisdictional Police on 12-08-2021 contending that the GPA that he is said to have executed on 04-08-2012 is said to be forged and sought investigation at the hands of the Police. Preliminary inquiry was conducted by the Police in terms of the judgment of the Apex Court in the case of LALITA KUMARI v. GOVERNMENT OF U.P.– (2014) 2 SCC1 The result of the preliminary inquiry was closure of the complaint in terms of the 10 endorsement dated 25-10-2021 holding that the issue is purely civil in nature.
10. After about 4 months, a private complaint comes to be registered on 24-02-2022, on the very same ground that signatures of the complainant on the GPA were forged inter alia. Certain paragraphs of the complaint become germane to be noticed and they read as follows: “7. Recently after the Complainant realized the fraud played by Accused persons and seeing few documents at the office of the Income Tax Dept., Ballari which showed further transactions with regard to the Schedule Property, Complainant procured RTCs for Schedule Property and after enquiring at the office of Sub- Registrar. Yelburga, Complainant discovered that vide Sale Deed dated 06.08.2012, Accused No.1 has sold the Schedule Property to Accused No.4. The Accused No.4 to 6 conspired to usurp the Schedule Property owned by Complainant and by forging his signature on the GPA, they have created a GPA dated 04-08-2012 appointing Accused No.1 as the alleged Lawful Attorney of Complainant. Accused No.1 being fully aware of the fact that the said GPA dated 04.08.2012 was not executed and signed by the Complainant, has accepted the authority or power allegedly vested on him by virtue of the said forged and concocted GPA and has executed a Sale Deed in favour of Accused No.4. Accused No.2 and 3 being fully aware that the said GPA dated 04.08.2012 is a forged and concocted document created by Accused No.1, 4 to 6 and other family members or employees of Accused No.5 and that Complainant had never authorized the Accused No.1 to deal with the Schedule Property, placed their 11 signatures as Attesting witnesses. Neither have Accused No.2 and 3 placed their signatures in the presence of Complainant nor has the Complainant placed his signature in the presence of Accused No.1 to 3. Complainant had never executed the said the said GPA. Accused No.2 and 3 have abetted the offences committed by Accused No.1 and 4 to 6, they were present while Accused No.1, 4 to 6 committed the offence of forgery. Certified copy of the GPA dated 04.08.2021 obtained from the office of the Sub-Registrar, Yelburga under Right to Information Act is produced herewith as Document No.8.
8. Subsequently based on the power vested on Accused No.1 under GPA dated 04.08.2012 concocted and forged by Accused No.4 to 6, Accused No.1 has executed a sale deed dated 06-08-2012 (registered as Document No.YBG-1-02445-2012-13, Book 1, stored in CD No.YBGD63, in the office of Sub-Registrar, Yelburga) in favour of Accused No.4 who is the son of Accused No.5. It is pertinent to note here that both the GPA and sale deed has been created fraudulently to usurp the lands belonging to Complainant. A copy of the Sale Deed dated 06.08.2012 is produced as Document No.9. Accused No.7 and 8 Have acted as the witnesses to the alleged sale deed Dated 06.08.2012 in favour of Accused No.4. Accused No.7 and 8 being fully aware that Accused No.1 is not a lawfully appointed attorney or Agent of the Complainant and that Accused No.1 to 6 have connived and conspired to usurp the Schedule Property belonging to Complainant and accordingly have forged and concocted a GPA dated 04.08.2012 have placed their signatures as attesting witnesses to the Sale Deed dated 06.08.2012. It is submitted that the alleged GPA has been executed on 04-08-2012 and the alleged sale deed executed by Accused No.1 in favour of Accused No.4 on 06-8-2012 within a span of two days which itself shows that the fraudulent set of the above said Accused persons in committing the above said offence. 12
9. It is pertinent to submit that all the above said misdeeds have been committed at the instance of Accused No.4 to 6 and all the accused have conspired for commission of the offences, and all are equally responsible for the offence committed by them. It is submitted that the Accused No.1 to 8 all have put together their bands in commission of the offence.
10. It is submitted that the Accused No.5 N. Suryanarayana Reddy has conspired with all the accused persons, in order to cheat, dishonestly and fraudulently usurp and grab the Properties belonging to Complainant by forging and fabricating various documents mentioned above but not limited to the same and has caused wrongful loss Accused No.5 in connivance with Accused No.1 to 4, 6 and other members of his family, friends and employees by adopting a similar modus operandi has forged and concocted another GPA dated 29.03-2006, wherein Accused No.2 who is an Employee of Accused No.5 and 6 was allegedly appointed as Attorney of Complainant in the said GPA dated 29.03.2006. Accused No.5 by virtue of immense money and political power he wields has persuaded all other Accused persons into supporting his illegal mis doings and has instigated them into committing such illegals acts which are punishable under the Indian Penal Code.
11. It is submitted that the Complainant herein had filed a complaint before the S.H.O Gandhinagar police station Ballari on 15/07/2021, however the S.H.O, Gandhinagar Police Station did not conduct any preliminary enquiry or register a case against the Accused persons though the accused persons have committed the above said offences and such being the fact the S.H.O Gandhinagar police station has issued an endorsement stating that the complaint is civil in nature. Hence the SHO, Gandhinagar P.S. has refused to take cognizance of offences mentioned in the complaint A notarised copy of the Complaint and Acknowledgement dated 15.07.2021 and endorsement/ NCR dated 17.07.2021 issued by SHO, Gandhinagar Police Station is produced herewith as Document No.10, 11 and 12. Thereafter the complainant has approached the Superintendent of Police, Ballari as contemplated U/s 13 154(3) of Cr.P.C on 12.08.2021 and the said complaint was referred to Gandhinagar Police Station for further action and again an endorsement to that effect in similar fashion that the matter or the allegations made are civil in nature has been issued. A copy of the said Complaint addressed to the S.P., Ballari dated 12.08.2021 and endorsement issued by Gandhinagar Police Station dated 25.10.2021 are produced herewith as Document No.13 and 14. The Police authorities have acted hand in glove to shield the Accused Persons and have assisted the Accused persons in achieving and accomplishing their ill-motives. The Police authorities have shirked from their duty and responsibility to act upon the complainant lodged by Complaint within the framework of law. Having no other means and aggrieved by the same, the complainant is approaching this Hon'ble Court through this Private complaint with the following prayer. PRAYER WHEREFORE, Complainant respectfully pray that this Hon'ble Court be pleased to refer the above case for investigation under section 156(3) of The Code of Criminal Procedure, 1973 for offences committed by the Accused No.1 to 8 under Section 420, 465, 468, 471, 406, read with section 120-B, 114, 182. 191 and 192 of Indian Penal Code, 1860 before Jurisdictional Gandhinagar Police Station, Ballari in the interest of justice.”
(Emphasis added)The averments in the complaint are all that have happened in the year 2012. The forgery the complainant alleges is of the year 2012. The narration in the complaint is that the complainant is the owner of the property in Sy.No.37/1 and the sale on the strength of the aforesaid forgery is in respect of Sy.No.35/3. A search 14 conducted by the Income Tax department in the year 2020, in the house of other accused is projected to be the cause of action for calling in question the sale deed dated 06-08-2012. The learned Magistrate, on the strength of the averments made in the complaint, refers the matter for investigation. The order of reference reads as follows: “Heard learned counsel for complainant. Complaint is filed alleging that accused No.1 to 8 have committed a offence punishable under Section 420, 465, 468, 471, 406 R/w Section 120(B), 114, 182, 191, 192 of IPC in respect of the property belongs to the complainant. The complaint further discloses that, the complainant has exhausted the Section 154 of Cr.P.C. by giving complaint to the concerned Jurisdictional police and approaching the higher authority of police to investigate the case. But, the concerned police failed to investigate the case. Hence, the complainant sought for refer the case to the jurisdiction police to investigate the offence committed by the accused. The offence alleged to be committed by the accused is forgery, cheating and the like. The said allegation required to be throughly investigated by obtaining the necessary records and the complainant having been approached before the jurisdictional police and higher authority of police but the jurisdictional police declined to investigate the case. Therefore, it is just and proper to refer the present case for investigation. In view of the same court pass following:
ORDERBy acting under Sectin 156(3) of Cr.P.C. the present case is referred to jurisdictional police i.e., 15 Gandhi Nagar Police Station to investigate the case and to submit final report. Call on 28.05.2021. Sd/- Prl.C.J & JMFC, Ballari.”
(Emphasis added)All that the learned Magistrate records is that the offence alleged is forgery, cheating and the like and further records that the said allegation is required to be thoroughly investigated and, therefore, the matter is referred for investigation to the jurisdictional Police. The learned Magistrate ought to have at least seen the dates that are alleged in the complaint. The dates stop at the year 2012. The complaint is registered in the year 2022 clearly 10 years after the alleged incident.
11. Several documents are appended to the petition. The learned senior counsel takes this Court through those documents to demonstrate that the GPA that is executed in the year 2012 i.e., on 04-08-2012 bears the signature of the executant. The executant is the complainant. He would take this Court through the affidavit filed along with the private complaint. The signature in the affidavit is 16 that of the complainant. Even to bare eye, the signature completely tallies, with the signature in the GPA. I have taken note of all those averments and the documents only for the reason that the complainant feigns ignorance and projects, forgery of the GPA executed in the year 2012. On these facts, after about 10 years in a matter which is seemingly civil in nature, the complainant seeks to project forgery and create a cause of action in his favour for registration of the complaint and registers the complaint. The complaint is referred for investigation.
12. The ignorance of the complainant is belied by the properties owned by the complainant himself, as is depicted in the chart provided by the learned senior counsel for the petitioners. It would read as follows: “3.3. Thirdly, if all the title deeds of the complainant have been retained by Sri. Suryanarayana Reddy the complainant is the owner of other properties over which there is no such allegations of retention of title deeds. These properties owned by the complainant are:- Sl. Date Particulars Total No.measureme nt 1 04.06.2001 Property bearing 2.70 acres Sy.No.374B, situated 17 at Hosahalli Village, Siraguppa Taluk, Ballari 2 04.06.2001 Property bearing 10.53 acres Sy.No.376A/2A1, situated at Hosahalli Village, Siraguppa Taluk, Ballari 3 16.03.2002 Property bearing 5.15 guntas Sy.No.37/1, situated at Gavaral Village, Kukanur Taluk, Ballari 4 F.Y.1995-96 Property bearing About 18 Sy.No.43(P), situated acres at Kanekoppa Village, Molakalmur Taluk, Chitradurga District 5 11.03.2003 Property bearing 2.24 Sy.No.26/B, situated at guntas” Putthageri Village, koppal District The learned counsel for the 1ST respondent would admit the said chart. Sy No.37/1 measuring 5 acres 15 guntas is still owned by the complainant. It is admitted that Sy.No.35/3 which is the subject matter of crime is adjacent to Sy.No.37/1. Therefore, knowing full well and having executed the GPA, the allegation of forgery is now projected against the petitioner without any explanation for the delay of 10 years. Personal grievances are projected to be a crime. 18
13. The offences alleged against the petitioners are the ones punishable under the afore-quoted sections. Sections 465 to 471 of the IPC read as follows: “465. Punishment for forgery.—Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
466. Forgery of record of Court or of public register, etc.—Whoever forges a document [or an electronic record]., purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. [Explanation.—For the purposes of this section “register” includes any list, data or record of any entries maintained in the electronic form as defined in clause (r) of sub-section (1) of Section 2 of the Information Technology Act, 2000.]. NOTE ► Section 2(1)(r) of the Information Technology Act, 2000 defines “electronic form” as follows: “(r) ‘electronic form’ with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer- generated micor fiche or similar device.
467. Forgery of valuable security, will, etc.—Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance 19 or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life]., or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
468. Forgery for purpose of cheating.—Whoever commits forgery, intending that the document 438[or electronic record]. forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
469. Forgery for purpose of harming reputation.— Whoever commits forgery, intending that the document [or electronic record]. forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
470. Forged document [or electronic record]..—A false document [or electronic record]. made wholly or in part by forgery is designated “a forged document [or electronic record].”.
471. Using as genuine a forged document 443[or electronic record]..—Whoever fraudulently or dishonestly uses as genuine any document [or electronic record]. which he knows or has reason to believe to be a forged document [or electronic record]., shall be punished in the same manner as if he had forged such document [or electronic record]..” Section 465 deals with punishment for forgery. The ingredients thereof are found in Section 463 of the IPC which reads as follows: “463. Forgery.—Whoever makes any false documents 425[or false electronic record]. or part of a document 426[or electronic record,]. with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.” 20 Whoever makes false documents or false electronic record with an intent to cause damage to public or to any person or to support any claim or title of such person is said to have committed forgery. Section 468 also deals with forgery for the purpose of cheating and Section 471 deals with using as genuine a forged document. As observed hereinabove, the allegation of forgery is loosely laid against the petitioners. The document executed by the complainant himself is sought to be projected as forged, that too after 10 years of execution of the said document. The other offences are the ones punishable under Sections 406 and 420 of the IPC. Sections 406 and 420 of the IPC read as follows: “406. Punishment for criminal breach of trust.— Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. …. …. ….
420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 21 The ingredients of these sections are found in Sections 405 and 415 of the IPC. They read as follows: “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. …. …. ….
415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” For an offence to become punishable under Section 406 of the IPC for criminal breach of trust, every ingredient of Section 405 should meet its compliance. Section 405 of the IPC mandates that there should be entrustment of property and the property should have been misappropriated with a dishonest intention. I fail to understand where is the entrustment of property at the outset in 22 the case at hand for it to be misappropriated by the petitioners. Section 415 of the IPC requires inducement by the accused to the victim with a dishonest intention to part with any property. Here again, I fail to understand the intention to cheat the complainant by dishonest intention right from the inception. If none of the ingredients are found to be existing in the complaint, this Court cannot show a hands off and permit investigation to be conducted against the accused for esoteric satisfaction of the complainant.
14. A perusal at the complaint in the first blush would project some offence. It is a very well drafted complaint. The delay is sought to be camouflaged with an income tax search that takes place in the year 2020. Therefore, this Court has taken up a deeper scrutiny of the complaint by reading it between the lines, which is now held to be a permissible exercise of power by this Court while considering a petition under Section 482 of the CrPC at the stage of crime. Reference being made to the judgment of the Apex Court in 23 the case of MAHMOOD ALI v. STATE OF U.P.1 in the circumstance becomes apposite. The Apex Court holds as follows: “9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the FIR bearing No.127 of 2022 should be quashed?.
10. We are of the view that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence as alleged are disclosed. It is pertinent to note that the FIR in question came to be lodged after a period of 14 years from the alleged illegal acts of the appellants. It is also pertinent to note that in the FIR no specific date or time of the alleged offences has been disclosed.
11. The entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC335: AIR1992SC604 The parameters are:— “(1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support 1 2023 SCC OnLine SC95024 of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (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.
12. We are of the view that the case of the present appellants falls within the parameters Nos. 1, 5 and 7 resply of Bhajan Lal (supra).
13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed 25 against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
14. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC522 a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:— “5. …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 26 such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 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.
6. In R.P. Kapur v. State of Punjab, AIR1960SC866:
1960. Cri LJ1239 this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para
6) (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, 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 clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of 27 oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death…..” (Emphasis supplied) 15. In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court of Judicature at Allahabad is hereby set aside. The criminal proceedings arising from FIR No.127 of 2022 dated 04.06.2022 registered at Police Station Mirzapur, Saharanpur, State of U.P. are hereby quashed.” (Emphasis supplied) In the light of the law laid down by the Apex Court in the case of MAHMOOD ALI (supra) if the complaint is read between the lines, what would unmistakably emerge is, the mala fide and frivolousness of registration of the complaint itself. The issue is undoubtedly civil in nature. For a civil suit to be filed which is admittedly filed by the complainant and pending adjudication, whether the present complaint should be permitted to be continued is the issue, that should not detain this Court for long or delve deep in to the matter. The Apex Court in the case of DEEPAK GABA v. STATE OF U.P.2 has held as follows:
2. (2023) 3 SCC42328 “….. ….. ….. …..” “11. The private complaint filed by Respondent 2 complainant had invoked Sections 405, 420, 471 and 120-BIPC. However, by the order dated 19-7-2018, summons were directed to be issued only under Section 406IPC, and not under Sections 420, 471 or 120-BIPC. We have quoted the operative and reasoning portion of the summoning order, that records in brief the assertions in the complaint, to hold that Respondent 2 complainant had shown that “a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of the statements made by Shubhankar P. Tomar and Sakshi Tilak Chand”. The order states that Respondent 2 complainant had filed photocopy of “one” email as per Documents 1 to 34, but the narration and the contents of the email is not adverted to and elucidated.
12. In case of a private complaint, the Magistrate can issue summons when the evidence produced at the pre- summoning stage shows that there is sufficient ground for proceeding against the accused. The material on record should indicate that the ingredients for taking cognizance of an offence and issuing summons to the accused is made out. [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC547: (2020) 2 SCC (Cri) 361; Sunil Bharti Mittal v. CBI, (2015) 4 SCC609: (2015) 2 SCC (Cri) 687; and Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC749:
1998. SCC (Cri) 1400. The proviso to Section 200 of the Code is not applicable in the present case.].
13. In the present case, the trial court did not issue summons under Sections 420 and 471IPC, or for that matter, invoke the provision relating to conspiracy under Section 120-BIPC. Although the summoning order dated 19-7-2018 does not deal with these sections of the IPC, we deem it imperative to examine the ingredients of the aforesaid sections, and Section 406IPC, and whether the allegations 29 made in the complaint attract the penal provisions under the relevant sections of the IPC. We have undertaken this exercise in order to carry out a complete and comprehensive analysis of the factual matrix and the legal provisions, and rule out possibility of an error to the detriment of Respondent 2 complainant.
14. Section 406IPC [ “406. Punishment for criminal breach of trust.—Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”]. prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405IPC are satisfied. For Section 406IPC to get attracted, there must be criminal breach of trust in terms of Section 405IPC. [ “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.***Illustrations***(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of 30 Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.***(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.”(Explanations 1 and 2 and Illustrations (a) and (e) to Section 405IPC are excluded, as they are irrelevant.)].
15. For Section 405IPC to be attracted, the following have to be established: (a) the accused was entrusted with property, or entrusted with dominion over property; (b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and (c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC1: (2009) 3 SCC (Cri) 646].
17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the 31 summoning order is equally quiet, albeit, it states that “a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand”. A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.
18. In order to apply Section 420IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415IPC have to be satisfied. To constitute an offence of cheating under Section 415IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is “fraudulence”, “dishonesty”, or “intentional inducement”, and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC74: (2010) 3 SCC (Cri) 1201].
19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC751: (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio 32 should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.]. , observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security.
20. In the present case, the ingredients to constitute an offence under Section 420 read with Section 415IPC are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415IPC. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent 2 complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415IPC are not satisfied, the offence under Section 420IPC is not made out.
21. Section 471IPC [ “471. Using as genuine a forged document or electronic record.—Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”]. is also not attracted. This Section is applicable when a person fraudulently or dishonestly uses as genuine any document or electronic record, which he knows or has reasons to believe to be a forged document or electronic record. This Court in Mohd. 33 Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC751: (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.]. , has elucidated that the condition precedent of an offence under Section 471IPC is forgery by making a false document or false electronic record or part thereof. Further, to constitute the offence under Section 471IPC, it has to be proven that the document was “forged” in terms of Section 470 [ “470. Forged document.—A false document [or electronic record]. made wholly or in part by forgery is designated “a forged document or electronic record”.”]. , and “false” in terms of Section 464IPC [ “464. Making a false document.—A person is said to make a false document or false electronic record—First.— Who dishonestly or fraudulently—(a) makes, signs, seals or executes a document or part of a document;(b) makes or transmits any electronic record or part of any electronic record;(c) affixes any electronic signature on any electronic record;(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,with the intention of causing it to be believed that such document or part of a document, electronic record or *[electronic signature]. was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or* Substituted for “digital signature” by Act 10 of 2009, Section 51(e) (w.e.f. 27-10-2009)Secondly.—Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; orThirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception 34 practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.”]. .
22. Section 470 lays down that a document is “forged” if there is: (i) fraudulent or dishonest use of a document as genuine; and (ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one. Section 470 defines a “forged document” as a false document made by forgery.
23. As per Section 464IPC, a person is said to have made a “false document”: (i) if he has made or executed a document claiming to be someone else or authorised by someone else; (ii) if he has altered or tampered a document; or (iii) if he has obtained a document by practising deception, or from a person not in control of his senses.
24. Unless the document is false and forged in terms of Sections 464 and 470IPC respectively, the requirement of Section 471IPC would not be met.
25. In the counter-affidavit filed by Respondent 2 complainant, it is submitted that a few bills were faked/forged, as the goods were not ordered. Reference is made to balance of Rs 79,752 shown on 30-3-2013, which was objected to and thereupon as per the complaint itself the demand/bill was withdrawn. This would not make the bill a forged document or false document, in terms of Sections 470 and 464IPC. The complaint was made in the year 2017, four years after the bill/claim had been withdrawn, reflecting no criminal intent. The bill was not fake or forged, and at best it could be stated that it was wrongly raised. Moreover, the pre-summoning evidence is silent with regard to this bill and mens rea on the part of the accused is not shown and established. Same would be the position with regard to the bill/invoice of Rs 53,215 35 which was as per the complaint, sent directly to Manav Rachna International at Faridabad. The bill/invoice is not doubted as “forged” or “false” within the meaning of Sections 470 and 464IPC. No doubt, Adhunik Colour Solutions is mentioned as the buyer, and Manav Rachna International as the consignee, albeit the invoice was issued by JIPL. Pre-summoning evidence does not help and make out a case predicated on this bill/invoice. In the counter-affidavit filed before us, it is alleged that since this bill was sent to Faridabad, JIPL had added the GST in the invoice. It is argued that had Respondent 2 complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as Respondent 2 complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for the offence under Section 471IPC. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre-summoning evidence.
26. For completeness, we must record that the appellants have placed on record the dealership agreement dated 11-4-2012, which, inter alia states that JIPL has a discretion to establish direct contractual relationship with specific customers, if JIPL feels they can be served better. Further, in such a situation, the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had wrongly recorded Respondent 2 complainant as the buyer, it is not doubted that Manav Rachna International was the consignee. At best, Respondent 2 complainant would not be liable, had Manav Rachna International failed to pay. Non- payment is also not alleged in the complaint or the pre- summoning evidence. Reliance on objections vide emails dated 4-7-2014 and 21-7-2014 are of no avail, as they are for the period prior to 31-7-2014, when the bill/invoice was raised.
27. It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute raised by Respondent 2 complainant primarily pertains to settlement of accounts. The allegations are: (i) goods supplied by JIPL were not as per the requirements and demands of Respondent 2 complainant, 36 (ii) goods supplied were different from the order placed, and (iii) goods lying with, and returned by Respondent 2 complainant have not been accounted for. These assertions, even if assumed to be correct, would not fulfil the requirements of Section 405IPC, or for that matter Sections 420 or 471. The material on record does not reflect and indicate that JIPL indeed had the dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-BIPC, for criminal conspiracy, would not be made. In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of criminal conspiracy as per Section 120-AIPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by Respondent 2 complainant is the demand of Rs 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs 1,93,776 and Rs 4,99,610 issued by them, on presentation, were dishonoured on account of “insufficient funds”.
28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC412:
37. (2012) 2 SCC (Cri) 650]. , as it refers to earlier case laws in copious detail.
29. In Thermax [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC412: (2012) 2 SCC (Cri) 650]. , it was pointed out that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion.
30. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise the evidence brought on record. He/She may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC610: (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713; Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC749:
1998. SCC (Cri) 1400].; and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC420: (2016) 1 SCC (Cri) 124.].
31. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either 38 on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.
32. While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC638: (2015) 1 SCC (Cri) 479; Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC528: (2017) 2 SCC (Cri) 192; and Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC610: (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713.]. In the present case, the said exercise has not been undertaken.
33. The order sheet of the trial court enclosed with the appeal reveals that notwithstanding that the summoning order was limited to unnamed Manager and Chief Manager of JIPL, the Additional Chief Judicial Magistrate had deemed it appropriate to issue non-bailable warrant. The non- bailable warrant was not issued in the name of any person but by designation against the Chief Manager JIPL, Andheri East, Mumbai. This was also one of the reasons that had prompted the appellants to the file the petition under Section 482 of the Code.
34. We must also observe that the High Court, while dismissing the petition filed under Section 482 of the Code, failed to take due notice that criminal 39 proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge. [Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC610: (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713].; Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC420: (2016) 1 SCC (Cri) 124].; R.P. Kapur v. State of Punjab, AIR1960SC866 and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC335:
1992. SCC (Cri) 426.]. Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued.” (Emphasis supplied) The findings rendered by the Apex Court qua the offences of forgery, cheating and criminal breach of trust inter alia would all become applicable to the facts of the case at hand. The issue, in fact, stands covered on all its fours to the judgment cited supra.
15. Above all, the complaint is filed after 10 years after execution of the document. What is projected in the complaint is an incident which has happened on 06-08-2012. The complaint is admittedly registered on 28-02-2022. There is no explanation worth 40 the name for the delay except projection of a search in the firms by the Income Tax Department, which is on the face of it, is unbelievable and improbable, as the details of search of a firm will never be divulged to a stranger. The stranger, I mean, the complainant who is nobody to the search and the documents seized in the search will not be divulged as it would amount to an offence under the Income Tax Act. Therefore, the complaint is undoubtedly hit by gross delay.
16. The issue whether such complaint should be entertained or not, need not detain this Court. The Apex Court in the case of CHANCHALPATI DAS v. STATE OF WEST BENGAL3 has held as follows: “…. …. …. ….” “13. It cannot be gainsaid that the High Courts have power to quash the proceedings in exercise of powers under Section 482 of Cr. P.C. to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Though the powers under Section 482 should be sparingly exercised and with great caution, the said powers ought to be exercised if a clear case of abuse of process of law is made out by the accused. In the State of Karnataka v. L. Muniswamy had held that the criminal proceedings could be quashed by the High Court under 3 2023 SCC OnLine SC65041 Section 482 if the court is of the opinion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings are to be quashed.
14. This Court, way back in 1992 in the landmark decision in case of State of Haryana v. Bhajan Lal (Supra), after considering relevant provisions more particularly Section 482 of the Cr. P.C. and the principles of law enunciated by this Court relating to the exercise of extra- ordinary powers under Article 226, had laid down certain guidelines for the exercise of powers of quashing, which have been followed in umpteen number of cases. The relevant part thereof reads as under: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though 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 of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or 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 a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 42 (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (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. In State of A.P. v. Golconda Linga Swamy this Court had observed that the Court would be justified to quash the proceedings if it finds that initiation or continuance of such proceedings would amount to abuse of the process of Court.
16. As regards inordinate delay in filing the complaint it has been recently observed by this Court in Hasmukhlal D. Vora v. State of Tamil Nadu that though inordinate delay in itself may not be a ground for quashing of a criminal complaint, however unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint. 43
17. In the light of afore-stated legal position, if the facts of the case are appreciated, there remains no shadow of doubt that the complaint filed by the respondent-complainant after an inordinate unexplained delay of eight years was nothing but sheer misuse and abuse of the process of law to settle the personal scores with the appellants, and that continuation of such malicious prosecution would also be further abuse and misuse of process of law, more particularly when neither the allegations made in the complaint nor in the chargesheet, disclose any prima facie case against the appellants. The allegations made against the appellants are so absurd and improbable that no prudent person can ever reach to a conclusion that there is a sufficient ground for proceeding against the appellants- accused.
18. Before parting, a few observations made by this Court with regard to the misuse and abuse of the process of law by filing false and frivolous proceedings in the Courts need to be reproduced. In the Court. In Dalip Singh v. State of Uttar Pradesh it was observed that: “1. For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
19. In Subrata Roy Sahara v. Union of India it was observed as under:
44. “191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill- considered claims.
20. We would like to add that just as bad coins drive out good coins from circulation, bad cases drive out good cases from being heard on time. Because of the proliferation of frivolous cases in the courts, the real and genuine cases have to take a backseat and are not being heard for years together. The party who initiates and continues a frivolous, irresponsible and senseless litigation or who abuses the process of the court must be saddled with exemplary cost, so that others may deter to follow such course. The matter should be viewed more seriously when people who claim themselves and project themselves to be the global spiritual leaders, engage themselves into such kind of frivolous litigations and use the court proceedings as a platform to settle their personal scores or to nurture their personal ego.
21. Having regard to the facts and circumstances of the present case and for the reasons stated hereinabove, we deem it appropriate to quash the criminal proceedings pending against the appellants in the Court of Chief Judicial Magistrate, Alipore, arising out of the FIR No.33 of 2009 registered at Ballygunge Police Station, and quash the same.” (Emphasis supplied) In the light of the aforesaid judgment of the Apex Court in the case of CHANCHALPATI DAS, the complaint ought to have been shown the doors by the learned Magistrate himself under Section 203 of the CrPC, without referring the matter for investigation under Section 156(3) of the CrPC. The learned Magistrate performs 45 judicial function. Order of reference is a judicial order. The least that the Magistrate should undertake is a cursory perusal at the complaint, so that it demonstrates some semblance of application of mind. Bald and laconic order of reference by the learned Magistrate in each and every complaint preferred before it would undoubtedly lead to docket explosion and clogging either the criminal Court or this Court in petitions filed there and here.
17. The learned Magistrate, therefore needs to filter frivolous complaints, and such filtering would require a little scrutiny of the contents of the complaint, though not elaborate consideration, a consideration that would demonstrate some application of mind. Therefore, in the light of the subject complaint shrouded with improbability, delay and intentions suffering from want of bonafides, even if the contents of the complaint are construed to be true, they would not become the ingredients of the crime. In the teeth of the aforesaid facts and the preceding analysis, so also the law laid down by the Apex Court in the afore-quoted judgments, if further proceedings/investigation is permitted to continue, would undoubtedly become an abuse of the process of the law, 46 degenerate into harassment and result in patent injustice. Therefore, I find this case to be one such which would require obliteration of the crime in exercise of jurisdiction under Section 482 of the CrPC as elucidated by the Apex Court in the case of MAHMOOD ALI (supra).
18. For the aforesaid reasons, I pass the following:
ORDER(i) Criminal Petition is allowed and the private complaint in P.C.R.No.74 of 2022 pending before the Principal Civil Judge and JMFC, Ballari stands obliterated qua the petitioners. (ii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioners under Section 482 of the CrPC and the same would not bind any other proceedings pending between the parties. Sd/- JUDGE bkp CT:SS