ORDER
S.K. Gangele, J.
1. Petitioner has filed this revision against framing of charges vide order dated 15-10-2008 passed in Sessions Trial No. 119/08 by First Additional Sessions Judge, Gwalior.
2. On 11-9-1989, M/s. Mangaldeep, a Partnership Firm, had been granted cash credit (Hypothecation Limit) of Rupees Five lacs and term loan of Rs. Two lacs by United Commercial Bank. Mr. Keshav Das Agarwal, who was proprietor of the Proprietorship Firm, M/s. Mangaldeep, created equitable mortgage of his residential house and one Ratanlal Jain executed guarantee agreement to secure the credit facility. On 20-7-1990 a draft letter of deposit of title deeds from the mortgagor was written by Keshav Das Agarwal in favour of the Manager, United Commercial Bank, High Court Road, Gwalior. In the aforesaid letter, it has been mentioned that premises No. 37/342 situated at Deedwana Oli, Lashkar, was mortgaged as equitable mortgage for repayment of all advances made to M/s. Mangaldeep, a Partnership Firm. Subsequently, Rupees Two lacs has been sanctioned as Hypothecation (Pledge) and on 13-3-1991 Mr. Keshav Das Agarwal requested for ad hoc Cash Credit Limit of Rupees One lac. Thereafter, the Bank further sanctioned a Cash Credit Limit. When Mr. Keshav Das Agarwal failed to regularize the account, the Bank issued a legal notice on 18-12-1993 for regularization of the account. Thereafter, the Bank filed a suit for recovery of an amount of Rs. 54,88,851/- before the District Judge, Gwalior in the year 1996. After constitution of Debt Recovery Tribunal under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the aforesaid civil suit was transferred to Debt Recovery Tribunal, Jabalpur (for short 'the DRT') and it was registered as Transfer Application No. 875/1999. The DRT vide judgment dated 15-10-2004 allowed the suit filed by the Bank and further ordered that defendant Nos. 1 to 7, Mr. Keshav Das Agarwal, M/s. Mangaldeep, M/s. Fitwell Tailors, Mr. Padamchand Jain, Mr. Mahaveer Prasad Jain, Mr. Rajendra Kumar Jain and Mr. Sardar Gurmeet Singh shall jointly and severally pay to the plaintiff-Bank a sum of Rs. 54,88,852/- along with costs. The Tribunal also awarded interest at the contractual rate from 10-12-94 till its realization. Against the aforesaid judgment an appeal was filed before the Appellate Tribunal. The appeal was time barred, hence an application for condonation of delay filed in appeal. It was directed by the Appellate Tribunal to deposit 30% amount of the decree passed by the DRT. The defendants did not comply the order, hence the appeal was dismissed. Thereafter, a writ petition was filed before this Court. It was registered as Writ Petition No. 1505/06 and disposed of vide order dated 26-9-2007 with a direction to the Appellate Tribunal to restore its file, the review application, and the Appellate Tribunal was further directed to consider the review application afresh and proceed to decide the appeal in accordance with law. Up to the decision of appeal this Court granted stay of recovery from the appellants.
3. In the meanwhile, Mr. Amit Kumar Agarwal, who is son of Mr. Keshav Das Agarwal and was minor at the relevant time, filed a civil suit for partition. The civil suit was registered as Civil Suit No. 15-A/94 before the Sixth Additional District Judge, Gwalior. In the aforesaid Civil Suit Mr. Keshav Das Agarwal son of Brijbhushan, Mr. Atul Agarwal son of Mr. Keshav Das Agarwal and Smt. Manju Agarwal wife of Mr. Keshav Das Agarwal had been added as defendants. The Additional District Judge, Gwalior vide judgment and decree dated 13th October, 1999 decreed the suit and granted a decree of partition holding that the plaintiff is entitled 1/4th share in the suit property. It has further been mentioned in the judgment and decree that if defendant No. 1 had taken any loan on the basis of the suit property then the plaintiff would not be liable for payment of the aforesaid loan. In pursuance to the aforesaid judgment and decree a final decree of partition was passed by the Court and by the aforesaid decree the house registered with the Municipal Corporation, Gwalior, as House No. 37/42, situated at Deedwana Oli, Lashkar, Gwalior has been partitioned and as per the aforesaid partition decree Mr. Atul Kumar has been given ground floor of the house, which was shown in blue lines in the map. Similarly, Amit Kumar has been given basement floor of the house, which was marked in red lines in the map and Smt. Manju Agarwal has been given first floor of the house, which was shown in yellow lines in the map. The aforesaid final partition decree was passed on 3-5-2000 and consequently a registered partition deed was also executed between the parties.
4. In pursuance to the judgment and decree of the DRT the Bank filed recovery proceedings before the Recovery Officer (DRT), Jabalpur in T.A. EXN 18/04. In the aforesaid proceedings the petitioner filed an affidavit for fixing auction of the mortgaged house. At that time the petitioner was posted as Senior Branch Manager, United Bank, Gwalior Branch, Gwalior. In the aforesaid affidavit it has been mentioned that the Debt Recovery Tribunal issued a Recovery Certificate in favour of the Bank and subsequently the Bank issued a demand notice for payment of the amount due and the defendants failed to pay the dues to the Bank and the defendants mortgaged the house with the Bank which was mentioned in the affidavit as under:
Description of the Property
Building (Commercial-cum-residential) Municipal Corporation No. 105, Halka No. 7 Survey No. 41/429 & 37/342 Ward No. 43, Deedwana Oli, Sarafa Bazar, Gwalior.Basement : Hall with StaircaseGround Floor : Built up Area 127.22 Sqm. Approx.1st Floor : Built up Area 2100.43 Sqm. Approx.2nd Floor : Built up Area 79.59 Sqm. Approx.North : House of otherSouth : Sarafa Bazar Main RoadWest : Narrow Dirty LaneEast : Vishal Electronic Shop.
5.The Advocate, Mr. Surendra Prakash Goyal, also issued a Search report of the property and it was mentioned in the report that the house was not transferred by Mr. Keshav Das Agarwal and the mortgage, which was in favour of the Bank, was as per law. After filing the aforesaid affidavit by the petitioners, Mr. Atul Agarwal and Mr. Amit Agarwal submitted a complaint to the Station House Officer, Huzrat Kitwali, Lashkar, Gwalior. It has been mentioned in the complaint that the house in question is a Hindu Joint Family property of the complainants. Complainants received the aforesaid house in partition in compliance of a decree dated 3-5-2000 passed in Civil Suit No. 15-A/94 and the petitioner and Mr. Surendra Prakash Goyal on entering into a conspiracy received a forged search report and submitted a false affidavit before the Recovery Officer, Jabalpur in order to gain benefit. They further stated that the petitioner had the knowledge that the aforesaid house had been partitioned in a partition decree. Hence, the petitioner committed criminal conspiracy. The complainants requested Station House Officer to register an offence under Sections 192, 193, 194, 195, 197, 120-B, 409, 415 and 420, IPC. The Police registered the FIR on the basis of the aforesaid complaint against the petitioner, Mr. S.P. Goyal, Advocate and Mr. Ashok Agarwal under Sections 193, 196, 197, 420, 465, 471, IPC, vide Crime No. 65/06. Subsequently, a charge sheet has also been filed before the Court. On the basis of the aforesaid charge-sheet First Additional Sessions Judge, Gwalior framed charges against the petitioner under Sections 420, 120-B, 467, 468 and 471, IPC.
6. Learned Counsel for the petitioner has submitted that the petitioner has not committed any offence. The petitioner is the Officer of the Bank and he has submitted an affidavit before the Recovery Officer of the Debt Recovery Tribunal with regard to mortgage of the house by the father of the complainants and the house was mortgaged by the father as a security for taking loan, hence the charges are liable to be quashed. In support of his contentions learned Counsel relied upon the judgments of the Hon'ble Supreme Court in the case of Vir Prakash Sharma v. Anil Kumar Agarwal and Anr. reported in (2007) 7 SCC 373 and in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. reported in : AIR 1992 SC 604. Contrary to this, learned Counsel for respondent Nos. 2 and 3 has submitted that the petitioner has deliberately filed a false affidavit before the Recovery Officer, DRT, hence he committed the crime. The object of filing the affidavit was to help the bank in recovery of the debt by auctioning the house of the respondent Nos. 2 and 3. Learned Counsel further submitted that another co-accused, Mr. Ashok Kumar Agarwal filed a criminal revision before this Court, which was registered as Criminal Revision No. 806/2006 against framing of charges and that revision has been dismissed by this Court vide order dated 5-1-2009, hence the present revision is also liable to be dismissed.
7. From the facts of the case, it is clear that initially the Partnership Firm, M/s. Mangaldeep had taken a loan from United Commercial Bank on 11-9-1989. Mr. Keshav Das Agarwal was the Proprietor of the said firm. In the aforesaid loan transaction Mr. Keshav Das Agarwal executed a mortgage deed in favour of the Bank. By the aforesaid mortgage deed Mr. Keshav Das Agarwal had created an equitable mortgage of House No. 37/42 of Deedwana Oli, Lashkar, Gwalior. At the time of creating equitable mortgage Mr. G.D. Kukreja, Advocate, submitted his search report to the Branch Manager, United Commercial Bank, High Court Branch, Gwalior. It is dated 2-6-1989. In the aforesaid search report, it has been mentioned that Mr. Keshav Das Agarwal was the owner of the house and his name was also recorded in the revenue record as owner. It has further been mentioned in the aforesaid search report that earlier the property was of the ownership of Joint Hindu Family and partition of the Joint Hindu Family property was effected between the members of the Hindu Joint Family on 21-10-1979. A partition deed was also executed between the family members on 8-2-1980 and the property in question came into share of Mr. Keshav Das Agarwal. Mr. Keshav Das Agarwal also filed a civil suit, which was registered as C.S. No. 9-A/2000 in the Court of First Addl. District Judge, Gwalior. The suit was decreed vide judgment and decree dated 14-8-1980 and the house was registered in the name of Mr. Keshav Das Agarwal. Subsequently, a Civil Suit was filed before the District Judge, Gwalior, which was registered as Civil Suit No. 15-A/94 and transferred to Additional District Judge, Gwalior, which was filed in the name of Mr. Amit Agarwal, who was minor at the relevant time, hence it was filed by Mr. Keshav Das Agarwal, and Mr. Keshav Das Agarwal, Mr. Atul Agarwal and Smt. Manju Agarwal, had been shown as defendants. Thereafter, a partition decree was obtained and consequently the house was partitioned between Mr. Amit Agarwal, Mr. Keshav Das Agarwal, Mr. Atul Agarwal and Smt. Manju Agarwal. One of the condition in the decree was that if defendant No. 1, Mr. Keshav Das Agarwal, had taken any loan on the basis of the property in question then the plaintiff would not be liable to repay the loan. It is clear from the facts of the case that Mr. Keshav Das Agarwal filed the suit in order to get rid of the debt of equitable mortgage, which was executed by him in favour of the Bank for obtaining the loan. Mr. Keshav Das Agarwal had knowledge that an amount of near about Rupees twelve lacs at that time had been due over the firm, which was a Proprietorship Firm and the Bank also issued a notice to this effect in the year 1993 and the house was mortgaged as equitable mortgage with the Bank. The Debt Recovery Tribunal passed a decree in favour of the Bank with regard to recovery of the said loan amount by judgment dated 15-10-2004, passed in Transfer Application No. 875/1999. The Tribunal has also dealt with the argument, advanced on behalf of Mr. Keshav Das Agarwal, that the mortgaged house was a property of Hindu Joint Family and it was partitioned, hence the equitable mortgage created by Mr. Keshav Das Agarwal be not accepted. The aforesaid argument was rejected by the Tribunal in Para 21 of the judgment. The Tribunal recorded the relevant findings, which reads as under:
21. So far as the contention as regard the HUF property is concerned, from the perusal of Exh. P-23 (B) which is search report in respect of the property submitted by Def. No. 1 alongwith their application for credit facilities, it appears that as per the search report, the said property came in the share of Def. No. 2 Keshav Das Agarwal and for that a civil suit was also filed and as per the order of First Additional District Judge, a decree was passed in terms of Memorandum of Partition and was registered according to Registration Act. Alongwith the Search report, Memo of partition and certified copy of decree passed by the Additional District Judge is also enclosed as Exh. P-23 (D). Def. No. 2 has executed Memo of deposit of title (Exh. P-23) in which it is clearly mentioned that the property is mortgaged for Mangaldeep and sister concern, and this Memo of deposit of title is duly signed by Def. No. 2. The plaintiff bank through their witnesses have proved these documents. On the other hand, the defendants have failed to prove that the mortgaged property is of HUF. The plaintiff bank has also proved that def. No. 2 has deposited the title deed to create equitable mortgage. As such, it cannot be said that def. No. 2 has not mortgaged his property. The defendant could not get any advantage from the citations relied by them. As such, the contention in respect of equitable mortgage made by the defendants cannot be accepted.
8. Thereafter, the petitioner filed an affidavit before the Debt Recovery Tribunal mentioning the fact that Mr. Keshav Das Agarwal had executed an equitable mortgage of the house with the Bank and the complainants lodged an FIR in the police station mentioning the fact that the petitioner and Mr. S.P. Goyal, Advocate, committed offence under various Sections of the Indian Penal Code in filing the aforesaid affidavit. In consequence thereof the Trial Court framed charges against the petitioner under Sections 420, 120-B, 467, 468 and 471, IPC.
9. Section 58 of the Transfer of Properties Act, 1882, defines the words 'Mortgage', 'mortgagor', 'mortgagee', 'mortgage-money' and 'mortgage-deed', which reads as under:
58. ...(a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.
10. The Hon'ble Supreme Court in the case of K.J. Nathan v. S.V. Maruthi Rao and Ors. reported in : AIR 1965 SC 430, has held as under, with regard to equitable mortgage:
Though such a mortgage is often described as an equitable mortgage, there is an essential distinction between an equitable mortgage as understood in English law and the mortgage by deposit of title deeds recognised under the Transfer of Property Act in India. In England an equitable mortgage can be created either (1) by actual deposit of title-deeds, in which case parol evidence is admissible to show the meaning of the deposit and the extent of the security created, or (2) if there be no deposit of title-deeds, then by a memorandum in writing, purporting to create a security for money advanced. In either case it does not operate as an actual conveyance though it is enforceable in equity; whereas under the Transfer of Property Act a mortgage by deposit of title deeds is one of the modes of creating a legal mortgage where under there will transfer of interest in the property mortgaged to the mortgagee.
11. From the above principle of law it is clear that Mr. Keshav Das Agarwal had created an equitable mortgage of the house and he was the owner of the house at the relevant time, in securing the loan. In such circumstances, the Bank has a right to recover the loan amount from the mortgaged property. That has also been decided by the Debt Recovery Tribunal. Mr. Keshav Das Agarwal held the property as trustee after creation of equitable mortgage and it was his duty to keep the mortgaged property as it is. Contrary to this, Mr. Keshav Das Agarwal filed a suit, when the present complainant was a minor, and obtained a decree of partition of the property with an object to defeat the mortgage deed so that the loan amount, which he had obtained as Proprietor of the Firm M/s Mangaldeep, could not be secured by the Bank from the mortgaged property.
12. Hon'ble the Supreme Court in the case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. reported in : AIR 2008 SC 251, has held as under with regard to Sections 420, 120-B and 467, IPC:
40. Firstly, we shall deal with the Section 420, IPC. Cheating is defined in Section 415, IPC and is punishable under Section 420, IPC. Section 415 is set out below:
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 to harm to that person in body, mind, reputation or property, is said to 'cheat'.
Explanation: A dishonest concealment of facts is a deception within the meaning of this section.
Section 415, IPC, thus requires-
(1) deception of any person,
(2) (a) fraudulently or dishonestly inducing that person-
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person 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.
41. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise one cannot presume that he all along had a culpable intention to break the promise from the beginning.
42. We shall now deal with the ingredients of Section 467, IPC. Section 467, IPC reads as under:
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, moveable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any moveable 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.
43. The following ingredients are essential for commission of the offence under Section 467, IPC:
(1) the document in question so forged,
(2) the accused who forged it,
(3) the document is one of the kinds enumerated in the aforementioned section.
The basic ingredients of offence under Section 467 area altogether missing even in the allegations of the FIR against the appellants. Therefore, by no stretch of the imagination, the appellants can be legally prosecuted for an offence under Section 467, IPC.
Sections 468 and 471 of the Indian Penal Code, reads as under:
468. Forgery for the purpose of cheating. - Whoever commits forgery, intending that the document 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.
*** *** ***471. Usingas 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.
13. From the afore-quoted Sections and the judgment of the Hon'ble Supreme Court, it is clear that the petitioner has not committed any offence. He has simply submitted an affidavit to the effect that Mr. Keshav Das Agarwal had mortgaged the house in favour of the Bank at the time of securing the loan and aforesaid loan could be recovered from the mortgaged property. No document has been fabricated by the petitioner.
14. Hon'ble the Supreme Court in Soma Chakravarty v. State through CBI reported in : (2007) 5 SCC 403, has held as under with regard to consideration by the Court at the time of framing charges:
10. It may be mentioned that the settled legal position as mentioned in the above decisions, is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible; Whether, in fact, the accused committed the offence, can only be decided in the trial.
*** *** ***19. Some of the questions, however, which have been raised by the appellant are of some importance and it may be necessary to deal therewith. The learned Trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges. It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to aprima facie finding that there exist some materials there for or held to be sufficient for framing charges.
15. From the above principle of law laid down by Hon'ble the Supreme Court, it is clear that no ingredients have been found made out against the petitioner for the charges framed by the Trial Judge under various Sections of the Indian Penal Code against the petitioner.
16. With regard to the arguments advanced by learned Counsel for respondent Nos. 2 and 3 that the criminal revision of one of the co-accused has been dismissed by the Court could not be accepted because in the order passed by this Court in the criminal revision filed by one of the co-accused. This Court has passed the following order:
Being aggrieved by the order dated 15-10-2008 passed by 1st ASJ, Gwalior in S.T. No. 199/08 whereby the charge has been framed against the petitioner under Sections 420, 120-B, 467, 468 and 471 of IPC, the present petition has been filed.
Learned Counsel for petitioner argued at length and submit that the petitioner was valuer who has valued the property owned by father of the complainant. It is submitted that there is no evidence against the petitioner on the basis of which petitioner can be convicted. It is submitted that in the facts and circumstances of the case learned Court below committed error in framing the charges against the petitioner. Learned Counsel prayed that the revision petition be allowed and impugned order be set aside. Learned Counsel for respondent and complainant supports the order passed by the learned Court below and submits that no illegality has been committed by the learned Court below which can be corrected by this Court while exercising revisional jurisdiction.
In the matter of Suresh Alias Pappu Bhudharmal Kalani v. State of Maharashtra reported in : (2001) 3 SCC 703, wherein the Hon'ble Apex Court has observed as under:
At the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to leave to a conviction. The Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Each case depends upon its particular facts and circumstances and sometimes even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out.
Keeping in view the aforesaid position of law and the facts and circumstances of the case, this Court is of the view that no case is made out for interference at the stage of charge. Hence, petition stands dismissed.
However, this Court has not considered the facts of the case and only the general observations have been made by the Court. Hon'ble the Supreme Court in Sumtibai and Ors. v. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) through Mankanwar (Smt.) w/o Parasmal Chordia (dead) and Ors. reported in : (2007) 10 SCC 82, has held as under, with regard to binding nature of the order:
10. As observed by this Court in State of Orissa v. Sudhansu Shekhar Misra : AIR 1968 SC 647 vide Para 13: (AIR pp. 651-52):
13. ...A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, L.C. said in Quinn v. Leathern 1901 AC 495: (1900-03) All ER Rep. 1(HL):
Now before discussing the case of Allen v. Flood, 19=898 AC 1 : (1895-99) All ER Rep 52 (HL) and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
11. In Ambica Quarry Works v. State of Gujarat : (1987) 1 SCC 213, vide Para 18 this Court observed: (SCC p. 221)
18. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
12. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. : (2003) 2 SCC 111, vide Para 59 this Court observed: (SCC p. 130)
59. ...It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
13. As held in Bharat Petroleum Corporation Ltd. v. N.R. Vairamani : (2004) 8 SCC 579 : AIR 2004 SC 4778, a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed: (SCC pp. 584-85, Paras 9-12):
9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 (HL)(AC at p. 761) Lord MacDermott observed: (All ER p. 14 C-D)
The matter cannot, of course, be settled merely by treating the ipsissima verba of Willies, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,...
10. In Home Office v. Dorset Yacht Co. 1970 AC 1004 : (1970) 2 WLR 1140 : (1970) 2 All ER 294 (HL) (All ER p. 297 g-h) Lord Reid said, 'Lord Atkin's speech...is not to be treated as if it were a statutory definition. It will require qualification in new circumstances'. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 1 WLR 1062 observed: 'One must not of course, construe even a reserved judgment of Russell, LJ., as if it were an Act of Parliament'. And, in Herrington v. British Railways Board 1972 AC 877 : (1972) 2 WLR 537 (HL), Lord Morris said: (All ER p. 7610)
There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
The Hon'ble Apex Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. reported in : AIR 2008 SC 2187, has held as under:
The judgment of a Court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the act of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a Superior Court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.
The Hon'ble Apex Court in Lalliram and Anr. v. State of Madhya Pradesh reported in : (2008) 10 SCC 69, has further held as under:
12. As rightly contended by learned Counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases, the question of a precedent particularly, relating to appreciation of evidence is really of no consequence. In Aman Kumar case : (2004) 4 SCC 379 : 2004 SCC (Cri) 1266, it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case, there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the Court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial.
Hence, the arguments advanced by the learned Counsel for respondent Nos. 2 and 3 could not be accepted.
17. After going through the facts of the case this Court has gathered an impression that Mr. Keshav Das Agarwal has deliberately filed the suit for partition in order to get rid from the mortgage which he had created in favour of the Bank for the purpose of receipt of the loan. The intention was to defeat the recovery of the loan and he himself, on behalf of his minor son, filed the suit and obtained decree for partition. Thereafter, the complainants lodged an FIR before the Police and on the basis of the aforesaid FIR police registered a criminal case and subsequently the Trial Court framed charges against the petitioner, who had been working at the relevant time as Branch Manager of the Bank. The Trial Court completely ignored the facts of the case and mechanically framed charges against the petitioner. The police also did not consider the legal position of execution of equitable mortgage and the judgment passed by the Debt Recovery Tribunal and filed the charge-sheet against the petitioner. From the above actions this Court came to the conclusion that an innocent person has been suffering or rather prosecuted due to negligent act of the prosecution agency, the police and subsequently the Trial Judge, which has resulted the prosecution of an innocent person. The aforesaid act has defeated the concept of rule of law. Hon'ble the Supreme Court in the case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. reported in : AIR 2008 SC 251, has cautioned the Courts that a criminal prosecution is not used as an instrument of harassment. The Hon'ble Court has held as under:
45. The Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482, Cr.PC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.
Hon'ble the Supreme Court in Indian Oil Corporation v. NEPC India Ltd. and Ors. reported in : (2006) 6 SCC 736, has observed as under with regard to growing tendency in business circles to convert purely civil disputes into criminal cases and the duty of the Courts:
13. 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 breakdown 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 through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. : (2000) 2 SCC 636, observed: (SCC p. 643, Para 8)
It is to be seen if a matter, which is essentially of a 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 the 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 Court or otherwise to secure the ends of justice.
14. 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. On positive step that can be taken by the Courts to curb unnecessary prosecution and harassment of innocent parties, is to exercise their power under Section 250, Cr.PC more frequently where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.
18. The criminal revision is allowed. The charges framed against the petitioner vide order dated 15-10-2008 passed in Sessions Trial No. 199/08 by First Additional Sessions Judge Gwalior, are hereby quashed.
No order as to cost.