@JUDGMENTTAG-ORDER
Shivaji Pandey, J.—Heard learned counsel for the petitioners and learned counsel for the Sate as well as opposite party no.2.
2. In this case, petitioners are challenging the order dated 18th August 2012 passed by learned Judicial Magistrate 1st Class, Chapra in Trial No. 3637 of 2012, arising out from Complaint Case No. 3548 of 2011 for offences under sections 467, 469, 471 and 120B of the Indian Penal Code.
3. From the record it appears, Raj Kumar Singh (complainant) filed a complaint case vide Complaint Case No. 3548 of 2011 where the allegation has been made, mother of Rajesh Kumar @ Rajesh Kumar Singh executed the sale deed of Khata No. 35 (as per counter affidavit Khata No.135), Khesra No. 125, Mauja Sonepur, area 1 Katha and 6.2 Dhurki on 11.02.2003 in favour of the complainant and the complainant having in peaceful possession over the land. The complainant filed a petition for mutation of his name with respect to the said land and accordingly the land was mutated in his name.
4. In the complaint petition it has been mentioned, there was a family partition and the said land had fallen in the share of Kumar Ranbir Singh, father of Rajesh Kumar Singh. It has been alleged, Rajesh Kumar Singh has committed an act of forgery in executing the sale deed of the same land in favour of Rajendra Choudhary on 14th June 2011. It has been alleged that the complainant is in possession of the said land and Rajesh Kumar Singh is witness to the sale deed executed in favour of complainant and as such, the action of Rajesh Kumar Singh and Rakesh Singh constitutes a criminal offence.
5. On the basis of solemn affirmation and the statement of other supporting witnesses, the court below took cognizance under the aforesaid sections.
6. Learned counsel for the petitioners has submitted that the land was not sold to opposite party no. 2, but has created a forged and fabricated sale deed in his favour and as such, he cannot take plea of committing an offence by the petitioners when he himself committed an act of forgery by creating a forged document. He has further submitted that O.P. No. 2 is a first purchaser, he cannot have any grievance or cause or locus standi to file the present case merely because execution of the second sale deed. If any person would be aggrieved, it is the second purchaser not the first purchaser, as the opposite party no. 2 has better title than to the second purchaser. He has further submitted that they were not knowing first sale deed of opposite party no. 2 which is a forged and fabricated. The petitioners could know about existence of that forged and fabricated document only after receipt of notice in the complaint case. It has been submitted that the execution of sale deed by the petitioners is legal and valid and it cannot be said to have acted in a mala fide manner. It has further been submitted that even all the facts mentioned in the complaint petition be taken into true it does not constitute a criminal offence rather a civil wrong and for that he can move before the appropriate authority.
7. In support of his contention learned counsel for the petitioners has relied on judgment in the case of Md. Ibrahim and others v. State of Bihar and another reported in 2009 (4) PLJR 99 SC, paragraphs-12, 15, 16, 18 and 19. Further he has relied on another judgment in the case of Rama Devi v. State of Bihar and others, reported in 2010 (12) SCC 273, paragraphs-14 to 18, Inder Mohan Goswami and another v. State of Uttaranchal and others, reported in 2007 (12) SCC 1 on the proposition that when no case is made out and is shown malicious prosecution, in that circumstance, the Court in exercise of power under section 482 Code of Criminal Procedure may intervene and quash the proceeding.
8. Learned counsel for opposite party no.2 has seriously objected argument of the petitioners and submitted that the sale deed in favour of the opposite party no.2 holds photograph of the mother of petitioners and the petitioners are witnesses identified the sale deed and as such, petitioners have full knowledge of execution of sale deed by the mother of petitioners in favour of opposite party no.2.
9. The document itself shows that petitioners had full knowledge about the fact that the sale deed of land was executed by their mother earlier petitioners should not have embarked to execute the sale deed in favour of third party by creating the subsequent sale deed which creates cloud over the title of the opposite party and as such the act committed by the petitioners is an act of fraud and cheating. He has further submitted that these actions cannot be said to be completely civil wrong but it constitutes a criminal offence also and the court below has rightly acted justifiably in taking cognizance. He has further submitted that merely because a second person will also have a cause to file the case, it is he, who has grievance that does not mean that opposite party no.2 would be without difficulty when the land of the petitioners which is under his possession has been sold to third party in that circumstance, it cannot be said that opposite party no.2 �complainant has no locus standi or any cause to file a present case. He has further submitted, merely because the subsequent sale deed can be declared to be void in a civil proceeding and not binding on the opposite party no.2 that does not mean wipe out the act of offence committed by the petitioner. In support of his contention he has relied on judgment in the case of Arun Bhandari v. State of Uttar Pradesh and others, reported in 2013 (2) SCC 801, paragraphs 25 and 35.
10. Learned counsel for the opposite party no. 2 says that the judgment reported in Md. Ibrahim (supra) is really not supporting the submission of the petitioners rather it approves the contention raised by opposite party no. 2 as in that case, the parties were litigating belonging of the same family and was claiming that the particular land was of the complainant but the accused sold the land. The Hon''ble Supreme Court had held that it is basically a civil dispute and does not constitute any criminal offence held, continuation of criminal proceeding is an abuse of process of court and declared cognizance bad in law. It has been submitted in paragraphs 13 to 15 of the said judgment the Court has given a clarification where the Hon''ble Supreme Court has said that when a dispute arising between the vendor and vendee, in that circumstance, the allegation of committing the act of forgery or falsity or cheating, will not remain a civil dispute only rather it will take a shape of criminal offence.
11. Before going to the merit of the case, let us examine the view that has been taken by the Hon''ble Supreme Court on different occasions under what circumstance, the Superior court will interfere with the order in exercise of inherent jurisdiction in down line cases, the first case is the R.K.Kapur v. State of Punjab, reported in AIR 1960 SC 866.
12. The Hon''ble Supreme Court in the case of R.P. Kapur (supra) catalogued the cases where the inherent jurisdiction can be/should be exercised to quash the criminal proceeding where it manifestly appears that there is legal bar against the institution or continuance of criminal proceeding in respect of offence alleged absence of requisite sanction may, for instance furnish cases under this category. In second situation where the allegations in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence as alleged. Third situation where the allegation made against accused persons do constitute an offence alleged but there is no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with these cases it is important to keep in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made cases. Where there is legal evidence which on its appreciation may or may not support their accusation in question, the Court would not embark upon an enquiry as to whether legal evidence in question is legal or not. That function lies with the trial court and it would not be open to any party to invoke the inherent jurisdiction of the High Court and contend that on a reasonable appreciation of evidence the accusation made against the accused would not be sustained.
13. Again the occasion came before the Hon''ble Supreme Court in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, reported in A.I.R. 1976 SC 1947 to consider the scope and parameter for exercise of inherent power. The Court analysed four grounds for interference for embarking the inherent jurisdiction by the Higher Court are, (i) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused:
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like, Hon''ble Supreme Court has held, higher Court would exercise inherent power and quash the proceeding.
14. This issue was again considered in Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709 = (1988)1 SCC 692 where it has been held that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. It has further been held that the Court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
15. When a question was posed before the Hon''ble Supreme Court, when the facts mentioned in the complaint case or First information Report primarily constitute a civil wrong and cannot be said to have been committed any criminal case in that circumstances the Court has taken the view that if on reading of the complaint petition or First Information Report if its take to be primarily civil dispute, merely giving colour of criminal case, the Court would be justified in exercise of inherent jurisdiction, can interfere at the threshold. This issue was taken into consideration in the case of Indian Oil Corporation v. NEPC India Ltd. and others, reported in (2006) 6 SCC 736. In this case the Court has taken the view that primarily the fact mentioned in the complaint petition or First Information Report shows civil dispute, the Court will be justified in its interference and the Court has taken notice of the fact of growing tendency in business circles to convert purely civil dispute into criminal cases only because they keep an impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. It has also taken note that such a tendency is seen in several family disputed also, leading to irretrievable breakdown of marriage/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is likelihood of imminent settlement. It will be relevant to quote paragraph nos. 12 and 13 of the aforesaid judgment:-
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana v. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar v. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan v. Vijay Kumar [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are :
(i)A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii)A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii)The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv)The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v)A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
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 break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of UP [2000 (2) SCC 636], this Court observed :-
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
16. Again the issue came up for consideration before the Hon''ble Supreme Court in the case of Md. Ibrahim (supra). The Court has held that when the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will also have to be tried as criminal offences, even though they also constitute civil disputes. In the aforesaid case allegation was made that accused had no connection with the said land and had no title thereto had executed two registered sale deed in favour of another accused in respect of portion of the land. There parties were enter linked as were relatives and they were claiming their respective title over the land in that situation the Court has held that it was basically a civil dispute and wrongly framed up as criminal offence. But in paragraph 15 of the judgment the Court has given clarification that if a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complaint that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. It will be relevant to quote paragraph 15 of the judgment where the Court has also explained the meaning and applicability of fraud committed:-
"15. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term ''fraud'' is not defined in the Code. The dictionary definition of ''fraud'' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines ''fraud'' with reference to a party to a contract. In Dr. Vimla v. Delhi Administration, AIR 1963 SC 1572, this Court explained the meaning of the expression ''defraud'' thus:-
"The expression "defraud" involves two elements, namely, deceit and injury to the persons deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
17. In view of the aforesaid guideline as has been set out above this case has to be tested and examined as to whether it is primarily a civil dispute or it also constitute a criminal offence against the accused persons. From the complaint petition it appears that the land in dispute was sold to opposite party no.2 for a valuable consideration amount by the mother of petitioner nos. 1 and 2 and accordingly possession of the land was given to him and they put their signature to the sale deed as a witness and later on the accused persons again sold the said land to Rajendra Choudhary on 14.6.2011 by registered sale deed. In this situation when these petitioners were well knowing the execution of the sale deed by their mother and later on same land was sold to third person itself shows mind set up of the petitioners. It cannot be said that such act of the petitioners will not constitute an offence under the Indian Penal Code. The point that has been raised that opposite party no.2 cannot have a grievance about the execution of their land to the third party at best the grievance can be raised by third party who has purchased the land. He can only raise a grievance of fraud committed on him. The reply is very simple that the grievance can be raised by opposite party no.2 as well as by third party as both are aggrieved by the action of the petitioners can not claim immunity from the criminal case on the strength of judgment of Md. Ibrahim (supra) rather the present case would fall under the exception of that judgment.
18. In this view of the matter this application does not survive. Accordingly this application is dismissed. However, any observation made herein above is only confined to the present proceeding. It will have no any effect at the out come of the trial. The trial court will decide the case on its merit after taking into consideration the evidence brought before him during trial.
