Madhya Pradesh High Court
Arvind Bhai vs State Of M.P. on 12 December, 2024
NEUTRAL CITATION NO. 2024:MPHC-IND:36291
1 MCRC-29393-2024 & 17106-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 12th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 29393 of 2024
ARVIND BHAI AND OTHERS
Versus
STATE OF M.P. AND OTHERS
.............................................................................................................................
Appearance:
Shri Pramod C. Nair - Advocate for applicants.
Shri Kratik Mandloi - Panel Lawyer for the respondent No.1 /
State.
Shri Devaasheesh Dubey - Advocate for respondents No.1 to 4.
.............................................................................................................................
WITH
MISC. CRIMINAL CASE No. 17106 of 2019
SHIVNARAYAN SHARMA
Versus
THE STATE OF MADHYA PRADESH
.............................................................................................................................
Appearance:
Shri Devaasheesh Dubey - Advocate for applicants.
Shri Kratik Mandloi - Panel Lawyer for the respondent No.1 /
State.
Shri Pramod C. Nair - Advocate for respondents No.2 and 3.
.............................................................................................................................
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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2 MCRC-29393-2024 & 17106-2019
ORDER
Having regard to the similitude of controversy involved in both these
petitions, these are being disposed off by this common order. Since impugned
FIR registered at Crime No.158/2017 at Police Station Central Kotwali, Indore
(M.P.) for offences under Section 420, 406, 120-B and 34 of the Indian Penal
Code, 1860 (hereinafter for short referred as, ‘IPC’) has been registered prior in
date and time therefore in sequence M.Cr.C. No.17106/2019 arising out of the
aforesaid FIR will be taken up and dealt with first.
02. In M.Cr.C. No.17106/2019, applicant Shiv Narayan Sharma and his
son Rakesh Sharma are accused in the impugned FIR registered at Crime
No.158/2017 at Police Station Central Kotwali, Indore for the offences under
Section 420, 406, 120-B and 34 of the IPC lodged at the complaint of Arvind
Bhai Patel and in M.Cr.C.No.29393/2024, applicants Arvind Bhai Patel,
Navneet Patel and others are accused in Crime No.0052/2023 registered at
Police Station Mahatma Gandhi Road, Indore Urban for offences under Section
406, 418, 420, 465, 467, 468, 471, 474 and 120-B of the IPC lodged at the
complaint of Shiv Narayan Sharma.
03. Petition in M.Cr.C.No.17106/2019 (Shiv Narayan Sharma and
Another Vs. The State of Madhya Pradesh and Others) under Section 482 of
Cr.P.C. has been filed for quashment of FIR dated 31/07/2017 registered at
Crime No.158/2017 at Police Station Central Kotwali, Indore (M.P.) for
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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3 MCRC-29393-2024 & 17106-2019
offences under Section 420, 406, 120-B and 34 of the IPC in furtherance of the
order dated 17/01/2017 passed by Additional Chief Judicial Magistrate, Indore,
as well as all subsequent proceedings arising therefrom.
04. Another petition in M.Cr.C.No.29393/2024 (Arvind Bhai and Others
Vs. The State of Madhya Pradesh and Others) under Section 482 of Code of
Criminal Procedure, 1973 (hereinafter for short referred as, ‘Cr.P.C.’) has been
preferred for quashment of First Information Report bearing Crime
No.0052/2023 dated 09/02/2023 registered at Police Station Mahatma Gandhi
Road, Indore Urban for offences under Section 406, 418, 420, 465, 467, 468,
471, 474 and 120-B of IPC as well as order dated 07/01/2023 passed by
Judicial Magistrate First Class, Indore on an application under Section 156(3)
of Cr.P.C. by the complainant / respondent Shiv Narayan Sharma (now
deceased), whereby direction to the Police Station Mahatma Gandhi Road,
Indore has been given for registration of FIR and filing of final report after
completion of investigation.
05. In nutshell, the facts as mentioned in the petitions necessary for
disposal are that applicant No.1 – Arvind Bhai (complainant of FIR
No.158/2017 registered against the Shiv Narayan Sharma and his son Rakesh
Sharma) was having cordial family relationship with the complainant. On
11/10/2007, lands bearing survey No.271/1/7 area 0.2 hectare, survey
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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No.271/1/8 area 0.205 hectare, survey No.271/4/ area 0.020 hectare, survey
No.271/1/4/5 area 0.012 hectare, survey No.271/1/6 area 0.052 hectare, survey
No.271/1/3 area 0.110 hectare, survey No. 274/1/2/2 area 0.041 hectare, survey
No.278/1/13 area 0.202 hectare and survey No.271/1/4/3 area 0.100 hectare
total area 0.0978 hectares situated at Village Bicholi Mardana, Indore were
purchased by complainant Shiv Narayan through registered sale deed No.1-
A/1209.
06. On 11/04/2008, plot Nos.99 and 100 admeasuring area 522.90 square
meters situated at Scheme No.114, Part-II, Indore were purchased by Rakesh
Sharma son of complainant. In the year 2010, Navneet Patel – applicant No.2
availed a loan from Union Bank of India for which complainant acted as a
guarantor and offered his property situated at Bicholi Mardana, Indore as
collateral security and the same was mortgaged. Over the years, there were
multiple financial transactions between two families with money being lent and
repaid through banking channels. Loan from Union Bank of India was repaid
by Navneet Patel in the year 2015, however, when the complainant approached
the Bank to retrieve the property documents, he was informed that Navneet
Patel had filed an objection stating that documents should not be released
without the consent of all the parties. Till date the original documents remain
with the Bank.
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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07. On 04/08/2012, an agreement for purchase of properties mentioned
hereinabove was executed between applicant No.1 – Arvind Bhai and Shiv
Narayan Sharma (now deceased, complainant) and Rs.10,00,000/- as token
consideration amount was given by way of cheque number 381302 issued by
Navneet Patel S/o Arvind Bhai to complainant Shiv Narayan Sharma and the
cheque was cleared in complainant’s account maintained at Bank of
Maharashtra, Palasia Branch, Indore on 06/08/2012. Possession of all the
properties was handed over to the applicant No.1. In March, 2016, on the
pretext of some income tax scrutiny, original agreement dated 04/08/2012,
which was in custody of applicant No.1 demanded by deceased complainant
Shiv Narayan Sharma and sent his son Rakesh Sharma to collect the aforesaid
agreement / document from applicant No.1 and Rakesh Sharma took that
agreement to sale dated 04/08/2012 away.
08. On 05/10/2016, when the original document was not returned, even
after repeated demands, applicant No.1 – Arvind Bhai was constrained to get
legal notice (Annex.-P/6 in M.Cr.C.No.17106/2019) issued to Shiv Narayan
Sharma. On 18/10/2016, reply to the notice (Annex.-P/7) was given, wherein
even the acquaintance with applicant No.1 – Arvind Bhai and family was
denied along with execution of the aforesaid agreement to sale dated
04/08/2012. Complaints were given to Police Station Central Kotwali based on
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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the aforesaid allegations and preliminary investigations were conducted. In the
year 2016-17, the complainant Shiv Narayan Sharma and his son Rakesh
Sharma get to know about the complaints containing allegations of
surreptitiously obtaining of the agreement to sale from the custody of applicant
No.1 in M.Cr.C.No.29393/2024.
09. On 31/07/2017, FIR against the complainant Shiv Narayan Sharma
and his son was registered at Crime No.158/2017 at Police Station Central
Kotwali under Sections 420, 406 and 120-B read with Section 34 of IPC. On
16/10/2017, Rakesh Sharma son of deceased complainant Shiv Narayan
Sharma before the concerned police Station Central Kotwali, Indore in his
statement (Annex.-P/9) and his father Shiv Narayan Sharma in his statement
dated 08/01/2018 denied execution of agreement dated 04/08/2012 but did not
raise any objection or file any complaint regarding the disputed agreement to
sale dated 04/08/2012 before any competent authority or Court, as they were
knowing that the aforesaid agreement has actually been executed and the
original agreement has surreptitiously been taken away from Arvind Bhai, is
with them.
10. On 11/12/2017, complainant Shiv Narayan submitted a petition under
Section 482 of Cr.P.C. bearing M.Cr.C.No.8466/2017 for quashing the FIR
dated 31/07/2017, which was dismissed as withdrawn. On 19/12/2018, Civil
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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Suit RCSA No.1326/2018 was filed by the applicant No.1 – Arvind Bhai and on
14/01/2019, anticipatory bail in the above mentioned case Crime No.158/2017
of Police Station Central Kotwali, Indore was granted to Shiv Narayan vide
M.Cr.C.No.52977/2018 on manipulated facts.
11. On 11/02/2019, relief of temporary injunction was granted in favour
of applicant No.1 and bail application of complainant’s son Rakesh was rejected
vide order dated 13/02/2019 in M.Cr.C.No.2889/2019 when correct factual
matrix was placed before the Court and thereafter, on 24/06/2019 a private
complaint was lodged by deceased complainant Shiv Narayan Sharma against
applicants Arvind Bhai and three others. On 28/12/2022, for preponing date of
hearing an early hearing application was filed in the private complaint to hear
the application under Section 156(3) of Cr.P.C. and on the said day the date
already fixed for i.e. 19/01/2023 was preponed to 07/01/2023. Thereafter, on
07/01/2023 application under Section 156(3) of Cr.P.C. was allowed and
direction was given to Police Station M. G. Road to register the FIR against the
present applicants. In compliance thereto, on 09/02/2023 impugned FIR at
Crime No.52/2023 was registered at police station M.G. Road for the offences
as mentioned herein above. Hence, these petitions for quashment of FIRs and
subsequent proceeding thereto have been filed.
12. Learned counsel for the applicants in M.Cr.C.No.29393/2024 submits
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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that impugned FIR has been registered as counter blast to the FIR registered at
Crime No.158/2017 against the complainant Shiv Narayan Sharma and his son
Rakes Sharma, at Police Station Central Kotwali, Indore for offence under
Section 420, 406, 120-B and 34 of IPC by delay of more than two years, even
after getting knowledge of the agreement to sale dated 04/08/2012. Even after
the complainant being aware of the alleged forging of agreement to sale dated
04/08/2012, in the year 2016, their failure to take any legal action until 2019
reveals their mala fide intent in filing of FIR against the applicants in M.Cr.C.
No.29393/2024, which is counter blast to the FIR filed by the applicant Arvind
Bhai against the complainant Shiv Narayan Sharma and his son Rakesh
Sharma. Civil case has been given colour of criminality with false facts. Civil
Suit RCSA No.1326/2018 filed by applicant No.1 – Arvind Bhai against the
complainant Shiv Narayan Sharma and others is pending. Case against
applicant Arvind Bhai and others is of no evidence. Even if facts narrated in the
FIR are taken as true on their face value, even then no case is made out against
the applicants. Anticipatory bail was obtained by the complainant Shiv Narayan
Sharma by manipulating the facts and when this astuteness was pointed out by
counsel for the applicants opposing the bail of his son Rakesh Sharma, accused
in the FIR No.158/2017, the same was rejected.
13. To bolster his submission, learned counsel for applicants Arvind Bhai
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VYAS
Signing time: 20-12-2024
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etc. placed reliance on para 6, 6.1, 6.2 and 7 the judgment dated 01/03/2021 by
the Apex Court in the case of Criminal Appeal No.142 of 2021(Kapil
Agarwal and Others Vs. Sanjay Sharma and Others); para 30 to 33, 45 and
46 of the order passed by co-ordinate Bench of this Court in the case of
Shrichand Bhau & Anr. Vs. The State of Madhya Pradesh (passed in
M.Cr.C.No.3315 of 2023 dated 04/07/2023); para 11 of judgment by the Apex
Court in the case of Sekaran Vs. State of Tamil Nadu reported in LAWS
(SC)-2023-12-16; para 8 of judgment by Apex Court in the case of Vesa
Holdings P. Ltd. & Anr. Vs. State of Kerala & Ors. (passed in Criminal
Appeal Nos.2342-2344 of 2011, dated 17/03/2015); G. Sagar Suri and Anr.
Vs. State of U. P. and Ors. (passed in Appeal (Crl.) No.91 of 2000 dated,
28/01/2000); and para 19 in the case of Harilal Etc. Vs. State of Madhya
Pradesh (Now Chhattisgarh) (passed in Criminal Appeal Nos.2216-2217 of
2011 on 05/09/2023).
14. On these premises and contentions, learned counsel urged the court
for setting aside the impugned FIR and subsequent proceedings against the
applicants by allowing the petition M.Cr.C.No.29393/2024 preferred by them
and to dismiss the petition M.Cr.C.No.17106/2019 being devoid of merit
coupled with the fact that the original agreement to sale dated 04/08/2012,
which was taken away by the Rakesh S/o Shiv Narayan Sharma is yet to be
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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recovered from him in the criminal case registered against him and his father at
the behest of applicant Arvind Bhai.
15. Learned counsel for the respondents / complainant Rakesh Sharma,
taking exception to the proposition and contentions advanced on behalf of the
applicants submits that there is ample evidence to connect the applicants from
the alleged offences as mentioned in the impugned FIR. After due investigation,
charge sheet has been filed against the applicants. Alleged agreement to sale
dated 04/08/2012 has been prepared by forging signatures of Shiv Narayan
Sharma, the complainant. This agreement has been forged only on stamp of
Rs.50/- for grabbing valuable property of crores of Shiv Narayan Sharma and
Rakesh Sharma, which is not admissible in evidence, it is also not valuable
security coupled with the fact that one property of Rakesh Sharma S/o Shiv
Narayan Sharma has been involved in the agreement, which makes agreement
palpably false and forged. Money paid by applicant No.2 in the account of
Smt. Saraswati Sharma W/o Shiv Narayan Sharma is repayment of loan
amount, which was taken by the applicants and it is not consideration amount
for agreement to sale. The story of taking away of the original agreement to sale
by the complainant from applicant Arvind Bhai is concocted one just to grab
valuable property of the complainant / respondents.
16. In support of his contention, learned counsel for the complainant Shiv
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Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
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Narayan Sharma has placed reliance on para 102(6) and (7) of the judgment by
the Apex Court in the case of State of Haryana Vs. Ch. Bhajan Lal reported
in 1992 Supp (1) SCC 335; para 26 to 37 of P. Sreekumar Vs. State of
Kerala and Others reported in (2018) 4 SCC 579; para 22 to 26 of Upkar
Singh Vs. Ved Prakash and Others reported in (2004) 13 SCC 292; para 24
of Surender Kaushik and Others Vs. State of Uttar Pradesh and Others
reported in (2013) 5 SCC 148; and T. T. Antony Vs. State of Kerala and
Others reported in (2001) 6 SCC 181. On the aforesaid premise, learned
counsel for the respondent/complainants prays for dismissal of the
M.Cr.C.No.29393/2024 as devoid of merit and any substance and for allowing
the petition preferred by them as M.Cr.C.No.17106/2019.
17. Learned counsel for the State has also opposed the prayer of the
petitioners in both the petitions alleging that sufficient material has been
collected to connect the applicants from the commission of crime as mentioned
in the FIRs. Defence of applicants cannot be considered while considering these
petitions. On these submissions, he urges the Court for dismissal of both of
these petitions.
18. Heard learned counsel for the parties and perused the record with the
aid of case diaries of both the cases.
19. Before adverting to the facts of the petitions, prevailing legal position
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
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12 MCRC-29393-2024 & 17106-2019
as expounded by the Apex Court in catena of judgments needs to be reiterated
in the light of which the facts of the petitions are to be scrutinized to arrive at a
conclusion, whether invoking of inherent powers under the provision of Section
482 of Cr.P.C. is permissible in the instant petitions.
20. The parameters for exercising inherent powers vested by Section
561A of the repealed Code of Criminal Procedure, 1898, (corresponding of
Section 482 Cr.P.C., 1973) has been laid down by the Apex Court inn the case
of R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866, which are
reproduced as under:
“(i) Where institution/continuance of criminal proceedings
against an accused may amount to the abuse of the process of the
court or that the quashing of the impugned proceedings would
secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar
against the institution or continuance of the said proceeding e.g.
want of sanction;
(iii) where the allegations in the first information report or
the complaint taken at their face value and accepted in their
entirety, do not constitute the offence alleged; and
(iv) where the allegations constitute an offence alleged but
there is either no legal evidence adduced or evidence adduced
clearly or manifestly fails to prove the charge.”
21. In the case of Bhajanlal (Supra) in para 102 guidelines have been
issued for invoking the inherent powers, which are reproduced as under:-
“In the exercise of the extra-ordinary power under Article 226 or
the inherent powers under Section 482 of the Code of Criminal
Procedure, the following categories of cases are given by way ofSignature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
14:37:30
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13 MCRC-29393-2024 & 17106-2019illustration 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 formuale and to given 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
F.I.R. 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 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;
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 20-12-2024
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(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.”
22. The Apex Court in the case of Neelu Chopra and another Vs.
Bharti (2009) 10 SCC 184 has held as under:
“9. In order to lodge a proper complaint, mere mention to
the sections and the language of those sections is not the be all
and end all of the matter. What is required to be brought to the
notice of the court is the particulars of the offence committed by
each and every accused and the role prayed by each and every
accused in committing of that offence.”
23. In the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of
Maharashtra and Others reported in 2021 SCC OnLine SC 315, Hon’ble the
apex Court ruminating all the earlier authorities with regard to use of inherent
powers provided under Section 482 of Cr.P.C. has also summarized the legal
position with regard to the use of inherent powers as provided under Section
482 of Cr.P.C.
24. In the case of Supriya Jain Vs. State of Haryana & Anr. [SLP
No.3662/2023, dated 04/07/2021], it has been held by the Apex Court that
while exercising powers under Section 482 of Cr.P.C., the Court cannot take
into consideration external materials given by an accused for reaching the
conclusion that no offence was disclosed or that there was possibility of his
acquittal. The Court has to consider the record and documents annexed
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VYAS
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therewith by the prosecution. The Court should apply the test as to whether
uncontroverted allegations as made from the record of the case and the
documents submitted therewith prima facie establish the offence or not. If the
allegations are so patently absurd and inherently improbable that no prudent
person can even reach such a conclusion and where the basic ingredients of a
criminal offence are not satisfied then the Court may interfere.
25. It has been vehemently argued on behalf of Shiv Narayan Sharma and
Rakesh Sharma that alleged agreement to sale dated 04/08/2012, which is bone
of contention among Arvind Bhai Patel, Shiv Narayan Sharma and Rakesh
Sharma, has been executed only on the stamp of Rs.50/-, whereby property of
crores of rupees was allegedly intended to be sold. It has also been alleged that
one of the property involved in the agreement to sale is in the name of Rakesh
Sharma, which could not have been agreed to sell by Shiv Narayan Sharma as
Rakesh Sharma was not party to the agreement to sale. On this, learned counsel
for the Shiv Narayan Sharma and Rakesh Sharma has tried to build a case of
forging of the aforesaid agreement to sale by Arvind Bhai Patel and others.
26. If the aforesaid contentions are scrutinized in the light of the
prevailing provisions of the Indian Stamp Act, 1899 and the Specific Relief Act,
1963, it would be crystal clear that if any document has been executed on
insufficient amount of stamp papers, as per Section 35 of the Indian Stamp Act
Signature Not Verified
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VYAS
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the same can be legalized by way of impounding by paying deficit stamp duty
and penalty ordered by the competent authority and thereafter, it can be
admitted in evidence as legal document. Similarly, agreement to sale for
specific performance of contract is not required to be registered and as per
Proviso to Section 49 of the Registration Act, 1908, an unregistered document
affecting immovable property and required by this Act i.e. Registration Act or
the Transfer of Property Act, 1882 to be registered may be received as evidence
of a contract in a suit for specific performance under Chapter II of the Specific
Relief Act, 1877 or as evidence of any collateral transaction not required to be
effected by registered instrument. If Shiv Narayan Sharma father of Rakesh
Sharma has involved one of the property in the name of his son, in disputed
agreement to sale, for this applicant Arvind Bhai Patel and Navneet Patel or any
of the applicants in M.Cr.C.No.29393/2024 cannot be held responsible as it was
within specific knowledge of Shiv Narayan Sharma that one of the properties
he is intending to sell by the disputed agreement to sale is in the name of his
son Rakesh Sharma but it cannot be a ground to presume that this agreement to
sale is forged one just because of the folly or mischief of Shiv Narayan Sharma.
27. One more contention has been raised on behalf of Shiv Narayan
Sharma and Rakesh Sharma that the disputed agreement to sale dated
04/08/2012 does not fall within the purview of valuable security. This
Signature Not Verified
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VYAS
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contention is also not sustainable in the light of definition of valuable security
as provided under Section 30 of the IPC, which is reproduced as under:
“30. “Valuable security”.–The words “valuable security”
denote a document which is, or purports to be, a document
whereby any legal right is created, extended, transferred,
restricted, extinguished or released, or whereby any person
acknowledges that he lies under legal liability, or has not a
certain legal right.”
From bare perusal of the aforesaid definition of valuable security
makes it amply clear that agreement to sale falls within the category of valuable
security as through this document legal right can be created by using it in a suit
for specific performance of contract. Therefore, the contentions raised on behalf
of the Shiv Narayan Sharma and Rakesh Sharma in support of his petition and
in opposing the petition filed by the opponent Arvind Bhai Patel and others, as
mentioned hereinabove cannot be sustained and are hereby rejected. In the light
of the aforesaid, arguments advanced on behalf of the respondents for making
out a case of agreement to sale dated 04/08/2012 being forged one cannot be
sustained.
28. Learned counsel for the Shiv Narayan Sharma and Rakesh Sharma
placing reliance on para 26 to 35 of the judgment by Apex Court in the case of
P. Sreekumar (Supra); para 22 to 26 of Upkar Singh (Supra); and T.T.
Antony (Supra) submits that second FIR is permissible on the facts of the case.
FIR against Arvind Bhai Patel and three others has been got registered
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
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immediately after coming into knowledge of disputed agreement to sale when
on marking presence on 04/01/2019 in civil suit RCSA No.1326/2018 filed by
Arvind Bhai against Shiv Narayan Sharma defendant, for the first time saw the
copy of disputed agreement dated 04/08/2012. No delay is there in lodging FIR.
Relevant paras of judgment in P. Sreekumar (Supra) relied upon by the
counsel for Shiv Narayan Sharma are extracted as under:
“26. In our view, the High Court had committed
jurisdictional error in quashing the subsequent FIR/charge-sheet,
which was filed at the instance of the appellant against
respondent No.3 without adverting to the law on the subject.
27. In our opinion, the law on the subject which governs the
controversy involved in the appeal is no more res integra and
settled by the decision of this Court (three-Judge Bench) in the
case reported in Upkar Singh vs. Ved Prakash & Ors., (2004) 13
SCC 292 and also by the subsequent decisions.
28. Their Lordships after examining all the previous case
laws on the subject laid down the following proposition of law in
the following words speaking through Justice N. Santosh Hegde:
“23. Be that as it may, if the law laid down by this
Court in T.T. Antony case1 is to be accepted as holding
that a second complaint in regard to the same incident
filed as a counter-complaint is prohibited under the
Code then, in our opinion, such conclusion would lead
to serious consequences. This will be clear from the
hypothetical example given hereinbelow i.e. if in
regard to a crime committed by the real accused he
takes the first opportunity to lodge a false complaint
and the same is registered by the jurisdictional police
then the aggrieved victim of such crime will be
precluded from lodging a complaint giving his version
of the incident in question, consequently he will be
deprived of his legitimated right to bring the real
accused to book. This cannot be the purport of theSignature Not Verified
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Code.
24. We have already noticed that in T.T. Antony
case1 this Court did not consider the legal right of an
aggrieved person to file counterclaim, on the contrary
from the observations found in the said judgment it
clearly indicates that filing a counter-complaint is
permissible.
25. In the instant case, it is seen in regard to the
incident which took place on 20-5-1995, the appellant
and the first respondent herein have lodged separate
complaints giving different versions but while the
complaint of the respondent was registered by the
police concerned, the complaint of the appellant was
not so registered, hence on his prayer the learned
Magistrate was justified in directing the police
concerned to register a case and investigate the same
and report back. In our opinion, both the learned
Additional Sessions Judge and the High Court erred in
coming to the conclusion that the same is hit by Section
161 or 162 of the Code which, in our considered
opinion, has absolutely no bearing on the question
involved. Section 161 or 162 of the Code does not refer
to registration of a case, it only speaks of a statement
to be recorded by the police in the course of the
investigation and its evidentiary value.”
29. The aforesaid principle was reiterated by this Court
(Two Judge Bench) in Surender Kaushik & Ors. vs. State of U.P.
& Ors., (2013) 5 SCC 148 in the following words:
“24. From the aforesaid decisions, it is quite luminous
that the lodgment of two FIRs is not permissible in
respect of one and the same incident. The concept of
sameness has been given a restricted meaning. It does
not encompass filing of a counter-FIR relating to the
same or connected cognizable offence. What is
prohibited is any further complaint by the same
complainant and others against the same accused
subsequent to the registration of the case under the
Code, for an investigation in that regard would have
already commenced and allowing registration ofSignature Not Verified
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20 MCRC-29393-2024 & 17106-2019further complaint would amount to an improvement of
the facts mentioned in the original complaint. As is
further made clear by the three-Judge Bench in Upkar
Singh, the prohibition does not cover the allegations
made by the accused in the first FIR alleging a
different version of the same incident. Thus, rival
versions in respect of the same incident do take
different shapes and in that event, lodgment of two
FIRs is permissible.”
30. Keeping the aforesaid principle of law in mind when we
examine the facts of the case at hand, we find that the second FIR
filed by the appellant against respondent No.3 though related to
the same incident for which the first FIR was filed by respondent
No.2 against the appellant, respondent No.3 and three Bank
officials, yet the second FIR being in the nature of a counter-
complaint against respondent No.3 was legally maintainable and
could be entertained for being tried on its merits.
31. In other words, there is no prohibition in law to file the
second FIR and once it is filed, such FIR is capable of being
taken note of and tried on merits in accordance with law.
32. It is for the reasons that firstly, the second FIR was not
filed by the same person, who had filed the first FIR. Had it been
so, then the situation would have been somewhat different. Such
was not the case here; Second, it was filed by the appellant as a
counter-complaint against respondent No.3; Third, the first FIR
was against five persons based on one set of allegations whereas
the second FIR was based on the allegations different from the
allegations made in the first FIR; and Lastly, the High Court
while quashing the second FIR/charge-sheet did not examine the
issue arising in the case in the light of law laid down by this
Court in two aforementioned decisions of this Court in the cases
of Upkar Singh (supra) and Surender Kaushik (supra) and simply
referred three decisions of this Court mentioned above wherein
this Court has laid down general principle of law relating to
exercise of inherent powers under Section 482 of the Code.
33. In the light of the foregoing discussion and the four
reasons mentioned above, we are unable to agree with the
reasoning and the conclusion of the High Court and are,
therefore, inclined to set aside the impugned order.
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34. The Magistrate will now proceed to try and decide the
case on merits and while doing so, he will be free to examine all
the issues arising in the case from all the angles in the light of the
evidence that will be adduced by the parties.
35. If the Magistrate finds that the material brought on
record against any person(s) including the appellant herein in the
evidence indicating the involvement of any such person(s) in
commission of the alleged offences, he will be free to proceed
against any such person(s) in accordance with law and bring the
proceedings to its logical end uninfluenced by any of our
observations.”
29. Similarly, para 24 of the judgment by the Apex court in the case of
Surender Kaushik (Supra) relied upon by counsel for the Shiv Narayan
Sharma and Rakesh Sharma is also extracted for ready reference:
“24. From the aforesaid decisions, it is quite luminous that
the lodgment of two FIRs is not permissible in respect of one and
the same incident. The concept of sameness has been given a
restricted meaning. It does not encompass filing of a counter FIR
relating to the same or connected cognizable offence. What is
prohibited is any further complaint by the same complainant and
others against the same accused subsequent to the registration of
the case under the Code, for an investigation in that regard
would have already commenced and allowing registration of
further complaint would amount to an improvement of the facts
mentioned in the original complaint. As is further made clear by
the three-Judge Bench in Upkar Singh (supra), the prohibition
does not cover the allegations made by the accused in the first
FIR alleging a different version of the same incident. Thus, rival
versions in respect of the same incident do take different shapes
and in that event, lodgment of two FIRs is permissible.”
30. Learned counsel for the Arvind Bhai Patel and others has vehemently
opposed the contentions on the ground that subsequent FIR lodged by Shiv
Narayan Sharma is sheer abuse of process of law and has been lodged by
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inordinate delay of more than two years even after coming into their knowledge
about the disputed agreement to sale which according to them is forged one.
They have gained knowledge about the aforesaid agreement to sale by notice
dated 05/10/2016 (Annex.-P/6) given by Arvind Bhai Patel and which was
replied to on 18/10/2016 (Annex.-P/7). No complaint was lodged in between
the receipt of aforesaid notice and lodging of the impugned FIR No.52/2023
dated 09/02/2023, which in itself reveals that when Rakesh Sharma failed to get
anticipatory bail order by M.Cr.C.No.2889/2019 (Rakesh Sharma Vs. State of
Madhya Pradesh) on 13/02/2019 on manipulated facts as explanation whereof
was given by the counsel appearing on behalf of objector Arvind Bhai Patel,
they after hatching conspiracy against the Arvind Bhai Patel and Others as
counter blast filed complaint before the Court and by manipulation get the order
for registration of FIR No. No.52/2023 dated 09/02/2023 against Arvind Bhai
Patel and three others.
31. To bolster his submissions, learned counsel for applicants in
M.Cr.C.No.29393/2024 has placed reliance on para 30 of the order of co-
ordinate Bench of this Court in the case of Shrichand Bhau (Supra) is
extracted as under:
“30. In the case of Indian Oil Corpn. Vs. NEPC India Ltd.
and others, (2006) 6 SCC 736, the Apex Court not only
deprecated such practice but also suggested steps which can be
taken by the Courts to curb unnecessary prosecutions andSignature Not Verified
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23 MCRC-29393-2024 & 17106-2019harassment of parties especially to exercise power under section
250 Cr.P.C. more frequently, where Courts discern malice or
frivolousness or ulterior motives on the part of the complainant.
Relevant paras are reproduced as under:
“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 vs.
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.”
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
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in civil law, should himself be made accountable, at the
end of such misconceived criminal proceedings, in
accordance with law. One positive step that can be
taken by the courts, to curb unnecessary prosecutions
and harassment of innocent parties, is to exercise their
power under section 250 Cr.P.C. more frequently,
where they discern malice or frivolousness or ulterior
motives on the part of the complainant. Be that as it
may.”
31. Recently, the Apex Court in the case of Vijay Kumar
Ghai and others Vs. State of West Bengal and others, (2022) 7
SCC 124 reiterated the same principle and deprecated
conversion of civil dispute into criminal liability. Instant matter
is a case where civil liability (if any) is tried to be converted into
criminal prosecution.
32. There is growing tendency amongst the people to
convert Commercial/ Transactional/ Property related/
Partnership/ Arbitration/ Family/ Matrimonial/ Medical
Negligence related disputes into criminal prosecution so that
accused may succumb to the wrath of procedure involved in the
criminal cases and settle the matter which otherwise is the
domain of Civil Courts. When the case could have been settled
through Arbitration or Civil proceedings or through Mediation
but instead of going for that, vested interest/complainant directly
approach the Police Stations for filing complaints and those
complaints are readily accepted by the police despite the fact that
exceptions have been carved out by the Apex Court in the case of
Lalita Kumari Vs. Government of U.P. and others, (2014) 2
SCC 1 in which, in certain cases preliminary enquiry were
contemplated/directed. In para 120.6 of the judgment, the Apex
Court discussed as under:
“120.6. As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in
which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases (d) Corruption cases
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(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months’ delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive
of all conditions which may warrant preliminary
inquiry.”
33. All these tricks and tactics place the accused in a
vulnerable position because once he is involved in such type of
cases then immediate reaction is freezing of his peace of mind
and vaporization of financial resources, inconvenience to his
employment/business and loss of social image. These are the
instant casualties and when after some years of trial and
tribulation if he is acquitted by trial Court, even then Procedural
Justice is not available to him. He lost his valuable years
engaged in defending himself on such flimsy pretext. Procedure
of Justice if prolonged, then it has the trappings of harassment.”
In the aforesaid case, the prosecution was quashed.
32. In the light of the aforesaid judgments there is no quarrel about the
law that as propounded by the Apex Court in case of P. Sreekumar (Supra)
and Surender Kaushik (Supra) that if rival versions in respect of the same
incident do take different shapes and in that event lodgment of two FIRs is
permissible but it is still to be scrutinized by the Court whether the second FIR
is not maliciously instituted with an ulterior motive for wrecking vengeance on
the accused with a view to spite him due to private and personal grudges as
held by the Apex Court in State of Haryana Vs. Ch. Bhajan Lal (Supra).
33. In the instant case, first FIR dated 17/01/2017 was got registered
against Shiv Narayan Sharma and his son Rakesh Sharma for surreptitiously
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taking away the agreement to sale dated 04/08/2012 and after that civil suit has
also been filed against Shiv Narayan Sharma and others by Arvind Bhai Patel,
which is also pending. FIR filed by Shiv Narayan Sharma against applicant
Arvind Bhai Patel and others by delay of more than two years after coming into
the knowledge of the disputed agreement to sale dated 04/08/2012, is clearly
filed maliciously as a counter blast, is apparent from the facts of the case as
narrated herein above which is abuse of process of law.
34. It is also worth mention here that in support of execution of
agreement to sale dated 04/08/2012 in favour of applicant Arvind Bhai Patel,
report of Handwriting Expert has also been obtained and filed. Whether this
agreement to sale is forged one can only be decided in the civil suit by the
competent Court after taking the evidence of both the parties in civil suit which
is already pending before the civil Court. The agreement to sale dated
04/08/2012 cannot be said to be forged one on mere speculation of the Shiv
Narayan Sharma and Rakesh Sharma. Even if they have obtained a
Handwriting Expert’s report in their favour, it is still to be proved by way of
adducing evidence before the Court. In case learned civil Court on completion
of trial comes to the conclusion in the judgment that the document is forged one
Court can suo moto take cognizance of the fact and initiate suitable action in
accordance with law. But at this stage before any adjudication, registration of
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FIR against the Arvind Bhai Patel and others is sheer abuse of process of law. It
appears that it is lodged just to put pressure on the applicant Arvind Bhai Patel
and others to settle the score based on concocted and after thought version
when Rakesh Sharma failed to secure anticipatory bail. It is quite clear from the
FIR lodged by Arvind Bhai Patel against Shiv Narayan Sharma and his son that
original copy of agreement to sale executed on 04/08/2012 has been taken away
on the pretext of it to be submitted before Income Tax Authority for scrutiny.
Original agreement to sale is yet to be recovered from Rakesh Sharma who has
been shown absconding in the charge sheet filed in Court in case of RCT
No.21423 dated 23/04/2019 as mentioned in case diary of Crime No.158/2017.
35. Here, even at the cost of repetition it is to be noted that explanation
for filing of delayed FIR against the applicants Arvind Bhai Patel and others
has been found false in the obtaining facts of the case which again supports the
contention raised on behalf of applicant Arvind Bhai Patel and others that this
FIR is filed as counter blast for settling the score.
36. It has become tendency of parties to give colour of criminality to civil
cases just to settle the score as held in para 30 to 33 in the case of Shrichand
Bhau (Supra). Filing of FIR No.52/2023 against applicant Arvind Bhai and
others is glaring example of it.
37. Observation by the Apex Court in the case of G. Sagar Suri (Supra)
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is also relevant on the aforesaid point, which is extracted as under:
“Jurisdiction under Section 482 of the Code has to be exercised
with a great care. In exercise of its jurisdiction High Court is not
to examine the matter superficially. 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. In State of
Karnataka v. L. Muniswamy and Others, AIR (1977) SC 1489 =
[1977] 3 SCR 113, this Court said that in the exercise of the
wholesome power under Section 482 of the Code High Court is
entitled to quash a proceeding if it comes to the conclusion that
allowing the proceeding 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.”
The aforesaid judgment squarely cover the facts of the petition
M.Cr.C.No.29393/2024, wherein during pendency of the civil suit and previous
FIR lodged by the applicant, as a counter blast, Shiv Narayan Sharma has got
lodged the FIR against the applicant on the manipulated facts.
38. In the case of Kapil Agarwal (Supra) also the Apex Court has held
that where it is found that subsequent FIR is an abuse of process of law and / or
the same has been to harass the accused, the same can be quashed in exercise of
powers under Article 226 of the Constitution of India or in exercise of powers
under Section 482 of Cr.P.C. Relevant paras 6.1, 6.2 and 7 the judgment are
extracted below:
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29 MCRC-29393-2024 & 17106-2019“6. However, at the same time, if it is found that the
subsequent FIR is an abuse of process of law and/or the same
has been lodged only to harass the accused, the same can be
quashed in exercise of powers under Article 226 of the
Constitution or in exercise of powers under Section 482 Cr.P.C.
In that case, the complaint case will proceed further in
accordance with the provisions of the Cr.P.C.
6.1 As observed and held by this Court in catena of
decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution is designed to achieve
salutary purpose that criminal proceedings ought not to be
permitted to degenerate into weapon of harassment. When the
Court is satisfied that criminal proceedings amount to an abuse
of process of law or that it amounts to bringing pressure upon
accused, in exercise of inherent powers, such proceedings can be
quashed.
6.2 As held by this Court in the case of Parbatbhai Aahir v.
State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is
prefaced with an overriding provision. The statute saves the
inherent power of the High Court, as a superior court, to make
such orders as are necessary (i) to prevent an abuse of the
process of any Court; or (ii) otherwise to secure the ends of
justice. Same are the powers with the High Court, when it
exercises the powers under Article 226 of the Constitution.
7. Applying the law laid down by this Court, referred to
hereinabove, to the facts of the case on hand, subsequent FIR
filed by the respondent – original complainant can be said to be
an abuse of process of law and the same to be bringing pressure
on the accused, which can be demonstrated from the following
facts:
i) cheque no. 038611 was presented for encashment and
the same came to be dishonoured by the banker of the
complainant due to “insufficient funds”;
ii) that the company – VBL served statutory legal notices
upon the complainant under the provisions of the Negotiable
Instruments Act;
iii) that thereafter complaint under Section 138 of the
Negotiable Instruments Act has been filed by the company
against the respondent-original complainant on 7.11.2014;
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iv) that thereafter, after a period of three months,
respondent no.1 filed an application under Section 156(3)
Cr.P.C. seeking registration of FIR against the appellants herein,
i.e., in the month of February, 2015;
v) the learned Magistrate declined to order registration of
FIR, but decided to inquire into the matter by treating the same
as complaint case and granted respondent no.1 – original
complainant an opportunity of recording solemn affirmation
under Section 200 Cr.P.C. (order dated 23.03.2015). Order dated
23.03.2015 came to be set aside by the learned Sessions Judge
vide order dated 8.7.2015 and the matter was remanded to the
learned Magistrate with directions to pass a speaking order. The
same is pending before the learned Magistrate;
vi) that thereafter after a period of two years, R1 lodged the
impugned FIR against the appellants with police station Loni
Border, District Ghaziabad with the similar contents and
allegations which were levelled in the application under Section
156(3) Cr.P.C. In the FIR, the date of occurrence of the offence
has been shown as 26.07.2017;
vii) it appears that R1 is not proceeding further with his
application under Section 156(3) Cr.P.C., which is pending
before the learned Magistrate since last five years;
viii) in the FIR, neither there is any reference to the
application under Section 156(3) Cr.P.C. which is pending before
the learned Magistrate, nor there is a reference of the complaint
under Section 138 of the NI Act.
Under the circumstances, the impugned FIR is nothing
but an abuse of process of law and can be said to be filed with a
view to harass the appellants.”
39. In light of the discussion as aforesaid, the impugned FIR in petition
i.e. M.Cr.C. No.29393/2024 comes in the category (7) as provided in para 102
of judgment by the Apex Court in the case of Ch. Bhajan Lal (Supra),
wherein it has been held that where a criminal proceeding is manifestly
attended with mala fide and / or where the proceeding is maliciously instituted
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with an ulterior motive for wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge. The same can be quashed by
invoking inherent powers as provided under Section 482 of Cr.P.C.
40. In view of the aforesaid, petition i.e. M.Cr.C. No.29393/2024 is
allowed and FIR bearing Crime No.0052/2023 dated 09/02/2023 registered by
Police Station Mahatma Gandhi Road, Indore Urban for offences under Section
406, 418, 420, 465, 467, 468, 471, 474 and 120-B of the IPC as well as order
dated 07/01/2023 passed by Judicial Magistrate First Class, Indore and all other
subsequent proceedings arising therefrom are hereby quashed.
41. Petition in M.Cr.C.No.17106/2019, which has been filed by Shiv
Narayan Sharma and his son Rakesh Sharma is having no force as is apparent
from the discussion mentioned herein above. The allegations made in the FIR
are found duly supported by oral as well as documentary evidence, therefore,
this petition is bereft of merits, fails and is hereby dismissed. Prosecution
against the applicant(s) will continue.
42. Let a copy of this order be kept in the record of connected petition
also.
Certified copy as per rules.
(BINOD KUMAR DWIVEDI)
JUDGE
Tej
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