Karnataka High Court
M Vijay Nayak vs The State By Mangalore North Police … on 27 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 10.09.2024
Pronounced on : 27.09.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3730 OF 2022
BETWEEN:
M. VIJAY NAYAK
S/O B.L.MUNIYAPPA
AGED ABOUT 52 YEARS,
R/AT NO.47/3, 12TH CROSS,
WILSON GARDEN,
BENGALURU - 560 030.
... PETITIONER
(BY SRI DILRAJ ROHIT SEQUEIRA, ADVOCATE)
AND:
1. THE STATE
BY MANGALORE NORTH POLICE STATION
REPRESENTED BY
THE PUBLIC PROSECUTOR,
BENGALURU - 560 001.
2. SMT.PADMA PRADEEP RAO
W/O LATE PRADEEP RAO
AGED ABOUT 35 YEARS,
RESIDING AT NEAR
VENKATARAMANA TEMPLE
DONGARAKERI
2
MANGALURU - 575 001.
... RESPONDENTS
(BY SRI THEJESH P., HCGP FOR R1;
SRI V.KRISHNA MURTHY, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE PROCEEDINGS AGAINST THE
PETITIONER IN CONNECTION WITH CRIME NO. 72/2021,
PERTAINING TO THE MANGALORE NORTH POLICE STATION, FOR
THE OFFENCES PUNISHABLE U/S 465, 467, 468, 471, 420, 120(B)
R/W 34 OF IPC, NOW PENDING ON THE FILE OF HONORABLE
COURT OF II ADDL. SENIOR CIVIL JUDGE AND CJM, MANGALORE
CITY DAKSHINA KANNADA.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.09.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question
registration of a crime in Crime No.72 of 2021 registered before the
Mangalore North Police Station for offences punishable under
Sections 465, 467, 468, 471, 420, 120B and 34 of the IPC and
pending before the II Additional Senior Civil Judge & Chief Judicial
Magistrate at Mangalore.
3
2. Heard Sri Dilraj Rohit Sequeira, learned counsel appearing
for petitioner, Sri Thejesh P, learned High Court Government
Pleader appearing for respondent No.1 and Sri V Krishna Murthy,
learned counsel appearing for respondent No.2.
3. Facts, in brief, germane are as follows:-
The date of the transaction dates back to 05-03-2014 not
with the petitioner and the complainant, but with the husband of
the complainant and the petitioner. On 05-03-2014 an agreement
of sale is executed by the husband of the complainant in favour of
the petitioner of a particular property. It appears pursuant to
execution of the agreement to sale, a dispute arose between the
husband of the complainant and the petitioner due to which certain
arbitration proceedings are also instituted by the petitioner against
the complainant's husband. The arbitration proceedings so
instituted by the petitioner against the complainant's husband
reached the concerned Court in an arbitration appeal where
protective orders are passed against the husband of the 2nd
respondent. During the pendency of those proceedings, the
husband of the complainant dies on 30-01-2019. Immediately
4
thereafter the present the petitioner institutes original suit seeking
decree of specific performance in O.S.No.44 of 2020 before the
competent civil Court at Bangalore, notice of which is said to have
been received by the petitioner on 15-04-2021. The subject matter
is the very same agreement of sale that has been in dispute
between the petitioner and the husband of the complainant.
4. During the pendency of the civil suit instituted by the 2nd
respondent/complainant, she seeks to register the impugned
complaint for offences punishable as afore-quoted. The gist of the
complaint is that the husband of the complainant and the petitioner
had entered into an agreement of sale and the husband of the
complainant had expired on 30-01-2019. Subsequently, it appears
that the complainant projects that she has entered into an
agreement of sale after the death of her husband in respect of the
same property with one M.C. Devaiah and has received certain
amount as advance. It is claimed that she has come to know of the
earlier agreement of sale executed by her husband only after
entering into an agreement to sale for the second time. Therefore,
5
alleging first agreement of sale to be a fraud document, the
impugned complaint is registered alleging cheating and forgery.
5. The learned counsel appearing for the petitioner would
vehemently contend that the transaction initially was between the
husband of the complainant and the petitioner. The dispute was
subsisting till the husband of the complainant dies. The agreement
of sale is subject matter of certain arbitration proceedings between
the two instituted during the lifetime of the husband of the
complainant. The petitioner later institutes a civil suit in O.S.No.44
of 2020 on the same cause of action, but the parties are different
as she enters into a second agreement of sale. To get over the said
second agreement of sale, she registers the complaint alleging the
first agreement of sale was a forged document.
6. Per contra, the learned counsel representing the 2nd
respondent would vehemently refute the submissions to contend
that the complainant was not aware of the earlier agreement of sale
at all. The husband has never mentioned about the said agreement
of sale to the 2nd respondent. Therefore, it is a matter of
6
investigation or trial for the petitioner to come out clean, but would
admit filing of a civil suit before the concerned Court qua another
agreement of sale of the subject property.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts are a matter of record. The
transaction between the petitioner and the husband of the
complainant dates back to 2014. It is the averment in the petition
that the agreement of sale was entered into between the petitioner
and the husband of the complainant with regard to a house
property measuring 30x45 sq.ft. Disputes appear to have persisted
between the husband of the complainant and the petitioner. This
also reaches to certain arbitration proceedings and an arbitration
appeal in A.A.No.158 of 2015. The concerned Court, in Arbitration
Appeal, passes the following order on 20-05-2015:
"Dated 20-5-2015.
Heard the counsel for plaintiff on IA1 & perused the plaint
averments and averments of IA1 & 2 and also the documents
7
produced with the plaint. On consideration of above materials,
this court finds that there is urgency for the plaintiff in moving
the court for the needful relief in the vacation, hence in the
interest of justice IA1 filed U/s 11(3) of Bengaluru City Civil
Court Act is allowed & plaintiff is permitted to file the suit and
move it during the vacation.
The office has noted that no caveat petition is pending in
respect of this suit. Heard the counsel for plaintiff and perused
the entire case records.
Heard the plaintiff counsel on IA2, and perused the plaint
averments & averments of IA2 & suit documents. At this stage
plaintiff has made out grounds for grant of ad-interim temporary
injunction order against the defendants. The notice of IA No.2
would defeat the purpose of the suit, hence ad interim exparte
temporary injunction is granted against the defendants as
preyed in IA2 and it shall be in force till next date of hearing.
The plaintiff shall comply Order 39 Rule 3 of CPC by
21-5-2015.
Issue suit summons & notice of I.A.2 to the defendants &
Call on 19-8-2015
Sd/-
20.05.15
Vacation Judge / XLIV ACC & S.J,
Bengaluru City."
Temporary injunction is granted against the husband of the
complainant. The said proceeding is said to be pending. The
husband of the complainant dies during the subsistence of
proceedings between the two, on 30-01-2019. On the death of the
husband of the complainant, the petitioner institutes certain
8
proceedings in O.S.No.718 of 2020 seeking injunction and
restraining interference of the complainant in his peaceful
possession and enjoyment of the property. The concerned Court
grants a temporary injunction against the complainant and the said
order reads as follows:
"Heard the learned counsel for the plaintiff.
Perused the plaint, documents, I.A.I and affidavit filed in
support of Ι.A.Ι. At this stage, the plaintiff has made out a case
for grant of an ad- interim order of temporary injunction against
the defendants. Therefore, the following:
ORDER
Issue ad-interim temporary injunction exparte restraining
the defendants or anybody claiming under them from interfering
with the plaintiff’s peaceful possession of the suit schedule
property.
This order shall be in force till the defendants. puts their
appearance before the Court.
Issue T.I order, suit summons & notice on I.A.No.I to the
defendant, if Order 39 Rule 3(a) of CPC is complied with.
Returnable by 29/2
Sd/-
XLIV Addl.C.C.&S.J, Bangalore.”
The said suit is pending consideration. In the teeth of the aforesaid
proceedings pending, the complainant registers a complaint before
the Wilson Garden Police Station alleging that the petitioner has
9
trespassed into her property. This comes to be registered as crime
in Crime No.26 of 2020. A coordinate Bench of this Court grants an
interim order of stay of all investigations in Criminal Petition No.645
of 2021. The said petition is said to be pending.
9. In the interregnum, the petitioner institutes O.S.No.44 of
2020. The said suit is pending consideration before the concerned
Court. Then comes the impugned complaint in Crime No.72 of 2021
for the afore-quoted offences. Since the issue has now sprung from
the complaint, I deem it appropriate to notice the complaint. It
reads as follows:
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11
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The crux of the complaint is that the complainant learns that in
order to defeat the claim over the property, the petitioner has got
executed a bogus agreement of sale with third parties and has
instituted a suit for cancellation of the said agreement of sale in
O.S.No.44 of 2020.
10. If the complaint and the facts narrated hereinabove are
noticed, what would unmistakably emerge is, that the wife is
wanting to project certain offences which the husband during his
life time failed to project. The agreement of sale between the
petitioner and the husband of the complainant dates back to 2014.
Several disputes between the two are pending. Now registering of a
12
complaint on the score that the agreement that took place in the
year 2014 or the subsequent acts are all a product of forgery or
cheating would not lie. The husband of the complainant did not
complain or register a complaint against the petitioner throughout
his life time. On the subject property a civil suit is pending between
the parties or claimants and on the same cause of action the
criminal law is set into motion. The issue being purely civil in
nature and the civil suit pending qua the parties, if further
investigation in the case at hand is permitted to be continued, it
would become an abuse of the process of law and result in
miscarriage of justice.
11. The Apex Court in plethora of judgments has considered
the aspect of complainants setting criminal law into motion despite
the issue being purely civil in nature by giving those proceedings a
colour of crime. The Apex Court in the case of RAMESH CHANDRA
GUPTA v. STATE OF U.P.1 has held as follows:-
“…. …. ….
15. This Court has an occasion to consider the ambit
and scope of the power of the High Court under Section 482
1
2022 SCC Online SC 1634
13
CrPC for quashing of criminal proceedings in Vineet
Kumar v. State of Uttar Pradesh1 decided on 31st March, 2017.
It may be useful to refer to paras 22, 23 and 41 of the above
judgment where the following was stated:
“22. Before we enter into the facts of the present case
it is necessary to consider the ambit and scope of jurisdiction
under Section 482 CrPC vested in the High Court. Section 482
CrPC saves the inherent power of the High Court to make
such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any
court or otherwise to secure the ends of justice.
23. This Court time and again has examined the scope
of jurisdiction of the High Court under Section 482 CrPC and
laid down several principles which govern the exercise of
jurisdiction of the High Court under Section 482 CrPC. A
three-Judge Bench of this Court in State of Karnataka v. L.
Muniswamy, (1977) 2 SCC 699 held that the 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 proceeding ought to be quashed. In para 7 of the
judgment, the following has been stated:
‘7. … In the exercise of this wholesome power, the
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 proceeding ought to be
quashed. The saving of the High Court’s inherent powers,
both in civil and criminal matters, is designed to achieve a
salutary public purpose which is that a court proceeding
ought not to be permitted to degenerate into a weapon of
harassment or persecution. In a criminal case, the veiled
object behind a lame prosecution, the very nature of the
material on which the structure of the prosecution rests and
the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice are
higher than the ends of mere law though justice has got to
be administered according to laws made by the legislature.
The compelling necessity for making these observations is
that without a proper realisation of the object and purpose of
the provision which seeks to save the inherent powers of the
High Court to do justice, between the State and its subjects,
it would be impossible to appreciate the width and contours
of that salient jurisdiction.’
14
41. Inherent power given to the High Court under
Section 482 CrPC is with the purpose and object of
advancement of justice. In case solemn process of Court is
sought to be abused by a person with some oblique motive,
the Court has to thwart the attempt at the very threshold.
The Court cannot permit a prosecution to go on if the case
falls in one of the categories as illustratively enumerated by
this Court in State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335. Judicial process is a solemn proceeding which
cannot be allowed to be converted into an instrument of
operation or harassment. When there are materials to
indicate that a criminal proceeding is manifestly attended with
mala fides and proceeding is maliciously instituted with an
ulterior motive, the High Court will not hesitate in exercise of
its jurisdiction under Section 482 CrPC to quash the
proceeding under Category 7 as enumerated in State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 which is to
the following effect:
‘102.(7) Where a criminal proceeding is manifestly
attended with mala fides 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.’Above Category 7 is clearly attracted in the facts of the
present case. Although, the High Court has noted the judgment
of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 but did
not advert to the relevant facts of the present case, materials on
which final report was submitted by the IO. We, thus, are fully
satisfied that the present is a fit case where the High Court ought to
have exercised its jurisdiction under Section 482 CrPC and quashed
the criminal proceedings.”
16. The exposition of law on the subject relating
to the exercise of the extra-ordinary power under
Article 226 of the Constitution or the inherent power
under Section 482 CrPC are well settled and to the
possible extent, this Court has defined sufficiently
channelized guidelines, to give an exhaustive list of
myriad kinds of cases wherein such power should be
exercised. This Court has held in para 102 in State of
Haryana v. Bhajan Lal2 as under:
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
15series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent powers
under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases
by way of illustration wherein such power could be exercised
either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(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
16
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
17. The principles culled out by this Court have
consistently been followed in the recent judgment of this Court
in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra.
18. The present case is fully covered by categories (1)
and (3), as enumerated in State of Haryana v. Bhajan
Lal (supra). A bare perusal of the complaint on the basis of
which FIR came to be registered at the instance of the de-
facto complainant/second respondent does not disclose any
act of the present appellants or their participation in the
commission of crime. They are neither concerned with the
registered sale deed dated 4th May, 1977 nor the later sale
deed executed in favour of the de-facto complainant by
Shravan Kumar Gupta dated 22nd December, 2018, nor in
possession of the subject property nor are parties to the civil
proceedings and it is not the case of the complainant that
either the appellants have played any active/passive role
either in scribing the document or are facilitators or witness to
the document in reference to which the complaint has been
made for cheating and committing forgery or have played any
role in delivery of possession of the subject property in
question.
19. What it appears is that the de-facto
complainant has implicated the present appellants being
members of the family to put pressure for obtaining
possession of the subject property and to settle the civil
dispute which is pending between Vinod Kumar Gupta,
Shravan Kumar Gupta and the de-facto complainant in
Original Suit No. 91 of 2015.
20. We are of the view that in the present facts and
circumstances, the High Court ought to have exercised its
power under Section 482 CrPC for quashing of the criminal
17
complaint and proceedings in consequence thereof qua the
present appellants.
21. Before parting with the order, we further like to
observe that the observations which has been made are
restricted to the three appellants, namely, Ramesh Chandra
Gupta, Ashish Gupta and Rinky Sarna before this Court and
the learned trial Judge may not be influenced by the
observations made above and may proceed with the Criminal
Case No. 2200 of 2019 qua the other accused persons
independently on its own merits in accordance with law.
22. Needless to say that the Court which is seized of the
Original Suit No. 91 of 2015 may decide the same
independently on its own merits in accordance with law.
23. In the result, the appeals are allowed. The
judgment impugned of the High Court dated 3rd February,
2021 is set aside and FIR numbered as Criminal Case No.
2200 of 2019 registered at PS Navabad, District Jhansi and all
the consequential proceedings qua the present appellants
stand quashed.”
(Emphasis supplied)
The Apex Court, in a later judgment, in the case of R.NAGENDER
YADAV v. STATE OF TELANGANA2 has held as follows:
“15. It appears that the aforesaid aspects of the matter
have been overlooked by the High Court. We are conscious of
the fact that perfunctory investigation cannot be a ground
either to quash the criminal proceedings or even to acquit the
accused. We take notice of the fact that as on date the parties
are before the civil court. The civil suit being Original Suit No.
1343 of 2016 between the parties is pending wherein the
contention of the complainant as a plaintiff is that no sale deed
dated 29-12-2010 was executed, whereas the contention of
the appellant herein as a defendant in the suit is that the sale
deed had been executed by the complainant. The civil court is
therefore seized of the question as regards the legality and2
(2023) 2 SCC 195
18validity of the disputed sale deed. The matter is sub judice in
the civil court.
16. At this juncture and more particularly in the
peculiar facts and circumstances of the case, it will not
be proper to permit the criminal prosecution to proceed
further on the allegation of the sale deed being forged.
That question will have to be decided by the civil court
after recording the evidence and hearing the parties in
accordance with law. It would not be proper having
regard to what has been highlighted by us to permit the
complainant to prosecute the appellant on this
allegation when the validity of the sale deed is being
tested before the civil court.
17. At this stage, we quote the following relevant part
of the disputed sale deed dated 29-12-2010:
“AND WHEREAS now the above named Vendor
herein has offered to sell the abovesaid property to the
Vendees for a total sale consideration of Rs 24,08,000
(Rupees twenty-four lakhs eight thousand only), and
the Vendee hereby agreed to purchase the same for the
said sale consideration, and which is more fully
described in the schedule and plan annexed hereto and
marked in red colour and hereinafter for the sake of
brevity referred to as the “SCHEDULE PROPERTY/SAID
PROPERTY”
NOW THIS DEED OF SALE WITNESSETH AS UNDER:
The Vendor hereby declares, agrees and
acknowledges that he has received the entire sale
consideration of Rs 24,08,000 (Rupees twenty-four
lakhs eight thousand only), from the Vendee in the
manner mentioned hereunder:
(1) Rs 24,08,000 (Rupees twenty-four lakhs eight
thousand only) financed by Axis Bank Ltd.
And the receipt of which sum the Vendor do hereby
admit and acknowledge.”
(emphasis supplied)
19
18. It appears prima facie from the aforesaid that the
purchaser (Vendee) might have obtained finance from Axis
Bank Ltd. for the purpose of purchasing the plot in question.
The police should have investigated whether the amount of Rs
24,08,000 (Rupees twenty-four lakhs eight thousand only)
was paid by Axis Bank Ltd. directly to the original complainant
(Respondent 2 herein). There is no clarity even in this regard.
This aspect shall also be looked into while deciding the civil
suit between the parties.
19. While exercising its jurisdiction under Section
482CrPC, the High Court has to be conscious that this power is
to be exercised sparingly and only for the purpose of
prevention of abuse of the process of the court or otherwise to
secure the ends of justice. Whether a complaint discloses a
criminal offence or not, depends upon the nature of the act
alleged thereunder. Whether the essential ingredients of a
criminal offence are present or not, has to be judged by the
High Court. A complaint disclosing civil transaction may also
have a criminal texture. But the High Court must see whether
the dispute which is in substance of a civil nature is given a
cloak of a criminal offence. In such a situation, if civil remedy
is available and is in fact adopted, as has happened in the case
on hand, the High Court should have quashed the criminal
proceeding to prevent abuse of process of court.
20. We therefore allow this appeal, set aside the
impugned order [R. Nagender Yadav v. State of
Telangana, 2021 SCC OnLine TS 3598] of the High Court
and quash the criminal proceedings of Criminal
Complaint No. 1029 of 2015. We clarify that this will not
come in the way of instituting appropriate proceedings
in future in case the civil court comes to the conclusion
that the disputed sale deed dated 29-12-2010 is forged.
We refrain ourselves from expressing any opinion as
regards the genuineness or otherwise of the sale deed
in question as this question is wide open before the civil
court. The civil court shall decide the civil suit pending
between the parties on its own merits and on the basis
of the evidence that may be led by both the sides. It
shall be open to the civil court to take the opinion of the
20
handwritings expert as regards the signature of the
complainant on the disputed sale deed.
21. We clarify that we have passed the aforesaid order
in the facts and circumstances of the present case and the
same shall not be cited as a precedent.”
(Emphasis supplied)
The Apex Court, in yet another later judgment, in the case of A.M.
MOHAN v. STATE3 has held as follows:
“CONSIDERATION
9. The law with regard to exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
proceedings has been succinctly summarized by this Court in
the case of Indian Oil Corporation v. NEPC India Limited1 after
considering the earlier precedents. It will be apposite to refer
to the following observations of this Court in the said case,
which read thus:
“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 Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri)
234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal
Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059], Central
Bureau of Investigation v. Duncans Agro Industries
Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045], State of
Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC
(Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC
259 : 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P)
Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri)
615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000)
4 SCC 168 : 2000 SCC (Cri) 786], M. Krishnan v. Vijay
Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005)3
2024 SCC OnLine SC 339
211 SCC 122 : 2005 SCC (Cri) 283]. 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 mala
fides/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 proceeding 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
22
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 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 : 2000 SCC (Cri)
513] this Court 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.
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 CrPC more frequently, where they discern malice
or frivolousness or ulterior motives on the part of the
complainant. Be that as it may.”
23
10. The Court has also noted the concern with
regard to a growing tendency in business circles to
convert purely civil disputes into criminal cases. The
Court observed that 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. The Court also recorded that there
is an impression that if a person could somehow be
entangled in a criminal prosecution, there is a likelihood
of imminent settlement. The Court, relying on the law
laid down by it in the case of G. Sagar Suri v. State of
U.P.2 held that 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. The Court also
observed that though 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.
11. This Court, in the case of Prof. R.K.
3
Vijayasarathy v. Sudha Seetharam has culled out the
ingredients to constitute the offence under
Sections 415 and 420 of IPC, as under:
“15. Section 415 of the Penal Code reads thus:
“415. Cheating.–Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to deliver
any property to any person, or to consent that any person shall
retain any property, or intentionally induces the person so deceived
to do or omit to do anything which he would not do or omit if he
were not so deceived, and which act or omission causes or is likely
to cause damage or harm to that person in body, mind, reputation or
property, is said to “cheat”.”
16. The ingredients to constitute an offence of
cheating are as follows:
16.1. There should be fraudulent or dishonest
inducement of a person by deceiving him:
24
16.1.1. The person so induced should be intentionally
induced to deliver any property to any person or to consent that any
person shall retain any property, or16.1.2. The person so induced should be intentionally
induced to do or to omit to do anything which he would not do or
omit if he were not so deceived; and16.2. In cases covered by 16.1.2. above, the act or omission
should be one which caused or is likely to cause damage or harm to
the person induced in body, mind, reputation or property.
17. A fraudulent or dishonest inducement is an
essential ingredient of the offence. A person who dishonestly
induces another person to deliver any property is liable for
the offence of cheating.
18. Section 420 of the Penal Code reads thus:
“420. Cheating and dishonestly inducing delivery of
property.– Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any person, or to make,
alter or destroy the whole or any part of a valuable security, or
anything which is signed or sealed, and which is capable of being
converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.”
19. The ingredients to constitute an offence under
Section 420 are as follows:
19.1. A person must commit the offence of cheating
under Section 415; and19.2. The person cheated must be dishonestly induced
to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything
signed or sealed and capable of being converted into
valuable security.
20. Cheating is an essential ingredient for an act to
constitute an offence under Section 420.”
25
12. A similar view has been taken by this Court in the
cases of Archana Rana v. State of Uttar Pradesh, Deepak
Gaba v. State of Uttar Pradesh and Mariam Fasihuddin v. State
by Adugodi Police Station.
13. It could thus be seen that for attracting the
provision of Section 420 of IPC, the FIR/complaint must show
that the ingredients of Section 415 of IPC are made out and
the person cheated must have been dishonestly induced to
deliver the property to any person; or to make, alter or
destroy valuable security or anything signed or sealed and
capable of being converted into valuable security. In other
words, for attracting the provisions of Section 420 of IPC, it
must be shown that the FIR/complaint discloses:
(i) the deception of any person;
(ii) fraudulently or dishonestly inducing that person to
deliver any property to any person; and
(iii) dishonest intention of the accused at the time of making
the inducement.
14. The averments with regard to the present appellant
as have been found in the FIR is as under:
“At the instance of the said Lakshmanan (accused No.
1), I (complainant) paid directly Rs. 20,00,000/- to one
Mohan (appellant-accused No. 3) and the said Lakshmanan
(accused No. 1) transferred the remaining sale consideration
of over 18 odd crores to Mohan for the purchase of his lands
at Sunguvarchatram. But suppressed the execution of sale
deed dated 03.02.2017 by the appellant /accused No. 3.”
15. A perusal thereof would reveal that even in the said
averments, the allegation with regard to inducement is only
qua accused No. 1. We have perused the entire FIR. Except
the aforesaid allegations, there are no other allegation with
regard to the present appellant-accused No. 3. The rest of the
allegations are against accused No. 1 (Lakshmanan). Even the
allegations with regard to inducement are only against accused
Nos. 1 and 2.
26
16. Not only that, even in the charge-sheet, the only
role attributed to the present appellant could be found as
follows:
“Thereafter, A2 had lured the complainant once again
saying that A1 is going to layout the 9.80 acre land in
Chittoor Village, Thiruperumbudur Taluk, which is under A3’s
general power of attorney and that the complainant would
gain huge profits if he invests Rs. 2 crores in this project as
well. A1 too, as he had already done, lured the complainant
that he would pay him a share out of the profit, and executed
a General Power of Attorney Deed in favour of the
complainant in respect of the 9.80 acre land in Chittoor
Village in Thiruperumbudur Taluk which he purchased from A3
and registered it as Doc. No. 3733/2017 in
Sunguvarchattiram Sub Registrar Office on 03.02.2017, in a
manner instilling confidence in the complainant.
……..
Moreover, upon instructions from A1 to transfer Rs.
20,00,000/- to A3’s Tamil Nadu Mercantile Bank Account
towards sale of the land made by A3 to A1, the complainant
had transferred online a sum of Rs. 20,00,000/- to A3’s Tamil
Nadu Mercantile Bank Account from his Yes Bank Account on
02.02.2017.”
17. It could thus be seen that the only allegation
against the present appellant is that accused No. 1 executed
the GPA in favour of the complainant in respect of the land
which is purchased from the present appellant-accused No. 3.
The other allegation is that upon instructions of accused No. 1
to transfer Rs. 20,00,000/- to accused No. 3’s Tamil Nadu
Mercantile Bank Account towards sale of the land made by the
appellant-accused No. 3 to accused No. 1, the complainant
had transferred online a sum of Rs. 20,00,000/-.
18. It is an undisputed position that upon receipt of the
said amount of Rs. 20,00,000/-, the present appellant had
transferred the land in question by sale deed in favour of
accused No. 1. It is also undisputed that thereafter accused
No. 1 executed the GPA in favour of the complainant on the
same day. After the sale deed was executed in favour of
accused No. 1 by the appellant-accused No. 3, though the
complaint narrates various instances thereafter, no role is
attributed to the present appellant.
27
19. At the cost of repetition, it has to be noted that no
role of inducement at all has been attributed to the present
appellant. Rather, from the perusal of the FIR and the charge-
sheet, it would reveal that there was no transaction of any
nature directly between the appellant and the complainant.
The version, if accepted at its face value, would reveal that, at
the instance of accused No. 1, the complainant transferred the
amount of Rs. 20,00,000/- in the account of the appellant. On
receipt of the said amount, the appellant immediately
executed the sale deed in favour of accused No. 1, who
thereafter executed the GPA in favour of the complainant.
After that, no role is attributed to the present appellant and
whatever happened thereafter, has happened between
accused No. 1, the complainant and the other accused
persons. In that view of the matter, we find that the FIR or the
charge-sheet, even if taken at its face value, does not disclose
the ingredients to attract the provision of
Section 420 of IPC qua the appellant.
20. The dishonest inducement is the sine qua non to
attract the provisions of Sections 415 and 420 of IPC. In our
considered view, the same is totally lacking qua the present
appellant. In that view of the matter, we find that continuation
of the criminal proceedings against the present appellant
would be nothing else but amount to abuse of process of law
resulting in miscarriage of justice.
21. Insofar as the contention of the respondents that
since the charge-sheet has been filed, the present appeal is
liable to be dismissed, is concerned, it will be relevant to refer
to the following observations of this Court, in the case
of Anand Kumar Mohatta v. State (NCT of Delhi), Department
of Home7:
“14. First, we would like to deal with the submission of
the learned Senior Counsel for Respondent 2 that once the
charge-sheet is filed, petition for quashing of FIR is
untenable. We do not see any merit in this submission,
keeping in mind the position of this Court in Joseph Salvaraj
A. v. State of Gujarat [Joseph Salvaraj A. v. State of
Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23]. In Joseph
Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7
28SCC 59 : (2011) 3 SCC (Cri) 23], this Court while deciding
the question whether the High Court could entertain the
Section 482 petition for quashing of FIR, when the charge-
sheet was filed by the police during the pendency of the
Section 482 petition, observed : (SCC p. 63, para 16)“16. Thus, from the general conspectus of the various
sections under which the appellant is being charged and is to be
prosecuted would show that the same are not made out even prima
facie from the complainant’s FIR. Even if the charge-sheet had been
filed, the learned Single Judge [Joesph Saivaraj A. v. State of
Gujarat, 2007 SCC OnLine Guj 365] could have still examined
whether the offences alleged to have been committed by the
appellant were prima facie made out from the complainant’s FIR,
charge-sheet, documents, etc. or not.”
15. Even otherwise it must be remembered that the
provision invoked by the accused before the High Court is
Section 482 CrPC and that this Court is hearing an appeal
from an order under Section 482 CrPC.
Section 482 CrPC reads as follows:
“482. Saving of inherent powers of the High Court.–
Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary to give effect to any order under this Code,
or to prevent abuse of the process of any court or otherwise
to secure the ends of justice.”
16. There is nothing in the words of this section
which restricts the exercise of the power of the Court
to prevent the abuse of process of court or miscarriage
of justice only to the stage of the FIR. It is settled
principle of law that the High Court can exercise
jurisdiction under Section 482 CrPC even when the
discharge application is pending with the trial court [G.
Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000
SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC
591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S)
237]. Indeed, it would be a travesty to hold that
proceedings initiated against a person can be
interfered with at the stage of FIR but not if it has
advanced and the allegations have materialised into a
charge-sheet. On the contrary it could be said that the
abuse of process caused by FIR stands aggravated if
the FIR has taken the form of a charge-sheet after
29
investigation. The power is undoubtedly conferred to
prevent abuse of process of power of any court.”
[emphasis supplied]”
(Emphasis supplied)
A three Judge Bench of the Apex Court in the case of A.M.MOHAN
supra observes that it would be a travesty to hold that proceedings
initiated against a person can be interfered with at the stage of FIR
but not if it has advanced to filing of a charge sheet. On the
contrary, the Apex court observes that abuse of process caused by
FIR stands aggravated if charge sheet is permitted to be tried on a
case to case basis. The observations of the Apex Court in the cases
quoted supra would become applicable to the facts of the case on
hand.
12. The criminal law is set into motion by the complainant for
the transaction of the petitioner with her husband upon which civil
suit is instituted both by the petitioner and the 2nd
respondent/complainant. The second crime is registered by way of
impugned proceedings notwithstanding the earlier crime being
stayed at the hands of this Court. Therefore, I deem it appropriate
to observe that permitting any investigation in the case at hand
30would become an abuse of the process of law and result in
miscarriage of justice.
13. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings initiated against the petitioner in Crime
No.72 of 2021 pending before the II Additional Senior
Civil Judge and CJM at Mangalore stand quashed.
(iii) It is made clear that the observations made in the
course of the order are only for the purpose of
consideration of the case of petitioner under Section
482 of Cr.P.C. and the same shall not bind or influence
the proceedings pending between the parties before any
other fora.
Consequently, I.A.No.1 of 2023 stands disposed.
Sd/-
(M. NAGAPRASANNA)
JUDGE
Bkp/CT:MJ