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2012 DIGILAW 1316 (PAT)

Anand Mishra v. State of Bihar

2012-09-14

SHIVAJI PANDEY

body2012
ORDER Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for opposite party no.2. 2. This application has been filed for quashing the order dated 19.4.2011 passed in Trial No. 4137 of 2011, arising out of Complaint Case No.493 of 2011 by the Judicial Magistrate, Ist Class, Gopalganj by which he has taken cognizance against the petitioners under sections 420, 467, 468, 471 and 120(B) of the Indian Penal Code. 3. Learned counsel for the petitioners submits that from the narration of the facts mentioned in the complaint petition it appears that even all the statements in the complaint petition are taken into entirety at its face value no offence is made out against the petitioners as there is no element of criminal offence in whole of the statement, basically it is a civil dispute and it can only be settled before the civil court of competent jurisdiction. 4. From the complaint petition it appears that Sochu Mishra was the original land holder whereas the complainant has claimed that he got Sikmi settlement from Sochu Mishra. It has been further alleged that Narbdeshwar Pati Tripathi has got a deed of gift executed by Sochu Mishra in favour of his two sons, namely, Rajeev Kumar Tripathi and Sachitanand Tripathi. It appears from the record that a Title Suit No. 277 of 1996 was filed by Ram Naresh Mishra against Narbdeshwar Pati Tripathi, Rajiv Kumar Tripathi and Sachitanand Tripathi as they were minor they were represented by their father. The case was ended in to compromise at the appellate stage where, as it has been alleged, Narvdeshwar Pati Tripathi had accepted the possession of this complainant and accepted the Sikmi right of complainant over the land. It also appears from the complaint petition, after attending majority Sachitanand Tripathi and Rajee Kumar Tripathi had filed a Misc. Case no. 22 of 1998 for setting aside the judgment and decree and during cross-examination Sachitanand Tripathi accepted the possession of the petitioners. In the complaint petition it has been alleged that Rajeev Kumar Tripathi and Sachitanand Tripathi had connived with Suresh Mishra and executed a sale deed on 14.3.2011. Case no. 22 of 1998 for setting aside the judgment and decree and during cross-examination Sachitanand Tripathi accepted the possession of the petitioners. In the complaint petition it has been alleged that Rajeev Kumar Tripathi and Sachitanand Tripathi had connived with Suresh Mishra and executed a sale deed on 14.3.2011. In the complaint petition it has been alleged that Sachitanand Tripathi, Rajeev Kumar Tripathi, his father Narvdeshwar Pati Tripathi and mother Radhika Devi had accepted the possession of the complainant but fraudulently executed the aforesaid sale deed in connection with the disputed land. 5. Learned counsel for the petitioners submits that narration of facts even if they are taken at their face value the only inference would be that no offence against the petitioners is made out as primarily and pre-dominantly it is completely a civil dispute between the parties. He has further submitted that the complaint petition itself shows that the complainant has claimed his Sikmi right he can not claim the ownership over the property rather undisputed fact is that Rajeev Kumar Tripathi and Sachitanand Tripathi after execution of deed of gift became the real owner of the property. He further submits that the order of cognizance and subsequent proceeding is an abuse of process of the court. 6. In contra, learned counsel for opposite party no.2 has submitted that from the facts mentioned in this complaint petition it appears that there are sufficient materials to constitute an offence against the petitioners and the court below has rightly taken cognizance of the case. 7. Having considered the rival contentions of learned counsel for the parties, narration of facts made in the complaint petition even if they are taken in its face value, it appears to this Court that it is completely a mis-conceived criminal proceeding as it only shows that the dispute that has been raised in the complaint petition can only be settled before the civil court. The Hon’ble Supreme Court in the case of Indian Oil Corpn. Vs. The Hon’ble Supreme Court in the case of Indian Oil Corpn. Vs. NEPC India Ltd. And others, reported in (2006) 6 SCC 736 in paragraph 12 has held that the cognizance arising from complaint petition can be quashed where the allegations made in the complaint petition, even if they are taken at their face value and accepted in this entirety, do not prima facie constitute any offence or to make out the case alleged against the accused in that circumstance the court can quash the order of cognizance arising from complaint petition. In paragraph 13 the Hon’ble Supreme Court has taken note of the facts that instead of filing of proper civil case, the parties even 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. The criminal court while issuing notice, has to exercise a great deal of caution as for the accused, it is a very serious matter. Hon’ble Supreme Court has further observed, any effort to settle civil disputes and claims, which does not disclose criminal offence, by applying pressure through criminal prosecution is not acceptable and deprecated such criminal proceeding. Paragraph nos. 12 and 13 of the said judgment are reproduced hereinbelow:– “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 Vs. Sambhajirao Chandrojirao Angre, State of Haryana Vs. Bhajan Lal, Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill, Central Bureau of Investigation Vs. Duncans Agro Industries Ltd., State of Bihar Vs. Rajendra Agrawalla, Rajesh Bajaj Vs. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. Vs. Biological E. Ltd., Hridaya Ranjan Prasad Verma Vs. State of Bihar, M. Krishnan Vs. Vijay Singh and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Sharaful Haque. 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. 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 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. 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 Vs. State of U.P. 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.” 8. From the complaint petition, admitted position is that the O. P. No.2 is claiming Sikmi right and possession over the property, he cannot claim better right of ownership of property as admittedly, Rajeev Kumar Tripathi and Sachitanand Tripathi were the owner of the property, they had every right to transfer the land and if opposite party no.2 has any grievance against transfer, it can be settled by properly constituted civil court. 9. On examination of fact mentioned in the complaint petition even if it is taken on its face value it appears that it is out and out a civil dispute and it can not be decided giving a colour of criminal offence and as such the order of cognizance dated 19.4.2011 passed in Trial No. 4137 of 2011, arising out of Complaint Case No.493 of 2011 and subsequent proceeding relating to the present case are quashed. However, opposite party no.2 will be at liberty to take measures before the civil court of competent jurisdiction and any finding given in this order will have no bearing in the properly constituted civil proceeding. However, opposite party no.2 will be at liberty to take measures before the civil court of competent jurisdiction and any finding given in this order will have no bearing in the properly constituted civil proceeding. Accordingly this application is allowed.