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Madhya Pradesh High Court · body

2015 DIGILAW 1178 (MP)

Mohan Prasad Dubey v. State of M. P.

2015-11-17

S.C.SHARMA

body2015
ORDER 1. Parties through their counsel. The petitioner before this Court has filed this present petition under section 482 of the Code of Criminal Procedure, 1973 at Police Station, Janakganj for offence under sections 420, 467, 468, 120B and 506 of Indian Penal Code for quashment of first information report registered at Crime No.123/2010 at Police Station, Janakganj. 2. The facts of the case reveal that the respondent No.3 Pawan Kumar Pathak is claiming title over the land situated in the township of Gwalior and he has filed a civil suit for declaration and for grant of permanent injunction before the learned District Judge, Gwalior. The civil suit has been filed against one Ram Kishan Dubey who is petitioner No.2. Shri Ram Kishan Dubey is no more and his son Mohan Prasad Dubey petitioner No.1 is on record alongwith two other persons. 3. It has been argued by learned counsel for the petitioner that a civil suit was filed in the year 2007 and a written-statement was also filed by Ram Kishan Dubey, the defendant therein. It has been further stated that the respondent No.3 Pawan Kumar Pathak was claiming himself to be the son of one Heeralal and by virtue of being the son of Heeralal he has filed a civil suit claiming declaration and for grant of permanent injunction. It has been further stated that an application was preferred for grant of permission to conduct a DNA test and a plea was raised by Ram Kishan Dubey that Pawan Kumar Pathak who is the respondent No.3 in the present petition and plaintiff in the civil is in fact not at all the son of Late Heeralal. 4. It has been further stated that defendant in the civil suit who is the petitioner before this Court has also taken a plea that they are holding the property in question by virtue of a Will executed by Heeralal in the year 1989. Because of the aforesaid defence taken by the defendants therein, in the year 2010 a FIR was lodged by the respondent No.3 Pawan Kumar Pathak stating that the present petitioners have forged and fabricated a Will and are claiming themselves to be the title holder of the property and based upon the Will the police has registered a FIR on 3.3.2010. 5. 5. This Court has granted in interim order on 15.3.2010 and since then the matter is being adjourned on one pretext or the other. 6. Learned counsel appearing for the petitioner has submitted that by no stretch of imagination it can be said that the a criminal case is made out against the petitioner nor the ingredients of sections 420, 467, 468, 120B and 506 of IPC are fulfilled. 7. On the other hand, learned counsel appearing for the respondent No.3 has vehemently argued before this Court that in case no offence is made out, the police authority shall be free to submit a final report under the Code of Criminal Procedure and as the Will has been forged and fabricated, the present petitioners have certainly committed offence under sections 420, 467, 468, 120B and 506 of IPC. 8. He has placed reliance upon the judgment delivered by the Supreme Court in the case of K. K.Singhal and others v. Steel Strips Ltd., reported in 2015(1) MPLC 154 (SC). Reliance has also been placed on another judgment delivered in the case of R. Kalyani v. Janak C. Mehta and others, reported in (2009)1 SCC 516 . 9. Heard learned counsel for the parties and perused the record. 10. In the present case, it is an undisputed fact that the respondent No.3 has filed a civil suit in the year 2007 and a written-statement was filed before the trial Court and the present Petitioner were claiming their right over the property on account of Will dated 20.12.1989 executed by Heeralal. In the written-statement a plea was also taken that the respondent No.3 who is plaintiff in the civil suit is not at all the son of Heeralal. The respondent No.3 in the year 2010 has lodged a FIR. It is also not in dispute that the Will dated 20.12.1989 is the subject matter of civil suit pending between the parties. 11. It is true that the scope of interference is quite limited in exercise of power conferred under section 482 of the Code of Criminal Procedure. The apex Court in the case of R.Kalyani (supra), in paragraphs No.15 and 16 has held as under : “15. Propositions of law which emerge from the said decisions are. 11. It is true that the scope of interference is quite limited in exercise of power conferred under section 482 of the Code of Criminal Procedure. The apex Court in the case of R.Kalyani (supra), in paragraphs No.15 and 16 has held as under : “15. Propositions of law which emerge from the said decisions are. -- (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. 16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” 12. The apex Court in the aforesaid case has held that the Court while exercising its inherent jurisdiction although Will not interfere with the genuine complaints but would not hesitate in exercising its jurisdiction in appropriate cases, meaning thereby, the exercise of jurisdiction in the matter of quashment of FIR has not been completely curtailed by the aforesaid case. 13. The apex Court in the aforesaid case has held that the Court while exercising its inherent jurisdiction although Will not interfere with the genuine complaints but would not hesitate in exercising its jurisdiction in appropriate cases, meaning thereby, the exercise of jurisdiction in the matter of quashment of FIR has not been completely curtailed by the aforesaid case. 13. In the case of K. K. Sighal (supra), the dispute was for an offence under Sec.138 of Negotiable Instruments Act, 1881 and a plea that the dispute is of civil nature was raised and in those circumstances the apex Court has held that the complaint cannot be quashed at this stage. In the present case it is not in dispute that the parties have started litigation way back in the year 2007 and the existence of Will was brought to the notice of the trial Court by the defendants therein who are the present petitioners. FIR was lodged in the year 2010 alleging that the Will is forged and fabricated Will. 14. This Court is witnessing a trend these days that all possible efforts are being made to convert a civil dispute into a criminal litigation. 15. The apex Court in the case of Chandran Ratanswami v. K. L. Palanisamy and others, reported in (2013)6 SCC 740 , in paragraphs No.42, 43, 44, 47 and 60 has held as under : “42. In Indian Oil Corpn. v. NEPC India Ltd. and others this Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that : (SCC p.749, para 13) “13. ... 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.” 43. In the case of Inder Mohan Goswami and another v. State of Uttaranchal and others [ (2007)12 SCC 1 ], this Court after considering series of decisions observed : “46. The Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. In the case of Inder Mohan Goswami and another v. State of Uttaranchal and others [ (2007)12 SCC 1 ], this Court after considering series of decisions observed : “46. The Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inhrent jurisdiction of the High Courts under section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained. * * * 50. Civilised countries have recognised that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice—liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law. 51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the Courts have to be extremely careful before issuing non-bailable warrants. 52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to Page curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.” 44. In G.Sagar Suri and another v. State of U.P. and others, this Court observed that it is the duty and obligation of the criminal Court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. 47. In G.Sagar Suri and another v. State of U.P. and others, this Court observed that it is the duty and obligation of the criminal Court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. 47. In the case of Uma Shankar Gopalika v. State of Bihar and another, this Court has held as under (SCC pp. 338-39, paras 6-7) : 6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under sections 420/120B IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs.4,20,000/-, they would pay a sum of Rs.2,60,000/- to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to the claim of Rs.4,20,000/-. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under section 420 IPC. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under section 420 or section 120B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil Court by filing a properly constituted suit. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under section 420 or section 120B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil Court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under section 482 CrPC which it has erroneously refused.” 60. We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law.” 16. The apex Court in the aforesaid case has held that there is a growing tendency in business circles to convert purely civil disputes into criminal cases. 17. In view of the aforesaid, petition preferred under section 482 of CrPC stands allowed and FIR registered at Crime No.123/2010 at Police Station, Janakganj is quashed.