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2016 DIGILAW 1351 (ALL)

JAMIL v. STATE OF U. P.

2016-04-12

SUNEET KUMAR

body2016
JUDGMENT : Hon'ble Suneet Kumar, J. The opposite party no. 2 filed an application under Section 156(3) Cr.P.C. which was converted into a complaint case by the learned Magistrate. It was alleged that the opposite party no. 2 the complainant is a Doctor by profession, on attaining the age of superannuation retired as Head of a Department of a Medical College at Agra, thereafter, commenced private practice at Agra. It is further alleged that the opposite party no. 2 is the owner and in possession of House No. 177/6/Q, Sharda Nagar at Kanpur Nagar. The complainant received summons in a suit instituted by the applicant for recovery of Rs. 11,51,000/- and for permanent injunction restraining the complainant from disposing or selling the property in dispute until the sum is not returned. It was further alleged that the opposite party no. 2 visited the civil court and upon perusal of the record of the suit it transpired that the applicant in connivance with the other co-accused committed forgery by preparing a receipt of the sum purportedly to have been advanced to the complainant for sale of the property at Kanpur. It was alleged that the accused are neither known nor have ever met the opposite party no. 2, therefore, on the basis of a forged and manufactured document an attempt was made to grab the property at Kanpur, taking advantage of the fact that the applicant is residing at Agra. Learned Magistrate upon the statement of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C., summoned the applicant by order dated 08 March 2016, which is impugned in the petition. It is sought to be urged by the learned counsel for the applicant that the case primarily is of a civil nature and the criminal case has been instituted to coerce the applicant to withdraw the suit, further, the complainant/opposite party no. 2 has already been put in appearance in the suit by filing written statement reiterating the facts that has been stated in the complaint. The learned Magistrate without application of mind has taken cognizance. 2 has already been put in appearance in the suit by filing written statement reiterating the facts that has been stated in the complaint. The learned Magistrate without application of mind has taken cognizance. Learned counsel for the applicant in support of his submission has placed reliance on the judgment rendered in M/s. Pepsi Food Limited and another Versus Special Judicial Magistrate, 1998 (5) SCC 749 to urge that the process of summoning any person as accused is a very serious matter, which initiates criminal proceedings against the accused, therefore, said orders cannot be set into motion in a mechanical manner without applying judicial mind. It is sought to be urged that Rs. 93,000 was paid towards court fees, the findings that would be returned by the civil court in respect of the alleged forged document would be binding upon the criminal court. The learned A.G.A. would submit that mere institution of a civil suit would not bar criminal proceedings. The question for determination is as to whether the dispute, inter se, parties is primarily of civil nature, so as to bar criminal proceedings. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceeding at the same time. Both the proceeding, thus, can run parallely. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt; in a civil suit `preponderance of probability' would serve the purpose for obtaining a decree. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding. In M.S. Sheriff & Anr. vs. State of Madras & Ors. [ AIR 1954 SC 397 ], the Constitution Bench was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence. Another Constitution Bench had the occasion to consider the question in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. It was opined that the criminal matter should be given precedence. Another Constitution Bench had the occasion to consider the question in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. [ (2005) 4 SCC 370 ], relying on M.S. Sheriff (supra) as also various other decisions, it was categorically held: "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given." The question yet again came up for consideration in P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu [ AIR 2008 SC 1884 ], wherein, it was categorically held: "13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case." In G. Sagar Suri Versus State of U.P., (2002) 2 SCC 636, this Court observed: (SCC p. 643, para u) "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....." It would be of benefit to refer to the judgment in the case of Indian Oil Corpn. Versus NEPC India Ltd. and others, (2006) 6 SCC 736 , wherein, the Court adversely commented upon this very tendency of filing criminal complaints even in cases relating to commercial transaction for which civil remedy is available is available or has been availed. In Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR 639 , it was held that where there was prima facie evidence, the Magistrate was bound to issue process and even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by an appropriate forum at an appropriate stage. It was further held that the issue of process can be refused only when the Magistrate finds that the evidence led by the complainant is self contradictory or intrinsically untrustworthy. In Kewal Krishan v. Suraj Bhan, (1980) Supp SCC 499, Supreme Court examined the scheme of Sections 200 to 204 and held: "At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges." Supreme Court in Ranjit Singh v. State of Pepsu AIR 1959 SC 843 held: "Further, it is settled law that the inquiry under Section 202 is of a limited nature. Firstly, to find out whether there is a prima facie case in issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose being of finding out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 CrPC the accused has no right to intervene and that it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made." Having examined the law, on perusal of the complaint, the complainant has categorically asserted that he is a practising doctor at Agra, after rendering service at the Medical College he retired from the post of Head of Department, thereafter, started private practice at Agra. He owns a property at Kanpur Nagar which is being looked after by his brother in-law. It is alleged that the accused applicant never met the complainant nor is the applicant or the witnesses known to him, nor did he ever intend to sell his property. The suit has been instituted merely to perpetuate fraud and misrepresentation in order to grab the property, the market value of the property is several crores. The contention of learned counsel for the applicant is that a lac of rupees has been paid towards court fees cannot be said that the forgery or fraud as alleged by the complainant was not committed. It is sought to be urged by the learned A.G.A. that the civil proceeding is merely a camouflage, by investing a sum towards court fee, to usurp the property which is valued at several crores. The plea that injunction has been granted by the civil court is also of no help. The civil court granted temporary injunction relying on merely a slip of paper alleged to be the receipt of the advance sum paid by the applicant. This Court would not comment on merit of the injunction order, but would suffice to note that injunction could not have been granted against a true owner without recording a prima facie satisfaction on all the ingredients before granting injunction. Finally, it was sought to be urged that cognizance was bad in view of Section 195(1)(b)(ii) Cr.P.C. read with Section 340 Cr.P.C. The opposite party no. Finally, it was sought to be urged that cognizance was bad in view of Section 195(1)(b)(ii) Cr.P.C. read with Section 340 Cr.P.C. The opposite party no. 2 had a remedy of instituting an application under Section 340 Cr.P.C., in the event the alleged receipt is a forged document. The contention is untenable for the reason that Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis (Refer- decision of the Constitution Bench rendered in Iqbal Singh Marwah and another Versus Meenakshi Marwah and another, 2005(4) SCC 370 . At this stage, I do not find any merit in the submission of learned counsel for the applicant. Learned Magistrate has not committed error in summoning the applicant to face trial. The petition being devoid of merit is accordingly dismissed.