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2019 DIGILAW 848 (ALL)

UMESH DUBEY v. STATE OF U. P.

2019-04-04

DINESH KUMAR SINGH

body2019
JUDGMENT : Dinesh Kumar Singh, J. These cases were listed on 4th April, 2019. After hearing the parties, the cases were dismissed in open Court by observing "the petitions are dismissed, reasons to follow". In continuation of the aforesaid order, the reasons are supplemented. 2. These petitions under Section 482 Cr.P.C. have been filed for quashing of the charge sheet no.248 of 2011 dated 26.6.2011 in F.I.R. lodged at Case Crime No.5920 of 2009, under Sections 419, 420, 467, 468 and 471 IPC, Police Station Kotwali Nagar, District Faizabad with further prayer for quashing of the order dated 4.10.2011 passed by the Chief Judicial Magistrate, Faizabad taking cognizance in Criminal Misc. Case No.625 of 2011, under Sections 419, 420, 467, 468 and 471 IPC, Police Station Kotwali Nagar, District Faizabad. 3. The complainant Rajesh Dubey lodged an FIR at Case Crime No.5920 of 2009 alleging therein that he lives in Bungalow No.11-C, Kamgar Nagar, Kurla, Mumbai East. Father of the complainant had earned property worth crores in Mumbai and his original place of residence. His father had also transferred some properties in the name of uncle of the complainant. Uncle, Kamraj Dubey is a Lawyer by profession and is in legal practice at Jaunpur. Kamraj Dubey filed Case No.269 of 2003 in the court of Civil Judge (Senior Division), Faizabad and he himself impersonating late father of the complainant and in place of his mother, some other woman was brought before the Court and in place of the complainant, Dheeraj Dubey and in place of younger brother Yogesh Dubey, Umesh Dubey @ Guddu were brought before the Court and by forging the signatures of his late father, mother and brother and his signatures, they had usurped the property of several crores left by his father. These accused had also put his brother and mother's photo, which were attested by an Advocate Shiv Kumar Srivastava and on that basis forged compromise deed was prepared and in this manner they had been successful in transferring the properties of several crores in their name. It has also been alleged that late father of the complainant was in Mumbai from 2003 to 2005 in respect of his treatment at Ashirvad Hospital, Ghat Kooper, Mumbai and on 23.2.2005 he died. It has also been alleged that late father of the complainant was in Mumbai from 2003 to 2005 in respect of his treatment at Ashirvad Hospital, Ghat Kooper, Mumbai and on 23.2.2005 he died. Neither he nor his farther, nor his mother nor his brother had ever come to the Court at Faizabad nor they had signed any compromise or agreement of settlement. It was also alleged that the complainant's uncle Kamraj Dubey and his sons Dheeraj Dubey, Umesh Dubey and his friend Shiv Kumar Srivastava had impersonated complainant's mother, father and brother and him and have forged their signatures. On the aforesaid allegations, the FIR as mentioned above has been registered against the accused. 4. The police after thoroughly investigating the offence, has submitted the charge sheet as mentioned above against the accused. While taking cognizance and issuing summons by the Court vide order dated 4.10.2011, it has been held that allegations in the FIR clearly disclose the cognizable offence and the allegations are not of civil nature. It has been further held that the evidence available on record, prima facie, establishes the commission of offence by the accused. 5. Heard Sri Ravindra Kumar Dwivedi, learned counsel representing the petitioners and Sri S.P. Tewari, learned counsel representing the State. 6. Learned counsel representing the petitioners has submitted that no offence under Sections 419, 420, 467, 468 and 471 IPC is made out against the petitioners inasmuch as the petitioners were neither party in Regular Suit No.269 of 2003 nor in Regular Suit No.274 of 2009. The investigating officer had filed the charge sheet on 26.6.2011 without collecting the material and the impugned summoning order dated 4.10.2011 is illegal and arbitrary. He, therefore, submits that continuance of the proceedings against the petitioners, is an abuse of process of the Court and, therefore, liable to be quashed. 7. On the other hand, Sri S.P. Tewari, learned AGA submits that allegations in the FIR, prima facie, disclose the commission of offence by the accused named in the FIR. The police after investigation, has submitted the charge sheet. The trial court has considered all submissions and has opined that the material available on record, is sufficient for, prima facie, commission of offence by the accused and, therefore, it has taken cognizance and summoned them. The police after investigation, has submitted the charge sheet. The trial court has considered all submissions and has opined that the material available on record, is sufficient for, prima facie, commission of offence by the accused and, therefore, it has taken cognizance and summoned them. He, therefore, submits that the proceedings are neither an abuse of process of the Court nor of law nor any order is required to be passed by this Court to secure the ends of justice and, therefore, these petitions are without any merit and substance. 8. I have considered rival submissions of the parties carefully. 9. The power under Section 482 Cr.P.C. should be exercised sparingly in order to prevent the abuse of process of the Court and law and to secure the ends of justice. If the allegations in the FIR/complaint and the material placed before the Court, show commission of cognizable offence by the accused, the prosecution cannot be stiffled at the threshold by the High Court by exercising the inherent powers under Section 482 Cr.P.C. The allegations in the FIR, which have been noted above, clearly make out a, prima facie, case against the accused. The trial court has considered the material submitted along with the charge sheet and opined that there is sufficient material for taking cognizance against the accused. 10. It is well settled that the criminal proceedings cannot be quashed merely on the ground that there is civil dispute pending in respect of the subject matter. Merely because proceedings pending between the parties have civil element also, the High Court cannot exercise the power under Section 482 Cr.P.C. to quash the prosecution, if the offence is, prima facie, made out against the accused in the FIR or the complaint or the charge sheet, as the case may be. 11. Hon'ble the Supreme Court in the case of Kamladevi Agarwal vs. State of W.B. and others, (2002) 1 SCC 555 in paragraphs 7, 9, 15 and 17 held as under :- "7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction. In R.P. Kapur v. State of Punjab, (1960) AIR SC 866: 1960 Cri LJ 1239] this Court held: (AIR p. 869, para 6) "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person 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. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of the cases in which the inherent jurisdiction of High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an inquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point [vide: Shripad G. Chandavarkar, In re, (1928) AIR Bombay 184 : 29 Cri LJ 317], Jagat Chandra Mozumdar v. Queen Empress, (1899) 26 ILR(Cal) 786 : 3 CWN 491], Shanker Singh (Dr) v. State of Punjab, (1954) 56 PunLR 54 : AIR 1954 Punj 193], Nripendra Bhusan Ray v. Gobinda Bandhu Majumdar, (1924) AIR Calcutta 1018 : 25 Cri LJ 1258] and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar, (1924) 47 ILR(Mad) 722 : AIR 1925 Mad 39] ]. "9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in State of Haryana v. Bhajan Lal, (1992) Supp1 SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604 ] and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 : 1999 SCC (Cri) 401] this Court in Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 : 2000 SCC (Cri) 47] held: (SCC p. 690, paras 7-8) "7. Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal, (1992) Supp1 SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604 ] and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 : 1999 SCC (Cri) 401] ). 8. In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: (SCC p. 263, para 10) 10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. We quote the following observations: (SCC p. 263, para 10) 10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.' " 15. We have already noticed that the nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct. Whereas in civil proceedings the matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting the standard of proof of "beyond reasonable doubt". A Constitution Bench of this Court, dealing with similar circumstances, in M.S. Sheriff v. State of Madras, (1954) AIR SC 397 : 1954 Cri LJ 1019] held that where civil and criminal cases are pending, precedence shall be given to criminal proceedings. Detailing the reasons for the conclusions, the Court held: (AIR p. 399, paras 15-16) "15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. 16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished." 17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings." 12. Further, Hon'ble Supreme Court in the case of Sau Kamal Shivaji Pokarnekar v. State of Maharashtra,2019 SCCOnlineSC 182, has held that at the time of taking cognizance and summoning the accused, the Magistrate is required only to apply his judicial mind to find out as to whether, prima facie, case is made out for summoning the accused or not. The merit of the material or evidence in support of the complaint at this stage, is not required to be evaluated. Paragraphs 5 and 6 of the aforesaid judgement are extracted herein below:- "5. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not. 6. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere." 13. It is also well established that while exercising the powers under Section 482 Cr.P.C., this Court cannot look at the materials furnished by the defence nor it can go into the disputed questions of fact. 14. Hon'ble Supreme Court in the case of Ravindra Kumar Madhaanlal Goenka and another v. Rugmini Ram Raghav Spinners Private Limited, (2009) 11 SCC 529 in paragraphs 16 and 18 held as under :- "16. This Court in Indian Oil Corpn. v. NEPC India Ltd, (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] at pp. 747-48 has observed as under: (SCC para 12) "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. v. NEPC India Ltd, (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] at pp. 747-48 has observed as under: (SCC para 12) "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) Supp1 SCC 335 : 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 : 1995 SCC (Cri) 1059], CBI 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) 1 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. (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." 18. While entertaining a petition under Section 482 CrPC, the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is a well-settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases." 15. Hon'ble Supreme Court in the case of B. Jagdish and another v. State of Andhra Pradesh and another, (2009) 1 SCC 681 , has held that at the stage of quashing of an order taking cognizance, the accused cannot be permitted to use the material which would be available to him at the stage of his defence. Paragraph 24 of the aforesaid judgement is extracted herein under :- "24. Paragraph 24 of the aforesaid judgement is extracted herein under :- "24. The question is as to whether the High Court should have interfered with the order summoning the appellant at this stage? It is now a well-settled principle of law that at the stage of quashing of an order taking cognizance, an accused cannot be permitted to use the material which would be available to him only as his defence. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. The jurisdiction of the courts, at this stage, is limited as whether a case of reckless/gross negligence has been made out or not will depend upon the facts of each case." 16. Hon'ble Supreme Court in the recent judgment in the case of Md. Allauddin Khan v. The State of Bihar and others, Criminal Appeal No.675 of 2019, vide judgement and order dated 15.4.2019, has reiterated that mere pendency of civil suit is not an answer as to the question whether the offence under Sections of IPC is made out against the accused or not. Paragraphs 14, 15 and 17 of the aforesaid judgement are extracted herein below:- "14. The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not. 15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable. 17. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable. 17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." 17. Thus, considering the allegations in the FIR, charge sheet and the material placed along with the charge sheet, this Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. cannot quash the charge sheet, order of taking cognizance and summoning order. 18. Both the petitions being without any merit and substance, are hereby dismissed.