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2021 DIGILAW 373 (MP)

Arti Chauhan v. State of Madhya Pradesh

2021-03-16

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. The present petition is being filed under Section 482 of Cr.P.C. seeking quashment of F.I.R. and other criminal proceedings initiated against the petitioner by respondent No. 2 in F.I.R. at Crime No. 238/2019 of Police Station Kotwali, District Gwalior, for the offence under Sections 420, 467, 468, 471 of IPC. 2. It is submitted that a complaint has been field by the respondent on 05.06.2019 before the Police Station Kotwali, District Gwalior against the petitioner on the basis of which present F.I.R. was got registered. It is pointed out that with respect to the dispute in question, the allegation which has been levelled against the petitioner is that he got executed a forged sale deed in his favour from the power of attorney and on that allegation, the F.I.R. was registered. It is pointed out that with respect to the sale deed in question a Civil Suit has already been filed in the year 2012 and the same is pending consideration. 3. The respondent No.2 on earlier occasion had tried to get registered an F.I.R. against the petitioner in the year 2016 but he was not successful in getting the F.I.R. registered, therefore, he preferred an application under Section 156(3) of Cr.P.C. which was heard and finally decided vide order dated 04.05.2017 and the complaint filed by the petitioner was not found to be genuine and was rejected by the trial Court vide order dated 04.05.2017. The aforesaid order was put to challenge by the petitioner by filing a Criminal Revision before the Sessions Court which was registered as Criminal Revision No. 281/2017 and after detailed arguments into the matter and after going through the records, the learned Sessions Judge has also dismissed the revision vide order dated 19.03.2018. No challenge was made to the aforesaid order by the petitioner and the same has attained finality. Thereafter, again by suppressing all the aforesaid material information the petitioner has preferred a complaint in the year 2019 and the Police authorities, P.S. Lashkar, Gwalior, has got an F.I.R. registered at Crime No. 238/2019 for offence under Sections 420, 467, 468, 471 of IPC. 4. Thereafter, again by suppressing all the aforesaid material information the petitioner has preferred a complaint in the year 2019 and the Police authorities, P.S. Lashkar, Gwalior, has got an F.I.R. registered at Crime No. 238/2019 for offence under Sections 420, 467, 468, 471 of IPC. 4. Counsel for the petitioner has drawn attention to the verbatim of the F.I.R. and has argued that from the perusal of the F.I.R. no offence under Sections 420, 467, 468, 471 of IPC is made against the petitioner as he is a bonafide purchaser of the property in question by paying the consideration amount he has purchased the property from one power of attorney holder Ramroop Singh Parihar. It is not disputed that the power of attorney holder has executed the sale deed in favour of the petitioner and consideration amount was already paid to the petitioner. Thus, no offence of cheating and making forgery in the documents is made out against the petitioner. 5. It is further alleged in the F.I.R. that petitioner has not taken due care and caution to get the enquiry done prior to getting the sale deed executed. In such circumstances, the aforesaid offences is made out against the petitioner but the fact remains that no act has been reflected from the F.I.R. which could entail the act of the petitioner to fall under the purview of Sections 420, 467, 468, 471 of IPC. It is further argued that a civil case is tried to be given a colour of criminal case and such act of the registration of the F.I.R. against the petitioner clearly amounts to abuse of process of law as the respondent No. 2 is well aware of the civil proceedings pending before the authorities and even after dismissal of its private complaint and subsequent criminal revision by suppressing all the aforesaid material information to get the F.I.R. registered against the petitioner. In such circumstances, the F.I.R. deserves to be quashed. 6. He has relied upon a judgment passed by Hon'ble Supreme Court in the case of Mohd. Ibrahim and Others Vs. State of Bihar and Others as reported in (2009) Vol. In such circumstances, the F.I.R. deserves to be quashed. 6. He has relied upon a judgment passed by Hon'ble Supreme Court in the case of Mohd. Ibrahim and Others Vs. State of Bihar and Others as reported in (2009) Vol. 8 SCC 751 and has argued that exactly in similar circumstances, the Hon'ble Supreme Court has quashed the F.I.R. holding that no offence of cheating are made out against the petitioners and once it is established that no offence of cheating is made out then the subsequent offences are not made out against the petitioners also. 7. He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case Rajib Ranjan and Others Vs. R. Vijaykumar as reported in (2015) I SCC 513 whereby the Supreme Court has considered the aspect of abuse of process of and converting civil case into criminal proceedings and has quashed the criminal proceedings registered against the petitioner. The present case also a civil proceedings are already pending consideration and despite of the same the criminal case has been registered against the petitioner. In such circumstances, he has prayed for quashment of the F.I.R. and subsequent proceedings in pursuance to the F.I.R. 8. Per contra, counsel appearing for the complainant as well as the counsel for respondent/State submit that investigation is pending in the matter and pending investigation, F.I.R. should not be quashed. State counsel has relied upon a judgment passed by the Hon'ble Supreme Court in the case of Kamaladevi Agrawal Vs. State of West Bengal and Others as reported in (2002) 1 SCC 555 and has argued that inherent powers under Section 482 of Cr.P.C. should be exercised sparingly. When the Police authority has found that a prima facie case is made out against the present petitioner then pending investigation atleast the F.I.R. should not be quashed. It has further argued that there are specific allegations against the present petitioner of getting a sale deed executed in his favour from an incompetent person. The matter is still to be investigated by the authorities. In such circumstances, pending investigation, F.I.R. should not be quashed. They prayed for dismissal of the petition. 9. Heard the learned counsel for the parties and perused the record. 10. The matter is still to be investigated by the authorities. In such circumstances, pending investigation, F.I.R. should not be quashed. They prayed for dismissal of the petition. 9. Heard the learned counsel for the parties and perused the record. 10. From the perusal of the records it is seen that the admitted position is that a Civil Suit is already pending between the parties with respect to the question in sale deed on the basis of which the petitioner has purchased the property from the power of attorney holder. The complaint under Section 156(3) of Cr.P.C. filed by the petitioner has already been rejected by the trial Court vide its order dated 04.05.2017 after due scrutiny into the matter and recording of statements. The revision filed against the aforesaid order has already been rejected vide order dated 19.03.2018 passed in Criminal Revision No. 281/17. The order passed in the Criminal Revision dated 19.03.2018 has not been put to challenge at any point of time and the same has attained finality. Now, again by suppressing all these facts an F.I.R. has been registered against the petitioner by respondent No. 2 by filing a complaint at Police Station Kotwali, Lashkar Gwalior on 05.06.2019. 11. From the perusal of the F.I.R. there is no disclosure with respect to the earlier proceedings which has been initiated by the petitioner and has already been rejected by the competent Court. The aforesaid proceedings have already attained finality after passing of the order in the year 2018 as there is no challenge to the aforesaid order. The Hon'ble Supreme Court in the case of Mohd. Ibrahim (supra) has held as under:- "12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of 'false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted Section 420 IPC 14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code." 12. The Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal as reported in 1992 Supp.(1) SCC 34 has framed guidelines for exercise of power under Section 482 of Cr.P.C. for quashment of criminal proceedings. The same are as under:- "(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. (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 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 Act concerned (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 Act concerned, 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." 13. Hon'ble Supreme Court in the case of Indian Oil Corporation Vs. NEPC India Ltd. as reported in (2006) 3 SCC (Cri.) 188 wherein the Court has adversely commented upon this tendency of filing the criminal complaints even in cases relating to commercial transaction for which civil remedy is available and has held as under:- "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. 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 , this Court observed: (SCC p. 643, "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 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may." 14. Even in the case of Rajib Ranjan (supra), the Court has considered the aspects of filing of a criminal complaint by party after losing battle in civil litigation and has held that the aforesaid amounted to misuse and abuse of process of law. The Court has further observed that just to give colour of criminality to a civil case such proceedings are being initiated. The same is not permissible. The aforesaid amounts to clear abuse of process of law and proceedings should be quashed exercising inherent powers under Section 482 of Cr.P.C. 15. Even in the case of Inder Mohan Goswami Vs. The Court has further observed that just to give colour of criminality to a civil case such proceedings are being initiated. The same is not permissible. The aforesaid amounts to clear abuse of process of law and proceedings should be quashed exercising inherent powers under Section 482 of Cr.P.C. 15. Even in the case of Inder Mohan Goswami Vs. State of Uttaranchal as reported in (2007) Vol. 12 SCC 1, the Court has considered the scope and ambit of power of the High Court under Section 482 of Cr.P.C. and has held as under:- "23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases 25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved. 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. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. 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." 16. Thus, considering the overall facts and circumstances of the case and also the law laid down by the Hon'ble Supreme Court in the aforesaid cases, it is apparently clear that the inherent powers under Section 482 of Cr.P.C. can be exercised to stop the criminal proceedings which are clearly in abuse of process of law. In the present case the Civil proceedings are already initiated between the parties and pending consideration from the year 2012 itself. Thereafter in the year 2016, the proceedings under Section 156 (3) of Cr.P.C. were initiated by filing a complaint by respondent No. 2 which has already resulting into dismissal vide order dated 04.05.2017. In the present case the Civil proceedings are already initiated between the parties and pending consideration from the year 2012 itself. Thereafter in the year 2016, the proceedings under Section 156 (3) of Cr.P.C. were initiated by filing a complaint by respondent No. 2 which has already resulting into dismissal vide order dated 04.05.2017. The aforesaid order was challenged in revision registered as Criminal Revision No. 281/2017 and after going through the records and hearing the parties, the revision is already been dismissed on 19.03.2018 by suppressing all the aforesaid proceedings, the complaint is being made to the Police authorities, on the basis of which the F.I.R. has been registered. In such circumstances, the act of respondent No. 2 is clearly amounting to abuse of process of law and such acts are not permissible. The F.I.R. registered against the petitioner clearly goes to show that the same has been registered just to give the colour of criminality into a civil proceedings which are already pending. In such circumstances, the F.I.R. registered against the petitioner at Crime No. 238/2019 of Police Station Kotwali, District Gwalior for the offence under Sections 420, 467, 468, 471 of IPC and all subsequent proceedings in pursuance to the F.I.R. are hereby quashed. No order as to costs.