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Monday, December 17, 2012

Quash of an offence under Sections 406, 420, 467, 468, 471, 447, 448 read with Section 34 of the Indian Penal Code (for short “the IPC”).Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2’s attempt to file similar complaint against the appellant having failed, he has filed the present complaint. The appellant has been acquitted in another case filed by respondent 2 against him alleging offence under Section 406 of the IPC. Possession of the shop in question has also been handed over by the appellant to respondent 2. In such a situation, in our opinion, continuation of the pending criminal proceedings would be abuse of the process of law. = the impugned order dated 29/9/2011 passed by the Uttarakhand High Court is set aside. The entire proceedings of Criminal Case No. 723/2005 (charge-sheet No. 32/2005), and the order of cognizance dated 22/3/2005 passed thereon by the Judicial Magistrate, Khatima, District Udham Singh Nagar against the appellant, respondents 3 and 4 and against accused Rajpal for the offences punishable under Sections 406, 420, 467, 468, 471, 447, 448 read with Section 34 of the IPC are quashed and set aside. This order will however have no effect on the pending civil suit between the parties. Needless to say that the court, seized of the said suit, shall decide it independently and in accordance with law.


                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2069 OF 2012
       (ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 7720 OF 2011)



PARAMJEET BATRA                         …    APPELLANT

                                   Versus

STATE OF UTTARAKHAND & ORS.       …     RESPONDENTS


                                  O R D E R

      Leave granted.

2.    The appellant, respondents 3, 4 an  one  Rajpal  are  the  accused  in
Criminal Case No. 723 of 2005 (charge-sheet  No.  32/2005)  pending  on  the
file of the  Judicial  Magistrate,  Khatima,  District  Udham  Singh  Nagar.
Respondent 2 is the complainant.
The appellant  and  respondents  3  and  4
filed a petition under Section 482 of the Code of  Criminal  Procedure  (for
short “the Code”) in the High Court of Uttarakhand at Nainital for  quashing
of the above mentioned proceedings  and  for  quashing  of   the  order   of
cognizance dated 22/3/2005  passed   thereon  by  the  Judicial  Magistrate,
Khatima against the  appellant  and  the  other  accused  for  the  offences
punishable under Sections 406, 420,  467,  468,  471,  447,  448  read  with
Section 34 of the Indian Penal Code (for short “the IPC”).  By  order  dated
29/09/2011 Uttarakhand High Court dismissed the  said  petition.   The  said
order is impugned in this appeal.


3.     Respondent 2 filed a complaint against the appellant, respondents  3,
4 and five others at Police Station Kotwali Khatima,  District  Udham  Singh
Nagar on 4/1/2005.  Respondent 2 inter alia alleged in  the  complaint  that
he had let out two shops situate in Khatima market to Rajpal Singh on  fixed
written conditions.  After Rajpal Singh vacated the shops he wanted  to  run
chicken corner in the said shops.  He appointed  the  appellant  as  Manager
and invested Rs.10,000/- for purchasing  raw  materials.  Written  agreement
was prepared containing fixed terms and conditions.  The business picked  up
and started fetching profit of Rs.1,000/- to Rs.1,500/-  per day.  According
to respondent 2, the appellant conspired with others to grab the  shop.   He
filed a civil suit claiming tenancy.   He  did  not  give  accounts  of  the
profit.  The appellant and other accused prepared false documents and  filed
them in the court.  According to respondent 2, they threatened him  that  if
he does not take monthly rent of Rs.750/- he would be killed.  He  has  been
told that  if  he  gives  Rs.3  lakhs  then  they  would  vacate  the  shop.
Respondent 2’s further case in  the  complaint  is  that  the  accused  have
grabbed two years’ income and materials worth  Rs.50,000/.  They  have  also
misappropriated an amount of Rs.10,000/- which was given to them in cash  by
him. According to respondent 2, accused have forcibly  taken  possession  of
the shop.  After conclusion of investigation, charge-sheet was forwarded  to
the  Judicial  Magistrate,  Khatima,  who  took   cognizance   against   the
appellant, respondents 3 and 4 and one Rajpal.
4.    Learned  counsel  for  the  appellant  submitted  that  the  complaint
discloses civil dispute.   A civil suit has  been  filed  by  the  appellant
making similar grievance.  It is pending.  Since the Civil Court  is  seized
of the dispute, the High Court should have quashed the complaint.

5.    It is necessary to  note  here  that  office  report  dated  22/8/2012
indicates that the contesting respondent i.e. respondent 2 was  directed  to
be  served  through  Resident  Commissioner  vide  Registrar’s  order  dated
5/12/2011. He has accordingly been served.  He has, however,  neither  cared
to appear in-person nor has he engaged any counsel. We,  therefore,  proceed
to deal with the submissions of counsel for the appellant.

6.    Though the complaint attributes forgery and fabrication  of  documents
to the appellant and  other  accused  and  states  that  the  appellant  has
grabbed the profit of the running business and threatened respondent  2,  it
appears to us to  be  essentially  a  civil  dispute.   Basic  grievance  of
respondent 2 is that the  appellant  has  not  given  him  accounts  of  the
business. Respondent 2 has made a reference to the written  agreement  under
which the appellant was appointed as Manager to manage  his  business.   The
appellant has annexed a copy of the agreement dated 1/1/2002 to the  appeal.
The agreement discloses that the appellant was to receive  25%  of  the  net
profit as salary.  The agreement also  notes  that  the  appellant  received
Rs.10,000/- in cash for the purchase  of  raw  materials.   Admittedly,  the
appellant has filed Civil Suit No.  23/2002  against  respondent  2  in  the
court of Civil Judge, (Jr. Div.), Khatima for permanent injunction  claiming
that he is a tenant of the shop in question.  In  that  suit,  he  filed  an
application for  temporary  injunction.   Copy  of  order  dated  22/12/2004
passed on that application ordering  status  quo  is  also  annexed  to  the
appeal. The order indicates that the appellant and respondent 2  have  filed
documents in the said suit.   While granting status  quo  order,  the  trial
court has observed that the said documents will have to  be  proved  by  the
appellant and respondent 2 and, hence, it is necessary  to  maintain  status
quo during pendency of the suit.  In  the  complaint,  it  is  the  case  of
respondent 2 that this suit has  been  filed  on  the  basis  of  fabricated
documents.  It is categorically stated on affidavit by  the  appellant  that
the said suit is still pending.  If the said suit  is  still  pending,  then
the grievance made by respondent 2 that the documents on which  reliance  is
placed by the appellant are not genuine   and  are  forged  and  fabricated,
will be considered by the Civil Court.  It is also significant to note  that
prior to the filing of this complaint, respondent 2 tried to  lodge  an  FIR
against the appellant by moving an application under Section 156(3)  of  the
Code.  But the said application was dismissed on 6/5/2004.  We  notice  from
the impugned order that a separate case under Section 406  of  the  IPC  was
filed by respondent 2 against the  appellant  in  which  the  appellant  was
acquitted on 9/2/2009.  It is further significant  to  note  that  statement
was made on  behalf  of  the  appellant  before  the  High  Court  that  the
appellant has vacated the shop in question and  handed  over  possession  to
respondent 2.  In the peculiar facts of the case, therefore, we are  of  the
opinion that in the interest of justice, the  pending  criminal  proceedings
need to be quashed.  We have taken serious note of the fact that  respondent
2 did not appear before the High Court to refute the case of the  appellant.
 He has also not chosen to appear before us though served. Probably  because
the possession of the shop is handed over to him, he is  not  interested  in
prosecuting the appellant and others.

7.    While exercising its jurisdiction under Section 482 of  the  Code  the
High Court has to be cautious.  This power is to be used sparingly and  only
for the purpose  of  preventing  abuse  of  the  process  of  any  court  or
otherwise to secure  ends  of  justice.
Whether  a  complaint  discloses  a
criminal offence or not depends upon the nature of  facts  alleged  therein.
Whether essential ingredients of criminal offence are present or not has  to
be judged by the High Court. A complaint disclosing civil  transactions  may
also have a criminal texture.   But  the  High  Court  must  see  whether  a
dispute which is essentially of a civil nature is given a cloak of  criminal
offence. In such a situation, if a civil remedy  is  available  and  is,  in
fact, adopted as has happened in  this  case,  the  High  Court  should  not
hesitate to quash criminal  proceedings  to  prevent  abuse  of  process  of
court.

8.    As we have already noted, here 
the dispute is  essentially  about  the
profit of the hotel business and its  ownership.
The  pending  civil  suit
will take care  of  all  those  issues.   
The  allegation  that  forged  and
fabricated documents are used by the appellant can also  be  dealt  with  in
the said suit.  
Respondent 2’s attempt to  file  similar  complaint  against
the appellant having failed,  he  has  filed  the  present  complaint.   
The
appellant has been acquitted in another case filed by respondent  2  against
him alleging offence under Section 406 of the IPC.  
Possession of  the  shop
in question has also been handed over by the appellant to respondent 2.   
In
such a situation, in our  opinion,  continuation  of  the  pending  criminal
proceedings would be abuse of the process of law.  The High Court was  wrong
in holding otherwise.
9.    In the circumstances, the impugned order  dated  29/9/2011  passed  by
the Uttarakhand  High  Court  is  set  aside.
The  entire  proceedings  of
Criminal Case No. 723/2005 (charge-sheet No.  32/2005),  and  the  order  of
cognizance dated  22/3/2005  passed  thereon  by  the  Judicial  Magistrate,
Khatima, District Udham Singh Nagar against  the  appellant,  respondents  3
and 4 and against accused Rajpal for the offences punishable under  Sections
406, 420, 467, 468, 471, 447, 448 read  with  Section  34  of  the  IPC  are
quashed and set aside.
This order  will  however  have  no  effect  on  the
pending civil suit between the parties.  
Needless to  say  that  the  court,
seized of the said suit, shall decide it  independently  and  in  accordance
with law.

10.   The appeal is disposed of in the aforestated terms.



                                                       ……………………………………………..J.
                                (AFTAB ALAM)


                                                       ……………………………………………..J.
                                                     (RANJANA PRAKASH DESAI)

NEW DELHI,
DECEMBER 14, 2012.