Section 482 of the Cr.P.C:-

 

INHERENT POWER OF THE HIGH COURT

 Criminality In Civil Disputes

I. PRELUDE:-

• The world which was once the place for the survival of the fittest has now become the place for the mightiest and powerful. Though on one side the modern mankind is racing on digital civilization bringing the entire world to their palm on another side their animalic, sadist and greedy desire to become rich has become the root cause for so many litigations and the courts are flooded with all types of cases starting from the fight for the birth rights, guardianship, matrimonial and ending with fight for a place in the graveyard.
• As the civil disputes concerned with the property right consume longer time and mostly end only with the third generation lawyer and the third generation legal heir, the litigants approach the police stations to see that a criminal case is registered against the persons who unlawfully or lawfully interfere with their enjoyment and possession of their person or property characterizing them as trespassers and the encroachers with an intention to threaten them and drive them to arrive at an amicable settlement quickly.
• As the criminal case would always involve the interference of the police and the registration of the criminal cases against the alleged intruders and trespassers, the consequential arrest, and ignomy they may either come for compromise or choose to prefer the quash petition under Section 482 of the Code of Criminal Procedure, 1973.
• In case the police refuses to entertain the complaint taking note of the status of the persons against whom the complaint is given, then the affected party after forwarding a petition to the Superintendent of Police would invoke the jurisdiction of the High Courts for the registration of the criminal case.
• Thus, on one side the persons against whom the criminal complaint is given do rush to the High Court to get the anticipatory bail and then file a petition under Section 482 of the Cr.P.C. for getting the complaint quashed on the ground that it has arisen out of a civil or commercial or contractual transaction and on another side the complainants approach the High Court seeking for direction to direct the police authorities to take action on their complaint in case of failure to take any action by the police on such a complaint. This fight for the right by using the State Machinery is the cause for most of the criminal cases in the High Court.

 

• The Hon’ble Apex Court in its latest judgment on 10.03.2021 in Priti

Saraf and Another -Vs- State of NCT of Delhi and Another reported in

2021 SCC Online SC 206 at para 24 has described in its own style as follows:-

“24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.”

7) After observing so the Hon’ble Apex Court at para 28 of this judgment has held as follows:-

 “28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”   8) The position of the courts to face such a type of legal fight between the parties, i.e. one prays for direction to put the criminal law on motion and another prays for nullifying the same on the ground of civil law remedy is really sympathetic as they are invited to judge the veracity of the complaint even at the initial stage without any sufficient materials before them. In fact, the words of Hon’ble Mr. Justice M.M. Sundaresh in Satender Kumar Antil

Vs. CBI reported in (2022) 10 SCC 51 as quoted below may be quoted here:-

“Human liberty is a precious constitutional value, which is undoubtedly  subject to regulation by validly enacted legislation….. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum—the district judiciary, the High Courts and the Supreme Court—to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum—the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.”

 

9) Thus the Conscience oriented Courts do face a difficult job to see that an innocent should not be penalized and at the same time the criminal should not be allowed to escape on technical plea and thereby impeach the confidence of the common people on our judicial system.

 

 

II.  CASE LAWS:-

• A Constitution Bench of the Hon’ble Apex Court, dealing with similar situation, in S. Sheriff Vs. State of Madras reported in AIR 1954 SC 397 = 1954 Cri LJ 1019, held categorically as follows:-

  “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 ban. 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 glide 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 hear its end as to make it inexpedient to stay it in order to give precedence to a prosecution order of 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.”

• In Krishnan Vs. Vijay Singh reported in (2001) 8 SCC 645 =

2002 SCC (Cri) 275, the Hon’ble Apex Court has said that the High Court should be slow in interfering with the proceedings in the beginning stage and simply because of the nature of the dispute involving civil nature also the criminal proceedings can not be quashed as in most of the criminal cases like cheating, fraud, criminal breach of trust, trespass and forgery, there is an element of civil nature gets involved.

• In that case it was contended that the dispute was purely of a civil nature and there can not be any criminal complaint at all as the document said to have been forged was the subject matter of the civil suit pending between the parties. The Hon’ble Apex Court while declining to accept such a contention has held as follows at pp 647-48:-

    “5. Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have   to   be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of.”

 

• In yet another case in Medical Chemicals & Pharma (P) Ltd Vs. Biological E. Ltd reported in (2000) 3 SCC 269 at pp 272 and 278, paras 2 & 14, the Hon’ble Apex Court has held as follows:-

“2. Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law.

14. Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint.”

 

• Like that in another case in Mahesh Chaudhary Vs. State of Rajasthan reported in (2009) 4 SCC 439 at p.445 at para 16 reproducing what is said in Kalyani Vs. Janak C. Mehta reported in (2009) 1 SCC 516 = (2009) 1 SCC (Cri) 567 = (2008) 14 Scale 85, the Apex Court has held as follows:-

“16. Recently in R. Kalyani v. Janak C. Mehta [(2009) 1 SCC 516 : (2009) 1 SCC (Cri) 567 : (2008) 14 Scale 85] this Court laid down the law in the following terms: (SCC p. 523, paras 15-16)

• Propositions of law which emerge from the said decisions are:
  • 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.
  • For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
  • 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.
  • 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 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.”

 

17. The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the investigating officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders. We, however, must place on record that before us Mr Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled.

 

18. In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in the event the appellant appears before the learned Magistrate within a period of four weeks from date and files an application for grant of bail, he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper. In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant.
19. Subject to the aforementioned directions, the appeal is dismissed.”

  15) In the same line of thought in Arun Bhandari Vs. State of U.P. reported in (2013) 2 SCC 801 at p.811 at paras 21, 22, 23, 24, the Hon’ble Apex Court has held as follows:-

“21. Before we proceed to scan and analyse the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A. Pareed Pillai [(1972) 3 SCC 661 : 1972 SCC (Cri) 705 : AIR 1973 SC 326] a two-Judge Bench ruled that: (SCC p. 667, para 16)

“16. … To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfil the promise.”

22. In V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693 : 2000 SCC (Cri) 733] this Court has held thus: (SCC pp. 696-97, para 7)

“7. As mentioned above, Section 415 has two parts. While in the first part, the person must ‘dishonestly’ or ‘fraudulently’ induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 575 : 1956 Cri LJ 1116] a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, ‘mens rea’ on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724 : 1954 Cri LJ 1806] that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.”

 

23. In W. Palanitkar v. State of Bihar [(2002) 1 SCC 241 : 2002 SCC (Cri) 129 : AIR 2001 SC 2960] it has been laid down that: (SCC
24. 250, para 21)

“21. … In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.”

  

24. In the said case while dealing with the ingredients of criminal breach of trust and cheating, the Bench observed thus: (S.W. Palanitkar case [(2002) 1 SCC 241 : 2002 SCC (Cri) 129 : AIR 2001 SC 2960] , SCC p. 246, paras 9-10)

“9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.

10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) in cases covered by, (ii)(b) the act of omission should be one

which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.”

 

• Again at para 26 at Pp.813-814 the Hon’ble Apex Court has unequivocally has held as follows:-

26. At this stage, we may usefully note that sometimes a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. In this context, we may reproduce a passage from Mohd. Ibrahim v. State of Bihar [(2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] : (SCC p. 754, para 8)

  “8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] and Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] )”

 

• The Hon’ble Apex Court in Ravikumar Vs. State reported in

(2019) 14 SCC 568 at pp.574-576 at paras 22 to 26 after referring to the case of Bhajan Lal reported in 1992 Supp (1) SCC 335 = 1992 SCC (Cri) 426 where even 3 decades before the Hon’ble Apex Court has issued certain guidelines has held as follows:-

22. In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 : 2005 SCC (Cri) 283] this Court referred to State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and summarised and illustrated the category of cases in which power under Section 482 of the Criminal Procedure Code could be exercised. This Court observed and held : (Zandu Pharmaceutical Works Ltd. case [Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 : 2005 SCC (Cri) 283] , SCC p. 129, para 11)

“11. … ‘102. (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.

• 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.
• 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.
• 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(2) of the Code.
• 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.
• 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.
• 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. (Bhajan Lal case [State of Haryana Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , SCC pp. 378-79, para 102)’”

  

23. There can be no doubt that a mere breach of contract is not in itself a criminal offence, and gives rise to the civil liability of damages.

However, as held by this Court in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] , the distinction between mere breach of contract and cheating, which is a criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In this case, in the FIR, there were allegations of fraudulent and dishonest intention including allegations of fabrication of documents, the correctness or otherwise whereof can be determined only during trial when evidence is adduced.

  

24. Exercise of the inherent power of the High Court under Section 482 of the Criminal Procedure Code would depend on the facts and circumstances of each case. It is neither proper nor permissible for the Court to lay down any straitjacket formula for regulating the inherent power of the High Court under Section 482 CrPC.

  

25. Power under Section 482 CrPC might be exercised to prevent abuse of the process of law, but only when, the allegations, even if true, would not constitute an offence and/or were frivolous and vexatious on their face.

  

26. Where the accused seeks quashing of the FIR, invoking inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. Reference may be made to the decision of this Court, inter alia, in State of Punjab Subhash Kumar [State of Punjab v. Subhash Kumar, (2004) 13 SCC 437 : (2006) 1 SCC (Cri) 324] and Janata Dal v. H.S. Chowdhary [Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 : 1993 SCC (Cri) 36] .

 

18) In Devendra Prasad Singh Vs. State of Bihar reported in

(2019) 4 SCC at p 351 the Hon’ble Apex Court at paras 6 to 12 has held as follows:-

“6. The High Court quashed the complaint essentially on two grounds; First, no sanction under Section 197 CrPC was obtained by the prosecution for filing the complaint against Respondent 2 and the second, there are contradictions in the statement of the complainant and the witnesses.

7. In our view, both the grounds, which found favour with the High Court for quashing the complaint, are not well founded and hence legally unsustainable.
8. So far as the first ground is concerned, we have perused the complaint filed by the appellant against Respondent 2. Having regard to the nature of the allegations made by the complainant against Respondent 2, who was the Police Officer (SHO) at the relevant time, we are of the view that no prior sanction to prosecute Respondent 2 under Section 197 CrPC was required for filing such complaint.
9. In other words, it cannot be contended that Respondent 2 committed the alleged offences while acting in discharge of his official duties or while purporting to act in discharge of his official duties so as to attract the rigor of Section 197 CrPC.

  

10. In our view, in order to attract the rigor of Section 197 CrPC, it is necessary that the offence alleged against a government officer must have some nexus or/and relation with the discharge of his official duties as a government officer. In this case, we do not find it to be so.

  

11. So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 CrPC had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against Respondent 2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the appellate court while deciding the appeal arising out of the final order passed by the trial court but not in Section 482 CrPC proceedings.

  

12. In view of the foregoing discussion, we allow the appeal, set aside the impugned order [Umesh Kumar v. State of Bihar, Criminal Miscellaneous No. 35751 of 2014, order dated 9-8-2017 (Pat)] and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.”

 

• Again in Allauddin Khan Vs. State of Bihar reported in (2019) 6 SCC 107 at pp.109 & 110, while dealing with a civil dispute -vs- criminal element the Apex Court has held as follows:-

8. On perusal of the impugned order [Prem Prakash Gupta State of Bihar, 2017 SCC OnLine Pat 3618] , we find that it suffers from two errors.

  

9. First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint prima facie make out the offences falling under Sections 323 and 379 read with Section 34 IPC or not. Instead the High Court in para 6 gave importance to the fact that since there was a dispute pending between the parties in the civil court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the parties. It is on this ground, the High Court proceeded to quash the complaint. This approach of the High Court, in our view, is faulty.

  

10. Though the High Court referred to the law laid down by this

Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] but failed to apply the principle laid down therein to the facts of this case.

  

11. 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 and 379 read with Section 34 IPC is made out against Respondents 2 and 3 or not.

  

12. The High Court should have seen that when a specific grievance of the appellant in his complaint was that Respondents 2 and 3 have committed the offences punishable under Sections 323 and 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 cognizance 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 [Prem Prakash Gupta State of Bihar, 2017 SCC OnLine Pat 3618] is legally unsustainable.

  

13. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

  

14. 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 “CrPC”) 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.

  

15. It is due to these two errors, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court for quashing the complaint filed by the appellant against Respondents 2 and 3 is not legally sustainable and hence it deserves to be set aside.”

 

• In CBI Vs. Arvind Khanna reported in (2019) 10 SCC 686 at pp.692 to 693 at paras 17 to 21, the Apex Court has chosen to set aside the order of the High Court on the ground that the High Court ought not to have rendered the findings on several disputed questions of facts in the following words:-

“17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order [Arvind Khanna v. CBI, 2015 SCC OnLine Del 13651 : (2015) 153 DRJ 350] passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.

  

18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for.

  

19. From a reading of the impugned order [Arvind Khanna CBI, 2015 SCC OnLine Del 13651 : (2015) 153 DRJ 350] , it appears that the High Court has proceeded on the premise that the appellant has admitted the receipt of foreign contribution from his father Mr Vipin Khanna, who is an Indian passport holder. In fact, it is not so. It is a case of the appellant CBI, that the foreign contributions were received by the respondent from different entities in the foreign country, without permission from the Government. On the other hand, the case of the respondent, in defence, is that he has received such funds from his father Mr Vipin Khanna. The High Court has taken into consideration the statement, alleged to have been made by Mr Vipin Khanna on 11-7-2006 and one of the statements given on behalf of one of the entities by the name “New Heaven Nominees”. It is a defence of the respondent that the foreign entities which have sent the funds to the respondent are from available funds, standing to the credit of the respondent’s father, Mr Vipin

Khanna.

  

20. The correctness of the defence whether such amounts were received by the respondent from his father or not is a serious factual dispute. It is not an admitted position, as recorded by the High Court. The correctness of the defence of the respondent is to be gone into only after appreciating the evidence during the trial. Merely, by referring to statements alleged to have been made by father of the respondent, Mr Vipin Khanna, and also on behalf of one of the entities i.e. New Heaven Nominees, the High Court has committed an error in recording a finding in favour of the respondent. The High Court also committed an error in observing that, even otherwise, there is material to show that funds were indeed a gift from father of the respondent and the prosecution has neither disputed the said fact as false nor alleged that the funds in question did not belong to the father of the respondent.

The said observation made by the High Court is also contrary to the record.

  

21. When it is mainly the defence of the respondent that the funds were received from his father, burden is on him to prove that he received such funds from his father, as such, no permission was required. Even with regard to applicability of provisions under FCRA, 1976, findings are to be recorded after trial.”

• In Lakshman Vs. State of Karnataka reported in (2019) 9 SCC 677 at pp 680 & 681 at para 8 has held that the mere filing of the suits for recovery of the money and the complaint filed under Section 138 of the Negotiable Instrument Act are no grounds by themselves to quash the proceedings in the following words:-

  “8. It is not seriously disputed by the parties with regard to the  entering of the agreements for procuring the land in favour of the appellant in Ballur Village, Anekal Taluk, Bangalore Urban District and the respondents have received the amount of Rs 9 crores by way of demand drafts and cheques. It is the specific case of the appellant that there are schedules mentioned to the agreements as per which the respondents have agreed to procure the land covered by Survey Nos. 115 and 117 of Ballur Village apart from other lands. In a petition under Section 482 CrPC it is fairly well settled that it is not permissible for the High Court to record any findings, wherever there are factual disputes. Merely on the ground that there is no pagination in the schedule, the High Court has disbelieved such schedule to the agreements. It is the specific case of the appellant that the lands covered by Survey Nos. 115 and 117 of Ballur Village were sold even prior to the first agreement, as such the respondents have committed an act of cheating. It is also the specific case of the appellant that two cheques were issued by the respondent-accused by way of security for the amount of Rs 9 crores which is advance but the account of such cheques was closed even prior to entering into the agreement itself. The second complaint filed by the appellant is selfexplanatory and he is forcefully made to sign the sale deed which were executed subsequently for the lands covered by Survey Nos. 115 and 117 of Ballur Village. Mere filing of the suits for recovery of the money and complaint filed under Section 138 of the NI Act by itself is no ground to quash the proceedings in the complaints filed by the appellant herein. When cheating and criminal conspiracy are alleged against the accused, for advancing a huge sum of Rs 9 crores, it is a matter which is to be tried, but at the same time the High Court has entered into the disputed area, at the stage of considering the petitions filed under Section 482 CrPC. It is fairly well settled that power under Section 482 CrPC is to be exercised sparingly when the case is not made out for the offences alleged on the reading of the complaint itself or in cases where such complaint is filed by way of abuse of the process. Whether any schedules were appended to the agreement or not, a finding is required to be recorded after full-fledged trial. Further, as the contract is for the purpose of procuring the land, as such the same is of civil nature, as held by the High Court, is also no ground for quashing. Though the contract is of civil nature, if there is an element of cheating and fraud it is always open for a party in a contract, to prosecute the other side for the offences alleged. Equally, mere filing of a suit or complaint filed under Section 138 of the NI Act, 1881 by itself is no ground to quash the proceedings. While considering the petition under Section 482 CrPC, we are of the view that the High Court also committed an error that there is a novation of the contract in view of the subsequent agreement entered into on 8-11-2012. Whether there is novation of contract or not and the effect of such entering into the contract is a matter which is required to be considered only after trial but not at the stage of considering the application under Section 482 CrPC.”

 

• On the same point of the civil proceedings -versus- criminal proceedings the Hon’ble Apex Court in Jagadish –Vs- Udayakumar G.S & another reported in (2020) 14 SCC 552 at P.555 at Para 9 has held as follows:-

“7. It is true that civil proceedings have been subsequently initiated to get the registered sale deed set aside but that has nothing to do with the present criminal proceedings.

8. It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law.
9. In Pratibha Rani v. Suraj Kumar [Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370 : 1985 SCC (Cri) 180] this Court summed up the distinction between the two remedies as under : (SCC pp. 382-83, para 21)

“21. … There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.””

• The Hon’ble Apex Court in Priti Saraf and Another Vs. State of NCT of Delhi and Another reported in 2021 SCC Online SC 206 at paras 30 to 34 has elaborately discussed the issue and held as follows:-

“30. In the instant case, the complaint/FIR/charge-sheet as noticed above, does, however, lend credence to the questions posed. It is settled that one is not supposed to dilate on this score, or intend to present that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this stage, as noticed above, whether the allegations in the complaint were true is to be decided on the basis of the evidence led at the stage of trial and the observations on this score in the case of Nagpur Steel & Alloys Pvt. Ltd. v. P. Radhakrishna19 ought to be noticed. In para 3, this Court observed:—

“3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously.”

31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.
32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.
33. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the Courts below and have taken into consideration the material on record. After hearing learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been shortcircuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/chargesheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by this Court in Trisuns Chemical

Industry v. Rajesh Agarwal (supra):—

“9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. 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. Preemption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]”

34. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial.”

III. PROPOSITIONS OF LAW:-

• From all the decisions above referred to and rendered by the Hon’ble Apex Court consistently the following propositions of law can be easily culled out, namely,
  1. The only substantial ground to seek for quashing the criminal complaint is the complaint itself and not any other document or evidence.

 

1. That the parties facing criminal complaint cannot just like that invoke the inherent jurisdiction of the Hon’ble High Court under Section 482 of the Code of Criminal Procedure, 1973, on the ground that the complaint has arisen out of the contractual obligation, or civil dispute, or arbitral dispute or dishonor of cheque proceedings if prima facie the complaint given by the defacto complainant satisfies the ingredients of the offence for which he has lodged a complaint.

 

1. The veracity or the correctness of the complaint can not be tested under Section 482 Cr.P.C. as it is for the trial court to give a finding on analyzation of the entire evidences on record.

 

1. The complaint for the offences of cheating, criminal breach of trust and forgery etc may definitely be related to a civil dispute but that does not nullify the criminal complaint in case the criminal case clearly satisfies the basic ingredients to satisfy the definition of the above offences. To put in other words, the criminal complaint can not be quashed on the sole ground of pendency of the civil dispute or any contractual dispute or arbitral proceedings alone.

 

1. The examination of any evidence on record to quash such a complaint under Section 482 is nothing but an attempt to decide the case on merits in the absence of any evidence proved before it though produced before it.

 

1. In fact in the era of sudden escalation of prices on lands and other immovable properties and the competition between the Real Estate brokers every one knows that the innocent individuals who are the land lords or lawful holders are being made poor victims of the mighty people who never care for any law to be enforced against them. They are, that too, to the extent of 75% only afraid of the criminal jurisprudence and the consequential arrest and ignomy and as a result they are inclined to come forward to amicably settle the matter under the supervision and guidance of the courts. The rest are the habitual offenders and they do come forward to indulge in such type of criminal and inhuman practices knowing fully well the consequences and they are ready to face anything to become richer quickly at the cost of the life of the innocent individuals including the senior citizens.

 

 

 

Their approach to the Hon’ble High Court to invoke                  Section 482 Cr.P.C is to drag on the proceedings for ever and make the complaint itself infructuous either by threatening or unduly influencing the affected party to arrive at a compromise and take the lion’s share or entirely.

 

1. The rush to invoke the criminal side jurisdiction as observed by the Hon’ble Apex Court is due to the indefinite but long duration consumed by the civil courts to end the matter either way and thereby render justice to the affected parties due to the procedural complications and the legal loopholes obstructing the speedy disposal.

 

1. The genuineness of the persons facing the criminal complaint who invoke the jurisdiction of the Hon’ble High Court under Section 482 Cr.P.C on technical grounds can be easily found out by their approach towards the settlement offer made to them by the courts.

 

1. Most of the times the persons facing the criminal complaint are operated by the very big persons above law behind the screen and all have to come to limelight only at the time of trial.

 

1. As per the Hon’ble Apex Court “Cheating” or “Criminal breach of trust ” can be dealt with and tested only at the time of trial and not at the initial stage. It is dangerous to fit in the complaint given by the affected party under the definition of the above offences in the book and decide as the complaint on most of the occasions is written by a third party either by the police or by the lawyers or as dictated by them as our lawyers shape their petition as per the directions of the legal luminaries in the filing section of all the courts by deleting or inserting certain words to number their petition and thereby satisfy their client and seniors. When such a type of complaint is put to testing when there are some evidences available in favour of the complainant the Apex Court categorically directed to leave such matters for the trial.

 

• In the ‘race of’ and ‘race for’ enrichment with several crores of rupees disproportionate to their job and way of life, the criminal trial would save the innocent. The people of power and influence aim only at the properties of the aged citizens, destitute widows, women, needy people and particularly temples standing and watching in holy silence having no background in the society. If such affected parties are driven to raise a civil dispute, against such mighty persons they may not be alive to see the result as the civil litigation due to the inherent procedural complications bound to consume time for one or other reason and particularly, they may not have sufficient financial status to get along with the court fee and other legal fees involved in the civil cases.
• The Hon’ble Apex Court in Sukh Dutt Ratra v. State of H.P., reported in (2022) 7 SCC 508, at para 25 has held on the property right as follows:-

“The forcible dispossession of a person of their private property without following due process of law, was violative of both their Human Right, and Constitutional Right under Article 300-A, of the Constitution.”

• Again at para 16 of the same judgment the Hon’ble Apex Court has observed as follows:-

“16. Given the important protection extended to an individual vis-a-vis their  private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains – can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated.”

• Everyone has to remember and respect that such a human right is available not only against the State but also against any one who without any basis attempts to nullify such a right of the lawful owner or holder and hence, it is the duty of the State to protect the property and personal right of the innocent persons by involving their law enforcing agencies to see that the violators of law are curbed with iron hand which is possible only through our criminal jurisprudence.

 

IV.CONCLUSION:-

 

29) In fine, the veracity of the criminal complaint can be tested only at the time of trial when the complaint satisfies the ingredients of the offences complained of. Whatever the statements and the documents sought to be relied upon by the persons facing the criminal compliant are available suggesting a case in favour of the arrayed accused they can not be pressed in to service in the petition filed under Section 482 of Cr.P.C as they are required to be proved. As per the judgements of the Hon’ble Apex Court referred to above the only safe ground to quash the complaint is the complaint itself. It is not any other material however and whatsoever manner such a material or document is superior or scared it has to be proved as per the law. Atlast but not the least to conclude this brief a thought provoking observation of the Hon’ble Apex Court can be quoted. While dealing with the case of the denial of the tax benefit, the Hon’ble Apex Court has observed at para 29 of its judgment in  Apex Laboratories (P) Ltd. v. CIT, reported in (2022) 7 SCC 98 as follows:- 

 

“It is also a settled principle of law that no court will lend its aid to a party that roots its cause of action in an immoral or illegal act (ex dolo malo non oritur  actio) meaning that none should be allowed to profit from any wrongdoing coupled with the fact that statutory regimes should be coherent and not self-defeating…….”