THE HON'BLE SRI JUSTICE D.RAMESH
CRIMINAL PETITION NO.5667 of 2019
ORDER:
This criminal petition is filed under Section 482 Cr.P.C. seeking to quash the proceedings against the petitioners/accused in C.C.No.304/2018 on the file of the VI Metropolitan Magistrate Court (Mobile Court) cum VI Additional Junior Civil Judge, Vijayawada registered for the offence under Section 82 of Registration Act and Section 420, 120 B, 424 and r/w 34 IPC.
2. The case of the prosecution is that 1st petitioner/A1 in collusion with mother i.e., Petitioner No.2/A2 and maternal uncle i.e., Petitioner No.3/A3 has fraudulently executed the documents by making false statements and abetting violations registration before the Sub-Registrar Office, Kankipadu.
3. The contents of the complaint are that the 2nd Respondent filed a suit in O.S.No.48/2015 on the file of VII Additional District Judge Vijayawada for partition of joint family properties against her father Rayapati Kotaiah (now he is no more) and petitioner nos.1 to 3 and 2 others. At that time, complainant made enquiries in the month of October 2014 and came to know that some documents are created in the names of petitioner Nos.1 to 3 by the 2nd petitioner/2nd accused and late Rayapati Kotaiah. Since the 1st petitioner/Accused No.1 is a Non resident Indian (NRI), he has violated Regulation 5 of Foreign Exchange Management Regulation 2000 (FEMR) which states that NRIs can make payment for acquisition of immovable property other than agricultural land only through normal banking channels duly following the Reserve Bank of India Guidelines. The 2nd respondent/complainant 2 lodged a complaint with the District Registrar, Krishna District at Machilipatnam as well as Sub-Registrar, Kankipadu on 16-02-2017 calling upon them to take action for cancellation of the above Sale deeds. As there was no response from them the 2nd respondent/ complainant filed a Writ Petition No.22292 of 2017 dated 05-7-2017 which is pending before this Hon'ble High Court. Further the accused No.1 has not disclosed that he is an NRI before the Registering authorities and has given the details of the expired Passport. All the accused conspired together, knowingly and wilfully suppressed the true facts before registering authorities and procured the Registration of the said documents by making false statements, giving wrong address, producing details of expired passport residence proof.
4. As per the direction of the Learned Magistrate, the Station House Officer, Penamaluru P.S. Vijayawada City made enquiries and submitted that at the time of Registration of the land, A1 produced his Passport which is valid from 28-02-1977 to 27-02-2007 and it is expired as of that date. The Said expired passport of A-1 has been furnished by the Sub Registrar, Kankipadu. As NRI, A-1 has no right to purchase agricultural lands in India as per Section 4 (a) & (iii) of Foreign Exchange Management (Permissible Capital account transactions) Regulations, 2000, - Notification No. FEMA 1/200-rb DT. 03-05-200, RBI, Exchange Control Dept), Central office, Mumbai. All Money transactions of sale registrations but A-1 and vendors are not visible on any documents. There is no bank transaction with regard to the Money-payments. A1 gave local address in all the above Documents as "R/o. D.N0.9-32, Srinivasa Nagar Road, Opp. To Priya Foods, Poranki, Penamaluru by suppressing the fact before Sub- Registrar Office, Kankipadu that he is NRI.
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5. In their reply to legal notice and other materiel placed before the Hon'ble court A1, A2 and A3 admitted that A1 is NRI. Enquires also revealed that A1 is NRI and he has been residing for the past 20 years nearly. This show that A1, A2, A3 conspired together and executed the documents fraudulently to avoid the legitimate share of the complainant in joint family properties. Upon examining the PW1/Complainant on oath, it is prima facie established the averments under Section 82 of the Registration Act and sections 420, 120 B, 424 r/w 34 IPC. As a result cognizance is taken.
6. The contention of the 2nd petitioner is that the properties are self acquired properties of herself and her husband and also the 1st petitioner. The 2nd respondent has not filed any material before civil court substantiating that the plaint schedule properties were purchased by alienating the ancestral properties. Having no proof to support her claim she designed the criminal complaint with malafide intention without waiting till the disposal of the said suit on Merits. It is submitted that the 2nd respondent already filed W.P.No.22292 of 2017 dated 05-7-2017 and the same is pending. She has also filed number of criminal cases against the petitioner, out of them 3 criminal cases are disposed as false and civil nature.
7. It is further contended that the Learned Magistrate has failed to take notice of the said Writ Petition and mechanically took Cognizance without application of his mind. In so far as the allegations of the 2nd respondent against the 1st petitioner for violation of alleged FERA is concerned, the 1st petitioner has complied with the orders if the authorities concerned. There is no whisper in the entire complaint that all the petitioners have conspired together.
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8. As far as item No.1 of private complaint is concerned, a sale deed dated 15.02.2000 vide document no.480/2000, is executed by one Ch.Kalyani in favour of 1st petitioner/A1, as such nothing to do with the joint family property. With regard to item No.2, it is a gift deed executed on 28.01.2008 by late Rayapati Kotaiah i.e., late father of the 1st Petitioner/A1 in favour of the 1st Petitioner vide registered document no.273/2008 which is self acquired property of late Rayapati Kotaiah which was purchased by him from Arvepalli Ahalya Devi vide registered document no.2007/1981 dated 28.11.1981. It has nothing to do with regard to joint family property. With regard to item No.3, a registered sale deed was executed by Lanke Edukondala Venkata Ramanamma rep. By her sale-cum-GA holder Rayapati Kotaiah in favour of the 1st petitioner/accused vide registered document no.466/2008, which was already sold to some 3rd parties by the 1st accused through his GPA holder. It has nothing to do with regard to joint family property. With regard to item No.4, a registered sale deed dated: 16-04-2008 was executed by the 1st petitioner/Accused no.1 in favour of Mrs. Parvathaneni Nagamani vide registered document no.1628/2008 also has nothing to do with regard to joint family property. With regard to item No.5 the said property was purchased by accused no.2 by way of sale-cum-GPA dated 03.05.2006 with herself acquired money from Uppaluri Ramesh vide document no.207/2006.Subsequently she sold Ac.0-25 cents out of the total extent of Ac.0-50 cents on 16.10.2014 vide document no. 9788/2014 in favour of her son/1st Petitioner/Accused No.1. The said sale deed was subsequently cancelled between A1 and A2 on 12.07.2018 vide document no.3930/2018, as the 2nd respondent made a false claim on the said property.
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9. It is also further submitted that in pursuance of the suit subject properties and also other complaints filed by the complainant/Respondent no.2 a memorandum of understanding dated 26-06-2021 got executed and she got two properties already registered in her name by the 2nd petitioner as GPA holder of 1st petitioner/A1 on 26-02-2022, a total extent of 308.87 sq.yds vide gift deed document no.1483/2022 and another gift deed by 3rd petitioner on 26.2.2022 vide document no.1484/2022 with a promise to withdraw all the cases filed by her i.e., 2nd respondent at various places. She got executed the above MOU's in her favour but reported there is no compromise before this Hon'ble Court.
10. On the other hand learned counsel for the respondent would submit that the respondent along with petitioners no.1 to 3 acquired right, title over certain properties which belongs to late R.Kotaiah (Father of Respondent) after his death. Petitioner Nos.1 to 3 without intimation to the respondent, illegally created certain documents in favour of Petitioner No.1/A1.
11. It is submitted that there is a notification by the Foreign Exchange Regulation dated 03.05.2000, which doesn't restrain an NRI to own agricultural property, but failed to file the said notification towards their contention. The contention of the petitioners that the subject properties are self-Acquired and are not inherited is also false. The petitioner Nos.1 to 3 forged and fabricated documents with a dishonest and criminal intent by colluding with certain revenue officials in the Sub Registrar Office. The respondent made a compliant to the Vigilance Cell of the revenue department regarding the said collusion of Petitioner No.1 with the revenue officials. The Revenue (Vigilance.III) Department, Government of Andhra Pradesh has issued a memo Vide No.LANA0CCLV(DISC)/72/2019-VIG.III(2) dated 14.11.2019 initiating 6 major penalty proceedings against 8 different officials of Revenue/Registration Departments who were involved in creation of these fraudulent documents.
12. The main contention of the counsel for the petitioners is that undisputedly there is a civil suit pending between the parties i.e. O.S.No.48/2015 on the file of VII Additional District Judge at Vijayawada for partition of the schedule property into three equal shares and for allotment of one such share to the plaintiff i.e. 2nd respondent herein. According to the schedule in the said suit, the properties which are mentioned in the complaint are also the part of the schedule properties in the suit. Hence there is a civil suit pending between the parties for asserting their rights without deciding rights by the competent civil suit manifestly the complaint itself is not maintainable. Hence cognizance taken by the Court below based on the complaint made by the 2nd respondent is contrary to the observations made by catena of judgments of the Apex Court.
13. The 2nd contention raised by the counsel for the petitioners is that initially the complaint is made against the petitioners for contravention of regulation no.4 and 5 of Foreign Exchange Management Regulations 2000 (FEMR). But subsequently the said sections were deleted. Hence the primary contention of the complainant is that the petitioners have not followed the FEMR regulations and accordingly they have cheated the petitioners by colluding all. Hence made a complaint under Section 420 r/w 424 r/w 120B IPC. Once the principal sections are deleted the others are only consequential or ancillary. In view of the same, the complaint is not maintainable.
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14. Finally learned counsel has stressed that the petitioners and respondent no.2 are mother, brothers and sisters and all the properties are self acquired properties and in view of the same, factually the allegations made in the complaint is also without having any basis or record. Apart from all these, the parties have entered a memorandum of understanding (MOU) on 26.6.2021.
According to the said MOU, the 2nd party i.e. complainant/respondent no.2 herein should withdraw all the cases/petitions within fifteen (15) days despite the same, the respondents have not filed any with drawl petition with a dishonest and malafide intention.
To support his contention learned counsel for the petitioners has mainly relied on the following judgments.
Syed Yaseer Ibrahim vs. State of Uttar Pradesh & another1 wherein Hon'ble Apex Court has held that:
Both the FIR and the charge-sheet, which has been submitted after investigation, would leave no manner of doubt that there are rival contentions of the appellant, on the one hand, and the second respondent, who is the complainant, on the other, which form the subject of a pending suit. The contesting parties lay a claim to the immovable property, which is in dispute. The appellant founded his claim on the strength of an alleged deed of gift. On the other hand, the second respondent has claimed on the basis of a Will alleged to have been executed in his favour. The second respondent has instituted a suit for declaration and possession which is pending. The suit was dismissed in default on 13 October 2014. The sale deed was executed by the appellant on 24 November 2014. The suit has been restored to file on 21 April 2016. Each of the rival claims would be tested in the course of the evidence adduced at the trial of the suit. Mr Sanjay Singh submitted that since the sale took place during the pendency of the suit, doctrine of lis pendens will apply. This itself is an indicator of the position that it is essentially a dispute of a civil nature. The execution of a sale deed, during the pendency of the suit, may attract the doctrine of lis pendens , but, from reading the charge-1
2022 SCC OnLine SC 271 8 sheet as it stands, it is evident that there is no element of criminality which can stand attracted in a matter which essentially involves a civil dispute between the appellant and the second respondent. Insofar as the appellant is concerned, none of the ingredients of the offence punishable under Section 420 of the IPC have been found to exist after the investigation was complete. Neither the FIR nor the charge-sheet contain any reference to the essential requirements underlying Section 420. In this backdrop, the continuation of the prosecution against the appellant would amount to an abuse of the process where a civil dispute is sought to be given the colour of a criminal wrong doing.
The Apex Court clearly held that the continuation of the prosecution against the appellant would amount to abuse of the process where a civil dispute is sought to be given the colour of a criminal wrong. Accordingly, quashed the charge sheet. Even in the present case, admittedly a civil suit is pending for partition of the subject properties and without deciding the rights of the petitioners by the Court, the criminal complaint is not maintainable.
Shakson Belthissor vs. State of Kerala and another2 wherein the Hon'ble Apex Court held that:
The scope and power of quashing a first information report and charge sheet under Section 482 of the CrPC is well settled. The said power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive. A number of decisions have been rendered by this Court on the aforesaid issue wherein the law relating to quashing of a complaint has been succinctly laid down.
In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations made in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of Magistrate for issuing process against the accused could be quashed under the following circumstances: (SCC p. 741, para 5) "(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their 2 (2009) 14 Supreme Court Cases 466 9 face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
The above decision was followed by this Court in Pepsi Foods Ltd. and Anr. Vs. Special Judicial Magistrate and Others [1998 (5) SCC 749]. In paragraph 28 of the said judgment this Court held thus :
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." This Court has recently in R. Kalyani v. Janak C. Mehta and Others, (2009) 1 SCC 516, observed as follows: "15. Propositions of law which emerge from the said decisions are:
(1) 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. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) 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.
(4) 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.
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In view of the above judgments, the court categorically held that a person who is apparently innocent is not subjected to prosecute and humiliation on the basis of false and vague grounds.
15. In the instant case, also the 2nd petitioner is a senior citizen more than 70 years and she is none other than the mother of the complainant. Only with a malafide and ulterior motive, the present complaint has been lodged and without taking the relevant facts and circumstances, the Court below has taken cognizance which is contrary to the observations made by the Hon'ble Apex Court in the above said judgment.
Paramjeet Batra vs. State of Uttarakhand & others3 wherein the Hon'ble Apex Court has held that:
16. 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.
Chandran Ratnaswami vs. K.C.Palanisamy and others4 wherein the Hon'ble Apex Court has held that:
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CDJ 2012 SC 883 4 (2013) 6 Supreme Court Cases 740 11 As noticed above, in the three writ petitions filed by respondent No.1, though not against the appellant but against the C.B.I. in respect of different transactions, the High Court dismissing all those writ petitions observed that the modus operandi of the writ petitioner (respondent No.1) was to defraud the person or entity and thereafter approach the Courts with multiple proceedings in order to distract attention from his own misdeeds.
Neither the High Court nor the Magisterial Court have ever applied their mind and considered the conduct of the respondent and continuance of criminal proceedings in respect of the disputes, which are civil in nature and finally adjudicated by the competent authority i.e. the Company Law Board and the High Court in appeal.
We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law.
17. The second contention of the petitioners is that though the complaint is made against the petitioners particularly about 1st petitioner for violation of FEMR Regulations, but subsequently that the said sections were deleted by the Court and the petitioners have also filed objections on 21.8.2017 along with the judgment reported in 1972 SCC 978 with regard to Section 83 of the Registration Act is not applicable to private persons under Section 82 of the Registration Act. The apprehension under Section 83 of the Registration Act is not applicable for private persons for filing complaint committed offence under Section 82 of the Registration Act. Without considering the objections and without taking the responsibility filed by the petitioner, the Court below has passed order on 29.6.2018 which reads as follows:
"In the result, the complaint is forwarded to the S.H.O., Penamaluru police station u/Sec.202 of Cr.P.C. for 12 further investigation and report by 14th March, 2018. The S.H.O of Penamaluru police station is directed to strictly follow the procedure contemplated u/Sec.202 of Cr.P.C."
18. Though the specific objections filed by the petitioners with case law but surprisingly, the Magistrate has not mentioned any reason for taking cognizance under Section 190 Cr.P.C. In this regard learned counsel appearing on behalf of the petitioners has relied on the judgment of the Hon'ble Apex Court reported in between Mehmood Ul Rehman vs. Khazir Mohammad Tunda and others5 wherein Hon'ble Apex Court has observed that:
The steps taken by the Magistrate under Section 190(1) of CrPC followed by Section 204 of CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.
Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing 5 (2015) 12 Supreme Court Cases 420 13 process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Section 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 of CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about veracity of the allegations; but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate In view of the above observations made by the Hon'ble Apex Court, learned Magistrate has to made observations and reasons while taking cognizance under Section 190 Cr.P.C. But learned Magistrate has not mentioned any reasons for taking cognizance under Section 190 Cr.P.C.
Apart from that on perusal of MOU entered between the parties, it clearly discloses that the complainant has to withdraw all the complaint petitions which are pending between the parties though she has not denied about the entering of above MOU. Hence as per the terms of MOU also the complaint has to go.
19. Finally counsel for the petitioners has submitted his arguments that the complaint is not maintainable which is contrary to Section 468 of Cr.P.C. which reads as follows:
Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), s.2 end Sch.
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.14
(3) 1 For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]
20. Even according to the complaint, the registration has taken place and the date of offence mentioned in the complaint is that on 15.02.2000, 28.01.2008, 05.02.2008, 16.4.2008 and finally on 16.10.2014 and the complaint is presented on 10.8.2017. According to the above said provision, punishable with fine it should be filed within six(6) months, if it is punishable with imprisonment for a term not exceeding one year, the complaint has to be made within one year, if the imprisonment for a term exceeding one year but not exceeding three (3) yeas it should be 3 years. But in the instant case, the allegations made against the petitioners are all within one year. Hence Section 468 Cr.P.C. complaint is barred by limitation.
21. Reply to the said contentions, learned counsel N.Ashwin Kumar appearing on behalf of the 2nd petitioner has contended that though each sections are independent and though the sections which are made violation of FEMR Regulations 2000, but it is a clear case of cheating. Hence the complaint is maintainable under Section 420, 434 and 120B IPC. Admittedly, the properties are all joint family properties and with an intention to cheat the respondents, the 1st accused has executed registered document in favour of the 1st petitioner with the help of 3rd accused. In fact the basis of the complaint, the Vigilance and Enforcement has conducted enquiry and submitted a report and basing on the said report, the Government also initiated departmental action against the registration authorities for violation of procedure contemplated under the Registration Act, that itself clearly disclosed that the petitioners with the help of 3rd respondent by violating 15 regulations of the Registration Act has registered certain properties in favour of the 1st accused.
22. Undisputedly, with a malafide intention to cheat the petitioners 1 and 2 in collusion with other accused has registered the joint family properties in favour of the 1st accused. Hence the complaint made by the petitioners is in accordance with the provisions of the Act and when there are clear evidences, the intention of the parties even in the civil suits are pending, there is no bar to entertain the criminal compliant. To support his contention, learned counsel has relied on the judgment of the Hon'ble Apex Court reported in Arun Bhandari vs. State of Uttar Pradesh and others6 wherein it was held that:
At this stage, we may usefully note that some times 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 Mohammed Ibrahim and others v. State of Bihar and another[13]: -
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 pressurize 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.[14] and Indian Oil Corpn. v. NEPC India Ltd.[15])"
In this context we may usefully refer to a paragraph from All Cargo Movers (I) Pvt. Ltd. V. Dhanesh Badarmal Jain & Anr.[16] ".....Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondence exchanged by the parties and other 6 (2013) 2 Supreme Court Cases 801 16 admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior Courts while exercising this power should also strive to serve the ends of justice."
23. Learned counsel further submitted that when there is clear allegations with regard to cheating under Section 420 IPC in collusion with the accused no.3 under Section 120-B IPC without proper trial, the Courts cannot interfere and quash the proceedings under Section 482 Cr.P.C. To support his submissions he has relied on the judgment of State of Madhya Pradesh vs. Yogendra Singh Jadon and another7 wherein the Hon'ble Apex Court held that:
The High Court in the Revision Petition found that the offences under Sections 420 and 120-B IPC are not made out against the respondents. The Court held that there is no assertion that the cash credit facility obtained with a knowledge that they will not repay the loan amount. The Court held as under:
It may be that the Officers of the Bank, because of the fact that father of the applicants was President of the Bank, had acted in disregard of the relevant rules and regulations in that behalf of confer benefit upon the applicants, but that will give rise to liability against the officers of the bank who failed to discharge their duties in accordance with prescribed norms and regulations. However, that may not be a ground to proceed against a person who has been granted cash credit facility.
In the instant case, the uncontroverted allegations taken in their entirety do not prima facie establish that the applicants deceived the Bank Authorities or fraudulently or dishonestly induced them to sanction cash credit facility. Thus, the basic ingredient to constitute the offence of 420 of IPC is totally missing in the charge sheet."
We find that the High Court has examined the entire issue as to whether the offence under Sections 420 and 120- B is made out or not at pre trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised 7 (2020) 12 Supreme Court Cases 588 17 where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B of IPC.
24. At the stage of admission on 01.10.2019, this Court has granted interim stay as prayed for.
25. On perusal of the above contentions raised by the petitioners as well as counsel for respondents and also the judgments relied on by them, no doubt the complainant and the petitioners 1 and 2 are family members and admittedly there is a civil suit filed by the complainant for partition of subject properties and the suit is still pending. Hence while pending the civil suit for determination of civil rights, the complaint is not to be entertained as per the observations made by the Apex Court in various judgments. Apart from that, on perusal of the order passed by the learned Magistrate on 30.5.2018 in which he has not mentioned any reasons for taking cognizance under Section 190 Cr.P.C, is contrary to the observations made by the Hon'ble Apex Court in the judgment reported in between Mehmood Ul Rehman vs. Khazir Mohammad Tunda and others (as cited supra).
26. Considering the above said aspects and the ratio decided by the Hon'ble Apex Court into consideration, the complaint dated 10.8.2017 filed by the 2nd respondent herein is quashed.
27. Accordingly, the criminal petition is allowed.
As a sequel miscellaneous application, pending, if any, shall also stand closed.
_____________________ JUSTICE D.RAMESH Date: 26.7.2022 RD 18 THE HON'BLE SRI JUSTICE D.RAMESH CRIMINAL PETITION NO.5667 OF 2019 Dated 26.7.2022 RD