Barbeil Khimji Shah vs State Of Maharashtra And Anr.
2007 Latest Caselaw 685 Bom

JUDGMENT

V.C. Daga, J.

1. The applicant has invoked jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) with a prayer to quash and set aside the complaint and proceedings initiated thereunder being Criminal Case No. 13/S/86 pending on the file of the learned Additional Metropolitan Magistrate, 44th Court, Andheri.

The Factual Matrix:

2. The factual matrix reveals that in or about 1980, the applicant Shri Babulal Khimji Shah and respondent No. 2 entered into an agreement for sale of certain immovable properties situate in the locality known as Virar, district-Thane. It is the case of the complainant that he came in contact with the accused sometime in the month of August, 1980 and on representation made by him, complainant entered into an agreement with him to purchase the property admeasuring about 4 acres situate near Virar Railway Station, district-Thane. The applicant-accused thereafter, sold the very same property to one M/s Paranjape Builders Pvt. Ltd., since he got much higher consideration for the property in question. The details of transaction between complainant and the accused are given in the complaint which are not in dispute. The order issuing process is a subject matter of challenge in this revision.

Submissions:

3. The learned Counsel for the applicant submits that there was civil suit filed by the complainant against the present applicant for specific performance of the agreement in the Court of Civil Judge, Senior Division, Palghar and that the said suit came to be partly decreed in favour of the complainant. Thus, the dispute is of civil nature.

4. It is further urged by the applicant that the proceedings are pending past more than 14 years without any progress and that the complainant has already availed civil remedy as such he prayed that the complaint and the proceedings initiated thereunder be quashed and set aside by recalling the order issuing process against the applicant.

5. The submissions made by the learned Counsel for the applicant were opposed by the respondents contending that the complaint makes out a case for issuing process.

Consideration:

6. At the outset it may be mentioned that so far as the criminal complaint is concerned, there is absolutely no material on record of the proceedings relating to filing of the suit or decree passed therein. For the first time this averment is made in the revision application under consideration as such this aspect of the matter cannot be taken into consideration. No material in this behalf was available before the learned Magistrate when the process was issued. In this case, civil suit may have been decreed, the details of which are not available on record, but at any rate, by taking recourse to civil remedy, criminal law remedy is not barred or the complainant is not estopped from seeking such remedy. Thus, submission made in this behalf has no force at this stage. It may be one of the defences in trial but cannot be a ground to quash the proceedings which are otherwise tenable and well within the four corners of law.

7. The applicant has also not taken care to disclose as to on which date the order issuing process was passed by the learned Magistrate. No date in this behalf is available on record. If the complaint is of 1985, then hardly there is any reason for the applicant to file present application in the year 1999, that too; after 14 years.

8. So far as law relating to the quashing of criminal proceeding is concerned, it is well established and well settled that if the complaint makes out a case for prosecution answering all the requirements of the offence alleged against the accused then the complaint or the proceedings initiated thereunder cannot be quashed and set aside in exercise of powers under Section 482 of Criminal Procedure Code.

9. The principles relating to exercise of jurisdiction under Section 482 of Criminal Procedure Code to quash complaints and criminal proceedings have been stated and reiterated by the Apex Court in several decisions. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complainant has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice or wreaking vengeance or to cause harm or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

10. For making out a case under Section 420 of Indian Penal Code (I.P.C.) following three ingredients are necessary : (i) practice of deception by the offender ; (ii) on account of deception there must be fraudulent or dishonest inducement so as to make the person deceived to deliver any property or to do something or omit to do something etc; (iii) by reason of the delivery of the property or the doing of a thing or the omission to do a thing, there must be causing or likelihood of causing of damage or harm to the person deceived in body, mind reputation or property.

11. In the above backdrop, if the allegations made in the complaint are perused, particularly relating to paras 4 to 7, then it is clear that by way of pleadings the case under Section 420 read with Section 460 of the Indian Penal Code has been made out. The allegations contained in the complaint, taken on their face value, as stated, make out a case of cheating against the applicant as such powers under Section 482 of Criminal Procedure Code cannot be exercised in the facts and circumstances of this case to quash the proceedings initiated under the subject complaint. In the aforesaid view of the matter, no cause is made out to quash and set aside the proceedings initiated in Criminal Case No. 13/S/86.

12. In the result, application is, thus, rejected with no order as to costs.