Sunil Kapoor & Anr. vs State & Anr.
2009 Latest Caselaw 3997 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     Crl.M.C.102/2004

%                                     Date of Reserve: 16.09.2009.
                                      Date of Decision: 06.10.2009


SUNIL KAPOOR & ANR.                                    ..... Petitioners
                           Through:   Mr. Mohit Mathur & Mr. V.S.Panwar,
                                      Advocates


                   Versus


STATE & ANR.                                      ..... Respondents

Through: Ms. Santosh Kohli, APP for the State

CORAM:

HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed Yes to see the judgment?

2.    To be referred to Reporter or not?                               Yes

3.    Whether the judgment should be reported in the Digest?           Yes

:     MOOL CHAND GARG,J

1. This order shall dispose of a petition filed under Section 482

Cr.P.C. read with Article 227 of the Constitution of India seeking

quashing of the complaint titled as "Har Raj B. Singh Vs. Sonia Kapoor

& Anr." pending in the Court of M.M., New Delhi and the consequent

proceedings arising therefrom.

2. Briefly stating, the facts giving rise to the filing of the present

petition are as follows:

i) On the basis of an agreement alleged to have been

entered into between the parties for the sale of a plot

No.18A, J-Block, Sainik Farms measuring 1200 sq. yards

being part of Khasra No.12/24, Village Devli, in 1991 a civil

suit bearing No. 2999/1991 was filed by the complainant

seeking specific performance of the aforesaid agreement

against Sonia Kapoor the wife of the petitioner and Janki

Kapoor the purchaser of the suit property prior to the

execution of the alleged agreement on the allegations that

the petitioner and the other co-accused person were not

executing a sale deed in their favour despite receiving a

sum of Rs.4,00,000/- as per the receipt dated 04.08.1991.

An application for injunction (IA No. 10423/91) filed along

with suit seeking injunction order against Sonia Kapoor for

restraining her from selling or parting with the possession

of the aforesaid property was also dismissed vide order

dated 07.01.1996. In the said order a Learned Single Judge

of this Court had gone through the details of the plaint filed

by the complainant and the written statements filed by

Sonia Kapoor and the second defendant in that case. On

the basis of the averments made therein and the

documents annexed with the pleadings as well as the

report field by the CFSL which categorically stated that the

receipt relied upon by the complainant was a fabricated

document and did not bear the signatures of the second

petitioner, it was observed:

3.Prima facie I am satisfied that the case of defendants 1 and 2 is more probable than the case of the plaintiff. The plaintiff has failed to establish a prima facie strong case for injunction. The balance of convenience lies in favour of the defendants. Therefore, IA No. 10423/91 for injunction is dismissed. There shall be no order as to

costs.

Post the matter for admission denial of documents before the Joint Registrar on 12.05.1996. Thereafter the matter be listed for framing of issues on 09.07.1996.

ii) In the meanwhile, the complainant filed a complaint

against the petitioners on 22.04.1992 on the same facts

alleging that by violating the terms of the contract of sale

and having appropriated the money given to them to their

own use and having not refunded the same and as such,

they were guilty of committing offences under Section 406

of the IPC. It seems that no orders favouring the

complainant were passed in that complaint which was kept

pending.

iii) A perusal of the record goes to show that this complaint

which was pending before C.K. Chaturvedi, Metropolitan

Magistrate concerned at the relevant time was fixed for

recording complainant's evidence after dismissing his

application under Section 156(3) Cr.P.C. which was moved

in those proceedings and it is thereafter on 14.02.1994

another complaint was filed by the

complainant/respondent No.2 against the petitioners

materially on the same facts again making similar

allegations against the petitioners. This time, the

Magistrate, who dealt with the complaint directed

investigation under Section 156(3) of the Cr.P.C. A perusal

of the complaint which is annexed with the present petition

goes to show that the complainant had not disclosed about

the filing of the first complaint in the second complaint.

iv) A very important fact which needs notice is that while in

the first complaint it was not stated by the complainant/

second respondent that the payment of Rs. 4 lakhs was

made to petitioner no.1, there is a mention that the

payment was made to petitioner no.2 who also executed a

receipt in this regard, in the second complaint a new fact

has been introduced by the complainant, that is to say, the

payment was received by petitioner No.1 and the receipt

which was given to the complainant was a pre-signed

receipt, that is to say, it was not signed by petitioner No.2

in his presence and thereby, a new case has been sought

to be introduced in the second complaint.

v) On the basis of the second complaint directions were given

to the Police to investigate the matter under Section 156

(3) Cr.P.C. Pursuant thereto, a report was filed stating that

no case was made out against the petitioners. Thereafter,

the Metropolitan Magistrate has also directed the I.O. of

the case to send complete and admitted signatures of the

petitioner to the CFSL. The I.O. complied with the

aforesaid order and he sent the documents to CFSL. As per

the report of CFSL, the petitioner No.2 was completely

exonerated inasmuch as the report said that the receipt

relied upon by the complainant does not bear the

signatures of petitioner No.2 and thus, it was opined that

the said receipt was not a genuine document.

vi) Despite the aforesaid report, the trial Court after recording

the statement of the complainant and after clubbing both

the complaints together issued summons to the accused

petitioners under Section 420 IPC vide order dated

05.06.1997 and fixed the case for recording pre-charge

evidence. The petitioner moved an application under

Section 203, 340 of the Cr.P.C. as well as under Section

193(1) of the IPC which was not decided by the Magistrate

concerned.

3. It is thereafter the present petition has been filed seeking

quashing of the complaint inter alia on the following grounds:

i) On 04.09.1991 a receipt for Rs.4,00,000/- was allegedly

signed by petitioner No.2. However, a report of CFSL dated

31.10.1994 admittedly exonerates the petitioner No.2 to

the extent that her signatures do not match with the

signatures on the said receipt.

ii) As per the law and the terms of the said receipt, a Suit for

Specific Performance bearing No.2999/1991 was filed by

Respondent No.2 against the petitioners & Smt. Janki Devi

and the Sub-Registrar, Asaf Ali Raod, New Delhi. The said

suit was dismissed with costs to the defendants vide order

dated 28.01.1998 by this Court for want of prosecution by

respondent No.2. No attempt has been made to restore

the said Suit by respondent No.2 till date. An application

filed for the grant of injunction under order 39 R1&2 CPC

has also been dismissed by this Court vide detailed orders

passed by Learned Single Judge of this Court dated

03.01.1996.

iii) No complaint could be entertained by the trial Court after

the Suit for Specific Performance was dismissed for want of

prosecution. The Agreement to Sell/Receipt allegedly

executed between the parties categorically mention that

only a Suit for Specific Perforamance to be instituted by

the parties in case of default by the either. In this regard,

petitioners have also relied upon a judgment in Narender

Singh Vs. Rejinder Kumar Lamba & Ors. 2007 (III) AD

(Delhi) 544.

iv) It is also alleged that the property in question was not

available for sale on the date on which the alleged

agreement to sale/receipt is stated to have been executed

because on that date the property stood transferred in the

name of Smt. Janki Kapoor the second defendant arrayed

as a party by the complainant in his civil suit which fact

has been taken note of by this Court in the civil

proceedings while dismissing the injunction application as

stated above. Some observation made in the order

dismissing the injunction application which details history

of the litigation between the parties and the conduct of the

complainant is also reproduced hereunder which fact has

been taken note of by a Learned Single Judge of this Court

in the civil proceedings from the pleadings of the parties:

That the present suit is not maintainable in view of the fact that the plaintiff has not come to this Court with clean hands and has concealed material facts from this Hon'ble Court. It is respectfully submitted that the

present property was brought by the present defendant from Shri Hukum Singh and Shri Jagdish Singh on 25th September, 1990. A copy of the sale deed executed with respect to the said Sale deed executed with respect to the said property is hit herto annexed and marked as Annexure-I. Prior to the execution of the said Sale Deed a Power of Attorney was executed in favour of Shri Sunil Kapoor who is the husband of the present defendant No.1. A copy of the said power of attorney is annexed and marked as Annexure-2. It may be pertinent to state that at this stage that the present plaintiff was witness to the said Power of Attorney as would be evident from a bare perusal of the same. The Defendant is pointing out this fact only in order to show that the present plaintiff was aware of the said transaction, which was dated 3.5.1989. The plaintiff is therefore, surreptitiously, with malafide intentions is trying to give an impression that the present property in dispute is encumbered in some way or the other to reduce the price of the said property and is trying to illegally extract money from the defendants by filing the present false and frivolous suit. It is further respectfully, submitted that the falsehood of the present suit is evident from the fact that the present defendant had never entered into an agreement to sell with the present plaintiff as the alleged transaction is dated 4.9.91. Whereas that the present defendant had already before the said date sold the property, in dispute in the present case to the defendant no.2 vide a Sale Deed which was registered on 11.9.91 much before the alleged so called sale was made to the present plaintiff and had handed over possession of the said property on the said date. It is further respectfully submitted that the RECEIPT filed by the present plaintiff is totally false, frivolous and forged and does not bear the signature of the present defendant. The Plaintiff has committed perjury by forging the said signature and is liable to be proceeded against in accordance with law for the same. The registration of the sale deed with the defendant no.2 was made on 11th September, 1991. It is further respectfully submitted that the said forger, is evident from the fact that the defendant no.1 has, at that point of time signed various documents in which she has also given her specimen signatures. A copy of the said documents which would indicate her specimen signature during the relevant time when the receipt in question has been aliegeoly signed by her will be filed by the defendant at the appropriate time. The signature of the defendant no.1 in the VAKALATNAMA, also be compared with the signature on the receipt in order to verify the authenticity of the signature of the receipt."

4. It is, thus, contended that the initiation of criminal complaints,

now clubbed by the learned Magistrate, on the same facts on which

the civil suit was also filed and dismissed is an abuse of process of

Court and continuation of those proceedings tantamount to mis-using

the process of Court inasmuch as the petitioners are compelled to face

the complaint even though they are not guilty of any offence as

alleged by the complainant. It is, thus, submitted that this Court may

come to the rescue of the petitioners by invoking its inherent powers

under Section 482 Cr.P.C. by dismissing the complaint and quashing

the proceedings arising therefrom in favour of the petitioners.

5. Insofar as the complainant is concerned, despite opportunity

granted he has not cared to file the synopsis. It would not be out of

place to mention that the Metropolitan Magistrate concerned has not

taken note of the facts as stated above which were very much

available on the file of the complaint case and which reflects the ill

intention on the part of the complainant and somehow pressurizing the

petitioner for their illegal demands despite losing in the Civil Court.

6. A perusal of the record goes to show that the case which has

been sought to be pressed in service by the complainant against the

petitioners in the second complaint is an after-thought by making

averments in the second complaint an impression is sought to be

created upon the Court that the money was given to the first petitioner

against a receipt which was already signed though it was not the case

put up in the first complaint. In any event, the purpose of executing

the receipt was to enforce an agreement to sell by way of specific

performance. The said suit was filed but has not been successful.

Thus, even if the facts as disclosed in the second complaint are taken

as correct, the filing of the said complaint in the wake of filing of the

first complaint on different facts results in mis-carriage of justice and

abusing the process of Court. This is more so because the Trial Judge

while issuing summons has not even considered the averments made

in the first complaint which were very material in this case.

7. The law with regard to quashing of complaint now is well-settled.

In the case of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335,

the Apex Court was pleased to give illustrative categories where

complaint/FIR can be quashed if the facts would fall in the following

categories i.e.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the F.I.R. 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 S. 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

8. In the facts of the present case, it is apparent that the purpose of

filing of complaint in the year 1992 and again in 1994 after invoking

civil jurisdiction of this Court was only to pressurize the petitioner to

make a settlement with the complainant so as to compel them to

either return the amount allegedly received by them at the time of

entering into the Agreement to Sell or to sell the property despite there

being no agreement executed between the parties and the receipt was

not even signed by petitioner no.2 as held by the CFSL. In any event,

once the civil suit for specific performance was dismissed the rights of

the parties stand crystallized. Nothing has been brought to the notice

of this Court about steps taken, if any, to revive the suit dismissed in

default. Insofar as the complaints are concerned, admittedly, the

record shows that even the receipt was not signed by the petitioner

and therefore, permitting those complaints to be tried by the

concerned court would naturally be an attempt to help the complainant

to secure money which he is not otherwise entitled to by using the

process of criminal court as a tool for ulterior motives, which is the

seventh illustration given by the Hon'ble Apex Court in Bhajan Lal's

case (supra).

9. In fact the perusal of the two complaints goes to show that the

second complaint filed by the complainant is based upon new facts

which were not there in the first complaint i.e. making a reference to

an unidentified lady being present at the time of handing over the sum

of Rs. 4 lakhs that also to the first petitioner instead of the second

petitioner, who is the owner of the property and allegedly agreed to

sell the property as alleged in the first complaint that also after an

order passed by the Metropolitan Magistrate refusing to direct the

Police to investigate into the matter under Section 156 (3) Cr.P.C. This

goes to show that the process adopted by the complainant was an

abuse of process of Court.

10. In the case of Narender Singh Vs. Rajinder Kumar Lamba & Ors.

2007 III AD (Delhi) 544 also relied upon by the petitioner (supra) the

law on the subject has been discussed by Learned Single Judge of this

Court by giving reference to various earlier judgments in a similar case

where also on the similar facts a complaint was field by the

complainant under Section 420/406/506/Part-II/448 read with Section

120-B IPC despite filing a civil suit by alleging that there was an

agreement to sell executed by the accused whereby he had agreed to

sell his 2/7 shares in the undivided property to the complainant for a

consideration of Rs. 48.50 lakhs and out of the same the complainant

paid Rs. 3.50 lakhs and the balance was yet to be paid at the time of

execution but which was not paid by the complainant. The suit filed by

the complainant CS-05 (2100/96) for specific performance of the

contract was pending. After filing of the suit the complainant also filed

a complaint as has been done in the present case. The accused then

approached this Court by filing a petition under Section 482 Cr.P.C. and

had contended that for a civil dispute there cannot be a criminal

prosecution. Reference was made to a judgment delivered in the case

of G. Sagar Suri 2001 (supra) and M/s Indian Oil Corp. Vs. M/s NEPC

India Ltd. & Ors 2006 (7) SCALE 286. It was also contended in that

case that in the peculiar facts of that case the proceedings initiated by

way of criminal complaint were uncalled for and unjustified, rather

amounted to abuse of process of Court. The Learned Judge taking into

consideration the facts of that case made the following observations

which are directly applicable to the facts and issues before me:

8... It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid

certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or other wise to secure the ends of justice.

9... In State of Karnataka v. E. Muniswamy this Court said that in the exercise of the wholesome power under Section 482 of the code of High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings are to be quashed.

11... In Chandrapal Singh v. Maharaj Singh, the judgment started as under (SCC p.467, para 1).

A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous.

This Court said (SCC p.474 para 14) We see some force in the submission but it is equally true that a charined and frustrated litigants should not be permitted to given vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an advocate. He lost in both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482 Cr.P.C.

Without burdening this judgment with further case law, as cited by learned Counsel for the petitioner, purpose would be served by referring to a recent judgment of the Apex Court in the case of M/s. Indian Oil Corporation (supra) wherein after taking stock of the available judgments, the Supreme Court took note of the growing tendency of converting civil disputes into criminal cases by levelling frivolous allegations, as would be clear from the following observations:

10. While on the issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriage/ families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal prosecution should be deprecated and discouraged.

It was further observed that:

While no one with a legitimate cause or grievance

should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.

12. In a case like this, I am of the view that the remedy for the complainant was to file suit for specific performance as the dispute is of a civil nature, which he filed in the year 1996. No subsequent events took place on the basis of which he could file a criminal complaint in the year 1999. The allegations of subsequent events, namely dispossession from the garage, theft, threats etc. have not been substantiated and the learned ASJ has himself quashed the process in respect of these provisions. The matter is, thereforee, purely of civil nature. This petition is, accordingly, allowed and the summoning orders issued against the petitioner under Sections 420/34 IPC are quashed.

No costs.

11. The observations made in the aforesaid judgment are directly

applicable to the facts and issues in the present case. The

complainant first filed a civil suit on same facts seeking specific

performance of the agreement with respect to an alleged agreement to

sell for Rs. 16 lakhs out of which he had only paid Rs. 4 lakhs. The

receipt relied upon has not been found to be genuine. The civil suit

has been dismissed. The complainant in this case not only filed the

civil suit but also filed a complaint in 1992, then again without

disclosing filing of the first complaint also filed a second complaint in

1994 which apparently is a mis-use of the process of Court. It is

surprising that the Magistrate who was trying the second complaint

instead of dismissing the second complaint straightway decided to club

the first complaint with the second complaint. The Judge also failed to

appreciate the report called for under Section 156(3) Cr.P.C. which has

also not supported the case of the complainant. Moreover, the civil

suit filed by the complainant stands dismissed. The application of

injunction field in that suit also stands dismissed vide detailed order.

12. In fact, it is a case where the complainant is attempting

execution of the agreement to sell just on the basis of part payment

despite the report of FSL which has not found the receipt to be a

genuine document and having failed in the civil proceedings initiated in

1991.

13. In the peculiar facts which have not been contravened by the

respondent/complainant despite opportunity granted to file written

synopsis, it is a fit case where powers possessed by this Court under

Section 482 Cr.P.C. are exercised for the reason that all the three

circumstances which permits this Court to exercise its inherent powers

under Section 482 Cr.P.C. i.e. (i) grave injustice would be caused

against the petitioner if the complaint is allowed to be continued; (ii)

the process of court is being abused; and (iii) the evidence which is

sought to be relied upon is not sufficient which may convict the

petitioner even if the complainant is allowed to go for a full dress trial

in the present case. Reference can also be made in this regard to an

old judgment which still holds good delivered in the case of R.P. Kapur

Vs. State of Punjab, AIR 1960 SC 866 which has been quoted with

approval in a judgment delivered by the Apex Court in Zandu

Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque and Anr.,

(2005) 1 SCC 122 and State of A.P. Vs. Bajjori Kantian & Anr. AIR 2009

SC 671.

14. In view of the aforesaid, the Criminal Complaint bearing nos.

55/1/92 dated 20.04.92 & 21/1/94 dated 08.02.94 clubbed together

vide order of the Magistrate dated 12.10.1996 pending in the Court of

Metropolitan Magistrate, New Delhi and the proceedings arising

therefrom are hereby quashed. Petition is allowed. Pending

applications, if any, also stand disposed of. The bail bonds, if any, of

the petitioners would stand discharged. TCR be sent back along with

the copy of the order.

MOOL CHAND GARG, J.

OCTOBER 06, 2009 ag