Rajesh Jain vs Ut Of J&K
2024 Latest Caselaw 2163 j&K

Jammu & Kashmir High Court

Rajesh Jain vs Ut Of J&K on 21 October, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                     h475




       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                            CRM(M) No. 802/2023


                                             Reserved on :   14.10.2024
                                             Pronounced on : 21.10.2024

Rajesh Jain, Age 63 yrs.
S/o Vijay Kumar Jain
R/O H. No. 34 C/C Gandhi Nagar, Jammu.               ...Petitioner(s)
                         Through:- Mr. Vikram Sharma, Sr. Advocate
                                   With Mr. Sachin Dev Singh, Adv.
                                   Mr. Vijayyandra Slathia, Advocate
                                   Mr. S. Sanpreet Singh, Advocate.

                               V/s
1.     UT of J&K,
       Through S.H.O Police Station,
       Gandhi Nagar, Jammu.
2.     Arun Jain,
       S/O Late Chaman Lal
       R/O Upper Roop Nagar, Jammu H. No. 12/3.
                                                         .....Respondent(s)
                          Through:- Mr. Pawan Dev Singh, Dy. A.G.
                                    Mr. Raghubir Singh, Advocate.


Coram: HON'BLE MRS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE


                                JUDGMENT

1. Through the medium of this petition, the petitioner is seeking

quashment of FIR No. 168/2023 registered against him at the

instance of the respondent No.2, at Police Station, Gandhi Nagar

Jammu for commission of offence under Sections 420 read with

Section 418 IPC.

Factual Matrix

2. One Yashpal Jain was owner of House No. 74- A/D Gandhi Nagar

Jammu who died issueless in the year 1995 and was survived by his

brother Shanti Parkash Jain and sister Mahimawati. Based on an oral

Will of deceased Yashpal Jain, in favour of Gunender Pushap Jain

S/O Shanti Parkash Jain with respect to aforesaid house. Gunender

Pushap Jain filed a suit for declaration and injunction with respect to

the said house and the suit was decreed by the Court vide judgment

dated 10-01-1998, on the admission made by the defendants in their

written statement.

3. After the death of Shanti Parkash Jain, his sister Mahimawati Jain

subsequently took a u-turn and challenged the judgment and decree

in the year 1999. Mahimawati Jain too died in the year 1999 leaving

behind her two legal heirs, namely, Arun Jain and Arihant Jain, who

continued the suit filed by Mahimawati Jain. However, the suit

initially filed by Mahimawati Jain was later on dismissed as

withdrawn by her two legal heirs on 15-09-2006, for the reason that

settlement was made between the parties. The suit was, however,

subsequently restored and is still pending adjudication.

4. It is stated that on 10-04-1997, Shanti Parkash Jain and Mahimawati

Jain had entered into an agreement with respect to the estate left over

by late Yashpal Jain. Based on this agreement, succession certificate

was granted in favour of Shanti Parkash Jain and, as per the

agreement an amount of Rs. 4,99,700/- was received through cheque

by Mahimawati Jain. It is also stated that, said Gunender Pushap Jain

sold half portion of the house aforesaid to Kasturi Lal Mahajan and

the other half portion was gifted by him to his son Manan Jain, who

later on sold his portion of the house to one Chand Rani.

5. That in the year 2019 the respondent No.2 (Arun Jain) filed an

application under Section 156(3) Cr.P.C seeking registration of FIR

against Gunender Pushap Jain and Manan Jain and on the directions

of the Magistrate, FIR No. 81/2021 was registered. However, after

investigation, as the case was not proved, a final closure report was

presented before the Court on 22-09-2022.

6. That in the suit, which was restored, when the defendant's evidence

was being recorded, the petitioner, being a witness to the agreement

arrived at between Gunender Pushap Jain and Mahimawati Jain,

submitted an evidence affidavit and in order to implicate the

petitioner and disallow him to state truth, the respondent No.2 again

filed an application under Section 156(3) Cr.P.C and got an order for

registration of the FIR against the petitioner and as such FIR No.

168/2023 had been registered against the petitioner under Sections

420/418 IPC, which has been called in question by the petitioner in

the instant petition.

7. Learned senior counsel appearing for the petitioner has submitted

that the petitioner, being only an attesting witness to the agreement

dated 10-04-1997, was having no role in the circumstances that led

the parties to execute the agreement as such no element of cheating

or dishonesty can be attributed to the petitioner. He has further stated

that it was only after the petitioner appeared as a witness on behalf of

the defendant in the pending suit that respondent No.2 filed an

application for registration of the FIR against the petitioner, in order

to pressurize him not to depose the actual facts, which is nothing but

sheer abuse of process of law at the hands of the complainant, who is

son of one of the parties to the abovesaid agreement.

8. He has further argued that during the life time of Mahimawati Jain,

she never complained about the agreement and it was only after her

death that complainant-respondent No.2, being her son and legal

heir, alleged commission of offences in the context of the said

agreement, though petitioner has nothing to do with its making or he

is not even the beneficiary of the aforesaid agreement.

9. It has further been submitted that in the earlier application filed by

the respondent No.2, on the basis whereof FIR No. 81/2021 was

registered which ultimately was found not proved, there was no

whisper against the present petitioner and it was only after the

petitioner filed his evidence affidavit, respondent No.2 moved an

application for registering FIR against the petitioner. The respondent

No.1 has also registered the FIR against the petitioner without

verifying the allegations leveled against the petitioner by respondent

No.2.

10.In support the learned senior counsel has placed reliance on the

judgment of Hon'ble the Supreme Court reported as Md. Ibrahim

and ors v. State of Bihar and anr, (2009)8 SCC 751 and a

judgment by a co-ordinate Bench of this Court in the case of Bharti

Airtel Limited Co. v. Malik Mushtaq (CRMC 54/2016 decided

on 24-08-2022). Besides strong reliance has also been laid on a

judgment of Karnataka High Court in case Rajesh v. State of

Karnataka (Criminal Petition No. 100659 of 2023 decided on 14-

09-2023) to demonstrate that the petitioner being an attesting witness

to the agreement could not have been hauled up in the web of crime,

notwithstanding the fact that he is not the beneficiary of the

agreement.

11.Per contra, learned counsel appearing for the respondent No.2 has

submitted that after verifying the facts the FIR has been registered

against the petitioner. It is submitted that after the execution of the

agreement dated 10-04-1997, some lines were added in the

agreement and the FIR was registered for giving false statement that

the lines were added in his presence. The petitioner having submitted

a false evidence affidavit in the pending civil suit, FIR has rightly

been registered against the petitioner and the petition filed by the

petitioner requires outright rejection.

12.Heard learned counsel for the parties and perused the material

available on record.

13.It is an admitted fact that the petitioner is only an attesting witness to

the agreement and on the basis thereof he has been cited as a witness

in the pending civil suit wherein he has filed an evidence affidavit,

which is otherwise required to be taken into consideration by the

Civil Court. That apart, the respondent No.2, before filing an

application for registration of FIR against the present petitioner,

earlier also had filed an earlier application seeking registration of

FIR against two other persons, including one of the parties to the

agreement, however, in that application there was nothing written or

said about the present petitioner nor was any crime alleged against

the petitioner. That FIR having been closed as not proved, the

respondent No.2 has filed the second application for registration of

FIR against the petitioner, despite the fact that petitioner was not a

party to the agreement but was only a witness to the effect that

signatures of an executing party has been attached to a document in

his presence. The allegation of the respondent No.2 that some lines

have been added to the agreement cannot be said to be an act of

forgery on the part of the petitioner, as he is not the beneficiary of

the agreement and is only a marginal witness to the same. Moreover,

there is not even any whisper with respect to any element of cheating

on the part of the petitioner. Besides, the earlier request for

registration of the FIR against the beneficiaries having culminated

into closure of the FIR as not proved, the registration of FIR against

the present petitioner is total abuse of process of law.

14.In the case of M. L. Abdul Jabbar Sahib vs. M. V. Venkata

Sastri and sons, 1969(1) SCC 573 Hon'ble the Supreme Court has

held that an attesting witness cannot be hauled into the web of crime,

if there is no crime except that he is an attesting witness. In para 6 of

the aforesaid judgment it has been held thus:-

"6. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words :-

"Attested", in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his- signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary."

It is to be noticed that the word "attested", the thing to be defined,. occurs as part of the definition itself. To attest is to bear witness. to a fact. Briefly put, the essential conditions of a valid attestation under s. 3 are :

(1 ) two or more witnesses. have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has. signed the instrument in the presence of the executant. It is essential that the witness should have- put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness."

15. In the case of Indian Oil Corporation v. NEPC India Ltd

and ors, (2006) 6 SCC 736 Hon'ble the Supreme Court reviewed

the precedents on the exercise of jurisdiction under Section 482 of

the Code of Criminal Procedure and formulated following guiding

principles in the following terms:-

"18. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar

[2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. 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 complaint 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 a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for 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 proceedings 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, 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."

16. In a recent judgment in Mitesh Kumar J. Shah v. The State of

Karnataka and ors, 2021 SCC Online SC 976 Hon'ble the Supreme

Court has expressed its disapproval for imparting criminal colour to a civil

dispute merely to take advantage of a relatively quick relief granted in a

criminal case in contrast to a civil dispute. The Court went further to hold

that such an exercise is nothing but an abuse of the process of law which

must be discouraged in its entirety. Para 47 is relevant for the purpose and

is reproduced under:-

"47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety."

18. In Vijay Kumar Ghai and ors v. The State of West Bengal and

ors, (2022) 7 SCC 124 Hon'ble the Supreme Court, while following the

judgment in Indian Oil Corporation (supra), held thus:-

"21. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in India Oil Corporation (supra) noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that:

13. .....any effort to settle vcivil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."

19. In view of the aforesaid discussion and the settled legal position, I

find merit in this petition and the same is allowed. The impugned FIR

bearing FIR No. 168/2023 registered at Police Station Gandhi Nagar

Jammu against the petitioner under Section 420/418 IPC is, accordingly,

quashed.

(MOKSHA KHAJURIA KAZMI) Judge JAMMU.

21.10.2024 Vinod.

Whether the order is reportable: Yes