Jharkhand High Court

Arun Kumar Budhia @ Arun Budhia vs The State Of Jharkhand on 13 July, 2023

                                       1

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(Cr) No. 196 of 2019

Arun Kumar Budhia @ Arun Budhia                       ...... Petitioner
                     Versus

1.The State of Jharkhand
2.Ratan Jalan                               ...... Respondents

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner     : Mr. Indrajit Sinha, Advocate
                         Mr. Amritansh Vats, Advocate
For the Resp No.2        : Mr. P.P.N. Roy, Sr. Advocate
                   ...........

07/Dated: 13/07/2023

Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr.

P.P.N. Roy, learned senior counsel for the respondent no. 2 and Mr. Rishiraj

Verma, learned counsel for the State.

2. This petition has been filed for quashing the complaint/protest

Case No. 1584/2014 arising out of Kotwali P.S. Case No. 181 of 2013 including

order taking cognizance dated 02.01.2016 pending in the Court of learned

Chief Judicial Magistrate, Ranchi.

3. The complaint case has been filed alleging therein the father of

the complainant had occupied land belonging to the Marwari Shiksha Trust.

Marwari Shiksha Trust owned and possessed Plot Nos:316, 319 & 320 being

municipal holding No.235, Ward No. Presently 25/1, old ward No.1, situated at

Lake Road, P.S. Kotwali [Hindpiri District Ranchi].

It was further stated that the complainant's father had occupied 58

kathas of land, where he runs Timber business as well as Marble trading. It was

further alleged that the complainant constructed a substantial structure in the

aforementioned land for which the rent was being paid to Marwari Shiksha

Trust.

It was further stated that the complainant kept on doing business

after death of his father in same place.

It was further stated that during the period of his tenancy various

attempts were made of his ouster/ their ouster, but he is occupying the same

land by virtue of an order of Hon'ble High Court(neither the date, nor the case

no was provided). The complainant further alleged that the then President and

Secretary Marwari Shiksha Trust Petitioner No 1 agreed to execute a Registered

deed of lease and for which by way of Security three cheques Rs. 5,00,000/-

dated 14.05.2006 (2) Rs. 5,00,000/- dated 15.05.2006 (3) Rs. 5,00,111/-dated

23.05.2006 [Total 15,00,111/-] as security deposit and in addition to it

Rs.300000/- dated 12.02.2009 were given in the name of Marwari Siksha Trust,

followed by an application before the competent authority for Urban Land

Ceiling, u/s 26 of urban land ceiling act claiming to be case no 2223 and 2280

of 2006 during the tenure of the then President and the then secretary namely

Basudeo Kataruka & Dharma Chand Bajaj respectively. The complainant

thereafter stated that the stamp was purchased on 12/12/2006 validated on

12.12.2007 revalidated on 20.08.2008 for the the transfer of plot no. 316, 319

and 320. The Complainant further alleged that the draft of the lease never

saw the light of the day. It was further alleged that he deposited the municipal

taxes. According to complainant the accused persons had made a calculation

of further rent, which was also deposited. The accused persons allegedly made

a demand of Rupees 51 lacs for sale of 17 kathas of land out of 58 Kathas of

land in the extreme eastern side which was in unauthorized occupation of other

persons for which consideration money was fixed at 51 lacs and paid Rs.3 lacs

as an advance by cheque vide A/c payee cheque No. 067727 dated 27.09.2012

and Rs. 17,00,001/- only cash. The complainant sent a notice and the accused

person refused the allegations and hence this case. The aforementioned

complaint numbered as Complaint Case No.1074/2013 and was referred to

Kotwali Police Station was referred to U/s 156 (3) Cr.P.C. to the concerned

police Station where upon case being Kotwali P.S. Case No. 181/2013 was

lodged corresponding to G.R. Case No. 1074/2013. However the Police had

submitted final report on 08.06.2014 thereafter a protest petition/complainant

case was filed being complaint case.

4. Mr. Indrajit Sinha, learned counsel for the petitioner submits that

the police upon investigation submitted final report on 08.06.2014 under

section 173 of Cr.P.C. finding the case civil in nature thereafter a protest

petition was filed being Complaint Case No. 1584 of 2014 and on protest the

learned court has taken cognizance vide order dated 02.01.2016. He further

submits that for the dispute in question the complainant has instituted the title

suit being T.S. No. 77 of 2013 for specific relief wherein it has been disclosed

that there was agreement for sale of 17 kathas of land for execution and

registration of deed of lease with respect to remaining 41 kathas approximately

out of that very land for a period of 35 years with effect from January, 2010

with clause for further renewal of the lease at an interval of every 35 years. He

submits that the author of the trust was the purchasers of the land being plot

nos. 316, 319 and 715. The owners of the above mentioned land created a

public/charitable trust with a benevolent objective for uplifting the general

education by starting new schools and colleges, boarding houses and libraries

and to take charge of existing schools and colleges and to offer facilities and

opening of physical cultural and health institutions and for that trust was

created. He submits that the petitioner has joined the said trust as Secretary

on 29.09.2012 and the petitioner after joining had learnt that multi storied

building was being constructed on the trust land and the petitioner took steps

and interfered for staking of the said construction to the said construction to

the Ranchi Municipal Corporation being Case No. UC8/2013. He further submits

that so far as the allegations are there that is with regard to accused nos. 1 and

2 and apart from para 16 and 32 of the complaint petition, there is nothing

alleged against the petitioner. He submits that in this background the petitioner

has earlier moved before this Court and anticipatory bail was granted. He

submits that for civil wrong criminal case has been filed which is abuse of

process of law. He submits that no criminal liability can be fastened upon the

successor of the trust. On these grounds, he submits that the entire criminal

proceeding may be quashed

5. On the other hand, Mr. P.P.N. Roy, learned senior counsel for the

respondent no.2 submits that in the given facts and circumstances of the case

the learned court has taken cognizance after minutely considering the

documents and the solemn affirmation. He submits that even after joining of

this petitioner, a sum of Rs. 3 lakhs was paid to the trust by the complainant

and at this stage the Court in view of settled provisions of law may not

interfere with the criminal proceeding which can be decided only in trial. He

submits that under Article 226 of the Constitution of India or under Section

482 of Cr.P.C. the High Court is required to give circumspection for quashing

the proceeding. He further elaborates his argument by way of submitting that

looking into the several documents and affidavit the High Court is not required

to quash the proceeding and to buttress his argument, he relied in the case of

"State of Bihar and Another Vs. P.P. Sharma, IAS and Another" 1992

Supp. (1) SCC 222 particularly para 68 which is quoted hereinbelow:-

"68. Another crucial question is whether the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, would interfere and quash the charge-sheet. The High Court found that the documents relied on by the respondents/accused were not denied by the State by filing the counter-affidavit. Therefore, they must be deemed to have been admitted. On that premise the High Court found that no prima facie case was made out on merits and chances of ultimate conviction is "bleak". The court is not passive spectator in the drama of illegalities and injustice. The inherent power of the court under Article 226 of the Constitution of India is permitted to be resorted to. When the documents relied on by the respondents "demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed", and "in such a situation and circumstances the petitioners who had got a right under the Constitution for the protection of their liberty have rightly approached this Court and this Court in these circumstances has no option but to

grant the relief by quashing the FIR and both the charge-sheets". Accordingly it quashed them. If this decision is upheld, in my considered view startling and disastrous consequence would ensue. Quashing the charge-sheet even before cognizance is taken by a criminal court amounts to "killing a stillborn child". Till the criminal court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground that alternative remedies provided by the Code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. Once the proceedings are entertained the further proceedings get stayed. Expeditious trial of a criminal case is the cardinal rule. Delay feeds injustice to social order and entertaining writ petitions would encourage to delay the trial by diverse tricks. It is not to suggest that under no circumstances a writ petition should be entertained. As was rightly done by Rajasthan High Court in this case at the instance of the directors of the company, wisdom lies to keep the hands back and relegate the accused to pursue the remedy under the Code. In several cases this Court quashed the criminal proceedings on the sole ground of delay. In a case FIR filed in 1954 for violation of the provisions of the Customs Act and Foreign Exchange Regulation Act was challenged in the Allahabad High Court. It was deliberately kept pending in the High Court and in this Court till 1990. The accusation was violation of law by named persons in the name of non-existing firm. The FIR was quashed in the year 1990 by another Bench of which I was a member solely on the ground of delay. He achieved his object of avoiding punishment. This would show that an accused with a view to delay the trial, resorts to writ proceedings, raises several contentions including one on merit as vehemently persisted by Sri Jain to consider this case on merits and have the proceedings kept pending. The result would be that the people would lose faith in the efficacy of rule of law. Documents relied on by the respondents are subject to proof at the trial and relevancy. If proved to be true and relevant then they may serve as a defence for the respondents at the trial. The State quite legitimately and in my view rightly did not choose to file the counter-affidavit denying or contradicting the version of the respondents, in those documents. The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course "in annihilating the still born prosecution" by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. After the charge-sheet was filed, the FIR no longer remains sheet-anchor. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent court. It is not the case that no offence has been made out in the charge-sheets and the first information report. It is, therefore, not necessary to consider all the decisions dealing with the scope of the power of the High Court either under Section 482 CrPC or Article 226 of the Constitution to quash the first information report."

6. Relying on the above judgment, he submits that this Court in view

of ratio laid down in that case may not roam into the several documents and

quash the proceeding which can only be decided in the trial. He further submits

that one of co-accused Dharamchand Bajaj has appeared before the learned

court at the time of hearing of the anticipatory bail petition and that

anticipatory bail was granted pursuant to compromise between one of the

representative namely Ratanlal Jalan and the complainant. He further submits

that in that order it has been recorded that the terms and conditions have

been fulfilled and pursuant to that anticipatory bail was allowed. He submits

that the said terms and conditions have not been fulfilled and in that view of

the matter this petition is fit to be dismissed.

7. Mr. P.P.N. Roy, learned senior counsel for the respondent no. 2

referring section 415 of I.P.C. particularly explanation, he submits that from the

very beginning intention of cheating was there and case of cheating is made

out. He further refers para 22 of the complaint petition and submits that Rs. 3

lakhs was paid to the petitioner after he has taken over the charge of secretary

of the said trust. Mr. Roy, learned senior counsel for the respondent no.2

further submits that there are disputed question of facts and in that view of

the complaint, the criminality is also made out. He submits that if the

criminality is made out then pendency of a civil suit is not a ground of quashing

the proceeding and both the proceeding can go simultaneously if the

criminality is made out. To buttress his argument, he relied in the case of

"Vijayander Kumar and Others Vs. State of Rajasthan and Another"

(2014) 3 SCC 389 (para 10 and 12) and in the case of "Sau. Kamal

Shivaji Pokarnekar V. State of Maharashtra and others" AIR 2019 SC

847 ( para 9).

8. Relying on aforesaid judgments he submits that even the civil and

criminal case both is made out then criminal case can go on and the proceeding

may not quash.

9. Mr. Rishiraj Verma, learned counsel for the respondent-State

submits that final form has been submitted stating the case civil in nature

and thereafter the learned court has taken cognizance on the protest petition.

10 In view of above submissions of the learned counsel for the

partied, the Court has gone through the contents of protest/complaint case as

well as order taking cognizance. Looking into protest/complaint case

averments made therein, it appears that only allegations are made against the

accused no. 1 nos. 1 and 2 of entering into an agreement as the then

President and Secretary respectively. Admittedly the petitioner joined the said

post of Secretary on 29.09.2012. In the complaint case so far this petitioner is

concerned the allegations are made at para 16 and 32 of the complaint petition

and the said paragraphs are quoted hereinbelow:-

"16. That on the direction of the accused no.1 and 2 with consent of accused no.3 the Complainant deposited a sum of Rs.2,54,309.47 paise on account of arrears of Municipal Taxes in the Ranchi Municipal Corporation on behalf of the Secretary Marwari Shiksha Trust through A/C Payee Cheque No.000929 dated 20.02.2009, Bank of India, Upper Bazar Ranchi. The complainant further deposited Municipal Taxes on 05.12.2009 amounting to Rs. 16,406.76 paise on 17.1.11, Rs.16,406.76 paise through cheque and Rs.16,406.76 paise in cash on 1.3.2012 and also on 17.1.2013 Rs.16,406.76 paise through cheque in the Ranchi Municipal Corporation Ranchi.

32.That thus all the accused persons were liable jointly or severally for the offence committed by them as cheating breach of trust and conspiracy."

11. In para 16 of the complaint petition the only allegation is there that

with consent of the accused no. 3 who is petitioner herein the accused nos. 1

and 2 has taken the money. In para 32 the only averment made against the

petitioner of conspiracy on the direction of accused nos. 1 and 2. Apart from

that there is no allegation against the petitioner. The Role played by the

petitioner from very inception has not been disclosed in the complaint case.

Looking into section 415 of I.P.C. which is definition section of cheating it is not

alleged that from the very inception the petitioner was having intention to

cheat the O.P. No. 2. At the time of entering into agreement with the then

president/secretary, this petitioner has not joined the said trust and said

agreement was entered into in the year, 2006. Thus from the complaint itself

the role played by this petitioner is not clear. Further police has investigated

the case and submitted final form stating that the case is civil in nature. In this

background it is crystal clear that so far as this petitioner is concerned, the

role of the petitioner about the cheating is not mentioned in the complaint

case. There is no doubt that there is allegation against the accused nos. 1 and

2 in the complaint case who are not petitioners before this Court. Looking into

the order taking cognizance dated 02.01.2016 it appears that the learned court

has taken cognizance against the petitioner and accused nos. 1 and 2. The

learned court has taken into note of the fact that title suit for specific

performance has been instituted by the complainant as T.S. No. 77 of 2013

before the Sub-Judge-1 at Ranchi which is pending for adjudication. The

learned court has also noted that on the direction of accused nos. 1 and 2 all

these things have happened thereafter he has only noted that this petitioner's

consent was there and apart from that in the cognizance order nothing has

come against this petitioner. The learned court has also come to the conclusion

that the case is civil in nature however the criminality is also made out. Looking

into para 22 of the complaint petition, the Court finds that it has been alleged

that Rs. 20 lakhs was paid due to pressure made by the accused no. 1 and

again Rs. 3 lakhs was paid through account payee cheque dated 27.09.2012

and the a sum of Rs. 17 Lakhs was also paid for which the accused no. 1 has

issued the receipt. This contention of the learned senior counsel for the

respondent no. 2 with regard to payment made to this petitioner is not being

accepted by this Court considering that the amount has been paid on

27.09.2012 whereas the petitioner has joined the post of secretary of the said

trust on 29.09.2012. Thus without looking into other documents or any affidavit

on record only from the complaint petition and order taking cognizance itself,

it is crystal clear that so far the role of this petitioner is concerned, that is not

made out. There are allegations against the accused nos. 1 and 2. The

judgment relied by Mr. Roy, learned senior counsel in the case of " P.P.

Sharma IAS" (surpa) is not in dispute. It is well settled that the High Court

is not required to roam into and consider the several documents and thereafter

come to the conclusion for quashing of proceeding and that will amount to a

mini trial of quashing the proceeding which has been deprecated in several

judgments of the High Courts and the Hon'ble Supreme Court, that law is not in

dispute. Further there is no doubt that criminal and civil proceeding can go

simultaneously if a criminality is made out against the accused and these two

judgments relied by Mr. Roy, learned senior counsel for the respondent no.2 in

the case of ""Vijayander Kumar and "Sau. Kamal Shivaji Pokarnekar

(supra) are not in dispute. In the case of Sau. Kamal Shivaji Pokarnekar

(supra) relied by learned counsel for the respondent no. 2 the power of the

High Court has been dealt with in para 5 which is quoted here-in-below:-

"5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539]"

12. Looking into the said para, the Hon'ble Supreme Court has said that

it is not necessary that a meticulous analysis of the case should be done

before the trial to find out whether the case would end in conviction or

acquittal, if the allegations set out in the complaint do not constitute the

offence of which cognizance has been taken by the Magistrate, it is open to the

High Court to quash the same.

13. In the case in hand the Court has come to the conclusion looking into

the complaint petition as well as order taking cognizance and without looking

into any other document on the record the case is civil in nature for that the

civil suit has already been instituted by the respondent no. 2 being T.S. No. 77

of 2013. If the case is completely civil in nature criminal proceeding is an abuse

of process of law. Reference may be made to the case of "State of Haryana