Abhilash Kumar Singh vs The State Of Jharkhand
2023 Latest Caselaw 3353 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr. M. P. No. 1824 of 2022
        1.Abhilash Kumar Singh
        2.Fulkant Singh
        3.Asha Devi                              .... .. ... Petitioner(s)
                      Versus
        1.The State of Jharkhand.
        2.Gurdeep Singh @ Pappu                             .. ... ...Opp. Party(s)
                      ...........

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........

        For the Petitioner(s) :     Mr. Vishal Kr. Trivedi, Advocate
        For the State             : Ms. Kumari Rashmi, APP
        For the O.P. No.2 :         Mr. Jitendra S. Singh, Advocate
                                    Mr. Randhir Kumar, Advocate
                      ......

08/ 05.09.2023. Heard, learned counsel for the parties.

1. The instant Cr. M. P. has been filed for quashing the FIR being Sakchi P.S. Case No.29 of 2021 registered under Sections 406, 420, 506, 120B & 34 of the IPC along with all subsequent proceedings and now the case is pending in the court of CJM, Jamshedpur.

2. The complaint petition bearing C/1 Case No.203 of 2021 filed by the Opp. Party No.2 (Gurdeep Singh @ Pappu) against the petitioners is the basis of the case.

As per the case of the complainant, it is alleged that under inducement made by the petitioners to sell the pucca house being House No.208, Line 06, Kashidih, Sakchi, Jamshedpur, an amount of Rs.1,25,00,000/- was taken by them and an agreement for sale was entered on 18.03.2019 for the said property. However, there was no intention from its inception to fulfil the agreement and the amount was misappropriated. After the misappropriation of the said sum and when the sale was not executed, the complaint petition was filed. A Suit for specific performance of agreement has also been filed by the complainant being Original Suit No.03 of 2020 and the same has been annexed with the complaint petition.

3. It is submitted by learned counsel for the petitioners that the petitioners have not entered into the agreement of sale and by making a false representation of getting loan sanctioned in their favour, the complainant (Gurdeep Singh @ Pappu) and his wife (Kamaljit Kaur) got the paper signed from the petitioners regarding which Complaint Case No.3496 of 2019 was filed by Asha Devi (W/o Fulkant Singh) against Gurdeep Singh @ Pappu & Ors. It is submitted that Gurdeep Singh @ Pappu is none other than the

complainant of the present case and Asha Devi is the petitioner no.3 in this case. In counter to this, an informatory petition has also been filed by Asha Devi before the Court of learned CJM, Jamshedpur with regard to it on 24.10.2019.

4. It is further submitted that there is no proof of transactions and it is highly improbable that such a huge amount was paid in cash to them.

5. Reliance is placed on the following judgments :-

(i) 2007 (13) SCC 107 (B. Suresh Yadav vs. Sharifa Bee and Anr.)

(ii) 2013 (11) SCC 673 at Para 13 (Paramjeet Batra vs. State of Uttarakhand and Ors.)

(iii) 2019 (9) SCC 148 (Satishchandra Ratanlal Shah vs. State of Gujarat and Anr.)

(iv) 2020 (3) SCC 794 at Paras 20 & 21 (Rajeshbhai Muljibhai Patel & Ors. vs. State of Gujarat and Anr.)

(v) 2020 (12) SCC 51 (Sardar Ali Khan vs. State of Uttar Pradesh through Principal Secretary, Home Department & Anr.).

(vi) 2023 (2) SCC 195 [R. Nagender Yadav vs. State of Telangana and Anr.)

(vii) 2023 SCC OnLine SC 90 at Para 17 (Usha Chakraborty and Anr. vs. State of West Bengal and Anr.)

By relying on these authorities/ citations, it is submitted that in all these cases, the criminal prosecution was quashed for the reason that there was a civil suit pending and the dispute could have been adjudicated in the civil Suit.

6. It is submitted that in the present case, there is also a civil suit being Original Suit No.03 of 2020 and the same is pending before the concerned Trial Court and despite pendency of the civil suit, the present criminal case has been filed.

7. Learned counsel has further relied upon the judgment rendered in the case of Priyanka Srivastava & Anr. vs. State of Uttar Pradesh & Ors., reported in 2015 (6) SCC 287 and in the case of Babu Venkatesh & Ors. vs. State of Karnataka & Anr., reported in 2022 (2) JLJR SC 1 and submitted that the case has been forwarded for registration without the mandatory compliance and guidelines laid down by the Hon'ble Supreme Court.

8. Learned APP for the State assisted by learned counsel for the O.P. No.2 have opposed the prayer. It is submitted with regard to the compliance and the guidelines as laid down in the case of Priyanka Srivastava (supra) by placing reliance in the judgment passed by the Co-ordinate Bench of this Court in Cr. M. P. No.1012 of 2022 wherein both these judgments had been discussed yet the FIR was not quashed in view of the ratio laid down in Ramdev Food Products Limited vs. State of Gujarat, reported in 2015 6 SCC 439 and

HDFC Securities Ltd & Ors Vs State of Maharastra (2017) 1 SCC 640. It has been held in HDFC securities Ltd that it shall be premature to quash the FIR before the investigation is concluded and process(es) issued against the accused, wherein it was held that the guidelines issued by the Supreme Court in the case of Babu Venkatesh (supra) and Priyanka Srivastava (supra) are under the scheme of the code which provides exercise of discretion by the Magistrate guided by the interest of justice from case to case.. It is submitted that the sum and substance of the ratio laid down in this case is that the guidelines are not inflexible principles and the FIR cannot be quashed merely on this ground.

9. This Court is of the view that the matter before Hon'ble Supreme Court in Ramdev Food Products (P) Ltd. v. State of Gujarat, (2015) 6 SCC 439 was scope of exercise of power u/s 156(3) and Section 202 of the Cr.P.C by the Magistrate. In this Case, the question is not the scope of exercise of power under section 202 of the Cr.P.C, but whether a complaint petition can be forwarded under section 156(3) of the Cr.P.C when it is not supported by an affidavit as laid down in Babu Venkatesh (supra) and Priyanka Srivastava (supra). It has been held in Babu Venkatesh v. State of Karnataka, (2022) 5 SCC 639 : 2022 SCC OnLine SC 200 at page 646:

24. This Court has clearly held that, a stage has come where applications under Section 156(3) CrPC are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

10. The Complainant had made prayer for forwarding the complaint u/s 156(3) Cr.P.C without an affidavit to the effect that he had moved competent authority for institution of the FIR. It would have been different if no such prayer for forwarding the complaint had been made in the complaint petition, and the Magistrate would have acted in his own discretion to forward the same for institution of FIR and investigation. The guideline(s) as referred to above in Babu Venkatesh (supra) being recent in point of time and explicit the Complaint could not have been forwarded without an affidavit as mandated. Forwarding of the case for institution as an FIR, is accordingly against the guidelines laid down by the Apex court as discussed above and is liable to be set aside.

11. There is prima facie material to show that Rs.1.25 Crores received by the petitioners by giving cash receipt of the same, the veracity of it is matter of adjudication. Mere pendency of the Civil Suit cannot be a ground for quashing

of the criminal case because victim is entitled to invoke both i.e. criminal as well as civil jurisdiction of the Court. The law is settled on the point that where there is intention of deception since inception, the offence under Section 420 IPC is made out. In compliance of the agreement, neither sale deed has been executed nor any amount has been returned which discloses the intention of the petitioners.

12. After having considered the submissions advanced on behalf of both sides and the materials on record, this court is of the view that there is direct and specific allegation against the petitioners that they have received huge sum as a consideration amount in reference to the agreement of sale from the informant, the veracity of which cannot be tested at this stage.

13. There is no inflexible proposition of law that in the event of available civil remedy, the victim of offence cannot invoke criminal remedy if offence is made out on the materials on record. The cases relied upon by the Learned Counsel on behalf of Petitioners do not lay down such a legal proposition that mere availability of civil remedy bars a person from filing a criminal case. It has been held in (2001) 8 SCC 645 M.Krishnan Vs Vijay Singh and Anr. that mere pendency of a civil suit between the parties cannot be a ground for quashing the criminal proceedings against the accused.

Under the aforesaid facts and circumstance of the case the order forwarding the Complaint under Section 156(3) Cr.P.C and the institution of FIR in Sakchi PS Case No.29 of 2021 with criminal proceeding arising there from is accordingly quashed.

The learned court below shall proceed as per law in C/1 Case No.203 of 2021.

Criminal Miscellaneous Petition is allowed accordingly.

(Gautam Kumar Choudhary, J.) Sandeep/

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