Balkishan Gupta vs State Of M.P.
2022 Latest Caselaw 5418 MP

                                1

             High Court Of Madhya Pradesh
                  Bench : Gwalior
                   *****************
   SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                         MCRC 3044 of 2010

                     Chandra Prakash Shrivastava
                                  Vs.
                     State of Madhya Pradesh & Ors.

                                     AND

                          MCRC 3002 of 2010

                            Balkishan Gupta
                                      Vs.
                       State of Madhya Pradesh & Ors.
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Shri JP Kushwah, counsel for the petitioners in both
petitions.
Smt. Abha Mishra, Public Prosecutor for the respondent/
State in both petitions.
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Reserved on :                                        06-04-2022
Whether approved for reporting :                     ...../......
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                                    ORDER

(Passed on 13 /04/2022)

Per Rajeev Kumar Shrivastava, J:-

This order shall govern disposal of MCRC No. 3002

of 2010 filled by Balkishan Gupta seeking quashment as

well as for setting aside the oder dated 27-01-2010 passed in

Private Complaint No.56/2010 registered at the instance of

complainant (herein respondents No.2 & 3) before the Court

of CJM, Datia.

(2) Since the facts of both petitions are same, therefore,

for the sake of convenience, I have heard both the petitions

simultaneously.

(3) Factual matrix of case in short is that on 21-08-2008

the complainant (herein respondents No.2 & 3) filed a

complaint alleging that on the basis of ''Will'' of one Vijay

Singh (who died on 04/06/2001) executed on 15-05- 2001

by Ramesh Yadav in the presence of witnesses, namely,

Harvendra Singh and Suresh Yadav, prepared by Notary,

Balkishan Gupta (petitioner in MCRC No. 3002 of 2010) as

well as by Chandra Prakash Shrivastava (petitioner in

MCRC No. 3044 of 2010), who are alleged to be Advocates,

one has drafted the said ''Will'' and another has notarized the

same. It is alleged in the complaint that earlier, an

application for mutation was filed by ''Will-holder'' Ramesh

Yadav before Naib Tahsildar, Karera and thereafter, an order

of mutation dated 06-08-2001 was passed by Naib Tahsildar

in favour of Ramesh Yadav. Against the order of mutation,

passed by Naib Tahsildar, the complainant (respondents No.

2 & 3) filed a Civil Suit before the Court of First Civil

Judge, Class- I, Datia whereby judgment and decree was

passed in favour of Ramesh Yadav. Being dissatisfied,

complainant thereafter filed an appeal before the Court of

Session challenging the judgment and decree dated 18-10-

2006 passed by Civil Court and both the Courts below have

given a concurrent finding confirming the correct and

genuineness of the said ''Will'' executed on the basis of

mutation order passed by Naib Tahsildar. Thereafter, the

aforesaid private complaint has been filed at the instance of

respondents No.2 and 3.

(4) It is argued on behalf of petitioners that a concurrent

finding has been given by the Courts below confirming the

genuineness and correctness of ''Will'' in question which was

executed at the behest of the petitioners and complainant is

an interested witness, who has filed a complaint after lapse

of seven years without assigned any reason. Earlier, the

complainant has availed an opportunity and challenged the

genuineness and correctness of ''Will'' in question before the

First Appellate Court and the appeal filed by complainant

was dismissed vide impugned judgment and decree dated

28-03-2008. It is further contended that there is a bar for

taking cognizance of offence after a period of limitation as

prescribed u/S 468 of IPC. In the light of provisions of

Section 468 of IPC, no steps can be initiated after lapse of

three years from the date of knowledge but the Court below

did not apply its mind upon the period of limitation. It is

further contended that both the petitioners are advocates,

one drafted the ''Will'' in question on the basis of disclosure

of Vijay Singh (since deceased) and another has motorized

the same, therefore, there is no role attributed against them

for commission of offence as alleged by complainant. It is

further contended that the instant complaint is against

documentary evidence on record, therefore, only on the

basis of oral evidence recorded u/Ss 200 & 202 of CrPC, no

cognizance could be taken against the petitioners. The

judgment and decree passed by the Courts below has not yet

been challenged by complainant before the Higher Court. It

is further contended that it is settled principle of law that

Civil Court has right to examine the genuineness and

correctness of ''Will'' after giving full opportunity of hearing

to complainant and it is very difficult to ascertain the fact

that as to whether the claim or grievance of the complainant

is honest or not and it is not possible to fasten the criminal

liability before deciding the right and title of disputed

property by means of civil suit. Once genuineness and

correctness of ''Will'' in question has been decided the

Courts below, no case is made out for initiating criminal

proceedings against petitioners. Only on the basis mala fide

intention, the instant complaint has been made by

complainant alleging commission of forgery. There is no

allegation pertaining to unlawful gain, dishonest or any

intent of causing injury or fraud with complainant,

therefore, basic ingredients of Section 420 IPC are lacking.

In support of contention, Counsel for the petitioners has

relied upon the judgments of Hon'ble Apex Court in the case

of Rakesh Rajan Gupta vs. State of UP, AIR 1999 SC

2115 and State of UP vs. Kapli Deo Shukla, AIR 1973 SC

494. It is further contended that the ''Will'' in question was

executed within the periphery of Karera, while private

complaint filed by complainant falls within the territory of

Datia, therefore, same is liable to be quashed on the

question of territorial jurisdiction and every offence shall be

enquired and tried by a Court within whose local

jurisdiction it was committed. Therefore, it is prayed that the

impugned order passed by the Court of CJM in the Private

Complaint No.56 of 2010 is liable to be quashed in the light

of judgment passed by the Hon'ble Apex Court in State of

Haryana vs. Ch. Bhajan Lal (1992 Supp (1) 335). It is

further contended that even if allegations made in the

complaint are to be true, no offence under Section 420 of

IPC is made out as the issue involved in the present matter

is purely civil in nature. Therefore, private complaint has

been filed by the complainant only with a view to harass

petitioners and it would be a clear abuse of process of Court

if criminal proceedings are allowed to continue. It is further

contended that so far as the liability of petitioners under the

disputed ''Will'' in question is concerned, same can be

judged in a civil proceeding and in this regard, Hon'ble

Apex Court in catena of decisions, since the very beginning

in a very clear term, has held that any civil liability cannot

be allowed to be executed through criminal case by exerting

pressure. For the purpose of constituting offence of

cheating, complainant is required to show that petitioners

had fraudulent or dishonest intention at the time of

execution of ''Will'' in question. Therefore, in absence of

intention at the time of execution of ''Will'', no offence u/S

420 of IPC can be said to have been made out against

petitioners.

(5) On the other hand, the learned Counsel for the State

contends that a bare reading of the impugned complaint

discloses commission of offence u/S 420 of IPC and same

discloses dishonest intention. It is further submitted that the

ingredients to constitute an offence of cheating are also

made out. This Court has jurisdiction to quash criminal

proceeding if it amounts to abuse of process of law or if

there is any intention of complainant to harass petitioners

but such jurisdiction would be exercised sparingly with care

and circumspection having regard to the facts and

circumstances of each case. He seriously opposed the relief

sought for herein by petitioners on the ground that

allegations levelled against them are not only serious in

nature to an individual but also involving a crime against

society and same are not liable to be quashed at this stage by

exercising inherent powers u/S 482 of CrPC. Hence, payed

for dismissal of both petitions.

(6) Heard learned counsel for the parties and perused the

documents available on record.

(7) Before adverting to the merits of the case, this Court

would like to consider the scope of interference under

Section 482 of Cr.P.C. In this regard, the Hon'ble Apex

Court in the case of Amit Kapoor v. Ramesh Chander

(2012) 9 SCC 460 has held as under :-

''27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such

power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the

court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. [Ref. State of W.B. v. Swapan Kumar Guha Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre; Janata Dal v. H.S.

Chowdhary; Rupan Deol Bajaj v. Kanwar Pal Singh Gill; G. Sagar Suri v. State of U.P.; Ajay Mitra v. State of M.P.; Pepsi Foods Ltd. v. Special Judicial Magistrate; State of U.P. v. O.P. Sharma; Ganesh Narayan Hegde v. S. Bangarappa; Zandu Pharmaceutical Works Ltd. v. Mohd.

Sharaful Haque; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.;

Shakson Belthissor v. State of Kerala; V.V.S. Rama Sharma v. State of U.P.; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu; Sheonandan Paswan v. State of Bihar; State of Bihar v. P.P. Sharma; Lalmuni Devi v. State of Bihar; M. Krishnan v. Vijay Singh; Savita v. State of Rajasthan and S.M. Datta v. State of Gujarat.] 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.''

(8) So far as genuineness and correctness of ''Will'' has

been decided by Courts below is concerned, as to whether

criminal proceedings can be initiated on the basis of private

complaint filed by complainant or not, the Hon'ble Apex

Court in Superintendent and Remembrancer vs Birendra

Chandra Chakravarty, (1974) 3 SCC 661 has held as

under:-

''6. The respondent had claimed that he had

actually bought Bansdroni properties himself for the use of his indigent disciples and that these were now trust properties dedicated for charitable purposes. We are unable to decide, on the evidence on record, whether the claim of the respondent is honest or a mere camouflage for cheating and roguery. We, however, think that it is not possible to fasten criminal liability, beyond reasonable doubt, upon the respondent before the right and the title to the Bansdroni properties is properly established by Smt. Saila Bala Devi by means of a civil suit. We think that the High Court was correct in coming to the conclusion, having regard to all the facts and circumstances of the case, that a dispute of an essentially civil nature had to be decided between Smt. Saila Bala Devi and the respondent before any question of criminal liability could be satisfactorily adjudicated upon.''

Similar view has been reiterated by Hon'ble Apex Court

in the matter of Hari Prasad Chamaria vs Bishun Kumar

Surekha & Ors. (1973) 2 SCC 823.

(9) On perusal of complaint along with documents

available on record as well as in the light of observations

made by the Hon'ble Apex Court, it appears that the dispute

arose is of civil nature. The complaint does not disclose

commission of offence u/S 420 of IPC as on the basis of

disclosure of Vijay Singh (since deceased), the ''Will'' in

question was executed in which the petitioners are alleged

to be Advocates, one drafted the said ''Will'' and another

notarized the same and there is no offence pertaining to

unlawful gain, dishonesty, intent with injury and fraud with

the complainant committed by petitioners and ingredients of

Section 420 IPC are lacking. There is no sufficient material

to fasten criminal liability on the petitioners for offence of

cheating, because in the case at hand, earlier an application

for mutation was filed by Will-holder Ramesh Yadav before

Naib Tahsildar whereby an order of mutation was passed in

favour of Ramesh Yadav. Against the order of mutation,

complainant (respondents No.2 & 3) filed a Civil Suit

before the Court of First Civil Judge, Class-I whereby a

judgment and decree was passed in favour of Ramesh

Yadav. Being dissatisfied, the complainant thereafter filed

an appeal before the Court of Session challenging the

judgment and decree passed by the Civil Court and both the

Courts below have given a concurrent finding confirming

the correct and genuineness of disputed ''Will'' in question

executed on the basis of mutation order passed by Naib

Tahsildar. Despite that, filing of private complaint itself

reflects a clear abuse of process of law as well as Court.

Even if the allegations made in the complaint are to be true,

no offence u/S 420 of IPC is made out against petitioners as

the issue involved in present matter is purely civil in nature.

The private complaint has been filed by complainant

(respondents no.2 and 3) only with a view to harass

petitioners and it would be a clear abuse of process of Court

if the criminal proceedings are allowed to continue.

(10) Resultanly, both petitions filed by petitioners deserve

to be and are hereby allowed. The impugned order passed

27-01-2010 passed by the Court of CJM, Datia in Private

Complaint No.56/2010 is hereby quashed.

(11) Let a certified copy of this order be sent to the

concerning Court for information as well as a copy of same

be kept in connected MCRC No.3002/2010 (Balkishan

Gupta Vs. State of Madhya Pradesh & Ors.)

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.04.13 17:31:14 +05'30'