Madhya Pradesh High Court
Nitin Vithal Rao Kale vs The State Of Madhya Pradesh on 20 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 133 of 2025
NITIN VITHAL RAO KALE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Romesh Pratap Singh - Advocate for the applicant.
Dr. Anjali Gyanani- Public Prosecutor for the State.
ORDER
This application under Section 482 of Cr.P.C. has been filed for
quashment of FIR in Crime No. 253/22 registered at Police station Phoonp,
District Bhind for offence under Sections 420, 467, 468, 471 of IPC.
2. Challenging the FIR, it is submitted by counsel for applicant that
the complainant had no occasion to know the name of applicant or Father of
applicant. No letter of allotment of petrol pump dealership was ever issued
by applicant. The statement of complainant with regard to fact that after
receiving an amount of Rs.3,00,000/-, a forged document of allotment was
given by applicant is false. Even otherwise, no cash amount was given by
complainant to the present applicant. Furthermore, it is submitted that on the
day when the applicant had allegedly given forged allotment order to the
complainant, applicant was not present on the site, as he was at some
different place.
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3. Per contra, the application is vehemently opposed by the counsel for
State.
4. Heard the learned counsel for the parties.
5. Before considering the facts of case this Court would like to
consider the law governing the field of exercise of power under Section 482
of Cr.P.C.
6. Whether the allegations are false or not?
7. This Court in exercise of power under Section 482 of Cr.P.C. can
quash the proceedings only if uncontroverted allegations do not make out an
offence.
8. The Supreme Court in the case of XYZ v. State of Gujarat reported
in (2019) 10 SCC 337 has held as under:
"14. Having heard the learned counsel for the parties and after
perusing the impugned order and other material placed on record,
we are of the view that the High Court exceeded the scope of its
jurisdiction conferred under Section 482 CrPC, and quashed the
proceedings. Even before the investigation is completed by the
investigating agency, the High Court entertained the writ petition,
and by virtue of interim order granted by the High Court, further
investigation was stalled. Having regard to the allegations made
by the appellant/informant, whether the 2nd respondent by
clicking inappropriate pictures of the appellant has blackmailed
her or not, and further the 2nd respondent has continued to
interfere by calling Shoukin Malik or
not are the matters for investigation. In view of the serious
allegations made in the complaint, we are of the view that the
High Court should not have made a roving inquiry while
considering the application filed under Section 482 CrPC. Though
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the learned counsel have made elaborate submissions on various
contentious issues, as we are of the view that any observation or
findings by this Court, will affect the investigation and trial, we
refrain from recording any findings on such issues. From a
perusal of the order of the High Court, it
is evident that the High Court has got carried away by the
agreement/settlement arrived at, between the parties, and recorded
a finding that the physical relationship of the appellant with the
2nd respondent was consensual. When it is the allegation of the
appellant, that such document itself is obtained under threat and
coercion, it is a matter to be investigated. Further, the complaint
of the appellant about interference by the 2nd respondent by
calling Shoukin Malik and further interference is also a matter for
investigation. By looking at the contents of the complaint and the
serious allegations made against 2nd respondent, we are of the
view that the High Court has committed error in quashing the
proceedings.
(Underline supplied)"
9. The Supreme Court in the case of State of Tamil Nadu Vs. S.
Martin & Ors. reported in (2018) 5 SCC 718 has held as under:-
"7. In our view the assessment made by the High Court at a stage
when the investigation was yet to be completed, is completely
incorrect and uncalled for ..........."
10. The Supreme Court in the case of Ajay Kumar Das v. State of
Jharkhand, reported in (2011) 12 SCC 319 has held as under :
"12. The counsel appearing for the appellant also drew our
attention to the same decision which is relied upon in the
impugned judgment by the High Court i.e. State of Haryana v.
Bhajan Lal. In the said decision, this Court held that it may not be
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possible to lay down any specific guidelines or watertight
compartment as to when the power under Section 482 CrPC could
be or is to be exercised. This Court, however, gave an exhaustive
list of various kinds of cases wherein such power could be
exercised. In para 103 of the said judgment, this Court, however,
hastened to add that as a note of caution it must be stated that the
power of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of
rare cases for the Court would not be justified in embarking upon
an inquiry as to the reliability or genuineness or otherwise of the
allegations made in the first information report or in the complaint
and that the extraordinary or the inherent powers do not confer an
arbitrary jurisdiction on the Court to act according to its whim or
caprice."
11. The Supreme Court in the case of Mohd. Akram Siddiqui v. State
of Bihar reported in (2019) 13 SCC 350 has held as under :
"5. Ordinarily and in the normal course, the High Court when
approached for quashing of a criminal proceeding will not
appreciate the defence of the accused; neither would it consider
the veracity of the document(s) on which the accused relies.
However an exception has been carved out by this Court in Yin
Cheng Hsiung v. Essem Chemical Industries; State of Haryana v.
Bhajan Lal and Harshendra Kumar D. v. Rebatilata Koley to the
effect that in an appropriate case where the document relied upon
is a public document or where veracity thereof is not disputed by
the complainant, the same can be considered."
12. The Supreme Court in the case of State of A.P. v. Gourishetty
Mahesh reported in (2010) 11 SCC 226 has held as under :
"18. While exercising jurisdiction under Section 482 of the Code,
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the High Court would not ordinarily embark upon an enquiry
whether the evidence in question is reliable or not or whether on a
reasonable appreciation of it accusation would not be sustained.
That is the function of the trial Judge/Court. It is true that the
Court should be circumspect and judicious in exercising
discretion and should take all relevant facts and circumstances
into consideration before issuing process, otherwise, it would be
an instrument in the hands of a private complainant to unleash
vendetta to harass any person needlessly. At the same time,
Section 482 is not an instrument handed over to an accused to
short-circuit a prosecution and brings about its closure without
full-fledged enquiry.
19. Though the High Court may exercise its power relating to
cognizable offences to prevent abuse of process of any court or
otherwise to secure the ends of justice, the power should be
exercised sparingly. For example, where the allegations made in
the FIR or 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 or allegations in
the FIR do not disclose a cognizable offence or do not disclose
commission of any offence and make out a case against the
accused or where there is express legal bar provided in any of the
provisions of the Code or in any other enactment under which a
criminal proceeding is initiated or sufficient material to show that
the criminal proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused due to private and
personal grudge, the High Court may step in.
20. Though the powers possessed by the High Court under
Section 482 are wide, however, such power requires care/caution
in its exercise. The interference must be on sound principles and
the inherent power should not be exercised to stifle a legitimate
prosecution. We make it clear that if the allegations set out in the
complaint do not constitute the offence of which cognizance has
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been taken by the Magistrate, it is open to the High Court to
quash the same in exercise of inherent powers under Section
482."
13. The Supreme Court in the case of M. Srikanth v. State of
Telangana, reported in (2019) 10 SCC 373 has held as under :
"17. It could thus be seen, that this Court has held, that where the
allegations made in the FIR or the complaint, even if they are
taken at their face value and accepted in their entirety do not
prima facie constitute a case against the accused, the High Court
would be justified in quashing the proceedings. Further, it has
been held that where the uncontroverted allegations in the FIR
and the evidence collected in support of the same do not disclose
any offence and make out a case against the accused, the Court
would be justified in quashing the proceedings."
14. The Supreme Court in the case of CBI v. Arvind Khanna reported
in (2019) 10 SCC 686 has held as under :
"17. After perusing the impugned order and on hearing the
submissions made by the learned Senior Counsel on both sides,
we are of the view that the impugned order passed by the High
Court is not sustainable. In a petition filed under Section 482
CrPC, the High Court has recorded findings on several disputed
facts and allowed the petition. Defence of the accused is to be
tested after appreciating the evidence during trial. The very fact
that the High Court, in this case, went into the most minute
details, on the allegations made by the appellant CBI, and the
defence put forth by the respondent, led us to a conclusion that
the High Court has exceeded its power, while exercising its
inherent jurisdiction under Section 482 CrPC.
18. In our view, the assessment made by the High Court at this
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stage, when the matter has been taken cognizance of by the
competent court, is completely incorrect and uncalled for."
15. Further, the Supreme Court in the case of State of MP Vs. Kunwar
Singh by order dated 30.06.2021 passed in Cr.A. No.709/2021 has held that
a detailed and meticulous appreciation of evidence at the stage of 482 of
CrPC is not permissible and should not be done. In the case of Kunwar Singh
(supra), the Supreme Court held as under:-
"8........At this stage, the High Court ought not to be scrutinizing
the material in the manner in which the trial court would do in the
course of the criminal trial after evidence is adduced. In doing so,
the High Court has exceeded the well-settled limits on the
exercise of the jurisdiction under Section 482 of CrPC. A detailed
enquiry into the merits of the allegations was not warranted. The
FIR is not expected to be an encyclopedia..........."
16. Similar view has been taken by Supreme Court in the cases of
Munshiram Vs. State of Rajasthan reported in (2018) 5 SCC 678, Teeja
Devi Vs. State of Rajasthan reported in (2014) 15 SCC 221, State of Orissa
Vs. Ujjal Kumar Burdhan reported in (2012) 4 SCC 547, S. Khushboo Vs.
Kanniammal reported in (2010) 5 SCC 600, Sangeeta Agrawal Vs. State of
U.P. reported in (2019) 2 SCC 336, Amit Kapoor Vs. Ramesh Chander
reported in (2012) 9 SCC 460, Padal Venkata Rama Reddy Vs. Kovuri
Satyanarayana Reddy reported in (2012) 12 SCC 437, M.N. Ojha Vs. Alok
Kumar Srivastav reported in (2009) 9 SCC 682 .
17. Therefore, whether the allegations made in the FIR are correct or
not is beyond the scope of this application and it is for the trial Court to
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decide the same after recording evidence.
18. The complainant made a complaint to police and accordingly a
preliminary enquiry was conducted and after the preliminary enquiry, the
F.I.R. was lodged on the ground that co-accused Nilesh Shinde projected
himself to be Chief H.R. of Hindustan Petroleum Corporation Limited,
whereas the applicant projected himself Depot Manager. They carried out an
inspection and forged documents were issued to complainant after receiving
an amount of Rs.3,00,000/-. When the police tried to get documents verified
from the headquarters of Hindustan Petroleum Corporation Limited,
Mumbai then it was informed that neither Nilesh Shinde nor applicant are
employees of Hindustan Petroleum Corporation Limited. Even no letter was
ever issued by Hindustan Petroleum Corporation Limited to complainant.
Thus, it was alleged that by falsely projecting themselves to be Chief of H.R.
and Depot Manager, co-accused Nilesh Shinde and applicant have defrauded
and cheated the complainant by issuing a forged first information letter, and
in lieu thereof they have received an amount of Rs.3,00,000/-.
19. So far as the question of plea of alibi is concerned, it is admittedly
a disputed question of fact which has to be proved by accused by leading
cogent evidence.
20. 13. The Supreme Court in the case of S.K.Sattar v. State of
Maharashtra, reported in (2010) 8 SCC 430 has held as under :-
"35. Undoubtedly, the burden of establishing the plea of alibi lay
upon the appellant. The appellant herein has miserably failed to
bring on record any facts or circumstances which would make the
plea of his absence even probable, let alone, being proved beyond
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reasonable doubt. The plea of alibi had to be proved with absolute
certainty so as to completely exclude the possibility of the
presence of the appellant in the rented premises at the relevant
time. When a plea of alibi is raised by an accused it is for the
accused to establish the said plea by positive evidence which has
not been led in the present case. We may also notice here at this
stage the proposition of law laid down in Gurpreet Singh v. State
of Haryana as follows: (SCC p. 27, para 20) "20. ... This plea of
alibi stands disbelieved by both the courts and since the plea of
alibi is a question of fact and since both the courts concurrently
found that fact against the appellant, the accused, this Court in our
view, cannot on an appeal by special leave go behind the
abovenoted concurrent finding of fact." 36. But it is also correct
that, even though the plea of alibi of the appellant is not
established, it was for the prosecution to prove the case against
the appellant. To this extent, the submission of the learned
counsel for the appellant was correct. The failure of the plea of
alibi would not necessarily lead to the success of the prosecution
case which has to be independently proved by the prosecution
beyond reasonable doubt. Being aware of the aforesaid principle
of law, the trial court as also the High Court examined the
circumstantial evidence to exclude the possibility of the
innocence of the appellant."
21. Under these circumstances, this Court is of considered opinion that
this Court while exercising power under Section 482 of Cr.P.C. cannot
adjudicate upon the disputed question of fact with regard to plea of alibi.
22. So far as the contention of applicant that he has been falsely
implicated, and he had never defrauded the complainant is concerned, it is
well established principle of law that this court while exercising power under
Section 482 of Cr.P.C cannot embark upon a detailed enquiry and cannot
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conduct a mini trial, further cannot adjudicate the correctness and
genuineness of allegations. This court can quash the proceedings only if un-
controverted allegations accepted on their face value, do not make out an
offence. So far as the submissions that applicant had not received any
amount from the complainant is concerned, the same is misconceived.
Section 34 of IPC makes it clear that a person sharing common intention will
also be vicariously liable. According to complainant, co-accused Nilesh
Shinde and the applicant went to complainant and demanded Rs.3,00,000/-
and accordingly, complainant gave Rs.3,00,000/- to co-accused Nilesh
Shinde in the presence of applicant and thereafter, applicant and co-accused
handed over a forged letter purportedly issued by Hindustan Petroleum
Corporation Limited.
23. Whether that letter contains the signature of applicant and co-
accused or not is not material. Once ocular evidence that letter was given by
applicant and co-accused and according to Hindustan Petroleum Corporation
Limited neither applicant and co-accused are the employees of Hindustan
Petroleum Corporation Limited nor any such letter was ever issued by
company and no such letter was ever handed over to the complainant, this
Court is of considered opinion that there is sufficient material on record to
suggest that there is prima facie material warranting prosecution of the
applicant.
24. Considering the totality of the facts and circumstances of the case,
this Court is of considered opinion that no case is made out for quashment of
F.I.R. or for quashment of charge-sheet.
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25. Accordingly, the application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
PjS/-
