Gurmeet Kaur And Another vs State Of Uttarakhand And Another
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       IN THE HIGH COURT OF UTTARAKHAND

                           AT NAINITAL

     Criminal Miscellaneous Application No. 395 of
                         2022
               (Under Article 226 of Constitution of India)



Gurmeet Kaur and Another
                                                     .......Petitioners


                                 Versus


State of Uttarakhand and Another

                                                   ......Respondents

Mr. Sanjay Bhatt, learned Advocate for the petitioners.
Mr. V.K. Gemini, D.A.G. for the State of Uttarakhand.
Mr. Nagesh Agarwal, Advocate for the private respondents.


                                         Dated: 17th February, 2023

Hon'ble Sharad Kumar Sharma, J.

With the history of litigation, particularly on a criminal side, it has been experienced, that the limited jurisdiction under Section 482 of the Cr.P.C. is being exercised, which is confined only to rectify the legal procedure flaw is being attempted to be invariably invoked in order to install the proceedings for the trial court to avoid the prosecution and further to delay it. In fact, attempt has also been made to argue 482 application as if the argument has been extended towards the regular appeal. This would not be the scope of 482.

2. The scope of 482 has been dealt with by the Hon'ble Apex Court in the matters of State of Andra Pradesh Vs. Gurushetty Mahesh, wherein, the

Hon'ble Apex Court has observed that while exercising jurisdiction under Section 482, the High Court should not ordinarily embark upon enquiry whether the evidence in question is reliable or not or reasonable apprehension of its acquisition, it could not be sustained. It has been observed that this particular perspective would always be a function of the trial court and not that of the High Court while exercising its jurisdiction under Section 482.

3. The past experience of litigation has also forced upon the Hon'ble Apex Court to observe that the basic purpose as of now which is being resorted to by invoking the jurisdiction under Section 482 is that it is with an oblique motive in order to circumvent the prescribed procedure or to delay the trial, which might enable to win over the witness or may create a disinterest in giving evidence which may be ultimately resulting into miscarriage of justice. The said view has been taken by the Hon'ble Apex Court in the judgment reported in (2008) 1 SCC 474.

4. The Hon'ble Apex Court in yet another judgment reported in (2006) 8 SCC 781 has observed that the High Court while exercising its jurisdiction under Section 482, it can do so only sparingly and in a rare case, where, the proceedings itself is void from its inception. It cannot be invariably exercised by simplicitor giving a challenge to the summoning order or the charge sheet as the propriety of it would always be a subject-matter which is to be undergone by the trial after providing the appropriate opportunity to the parties concerned.

5. Time and again, this issue had come up before different High Courts and the High Courts have laid down that ordinarily the High Court should not act as a court of appeal or a revision under the garb of invocation of a jurisdiction under Section

482. The said opinion has been derived on the well- settled norms that inherent powers under Section 482 can be exercised only when no other remedy is available to a litigant, but, it cannot be resorted to as a weapon to avoid to face a trial so that the ultimate conclusion could be arrived at with regards to the commission of an offence whether at all it has been made out or not. Preventing of an abuse as it has been envisaged under Section 482 cannot be enlarged to such an extent that to attract the preposition of an abuse of process, the High Courts could be called upon to appreciate evidence and make a comparative scrutiny of the statements and the allegations leveled in the FIR. This has what has been attempted to be done in the instant case. In the instant case, the FIR was registered by the complainant respondent being FIR No. 104 dated 09.05.2021 for the offences under Section 406 and 420 of IPC in relation to some money transactions which has been referred to in the contents of the FIR itself which has exchanged hands at different stages. Initially, a sum of Rs. 1 Lakh was transferred and thereafter it is alleged that Rs. 4 Lakh was also given to the applicant. Later on, when the same was demanded, it was denied to be paid and consequently, it has resulted into a registration of the said FIR, on the ground that the money which has exchanged hands was under the pretext of a certain

deed of conveyance, which was supposed to be executed between the parties and the amount of Rs. 5 Lakh was given as an earnest money.

6. It was portrayed by the applicant, at the stage when the 482 application was being argued that, since the money has been exchanged on the basis of the term of the agreement, if at all it is required to be recovered, it could be recovered by resorting to a civil recourse because the payment of the same is based upon an agreement which has been referred to in the FIR, which related to dealing with the immovable property. In order to cull out his case that the offences complained of in the FIR for section 406 and 420 would not be made out. The counsel for the applicant has attempted to call upon the court exercising its inherent jurisdiction under Section 482 to barge over and scrutinize the statement of the witnesses and particularly Mr. Naveen Kumar which was recorded before the court below for the purposes to develop a case in order to avoid to face the criminal trial. What is important herein is that and which is quite apparent too that on one hand, the applicant is putting a challenge to the summoning order and the charge sheet which has been issued by the learned trial court in Criminal Case No. 6886 of 2021, State Vs. Gurmeet Kaur, but, while on the other side, during the course of the argument extended, he has made statement at the Bar that he is willing to remit back the money to the complainant respondent which is being vehemently opposed by the respondent's counsel on the ground that this assurance given is a fake assurance because despite of various request made for

remittance of the money, and despite of the assurances extended, the money has not been remitted back.

7. Two issues would flow from it herein; (1) that the applicant by his statement during the course of argument admits the liability. Admission of a liability will itself amount to that it was an offence falling within the ambit of Section 406 and the very fact that the counsel for the respondent has himself submitted that despite of various assurances given by the applicant, he has not given the money, that itself shows the very conduct of the applicant, which in itself would be one of the grounds to be considered as per the judgment of the Hon'ble Apex Court as reported in (2021) SCC Online SC 976, Mitesh Kumar J. Sha Vs. State of Karnataka. The Hon'ble Apex Court while constituting two judges bench was dealing with an aspect as to whether the necessary ingredients for commission of offence under Sections 406 and 420 are prima facie made out or not and whether at all the sale of flat which was under consideration therein, under the term of the contract was a breach in itself thereby constituting an offence of cheating. Thirdly, whether when there is a breach of satisfying the terms of the contract in relation to the sale of immovable property, whether the dispute is one of entirely civil in nature and therefore, liable to be quashed. In fact, this was one of the perspective which the applicant had succeeded to persuade the court at the stage when the interim order was granted by presenting his argument from the viewpoint since the amount which was paid was because of the agreement to sell certain property and

hence, it was portrayed that it would be a civil dispute which has been given a criminal colour.

8. In fact, initially, the Hon'ble Apex Court had a view that if a civil proceedings is given a criminal color, the proceedings will be barred in the light of the judgment of the Hon'ble Apex Court, as laid down by the bench of the same strength in the matters of State of Haryana and Others Vs. Bhajan Lal. But, contrary to it, the judgment of the Hon'ble Apex Court in the matters of Mitesh Kumar J. Sha particularly in paragraph 26 has formulated the questions which are required to be answered, for the purposes of making out of a case under Section 406 and 420. In those circumstances of the case, where, it relates to dealing with an immovable property under the terms of an agreement, in order to establish as to whether the offences satisfy the ingredients of the offence under Section 406 and 420 or not. The Hon'ble Apex Court ultimately on the basis of the appreciation of the respective cases had laid down the following observations in paragraph 39 to 43 of the said judgment and the said aspect has been considered in the context of Bhajan Lal judgment in paragraph 44 for the purposes of exercising the inherent jurisdiction under Section

482. While dealing with the principles laid down by the said judgment of the Hon'ble Apex Court of the equal strength, the Hon'ble Apex Court in paragraph 46 has observed that in the light of the judgment, as rendered in Criminal Appeal No. 932 of 2021, decided on 02.09.2021 in the matters of Randhir Singh Vs. State of U.P., it is observed as a long standing principles that criminal proceedings must not be

used as an instrument of harassment is not justified because there could be a situation when the controversy pertaining to dealing with an immovable property under the terms of the agreement may too have an element of the commission of an criminal offence and hence, an isolated principle that every criminal case which has a civil element should not be used as a cloak is a principle which has been divergently considered by the Hon'ble Apex Court in the recent judgment by a bench of equal strength.

9. Rather, paragraph 39 onwards is taken into consideration for the purposes of determining a criminal liability to be subjected to scrutiny under Section 482, the Hon'ble Apex Court has also laid down that the courts exercising powers under Section 482 has had to also look into the dishonest or fraudulent intention of the applicant not to honour the terms of the contract or a breach of a contract in relation to a transaction of an immovable property. The Court has observed that a fraudulent intention itself involves a determination of an issue which though, despite being having a civil colour will also have a blend of a criminal nature in it when there is a deliberate intention to deceit and which in the instant case is quite apparent when despite of this prolonged litigation, the applicant faced with the situation makes a statement that he is willing to pay the money. Making the statement for the remittance of an amount at this stage will itself establish that the basic intention of the Hon'ble Apex Court as observed in Mitesh Kumar J. Sha case was quite well in existence in the instant case where the applicant had a basic intent to deceit the respondent

complainant by not remitting the amount, which he has admitted to be paid in the proceedings of the present 482 application at this stage. For the reasons aforesaid, this Court comes to the following conclusion that invariably a common yardstick of an argument raised on the basis of Bhajan Lal's judgment that a civil proceedings should not be given a criminal colour by drawing the criminal case, in fact, has to be tested based upon the circumstances of each case independently and that is what has been laid down by the recent judgment of the Hon'ble Apex Court which has drawn a distinction while interpreting the judgment of Bhajan Lal too as referred to in the said judgment in paragraph 44.

10. In that eventuality, where the applicant admits his liability without actually remitting the same, is an apparent expression in itself of a dishonest intention. Hence, initiation of the proceedings under Section 406 which deals with an element of cheating as it has been considered by the Hon'ble Court in the said judgment, it would attract Section 420 of the IPC. Hence, for the reasons aforesaid, I do not find any merit in the 482 application, the 482 application lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 17.02.2023 Ujjwal