Court No. - 65
Case :- CRIMINAL REVISION No. - 1750 of 2019 Revisionist :- Smt. Nigar Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Rama Shanker Mishra Counsel for Opposite Party :- G.A.,Ganesh Mani
Hon'ble Karuna Nand Bajpayee,J.
Sri Ganesh Mani Tripathi, Advocate has filed his vakalatnama on behalf of opposite party no.2, which is taken on record.
This criminal revision is directed against the order dated 6.4.2019 passed by the Chief Metropolitan Magistrate, Kanpur Nagar in Case No. 25926 of 2018, State versus Smt. Nigar and another, arising out of Case Crime No. 378 of 2017, under Sections 420, 406, 504 and 506 IPC, P.S. Railbazar, District Kanpur Nagar.
Heard learned counsel for the revisionist, learned AGA, learned counsel for opposite party no.2 and perused the record.
Submission of learned counsel for the revisionist is that the court below had failed to appreciate the fact that the dispute was of civil in nature but the opposite party no. 2 had dragged the matter into criminal forum in order to exert coercive pressure upon the revisionist. Further submission is that it was the opposite party no. 2 who had not paid the entire amount of sale consideration and in such situation it cannot be said that the revisionist had committed any offence. Certain other contentions have also been raised by the counsel for the revisionist but all of them relate to disputed questions of fact. The court has also been called upon to adjudge the worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
A perusal of the F.I.R. of the preset case shows that the revisionist had executed a registered sale deed in favour of the firm of the opposite party no. 2 for a consideration of Rs. 55 lakh. It has been mentioned in the F.I.R. that the opposite party no. 2 had paid the sale consideration by 11 cheques of Rs. 5 lakh each. Allegation is that the revisionist had already received Rs. 30 lakh but the possession of the house was not given to the opposite party no.2. Further allegation is that the revisionist while executing sale deed in favour of the firm of the opposite party no. 2 had concealed the fact that on 15.2.1993 its earlier owner Smt. Khairunnisha had executed a registered agreement to sell in favour of Mohd. Aslam Siddiqui (husband of the revisionist) and his brother Suhaib Ahmad Siddiqui. Allegation is that the said agreement to sell was never cancelled. The Investigating Officer after conducting full fledged and fair investigation on the basis of statement of the witnesses as well as on the basis of perusal of other documents, found that the applicant had committed offence punishable under Sections 420, 406, 504, 506 I.P.C. and therefore, charge sheet under the aforesaid sections has been filed against her. Learned Magistrate after perusing the documents including the case diary had taken cognizance vide order dated 21.2.2019. A perusal of the order dated 06.4.2019 shows that the same has been passed after due consideration of entire evidence present on record. The court below had pointed out that the fact of earlier agreement to sell dated 15.2.1993 executed by its earlier owner Smt. Khairunnisha in favour of Mohd. Aslam Siddiqui (husband of the revisionist) and Suhaib Ahmad Siddiqui was concealed by the revisionist. When the aforesaid Suhaib Ahmad Siddiqui had filed a civil suit for the aforesaid property then only the first informant came to know regarding the property and thereafter, he stopped remaining payment of cheques by the bank. The order dated 6.4.2019 passed by the learned C.M.M., Kanpur Nagar is a reasoned one and does not suffer from any illegality, irregularity or infirmity.
So far as the law with regard to maintainability of criminal prosecution in regard to matters which also disclose civil liability is concerned, it has been well settled by a catena of Apex Court's decisions. In many of the disputes the facts and circumstances are such that the matter gives rise to civil and the criminal liabilities both. The matters with regard to civil liability are decided on the basis of preponderance of probability while the matters relating to the criminal liability are to be decided on the basis of proof beyond reasonable doubt. Both of the proceedings can go on against an accused simultaneously and he can be held liable for both the liabilities. The criminal prosecution and the proceedings with regard to civil liability of the same accused are not mutually exclusive to each other. Therefore a complaint or criminal prosecution cannot be allowed to be axed down at the very threshold just because the controversy in question has also a civil complexion or a civil outfit. The reliefs which a civil court can give to the aggrieved person cannot be the same which a criminal court can give. Similarly the punishment which a criminal court can award cannot be awarded by a civil court for the guilt to an accused if he has committed some offence. The law is that if the controversy involved is such which is essentially of civil nature and a criminal complexion to the same has been lent to it just deliberately and maliciously in order to harass the accused, it is only in such matters that the higher courts can feel persuaded to interfere and quash the criminal prosecution. There are cases in which the complaint or the material available on record or collected during the investigation does not disclose or constitute any criminal offence at all, they are certainly the fit cases in which the court can come up to the rescue of an accused. But the facts of the case and the material available are such which clearly makes out criminal offences and the accused can very well be saddled with criminal liability on the basis of the allegations made against them and therefore, the civil facets or aspect of the litigation cannot be allowed to scuttle the criminal prosecution of the accused which must be allowed to take its logical course in accordance with law.
The position of law on this point is clearly discernible from the following observation of the Hon. Supreme Court in the case of Tamil Nadu Mercantile Bank Ltd. vs. State through Deputy Superintendent of Police and Anr, 2014 (3) SCC 755 :
"10. It is also a law settled by this Court and reiterated in the case of Monica Kumar (Dr.) vs. State of U.P., 2008 (8) SCC 781 that criminal proceedings can continue even if the allegation discloses a civil dispute also. It is only when the dispute is purely civil in nature but still the party chooses to initiate criminal proceeding, the criminal proceeding may be quashed. For such purpose also the Court, save and accept in very exceptional circumstances would not look to any document relied upon by the defence."
The submissions made by the revisionist's learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore does not feel persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the impugned proceedings is refused as I do not see any abuse of the Court's process either.
The revision is accordingly, dismissed.
Order Date :- 30.4.2019 CPP/-/Naresh