I have heard the learned counsel for the applicants and the learned AGA for the State and perused the papers filed along with the application.
2. This application seeks to quash the summoning order dated 27.8.2014 as well as proceedings of Complaint case no. 447 of 2014 (Harmun Tiwari Vs. Savitri Devi & others) u/s 419, 420 IPC, P. S. Tariya Sujan, District Kushinagar, pending in the Court of Chief Judicial Magistrate, Kushinagar.
3. It appears that the opposite party no. 2 has filed a criminal complaint on 22.3.2014 in the Court of the Chief Judicial Magistrate, Kushinagar against the applicants and three others contending that the predecessor-in-interest of applicants namely Shyam Sunder Tiwari had executed a registered sale deed on 3.8.1995 in favour of Smt. Prabhawati wife of opposite party no. 2 in respect of his 1/3rd share in Arazi no. 176 area 0.644 i. e. 0.215 hectare situated in village Jhadva and delivered possession and since then the O. P. no. 2 is in possession thereof as his wife had died. It was further alleged that the applicants and three others named in the complaint inspite of having knowledge of the above sale transaction, hatched conspiracy and in order to cause wrongful loss to complainant and wrongful gain to themselves, prepared a forged sale deed on 19.10.2012 and got it registered. After enquiry under Chapter XV Cr. P. C., the learned Magistrate vide order dated 27.8.2014 has taken cognizance against the applicants for the offence punishable u/s 419 and 420 IPC. However, the three others named in the complainant (the vendees) were not summoned.
4. The contention of learned counsel for the applicants is that no offence against the applicants is disclosed in the complaint and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has submitted that the dispute between the parties is purely of civil nature, as suit for cancellation of sale deed in question filed by the applicants is pending in the Civil Court; that application of the applicants for setting aside exparte mutation order dated 2.4.2014 is pending. He has referred to the documents and statements filed in the case to support his contention.
5. The applicants have not filed the copy of sale deed dated 19.10.2012 allegedly executed by them in favour of Aysha Khatoon and two others (not summoned in the case). The instant complaint had been filed on 22.3.2014 and after recording statement of complainant u/s 200 Cr. P. C. and his witnesses u/s 202 Cr. P. C., cognizance against the applicants has been taken vide order 27.8.2014, whereas the suit for cancellation of two sale deeds dated 31.8.1995 (incorrect date, as it is 3.8.1995) and 10.7.2009 had been filed by the applicants in the Court Civil Judge (Jr. Div.) Kasia (Kushinagar) on 8.10.2014.
6. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R. P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P. P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
7. In support of his arguments, learned counsel for the applicants has placed reliance on the cases of Indra Mohan Goswami Vs. State of Uttaranchal AIR 2008 SC 251 and Dharmendra Singh and others Vs. Sant Saran Gupta and another 2011 (72) ACC 111. I have perused both these reports, but on account of totally distinguished facts, the ratio of these cases do not apply to the facts of the instant case. In those cases the impugned transactions between the parties were commercial and there were contractual obligations of the parties also.
8. Here I may refer to the case of Arun Bhandari Vs. State of U. P. and others (2013) 2 SCC 801, wherein the Apex Court after evaluating various judgments of the Court on the point, has observed as under:
24. At this stage, we may usefully note that some times a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. In this context, we may reproduce a passage from Mohammed Ibrahim and others v. State of Bihar and another (2009) 8 SCC 751 :
"8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes (See G. Sagar Suri Vs. State of U. P. (20000 2 SCC 636 and Indian Oil Corpn. Vs. NEPC India Ltd. (2006) 6 SCC 736."
9. In view of the above discussion, we find that the averments made in the complaint filed by O. P. no. 2 ingredients of the offence of cheating by applicants are prima facie made out and the learned Magistrate in the impugned order has not committed any illegality, impropriety or irregularity in taking cognizance against the applicants. However, these observations are limited for the disposal of the instant application u/s 482 Cr. P. C. and nothing more than that. The trial Court would consider and decide the case on the basis of evidence adduced by the parties in the case irrespective of any observations in this order.
10. Now as regards the inherent powers of the High Court u/s 482 Cr. P. C. to quash the proceedings of criminal case pending before the Magistrate at initial stage, it is trite that exercise of such jurisdiction to have the complaint or the charge sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. The complaint or the First information report sets the ball to roll and then the law takes its own course and the investigation ensues in accordance with the provisions of the Code. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. However, if on perusal of the complaint or the charge sheet the Court is able to conclude that the allegations contained therein on the face of it does not constitute or disclose any offence, there ought not to be any hesitation to deal with the situation as is required under the law. Generally criminal proceedings in the normal course of event ought not to be scuttled at the initial stage unless the same amount to an abuse of the process of law.
11. In R. Kalyani Vs. Janak C. Mehta and others (2009) 1 SCC 516 after referring to the decisions in Hamida Vs. Rashid (2008) 1 SCC 474 and State of Orissa Vs. Saroj Kumar Sahoo (2005) 13 SCC 540 the Apex Court culled out the following propositions with respect to the powers of the High Court u/s 482 Cr. P. C.: -
"15. Propositions of law which emerge from the said decisions are:
a). The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
b). For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
c). Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
d). If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
Thus, applying the above tests to the facts of the instant case as well, it is clearly borne out that the instant complaint of respondent no. 2 is not in any manner abuse of process of the Court.
12. Before parting with the case, it is noteworthy that the opposite party no. 2 has filed the instant complaint only with regard to the sale deed dated 3.8.1995, however, the applicants have included a sale deed dated 10.7.2009 executed by Shyam Sunder Tiwari in favour of Smt. Prabhawati wife of opposite party no. 2, for cancellation in their civil suit no. 1347 of 2014. Both the parties are residents of the same village and extract khatauni filed by the applicants would show that opposite party no. 2 is the real brother of Shyam Sunder, predecessor-in-interest of the applicant. Further in para-4 of the plaint of aforesaid suit (Annexure-9), the applicants have given the date of knowledge of the sale-deed in question dated 31.8.1995 (incorrect date), as April, 2004, so the question of limitation for cancellation of sale-deed in the suit would be of paramount consideration.
13. In view of what has been said and done above it is found that the instant application u/s 482 Cr. P. C. lacks merits and it is accordingly dismissed.