State Of Gujarat & 1 ­

1. As all these applications are arising out of the same First Information Report, same are considered and decided by this common judgment.

2. The present applications have been filed by the applicants under Section 482 of the Code of Criminal Procedure for the prayer that FIR being C.R.No.I­40/2012 registered with D.C.B. Police Station at Ahmedabad at Annexure­A may be quashed and set aside on the grounds stated in the application. It is also prayed to stay further investigation in connection with the said FIR.

3. Heard learned Sr. Counsel, Mr.S.V. Raju appearing for the applicants and learned APP Mr.H.L. Jani for the respondent­State.

4. Learned Sr. Counsel, Mr.Raju for the applicants has submitted that the complaint at Annexure­A is an abuse of process of the law and is filed only to pressurize and extort money from the applicants. Learned Sr. counsel, Mr.Raju submitted that the complainant has given up his rights qua the plots of land and, therefore, he cannot have any grievance. For that purpose, learned Sr. Counsel, Mr.Raju has referred to the papers and indemnity­cum­declaration produced on record and emphasized that it has been accepted that he does not have any dispute, claim or grievance against the developer. He submitted that it was agreed that the developer is free to deal with the same in any manner. Learned Sr. Counsel, Mr.Raju submitted that when MOU has been entered into and when the complainant has given an indemnity­cum­ declaration that he does not have any right over the plots in question, he cannot file such complaint. Learned counsel Sr. Counsel, Raju submitted that the complainant has pocketed huge amount and in fact has not passed on the paper/ declaration as per MOU with a view to get more money.

5. Learned Sr. Counsel, Mr.Raju submitted that it is an unfair litigation where the applicants are being harassed and more money is sought to be extorted. Learned Sr. Counsel, Mr.Raju has referred to FIR at Annexure­A produced on record being C.R.No.I­40/2012 and also earlier FIR being C.R.No.I­45/2011 dated 29.04.2011. Learned Sr. Counsel, Mr.Raju emphasized and submitted that earlier FIR was also with regard to the same land/Survey number and plots of land, same transaction and earlier petition for quashing FIR under Section 482 of the Criminal Procedure Code has been allowed with consent in view of MOU/settlement between the parties. Learned Sr. Counsel, Mr.Raju strenuously submitted that therefore fresh FIR, which is being filed bearing C.R.No.I­40/2012 dated 15.06.2012 is filed with malafide intention to knock out money from the applicants.

6. Learned Sr. Counsel, Mr.Raju submitted that the applicant of Criminal Misc. Application No.10482/2012 is sought to be implicated falsely as in the earlier FIR, his name was not there and now he is sought to be roped in. Learned Sr. Counsel, Mr.Raju submitted that there cannot be any vicarious liability for the criminal case for the alleged offences and the present applicants has been roped in subsequently. He has referred to and relied upon the judgment of the Hon'ble Apex Court in case of B. Suresh Yadav Vs. Sharifa Bee & Anr., reported in (2007) 13 SCC 107 and submitted that as observed by the Hon'ble Apex Court, when the dispute is of civil nature and the contrary stand is taken in civil and criminal proceedings, FIR is liable to be quashed. He emphasized the observations made in Para No.13. Learned Sr. Counsel, Mr.Raju strenuously submitted that necessary ingredient for the alleged offences under Sections 465 and 468 of the Indian Penal Code cannot be said to have been made out. He strenuously submitted that when MOU and indemnity­ cum­declaration has been filed and earlier FIR being C.R.No.I­45/2011 is quashed with the consent of the parties, present FIR for the same land in question is an abuse of process of law. He emphasized and submitted that therefore at the most, the dispute is with regard to non­compliance or the breach of MOU, which would not constitute the offence and necessary ingredient for the alleged offences cannot be said to have been made out. He submitted that the vague allegations are made in the FIR like shot in the dark. Learned Sr. Counsel, Mr.Raju, therefore, referred to Sections 465 and 468 of the Indian Penal Code and submitted that necessary ingredient for the alleged offence about the forgery are not fulfilled on the basis of vague allegations in the FIR. In support of this submission, he has referred to and relied upon of the Hon'ble Apex Court in case of Neelu Chopra & Anr. Vs. Bharti, reported in (2009) 10 SCC 184. He submitted that it must be disclosed prima­facie that the ingredients for the alleged offences are made out. He referred to Sections 465 and 468 of the Indian Penal Code and submitted that the valuable security has been defined in Section 2(30) of the Criminal Procedure Code. He submitted that prima­facie it is required to be examined that what can be said to have been falsely created or whose signature is forged. Learned Sr. Counsel, Mr.Raju submitted that it is not stated in the FIR and, therefore, such offence would not be attracted. He submitted that the investigating agency or the Police cannot apply the offence alleged without necessary ingredients being fulfilled. He, therefore, submitted that no offence under Section 467 of the Indian Penal Code can be said to have been committed. Similarly, he referred to Sections 420 and 406 of the Indian Penal Code and submitted that as there is no entrustment, no offence can be said to have been committed and, therefore, even offence under both Sections would not be attracted. Alternatively, learned Sr. Counsel, Mr.Raju submitted that at­ least FIR qua particular section like offence under Section 468 of the Indian Penal Code can be stayed and set aside as other offences are bailable. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Suryalakshmi Cotton Mills Limited Vs. Rajvir Industries Limited & Ors., reported in (2008) 13 SCC 678 and emphasized the observations made in this judgment. He emphasized the observations with regard to the ingredients and submitted that fraudulent or dishonest inducement must be at the inception and not at later stage. Learned Sr. Counsel, Mr.Raju therefore submitted that at this stage it has to be considered whether FIR or complaint makes out an offence alleged prima­facie or not. He again submitted that in first complaint, the applicant of Criminal Misc. Application No.10482/2012 has not been named and he is sought to be roped in the present complaint, which also suggests the malafide intention. Learned Sr. Counsel, Mr.Raju has also referred to the papers and submitted that the complainant has referred to the sale deed for the purpose of allegations regarding the forgery, however, the allegations of the forgery are not made out and, therefore, no offence of forgery would be attracted. Again learned Sr. Counsel, Mr.Raju has emphasized the aspect of malafide and submitted that it is an arm twisting and when earlier round of litigation is settled after the MOU and declaration, at the most the dispute is of essentially a civil nature. Learned Sr. Counsel, Mr.Raju has further referred to the papers and submitted that the conduct of the complainant is also required to be considered that there is a delay in payment and the allegations made in the FIR are required to be considered that the contribution towards the land development has been paid at later stage and on the contrary, indemnity­cum­declaration has not been given though the amount of Rs.50.00 lacs have been paid (Annexure­F). Therefore, learned Sr. Counsel, Mr.Raju submitted that present FIR is only an abuse of process of law with malafide intention to extort more money and the present application may be allowed.

7. Learned APP Mr.H.L. Jani appearing for the respondent no.1­State has referred to the FIR, which is produced on record and submitted that the date of complaint is 15.06.2012 and earlier complaint being C.R.No.I­45/2011 is dated 29.04.2011 Learned APP Mr.Jani submitted that entire sequence of events are required to be appreciated. However, learned APP Mr.Jani submitted that earlier also FIR was filed and, thereafter, it was sought to be quashed by filing proceeding under Section 482 of the Criminal Procedure Code and ultimately, it was sought to be settled and with the consent, earlier FIR was quashed. Learned APP Mr.Jani, however, submitted that it is required to be mentioned that earlier MOU, which has been entered into has not been complied with and the applicants is using the same not only to fool around the complainant but also take advantage of the court proceedings. Learned APP Mr.Jani submitted that in the name of the settlement, they filed applications under Section 482 of the Criminal Procedure Code and when it was settled pursuant to the MOU, FIR was permitted to be quashed by consent in light of the understanding/MOU. However, after the FIR was quashed, MOU was not acted upon and the applicant of Criminal Misc. Application No.10486/2012 has sought to back out from the same and committed breach of such solemn understanding, on the basis of which, this Court was made to pass an order. He submitted that it reflects the attitude. Learned APP submitted that it is specifically recorded in the MOU that the purchaser would be entitled to initiate/revive all civil and criminal proceedings which the Purchaser has agreed to withdraw. The purchaser may also file fresh complaint for the same subject matter in the police station. It is also agreed and understood between the parties that any breach committed by the developer/society would amount to contempt of Court. Learned APP, therefore, submitted that what has been alleged against the present applicants is required to be appreciated in light of the averments in the present FIR being C.R.No.I­40/2012 registered with DCB Police Station. Learned APP has pointedly referred to the averments and submitted that initially in the name of the income tax proceedings, no development has been made.

Thereafter, a part of the land was sought to be sold, for which, earlier FIR being C.R.No.45/2011 was registered. As stated in this FIR, there are about 6­7 proceedings, which have been filed. He pointedly referred to the allegations regarding the earlier round of litigation including Criminal Misc. Application No.1096/2011 filed under Section 482 of the Criminal Procedure Code for quashing of earlier FIR being C.R.No.I­45/2011. Learned APP submitted that breach of the understanding has been committed and as the cheque has returned, the plot no.93 and 132 would not stand cancelled. However in fact, the applicants have by manipulating the record tried to increase the number of plots and by making more plots of the same area, they have reduced the size of the plots of the allottee and by increasing the number of plots and thus, they have made an attempt to sale some portion of the land belonging to such allottees to make huge amount by sale proceed of said plots of land illegally. He emphasized that plots of the land, which have been allotted to the allotees and the lay out plan could not have been verified or modified. Learned APP submitted that in fact, entire lay out plan was sought to be modified so as to reduce the size of the plots allotted in the name of common amenities and facility and thereby increasing or adding the number of plots for the purpose of sale and make huge amount of money by selling such additional plot, which have been made from reducing the size of the plots of the allottees by manipulating not only lay out plan but even Government record. He emphasized that even the allegation in the FIR is taken at the face value, it is very clear that size of the plots have been reduced without the knowledge of the allottees and the plots have been increased to 207 by manipulating not only lay out plan but has also changed the plots and by making false documents like maps, lay out plans and submitting it to the revenue authorities has committed an offence. Learned APP Mr.Jani, therefore, submitted that at this stage, the Court has not to appreciate the evidence or the material. It is well settled that the defence of the applicants­accused is not required to be considered. Learned APP submitted that at this stage only the averments and the allegations in the complaint constitute a prima­facie offence or not is required to be seen. He emphasized and submitted that the averments or the allegations in the FIR taken at face value would clearly make out alleged offences. He has referred to and relied upon the observations in the judgment in case of State of Haryana and others v. Bhajan Lal and ors., reported in 1992 Supp (1) 335 in support of his submissions that the Court has not to consider the defence or other material at this stage. Further, learned APP Mr.Jani has also submitted that the present FIR is dated 15.06.2012 and the application is filed on 16.07.2012 without even investigation having taken place. He, therefore, submitted that the investigation cannot be stopped or thwarted at the initial stage and the investigating agency should be allowed to collect necessary evidence and material. He submitted that it has been observed by the Hon'ble Apex Court in case of Union of India Vs. Prakash P. Hinduja, reported in AIR 2003 SC 2612 in Para No.19 that before the report under Section 173(2) of the Criminal Procedure Code is submitted, the Court may not quash the proceedings. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of M/s. Jayant Vitamins Ltd., Vs. Chaitanyakumar & Anr., reported in AIR 1992 SC 1930 and submitted that as observed in this judgment, the discretion under Section 482 of the Criminal Procedure Code may not be exercised as the investigation is yet to commence. Learned APP Mr.Jani also submitted that the judicial pronouncement has time and again laid down the guidelines that such power is required to be exercised with care and circumspection and in such matter, without affording the opportunity or time to the investigating agency for proper investigation, such application moved hurriedly may not be entertained.

8. In rejoinder, learned Sr. Counsel, Mr.Raju has reiterated the averments. He also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Bhajan Lal (supra), he submitted that it has been observed that FIR can be quashed when the dispute is of civil nature.

9. In view of the rival submissions, it is required to be considered whether the present applications can be entertained or not.

10. The submissions have been made by learned Sr. counsel, Mr.Raju referring to the papers with much emphasizes on the MOU and indemnity­cum­ declaration that the dispute is of civil nature is required to be considered. Further, submission made with much emphasizes that none of the ingredients of the alleged offences are made out referring to Sections 465, 467, 420 etc. of the Indian Penal Code is also required to be considered. However, before referring to these aspects, if the background of the facts, which have been referred to in narration of the complaint being C.R.No.I­40/2012 registered with D.C.B. Police Station is also required to be considered closely.

11. The submissions, which have been made that MOU has been entered into and earlier FIR has been quashed with the consent and the dispute is of civil nature is also without any merits as the veil has been lifted to see through entire plan of the applicants­accused. In fact, judicial notice is required to be taken that in these days of white collar crime, the Court has to see through said design for the alleged offences like fraud by lifting the veil with closure scrutiny of the papers. Therefore considering the background, the submissions, which have been advanced with much emphasize by learned Sr. Counsel, Mr.Raju referring to the papers cannot be accepted. The submission that the respondent no.2­original complainant has no right, title or interest as he has agreed and recorded in the indemnity­cum­ declaration and it is only an arm twisting is also misconceived. Assuming for the sake of argument that some of the members have accepted and compromised by itself would not be a ground to quash the complaint at this stage taking the allegation in the complaint at the face value. It is well accepted that while considering the exercise of discretion under Section 482 of the Criminal Procedure Code, the Court is required to exercise such discretion with care and circumspection. The Court is required to see only whether the averments and allegations made in the FIR prima­facie disclose the offence or not. The Hon'ble Apex Court in a judgment in case of Rajesh Bajaj Vs. State NTC of Delhi & Ors., reported in AIR 1999 SC 1216 has clearly observed that “it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details”.

Therefore, in view of the aforesaid observations, the submission made by learned Sr. Counsel, Mr.Raju that the ingredients for the alleged offences have not been made out is devoid of any merits. Further, it is also well accepted that at the stage of exercise of discretion under Section 482 of the Criminal Procedure Code, the defence, which is sought to be put up by the accused, is not required to be appreciated vis­a­vis material.

12. As a matter of fact, the investigation has not even commenced; it is only at the threshold and it would be too early to jump to any conclusion. The Hon'ble Apex Court has expressed the word of caution in such situation and has clearly observed in a judgment in the case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and ors., reported in (2007) 12 SCC 1 as under:­ “The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard­and­fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.”

13. Further, these observations have been made, which are consistent with the scheme of the Criminal Procedure Code and the Criminal Procedure Code provides for a manner and the stages of such investigation. The Hon'ble Apex Court in a judgment in case of Union of India (supra) has made observations that “Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the of the lodging of the FIR till the submission of the report by the office of police station in Court under S. 173(2), Cr.P.C., this field being exclusively reserved for the investigating agency. Inherent powers under S. 482 cannot be exercised by Court”.

14. Therefore, the submissions made by learned Sr.

Counsel, Mr.Raju with much emphasize that the ingredients of the alleged offences are not fulfilled or that the dispute is of civil nature cannot be readily accepted. It is well accepted that same transaction may give rise to a civil dispute and at the same time, it may have a trapping of criminal offence, which could be considered in light of material and evidence collected during the investigation. Again whether particular offence is prima­facie made out or not has to be seen on the basis of the averments in the FIR and the submissions that the ingredients are not fulfilled and it would not attract particular offence cannot be decided even before the report under Section 173(2) of the Criminal Procedure Code is submitted after collecting material and evidence in asmuchas it would be jumping to a conclusion without having any material or prima­facie material that is not the scope under Section 482 of the Criminal Procedure Code. Therefore, it has been time and again expressed by the Hon'ble Apex Court in catena of judicial pronouncement that such powers have to be exercised with care and circumspection and there may not be any lack of inherent jurisdiction but what has been emphasized is the propriety and the care, which is required to be taken while exercising such jurisdiction in a given set of circumstances and the facts. Again considering the averments and the allegations, which could be examined in light of the material and evidence that may be collected during the investigation would reveal and reflect on the intention, which is the basis or the foundation for the alleged offences. Therefore again at the cost of repetition, it is required to be considered that whether the offences are attracted or ingredients are fulfilled or not can be examined after the investigation is over with material and evidence and the genesis of the offence revealing the intention could be culled out from the material and evidence. Therefore, it cannot be presumed or pre­supposes without any basis or material that the ingredients of the alleged offences are not fulfilled or that no offences alleged are attracted.

15. As it transpires from the FIR, it is specifically stated that the accused persons in these matters have floated scheme for the development of the plots and had started booking enrolling the members. The members have been allotted plots showing the browser and lay out plan and subsequently it has not been developed in the guise of the income tax proceedings and, thereafter, some of the plots have been sold, for which, earlier FIR bearing C.R.No.I­45/2011 was registered at Bopal Police Station. There is also a Civil Suit No.839/2010 filed by some of the allottees. It is in this background, the applicants filed Criminal Misc. Application No.1096/2011 for quashing of earlier FIR filed before Bopal Police Station and had compromised with some of the members/allottees and the said FIR was permitted to be quashed with consent. Therefore on one hand, when the complaint for the alleged offences has been made out, the applicants had compromised and in the name of compromise got earlier FIR quashed with consent and, thereafter, MOU has been executed between the parties clearly recording therein that in case of any breach of the terms and conditions, same FIR could be revived or fresh FIR could be filed. Admittedly, cheque for an amount of Rs.1.00 crore given by the applicants­accused in Criminal Misc. Application No.1096/2011 has returned. The said MOU clearly provides that “the purchaser would be entitled to initiate/revive all civil and criminal proceedings which the purchaser has agreed to withdraw. The purchaser may also file fresh complaint for the same subject matter in the police station. It is also agreed and understood between the parties that any breach committed by the developer/society would amount to contempt of Court.” It is in this background coupled with the averments in the FIR that the lay out plan have been changed with not only size but the location of the plot allotted to the members produced before the concerned authority behind the back of the allottees or the members and by reducing the area of the plot, new plots are created from same portion of the land for the purpose of sale to the third party. It is such ingenuous design to collect money from the third party for the same land, which has already been allotted the plots to the original allottees has led to this complaint with specific allegations with regard to not only cheating but other offences also. The submission made by learned Sr. Counsel, Mr.Raju that earlier FIR being C.R.No.I­45/2011 and the impugned FIR being C.R.No.I­40/2012 are with regard to the same plot of land or the transaction and there was MOU, by which, earlier FIR was quashed and, therefore, the present FIR is an abuse of process of law is thoroughly misconceived in light of the discussion made hereinabove. In fact, it reflects the attitude of the applicants­accused, which in turn demonstrate well conceived design to defraud the people. In any case as stated above, according to the same MOU and/or declaration, it has been agreed and accepted between the parties including the applicants­accused herein that in case of any breach of condition or non­compliance of the MOU, again FIR could be the same FIR or same complaint could be revived and on the contrary it would be a contempt of Court itself. Therefore, it does not lie in the mouth of the applicants­accused to come forward and say that the impugned FIR is an abuse of the process of the law or it is by way of arm twisting to knock out money.

16. Reliance placed by learned Sr. Counsel, Mr.Raju referring to the observations made in a judgment in case of K.L.E. Society & Ors. Vs. Siddalingesh, reported in (2008) 4 SCC 541 is required to be considered in background of the facts. As in the said case, the allegations were with regard to the salary being paid and the irregularity alleged to have been committed. Similarly, judgment of the Hon'ble Apex Court in case of Neelu Chopra (supra) is also with regard to the peculiar facts of the case where the allegations are vague for the alleged offence under Section 498(A) of the Indian Penal Code and, therefore, same cannot be relied upon. However, Similarly, specific observations have been made by the Hon'ble Apex Court in a judgment in case of B. Suresh Yadav (supra) referring to the dispute between the parties as a civil dispute. In fact, the Hon'ble Apex Court in case of Bhajan Lal (supra) has laid down the broad guidelines and it has been specifically observed that when such power under Section 482 of the Criminal Procedure Code could be exercised making it clear that even if the allegations taken at the face value and accepted in their entirety do not prima­facie constitute an offence then, it make out a case for exercise of such powers.

17. Another aspect, which has been emphasized is on the ground of malafide that only to knock out more money, such complaint is filed malafide is required to be appreciated and considered in background of the facts narrated hereinabove. As recorded above, when earlier FIR is permitted to be quashed with consent and when MOU as well as declaration provide for mutual obligation permitting revival of the proceeding or filing of fresh complaint in case of non­compliance, it cannot be said that such FIR is filed malafide. The Hon'ble Apex Court in a judgment in case of M/s. Jayant Vitamins Ltd. (supra) has observed that the investigation into an offence is statutory function of the Police and Court is not justified without compelling and justifiable reason to interfere with the investigating agency. Therefore, the submissions made by learned Sr. Counsel, Mr.Raju cannot be accepted.

18. Further, the Hon'ble Apex Court has clearly laid down the guidelines with regard to the scope of exercise of discretion under Section 482 of the Criminal Procedure Code and has made observations in catena of judicial pronouncements that such discretion has to be exercised with care and circumspection only when it is justified. It has been observed by the Hon'ble Apex Court in a judgment in case of Central Bureau of Investigation Vs. K.M. Sharan, reported in (2008) 4 SCC 471 that the Court should not embark upon an enquiry whether the allegations in the FIR are reliable and the scope of Section 482 of the Criminal Procedure Code has been discussed referring to earlier judgments. Therefore, it depends upon the facts of each case and the Court has to consider keeping in mind the broad guidelines but no hard and fast rule can be laid down in exercise of discretion under Section 482 of the Criminal Procedure Code. Again it is not lack of the jurisdiction but propriety or justification for the exercise of discretion under Section 482 of the Criminal Procedure Code has to be considered in a given set of circumstances of each case.

19. Therefore in view of the observations and discussion made hereinabove, the present applications deserve to be dismissed and stand dismissed accordingly.

/patil

Sd/­

(RAJESH H.SHUKLA, J.)