Vinod Kumar Dubey and 3 Others Vs State of U.P. and 3 Others

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RESERVED ON: 25.11.2020

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DELIVERED ON: 15.12.2020

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Court No. - 43

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Case :- CRIMINAL MISC. WRIT PETITION No. - 10993 of 2019

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Petitioner :- Vinod Kumar Dubey And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Surendra Nath Tiwari,Ashutosh Kumar Tiwari Counsel for Respondent :- G.A.,Archit Mandhyan,Rishabh Kumar

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Hon'ble Pankaj Naqvi,J.

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Hon'ble Vivek Agarwal,J.

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(Delivered by Pankaj Naqvi, J.)

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Heard Sri Ashutosh Kumar Tiwari, learned counsel for the petitioners and Sri Deepak Mishra, the learned A.G.A. Despite previous order, Sri Rishabh Kumar did not appear for the informant. This writ petition has been filed for quashing the FIR dated 19.3.2019 registered as Case Crime no. 122 of 2019, under Sections 419, 420 IPC, P.S.- Kotwali, District – Ballia.

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The case set up in the FIR is that the claim of the petitioners that the property of one Nanak Singh was thrown into the common pool in partnership with petitioners in 1985, is mischievously and maliciously alleged as at no point of time, above property was brought into the common pool of the Firm’s property, on the contrary challenge was made to the very existence of the partnership Firm, demonstrated by the fact that the alleged partnership deed came to be registered in 2011, thus petitioners are alleged to have committed offences under Section 419, 420 IPC.

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Learned counsel for the petitioners submits that the partnership deed was executed between petitioners (75%) and one Nanak Singh (25%) on 15.6.1985, in which the latter contributed holding measuring 1850 sq. meter in common stock of the Firm (M/s Narayani Bhrigu Ashram), which came to be registered on

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17.6.1985, disputes arose after the death of Nanak Singh, when his LR’s, i.e, Mahendra, Jagjeet Kaur and Yashpal executed a sale deed in favour of the informant in 2018, which is already under challenge in a suit, i.e, O.S. no. 18 of 2018 filed by the petitioners. The petitioners also lodged an FIR against the informants as Case Crime no. 395 of 2018 under Sections 419, 420, 467, 468, 471 IPC, in which final report was submitted on the ground that the dispute is civil in nature, impugned FIR is in retaliation, no offences are disclosed, FIR be quashed.

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Learned A.G.A, opposed the submission on the ground that merely because civil dispute is pending between the parties, cannot be a ground to quash the FIR, which otherwise discloses cognizable offences.

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The bone of contention between the parties is as to whether the property in dispute is the property of Firm as alleged by the petitioners or that of informant (purchaser from the LR’s of Nanak Singh), who is denying the existence of a partnership between the petitioners and Nanak Singh.

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The sale executed by the LR’s of Nanak Singh is already under challenge in a suit in O.S. No. 18 of 2018 filed by the petitioners. The Civil Court will take a final call as to the title of the property. The Civil Court while granting ad interim injunction in favour of the petitioners on 14.1.2019, prima facie recorded a finding that the partnership deed dated 15.6.1985 was registered on 17.6.1985. Thus, once parties are litigating in respect of their title before Civil Court and no criminality is discernible from the allegations made in the FIR, criminality appears to have been deliberately alleged only with a view to give criminal angle to the case for ulterior motives. The Apex Court has repeatedly sounded word of caution against the tendency of the litigants to deliberately convert civil dispute into criminal actions. Reliance may be placed to a decision of the Apex Court in IOC Vs. NEPC , (2006) 6 SCC 736 .

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The Apex Court in Amit Kapoor vs. Ramesh Chander (2012) 9 SCC 460 while reiterating the principles laid down in State of Haryana vs. Bhajan Lal , AIR 1992 SC 604, culled out categories of cases, wherein at a threshold stage, criminal prosecution could be quashed either in exercise of powers under Article 226 of the Constitution or under Section 482 Cr.P.C, as the case may be, with a view to either prevent abuse the process of the Court or

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otherwise to secure the ends of justice, making it clear that it may not be possible to compartmentalize each and every such contingencies, but nevertheless following categories were mentioned in Amit Kapoor ( supra ):

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1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

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2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

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3) Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

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4) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

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5) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

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6) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such

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criminal proceedings, such a bar is intended to provide specific protection to an accused.

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7) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

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8) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

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9) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, doe not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offfence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offfence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.

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10) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

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11) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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12) It is neither necessary nor is the court called upon to hold a full fledged enquiry or to appreciate evidence

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collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

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13) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

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14) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

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15) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

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16) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

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17) These are the principles which individually and preferably a cumulatively (one or more) are to be taken into consideration.

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We in the light of above discussion and legal position are of the considered view that on the allegations made in the FIR, dispute is purely civil in nature engaging the attention of the civil court, criminality is deliberately assigned for malicious motive, FIR is liable to be quashed, as the case would fall within Illustration-10 of Amit Kapoor ( supra ).

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The writ petition is allowed . The FIR dated 19.3.2019 registered as Case Crime no. 122 of 2019, under Sections 419, 420 IPC, P.S.-

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Kotwali, District – Ballia, and all consequential proceedings are quashed.

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The party shall file a computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioners alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card).

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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Order Date :- 15.12 . 2020 N.S.Rathour

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Vinod Kumar Dubey and 3 Others v. State of U.P. and 3 Others

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Vinod Kumar Dubey and 3 Others v. State of U.P. and 3 Others

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