Judgement
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. 2069 OF 2012 (ARISING OUT OF SPECIAL LEAVE
PETITION (CRL.) NO. 7720 OF 2011)
PARAMJEET BATRA ........ APPELLANT
Versus
STATE OF UTTARAKHAND
O R D E R
Leave granted.
2. The appellant, respondents 3, 4 an one Rajpal are the accused in Criminal
Case No. 723 of 2005 (charge-sheet No. 32/2005) pending on the file of the
Judicial Magistrate, Khatima, District Udham Singh Nagar.
Respondent 2 is the complainant. The appellant and respondents 3 and 4 filed
a petition under Section 482 of the Code of Criminal Procedure (for short “the
Codeâ€) in the High Court of Uttarakhand at Nainital for quashing of the above
mentioned proceedings and for quashing of the order of cognizance dated
22/3/2005 passed thereon by the Judicial Magistrate, Khatima against the
appellant and the other accused for the offences punishable under Sections 406,
420, 467, 468, 471, 447, 448 read with Section 34 of the Indian Penal Code (for
short “the IPCâ€). By order dated 29/09/2011 Uttarakhand High Court dismissed
the said petition. The said order is impugned in this appeal.
3. Respondent 2 filed a complaint against the appellant, respondents 3, 4 and
five others at Police Station Kotwali Khatima, District Udham Singh Nagar on
4/1/2005. Respondent 2 inter alia alleged in the complaint that he had let out
two shops situate in Khatima market to Rajpal Singh on fixed written conditions.
After Rajpal Singh vacated the shops he wanted to run chicken corner in the said
shops. He appointed the appellant as Manager and invested Rs.10,000/- for
purchasing raw materials. Written agreement was prepared containing fixed terms
and conditions. The business picked up and started fetching profit of Rs.1,000/-
to Rs.1,500/- per day. According to respondent 2, the appellant conspired with
others to grab the shop. He filed a civil suit claiming tenancy. He did not give
accounts of the profit. The appellant and other accused prepared false documents
and filed them in the court. According to respondent 2, they threatened him that
if he does not take monthly rent of Rs.750/- he would be killed. He has been
told that if he gives Rs.3 lakhs then they would vacate the shop.
Respondent 2’s further case in the complaint is that the accused have
grabbed two years’ income and materials worth Rs.50,000/. They have also
misappropriated an amount of Rs.10,000/- which was given to them in cash by him.
According to respondent 2, accused have forcibly taken possession of the shop.
After conclusion of investigation, charge-sheet was forwarded to the Judicial
Magistrate, Khatima, who took cognizance against the appellant, respondents 3
and 4 and one Rajpal.
4. Learned counsel for the appellant submitted that the complaint discloses
civil dispute. A civil suit has been filed by the appellant making similar
grievance. It is pending. Since the Civil Court is seized of the dispute, the
High Court should have quashed the complaint.
5. It is necessary to note here that office report dated 22/8/2012 indicates
that the contesting respondent i.e. respondent 2 was directed to be served
through Resident Commissioner vide Registrar’s order dated 5/12/2011. He has
accordingly been served. He has, however, neither cared to appear in-person nor
has he engaged any counsel. We, therefore, proceed to deal with the submissions
of counsel for the appellant.
6. Though the complaint attributes forgery and fabrication of documents to
the appellant and other accused and states that the appellant has grabbed the
profit of the running business and threatened respondent 2, it appears to us to
be essentially a civil dispute. Basic grievance of respondent 2 is that the
appellant has not given him accounts of the business. Respondent 2 has made a
reference to the written agreement under which the appellant was appointed as
Manager to manage his business. The appellant has annexed a copy of the
agreement dated 1/1/2002 to the appeal.
The agreement discloses that the appellant was to receive 25% of the net
profit as salary. The agreement also notes that the appellant received
Rs.10,000/- in cash for the purchase of raw materials. Admittedly, the appellant
has filed Civil Suit No. 23/2002 against respondent 2 in the court of Civil
Judge, (Jr. Div.), Khatima for permanent injunction claiming that he is a tenant
of the shop in question. In that suit, he filed an application for temporary
injunction. Copy of order dated 22/12/2004 passed on that application ordering
status quo is also annexed to the appeal. The order indicates that the appellant
and respondent 2 have filed documents in the said suit. While granting status
quo order, the trial court has observed that the said documents will have to be
proved by the appellant and respondent 2 and, hence, it is necessary to maintain
status quo during pendency of the suit. In the complaint, it is the case of
respondent 2 that this suit has been filed on the basis of fabricated documents.
It is categorically stated on affidavit by the appellant that the said suit is
still pending. If the said suit is still pending, then the grievance made by
respondent 2 that the documents on which reliance is placed by the appellant are
not genuine and are forged and fabricated, will be considered by the Civil
Court. It is also significant to note that prior to the filing of this
complaint, respondent 2 tried to lodge an FIR against the appellant by moving an
application under Section 156(3) of the Code. But the said application was
dismissed on 6/5/2004. We notice from the impugned order that a separate case
under Section 406 of the IPC was filed by respondent 2 against the appellant in
which the appellant was acquitted on 9/2/2009. It is further significant to note
that statement was made on behalf of the appellant before the High Court that
the appellant has vacated the shop in question and handed over possession to
respondent 2. In the peculiar facts of the case, therefore, we are of the
opinion that in the interest of justice, the pending criminal proceedings need
to be quashed. We have taken serious note of the fact that respondent 2 did not
appear before the High Court to refute the case of the appellant.
He has also not chosen to appear before us though served. Probably because
the possession of the shop is handed over to him, he is not interested in
prosecuting the appellant and others.
7. While exercising its jurisdiction under Section 482 of the Code the High
Court has to be cautious. This power is to be used sparingly and only for the
purpose of preventing abuse of the process of any court or otherwise to secure
ends of justice. Whether a complaint discloses a criminal offence or not depends
upon the nature of facts alleged therein.
Whether essential ingredients of criminal offence are present or not has to
be judged by the High Court. A complaint disclosing civil transactions may also
have a criminal texture. But the High Court must see whether a dispute which is
essentially of a civil nature is given a cloak of criminal offence. In such a
situation, if a civil remedy is available and is, in fact, adopted as has
happened in this case, the High Court should not hesitate to quash criminal
proceedings to prevent abuse of process of court.
8. As we have already noted, here the dispute is essentially about the profit
of the hotel business and its ownership. The pending civil suit will take care
of all those issues. The allegation that forged and fabricated documents are
used by the appellant can also be dealt with in the said suit. Respondent 2’s
attempt to file similar complaint against the appellant having failed, he has
filed the present complaint. The appellant has been acquitted in another case
filed by respondent 2 against him alleging offence under Section 406 of the IPC.
Possession of the shop in question has also been handed over by the appellant to
respondent 2. In such a situation, in our opinion, continuation of the pending
criminal proceedings would be abuse of the process of law. The High Court was
wrong in holding otherwise.
9. In the circumstances, the impugned order dated 29/9/2011 passed by the
Uttarakhand High Court is set aside. The entire proceedings of Criminal Case No.
723/2005 (charge-sheet No. 32/2005), and the order of cognizance dated 22/3/2005
passed thereon by the Judicial Magistrate, Khatima, District Udham Singh Nagar
against the appellant, respondents 3 and 4 and against accused Rajpal for the
offences punishable under Sections 406, 420, 467, 468, 471, 447, 448 read with
Section 34 of the IPC are quashed and set aside. This order will however have no
effect on the pending civil suit between the parties. Needless to say that the
court, seized of the said suit, shall decide it independently and in accordance
with law.
10. The appeal is disposed of in the aforestated terms.
................................................J.
(AFTAB ALAM)
.........................J.
(RANJANA PRAKASH DESAI)
NEW DELHI, DECEMBER 14, 2012.
No comments:
Post a Comment