Devi & Anr Vs. Umesh Kumar Singh & Anr  Insc 300 (11 May 2006)
Bhan & Lokeshwar Singh Panta
O R D
E R [Arising out of S. L. P. (Crl.) No.3840 of 2005] Lokeshwar Singh Panta, J.
appeal arises out of the judgment dated 13.1.2005 passed by the High Court of
Judicature at Patna in Criminal Misc. No. 11930 of 2004 dismissing the petition
filed by the appellants under Section 482 of the Cr. P.C. seeking quashing of
the order dated 8.8.2003 of the Judicial Magistrate, Gaya, in Complaint Case
No.298/2003 T.R. No.808/2003.
stated the facts of the case are that the Complainant Umesh Kumar Singh -
respondent No.1 herein, filed a complaint against the appellants before the
Chief Judicial Magistrate, Gaya, inter alia
alleging that Smt. Ram Biraji Devi appellant No.1 herein, was allotted MIG
Plot No. M-27 situated in Housing Board Colony, Gaya. In July 2002, both the appellants represented to the
complainant that they were badly in need of money and wanted to transfer the
allotted plot to some person interested to purchase the said plot. The
complainant expressed his willingness to purchase the plot. It was alleged that
the parties orally agreed that the complainant would pay to the appellants a
sum of Rs. 4 lakhs as price of the plot and on payment of the said amount, the
appellants would transfer the plot in favour of the complainant.
also alleged that the complainant paid a sum of Rs.80,000/- to the appellants
as consideration amount of the sale price of the plot on different dates
between 15.7.2000 and 15.12.2002. The appellants alleged to have made promises
to the complainant that they would execute a written agreement in favour of the
complainant on 15.1.2003, but since they failed to execute the agreement on
20.1.2003, the complainant along with three other persons went to the house of
the appellants and enquired about the reason for delay in execution of the
agreement. The appellants flatly denied acceptance of Rs.80,000/- and refused
to transfer the plot in favour of the complainant. On the basis of the above
premise, a criminal complaint dated nil came to be filed in the Court of Chief
Judicial Magistrate, Gaya, against the appellants.
appears from the record that Judicial Magistrate, First Class, Gaya, recorded
the statements of the complainant and his witnesses on 19.4.2003 and thereupon
took cognizance of the offences under Sections 406, 419, 420 and 120-B of
Indian Penal Code vide order dated 8.8.2003.
aggrieved against the order of taking of the cognizance by the Judicial
Magistrate the appellants approached the High Court of Patna under Section 482
of the Cr. P.C. praying for quashing of the cognizance taken by the Magistrate.
The High Court by the impugned order dated 13.1.2005 dismissed the said
petition. Hence, this appeal by way of special leave.
have heard learned counsel for the parties and perused the material on record.
The learned counsel for the appellants contended that the Hon'ble High Court
has failed to appreciate that on bare perusal of the contents of the complaint,
no offence is made out against the appellants and the complaint filed by the
complainant is mala fide, false and frivolous against appellant No.1, who is
stated to be about 70 years old lady and is suffering from heart disease,
whereas the appellant No.2 was working in New Delhi at the relevant time and
had gone to Bombay to look after his ailing sister, Manju Tripathi, who was
suffering from cancer, on the date of occurrence as alleged in the complaint.
According to the learned counsel, the dispute involved in the alleged complaint
is of civil nature and none of the acts allegedly committed by the appellants
gave rise to any criminal liability.
contra, learned counsel for the respondent- complainant contended that the
contents of the complaint would disclose the commission of the cognizable
offence and this Court at the preliminary stage would not be justified in
embarking upon an enquiry as to the reliability or genuineness of the
allegations made in the complaint. He also contended that mere fact that a
dispute is of civil nature could not be made a ground for quashing the
complaint or FIR. In support of this submission, reliance is placed upon a
decision & Ors. [(1999) 8 SCC 686].
have given our anxious and thoughtful consideration to the respective
contentions of the learned counsel for the parties. On examination of the
contents of the complaint, we find that there is not even a whisper of
allegation or averment made therein constituting an offence for which
cognizance has been taken by the learned Magistrate against the appellants.
one hand, the complainant himself has stated in the complaint that oral
agreement to sell the plot took place in July 2002 and on the other hand, he
has alleged that he started paying the consideration amount for the purchase of
the plot between 15.7.2000 and 15.12.2002. The version of the complainant is
self-contradictory and, therefore, no prima facie case is made out against the
appellant involving them in the commission of the alleged offences.
learned Magistrate in his order has categorically stated that the perusal of
the complaint would make it clear that there was a dispute in respect of sale
and purchase of land between the parties. In our view even if the allegations
made in the complaint are accepted to be true and correct, the appellants
cannot be said to have committed any offence of cheating or criminal breach of
trust. Neither any guilty intention can be attributed to them nor there can possibly
be any intention on their part to deceive the complainant. No criminal case is
made out by the complainant against the appellants in his complaint and in the
statements of the complainant and his witnesses recorded by the Magistrate
before taking of the cognizance of the alleged offences. The averments of the
complaint and the statements of the complainant and his witnesses recorded by
the Magistrate would amount to civil liability inter se the parties and no
criminal liability can be attributed to the appellants on the basis of the
material on record. In Trisuns Chemical Industry's case (supra), relied upon by
the complainant, this Court held as under:
of FIR or a complaint in exercise of the inherent powers of the High Court
should be limited to very extreme exceptions. Merely because an act has a civil
profile is not sufficient to denude it of its criminal outfit. The provision
incorporated in the agreement for referring the disputes to arbitration is not
an effective substitute for a criminal prosecution when the disputed act is an
offence. Arbitration is a remedy for affording reliefs to the party affected by
breach of the agreement but the arbitrator cannot conduct a trial of any act
which amounted to an offence albeit the same act may be connected with the
discharge of any function under the agreement. Hence, those are not good
reasons for the High Court to axe down the complaint at the threshold itself.
The investigating agency should have had the freedom to go into the whole gamut
of the allegations and to reach a conclusion of its own. Pre-emption of such
investigation would be justified only in very extreme cases." There cannot
be any disagreement to the well-settled proposition of law that the High Court
should exercise its inherent powers in extreme exceptions to quash an FIR or a
complaint. The ratio as laid down in Trisuns Chemical Industry's case (supra)
is of no help and assistance to the complainant in the facts and circumstances
of the present case. The complaint instituted does not disclose that an offence
under Section 420 is made out. Cognizance taken by the Magistrate thereon
against the appellants for offences u/Ss. 406/419/420 and 120-B IPC are clearly
an abuse of the process of court and interference by this Court is expedient in
the interest of justice. This is a case of extreme exception where the High
Court ought to have exercised its inherent jurisdiction and power to set aside
the unwarranted and unjustified order of the Magistrate impugned before it by
the aforementioned reasons, we quash the impugned order of the High Court of
Judicature at Patna dated 13.01.2005 passed in Criminal
Misc. No.11930 of 2004.
the complaint filed by the Complainant and subsequent order dated 8.8.2003 of
the Judicial Magistrate, Gaya, in Complaint Case No.298 of 2003 T.R. 808/03
whereby and whereunder cognizance of offence under Sections 406, 419, 420,
120-B, IPC, has been taken against the appellants and summons have been ordered
to be issued against them for facing trial for the above-said offences shall
also stand quashed.
appeal stands allowed accordingly.