Devendra & Ors. Vs.
State of U.P. & ANR.  INSC 953 (6 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 940 OF 2009
[Arising out of SLP (Crl.) No. 4998 of 2008] Devendra & Ors. ...Appellant
Versus State of U.P. & Anr. ...Respondents
S.B. SINHA, J :
a pure civil dispute can be a subject matter of a criminal proceeding under
Sections 420, 467, 468 and 469 of the Indian Penal Code is the question
It arises in the
following factual matrix:
parties are co-sharers. The genealogical tree of the family is as under:
had five sons, viz., Girdhar,Roopa Girdhar Naraina Gabru Naraina Harikesh Roopa
and Gabru, (Died issueless) (Died issueless) Gullu Harikesh. Appellant Nos. 1
and 2 are grand sons of Girdhar. Indisputably, Jai Chand Saharam Nanak Chattar
Pal Jai Singh (Died) (Died) (Died) Gabru died issueless. According to the
appellants, the share of Naraina in Bharat Smt. Phool Singh Om Pal Janter
Sunder the joint family, who died issueless, devolved upon among the three
Devendra Rajendra Munni surviving brothers, viz., Girdhar, Roopa and Harikesh.
However, according to the respondent No. 2, the share of Naraina devolved upon
Rupa and Harikesh.
or about 17.03.1982, Gullu, son of Harikesh filed a suit for partition of his
1/3rd share before the Additional Sub Divisional Officer, Pargana being Suit
No. 135 of 1982. By an order dated 24.11.1983, the said suit was decreed,
Gullu has < share in disputed land.
2. Share of defendant
Devendra and Rajendra th is < in disputed land.
3. Share of
defendants Jai Singh, ChatarPal, Nanakchand and Jaichand is = in disputed
filed an appeal thereagainst before the Commissioner, Meerut Division. By an
order dated 19.03.1984, the said decree was modified opining that 3/8th share
in the joint family belonged to sons of Roopa, viz., Jai Singh, Chatar Pal,
Nanakchand and Jaichand. Aggrieved by the said order, Jai Singh, son of Roopa,
filed an appeal before the Board of Revenue, which by an order dated 21.10.1985
set aside the order dated 19.03.1984 passed by the Additional Commissioner and
affirmed the order of the Additional Sub-Divisional Officer dated 24.11.1983.
thereby, Gullu filed a Civil Misc. Writ Petition bearing No. 17667 of 1985
before the High Court wherein the appellant Nos. 1 and 2 were not impleaded.
The High Court by its order dated 7.11.1985, while issuing notice, stayed the
operation of the order dated 21.10.1985 passed by the Board of Revenue.
or about 22.08.1997, a sale deed was executed by the appellant Nos. 1 and 2 in
favour of the appellant Nos. 3 and 4.
24.08.2005, a suit was filed by the respondent No. 2 and others for cancelling
the aforesaid deed of sale dated 22.08.1997, which was registered as Civil Suit
No. 382 of 2005. The said suit is still pending in the Court of 4 Learned
Civil Judge (Junior Div.) Ghaziabad. In the said suit, however, it was averred
that Solhu had four sons whereas in the suit No. 135 of 1982, it was stated
that Solhu had five sons.
filed an application under Order 9 Rule 13 read with Section 151 of the Code of
Civil Procedure before the Court of Deputy District Magistrate (First Class)
Ghaziabad praying for dismissal of the suit No. 135 of 1982. An application for
impleadment was also filed by the appellants in Civil Misc. Writ Petition No.
17669 of 1985.
or about 21.09.2005, the respondent No. 2 filed an application in the Police
Station, Kavinagar, Ghaziabad wherein the City Magistrate by an order dated
17.09.2005 passed an order to hear the complainant and register a First
Information Report. Thereafter, the respondent No. 2 filed a First Information
Report in the Police Station, Sahni Gate on 21.09.2005.
filed an application for quashing the said First Information Report before the
High Court. It was marked as Criminal Misc. Writ Petition No. 10568 of 2005. By
an order dated 17.10.2005, the High Court, while dismissing the said
5 "5. The
investigating officer will make all possible efforts to conclude the
investigation within three months of the date on which a certified order of
this order is served upon him."
The investigation was
thereafter taken up. A chargesheet was submitted before the learned Chief
learned Chief Judicial Magistrate by an order dated 20.02.2006 took cognizance
of the offence. No reason was assigned in support thereof.
the legality of the said order, the appellants filed another application under
Section 482 of the Code of Criminal Procedure, which by reason of the impugned
judgment, has been dismissed.
S.R. Singh, learned senior counsel appearing on behalf of the appellants would
(i) The learned Chief
Judicial Magistrate having not assigned any reason while taking cognizance of
the offence, the High Court should have held that the same suffered from total
non-application of mind.
(ii) Having regard to
the question as to whether the appellants have one-third or one-fourth share
and a civil suit being pending, the order dated 17.10.2005 could not be
Ratnakar Das, learned senior counsel appearing on behalf of the respondent -
State, on the other hand, would submit that having regard to the provisions
contained in Section 463 of the Indian Penal Code, an offence for commission of
forgery must be held to have been made out.
The learned counsel
appearing on behalf of the complainant also supported the impugned order.
fact that the appellants are co-sharers is not in dispute. The dispute between
them is confined to the extent of their respective shares. It must be
determined only in a civil suit.
the appellant Nos. 1 and 2 had executed a deed of sale in favour of a third
party stating that they have one-third share over the entire properties, the
same would not be binding on the complainant - respondent. If any cause of
action arose by reason of a threat of dispossession at the hands of the
co-sharer or at the hands of the third-party, as was contended, recourse to legal
action could always be taken. Even for that purpose, a proceeding under
Sections 144 and 145 of the Code of Criminal Procedure would be maintainable.
The decision of a criminal court in a case of this nature would not be binding
on the civil court.
Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438], this Court held:
"(3) A decision
by a criminal court does not bind the civil court while a decision by the civil
court binds the criminal court. An order passed by the Executive Magistrate in
proceedings under Sections 145/146 of the Code is an order by a criminal court
and that too based on a summary enquiry. The order is entitled to respect and
wait before the competent court at the interlocutory stage. At the stage of
final adjudication of rights, which would be on the evidence adduced before the
court, the order of the Magistrate is only one out of several pieces of
cannot, however, be any doubt or dispute whatsoever that in a given case a
civil suit as also a criminal proceeding would be maintainable.
They can run
simultaneously. Result in one proceeding would not be binding on the court
determining the issue before it in another proceeding.
8 In P. Swaroopa Rani
v. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884: (2008) 5 SCC 765], the law
was stated, thus :
"13. It is,
however, well-settled that in a given case, civil proceedings and criminal
proceedings can proceed simultaneously. Whether civil proceedings or criminal
proceedings shall be stayed depends upon the fact and circumstances of each
[See also Seth
Ramdayal Jat v. Laxmi Prasad, 2009 (5) SCALE 527]
was, however, submitted that by reason of execution of a deed of sale claiming
title over the property to which the appellants were not entitled to, the
complainant - respondent had been cheated. It is difficult to accept the said
contention. Appellants had not made any representation to the respondent No. 2.
No contract and/ or transaction had been entered into by and between the
complainant and the appellants.
has been defined in Section 415 of the Indian Penal Code to mean:
Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to consent that
any person shall retain any property, or intentionally induces the person so 9
deceived to do or omit to do anything which he would not do or omit if he were
not so deceived, and which act or omission causes or is likely to cause damage
or harm to that person in body, mind, reputation or property, is said to
In V.Y. Jose v. State
of Gujarat and Anr. [(2009) 3 SCC 78], this Court opined:
"An offence of
cheating cannot be said to have been made out unless the following ingredients
i) deception of a
person either by making a false or misleading representation or by other action
(ii) fraudulently or
dishonestly inducing any person to deliver any property; or (iii) To consent
that any person shall retain any property and finally intentionally inducing
that person to do or omit to do anything which he would not do or omit.
12. For the purpose
of constituting an offence of cheating, the complainant is required to show
that the accused had fraudulent or dishonest intention at the time of making
promise or representation.
Even in a case where
allegations are made in regard to failure on the part of the accused to keep
his promise, in absence of a culpable intention at the time of making initial
promise being absent, no offence under Section 420 of the Indian Penal Code can
be said to have been made out."
10 It is, therefore,
evident that a misrepresentation from the very beginning is a sine qua non for
constitution of an offence of cheating, although in some cases, an intention to
cheat may develop at a later stage of formation of the contract.
In Hridaya Ranjan
Prasad Verma and Ors. v. State of Bihar and Anr.
[(2000) 4 SCC 168],
this Court held:
"14. On a
reading of the section it is manifest that in the definition there are set
forth two separate classes of acts which the person deceived may be induced to
do. In the first place he may be induced fraudulently or dishonestly to deliver
any property to any person. The second class of acts set forth in the section
is the doing or omitting to do anything which the person deceived would not do
or omit to do if he were not so deceived. In the first class of cases the
inducing must be fraudulent or dishonest.
In the second class
of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining
the question it has to be kept in mind that the distinction between mere breach
of contract and the offence of cheating is a fine one.
It depends upon the
intention of the accused at the time to inducement which may be judged by his
subsequent conduct but for this subsequent conduct is not the sole test. Mere
breach of contract cannot give rise to criminal prosecution for cheating unless
fraudulent or dishonest intention is shown right at the beginning of the
transaction, that is the time when the offence is said to have been committed.
Therefore it is the intention which is the gist of the offence. To hold a
person guilty of cheating it is necessary to show 11 that he had fraudulent or
dishonest intention at the time of making the promise. From his mere failure to
keep up promise subsequently such a culpable intention right at the beginning,
that is, when he made the promise cannot be presumed."
[See also Indian Oil
Corporation v. NEPC India Ltd. and Ors. (2006) 6 SCC 736, Veer Prakash Sharma
v. Anil Kumar Agarwal and Anr. 2007 (9) SCALE 502, V.Y. Jose (supra) and
Ravindra Kumar Madhanlal Goenka & Anr. v. M/s. Rugmini Ram Raghav Spinners
& Anr. 2009 (6) SCALE 162] 23. Section 463 of the Indian Penal Code reads
Whoever makes any false documents or false electronic record or part of a
document or electronic record with intent to cause damage or injury, to the
public or to any person, or to support any claim or title, or to cause any
person to part with property, or to enter into any express or implied contract,
or with intent to commit fraud or that fraud may be committed, commits
According to Mr. Das,
making of a false document so as to support any claim over title would
constitute forgery within the meaning of the said provision and as a document
was created for the purpose of showing one- third share in the joint property
by the appellants although they were not entitled to therefor, they must be
held to have committed an offence.
12 Making of any
false document, in view of the definition of `forgery' is the sine qua non
therefor. What would amount to making of a false document is specified in
Section 464 thereof.
What is, therefore,
necessary is to execute a document with the intention of causing it to be
believed that such document inter alia was made by the authority of a person by
whom or by whose authority he knows that it was not made.
are the owners of the property. They have executed a sale deed. Execution of
the deed of sale is not denied. If somebody is aggrieved by the false
assertions made in the said sale deed, he would be the vendees and not the
Appellants have not been
alleged to be guilty of creating any false document.
has been placed by Mr. Das on Trisuns Chemical Industry v. Rajesh Agarwal and
Others [(1999) 8 SCC 686] wherein this Court held that quashing of a complaint
should be limited to very extreme situations. There is no dispute with regard
to the legal position.
13 Reliance has also
been placed on Kamaladevi Agarwal v. State of W.B. and Others [(2002) 1 SCC
555] wherein this Court held:
prosecution cannot be thwarted at the initial stage merely because civil
proceedings are also pending...
15. We have already
noticed that the nature and scope of civil and criminal proceedings and the
standard of proof required in both matters is different and distinct. Whereas
in civil proceedings the matter can be decided on the basis of probabilities,
the criminal case has to be decided by adopting the standard of proof of
"beyond reasonable doubt"...
17...We are also not
impressed by the argument that as the civil suit was pending in the High Court,
the Magistrate was not justified to proceed with the criminal case either in
law or on the basis of propriety. Criminal cases have to be proceeded with in
accordance with the procedure as prescribed under the Code of Criminal
Procedure and the pendency of a civil action in a different court even though
higher in status and authority, cannot be made a basis for quashing of the
7. This Court has
consistently held that the revisional or inherent powers of quashing the
proceedings at the initial stage should be exercised sparingly and only where
the allegations made in the complaint or the FIR, even if taken at their face
value and accepted in entirety, do not prima facie disclose the commission of
an offence. Disputed and controversial facts cannot be made the basis for the
exercise of the jurisdiction."
14 We may, however,
notice that the said decision has been considered recently by this Court in
Mahesh Choudhary v. State of Rajasthan & Anr.
[2009 (4) SCC 66]
wherein it was noticed:
"Recently in R.
Kalyani v. Janak C. Mehta and Ors. 2008 (14) SCALE 85, this Court laid down the
law in the following terms:
9. Propositions of
law which emerge from the said decisions are:
(1) 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.
(2) For the said purpose,
the Court, save and except in very exceptional circumstances, would not look to
any document relied upon by the defence.
(3) 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.
(4) 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.
10. It is furthermore
well known that no hard and fast rule can be laid down. Each case has to be
considered on its own merits. The Court, while exercising its inherent
jurisdiction, although would not interfere with a genuine complaint keeping in
view the purport and object for which the 15 provisions of Sections 482 and
483 of the Code of Criminal Procedure had been introduced by the Parliament but
would not hesitate to exercise its jurisdiction in appropriate cases. One of
the paramount duties of the Superior Courts is to see that a person who is
apparently innocent is not subjected to persecution and humiliation on the
basis of a false and wholly untenable complaint.
16. The charge-sheet,
in our opinion, prima facie discloses commission of offences. A fair
investigation was carried out by the Investigating Officer. The charge-sheet is
a detailed one. If an order of cognizance has been passed relying on or on the
basis thereof by the learned Magistrate, in our opinion, no exception thereto
can be taken.
We, therefore, do not
find any legal infirmity in the impugned orders."
is no dispute with regard to the aforementioned propositions of law. However,
it is now well-settled that the High Court ordinarily would exercise its
jurisdiction under Section 482 of the Code of Criminal Procedure if the
allegations made in the First Information Report, even if given face value and
taken to be correct in their entirety, do not make out any offence. When the
allegations made in the First Information Report or the evidences collected
during investigation do not satisfy the ingredients of an offence, the superior
courts would not encourage harassment of a person in a criminal court for
Das, furthermore, would contend that the order of the High Court dated
17.10.2005 would operate as res judicata. With respect, we cannot subscribe to
the said view. The principle of res judicata has no application in a criminal
proceeding. The principles of res judicata as adumbrated in Section 11 of the
Code of Civil Procedure or the general principles thereof will have no
application in a case of this nature.
High Court has refused to quash a First Information Report as a different
standard therefor was required to be applied. However, when materials are
collected and a chargesheet is filed on the basis whereof the Magistrate takes
cognizance of the offence, the same would give rise to a new cause of action.
An order taking cognizance of an offence on the basis of a chargesheet filed by
the investigating officer and/ or directing issuance of summons on a complaint
petition, indisputably, would attract the provisions of Section 482 of the Code
of Criminal Procedure if a case has been made out for invocation thereof.
Das submits that a wrong committed on the part of a person may be a civil wrong
or a criminal wrong although an act of omission or commission on the part of a
person may give rise to both civil action and criminal action. A distinction
must be made between a civil wrong and a criminal wrong. When dispute between
the parties constitute only a civil wrong and not a criminal wrong, the courts
would not permit a person to be harassed although no case for taking cognizance
of the offence has been made out.
in a case of this nature where even, according to Mr. Das, no case has been
made out for taking cognizance of an offence under Section 420 of the Indian
Penal Code, it was obligatory on the part of the learned Chief Judicial
Magistrate to apply his mind to the contents of the chargesheet. Such
application of mind on his part should have been reflected from the order. [See
State of Karnataka and Anr. v. Pastor P. Raju (2006) 6 SCC 728 and Pawan Kumar
Sharma v. State of Uttaranchal, Criminal Appeal No. 1692 of 2007 decided on
10th December, 2007]
however, must place on record that we have not entered into the merit of the
dispute as the civil suit is pending. The same has to be determined in
accordance with law. We would request the court concerned to consider the
desirability of the disposing of civil suit as expeditiously as possible.
appeal is allowed with the aforementioned directions.
[Dr. Mukundakam Sharma]