Sec. 420 I.P.C. - sec. 239 Cr.P.C -matter was compromised and amount was returned - No documentary evidence - resulted in dismissal of petition - sec.482 Cr.P.C. to quash the proceedings was dismissed by their lordships of High court = 1.Sarosh Sam Bastawala and another State of A.P., represented by Asifnagar Police Station, Hyderabad through Public Prosecutor, High Court of A,.P., Hyderabad, and others. = 2014 (Apr.Part ) http://judis.nic.in/judis_andhra/filename=9787

 Sec. 420 I.P.C. - sec. 239 Cr.P.C -matter was compromised and amount was returned - No documentary evidence - resulted in dismissal of petition - sec.482 Cr.P.C. to quash the proceedings was dismissed by their lordships of High court = 
Both of them are alleged to have deceitfully collected
lakhs of rupees under the cover of registered/unregistered agreements of sale in
respect of land covered under S.Nos.218 and  220 of Lingampally near B.H.E.L.
Ramachandrapuram by using forged and fabricated documents.=
The material placed before the Court would indicate that the
petitioners herein filed Crl.M.P.No.5773/2007 under Section 239 Cr.P.C., before
the  Court of VI Additional Chief Metropolitan Magistrate, Hyderabad, seeking
discharge. The plea with regard to return of money to the informants and
entering into an agreement with the accused was also raised before the learned
Magistrate. The learned Magistrate after referring to the material available on
record, while dismissing the petition, held that there is no  documentary
evidence to show that the accused entered into a compromise  or settlement and
that the accused executed  registered deeds in favour of the informants. =
 For the aforesaid reasons, the Criminal Petition filed under Section
482 Cr.P.C., to quash the proceedings in CC No.650/2002 on the file of VI
Additional Metropolitan Magistrate, City Criminal Courts, Hyderabad, is hereby
dismissed. The Miscellaneous Petitions, if any, shall stand closed.
2014 (Apr.Part ) http://judis.nic.in/judis_andhra/filename=9787
HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR          

Crl.P. NO. 634 of 2009

04-04-2014

1.Sarosh Sam  Bastawala and another

State of A.P., represented by Asifnagar Police Station, Hyderabad through
Public Prosecutor, High Court of A,.P., Hyderabad, and others.

Counsel for the petitioners:  Petitioner No.2 appeared in person

Counsel for the first respondent: Public Prosecutor

<Gist:

>Head Note
1. (2005) 3 SCC 299
2AIR 2005 SC 757
3 (2008) 9 SCC 677
4 (2012) 10 SCC 303
5(2003) 4 SCC 675
6(2008) 16 SCC 1
7 (2012) 11 SCC 321

ORAL ORDER:  
                This criminal petition is filed by A-1 and A-2 under Section 482
Cr.P.C.,  to quash the proceedings in CC No.650/2002 on the file of VI
Additional Metropolitan Magistrate, City Criminal Courts, Hyderabad, which was
taken on file for an offence punishable under Section 420 IPC.  Originally, only
the State represented by Public Prosecutor was made  respondent. Subsequently,
respondents 2 to 7 were impleaded as respondents pursuant to an order dt. 20-3-
2009 passed  in Crl.M.P.No.1434/2009.
2.              The allegations in the charge sheet are as follows: The first
petitioner, Sam Zal Bastawala, is the father of the second petitioner by name
Sarosh Sam Bastawala.  Both of them are alleged to have deceitfully collected
lakhs of rupees under the cover of registered/unregistered agreements of sale in
respect of land covered under S.Nos.218 and  220 of Lingampally near B.H.E.L.
Ramachandrapuram by using forged and fabricated documents.  A charge sheet was  
filed in respect of three crimes registered against the accused.  (1)
Cr.No.92/2000 was registered on 16-5-2000 on the basis of a report given by
respondents 2 to 4 for an offence under Section 420 IPC. According to them, the
accused collected Rs.15 lakhs by   entering into an agreement of sale dt. 15-10-
1998 showing photostat copies of certain documents and land acquisition gazette
of the year 1961 in respect of the land covered by S.No.218.  On enquiry by
respondents 2 to 4, it came to light that the accused are not the owners of
land in question and the said land was sold by the accused to three other
parties.                 (2) The second case relates to Cr.No.98/2000 registered
on the basis of a report given by respondents 5 and 6 herein against the accused
which was registered for an offence punishable under section 420 IPC. It is
stated that the accused have collected Rs.10 lakhs under  the cover of an
agreement of sale in respect of Ac.1-20 in S.No.220 and 2000 sq.yards in
S.No.218 of Ramachandrapuram. Their enquires revealed that the land belong to
the police department and that the accused have sold the said  land under a
cover of registered and unregistered agreement and deeds in favour of Shravan
Kumar Gupta; Surender  Singh; Ram Babu; Ashok Goud and Papi Reddy. When the    
respondents 5 and 6 protested, the petitioners/accused issued a cheque for Rs.9
lakhs, which, when presented was dishonoured.  (3) The third incident is in
respect of Cr.No.102/2000 registered for an offence  punishable under Section
420 IPC on the basis of a report given by Respondent No.7 herein. It is alleged
that accused No.1, Sam Zal Bastawala deceitfully collected Rs.10 lakhs from him
under the cover of registered/unregistered deeds  dt. 5-5-99 and 6-5-99 for sale
of 2100 sq.yards of land in S.No.220/A.  On protest, the cheque which was given
by the accused, was dishonoured. The unofficial respondents herein also came to
know that the accused sold the same land to various people and thus requested to
take legal action.
3.              In respect of the above crimes, the police investigated into the
matter and during the course of investigation, the informants and their
witnesses who are co-victims were examined and the documents  issued pursuant to
the said crimes were also collected. The investigation further disclosed that
Town Ship Administrator of BHEL through his letter dt. 26-9-2001 furnished
copies of Government (Industries Department) Gazette dt. 30-12-1961 and
proceedings dt. 28-6-2001 of the Joint Collector of Medak District indicating
that the land fraudulently sold by the accused actually belong to BHEL and
Police Department and that the accused forged and fabricated certain documents
of  BHEL to obtain orders  from the Mandal Revenue Officer  and  got entries
made in the revenue records with the help of those forged and fabricated
documents.   Thus, the investigation done by the police  establish that the
accused have committed an offence punishable under Sec.420 IPC. Basing on the
result of investigation, a charge sheet was filed, which was taken on file as CC
No.650/2002.
4.               The petitioner No.2 appeared in person. The petitioner No.2 mainly
contends that even accepting the  allegations made in the charge sheet   to be
true, no offence under Section 420 IPC is made out as the issue involved is
purely  civil in nature. According to him, there was no inducement by the
accused as the accused purchased the land after due verification of the records.
It is further contended that the charge sheet does not disclose any dishonest
intention from inception. He would contend that the amount alleged to have been
taken from the respondents was repaid and the same is borne out from the record.
Taking shelter from the ratio laid down in RUCHI AGARWAL V. AMIT KUMAR AGARWAL1,      
MOHD. SHAMIM V. SMT. NAHID BEGUM2, NIKHIL MERCHANT v. CENTRAL BUREAU OF                
INVESTIGATION3, and GIAN SINGH V. STATE OF PUNJAB4 the petitioner No.2      
strenuously contended that the proceedings cannot survive and the same have to
be quashed as bank guarantee was invoked and entire amount was paid to the
informants.
5.              On the other hand, the learned Public Prosecutor  representing the
State would  contend that a fair reading of the charge sheet do disclose
commission of an offence  punishable under Section 420 IPC. Basing on the
instructions received by him, he submits that there was no settlement/compromise
between the parties and that there is any amount of dispute with regard to the
money paid by the accused to the respondents/informants.
5-A.            In spite of service of notice on R-2, R-3, and R-7,   there is no
representation on their behalf.  Notices sent to R-4,R-5 and R-6  were not yet
returned served.
6.              The material placed before the Court would indicate that the
petitioners herein filed Crl.M.P.No.5773/2007 under Section 239 Cr.P.C., before
the  Court of VI Additional Chief Metropolitan Magistrate, Hyderabad, seeking
discharge. The plea with regard to return of money to the informants and
entering into an agreement with the accused was also raised before the learned
Magistrate. The learned Magistrate after referring to the material available on
record, while dismissing the petition, held that there is no  documentary
evidence to show that the accused entered into a compromise  or settlement and
that the accused executed  registered deeds in favour of the informants. The
said order was challenged by way of criminal revision vide Crl.R.P.No.207/2008
on the file of Metropolitan Sessions Judge, Hyderabad.  By his judgment   dt.
19-12-2008, the learned    Sessions Judge dismissed the said revision.
7.                  A perusal of the order  of the learned Sessions Judge would
indicate that the cases   which have been referred to  above ie., RUCHI AGARWAL
(1) and MOHD. SHAMIM (2 supra) were also placed before the learned Sessions
Judge apart from contending that the ingredients to constitute an offence of
cheating are not made out. The learned Sessions Judge while dismissing the said
application held  that though Xerox copies of  registered sale deeds executed by
A-1 and A-2 in favour of informants were produced, but  the accused failed to
file any sale deed in favour of informants in respect of the land in issue. In
the absence of any actual proof of subsequent settlement, the learned Sessions
Judge felt that these are all matters which have to be considered during trial
and the accused have to impress the trial court on the aspect of subsequent
settlement of the entire subject matter by producing necessary oral and
documentary evidence before the court.
8.              The allegation that the land belonging to BHEL and Police Department
was sold by the accused to different persons and when protested the accused
repaid by way of cheques, which when presented got bounced, would show that
there was dishonest intention right from inception, thereby, prima facie,
constituting an offence under Section 420 IPC.
9.              The trial court as well the revisional court have rightly held that
the allegations made in the charge sheet would prima facie constitute an offence
of cheating. The said finding of both the courts needs no interference at this
stage. The  documents which are sought to be relied upon by the  accused can be
used as his defence during trial and  not in an application under Section 482
Cr.P.C.,
10               The only ground urged by the petitioner No.2 is that in view of
the  NIKHIL MERCHANT (3 supra) and  GIAN SINGH (4 supra), the proceedings cannot  
be continued as  the respondents have received the entire  amount from the
petitioners/accused.
11.                Section 320 Cr.P.C., categorizes certain offences as
compoundable, certain other offences as compoundable with the permission of the
Court. Offences under special statutes are not covered under  Section 320
Cr.p.C.,  Section 482 Cr.P.C., saves the inherent power of the High Court  to
prevent abuse of process of  any court or otherwise to secure the ends of
Justice. The said provision is an over riding provision as it starts with an
non-obstinate clause. These words leave no manner of doubt that none of the
provisions of the Code limits or restricts the inherent power.  The said power
cannot be resorted to if there is a specific provision in the Code for the
redressal of the grievance of the affected party. As held by the Apex Court, the
inherent power has to be exercised very sparingly, and cautiously and with an
object to prevent abuse of process of any Court or otherwise to secure the ends
of justice.
12.             In B.S. JOSHI V. STATE OF HARYANA5, the husband was one of the    
appellants while the wife was respondent no. 2 in an appeal before the Apex
Court. They were married on 21.7.1999 and were living separately. At the
instance of wife, a case was registered against the husband under Sections 498-
A,323 and 406, IPC. Pending the case, the disputes between the husband and wife
and their family members were settled. The wife filed an affidavit stating that
the dispute between herself and her husband had been finally settled and they
have agreed for mutual divorce.  Basing on an affidavit given by the wife, an
application under Section 482 Cr.P.C., was filed for quashing the said
proceedings. The High Court dismissed the said application on the ground that
offences under Sections 498-A and 406 IPC were non-compoundable and the inherent
powers under Section 482 of the Code could not be invoked to by-pass Section 320
Cr.P.C.,   While dealing with the said situation, the Apex Court in  paras 14
and 15 held as under:
"14. There is no doubt that the object of introducing Chapter XX- A containing
Section 498-A in the Indian Penal Code was to prevent torture to a woman by her
husband or by relatives of her husband. Section 498-A was added with a view to
punishing a husband and his relatives who harass or torture the wife to coerce
her or her relatives to satisfy unlawful demands of dowry. The hypertechnical
view would be counterproductive and would act against interests of women and
against the object for which this provision was added. There is every likelihood
that non-exercise of inherent power to quash the proceedings to meet the ends of
justice would prevent women from settling earlier. That is not the object of
Chapter XX-A of the Indian Penal Code.
15. In view of the above discussion, we hold that the High Court in exercise of
its inherent powers can quash criminal proceedings or FIR or complaint and
Section 320 of the Code does not limit or affect the powers under Section 482 of
the Code."
13.             In RUCHI AGARWAL (1 supra), the Apex Court was dealing with the  
situation where the petitioner therein filed  a compromise petition  before the
Family Court  admitting receipt of Stridhana and maintenance in lump sum  and
that she will not  claim any maintenance in future. She also undertook to
withdraw all proceedings, civil and criminal, filed by her  against the
respondents within one month of the compromise deed. In the said compromise, the
husband agreed to withdraw his petition  filed under Section 9 of the Hindu
Marriage Act and also agreed to give a consent divorce as sought for by the
petitioner therein. Based on the said compromise, the petitioner therein ie.,
Ruchi Agarwal obtained a divorce as desired by her   and in partial compliance
she withdrew the criminal case filed under Section 125 Cr.P.C., In those
circumstances, a quash petition was filed before the High Court which was partly
allowed  on the ground of territorial jurisdiction against which the matter was
carried to the Supreme Court. The main plea taken before the Supreme Court was
that the compromise deed was obtained by threat and coercion and that she did
not receive lump sum amount as maintenance and also stridhana properties. Taking
into consideration the events which took place after compromise deed, the Apex
Court held that the  criminal complaint was filed only with a view to harass the
accused and held that it would be an abuse of process of court if the criminal
proceedings are allowed to continue.
15.             In MANOJ SHARMA V. STATE6, the Apex Court was dealing  with a    
situation as to whether the first information report which was registered for
offences under Sections 420, 468, 471, 120-B r/w 34 IPC can be quashed either
under Section 482 Cr.P.C., or under Art.226 of the Constitution, when the
accused and the complainant had compromised and  settled  the matter between
themselves. After referring to various authorities, the Apex Court held that the
High Court's refusal to exercise its jurisdiction under Art. 226 of the
Constitution for quashing  the criminal proceedings cannot be supported since
the dispute between the accused and the complainant  was in private  nature and
when once the complainant decided not to pursue the matter any further, the High
Court could have taken a more pragmatic view of the matter and quash the said
proceedings.
16.             In NIKHIL MERCHANT (3 supra),  a company by name, M/s. Neemuch    
Emballage Ltd., Mumbai committed default in repayment of loan granted by Andhra
Bank. The bank filed a suit  for recovery of the amount and also filed a
complaint against the company, its Managing Director and the officials of Andhra
Bank for various offences under Sections 120-B read with Sections 420, 467, 468,
471 of the IPC read with Sections 5(2) and 5(1)(d) of the Prevention of
Corruption Act, 1947 and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988. The suit  filed for recovery of the amount
ended in a compromise as the defendants therein agreed to pay the amount due as
per the schedule mentioned in the consent terms. One of the clauses in the said
agreement refers to withdrawal of claims made against each other.  In view of
the said clause, accused No. 3 in the said case filed an application for
discharge. Rejection of the said application led to the filing of a petition
before the Bombay High Court. One of the contentions raised in the said case was
that  in view of the settlement arrived at between the accused and the company,
continuation of proceedings are unreasonable. As against the dismissal of said
application the accused approached the Apex Court.  Since the dispute between
the company and the bank have been set at rest on the basis of the  compromise
arrived  at between the parties, whereunder the dues of the bank have been
cleared and the  dispute involved has overtones of a civil dispute with certain
criminal facets, the Apex Court held that it is a fit case  where technicalities
should not be  allowed to stand in the way of quashing the criminal proceedings
since the continuance of the proceedings   after the compromise  arrived at
between the parties would be a futile exercise.
17.             Disagreeing with the view taken in B.S.JOSHI (5 supra), NIKHIL
MERCHANT (3 supra) and MANOJ SHARMA (6 supa), a Bench of two-Judges referred the      
case of GIAN SINGH (4 supra), to a Larger Bench. While affirming the view
expressed in earlier cases, the Apex Court in GIAN SINGH's case  (4 supra)
summarized the ratio involved as under:
"57.The position that emerges from the above discussion can be summarised thus:
the power of the High Court in quashing a criminal proceeding or FIR or
complaint in exercise of its inherent jurisdiction is distinct and different
from the power given to a criminal court for compounding the offences under
Section 320 of the Code. Inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline engrafted in
such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of
the process of any Court. In what cases power to quash the criminal proceeding
or complaint or F.I.R may be exercised where the offender and victim have
settled their dispute would depend on the facts and circumstances of each case
and no category can be prescribed. However, before exercise of such power, the
High Court must have due regard to the nature and gravity of the crime. Heinous
and serious offences of mental depravity or offences like murder, rape, dacoity,
etc. cannot be fittingly quashed even though the victim or victim's family and
the offender have settled the dispute. Such offences are not private in nature
and have serious impact on society. Similarly, any compromise between the victim
and offender in relation to the offences under special statutes like Prevention
of Corruption Act or the offences committed by public servants while working in
that capacity etc; cannot provide for any basis for quashing criminal
proceedings involving such offences. But the criminal cases having
overwhelmingly and pre-dominatingly civil flavour stand on different footing for
the purposes of quashing, particularly the offences arising from commercial,
financial, mercantile, civil, partnership or such like transactions or the
offences arising out of matrimony relating to dowry, etc. or the family disputes
where the wrong is basically private or personal in nature and the parties have
resolved their entire dispute. In this category of cases, High Court may quash
criminal proceedings if in its view, because of the compromise between the
offender and victim, the possibility of conviction is remote and bleak and
continuation of criminal case would put accused to great oppression and
prejudice and extreme injustice would be caused to him by not quashing the
criminal case despite full and complete settlement and compromise with the
victim. In other words, the High Court must consider whether it would be unfair
or contrary to the interest of justice to continue with the criminal proceeding
or continuation of the criminal proceeding would tantamount to abuse of process
of law despite settlement and compromise between the victim and wrongdoer and
whether to secure the ends of justice, it is appropriate that criminal case is
put to an end and if the answer to the above question(s) is in affirmative, the
High Court shall be well within its jurisdiction to quash the criminal
proceeding.
18.             Later in  ASHOK SADARANGANI V. UNION OF INDIA7, the Apex Court  in      
exercise of its extra-ordinary jurisdiction under Art. 142 of the Constitution
of India  quashed the criminal proceedings when continuance  after compromise
would amount to abuse of process of court  but held that such jurisdiction would
be exercised sparingly and with circumspection having regard to the facts and
circumstances of each case.
19.                A close look at the above decisions would clearly  indicate that
in all the cases, parties to the dispute have arrived at a compromise or have
settled their disputes and  either made suitable applications or at least
brought to the notice of the Court in some form or the other about the
settlement between them, thereby seeking closure of the case.  As noted above,
in B. S. JOSHI's case (5 supra), the wife filed an affidavit for quashing all
the proceedings in view of the settlement arrived at between the wife and the
husband. Similarly, in MANOJ SARMA (6 supra), there was a settlement between the
parties and pursuant to the said settlement, application was filed  before the
Court for quashing of the proceedings pursuant to the compromise arrived at
between them. Even in RUCHI AGARWAL (1 supra),  compromise was arrived at and    
pursuant to the compromise, the petitioner, Ruchi Agarwal, obtained divorce by
consent but however, failed to withdraw the criminal case initiated at her
instance. In those circumstances, the Supreme Court quashed the criminal
proceedings holding that it would amount to abuse of process of court and that
the criminal complaint was filed only with a view to harass the accused therein.
In NIKHIL MERCHANT (3 supra), the Apex Court was dealing with the situation
where the Bank received the amount due from the accused and after receiving the
said amount, steps were being taken for getting the matter closed due to
compromise arrived at between the parties. In the case on hand, no document is
filed to show that the parties have either compromised or settled their dispute.
The petitioners mainly argued that a sum of Rs.15 lakhs was paid by invoking
bank guarantee and the said amount which was paid was  only towards discharge of
the amount received by them.  The said fact of payment of money to the
respondents and receipt of same towards purchase of land was not established.
There is no iota of material to substantiate the same. The situation could have
been different had the accused along with the complainant filed a memo showing
receipt of money or at least informed the  investigating agencies with regard to
settlement between the parties.  Since the respondents did not choose to appear
before this Court in spite of service of notice, the petitioners  requested
this court to presume that  the respondents are not interested as they have
received the money.  I am afraid, the  said request cannot be accepted for the
reason that the learned Public Prosecutor who got instructions informed the
Court that there was no compromise/settlement between the parties. Therefore,
the situation in the cases which are referred to above is totally different to
the instant case. The principles of law enunciated from B.S.JOSHI to ASHOK
SADARANGANI may not apply to the facts on hand.  
20.             In fact, the petitioner No.2 who argued the matter in person
admitted that there is no document to show that the respondents/informants had
agreed for a compromise or settlement. Such being the position, the argument of
the petitioner No.2 that the amount alleged to have been paid by the petitioners
was towards repayment of sale consideration received by them cannot be accepted.
The facts in the instant case being different from the cases referred to above,
the principles of law enunciated therein will not apply to the present case.
Even the orders passed by the two courts do not indicate existence of any oral
or written agreement or settlement between the parties.
21.             For the aforesaid reasons, the Criminal Petition filed under Section
482 Cr.P.C., to quash the proceedings in CC No.650/2002 on the file of VI
Additional Metropolitan Magistrate, City Criminal Courts, Hyderabad, is hereby
dismissed. The Miscellaneous Petitions, if any, shall stand closed.
-----------------------------------
C. PRAVEEN KUMAR, J.    
Date:   04.04.2013.

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.