REPORTABLE

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

J U D G M E N T

S.B. SINHA, J :

1. Leave granted.

2. Whether 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 involved herein.

It arises in the following factual matrix:

3. The parties are co-sharers. The genealogical tree of the family is as

under:

4. Solhu had five sons, viz., Girdhar, Naraina Gabru, Roopa and

Harikesh. Appellant Nos. 1 and 2 are grand sons of Girdhar. Indisputably,

Gabru died issueless. According to the appellants, the share of Naraina in

the joint family, who died issueless, devolved upon among the three

surviving brothers, viz., Girdhar, Roopa and Harikesh. However, according

to the respondent No. 2, the share of Naraina devolved upon Rupa and

Harikesh.

5. On or about 17.03.1982, Gullu, son of Harikesh filed a suit for

partition of his 1/3

rd

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, stating:

“1.Plaintiff Gullu has ¼ share in disputed land.

2.Share of defendant Devendra and Rajendra

is ¼

th

in disputed land.

3.Share of defendants Jai Singh, ChatarPal,

Nanakchand and Jaichand is ½ in disputed land.”

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SOLHU

Girdhar

Naraina

(Died issueless)

Roopa

Harikesh

Nanak Chattar Pal

Jai Singh

(Died)

Saharam

(Died)

Devendra Rajendra

Jai Chand

(Died)

Gabru

(Died issueless)

Om PalPhool Singh Janter

Bharat

Sunder

Smt.

Munni

Gullu

6. Gullu filed an appeal thereagainst before the Commissioner, Meerut

Division. By an order dated 19.03.1984, the said decree was modified

opining that 3/8

th

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.

7. Aggrieved 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.

8. On 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.

9. On 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

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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.

10. Appellants 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.

11. On 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.

12. Appellants 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 application, directed:

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“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 Judicial Magistrate.

13. The learned Chief Judicial Magistrate by an order dated 20.02.2006

took cognizance of the offence. No reason was assigned in support thereof.

14. Questioning 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.

15. Mr. S.R. Singh, learned senior counsel appearing on behalf of the

appellants would submit:

(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.

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(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 sustained.

16. Mr. 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.

17. The 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.

18. If 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

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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.

19. In 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 evidence.”

20. There 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.

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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 case.”

[See also Seth Ramdayal Jat v. Laxmi Prasad, 2009 (5) SCALE 527]

21. It 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.

22. ‘Cheating’ has been defined in Section 415 of the Indian Penal Code

to mean:

“Cheating— 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

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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 `cheat'.”

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 are

satisfied:

i) deception of a person either by making a false or

misleading representation or by other action or

omission;

(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.”

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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

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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 as under:

“Forgery

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 forgery.”

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.

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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.

24. Appellants 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 co-sharers.

Appellants have not been alleged to be guilty of creating any false

document.

25. Reliance 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.

12

Reliance has also been placed on Kamaladevi Agarwal v. State of

W.B. and Others [(2002) 1 SCC 555] wherein this Court held:

“9. Criminal 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

proceedings.

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.”

13

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

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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.”

26.There 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 nothing.

27. Mr. Das, furthermore, would contend that the order of the High Court

dated 17.10.2005 would operate as res judicata. With respect, we cannot

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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.

28. The 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.

29. Mr. 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

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harassed although no case for taking cognizance of the offence has been

made out.

30. Furthermore, 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 10

th

December, 2007]

31. We, 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.

32. The appeal is allowed with the aforementioned directions.

………………………….J.

[S.B. Sinha]

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..…………………………J.

[Dr. Mukundakam Sharma]

New Delhi;

May 06, 2009

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