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CASE NO.:

Appeal (crl.) 1028 of 2001

PETITIONER:

M. KRISHNAN

RESPONDENT:

VIJAY SINGH AND ANR.

DATE OF JUDGMENT: 11/10/2001

BENCH:

M.B. SHAH & R.P. SETHI

JUDGMENT:

JUDGMENT

2001 Supp(4) SCR 45

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

The appellant filed a complaint against the respondent alleging commission

of offences punishable under Sections 193, 196, 197, 406, 465, 468 and 471

of the Indian Penal Code. The Magistrate took the cognizance and issued

process against the two out of the three accused, named in the complaint.

Instead of appearing before the Trial magistrate, the respondents

approached the High Court by way of a petition under Section 482 of the

Code of Criminal Procedure (hereinafter referred to as "the Code") praying

for quashing the proceedings initiated against them. The High Court

accepted the prayer of the accused and quashed the proceedings initiated

against the respondents mainly on the ground that in view of the pendency

of civil disputes between the parties where the genuineness of the

documents, relied upon by the complainant, was in dispute, no criminal

action could be initiated against the accused persons. Feeling aggrieved by

the order of the High Court, the complainant has preferred this appeal

contending that the High Court has committed a mistake of law by quashing

the proceedings under Section 482 of the Code at the initial stage without

affording the complaint an opportunity to prove his case against the

accused as detailed in his complaint.

In his complaint, the appellant had made serious allegations against the

respondents and prima facie satisfied the Magistrate about the commission

of the offences under various sections of the Indian Penal Code. It was

alleged that to prevent legal action against them, the accused persons

filed a suit on false and flimsy claim by creating and forging

documents/bonds/papers, etc. Those documents were alleged to have been got

filled up by the first accused which he had obtained from the complainant

on blank papers for production before the Bank as guarantor. The accused

were alleged to have betrayed the good faith and confidence reposed in them

by the complainant and thus withdrew huge amounts on the basis of the

forged documents. Along with the complaint the appellant filed a number of

documents and got the statements recorded. After perusal of the complaint,

the sworn statements of the complainant, his witness and inspecting the

documents produced along with the complaint, the Trial Magistrate, vide his

detailed order dated 3.8.1998 (Annexure P-7) directed the registration of

the case against the accused No. 1 and 2 for offences punishable under

Sections 193, 209, 406, 468 and 471 IPC read with Section 120B IPC and

issued process against them.

Despite referring to various judgments of this Court relating to the

interpretation and scope of Section 482 of the Code and the indictment that

the High Court should be slow in interfering with the proceedings at the

initial stage, the learned Single Judge of the High Court passed the

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impugned order. The High Court appears to have been impressed by the fact

that as the nature of the dispute was primarily of a civil nature, the

appellant was not justified in resorting to the criminal proceedings.

Accepting such a general proposition would be against the provisions of law

inasmuch as in all cases of cheating and fraud, in the whole transaction,

there is generally some element of civil nature. However, in this case, the

allegations were regarding the forging of the documents and acquiring gains

on the basis of such forged documents. The proceedings could not be quashed

only because the respondents had filed a civil suit with respect to the

aforesaid documents. In a criminal court the allegations made in the

complaint have to be established independently, notwithstanding the

adjudication by a civil court. Had the complainant failed to prove the

allegations made by him in the complaint, the respondents were entitled to

discharge or acquittal but not otherwise. If mere pendency of a suit is

made a ground for quashing the criminal proceedings, the unscrupulous

litigants, apprehending criminal action against them, would be encouraged

to frustrate the course of justice and law by filing suits with respect to

the documents intended to be used against them after the initiation of

criminal proceedings or in anticipation of such proceedings. Such a course

cannot be the mandate of law. Civil proceedings, as distinguished from the

criminal action, have to be adjudicated and concluded by adopting separate

yardsticks. The onus of proving the allegations beyond reasonable doubt, in

criminal case, is not applicable in the civil proceedings which can be

decided merely on the basis of the probabilities with respect to the acts

complained of. The High Court was not, in any way, justified to observe :

"In my view, unless and until the civil court decides the question whether

the document are genuine or forged, no criminal action can be initiated

against the petitioners and in view of the same, the present criminal

proceedings and taking cognizance and issue of process are clearly

erroneous."

Where factual foundations for the offence have been laid down in the

complaint, the High Court should not hasten to quash criminal proceedings

merely on the premise that one or two ingredients have not been stated with

the details or that the facts narrated reveal the existence of commercial

or money transaction between the parties.

This Court in Rajesh Bajaj v. State NCT of Delhi & Ors., JT (1999) 2 SC 112

observed :

"It may be that the facts stated narrated in the present complaint would as

well reveal a commercial transaction or money transaction. But that is

hardly a reason for holding that the offence of cheating would elude from

such a transaction. In fact, many a cheatings were committed in the course

of commercial and also money transactions. One of the illustrations set out

under Section 415 of the Indian Penal Code (illustrations "f") is worthy of

notice now :

"(0 A intentionally deceives z into a belief that A means to repay any

money that z may lend to him and thereby dishonestly induces z to lend him

money, A not intending to repay it. A cheats."

The crux of the postulated is the intention of the person who induces the

victim of his representation and not the nature of the transaction which

would become decisive in discerning whether there was commission of offence

or not. The complainant has stated in the body of the complaint that he was

induced to believe that respondent would honour payment on receipt of

invoices, and that the complainant realised later that the intentions of

the respondent were not clear. He also mentioned that respondent after

receiving the goods have sold them to other and still he did not pay the

money. Such averments would prima facie make out a case for investigation

by the authorities."

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To the same effect is the judgment in Shantilal v. Vimalchand & Ors., JT

(2000) 8 SC 109.

Right from the case of R.P. Kapur v. State of Punjab, AIR (1960) SC 866,

this Court has held that revisional or inherent powers for quashing the

proceedings at the initial stage can be exercised only where the

allegations made in the complaint or the first information report, even if

taken at their face value and accepted in their entirety, do not prima

facie disclose the commission of an offence or where the uncontroverted

allegations made in the FIR or complaint and the evidence relied in support

of the same do not disclose the commission of any offence against the

accused, or the allegations are so absurd and inherently improper that on

the basis of which no prudent person could have reached a just conclusion

that there were sufficient grounds in proceeding against the accused or

where there is an express legal bar engrafted in any provisions of the Code

or any other statute to the institution and continuance of the criminal

proceedings or where a criminal proceeding is manifestly actuated with

malafide and has been initiated maliciously with the ulterior motive for

wrecking vengeance on the accused and with a view to spite him due to

private and personal grudge.

Applying the aforesaid test, it cannot be said that the complaint filed by

the appellant did not disclose the commission of an offence or there

existed any other circumstance which can be made the basis for quashing the

proceedings. In fact allegations made in the complaint required

adjudication and the complaint could not have been aborted in the manner it

has been done by the High Court vide the impugned order."

The impugned judgment being contrary to the settled position of law is thus

not sustainable. The appeal is allowed and the impugned judgment of the

High Court is set aside by upholding the order of the Trial Magistrate

dated 3.8.1998. The Trial Magistrate shall now proceed in the matter in

accordance with law.