2023 INSC 941 SLP(CRL.) NO.8629-8630/2019 Page 1 of 19

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO S……………..OF 2023

(Arising out of SLP (Crl.) Nos.8629-8630 of 2019)

RUCHIR RASTOGI APPELLANT(S)

VERSUS

PANKAJ RASTOGI

AND OTHERS ETC. RESPONDENT(S)

J U D G M E N T

VIKRAM NATH,J.

Leave granted.

2. These appeals assail the correctness of the

judgment and order dated 15.04.2019 passed by

Allahabad High Court in Criminal Misc. Writ Petition

Nos.31343 and 31370 of 2018 (filed by the

respondents herein) whereby both the writ petitions

were allowed and the First Information Report

1

lodged by the present appellant dated 22.10.2018

1

FIR

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registered as Case Crime No.0128 of 2018 under

sections 457, 380 and 506 of the Indian Penal Code,

1860

2, Police Station Pheelkhana, District Kanpur

Nagar was quashed. The private respondents herein

were the accused in the said FIR.

3. Shorn of unnecessary details, the relevant facts

are as follows:

3.1 The appellant and the private respondents

belong to the same family and the pedigree is as

follows:

2

IPC

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3.2 The appellant and respondent No.1 entered into

a partnership as Karta of their respective HUFs

and a partnership deed dated 01.04.2012 was

reduced into writing. The business inherited by

them was run in shop No.26/59 as a tenant.

The said premises was taken on rent from its

owner Ms. Urmila Gupta.

3.3 Respondent No.1 gave a legal notice dated

27.05.2013 to the appellant expressing his

desire to dissolve the firm w.e.f. 01.06.2013. He

also retained the keys of the shop and restricted

the appellant’s entry therein.

3.4 In response, the appellant gave a legal notice

dated 07.06.2013 requesting the respondent 1

to withdraw his notice dated 27.05.2013. The

appellant also filed an application under section

9 of the Arbitration and Conciliation Act, 1996

3

before the District Judge, Kanpur registered as

Misc. Arbitration Application No.77/70 of 2013.

The District Judge passed an interim order

dated 01.07.2013 directing the parties not to

3

The 1996 Act

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open the shop in the absence of the other i.e. to

say that both the parties or their representative

would enter the shop jointly and neither of the

parties will enter the shop separately. The

District Judge appointed an Advocate

Commissioner to serve the notice before the

next date which was fixed as 06.07.2013. The

aforesaid order dated 01.07.2013 is reproduced

hereunder:

“Application under Section 9 of the

Arbitration and Conciliation Act alongwith

munsrim report is placed on record. It

deserves to be registered.

01.07.2013

The case was called.

7ga is registered while issuing notice to

the opposite parties date 06.07.2013 is

fixed. Till then both the parties or their

representatives will enter the shop in

dispute jointly. No party or its

representatives will enter the shop

separately.

11ga application for appointment of

special messenger or advocate

Commissioner is accepted Shri Prabhat

Sharma Advocate is appointed as advocate

Commissioner who will go to the place and

serve the notice on the opposite party and

before the date will file their report. The

plaintiff will pay Rs.700 as fee to the

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advocate Commissioner and will also pay

the expenses of 100 too and from.

Sd/-

District Judge

Kanpur Nagar”

3.5 On 02.08.2013, Arbitrators were appointed to

sort out the differences between the partners i.e.

appellant and respondent No.1 of the firm M/s

Lala Jugal Kishore and sons at Kanpur. Before

the District Judge, Kanpur, respondent s

appeared and filed their objections in the

proceedings under section 9 of 1996 Act. After

hearing learned counsel for the parties and after

considering the material on record, the District

Judge, Kanpur passed a detailed order dated

11.11.2013 disposing of the said application.

The findings recorded were that the appellant

had a prima facie case, there was a balance of

convenience and also irreparable loss could be

caused in case injunction is not granted. The

District Judge accordingly directed that the

entire assets and belongings of the firm M/s

Lala Jugal Kishore and Sons at premises

No.26/59, Birhana Road, Kanpur shall be

preserved till the making of the arbitral award

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before it is enforced in accordance with section

36 of the 1996 Act. The operative portion of the

order dated 11.11.2013 reads as follows: -

“The application 4kha is decided

accordingly. The entire assets,

belongings of the firm M/s Lala Jugal

Kishore & Sons at Premises No.26/59,

Birhana Road, Kanpur Nagar, shall be

preserved till the making of the arbitral

award before it is enforced in accordance

with Section 36 of the Arbitration and

Conciliation Act.”

3.6 According to the appellant, an arbitral award

was passed on 29.08.2013, a copy whereof is

filed along with the rejoinder affidavit as

Annexure-R5. The said award is on the basis of

compromise. As per the said compromise, which

included all the assets and belongings of the

firm, the shop in question came to the exclusive

possession of appellant and his father.

3.7 Mr. Ambuj Rastogi, one of the respondents and

one of the sons of Lala Jugal Kishore Rastogi

purchased the shop in question from Ms.

Urmila Gupta the owner, in the name of M/s

Sushma Constructions Pvt. Ltd. wherein he and

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his wife Sushma Rastogi were the main

promoters vide sale deed dated 12.12.2013.

3.8 M/s Sushma Constructions Pvt. Ltd. filed an

eviction suit against the respondent No.1 in the

Court of Judge, Small Causes/ Additional

District Judge, Court No.16, Kanpur Nagar

registered as Small Causes Suit No.309 of 2014.

Apart from respondent No.1, no other person

was impleaded as defendant in the said suit.

The Trial Court , vide judgment dated

15.07.2015, dismissed the said suit. Aggrieved

by the said judgment dated 15.07.2015, M/s

Sushma Constructions Pvt. Ltd. preferred a

Revision under section 25 of the Provincial

Small Causes Courts Act, 1887 before the High

Court registered as SSC Revision no.279 of

2015. The High Court, vide judgment dated

19.07.2018, primarily on the basis of the

concession given by the opposite party therein

i.e. Pankaj Rastogi (respondent No.1 herein)

allowed the said Revision and a direction was

issued to respondent No.1 to hand over peaceful

possession of the shop in question within a

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period of 30 days. It was also provided that as

per the agreed terms, if the possession is

handed over within 30 days, the plaintiff M/s

Sushma Constructions Pvt. Ltd. would not

press for recovery of rent. The concession

recorded and the operative portion of the order

passed by the High Court ar e reproduced

hereunder:

“Accordingly, the impugned judgment dated

15.07.2015 passed by the learned Judge

Small Causes Court/Additional District

Judge, Court No.16, Kanpur Nagar in

S.C.C. Suit No.309 of 2014, M/s Sushma

Construction Pvt. Ltd. vs. Pankaj Rastogi

stands set aside and the suit filed by the

plaintiff stands allowed in toto. However, at

this stage, learned counsel for the

defendant-respondent submitted that as

categorically stated in paragraph 7 of the

counter affidavit that the defendant –

respondent is not at all in a position to pay

even a single penny as his business has

been closed, therefore, liability to pay the

arrears to set aside. On this statement, the

learned counsel for the plaintiff-revisionist

very fairly submits that in case the peaceful

possession is handed over by the defendant-

respondent within 30 days from today, he

shall not press for any recovery of the

arrears of rent.

Accordingly, as jointly agreed between

the parties, the defendant-respondent is

directed to handover the peaceful

possession of the shop in question within a

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period of thirty days from today. In case

such possession is handed over within 30

days, the plaintiff-revisionist shall not press

for any recovery of the rent. It is also made

clear that any delay or deliberate avoidance

on the part of the plaintiff in taking

possession when handed over by the

defendant would be taken against the spirit

of the present order.

Learned counsel for the defendant

undertakes to send a copy of this order to

his client. The plaintiff is also permitted to

serve a certified copy on the defendant

respondent No.1 personally as well as by

registered post/courier services for

necessary compliance.

It is further made clear that in case

possession is not handed over within thirty

days from today, the plaintiff shall be at

liberty to execute the same.

Revision stands allowed, however, with

the observations as made above.”

3.9 Respondent No.1, on the strength of the

aforesaid order passed by the High Court ,

surrendered the shop in question to M/s

Sushma Constructions Pvt. Ltd. - plaintiff in the

suit for eviction, on 11.10.2018.

3.10 The appellant came to know that the Board of

M/s Sushma Constructions Pvt. Ltd. was put

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up outside the shop in question and also that

the locks of the said shop had been changed.

Immediately thereafter the appellant lodged an

FIR on 22.10.2018 which is a subject matter in

question. In the said FIR, respondent No.1 along

with one Mohit Rastogi, Ketan Shah and staff of

M/s Sushama Constructions Pvt. Ltd. were

arrayed as accused and named in the FIR. In

the FIR, it was clearly mentioned that the

appellant and respondent No.1 as Karta s of

respected HUF were partners in equal share and

there was an interim order operating. At the

time when the interim order was passed, the

shop had about 100 Kgs of Gold, 500 Kgs Silver,

10,000 Carat of Diamonds and 5000 Carat of

Gems. The appellant came to know of new locks

and the Board of M/s Sushma Constructions

Pvt. Ltd. only on 17.10.2018. It was also

mentioned that the appellant had learnt that it

was respondent No.1, along with staff named in

the FIR, who had opened the locks and the

entire stock and valuable documents were

missing. When the appellant inquired from

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respondent No.1, he threatened him to keep

quiet otherwise he would lose his life.

3.11 It is this FIR which was challenged by way of

Criminal Misc. Writ Petition No.31343 of 2018

filed by Pankaj Rastogi, Mohit Rastogi and

Ketan Kumar Shah and Criminal Misc. Writ

Petition No.31373 of 2018 was filed by Tanya

Rastogi wife of Arpit Rastogi and Ambuj Rastogi

praying for quashing of the same. These two

petitions have been allowed by the High Court

by the impugned judgment.

3.12 The High Court allowed the petitions on the

finding that no offence under various sections

mentioned in the FIR were made out as the

same on its face value did not satisfy the

ingredients of the offences under section 457,

380 and 506 of IPC. Aggrieved by the same, the

present two appeals have been preferred by the

complainant Ruchir Rastogi.

4. We have heard the learned senior counsel for

the parties, Shri Vikas Singh for the appellant and

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Shri R. Basant, for the private respondents. We have

perused the material on record and also the

submissions made on behalf of the respective

parties.

5. At the outset, it may be noted that Raj Kishore

Rastogi (father of the appellant), Ambuj Rastogi,

Kunal Rastogi, and Pankaj Rastogi (respondent No.1)

are real brothers. All four are sons of Lala Jugal

Kishore Rastogi. The shop in question was a joint

partnership of the HUF of the appellant and

respondent No.1 and they had signed the partnership

deed as Kartas of the respective HUF.

6. The proceedings initiated by the appellant

under section 9 of 1996 Act are not disputed nor the

orders passed therein on 01.07.2013 and

11.11.2013. The order dated 11.11.2013 had been

passed after considering the objections filed by

respondent No.1 and also the submissions advanced

by the counsel for the parties. It is a reasoned order

to which apparently there is no challenge. Pankaj

Rastogi very well knew about the order dated

01.07.2013 as also the order dated 11.11.2013.

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7. It is true that Ambuj Rastogi and Sushma

Rastogi, the promoters and Directors of M/s Sushma

Constructions Pvt. Ltd. were not parties to the

proceedings under section 9 of the 1996 Act and

rightly so for the reason that they were not partners

with respect to the business being run in the shop in

question.

8. It is difficult to presume that Ambuj Rastogi and

Sushma Rastogi were not aware of the orders passed

in the section 9 proceedings under the 1996 Act but

even if it is assumed that they were not aware of the

said orders the fact remains that respondent No.1

had due knowledge and was well aware of the orders

passed by the District Judge in the aforesaid

proceedings. The purchase of the shop in question by

M/s Sushma Constructions Pvt. Ltd. of which Ambuj

Rastogi and Sushma Rastogi were the

promoters/Directors from the erstwhile owner Smt.

Urmila Gupta could have been part of the larger

conspiracy planned in collusion with respondent

No.1 but we refrain ourselves from recording any

finding to that effect at this stage.

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9. The filing of the Small Causes Suit for eviction

by M/s Sushma Constructions Pvt. Ltd. impleading

only respondent No.1 as the defendant speaks

volumes about their collusion. What made Ambuj

Rastogi believe that it was respondent No.1, who was

alone the owner and in possession of the business

being run from the shop in question, is nowhere

reflected. In any case, once the notices for eviction

were served upon respondent No.1, he ought to have

disclosed this fact in the said suit that firstly, the

business in the shop in question was being jointly

run by him and the appellant and more importantly,

that there was an injunction operating passed by a

competent Court of District Judge in proceedings

under section 9 of the 1996 Act. Respondent No.1

almost admitted the claim for eviction which

ultimately was the basis for the High Court to decree

the suit. It was a collusive suit no doubt and, in any

case, respondent No.1 had been dishonest and

deliberately concealed the material fact from the

Court. Further, respondent No.1 being under an

injunction of preserving the assets and belongings of

the shop separately in violation thereof proceeded to

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surrender the possession in compliance to the decree

of eviction on 11.10.2018. Respondent No.1, along

with other co-accused, including not only the

Directors/promoters of M/s Sushma Constructions

Pvt. Ltd. but also others, removed the assets and

belongings inside the shop in question by breaking

open the locks in violation of the injunction orders.

10. Having considered the FIR which has been

registered for the various offences under sections

457, 380 and 506 of the IPC, we now proceed to

discuss the ingredients of sections 457, 380 and 506

of the IPC in order to test whether the High Court was

right in recording a finding that on the face of it, the

ingredients for the said offence were not made out

from the reading of the FIR.

11. Theft is defined under section 378 of the IPC,

according to which anyone intending to dishonestly

take any moveable property out of possession of any

person without that person’s consent, moves that

property in order to such taking, is said to commit

Theft. In the present case, the assets and belongings

inside the shop in question were in joint possession

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of the appellant as also the respondent No.1 and

there was an injunction granted by the Competent

Court that the assets and belongings of the shop in

question would be preserved, removal of the same

without consent or knowledge of the appellant would

amount to theft.

12. As per the order dated 01.07.2013 and further

by a subsequent order dated 11.11.2013, it was

directed that the entire assets and belongings of the

said firm would be preserved till the making of the

arbitral award before it is enforced in accordance with

section 36. The possession, would therefore, remain

with the appellant and respondent No.1 so long as

the injunction was operating on it. Respondent No.1

knowing fully well could not have firstly surrendered

the shop and allowed M/s Sushma Constructions

Pvt. Ltd. to remove the assets and belongings in the

said shop. It is difficult to say whether he was directly

involved in the theft but he was definitely involved in

the conspiracy and abetting the theft. Respondent

No.1 should have informed the appellant of the same

but he did not.

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13. The appellant, being a partner in the said firm,

removal of the assets without his knowledge would

amount to theft, be it by M/s Sushma Constructions

Pvt. Ltd. or others.

14. Further, section 457 IPC talks of an offence

regarding ‘lurking house trespass or house breaking

at night to commit an offence punishable with

imprisonment’. Theft committed in any building

which is used as a human dwelling or for a custody

of a property is punishable under section 380 of the

IPC and the sentence for a term which may extend to

seven years and also be liable to fine. In the present

case, there was breaking open of the locks of the

premises wherein the property was stored for the

purposes of theft, the punishment under section 457

of the IPC would extend to 14 years.

15. Section 506 of the IPC talks of the offence of

criminal intimidation. The FIR contained the specific

averment that when the appellant questioned

respondent No.1, he threatened him to remain quiet

otherwise he would lose his life. All these offences are

cognizable in nature and basic ingredients being

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there in the FIR, the High Court clearly erred in

quashing the FIR. Whether the offences are proved or

not would be a subject matter of the Trial and before

that of the investigation as to whether a triable case

is made out or not by the investigating agency but in

any case, was not a case where FIR was liable to be

quashed.

16. The defence taken by the respondent if adverted

to and dealt with by this Court, could cause serious

prejudice to them in the investigation and also the

trial as such we are not delving into the same.

However, we would refer to the couple of objections

taken, for example, the dispute regarding the

arbitration award and its execution. Even in the

absence thereof once there was an injunction granted

to preserve the property, respondent No.1 could not

have dealt with the same and, at the outset, he

should have informed the appellant about the orders

passed under section 9 of the 1996 Act. He should

have refrained himself from surrendering the

possession of the shop in question. His participation

in the crime prima facie, therefore, cannot be ruled

out.

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17. For all the reasons recorded above, the appeals

succeed and are allowed. The impugned judgment of

the High Court is set aside. Law to take its own

course. The matter to proceed with respect to the FIR

in question in accordance with law. It is however

made clear that any observations made in this order

are only for the purposes of deciding the issue raised

and the same may not influence the investigation or

the trial which shall proceed independently and be

decided on the evidence adduced.

……………………………………J.

(VIKRAM NATH)

……………………………………J.

(AHSANUDDIN AMANULLAH)

NEW DELHI

OCTOBER 19, 2023

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