2024 INSC 472 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2807 OF 2024

(Arising out of Special Leave Petition (Crl.) No. 6769 of 2017)

Sardar Ravi Inder Singh & Anr. … Appellants

versus

State of Jharkhand & Anr. ... Respondents

J U D G M E N T

ABHAY S. OKA, J.

1.Leave granted.

FACTUAL ASPECTS

2.In substance, the appellants' prayer in this appeal is to

quash the criminal proceedings of a complaint filed by the

second respondent, Ganesh Kumar Agiwal. The present

appellants are the trustees of Sardar Bahadur Sir Inder Singh

(Personal Estate) Trust (for short, “the Trust”). The present

appellants and one Gurdev Singh, as the trustees of the said

Trust, entered into two separate agreements for sale dated

29

th

January 2001 (for short “the agreements”) in favour of

the second respondent and one Uma Shankar Agiwal. In the

agreements, the second respondent and Uma Shankar were

described as the partners of Sri Mahakaleshwar Enterprises

Criminal Appeal @ SLP (Crl) No.6769 of 2017 Page 1 of 11

(for short, “the firm”). They entered into the agreements on

behalf of the firm. Uma Shankar is the real brother of the

second respondent.

3.The second respondent and his brother Uma Shankar

filed a suit for specific performance of the agreements against

the appellants in the year 2005. On 8

th

May 2007, Uma

Shankar filed an application in the pending suit stating that

the entire advance of Rs.28,01,000/- paid by him and the

second respondent has been received back from the

appellants by way of a Demand Draft, and in addition, the

second respondent and Uma Shankar received a sum of

Rs.5,00,000/- by a pay order. Therefore, Uma Shankar

prayed for permission to withdraw the suit.

4.On 28

th

June 2007, the second respondent filed a

complaint bearing C/1 Case No.1027 of 2007 under Section

200 of the Code of Criminal Procedure, 1973 (for short, ‘the

Cr. PC’) against the appellants and others before the Chief

Judicial Magistrate, Jamshedpur, alleging the commission of

offences punishable under Sections 420, 406, 424 and 120-B

of the Indian Penal Code, 1860 (for short, ‘the IPC’). The

foundation of the complaint was the sale transaction of

property in the form of the agreements. In the complaint,

Uma Shankar was shown as the first accused, and the

present appellants were shown as the second and third

accused. In the complaint, the second respondent referred to

the application dated 8

th

May 2007 for withdrawing the suit

filed by Uma Shankar. He alleged that this was done without

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his knowledge by Uma Shankar in connivance with the

appellant. He alleged that he had paid the entire advance to

the appellants. The allegation is that the appellants failed to

execute the sale deeds notwithstanding the agreements.

Cognizance was taken by a criminal Court based on the above

complaint on 19

th

July 2007. It must be noted here that the

second respondent filed, more or less, a similar complaint

under Section 200 of the Cr.PC against the appellants on 31

st

July 2007. The second respondent's subsequent complaint

bearing Case No.1248 of 2007 was dismissed by the learned

Judicial Magistrate by the order dated 14

th

September 2009,

in the exercise of power under Section 203 of the Cr.PC by

holding that no case was made out against the appellants.

5.Uma Shankar was transposed as a defendant in the suit

for specific performance, who filed a written statement

contending that the entire consideration paid to the

appellants with compensation for delayed payment has been

returned. On 11th November 2008, the second respondent

filed an application in the pending suit, contending that there

was a settlement between the parties and that the second

respondent has no right, title or interest in the suit

properties. Therefore, he prayed for a grant of permission to

withdraw the suit. By the order dated 27th November 2008,

the learned Trial Judge dismissed the suit for specific

performance as withdrawn.

6.In the first complaint bearing Case No.1027 of 2007, the

appellants applied under Section 245 of the Cr.PC for

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discharge on the grounds of compromise. The application for

discharge was rejected by the learned Judicial Magistrate,

First Class, Jamshedpur, by the order dated 28

th

August

2012. The appellants preferred a criminal revision

application against the order before the High Court of

Jharkhand at Ranchi. The High Court dismissed the criminal

revision application. The High Court declined to look into the

application for withdrawal of the suit made by the second

respondent, and the consequent order passed on the said

application by the Trial Court on the ground that at the time

of framing of the charge, the accused had no right to produce

any documents. The Special Leave Petition filed before this

Court by the appellants against the orders of the Trial Court

and the High Court was withdrawn with liberty to avail such

remedies as may be available.

7.Thereafter, the appellants invoked a remedy before the

High Court by filing a substantive writ petition under Article

226 of the Constitution of India for quashing the first criminal

complaint. By the impugned order, the High Court dismissed

the said writ petition on the ground that the same

contentions had been rejected in an earlier criminal revision

application, which cannot be re-agitated. Therefore, there was

a bar under Article 362 of the Cr. PC.

SUBMISSIONS

8.The learned senior counsel appearing for the appellants

has taken us through the copy of the plaint, the application

for withdrawal made by the second respondent and the order

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passed thereon by the learned Trial Court. He submitted that

the High Court had adopted a very hyper-technical approach.

He submitted that the learned Judicial Magistrate dismissed

the second complaint filed by the second respondent by

holding that no case was made out to proceed. He submitted

that after the second respondent received all the money he

had paid under the agreements for sale, the prosecution of

the first complaint was nothing but an abuse of the process of

law.

9.The learned counsel appearing for the second

respondent supported the impugned order and submitted that

the High Court was correct in not allowing the appellants to

re-open the issue, which was closed by the order passed in

the earlier criminal revision application filed by the

appellants. The learned counsel appearing for the respondent

state also supported the impugned order.

CONSIDERATION OF SUBMISSIONS

10.The agreements for sale were executed by the appellants

and another Trustee of the said Trust for the sale of two

properties described as Schedule ‘A’ and Schedule ‘B’ and for

consideration of Rs.2.75 crores and Rs.1.50 crores,

respectively. The averments made in paragraph 3 of the suit

filed by the second respondent and his brother, Uma Shankar,

disclose that they paid the earnest money of Rs.28,01,000/-

to the appellants by separate demand drafts. The allegation

in the suit is that by another agreement dated 17

th

February

2004, the appellants agreed to execute and register the sale

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deed in favour of the second respondent and his brother

regarding the properties subject matter of the agreements.

According to the case of the second respondent and his

brother, the suit for specific performance was filed as the

appellants refused to execute the deed.

11.In the first complaint (subject matter of this appeal)

bearing C/1Case No.1027 of 2007 filed by the second

respondent, the facts stated in the plaint have been reiterated.

It is alleged that the appellants have refused to execute the

sale deed. It is claimed that as TISCO Ltd. had objected to the

execution of the sale deed in terms of the agreements, a fresh

agreement was executed on 17

th

February 2004 on request

made by the appellants. After that, the second respondent

referred to a suit for specific performance. It is alleged in the

complaint that the first appellant herein had executed a power

of attorney in favour of one Kishan, who was the fifth accused

and subsequently, on 23

rd

October 2005, the first appellant

transferred the property symbolically in favour of one Ashish,

who was the fourth accused. After that, there is a reference

in the complaint to the application dated 8

th

May 2007 made

by Uma Shankar to withdraw the suit for specific

performance. The application is alleged to be a false

document that Uma Shankar created by entering a conspiracy

with the present appellants. Therefore, the offences

punishable under Sections 468, 420, 406, 424 and Section

120-B of the IPC were alleged. Cognizance was taken on the

said complaint by the Criminal Court. Uma Shankar was

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transposed as a defendant in the suit for specific

performance.

12.What is material here is the application dated 11

th

November 2008, admittedly filed by the second respondent as

a plaintiff in the suit for specific performance. Paragraphs 2

and 3 of the said application read thus:

“ .. .. .. .. .. .. .. .. .. .. .. .. .. ..

2. That henceforthwith the plaintif

has got no manner of right, title,

interest and possession over the suit

properties of this suit any more he will

lay any claim in any manner

whatsoever over the suit properties of

this suit in future.

3. That in view of the aforesaid facts and

circumstances the plaintiff does not want

to proceed further in this suit and wants

to withdraw the same.

.. .. . .. … .. .. .. .. .. .. .. .. . … ...”

(emphasis added)

On 27

th

November 2008, the Trial Court allowed the

application and disposed of the suit as withdrawn. In the

said order, the Trial Court specifically recorded that the

second respondent had signed the application. The second

respondent never challenged the order permitting withdrawal

of the suit passed on 27

th

November 2008.

13.The second complaint bearing no.1248 of 2007 was filed

by the second respondent, showing the appellants as accused

nos.1 and 2 and Ashish and Kishan as accused nos.3 and 4,

respectively, who were shown as accused nos.4 and 5 in the

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first complaint. By the detailed order dated 14th September

2009, the learned Judicial Magistrate held that no prima facie

case was made out in the complaint. He also noted that the

suit for specific performance was pending. The allegations in

the second complaint were again based on the same

agreements for sale. It is alleged that the accused conspired

to cheat the second respondent.

14.Now, we come to the prayer made for discharge by the

appellants in the second complaint. The order of the learned

Judicial Magistrate dated 28

th

August 2012 does not refer to

the subsequent development of the second respondent

withdrawing the suit based on the application dated 11

th

November 2008. In the criminal revision application preferred

against the said order by the appellants, the subsequent

events were pointed out regarding the settlement and

withdrawal of the suit for specific performance. However, the

High Court did not consider the said events by relying upon

the law laid down by this Court in its decision in the case of

State of Orissa v. Debendra Nath Padhi

1

. The High Court

held that the accused was not entitled to produce documents

at the stage of the framing charge. As noted earlier, the

special leave petition filed by the appellants against the said

order was withdrawn with the liberty to adopt appropriate

remedies as available.

15.Under the liberty granted by this Court, a writ petition

under Article 226 of the Constitution of India was preferred

1 (2005) 1 SCC 568

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by the appellants, in which the first prayer was for quashing

the first complaint on the ground that in view of the

compromise in the suit, the continuation of the complaint was

a complete abuse of the process of law. We have perused the

impugned order of the High Court. What the High Court lost

sight of was that it was a substantive petition under Article

226 of the Constitution of India for quashing the complaint on

the ground that the continuation of the same was an abuse of

the process of law. A prayer was made in the petition for

quashing the order passed by the learned Judicial Magistrate,

by which the application for discharge, made by the

appellants, was rejected. In the earlier criminal revision

application, the High Court had confirmed the order

dismissing the application for discharge. The criminal

revision application was rejected on the ground that the

documents relied upon by the appellants regarding the

settlement in the suit with the second respondent and

disposal of the suit could not be considered while considering

the prayer for discharge. While passing the impugned order,

the High Court relied upon Section 362 of the Cr.PC, which

reads thus:

“362. Court not to alter judgment.—

Save as otherwise provided by this Code

or by any other law for the time being in

force, no Court, when it has signed its

judgment or final order disposing of a

case, shall alter or review the same except

to correct a clerical or arithmetical error.”

The second prayer in the writ petition could have been hit by

Section 362 of the Cr.PC, as the prayer was to quash the

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order on the application for discharge. But the first prayer

was for quashing the complaint itself. Therefore, dismissing

the first prayer in the writ petition on the ground of the bar of

Section 362 of the Cr.PC was erroneous.

16.We have already quoted what the second respondent

stated in the application dated 11

th

November 2008. He

categorically stated that in view of the out-of-court settlement

with the appellants, he would not lay any claim in any

manner whatsoever over the suit properties. The second

respondent never disputed the correctness of what is stated in

the said application, and the order passed permitting the

withdrawal of the suit. The second respondent did not

challenge the order permitting withdrawal by filing any

proceedings. When the second respondent stated that he

would not lay any claim in any manner whatsoever over the

suit properties, he gave up his claim under the agreements

dated 29

th

January 2001. The primary grievance in the first

complaint was that notwithstanding the said agreements, the

appellants tried to transfer the properties to the co-accused

and created a false application for withdrawal of the suit

dated 8

th

May 2007, which was, in fact, the creation of Uma

Shankar, brother of the second respondent.

17.As the second respondent had given up his rights under

the agreements, it is crystal clear that continuing the

complaint would be nothing but an abuse of the process of

law. Therefore, a case was made out to quash the complaint.

The High Court fell in error in refusing to do so.

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18.Accordingly, the appeal succeeds, and we quash C/1

Case No.1027 of 2007, pending before the Court of the

learned Judicial Magistrate, First Class, Jamshedpur.

..…………..………J.

(Abhay S. Oka)

..…………..………J.

(Ujjal Bhuyan)

New Delhi;

July 08, 2024.

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