TaxTMI 
TaxTMI 
2023 (1) TMI 1326
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....isdiction under Section 482 Cr.P.C. holding that perusal of the case diary as also the materials appearing therefrom prima facie made out a case for investigation. In that view of the matter, the interim order granting stay of all further proceedings pursuant to the registration of the stated F.I.R. was vacated and the stated petition was dismissed. 2. It is to be noted that the aforesaid crime was registered pursuant to the forwarding of an application filed by the respondent herein under Section 156(3) Cr.P.C. raising the allegation against the persons named therein including the appellants, by the learned Magistrate for investigation and thereupon, investigation was commenced. The appellants herein assailed the very order for forwarding of the application for investigation under Section 156(3) Cr.P.C., the consequential registration of the said F.I.R. and also the ongoing investigation pursuant thereto, raising various contentions that the application moved by the respondent herein before the learned Magistrate did not disclose commission of any cognizable offence, that the allegations in the complaint are actuated by mala fides, that the allegations would reveal that they pert....
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....tion under Section 482 Cr.P.C. is to be exercised with care and caution and sparingly. To wit, exercise of the said power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of process of law. Before referring to the relevant authorities on the scope of exercise of power under Section 482, it is only apposite to refer to application filed by the respondent herein before the Learned Additional Chief Judicial Magistrate at Barasat, which was numbered as C. Case No. 538/2017, against Shri Shankar Biswas, Shri Debashis Roy and the appellants herein seeking for a direction to conduct investigation under Section 156(3), Cr.P.C. The appellants herein were arrayed as accused Nos. 3 and 4 therein. In view of the nature of the contentions and recriminations raised by the appellants and the respondents in this appeal, it is only appropriate to extract the translated copy of the said application filed by the respondent herein as under :- "Translated Copy C/2687/17 Sd/- Jayanta Banerjee Filed by: Sd/- Illegible District - North 24 - Parganas In the Court of Ld. Additional Chief Judicial Magistrate at Barasat....
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....s of the said incident, the said person abused the complainant and assaulted him and Accused No. 1 and 2 said that if the complainant went to take previous steps then he would be kill. 3) The accused persons joke the complainant out of the said School by force illegally and withheld all necessary papers and documents of the complainant. The said accused persons have kept the L.I.C. Policy of the complainant (hearing No. 425670161) Bank Pass Book namely (Axis Bank Madhyamgram Branch A/C No. 547010100053181, Oriental Bank of Commerce, Madhyamgram Branch A/c. No. 07512010017260, Union Bank Madhyam Gram Branch A/C/ No. 5470002010009486 and A/C No. 570002010001131, put them under their custody. Sd/- Jayanta Banerjee Although the applicant made repeated request for returning the said document, they did not pay any heed to the same. The Accused persons have withheld the personal Tata Sumo Car of the complainant bearing No. WB 26-C1- 666 forcibly. 4) The said accused person has usurped misappropriated the amount of Provident Fund payable to the complainant and the document relating to the same when the complainant make enquiry from EPS Office Titagarh with the Provident Fund A/C....
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.... Sd/- 19/05/22 R. Islam Rtd. Senior Interpreting Officer O.S. High Court, Calcutta. TRUE COPY" (Emphasis added) 4. Before adverting to the rival contentions with reference to application under Section 156(3), Cr.P.C. within the parameters, we think it only appropriate to refer to the following decisions of this Court in respect to the scope of exercise of power under Section 482, Cr.P.C . 5.1 In Paramjeet Batra v. State of Uttarakhand & Ors. (2013) 11 SCC 673 , this Court held:- "12. While exercising its jurisdiction under Section 482 of the Code of the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of the facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civ....
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....Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding....
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.... its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the....
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....y other person so to do. Offence punishable under Section 423, IPC. The essential ingredients to constitute an offence under Section 423, IPC is that the sale deed or deed subjecting an immovable property to a charge was contained a false statement relating to the consideration or relating to the persons or whose use or benefit, it was intended to operate. Thus, it is evident that Section 423, IPC deals with twin specific frauds in the matter of execution of deeds or instruments of transfer or charge, idest, (i) false recital as to consideration or false recital as to the name of beneficiary. Offence punishable under Section 467, IPC. Virtually, the offence under Section 467 is an aggravated form of the offence under Section 466, IPC. The essential ingredients to constitute the offence punishable under this Section are (i) commission of forgery; (ii) that such commission of forgery must be in relation to a document purporting to be (a) a valuable property; or (b) a will; or (c) an authority to adopt a son; or (d) which purports to give authority to any person to make or transfer any valuable security; or (e) the receive the principle, interest or dividends thereon; or (....
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....aid statement in the aforesaid affidavit assumes relevance. It is the case of the appellants that in regard to his removal from the post of Secretary of the school, the respondent had instituted title suit No.363 of 2015, praying therein for a declaration that he is the Secretary of the school and the said suit is still pending. Despite the institution of the said suit and its pendency before the First Court of Civil Judge, Junior Division, Barasat the respondent made such a statement in the affidavit. That apart, what is stated in the application is that he is the Secretary of the school, run by the trust. 9. The materials on record pertaining to the said pleadings instituted in the Civil Suit, produced in this proceeding would reveal that the respondent was in fact ousted from the membership of the trust. In the counter affidavit filed in this proceeding, the respondent has virtually admitted the pendency of the suit filed against his removal from the post of Secretary and the trusteeship and its pendency. The factum of passing of adverse orders in the interlocutory applications in the said Civil Suit as also the prima facie finding and conclusion arrived at by the Civil Court t....
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....nder Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjit Batra (supra), the High Court would have quashed the criminal proceedings to prevent the abuse of the process of the Court but for the concealment. 11. In the aforesaid circumstances, coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached the jurisdictional civil court by instituting a civil suit and it is pending....