TaxTMI 
TaxTMI 
2021 (9) TMI 1540
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....the Additional Chief Judicial Magistrate, IIIrd District Gorakhpur and also to quash the charge sheet dated 18th January, 2020 and summoning order dated 26th June, 2020. The High Court has, in detail, recorded the arguments of the applicants which are very briefly summarised hereinbelow :- (i) The case lodged was false and baseless; (ii) Charge-Sheet had been submitted without proper investigation and evidence; (iii) No prima facie case was disclosed against the applicants. 4. It is the case of the Appellant that one Arjun Dev and his wife Bela Rani were recorded as Bhumidhar of Plot No. 971M area 918 Aire (hereinafter referred to as the 'plot in question') and that they had executed a registered Power of Attorney in favour of the Applicant No.1 Rajan Kumar, who has since died. 5. It is said that on the basis of the said Power of Attorney, the said Rajan Kumar (since deceased) executed sale deeds in favour of the Appellant and his family members on 16th July, 2014, 1st August, 2014, 6th August, 2014 and 23rd July, 2014, pursuant to which, the name of the Appellant and others were mutated in the Revenue records. 6. From the facts, as recorded in t....
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....gh Court, (including Rajan Kumar, since deceased), that having failed to get relief from the courts, Beena Srivastava brought in Ratnesh Mishra, Smt. Afroz Athar and Abdul Gani into the picture to harass the Appellant. We are not really concerned with these allegations for the purpose of this appeal. 12. Suffice it to mention that the judgment and order under appeal records the submission of the applicants that the Power of Attorney holder of Bela Rani, namely, Rajan Kumar (since deceased) had executed the sale deed dated 22nd June, 2017 in favour of the Applicant No.2 (that is, the Appellant before us) after receiving the sale consideration. Later, a supplementary deed was executed on 16.09.2017. On the basis of Sale Deed dated 22nd June, 2017, the name of the Appellant was mutated in the records. Further details of what transpired are not recorded to avoid unnecessary prolixity. Suffice it to mention that the Respondent No.2 filed an FIR in this Court. The relevant extracts from the said FIR, lodged on 16th September, 2017 are reproduced hereinbelow for convenience :- "The applicant has purchased on 21.08.2017 one house with courtyard in which shops are also present f....
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.... registered ............." 13. As pointed out by Mr. Sanjeev Agarwal, learned counsel appearing on behalf of Respondent No.2, the FIR was challenged in the High Court of Judicature at Allahabad under Article 226 of the Constitution of India. The said writ petition was disposed of by order dated 5th October, 2017 with the following order: "It is contended that the dispute in respect of the property as to whether the petitioners have any right therein on the basis of conveyance deed executed by power of attorney holder or the first informant has the right is purely civil in nature and does not give rise to any criminal liability. Learned AGA and Sri Sudhanshu Pandey, appearing for complainant-respondent no. 3 opposed the petition. We have gone through the allegations contained in the impugned F.I.R., which, prima-facie, discloses commission of cognizable offence, as such, we are not inclined to interfere in the F.I.R. However, in view of the facts and the allegations made in the FIR, writ petition stands finally disposed of with the direction that the petitioners shall not be arrested in the aforesaid case crime number till submission of police report un....
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....oday, there has been a change in situation, in that, criminal proceedings against Rajan Kumar have abated since Rajan Kumar is no longer alive. It is the case of the private respondent that the private respondent purchased property. In the meantime, Rajan Kumar, who is no longer alive, on the basis of a false Power of Attorney of Bela Rani, executed a sale deed in favour of Randheer Singh, i.e., the Appellant herein. There is only a vague averment "by connivance". The next part of the sentence reads "Bela Rani had no right to sell the aforesaid plot." 19. As recorded in the judgment and order, the property in question has even been mutated in the name of the Appellant. Of course, mutation records are not a document of title. Whether Bela Rani had title, whether she validly executed a power of attorney, whether any right has accrued to the Appellant, are matters for the civil court to adjudicate. 20. There is a further allegation that on the basis of the false sale deed, the Appellant and Rajan Kumar (since deceased) in association with the witnesses of the sale deed who are "criminal natured persons" were attempting to trespass the house by breaking open the lock and had got ....
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....issions. 26. Mr. Chandra Prakash, learned counsel appearing on behalf of the Appellant cited certain judgments of this Court in Mohd. Ibrahim & Other s v. State of Bihar [(2009) 8 SCC 751]; Paramjeet Batr a v. State of Uttarakhand [(2013) 11 SCC 673]; Uma Shankar Gopalik a v . State of Bihar & Anr. [(2005) 10 SCC 336]; Vesa Holdings Private Limited & Anr . v. State of Kerala & Ors. [(2015) 8 SCC 293]; Robert John D'Souza & Ors . v. Stephen V. Gomes & Anr. [(2015 (9) SCC 96]; and Kapil Agarwal & Ors. v. Sanjay Sharma & Ors. [(2021) 5 SCC 524]. 27. In Mohd. Ibrahim (supra), this Court held as under :- "19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). 20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege th....
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....: "24. 'Dishonestly'.-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'." 28 [Ed.: Para 28 corrected vide Official Corrigendum No. F.3/Ed.B.J./149/2009 dated 6-10-2009.] . To "defraud" or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include: (i) Fraudulent removal or concealment of property (Sections 206, 421 and 424). (ii) Fraudulent claim to property to prevent seizure (Section 207). (iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210). (iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243). (v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253). (vi) Fraudulent acts relating to stamps (Sections 255 to 261). (vii) Fraudulent use of false instrument/weight/measure (Sections 264 to 266). (viii) Cheating (Sections 415 to 420). (ix) Fraudulent prevention of debt being available to....
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.... 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 civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court." 29. In Uma Shankar Gopalika (supra), this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120B IPC. The case was purely a civil dispute between the parties for which remedy lay before the civil Court. 30. In Vesa Holdings Private Limited (supra), this Court held :- "13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition preced....
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....or the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 15. In Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] , this Court in paras 25 and 46 has observed as under: (SCC pp. 10-11 & 16) "25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Directo....
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....ed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment. 33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal of....