Full Judgment Text
2023 INSC 941
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS……………..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
1
were allowed and the First Information Report
lodged by the present appellant dated 22.10.2018
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2023.10.19
18:06:10 IST
Reason:
1
FIR
SLP(CRL.) NO.8629-8630/2019 Page 1 of 19
registered as Case Crime No.0128 of 2018 under
sections 457, 380 and 506 of the Indian Penal Code,
2
1860 , 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
SLP(CRL.) NO.8629-8630/2019 Page 2 of 19
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
3
9 of the Arbitration and Conciliation Act, 1996
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
SLP(CRL.) NO.8629-8630/2019 Page 3 of 19
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
SLP(CRL.) NO.8629-8630/2019 Page 4 of 19
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, respondents
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 are 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 Kartas 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
SLP(CRL.) NO.8629-8630/2019 Page 10 of 19
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
SLP(CRL.) NO.8629-8630/2019 Page 11 of 19
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.
SLP(CRL.) NO.8629-8630/2019 Page 13 of 19
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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