Full Judgment Text
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
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29 January 2001 (for short “the agreements”) in favour of
Signature Not Verified
the second respondent and one Uma Shankar Agiwal. In the
Digitally signed by
ASHISH KONDLE
Date: 2024.07.08
17:39:19 IST
Reason:
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
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the appellants in the year 2005. On 8 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.
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4. On 28 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
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the application dated 8 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
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complaint on 19 July 2007. It must be noted here that the
second respondent filed, more or less, a similar complaint
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under Section 200 of the Cr.PC against the appellants on 31
July 2007. The second respondent's subsequent complaint
bearing Case No.1248 of 2007 was dismissed by the learned
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Judicial Magistrate by the order dated 14 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,
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First Class, Jamshedpur, by the order dated 28 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
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in the suit is that by another agreement dated 17 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
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agreement was executed on 17 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
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and subsequently, on 23 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
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in the complaint to the application dated 8 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.
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What is material here is the application dated 11
12.
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)
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On 27 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
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of the suit passed on 27 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
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Judicial Magistrate dated 28 August 2012 does not refer to
the subsequent development of the second respondent
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withdrawing the suit based on the application dated 11
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
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State of Orissa v. Debendra Nath Padhi . 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
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stated in the application dated 11 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
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dated 29 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
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dated 8 May 2007, which was, in fact, the creation of Uma
Shankar, brother of the second respondent.
As the second respondent had given up his rights under
17.
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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