Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: July 29, 2013
Pronounced on: August 08, 2013
+ (i) CRL.M.C. 473/2005
B.M. GUPTA ..... Petitioner
Through: Mr. Mohit Mathur, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
+ (ii) CRL.M.C. 586/2005
V.JAIN ..... Petitioner
Through: Mr. Sandip Sethi, Senior Advocate with
Mr. Amarjit Singh, Mr. Gurvinder Singh
& Mr. Shiv Gupta, Advocates
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 1 of 14
+ (iii) CRL.M.C. 599/2005
VINOD ..... Petitioner
Through: Mr. Sunil Sethi, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
+ (iv) CRL.M.C. 3433/2009
A. JAIN ..... Petitioner
Through: Mr. Vikas Pahwa, Senior Advocate with
Mr. Mahendra Rana, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
J U D G M E N T
1. Petitioners of the above captioned four petitions are the accused persons
in Criminal Complaint under Sections 415/420/467/468/471 read with Section
120-B of IPC ( Annexure – A ) preferred by complainant- M/s. Kanin (India) Pvt.
th
Ltd. in which petitioners have been summoned as accused vide order of 15
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 2 of 14
September, 2004. Since the aforesaid criminal complaint ( Annexure – A ) and
th
summoning order of 15 September, 2004 in relation to the aforesaid criminal
complaint, is common in the above four petitions and the submissions
advanced are also identical, therefore, with the consent of both the sides,
above-mentioned four petitions were heard together and are being disposed of
by this common judgment.
2. It emerges from the record that complainant-company had purchased
plot No.A-46, Mohan Co-operative Industrial Estate, Mathura Road, New
Delhi from accused- A.P. Chaudhary (since deceased) and in lieu thereof,
complainant company had allotted to him 3840 equity shares of ` 100/- each at
par being equivalent to the value of plot i.e. ` 3,84,000/-. In respect of aforesaid
th
transaction, an Agreement to Sell of 17 November, 1985 was executed by
petitioner-accused Arihant Jain in the capacity of Managing Director of the
complainant-company and the said Agreement was with accused- A.P.
Chaudhary (since deceased).
3. According to respondent No.2-complainant, petitioners were aware of
nd
the aforesaid transaction. On 2 January, 1986, accused- A.P. Chaudhary (since
deceased) and his wife- Ms. Vinod had resigned from complainant-company
and had transferred the shares held by them in favour of Arihant Jain , Inder
Jain and Vishwa Jain . Petitioner- Brij Mohan Gupta is brother of Ms. Raman
Jain (since deceased), who is wife of petitioner-accused Arihant Jain and was
well aware of the transaction regarding the acquiring of plot in question by the
complainant-company. Accused- A.P. Chaudhary (since deceased) had also
executed indemnity bond, his affidavit, undertaking, etc. in favour of
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 3 of 14
complainant-company. In February, 2003, complainant-company had received
a legal notice sent by accused- Ms. Raman Jain (since deceased) asking
complainant-company to vacate the subject plot as she was claiming its
ownership after having obtained Letter of Administration on the basis of Will of
rd
3 January, 1986 purportedly executed by accused- A.P. Chaudhary (since
deceased) in her favour.
4. The basic stand taken in the criminal complaint (Annexure-A) is that
since accused- A.P. Chaudhary (since deceased) was no longer the owner of the
plot in question, therefore, he could not have bequeathed it to accused- Ms.
Raman Jain (since deceased). It is averred in the criminal complaint
(Annexure-A) that after purchase of the plot in question, complainant-company
had spent huge sum of money for raising construction on the plot in question
and the house tax is being also paid by the complainant-company. It is also
averred in the criminal complaint ( Annexure-A) that accused- Ms. Vinod was
fully aware that her husband accused- A.P. Chaudhary (since deceased) had
sold the plot in question to complainant-company, but still petitioners-accused
persons had entered into criminal conspiracy to wrongfully claim the
ownership of the plot in question, which was duly sold by accused- A.P.
Chaudhary (since deceased) to complainant-company. It is also averred that
petitioners-accused persons had given their ‘no objection’ at the time of
issuance of Letter of Administration in respect of the plot in question whereas
they were well aware about the plot in question having been sold by accused-
A.P. Chaudhary (since deceased) to complainant-company and thus,
petitioners-accused persons had conspired to issue rent receipt, which is forged.
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 4 of 14
5. According to respondent-complainant, the entire conspiracy to cheat
complainant-company was hatched by petitioner-accused Arihant Jain .
Impugned order notes that the averment made in the criminal complaint
( Annexure-A) had been duly substantiated by the pre-summoning evidence of
complainant-company and its witnesses, and the trial court has found that a
prima facie case to summon the accused for the aforesaid offence is made out.
6. Quashing of aforesaid criminal complaint ( Annexure-A) and the
impugned order is sought by petitioners primarily on the ground that on the
basis of the averments made in the criminal complaint ( Annexure-A), no
offence is made out.
7. Learned senior counsel Mr. Sandip Sethi and Mr. Vikas Pahwa for
petitioners-accused persons had maintained that there was no fraudulent or
dishonest intention on the part of petitioners-accused persons as mere
Agreement to Sell does not convey any valid title in the property and so, no
offence was committed by accused- A.P. Chaudhary (since deceased), who had
bequeathed the plot in question to accused- Ms. Raman Jain (since deceased).
To assert so, reliance was placed upon Apex Court's decision in Suraj Lamp
and Industries Pvt .Ltd. v. State of Haryana and another (2009) 7 SCC 363.
8. It was strenuously contended on behalf of petitioners that there are no
allegations of inducement/deception against petitioners and essential
ingredients of fraudulent and dishonest misrepresentation are lacking and even
if the complaint in question is taken as it is, still the dispute raised is of purely
civil nature. It was pointed out that the allegations of forgery are not there in
the entire complaint and there is nothing material in the complaint in question
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 5 of 14
to suggest that any conspiracy was entered into by petitioners-accused persons.
It was vehemently urged that the criminal complaint is malafide and is an act of
vengeance to grab the property in question and no forgery was committed as
the Will was duly executed by the owner of the property and that the aforesaid
Agreement to Sell was never acted upon.
9. With much vehemence, it was contended on behalf of petitioners-
accused persons that mere allegation of conspiracy levelled in the complaint
cannot be the cogent basis for summoning a person as an accused for the
charge of criminal conspiracy, as summoning of person as an accused is a
serious matter and the law cannot be set into motion as a matter of course and
where there are number of accused, their individual role has to be seen.
10. It was also contended by learned counsel for petitioners that the rent
receipt alleged to be forged is not on record and no wrongful loss was caused
to the respondent-complainant and there was no corresponding gain to
petitioner-accused persons. Thus, it was urged that none of the ingredients of
the offence alleged is made out and that the allegations levelled in the
complaint in question are preposterous and highly conjectural.
11. Lastly, it was urged on behalf of petitioners that till the Letter of
Administration granted on the basis of Will, whose execution is not disputed, is
declared as nullity by the civil court, no offence as alleged, is prima facie made
out and thus, initiation and continuance of proceedings arising out of complaint
in question is abuse of process of the court. To support the above submissions,
reliance is placed upon decisions in Som Mittal v. Govt. of Karnataka AIR
2008 SC 1528, Hridaya Ranjan v. State of Bihar 2000 SCC (Crl.)786,
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 6 of 14
Nageshwar Prasad v. Narayan Singh (1998) 5 SCC 694, Alpic Finance v.
P.Sadasivan (2001) 3 SCC 513, V.Y.Jose v. State of Gujarat (2009) 3 SCC 78,
Hira Lal Hari Lal v. CBI (2003) 5 SCC 257, Prakash Chander v. Dev Dutt
Malik 27(1985) DLT 23, Pepsi Food v. Special Judicial Magistrate (1998) 5
SCC 749, Anil Mahajan v. Bhor Industries (2006) 1 SCC (Crl.) 746,
Satyabrata Ghose, v. Mughneeram Bangur And Co. & Anr. AIR 1954 SC 44,
Devendra and Ors. v. State of Uttar Pradesh (2009) 7 SCC 495, Mohd.
Ibrahim and Ors. v. State of Bihar (2009) 8 SCC 751, Rambaran Prosad v.
Ram Mohit Hazra AIR 1967 SC 744, Adalat Prasad v. Rooplal Jindal And
Ors. (2004) 7 SCC 338, Bhupinder Singh v. C.S.Rekhi 1998 VII AD (Delhi)
200, Dalip Kaur v. Jagnar Singh 2009 RLR 415 (SC) and State v. Navjot
Sandhu (2005) 11 SCC 600.
12. Mr. Aman Lekhi, learned senior counsel for respondent-complainant,
contended that correctness and veracity of the averments made in the complaint
in question is not to be gone into at the threshold of initiation of the
proceedings as the complaint in question is to be taken at its face value. It was
next contended that in exercise of jurisdiction under Section 482 of Cr.P.C., the
court is not justified in embarking upon an inquiry into the reliability and
genuineness of the allegations made and direct evidence of conspiracy is
seldom forthcoming and that criminal conspiracy has to be inferred from the
circumstances of the case.
13. It was further asserted that the entire sale consideration for property in
question has been already paid and thus, Agreement to Sell has been acted upon
and property in question has been leased out by respondent-complainant
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 7 of 14
company and so, petitioners-accused persons cannot claim that they were not
aware of complainant-company being the owner of the property in question.
14. It was also urged that merely because respondent-complainant is a lessee
of the property in question by the DDA, it will not divest respondent-
complainant company of its capacity of a owner of the property in question. It
was strenuously urged that obtaining of Letter of Administration of a Will
purportedly executed by accused- A.P.Chaudhary ( since deceased ) knowing
that he is not the owner of the property in question, as he had already sold that
property to respondent-complainant company, rendered the Will in question
being a fabricated document and so it cannot be said that the essential
ingredients of cheating or forgery are lacking.
15. To urge that at this initial stage, a broad view is to be taken and that
summoning order need not be a detailed reasoned order, reliance was placed
upon decision in Ajay Kumar Das v. State of Jharkhand and another (2011) 12
SCC 319 and Nupur Talwar v. Central Bureau of Investigation and another
(2012) 11 SCC 465. Thus, it was urged that these petitions ought to be
dismissed out-rightly as criminal and civil proceedings can go side by side and
the criminal proceedings cannot be halted to await the decision in the civil
proceedings.
16. The submissions advanced by both the sides, criminal complaint
( Annexure-A), impugned order, the material on record and the decisions cited
have been duly considered and thereupon, it becomes amply evident that the
Apex Court's decision in Suraj Lamp (supra) had no doubt deprecated transfer
of property through sale agreement and had declared that to avoid fraud and
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 8 of 14
forgery, conveyance of immovable property ought to be through registered sale
deeds, but transactions through sale agreements have not been held to be void
abinitio, as in the aforesaid decision, the Solicitor General was called upon to
give suggestions and the extent of ‘ power of attorney transactions’ had to be
gauged. In any case, the A greement to Sell in respect of the property in
question has been purportedly acted upon as not only the entire sale
consideration for this property has been allegedly paid by the complainant-
company, and even the property in question is said to be in constructive
possession of the complainant-company through its tenant and so, it cannot be
said at this initial stage that A greement to Sell cannot be looked into.
17. It is the specious plea that merely because petitioner is a lessee of DDA,
it would not make the complainant-company owner of the property in question.
Such a view can be reasonably taken. This Court is conscious that jurisdiction
under Section 482 of Cr.P.C. has to be exercised with circumspection and the
allegations in the complaint have to be taken at its face value. Merely because
civil proceedings are pending in respect of Letter of Administration granted
pertaining to the Will in question, would not be a ground to either stall the
proceedings arising out the criminal complaint in question or to quash the
proceedings arising out of this complaint, as civil and criminal proceedings can
simultaneously proceed.
18. Direct evidence to prove criminal conspiracy is rarely available and from
the circumstances, complicity of accused persons is to be inferred. What is the
essence of criminal conspiracy has been reiterated by the Apex Court in
Pratapbhai Hamirbhai Solanki v. State of Gujarat and another (2013) 1 SCC
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 9 of 14
613. Applying the ratio of Apex Court’s decision in Pratapbhai (supra) to the
instant case, it can be certainly said that there is no basis to conclude at this
initial stage that the offence of criminal conspiracy is not at all made out as the
facts and circumstances of this case, as emerging from the criminal complaint
in question, give rise to a strong suspicion that petitioners-accused persons are
a party to the commission of the offence of cheating as they were allegedly
involved in the commission of the offence in question.
19. Simply because petitioner- Arihant Jain is not a witness to the execution
of the Will or has not participated in the proceedings relating to Letter of
Administration sought on the basis of a Will executed by accused- A.P.
Chaudhary (since deceased), it cannot be said that he has no role to play as he
is said to be the kingpin, who has engineered the conspiracy leading to the
commission of offence in question. It cannot be said at the threshold that he is
not the beneficiary as he managed the Will in favour of his wife-accused Ms.
Raman Jain , who is no longer in this world, as after her, petitioner is the
beneficiary of Letter of Administration granted in respect of the property in
question.
20. Apex Court in Devendra and Ors. v. State of Uttar Pradesh (2009) 7
SCC 495 has reiterated the settled legal position that civil and criminal
proceedings can go on simultaneously. However, in Devendra (supra), it was
found that the dispute, which was the subject matter of the criminal
proceedings, was entirely of civil nature and so, criminal proceedings were
quashed. It is not so in the instant case. In Alpic Finance v. P.Sadasivan (2001)
3 SCC 513, criminal proceedings were quashed as element of deception or
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 10 of 14
fraud or dishonest inducement or wilful misrepresentation was lacking in the
entire transaction. In V.Y.Jose v. State of Gujarat (2009) 3 SCC 78, criminal
proceedings were quashed as the complaint of the said case had disclosed that
the dispute raised was purely of civil nature. No doubt, unless the act of the
party is culpable, it need not be subject matter of criminal trial. It is equally
true that summoning order must disclose that the magistrate had applied his
mind to the facts of the case and that summoning of a person as an accused in
criminal case is a serious matter.
21. Aforesaid legal position needs no reiteration. There is no dispute with
the proposition that a magistrate can discharge an accused at any stage of trial,
if he considers the charge to be groundless, but that does not mean that an
accused cannot invoke inherent jurisdiction of this Court under Section 482 of
Cr.P.C. In deserving cases, jurisdiction under Section 482 of Cr.P.C. can be
certainly invoked. However, there is no basis to prematurely conclude that the
prosecution of petitioners-accused persons is malicious.
22. The gist of the alleged offences emerges from the criminal complaint in
question and the pre-summoning evidence recorded. As to when and how the
conspiracy developed and progressed, are the aspects which are to be
appropriately considered at the hearing on the point of charge after the pre-
charge evidence is recorded and during recording of pre-charge evidence,
petitioners-accused persons will have opportunity to confront the respondent-
complainant and its witnesses with the pleas pre-maturely raised at this stage.
This is not the stage to minutely examine the pleas meticulously raised on
behalf of petitioners-accused persons as at the threshold of the criminal
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 11 of 14
proceedings, the allegations levelled in the criminal complaint in question have
to be taken at its face value. Upon doing so, this Court finds that not only the
ingredients of the offence of cheating are there in the complaint and pre-
summoning evidence, but even making of a Will knowing well that the testator
had no authority to execute the Will , apparently brings this case within the
definition of cheating provided in Indian Penal Code. This Court is conscious
of the dictum of Apex Court in Mohd. Ibrahim (supra), which is as under:-
“17. When a document is executed by a person claiming a
property which is not his, he is not claiming that he is
someone else nor is he claiming that he is authorized by
someone else. Therefore, execution of such document
(purporting to convey some property of which he is not the
owner) is not execution of a false document as defined
under Section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no forgery,
then neither Section 467 nor Section 471 of the Code are
attracted.
x x x x x
23. When we say that execution of a sale deed by a
person, purporting to convey a property which is not his, as
his property, is not making a false document and therefore
not forgery, we should not be understood as holding that
such an act can never be a criminal offence. If a person
sells a property knowing that it does not belong to him, and
thereby defrauds the person who purchased the property,
the person defrauded, that is, the purchaser, may complain
that the vendor committed the fraudulent act of cheating.
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 12 of 14
But a third party who is not the purchaser under the deed
may not be able to make such complaint.”
23. However, at this initial stage, averment in the complaint of rent receipt
being forged would suffice to summon petitioners-accused persons for the
commission of offence of forgery with the aid of Section 120-B of I.P.C.
24. Nothing more is required to be said at this initial stage, lest it may
prejudice petitioners-accused persons at the time of hearing on the point of
charge. A broad view has been taken in this judgment so that there is scope for
trial court to consider as to whether prima facie case in its true sense is made
out for putting petitioners-accused persons to trial. The broad based scrutiny
done by this Court is quite limited to the extent of finding out as to whether
trial court is justified to summon petitioners-accused person in the complaint in
question.
25. Impugned order does reflect application of mind by trial court. The
settled legal position is that the detailed reasons are not to be given in the
summoning order. Similarly, even while exercising jurisdiction under Section
482 of Cr.P.C., a detailed reasoning is not required to be given, lest it may
prejudice petitioners when the trial court considers as to whether this case is fit
or not, for proceeding to trial. In any case, the criminal proceedings cannot be
halted merely because civil proceedings are going on as ingredients of alleged
criminal offence apparently exist in the criminal complaint ( Annexure-A ).
Deeper scrutiny to gauge if prima facie case really exists is to be undertaken at
the stage of hearing on the feasibility of framing charge or not.
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 13 of 14
26. In the peculiar facts and circumstances of this case, continuance of
criminal proceedings and civil proceedings is justified, as it cannot be said that
subject matter of instant criminal proceedings is of purely civil nature. Since
the ingredients of cheating and forgery are apparent in the criminal complaint
in question, therefore, continuance of proceedings arising out of the criminal
complaint (Annexure-A) is well justified.
27. Resultantly, the above captioned four petitions are dismissed. Interim
th
order of 24 March, 2005 is vacated. Let the proceedings arising out of the
criminal complaint in question (Annexure-A) to continue with expedition.
Needless to say that the observations made in this judgment are purely tentative
and are not to be taken as an expression on merits and the trial court shall, of
course, proceed further in accordance with law uninfluenced by any
observation made in this judgment.
28. These four petitions and the pending applications are accordingly
disposed of.
(SUNIL GAUR)
Judge
AUGUST 08, 2013
s
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 14 of 14
Reserved on: July 29, 2013
Pronounced on: August 08, 2013
+ (i) CRL.M.C. 473/2005
B.M. GUPTA ..... Petitioner
Through: Mr. Mohit Mathur, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
+ (ii) CRL.M.C. 586/2005
V.JAIN ..... Petitioner
Through: Mr. Sandip Sethi, Senior Advocate with
Mr. Amarjit Singh, Mr. Gurvinder Singh
& Mr. Shiv Gupta, Advocates
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 1 of 14
+ (iii) CRL.M.C. 599/2005
VINOD ..... Petitioner
Through: Mr. Sunil Sethi, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
+ (iv) CRL.M.C. 3433/2009
A. JAIN ..... Petitioner
Through: Mr. Vikas Pahwa, Senior Advocate with
Mr. Mahendra Rana, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Mukesh Gupta, Additional Public
Prosecutor for respondent No.1-State
Mr. Aman Lekhi, Senior Advocate, with
Mr. Mudit Jain, Mr. Abhishek & Mr.
Subadhra Shukla, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
J U D G M E N T
1. Petitioners of the above captioned four petitions are the accused persons
in Criminal Complaint under Sections 415/420/467/468/471 read with Section
120-B of IPC ( Annexure – A ) preferred by complainant- M/s. Kanin (India) Pvt.
th
Ltd. in which petitioners have been summoned as accused vide order of 15
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 2 of 14
September, 2004. Since the aforesaid criminal complaint ( Annexure – A ) and
th
summoning order of 15 September, 2004 in relation to the aforesaid criminal
complaint, is common in the above four petitions and the submissions
advanced are also identical, therefore, with the consent of both the sides,
above-mentioned four petitions were heard together and are being disposed of
by this common judgment.
2. It emerges from the record that complainant-company had purchased
plot No.A-46, Mohan Co-operative Industrial Estate, Mathura Road, New
Delhi from accused- A.P. Chaudhary (since deceased) and in lieu thereof,
complainant company had allotted to him 3840 equity shares of ` 100/- each at
par being equivalent to the value of plot i.e. ` 3,84,000/-. In respect of aforesaid
th
transaction, an Agreement to Sell of 17 November, 1985 was executed by
petitioner-accused Arihant Jain in the capacity of Managing Director of the
complainant-company and the said Agreement was with accused- A.P.
Chaudhary (since deceased).
3. According to respondent No.2-complainant, petitioners were aware of
nd
the aforesaid transaction. On 2 January, 1986, accused- A.P. Chaudhary (since
deceased) and his wife- Ms. Vinod had resigned from complainant-company
and had transferred the shares held by them in favour of Arihant Jain , Inder
Jain and Vishwa Jain . Petitioner- Brij Mohan Gupta is brother of Ms. Raman
Jain (since deceased), who is wife of petitioner-accused Arihant Jain and was
well aware of the transaction regarding the acquiring of plot in question by the
complainant-company. Accused- A.P. Chaudhary (since deceased) had also
executed indemnity bond, his affidavit, undertaking, etc. in favour of
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 3 of 14
complainant-company. In February, 2003, complainant-company had received
a legal notice sent by accused- Ms. Raman Jain (since deceased) asking
complainant-company to vacate the subject plot as she was claiming its
ownership after having obtained Letter of Administration on the basis of Will of
rd
3 January, 1986 purportedly executed by accused- A.P. Chaudhary (since
deceased) in her favour.
4. The basic stand taken in the criminal complaint (Annexure-A) is that
since accused- A.P. Chaudhary (since deceased) was no longer the owner of the
plot in question, therefore, he could not have bequeathed it to accused- Ms.
Raman Jain (since deceased). It is averred in the criminal complaint
(Annexure-A) that after purchase of the plot in question, complainant-company
had spent huge sum of money for raising construction on the plot in question
and the house tax is being also paid by the complainant-company. It is also
averred in the criminal complaint ( Annexure-A) that accused- Ms. Vinod was
fully aware that her husband accused- A.P. Chaudhary (since deceased) had
sold the plot in question to complainant-company, but still petitioners-accused
persons had entered into criminal conspiracy to wrongfully claim the
ownership of the plot in question, which was duly sold by accused- A.P.
Chaudhary (since deceased) to complainant-company. It is also averred that
petitioners-accused persons had given their ‘no objection’ at the time of
issuance of Letter of Administration in respect of the plot in question whereas
they were well aware about the plot in question having been sold by accused-
A.P. Chaudhary (since deceased) to complainant-company and thus,
petitioners-accused persons had conspired to issue rent receipt, which is forged.
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 4 of 14
5. According to respondent-complainant, the entire conspiracy to cheat
complainant-company was hatched by petitioner-accused Arihant Jain .
Impugned order notes that the averment made in the criminal complaint
( Annexure-A) had been duly substantiated by the pre-summoning evidence of
complainant-company and its witnesses, and the trial court has found that a
prima facie case to summon the accused for the aforesaid offence is made out.
6. Quashing of aforesaid criminal complaint ( Annexure-A) and the
impugned order is sought by petitioners primarily on the ground that on the
basis of the averments made in the criminal complaint ( Annexure-A), no
offence is made out.
7. Learned senior counsel Mr. Sandip Sethi and Mr. Vikas Pahwa for
petitioners-accused persons had maintained that there was no fraudulent or
dishonest intention on the part of petitioners-accused persons as mere
Agreement to Sell does not convey any valid title in the property and so, no
offence was committed by accused- A.P. Chaudhary (since deceased), who had
bequeathed the plot in question to accused- Ms. Raman Jain (since deceased).
To assert so, reliance was placed upon Apex Court's decision in Suraj Lamp
and Industries Pvt .Ltd. v. State of Haryana and another (2009) 7 SCC 363.
8. It was strenuously contended on behalf of petitioners that there are no
allegations of inducement/deception against petitioners and essential
ingredients of fraudulent and dishonest misrepresentation are lacking and even
if the complaint in question is taken as it is, still the dispute raised is of purely
civil nature. It was pointed out that the allegations of forgery are not there in
the entire complaint and there is nothing material in the complaint in question
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 5 of 14
to suggest that any conspiracy was entered into by petitioners-accused persons.
It was vehemently urged that the criminal complaint is malafide and is an act of
vengeance to grab the property in question and no forgery was committed as
the Will was duly executed by the owner of the property and that the aforesaid
Agreement to Sell was never acted upon.
9. With much vehemence, it was contended on behalf of petitioners-
accused persons that mere allegation of conspiracy levelled in the complaint
cannot be the cogent basis for summoning a person as an accused for the
charge of criminal conspiracy, as summoning of person as an accused is a
serious matter and the law cannot be set into motion as a matter of course and
where there are number of accused, their individual role has to be seen.
10. It was also contended by learned counsel for petitioners that the rent
receipt alleged to be forged is not on record and no wrongful loss was caused
to the respondent-complainant and there was no corresponding gain to
petitioner-accused persons. Thus, it was urged that none of the ingredients of
the offence alleged is made out and that the allegations levelled in the
complaint in question are preposterous and highly conjectural.
11. Lastly, it was urged on behalf of petitioners that till the Letter of
Administration granted on the basis of Will, whose execution is not disputed, is
declared as nullity by the civil court, no offence as alleged, is prima facie made
out and thus, initiation and continuance of proceedings arising out of complaint
in question is abuse of process of the court. To support the above submissions,
reliance is placed upon decisions in Som Mittal v. Govt. of Karnataka AIR
2008 SC 1528, Hridaya Ranjan v. State of Bihar 2000 SCC (Crl.)786,
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 6 of 14
Nageshwar Prasad v. Narayan Singh (1998) 5 SCC 694, Alpic Finance v.
P.Sadasivan (2001) 3 SCC 513, V.Y.Jose v. State of Gujarat (2009) 3 SCC 78,
Hira Lal Hari Lal v. CBI (2003) 5 SCC 257, Prakash Chander v. Dev Dutt
Malik 27(1985) DLT 23, Pepsi Food v. Special Judicial Magistrate (1998) 5
SCC 749, Anil Mahajan v. Bhor Industries (2006) 1 SCC (Crl.) 746,
Satyabrata Ghose, v. Mughneeram Bangur And Co. & Anr. AIR 1954 SC 44,
Devendra and Ors. v. State of Uttar Pradesh (2009) 7 SCC 495, Mohd.
Ibrahim and Ors. v. State of Bihar (2009) 8 SCC 751, Rambaran Prosad v.
Ram Mohit Hazra AIR 1967 SC 744, Adalat Prasad v. Rooplal Jindal And
Ors. (2004) 7 SCC 338, Bhupinder Singh v. C.S.Rekhi 1998 VII AD (Delhi)
200, Dalip Kaur v. Jagnar Singh 2009 RLR 415 (SC) and State v. Navjot
Sandhu (2005) 11 SCC 600.
12. Mr. Aman Lekhi, learned senior counsel for respondent-complainant,
contended that correctness and veracity of the averments made in the complaint
in question is not to be gone into at the threshold of initiation of the
proceedings as the complaint in question is to be taken at its face value. It was
next contended that in exercise of jurisdiction under Section 482 of Cr.P.C., the
court is not justified in embarking upon an inquiry into the reliability and
genuineness of the allegations made and direct evidence of conspiracy is
seldom forthcoming and that criminal conspiracy has to be inferred from the
circumstances of the case.
13. It was further asserted that the entire sale consideration for property in
question has been already paid and thus, Agreement to Sell has been acted upon
and property in question has been leased out by respondent-complainant
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 7 of 14
company and so, petitioners-accused persons cannot claim that they were not
aware of complainant-company being the owner of the property in question.
14. It was also urged that merely because respondent-complainant is a lessee
of the property in question by the DDA, it will not divest respondent-
complainant company of its capacity of a owner of the property in question. It
was strenuously urged that obtaining of Letter of Administration of a Will
purportedly executed by accused- A.P.Chaudhary ( since deceased ) knowing
that he is not the owner of the property in question, as he had already sold that
property to respondent-complainant company, rendered the Will in question
being a fabricated document and so it cannot be said that the essential
ingredients of cheating or forgery are lacking.
15. To urge that at this initial stage, a broad view is to be taken and that
summoning order need not be a detailed reasoned order, reliance was placed
upon decision in Ajay Kumar Das v. State of Jharkhand and another (2011) 12
SCC 319 and Nupur Talwar v. Central Bureau of Investigation and another
(2012) 11 SCC 465. Thus, it was urged that these petitions ought to be
dismissed out-rightly as criminal and civil proceedings can go side by side and
the criminal proceedings cannot be halted to await the decision in the civil
proceedings.
16. The submissions advanced by both the sides, criminal complaint
( Annexure-A), impugned order, the material on record and the decisions cited
have been duly considered and thereupon, it becomes amply evident that the
Apex Court's decision in Suraj Lamp (supra) had no doubt deprecated transfer
of property through sale agreement and had declared that to avoid fraud and
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 8 of 14
forgery, conveyance of immovable property ought to be through registered sale
deeds, but transactions through sale agreements have not been held to be void
abinitio, as in the aforesaid decision, the Solicitor General was called upon to
give suggestions and the extent of ‘ power of attorney transactions’ had to be
gauged. In any case, the A greement to Sell in respect of the property in
question has been purportedly acted upon as not only the entire sale
consideration for this property has been allegedly paid by the complainant-
company, and even the property in question is said to be in constructive
possession of the complainant-company through its tenant and so, it cannot be
said at this initial stage that A greement to Sell cannot be looked into.
17. It is the specious plea that merely because petitioner is a lessee of DDA,
it would not make the complainant-company owner of the property in question.
Such a view can be reasonably taken. This Court is conscious that jurisdiction
under Section 482 of Cr.P.C. has to be exercised with circumspection and the
allegations in the complaint have to be taken at its face value. Merely because
civil proceedings are pending in respect of Letter of Administration granted
pertaining to the Will in question, would not be a ground to either stall the
proceedings arising out the criminal complaint in question or to quash the
proceedings arising out of this complaint, as civil and criminal proceedings can
simultaneously proceed.
18. Direct evidence to prove criminal conspiracy is rarely available and from
the circumstances, complicity of accused persons is to be inferred. What is the
essence of criminal conspiracy has been reiterated by the Apex Court in
Pratapbhai Hamirbhai Solanki v. State of Gujarat and another (2013) 1 SCC
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 9 of 14
613. Applying the ratio of Apex Court’s decision in Pratapbhai (supra) to the
instant case, it can be certainly said that there is no basis to conclude at this
initial stage that the offence of criminal conspiracy is not at all made out as the
facts and circumstances of this case, as emerging from the criminal complaint
in question, give rise to a strong suspicion that petitioners-accused persons are
a party to the commission of the offence of cheating as they were allegedly
involved in the commission of the offence in question.
19. Simply because petitioner- Arihant Jain is not a witness to the execution
of the Will or has not participated in the proceedings relating to Letter of
Administration sought on the basis of a Will executed by accused- A.P.
Chaudhary (since deceased), it cannot be said that he has no role to play as he
is said to be the kingpin, who has engineered the conspiracy leading to the
commission of offence in question. It cannot be said at the threshold that he is
not the beneficiary as he managed the Will in favour of his wife-accused Ms.
Raman Jain , who is no longer in this world, as after her, petitioner is the
beneficiary of Letter of Administration granted in respect of the property in
question.
20. Apex Court in Devendra and Ors. v. State of Uttar Pradesh (2009) 7
SCC 495 has reiterated the settled legal position that civil and criminal
proceedings can go on simultaneously. However, in Devendra (supra), it was
found that the dispute, which was the subject matter of the criminal
proceedings, was entirely of civil nature and so, criminal proceedings were
quashed. It is not so in the instant case. In Alpic Finance v. P.Sadasivan (2001)
3 SCC 513, criminal proceedings were quashed as element of deception or
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 10 of 14
fraud or dishonest inducement or wilful misrepresentation was lacking in the
entire transaction. In V.Y.Jose v. State of Gujarat (2009) 3 SCC 78, criminal
proceedings were quashed as the complaint of the said case had disclosed that
the dispute raised was purely of civil nature. No doubt, unless the act of the
party is culpable, it need not be subject matter of criminal trial. It is equally
true that summoning order must disclose that the magistrate had applied his
mind to the facts of the case and that summoning of a person as an accused in
criminal case is a serious matter.
21. Aforesaid legal position needs no reiteration. There is no dispute with
the proposition that a magistrate can discharge an accused at any stage of trial,
if he considers the charge to be groundless, but that does not mean that an
accused cannot invoke inherent jurisdiction of this Court under Section 482 of
Cr.P.C. In deserving cases, jurisdiction under Section 482 of Cr.P.C. can be
certainly invoked. However, there is no basis to prematurely conclude that the
prosecution of petitioners-accused persons is malicious.
22. The gist of the alleged offences emerges from the criminal complaint in
question and the pre-summoning evidence recorded. As to when and how the
conspiracy developed and progressed, are the aspects which are to be
appropriately considered at the hearing on the point of charge after the pre-
charge evidence is recorded and during recording of pre-charge evidence,
petitioners-accused persons will have opportunity to confront the respondent-
complainant and its witnesses with the pleas pre-maturely raised at this stage.
This is not the stage to minutely examine the pleas meticulously raised on
behalf of petitioners-accused persons as at the threshold of the criminal
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 11 of 14
proceedings, the allegations levelled in the criminal complaint in question have
to be taken at its face value. Upon doing so, this Court finds that not only the
ingredients of the offence of cheating are there in the complaint and pre-
summoning evidence, but even making of a Will knowing well that the testator
had no authority to execute the Will , apparently brings this case within the
definition of cheating provided in Indian Penal Code. This Court is conscious
of the dictum of Apex Court in Mohd. Ibrahim (supra), which is as under:-
“17. When a document is executed by a person claiming a
property which is not his, he is not claiming that he is
someone else nor is he claiming that he is authorized by
someone else. Therefore, execution of such document
(purporting to convey some property of which he is not the
owner) is not execution of a false document as defined
under Section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no forgery,
then neither Section 467 nor Section 471 of the Code are
attracted.
x x x x x
23. When we say that execution of a sale deed by a
person, purporting to convey a property which is not his, as
his property, is not making a false document and therefore
not forgery, we should not be understood as holding that
such an act can never be a criminal offence. If a person
sells a property knowing that it does not belong to him, and
thereby defrauds the person who purchased the property,
the person defrauded, that is, the purchaser, may complain
that the vendor committed the fraudulent act of cheating.
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 12 of 14
But a third party who is not the purchaser under the deed
may not be able to make such complaint.”
23. However, at this initial stage, averment in the complaint of rent receipt
being forged would suffice to summon petitioners-accused persons for the
commission of offence of forgery with the aid of Section 120-B of I.P.C.
24. Nothing more is required to be said at this initial stage, lest it may
prejudice petitioners-accused persons at the time of hearing on the point of
charge. A broad view has been taken in this judgment so that there is scope for
trial court to consider as to whether prima facie case in its true sense is made
out for putting petitioners-accused persons to trial. The broad based scrutiny
done by this Court is quite limited to the extent of finding out as to whether
trial court is justified to summon petitioners-accused person in the complaint in
question.
25. Impugned order does reflect application of mind by trial court. The
settled legal position is that the detailed reasons are not to be given in the
summoning order. Similarly, even while exercising jurisdiction under Section
482 of Cr.P.C., a detailed reasoning is not required to be given, lest it may
prejudice petitioners when the trial court considers as to whether this case is fit
or not, for proceeding to trial. In any case, the criminal proceedings cannot be
halted merely because civil proceedings are going on as ingredients of alleged
criminal offence apparently exist in the criminal complaint ( Annexure-A ).
Deeper scrutiny to gauge if prima facie case really exists is to be undertaken at
the stage of hearing on the feasibility of framing charge or not.
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 13 of 14
26. In the peculiar facts and circumstances of this case, continuance of
criminal proceedings and civil proceedings is justified, as it cannot be said that
subject matter of instant criminal proceedings is of purely civil nature. Since
the ingredients of cheating and forgery are apparent in the criminal complaint
in question, therefore, continuance of proceedings arising out of the criminal
complaint (Annexure-A) is well justified.
27. Resultantly, the above captioned four petitions are dismissed. Interim
th
order of 24 March, 2005 is vacated. Let the proceedings arising out of the
criminal complaint in question (Annexure-A) to continue with expedition.
Needless to say that the observations made in this judgment are purely tentative
and are not to be taken as an expression on merits and the trial court shall, of
course, proceed further in accordance with law uninfluenced by any
observation made in this judgment.
28. These four petitions and the pending applications are accordingly
disposed of.
(SUNIL GAUR)
Judge
AUGUST 08, 2013
s
Crl.M.Cs.No.473, 586, 599 of 2005 & Crl.M.C.No.3433/2009 Page 14 of 14