C482/152/2010 of SMT. HEMA JOSHI Vs KULDEEP AGARWAL

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 152 of 2010

Smt. Hema Joshi

……. Applicant versus

Kuldeep Agarwal

……. Respondent

Mr. Lalit Sharma, Advocate for the applicant.

U.C. Dhyani, J.(Oral)

The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to quash the entire proceedings of criminal case no. 455 of 2008, Kuldeep Agarwal vs Smt. Hema Joshi, under Section 420 of IPC, pending in the court of learned Judicial Magistrate, Ranikhet, District Almora, as well as summoning order dated 11.12.2009.

2) Complainant-respondent filed criminal complaint case against the accused-applicant for the offences punishable under Sections 420, 406 of IPC. Statement of the complainant was recorded under Section 200 of Cr.P.C. Smt. Anju Agarwal entered into the witness box for recording her statement under Section 202 of Cr.P.C. Certain documents were also filed on behalf of the complainant-respondent. After considering the same, accused-applicant was summoned to face the trial for the offence punishable under Section 420 of IPC, vide order dated 11.12.2009. Aggrieved against the same, present application under Section 482 of Cr.P.C. was moved by the accused-applicant.

3) According to the complainant-respondent, an agreement to sell the land was entered into between the applicant and the respondent. Complainant-respondent gave Rs. 2,00,000/- as earnest money to the accused-applicant, but inspite of that, the applicant did not execute sale deed in favour of the respondent. Complainant-respondent, therefore, had no option but to file the criminal complaint case. The contention of learned counsel for the applicant is that the respondent did not turn up in the office of the Sub Registrar for facilitating execution of sale deed.

4) bare reading of the criminal complaint case indicates that the dispute between the parties is purely civil in nature. None is present on behalf of the respondent despite personal service of notice upon him. None appeared for the respondent on the last occasion also. No counter affidavit is filed on behalf of the respondent either.

5) Learned counsel for the applicant placed ruling of Dalip Kaur and others vs Jagnar Singh and another, 2009 AIR SCW 5117, before this Court. The ruling of R. Kalyani vs Janak C. Mehta and others, 2009 (1) SCC 516,was referred to in the aforesaid ruling to hold that if the allegation discloses civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to continue. Paragraph no. 13 of Dalip Kaur’s case (supra) is being reproduced here-in-below for convenience:

“13. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid

down in R. Kalyani v. Janak C. Mehta and others [2009 (1) SCC 516] is attracted, which are as under:

“(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash criminal proceeding and, in particular, First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court should not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to continue.”

Yet again, in Hira Lal and others v. State of U.P. and others [2009(5) SCALE 418], this Court held:

“10. The parameters of interference with criminal proceeding by the High Court in exercise of its jurisdiction under Section 482 of the Code are well known. One of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The High Court may also interfere where the action on the part of the complainant is mala fide.”

6) Reference may also be had to the judgments of Hon’ble Supreme Court rendered in the cases of Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 and Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986.

7) Foundation of criminal offence is not laid in the instant case and, therefore, this Court should intervene in exercise of its inherent jurisdiction to prevent abuse of process of the Court.

8) The application under Section 482 is, accordingly, allowed. The entire proceedings of criminal case no. 455 of 2008, Kuldeep Agarwal vs Smt. Hema Joshi, under Section 420 of IPC, pending in the court of learned Judicial Magistrate, Ranikhet, District Almora, as well as summoning order dated 11.12.2009 are hereby quashed.

(U.C. Dhyani, J.)

Dt. September 30, 2013. Negi