C482/50/2018 of Sitaram Dhawan Vs State Of Uttarakhand AND OTHERS

C482 No.50 of 2018 Hon’ble Manoj K. Tiwari, J.

Mr. Tapan Singh, Advocate for the

applicant.

Mr. V.K. Jemini, Deputy Advocate

General the State of Uttarakhand.

Mr. Rajat Mittal, Advocate for

respondent no. 2.

Mr. Kartikey Hari Gupta,

Advocate for respondent no. 7.

Heard learned counsel for the

parties.

This C482 application has been filed by Shri Sitaram Dhawan against the chargesheet no. 50 of 2017 submitted against him and 5 other co-accused under Section 406, 420 & 120-B of I.P.C. in the Court of learned Judicial Magistrate Ist Class, Dehradun. Applicant has also sought quashing of the entire proceedings of Criminal Case No. 4819 of 2017 “State Vs. Durga Rani & others” pending in the Court of learned Judicial Magistrate, Ist Class, Dehradun.

It transpires that Sunshine Charity Trust is the owner of property situated at Dehradun. Shri Sitaram Dhawan, the Managing Trustee of the Trust (applicant herein), filed suit under Section 92 of C.P.C. seeking permission to transfer the said property and the learned District Judge, vide order dated 23.01.2016, granted necessary permission. On 08.01.2016, the applicant executed an agreement to sell the said property in favour of Smt. Durga Rani Arora (respondent no. 3 herein) for sale consideration of ` 2.77 crores and Smt. Durga Rani Arora had paid sum of ` 5

lakhs, as advance, to the applicant. On 08.01.2016 itself, Smt. Durga Rani Arora, prospective buyer, in terms of the agreement to sell, executed another agreement to sell in respect of the property belonging to the trust in favour of Shri Kuldeep Singh (respondent no. 2 herein) for sale consideration of ` 3.95 crores, out of which, ` 1.43 crores was paid by Shri Kuldeep Singh. ` 25 lakhs was directly transferred through RTGS to the account of Sunshine Charity Trust and the remaining amount was transferred to the account of Smt. Durga Rani Arora. Smt. Durga Rani Arora, ultimately, backed out of the agreement to sell. Thereafter, the applicant moved an application under Section 92 of C.P.C. before the learned District Judge, Dehradun, which was allowed and three months further time was granted to the applicant for selling the property in question.

Mr. Rajat Mittal, learned counsel appearing for respondent no. 2 has referred to the letter dated 04.01.2016 issued by the applicant to Smt. Durga Rani Arora, whereby Smt. Durga Rani Arora was permitted to transfer the property to the third party. He submits that the sum of `1.43 crores paid by the respondent no. 2 to respondent no. 3 is still lying with the respondent no. 3, out of which, sum of ` 25 lakhs has gone to the account of Sunshine Charity Trust through RTGS. He submits that applicant and respondent no. 3 had entered into conspiracy, pursuant to which the respondent no. 2 was defrauded with an amount of `1.43 crores.

After investigation, police has submitted chargesheet against the applicant, Smt. Durga Rani Arora and four others under Section 420, 406 & 120-B of I.P.C. The learned Court below has taken cognizance on the said chargesheet on 10.10.2017, which is challenged in this criminal misc. application filed under Section 482 of Cr.P.C.

Mr. Tapan Singh, learned counsel for the applicant submits that the applicant never entered into an agreement to sell with the respondent no. 2. He further submits that the letter dated 04.01.2016 relied upon by the respondent no. 2 is forged letter and no such letter was ever issued by the applicant to Smt. Durga Rani Arora. He further submits that the dispute between the parties is of civil nature, therefore, the chargesheet filed by the police as well as the summoning order passed by the Judicial Magistrate, Ist Class, Dehradun deserves to be quashed.

Hon’ble Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander reported in (2012) 9 SCC 460 has held that mere existence of civil dispute would not by itself alter status of allegations constituting criminal offence and further that for quashment of criminal proceedings, allegations have to be so predominantly of civil nature that they would eliminate criminal intent and liability. Paragraph no. 27 of the said judgment is extracted below:

“27. Having discussed the scope of jurisdiction under these two provisions, i.e.,Section 397andSection 482 of the

Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction underSection 397 orSection 482of the Code or together, as the case may be :

27.1 Though there are no limits of the powers of the Court underSection 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms ofSection 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such conclusion and where the basic ingredients of criminal offence are not satisfied then the Court may interfere.

27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting

some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5 Where there is an express legal bar enacted in any of the provisions of the Codeor any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such bar is intended to provide specific protection to an accused.

27.6 The Court has duty to balance the freedom of person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in conviction, the Court is concerned primarily with the allegations taken as whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

to appreciate evidence collected by the investigating agencies to find out whether it is case of acquittal or conviction.

27.11 Where allegations give rise to civil claim and also amount to an offence, merely because civil claim is maintainable, does not mean that criminal complaint cannot be maintained.

27.12 In exercise of its jurisdiction underSection 228and/or underSection 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

27.13 Quashing of charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14 Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame charge. 27.15 Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Codeor that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

{Ref.State of West Bengal & Ors. v. SwapanKumar Guha & Ors.[AIR 1982 SC 949];Madhavrao Jiwaji Rao Scindia & Anr.

v. Sambhajirao Chandrojirao Angre & Ors.[AIR 1988 SC 709]; Janata Dal v. H.S.Chowdhary & Ors. [AIR 1993 SC 892];Mrs.Rupan Deol Bajaj & Anr. v. Kanwar PalSingh Gill & Ors. [AIR 1996 SC 309;G.Sagar Suri & Anr. v. State of U.P. & Ors.[AIR 2000 SC 754];Ajay Mitra v. State of M.P. [AIR 2003 SC 1069];M/s. Pepsi FoodsLtd. & Anr. v. Special Judicial Magistrate &Ors. [AIR 1988 SC 128]; State of U.P. v. O.P.Sharma[(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41];Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors.[AIR 2005 SC 9];M/s. Medchl Chemicals &Pharma (P) Ltd. v. M/s. Biological E. Ltd. &Ors. [AIR 2000 SC 1869];ShaksonBelthissor v. State of Kerala & Anr. [(2009) 14 SCC 466];V.V.S. Rama Sharma & Ors. v.State of U.P. & Ors. [(2009) 7 SCC 234];Chunduru Siva Ram Krishna & Anr. v.Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203];Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar &Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260];Lalmuni Devi (Smt.) v. State of Bihar& Ors. [(2001) 2 SCC 17];M. Krishnan v.Vijay Singh & Anr.[(2001) 8 SCC 645];Savita v. State of Rajasthan[(2005) 12 SCC 338]; andS.M. Datta v. State ofGujarat & Anr. [(2001) 7 SCC 659]}.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction underSection 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence.”

Be that as it may, the fact remains that, on the strength of the agreement to sell executed by the applicant in favour of respondent no. 3, respondent no. 3 executed further agreement to sell in favour of respondent no.2 and the respondent no. 2 has paid huge amount of ` 1.43 crores to Smt. Durga Rani Arora, out of which, ` 25 lakhs was transferred to the account of Sunshine Charity Trust through RTGS. Thus, in my considered opinion, this is not fit case in which inherent powers under Section 482 of Cr.P.C. can be exercised. The Hon’ble Supreme Court in catena of judgments has held that the High Court should interfere in rarest of the rare cases. This Court does not find that this case comes under that category. Charge sheet has been filed and the Court has issued summoning order to the applicant. The applicant should appear before the Court concerned and should say whatever he wants to say. Consequently, the criminal misc. application is dismissed.

Mr. Tapan Singh, learned counsel appearing for the applicant submits that Co-ordinate Bench of this Court has dismissed the C482 application filed by Smt. Durga Rani Arora, bearing C482 No. 1635 of 2017 “Smt. Durga Rani Arora Vs. State of Uttarakhand”, by holding that no interference is warranted against the cognizance and summoning order, however, liberty was granted to the applicant to move an application for bail before the Court below and the Court below was directed to consider the bail application of the applicant, as far as possible, on the same day. Learned

counsel for the applicant prayed that the applicant will also surrender before the Court concerned and the concerned Court may be directed to decide his bail application same day.

Accordingly, the applicant is directed to appear before the learned Court below on or before 18.11.2018. In case applicant appears before the Court concerned and moves bail application, the concerned Court shall decide the bail application of the applicant expeditiously, preferably on the same day, in accordance with law.

( Manoj K. Tiwari, J.)

Arpan 30.10.2018