IMRAN HANIF vs STATE OF MADHYA PRADESH AND OTHERS

By filing this petition under Section 482 of Cr.P.C. the petitioner is praying for quashment of FIR No.257/13, registered on 17.6.2013 at police station Bhanwarkuwa, Indore. As per FIR, the petitioner had executed a family partition agreement in the year 2000 and according to the said agreement the property belongs to the whole family as distributed between them. On 13.10.2012, the petitioner, for the first time sent a notice through his counsel and stated that he had executed a family partition agreement in the year 2000. The objectors on receiving the aforesaid notice sent a reply and demanded a copy of the aforesaid so call agreement and had categorically stated that the said so called agreement was never mentioned / talked about / stated / cited / brought up / declared / pointed out / referred / revealed by the petitioner and after the lapse of 12 years the same was suddenly brought to the notice of present objectors. On 8.12.2012, the petitioner had sent the aforesaid alleged agreement to the objectors through its counsel. Agreement was executed on stamp paper of Rs.50/-. The partition of the properties were done on the consideration of Rs.55 lacs with further 6% interest per annum. The agreement does not contain any date on which it was executed and no name of any witness or no signature of any witness was present on the alleged agreement. The agreement not even registered or notarized. The objectors approached the hand-writing expert for verifying the signature of their husband / father. The hand-writing expert had given the report that the signature, which was there in the aforesaid alleged agreement was entirely differ from the signature of husband / father of the present objectors.

By the aforesaid agreement the partnership firm Khurana Stone, Khurana Construction, Yogpratap Builder and Rashmi Enterprises, which belongs to the whole family have been partitioned. The allegation against the petitioner that he had made false / concocted agreement and has forged the signatures. On 7.6.2013, the objectors had filed complaint before the police authorities.

It is alleged that the petitioner had illegally transferred shares of Khurana Construction Pvt. Ltd.. The shares of the said company belongs to the whole family. It is also alleged that the petitioner had earlier tried to take the possession of the property, which belongs to the present objector situated at 290, 300 and 301, Vishnupuri, Indore by force. On 29.10.2012, the present objectors filed a complaint to the police station Bhanwarkuwa, Indore. After investigation into the matter, the police authorities of the police station Bhawar Kuwa, has called the present petitioner to show the title of the aforesaid property, but the petitioner had never turned there. The petitioner is not co-operating and, therefore, the investigation is still pending before the Bhanwarkuwa police station, Indore. It is also alleged that the petitioner is habitual offender as the Special Court, Indore convicted him under Sections 13(1) (d) and Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B, IPC, awarding a sentence of two years R.I. with fine of Rs.1.00 lac on 21.4.2011. The said conviction was for the commitment of fraud / cheating of Rs.27.00 lacs to the State Government in ''Sinhast 1992''.

On the complaint filed by the present objector on 7.6.2016, the police authorities after investigating the matter had given the notice to the petitioner to appear before them to submit any explanation on the complaint filed by the objectors, but the petitioner had neither visited nor cooperated with the investigating agency. On 18.6.2013, on the complaint filed by the objector Devendra Khurana, the police authorities after investigating into the matter had registered FIR against the present petitioner vide Crime No.257/13, for commission of offence punishable under Sections 420, 467, 468, 471, IPC. His application for grant of anticipatory bail was rejected by the trial court on 21.6.2013.

The present petition under Section 482 of Cr.P.C has been filed for quashment of crime no.257/13, on the ground that the person who had signed the document has already expired in the year 2004 and there is no iota of evidence that the relationship between the two brothers were not cordial. The partition deed was duly acted upon during the life time of late Shri Jagdish Lal Khurana and he was operating the business of the partnership firm Khuran Stone Crushing. After his demise, the complainant and his brothers are looking after the business of the said firm. It is submitted that expert opinion of hand-writing expert is not conclusive proof of the validity of the hand-writing or signature or document in question in the absence of any independent corroboration. The dispute between the parties is civil dispute and the same can be adjudicated in the civil court. There is no element of cheating and fraud nor any offence under Section 467, 468, 479 and 120B, IPC has been committed by the petitioner.

Learned counsel for the petitioner has drawn my attention to the FIR and submits that the allegation of preparation of forged document has been taken after lapse of nine years and that to only on the basis of opinion of hand-writing expert, which is inadmissible and no case can be registered against the petitioner. He has also drawn my attention to I.A.No.8046/2016, an application for disposal of the petition, on the ground that during the pendency of the 482 petition, the petitioner and complainant has amicably resolved their dispute on the following terms and conditions :- "a) The petitioner and the complainant and their family members have identified the joint family properties of the petitioner and his late brother Jagdishlal Khurana and have also agreed for the division and distribution of the share jointly held in the properties and the business of the joint family concerns, companies and the partnership firms.

b) For effective division and distribution of the share in the joint properties and joint family because, a MOU dated 26.5.2016 was duly executed between the parties."

In reply, learned counsel for the objectors vehemently opposed the prayer for quashment of FIR and submits that in the year 2012 only, they have come to know about the partition deed and immediately asked the petitioner to send the copy of the same. After receipt of copy, the same has been sent to hand-writing expert to give it''s opinion about the authenticity of the signature of husband/ father of the present objectors. When the petitioner is trying to take possession of the business on the basis of aforesaid forged partition deed, an FIR was lodged on 7.6.2013 and 18.6.2013. The petitioner is not cooperating with the investigation nor he produced the original document as demanded by the police and had filed the present petition in the year 2013 just to delay the investigation and proceedings. As per FIR the allegation against the petitioner is fraudulent usurpation of property by the petitioner through forged documents.

As far as offence of cheating is concerned, for which punishment is provided under Section 420, IPC one of the basic ingredient is deception, but in the present case, investigation is pending and, therefore, at this stage, this court cannot give an opinion that complainant was deceived or he or any one else was induced to deliver the property by deception. The offence registered against the petitioner is not compoundable under Section 320 of Cr.P.C. The present objectors are vehemently opposing the prayer for disposal of this petition on the basis of so called compromise and, therefore, I.A.No.8047/2016 is hereby dismissed.

In respect of quashment of criminal complaint, law is well settled that power conferred under Section 482 of Cr.P.C., should be exercised sparingly with circumspection and not merely asking depending upon the facts and circumstances of each case. Minute / trial or roaring enquiry is not contemplates. Only the trial court can determined the disputed question of fact. Where factual foundation for offence has been laid down the court should be reluctant and should not be hastened to quash the proceedings even on the premise that one or two ingredients or have not been stated or do not appear to be satisfied if there is special compliance with the requirement of the offence at the time of quashment of proceeding. The merit of the case not to be assessed at the stage of quashment of the proceedings. From the FIR prima facie case is made out against the petitioner. It cannot be said at this stage that, no case is made out against the petitioner.

Learned counsel has placed reliance on the decision of the Apex Court in the case of Vijayander Kumar & Others V/s. State of Rajasthan & Anr., 2014 3 SCC 389, M/s. Medchl Chemicals & Pharma Pvt. Ltd., V/s. Biological E. Ltd & Others, 2000 AIR(SC) 1869, B. Jagdish & Anr. V/s. State of Andhra Pradesh & Anr., 2009 1 MPLJ 538 (Cri) and Subraya M.N. V/s. Vittala M.N. & Others, 2017 1 MPLJ 17. In the matter of exercise of inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of court. The Criminal Procedure Code contains a detailed procedure for investigation charge and trial and in the event, this court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction. The allegations in the complaint are correct or not has to be decided on the basis of the evidence to be led at the trial in the complaint case, but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the complainant herein. Both criminal law and civil law remedy can be pursued in diverse situations. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in case like arson, accidents etc. The two types of actions are quite different in content, scope and impart.

Considering the factual aspect of the matter, no case is made out to quash the FIR No.257/13 dated 17.6.2013, as prayed by the petitioner is made out. The investigating officer shall proceed with the FIR and disposed of the same in accordance with law, with utmost expedition. M.Cr.C.No.5225/2013, has no merit and is, accordingly, dismissed.