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Judgment
(PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Matter is taken up for final disposal by the consent of learned Counsel for the parties.
This is an application seeking quashing of the First Information Report No.0219 of 2019 dated 26.07.2019, registered with non-applicant No.1 – Murtizapur Police Station (Rural), Dist. Akola, against the applicants, for the offences punishable under Sections 420, 406, 464, 465, 471, read with Section 34 of the Indian Penal Code, as also, the order dated 22.07.2019, passed in Misc. Criminal Case No. 240/2019, by the Judicial Magistrate First Class, Court No.1, Murtizapur, Dist. Akola, and the Charge Sheet No. 12 of 2020, culminating into R.C.C. No. 36/2020, pending before the Joint Civil Judge Junior Division, and Judicial Magistrate First Class, Chandrapur.
As per the First Information Report in question, the non-applicant No.2 made a complaint to the non-applicant No.1, stating that the applicant No.1, who is the mother of the non-applicant No.2, sold the property which fell on her share by virtue of a partition deed without any legal necessity and by cheating. It is stated in the application that the applicant No.1 filed an application by misrepresentation before the District Judge, seeking permission to sell the property as a natural guardian and for the legal necessity. The District Judge granted permission on certain conditions, one of which was to deposit an amount of Rs.2,00,000/- in a Nationalized Bank and sell the property at the market price. It is further stated in the First Information Report that the market price of the said immovable property is 7 to 8 lakhs rupees per acre, and the field in question has been sold for consideration of Rs.3,75,000/- to the applicant No.2, who happens to be an accomplice of the applicant No.1. It is the contention in the First Information Report that since no action was taken by the police authorities, the non-applicant No.2 filed an application under Section 156 (3) of the Code of Criminal Procedure, pursuant to which, the learned Judicial Magistrate First Class Court No.1, Murtizapur, directed for registration of the crime. On these averments, the First Information Report was lodged. After investigation, the prosecution filed the charge-sheet and the Regular Criminal Case, as stated supra, was registered. It is these proceedings which are challenged in the present application on various grounds, amongst others.
We have heard Shri Z.Z. Haq, learned Counsel for the applicant, Shri M.J. Khan, learned Additional Public Prosecutor for non-applicant No.1/State.
Shri Z.Z. Haq, learned Counsel for the applicant submits that as a matter of fact, the non-applicant No.2 has filed a civil suit challenging the sale-deed in question and seeking cancellation thereof. It is therefore his submission that on the same set of facts, the criminal complaint would not be maintainable. He alternatively submits that even allegations taken in the First Information Report on the face value, no offence, much less, punishable under section 406 and 420 of the Indian Penal Code, are made out, and therefore, he prays for quashing the criminal proceedings.
Shri M.J. Khan, learned Additional Public Prosecutor, while opposing the contentions advanced by the learned Counsel for the applicants, vehemently states that the intention to deceive the non-applicant No.2 when she was a minor was from the beginning, and therefore a triable case has been made out for continuation of criminal proceedings against the applicants, he therefore submits that the application is liable to be rejected.
In the backdrop of these facts, we have considered the contentions advanced by the learned Counsel for the parties. As can be seen from the record of the matter, the non-applicant No.2 has already filed a civil suit, and therefore, as stated by the learned Counsel for the applicants, a criminal complaint on the said set of facts would not be maintainable. However, the question is no more res integra and has been settled by various judicial precedents from time to time. In the judgment reported in 2008(3) SCALE 501P. Swaroopa Rani ..vs.. M. Hari Narayana @ M. Hari Babuara, the Hon’ble Supreme Court observed as under:
“13.It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff ..vs.. State of Madras AIR 1954 SC 397, Iqbal Singh Marwah ..vs.. Meenakshi Marwah (2005) 4 SCC 370 and Institute of Chartered Accountants of India ..vs.. Assn. of Chartered Certified Accounts (2005) 12 SCC 226]”
While appreciating the rival contentions, it is necessary to keep in mind the authorities (2001) 8 SCC 645 M. Krishnan ..vs.. Vijaysingh and another, wherein it has been observed in paragraph 5 thus:
“5.Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceeding. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe: "In my view, unless and until the civil court decides the question whether the documents are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous.” and in (2007) 3 SCC 548 Rashida Kamaluddin Syed and another..vs.. Shaikh Saheblal Mardan (DEAD), in paragraph 27 it has been observed thus:
"27.Finally, the contention that a civil suit is filed by the complainant and is pending has also not impressed us. If a civil suit is pending, an appropriate order will be passed by the competent court. That, however, does not mean that if the accused have committed any offence, jurisdiction of criminal court would be ousted. Both the proceedings are separate, independent and one cannot abate or defeat the order.” A beneficial reference in this regard can be made to the judgment of the Hon’ble Supreme Court in Criminal Appeal No. 834/2002, M/s Indian Oil Corporation Vs. M/s NEPC India Ltd., and others, where the Supreme Court, after scrutinizing the entire law regarding the said aspect, stated that in a given set of facts, purely a civil wrong or purely a criminal offence may be made out, or in another matter, a civil wrong or a criminal offence can also be made out. The law is also elaborated in the recent judgment of the Hon’ble Supreme Court in Kathyayini Vs. Sidharth P.S. Reddy and others, reported in 2025 INSC 818, in which the Hon’ble Supreme Court has held as under :
19.We now come to the issue of bar against prosecution during the pendency of a civil suit. We hereby hold that no such bar exists against prosecution if the offences punishable under criminal law are made out against the parties to the civil suit. Learned senior counsel Dr. Menaka Guruswamy has rightly placed the relevant judicial precedents to support the above submission. In the case of K. Jagadish v. Udaya Kumar G.S. and another, this Court has reviewed its precedents which clarify the position. The relevant paragraph from the above judgment is extracted below:
"8.It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law."
20.In Pratibha Rani v. Suraj Kumar and another, this Court summed up the distinction between the two remedies as under:
"21.... There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. 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 the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law."
21.The aforesaid view was reiterated in Kamaladevi Agarwal v. State of W.B. and others,
"17.In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings."
Thus, it is a settled principle of law that only because a civil litigation is pending cannot be an aspect to hold that the criminal complaint is not maintainable. The contentions advanced by the learned Counsel for the parties have to be decided in the backdrop of these facts.
Thus, in the backdrop of these judicial precedents, we have perused the First Information Report in question, the said report specifically alleges that the applicant No.1, right from the initiation of the proceedings seeking permission to sell out the property of the non-applicant No.2, had an intention to deceive. This fact is further amplified by the fact that even though the order of the learned District Judge specifically states that the property is to be sold at a market rate, and an amount of Rs.2,00,000/- is to be deposited, the said conditions have not been followed. The charge-sheet sought to be quashed, if seen minutely, there is a statement of accounts of the applicant No.1, Shubhangi, wherein an amount of Rs.2,00,000/-has shown to be deposited on 24.09.2018, while on the same day, it has been shown to be transferred/withdrawn and a fixed deposit has been made of the said amount. Furthermore, from the fixed deposit receipt, it can be seen that the said fixed deposit was renewed only till 23.11.2018, and not thereafter. The Manager of the concerned Bank i.e. Canera Bank, has informed to investigating agency that as per the banking rules account of minor can be operated by the guardian till the minor attains the age of 18 years. He has also stated that in the present case during the closure of the above mentioned fixed deposit the minor was of the age of 17 years and 10 months, and the fixed deposit was closed on 24.10.2019.
Furthermore, we have also perused the sale deed in question. The market value of the property is shown to be 6,30,180/-, while the actual consideration which is passed is 3,75,000/-. It is thus clear that the property is not sold as per the market value. Furthermore, it is really doubtful that whether the consideration of Rs.3,75,000/- has, in fact, passed from the seller to the purchaser since the entire amount of consideration is shown to have been remitted in cash. The cumulative effect of all these facts would lead us to an inevitable conclusion that the applicants were nurturing an intention to deceive right from the initiation of the proceedings, and the allegations in that regard have been made in detail in the First Information Report sought to be quashed by the present applicant.
It is a settled principle of law that powers under Section 482 are to be sparingly used and cannot be a tool to stifle a legitimate prosecution, more particularly when a prima facie case is made out from the averments in the First Information Report. Thus, in our view, offences under Section 406 and 420 read with Section 34 of the Indian Penal Code are at least prima facie made out. It is, however, true that offences punishable under Sections 464, 465 and 471, of the Indian Penal Code, regarding making of the false documents and using as genuine and forged documents cannot be made out against the present applicants since it is not even the first informant’s case that the sale deed or any other document in that regard is a false document. It is one thing to say that the document is false and another to say that the document has been obtained by deception. We are therefore of the view that the offences under Section 464, 465, and 471 are not made out. We, therefore, proceed to pass the following order :
ORDER
Application is partly allowed.
ii) The First Information Report No.0219 of 2019 dated 26.07.2019, registered with non-applicant No.1 – Murtizapur Police Station (Rural), Dist. Akola, as also, the order dated 22.07.2019, passed in Misc. Criminal Case No. 240/2019, by the Judicial Magistrate First Class, Court No.1, Murtizapur, Dist. Akola, and the Charge Sheet No. 12 of 2020, culminating into R.C.C. No. 36/2020, pending before the Joint Civil Judge Junior Division, and Judicial Magistrate First Class, Chandrapur, against the applicants, are partly quashed only to the extent of offence under Section 464, 465 and 471 of the Indian Penal Code are concerned.
iii) The prosecution would continue as far as offence under Sections 406 and 420 read with Section 34 of the Indian Penal Code are concerned.
The application is partly allowed in above terms and disposed of. Pending applications, if any, shall stand disposed of.