Basant Raj Mehta vs State of Rajasthan and Others

Vijay Bishnoi, J.—1. This criminal misc. petition under section 482 CrPC has been filed by petitioner with a prayer for quashing the FIR No. 64/2015 lodged at Police Station, Basni, District Jodhpur for the offences punishable under sections 420, 467, 468, 471, 120-B IPC.

Brief facts of the case are that complainant - respondent No. 2 filed a complaint before Metropolitan Magistrate No. 4, Jodhpur, Metropolitan, inter alia, stating therein that on 02.04.1981, an agreement to sell of agricultural land situated at Khasra No. 35 Kuri Bhagtasani, Jodhpur measuring 32 Bighas and 3 Biswas was executed between the father of the complainant and the Navbharat Grah Nirman Sahakari Samiti Ltd. (hereinafter referred to as ''the samiti'') through the petitioner, who, at that time, was the President of the samiti. As per the said agreement, the samiti was agreed to give a piece of land measuring 450 square yards in Jodhpur to the father of the complainant free of cost. It is further stated that after the said agreement, the father of the complainant sold the whole land to the samiti through registered sale-deed dated 08.04.1983. It is also stated in the complaint that as per the agreement dated 02.04.1981, allotment letter for residential/commercial plot No. 187, measuring 381 square yards situated in Laxmi Vihar, Kuri Bhagtasni, Madhuban Housing Board, Basni, Jodhpur was issued in favour of the father of the complainant on 16.03.1983 and after the death of the complainant''s father, the complainant is in possession of the said land. It is alleged that a civil suit being No. 76/1996 was filed by the petitioner on behalf of the Samiti before the Court of Additional Chief Metropolitan Magistrate, Jodhpur, which is still pending and despite having knowledge of that, the petitioner along with other accused-persons persons, with intent to grab the plot of the complainant, hatched a criminal conspiracy and issued a patta in favour of accused No. 4 for the same plot and later on got registered patta issued in favour of the accused No. 4 from the Jodhpur Development Authority without disclosing the fact that a civil suit is pending in relation to the said plot. It is alleged that all the accused-persons have got the patta issued in favour of respondent No. 4 for the plot No. 187 while not disclosing the correct facts and, therefore, they have committed the offences punishable under sections 420, 467, 468, 471 and 120-B IPC.

The petitioner, in person, has assailed the impugned FIR while contending that the dispute between him and the respondent-complainant is purely of civil nature and a civil suit in respect of the same is also pending in the civil court, therefore, the impugned FIR is liable to be quashed. It is further argued that even if it is assumed that the allotment letter in relation to the disputed plot was issued in favour of the father of the complainant on 02.04.1981, then also, on the basis of said allotment letter, the father of the complainant had no right over the plot No. 187 as no patta was issued by the samiti in his favour. It is also contended that as the father of the complainant had not deposited the development and other charges as per the terms and conditions of the agreement, the patta could not be issued in his favour and, therefore, issuance of patta in favour of accused No. 4 by the samiti for the disputed plot was not illegal.

On the strength of the above arguments, the petitioner has prayed that as no offence is made out against him, the impugned FIR may be quashed. In support of his contentions, the petitioner has placed reliance on decisions of Hon''ble Supreme Court in Binod Kumar & Ors. v. State of Bihar & Anr., , (2014) 10 SCC 663 and in Paramjeet Batra v. State of Uttarakhand & Ors., , 2013 Cr.L.R. (SC) 67. He has also placed reliance on the decisions of this Court in Umardaraj v. The State of Rajasthan, 2012(1) CJ (Cri) (Raj.) 214 and in Smt. Takshila & Ors. v. State of Rajasthan & Anr. (S.B. Cr. Misc. Petition No. 68/2013) decided on 23.01.2015.

Per contra, learned Public Prosecutor and counsel appearing for the respondent-complainant have contended that the allegations levelled in the impugned FIR do constitute an offence and, therefore, the impugned FIR is not liable to be quashed. Learned counsel for the complainant has also argued that the civil suit in relation to the plot in question has been filed by the petitioner himself and during the pendency of the civil suit, the petitioner without disclosing the said fact, has got a patta issued in the name of his nephew Ashok Kumar from the Jodhpur Development Authority in the year 2015 and this act itself shows that the petitioner was having intention to cheat the complainant. It is also argued that pendency of civil suit between the parties itself is no bar in initiating criminal proceedings if prima facie case is made out from the allegations levelled in the complaint.

Heard learned counsel for the rival parties and perused the impugned FIR.

In the FIR, the complainant has alleged that as per the agreement entered into between the complainant''s father and the petitioner, who, at that time, was the President of the samiti a plot measuring 450 square yards of land was to be allotted to him and pursuant to that an allotment letter was also issued in the name of his father on 02.04.1981 for the plot No. 187 measuring about 381 square yards. He has further alleged that in relation to the said plot, the petitioner has filed a civil suit and the same is pending, however, during the pendency of the said civil suit, the petitioner has issued a forged patta in the name of accused No. 4 Ashok Kumar and thereafter concealing the fact about the pendency of the suit and issuance of the earlier allotment letter for the plot No. 187, has applied before the Jodhpur Development Authority for issuance of a patta in favour of accused No. 4 and got the same issued from it.

The question whether criminal proceedings can go simultaneously where civil proceedings are pending has been considered by the Hon''ble Supreme Court in P. Swaroopa Rani v. M. Hari Narayana alias Hari Babu, , (2008) 5 SCC 765 Relevant part of the decision is reproduced hereunder:

"11. 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 v. State of Madras, , AIR 1954 SC 397, Iqbal Singh Marwah v. Meenakshi Marwah, , (2005) 4 SCC 370 and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants, (2005) 12 SCC 226.

It is furthermore trite that Section 195(1)(b)(ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah stating: (SCC pp.387-88, paras 25-26)

"25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh, , (1998) 2 SCC 493 after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.

Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) is either not placed for trial on account of non- filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), Para 313, the principle has been stated in the following manner:

"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong.''"

In regard to the possible conflict of findings between civil and criminal court, however, it was opined: (SCC pp.389-90, para 32)

"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein"

It was concluded: (SCC p.390, para 33)

"33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b) (ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis."

Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute."

From the perusal of above quoted paragraphs, it is clear that civil as well as the criminal proceedings can go simultaneously if the allegation of criminality exists in the FIR.

In the present case, the civil suit filed by the samiti through the petitioner is pending since 1996 and the allegation against the petitioner to the effect that during the pendency of the civil proceedings, another patta was issued for the disputed plot in favour of accused No. 4 and, thereafter the said fact was concealed by the Jodhpur Development Authority and application was filed for issuance of patta for the disputed plot and the same was also obtained by playing fraud. It is not the case of the petitioner that in respect of the disputed plot, any civil suit was filed by the complainant and in such a situation, it cannot be held that the complainant with the intention to give criminal cloak to a civil dispute has filed this complaint.

If the contents of the impugned FIR are taken as it is, it is clear that earlier an allotment letter in respect of one plot was issued in favour of the father of the complainant and later on for the same plot, another patta was issued in the name of accused No. 4. Whether on the basis of the said allotment letter issued in favour of the father of complainant, any right is accrued to the petitioner or not is a matter of investigation. Simply because the samiti has filed a suit through the petitioner for possession and compensation against the complainant and other persons, FIR is not liable to be quashed.

Again, it is a matter of investigation that whether the dispute between the petitioner and the complainant falls within the category of civil dispute or not. This Court is of the opinion that the allegations contained in the impugned FIR do constitute a prima facie offence, therefore, the same cannot be quashed.

In view of the above discussions and observations, this Court finds that no case for quashing the impugned FIR is made out. Hence, the instant criminal misc. petition fails and is hereby dismissed.

Stay petition also stands dismissed.