Santosh Jain And Another vs State of MP and another

Since, both the petitions arise out from the same order and the relief sought are identical, therefore, these petitions are being heard and decided

analogously by this common order.

These two petitions have been filed by the petitioner for quashing the FIR and its consequential proceeding registered in Crime No. 59/2016 at

Police Station Vijay Nagar, Jabalpur District Jabalpur, for the offence punishable under Sections 419, 420, 467, 468, 471, 120-B and 34 of IPC as well

as Section 3(1)(f) and 3(2)(v) of SC/ST Act.

According to case, one Deepak Matani has filed a complaint against the petitioners and other co-accused persons stating that when he received a

letter from Tehsildar, Panagar on 05.08.2015, he came to know that the petitioner and other accused persons sold the land located at khasra No. 67 in

Tehsil Panagar, District Jabalpur, belongs to person of ST community without taking permission of authority and by this way the accused persons

committed forgery and cheating with him. The accused persons have also sold the part of land of said khasra number to Divya Matani. When the

complainant contacted accused persons then they have executed some agreements with the complainants for returning the amount and gave a cheque

which was dishonoured. The allegation against the present petitioners are that they have shown aforesaid land to the complainant for selling purpose

knowing the fact that the land belongs to person of ST community and petitioner-Santosh Jain and Kailash Yadav were also the witnesses of the sale

deed. Hence, the police has registered the FIR and after completing all the investigation, filed the charge sheet for the aforesaid offences.

Learned counsel for the petitioners-Santosh Jain and Nikunj Ahuja submits that on perusal of transaction between the parties in relation to the

property in question leaves no room for doubt that the petitioners are neither the vendors of the property nor they have derived any benefit out of the

purported transaction. He further submits that the complainants themselves have entered into compromise with the Lalchand Dasani on 07.10.2015

whereby Lalchand Dasani agreed to return the amount of Rs. 19,30,000/-and 13,00,000/- to the complainants. No offence is made out against the

petitioners who have infact entered in the scene in the year 2014-15 whereas the transaction in relation to said land was taken place between the

Lalchand Dasani and Dhannu Thakur in the year 2007. The allegations were leveled against the complainant by the Tehsildar Panagar regarding

forgery and cheating done by them in the transaction pertaining to the land of Dhannu. Further, the complainants have stated that they had conducted

thorough title search before purchasing the property in question, hence, no case is made out against the petitioners-Santosh Jain and Nikunj Ahuja. He

further submits that even otherwise merely because the property in question is stated to be a property of a tribal person, no case is culled out in the

facts and circumstances of the instant case more so when the purported tribal person namely Dhannu has not raised any grievance and he has

received full consideration for the transaction undertaken between him and Lalchand Dasani. Hence, at the most, the sale deed of Lalchand Dasani

can be declared as null and void, however, no case of any forgery or cheating is made out against the petitioners Santosh Jain and Nikunj Ahuja. With

the aforesaid he prays for allowing the petition, filed on behalf of the petitioner Santosh Jain and Nikunj Ahuja. In support of his contention he has

relied the judgment of the Hon’ble Apex Court in the case of M.Srikanth Vs. State of Telangana and another reported in (2019) 10 SCC 373,

Paramjeet Batra Vs. State of Uttarakhand and others reported (2013) 11 SCC 673 and Uma Shankar Gopalika Vs. State of Bihar and another

reported in (2005) 10 SCC 336.

Further, learned counsel for the petitioner Kailash Yadav submits that the petitioner Kailash Yadav has falsely been implicated in the case whereas

there is no specific allegation made against him. The petitioner has only made his signature in the sale deed on the instance of Deepak Matani, except

this nothing has been done by him directly or indirectly. He further submits that there is no cogent and plausible evidence against the petitioner to

constitute the aforesaid offences. There is no material on record to establish that the applicant has ascribed any role in the alleged offence even

neither he make any document and nor received any money. He never put up any document except the signature as witness in the sale deed. He

further argued that the matter is of civil in nature and therefore, registration of criminal case is totally abuse of process of law. The entire allegations

made against the petitioner are false, frivolous and leveled with ill motive of the complainant. In support of his contention, he has relied on the

pronouncements of the Hon’ble Apex in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp.(1) SCC 33 5and R.P. Kapoor Vs.

State of Punjab reported in AIR 1960 SC 866.

On the other hand learned panel lawyer for the respondent/State as well as counsel for the respondent No. 2 oppose both the petitions submitting

that there is sufficient material available in the case to prosecute the petitioners for the aforesaid offences. They further argued that the petitioners

have shown the property of a tribal man which can not be sold without getting permission from the authority. They have suppressed the true facts and

played important role in making forgery and cheating with the complainants. He submits that looking to the seriousness of allegations made against the

petitioners, at this initial stage of trial, these petitions may not be allowed.

Heard all the parties and perused the case diary.

Since, in the present case, issue involves pertaining to quashment of proceedings by invoking inherent powers under Section 482 of Cr.P.C. it is

pertinent to examine the factors which are to be taken into consideration while deciding such issue. In the landmark decision State of Haryana & Ors.

Vs. Bhajan Lal & Ors. and others reported in 1992 SCC (Cri) 426 the Hon’ble Apex court has held as under:-

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court

in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have

extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of

the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently

channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

“(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do

not prima facie constitute any offence or make out a case against the accused;

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an

investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(3) where the un-controverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any

offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police

officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just

conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the

institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the

grievance of the aggrieved party;

(7) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking

vengeance on the accused and with a view to spite him due to private and personal grudge.â€​

Similarly, in the case of Amit Kapoor Vs. Ramesh Chander, (2012) 9 SCC 460 ,the Hon’ble Apex Court has laid down following guidelines in

respect of inherent powers under Section 482 of Cr.P.C.:-

Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 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

under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 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 of Section 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 a conclusion and where the basic ingredients of a 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 loath 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 Code or any specific law in force to the very initiation or institution and

continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a 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 a “civil

wrong†with no “element of criminality†and does not satisfy the basic ingredients of a 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 a conviction; the court is concerned primarily with the allegations taken as a whole

whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

On perusal of case diary, it appears that the case of prosecution is that co-accused Abdul Safique @ Golu Bhaijan connivance with the Dhannulal

have sold the disputed land to Lalchand Dasani by suppressing the fact that the seller Dhannulal belongs to tribal community. Thereafter, through a

power of attorney, the co-accused Hemant Pathak and Abhishek Soni connivance with the present petitioners have sold the land to complainants

Deepak Matani, Divya Matani and Rajesh Matani. Thereafter, due to some dispute, petitioners made an agreement among Lalchan Dasani (through

his power of atorny Abhishek Soni), Hemannt Kumar Pathak and complainants for returning the sale consideration amount and co-accused issued

cheques in favour of the complainants which got dishonoured. The police has impleaded Dhannu Lal, original owner of the land as an accused as he

executed registry of land without getting permission from the State. The allegation against the present petitioner and other accused persons are also

that they have prepared forged documents by affixing forge seal of notary.

Further, on perusal of statements of witnesses namely Prahlad Matani, Rajesh Matani, Deepak Matani and Divya Matani, it appears that the

petitioners Santosh Jain and Nikunj Ahuja have shown disputed property to the complainants. They all have stated that due to dispute among the

petitioners and other co-accused persons regarding distribution of amount, they denied to give possession of land and demanded more sum, hence, the

complainants have refused to purchase the land then petitioner Santosh Jain and Nikunj Ahuja made an agreement from Abhishek Dubey and

Abhishek Tariya in favour of the complainants and had given a cheque which got dishonoured. Therefore, prima facie there is sufficient material

available against the petitioner Santosh Jain and Nikunj Ahuja for prosecute them further.

So far as, case of the petitioner Kailash Yadav is concerned, the only allegation against him is that he was the witness of sale deed executed in

favour of the complainants, but it reveals from the police statement of Prahlad Matani, Rajesh Matani, Deepak Matani and Divya Matani that

applicant-Kailash Yadav was also involved in taking the alleged amount. Hence, it is alleged by the prosecution that applicant/Kailash Yadav

participated in this incident in furtherance of criminal conspiracy with other applicants/accused. Therefore, it can not be said that no prima facia

material is available on the record against the applicant/Kailash Yadav. Learned counsel for the applicants also submits that, there was some

conversation between the applicant/Kailash Yadav and complainant/respondent No. 2 which shows that applicant/Kailash Yadav did not participat in

this incident but this fact will be investigated in trial. This piece of evidence can not be decided in proceeding under Section 482 of Cr.P.C. In view of

the decision of the Hon’ble Apex Court in the case of State of Orissa Vs. Devendra Nath Padhi reported in (2005) 1 SCC 56 8and Rukmini

Narvekar Vs. Vijaya Satardekar reported in (2008) 14 SCC 1 ,only unimpeachable evidence of sterling quality can be looked into while adjudicating a

petition under Section 482 of Cr.P.C. Those documents and evidence, which require detailed examination by following the tenets of evidence law

including issue of relevancy and admissibility, cannot be considered as unimpeachable evidence of sterling quality, so this fact is required to be proved

during the course of trial and the same cannot be looked by this Court.

Accordingly, these petitions filed by the petitioners are hereby dismissed. However the petitioners are free to raise all the grounds before the trial

Court at appropriate stage of trial.