C.P. KHANNA Vs. RAJEEV KUMAR AGARWAL
LAWS(UTN)-2013-6-48
HIGH COURT OF UTTARAKHAND
Decided on June 10,2013

C.P. Khanna Appellant
VERSUS
Rajeev Kumar Agarwal Respondents

JUDGEMENT

Umesh Chandra Dhyani, J. - (1.) COMPLAINT No. 177 of 2004 was instituted by Rajeev Kumar Agarwal (complainant) against Mega Motors and others (opposite parties) before the District Consumer Disputes Redressal Forum, Nainital. The judgment was rendered in the said complaint on 08.06.2006. The complaint filed by the complainant Rajeev Kumar was dismissed. The present applicant was opposite party No. 1 in the said complaint (before the Consumer Forum). Thereafter a private complaint case bearing Criminal Case No. 1370 of 2008, captioned as Rajeev Kumar v. C.P. Khanna and two others, was filed in the Court of Additional Chief Judicial Magistrate, Haldwani, Nainital, in respect of offences punishable under Sections 420, 467, 468 IPC in March, 2008. In the said complaint, it was averred by the complainant that he purchased TATA 207 (D1) from M/s. Tata Motors Limited, New Delhi. It was stated in paragraph 7 of the complaint that when the complaint was instituted by the complainant before the District Consumer Disputes Redressal Forum, Nainital, the opposite parties submitted their written statements. The documents relating to the loan of the vehicle were also presented along with the written statement. The signatures of the complainant Rajeev Kumar and his witness (es) were forged on the said documents. The objections to this effect were raised before the Consumer Forum at Nainital. The matter was scrutinized by the Consumer Forum, who came to the finding that the signatures of Rajeev Kumar and his witness Anup Chawla on the loan agreement were forged. The Consumer Forum did not institute any complaint against the persons, who committed forgery in the loan document.
(2.) THE question is - as to who committed forgery in loan document? Whether it was accused No. 1 or whether they were accused Nos. 2 to 4? List of the documents purported to have been filed on behalf of the accused persons is enclosed as annexure No. 10 to the C -482 Petition. Item No. 9 in the list of documents goes to indicate that the objections, written statement along with the loan agreement paper were submitted on behalf of respondents No. 2, 3 & 4 and not by accused No. 1/the applicant in the instant petition. There was no allegation in the complaint that there was nexus between the accused No. 1 on the one hand and accused Nos. 2 & 3 on the other hand. The complaint nowhere shows that the accused Nos. 2 6s 3 did it at the behest of accused No. 1. The criminal conspiracy between accused No. 1 on the one hand and accused Nos. 2 & 3 on the other hand was not alleged in the complaint, so as to indicate that accused No. 1 was hand -in -glove with the accused Nos. 2 & 3, who filed certified copy of the loan agreement, which contained forged signatures of Rajeev Agarwal and Anup Chawla. In other words, the loan agreement was never submitted by the applicant C.P. Khanna, the same was submitted on behalf of the accused Nos. 2 & 3 A.K. Garg and Pradeep Shehrawat of TATA Finance. In the complaint before the District Consumer Forum, present applicant was one of the respondent, whereas the others were co -respondents.
(3.) HON 'ble Supreme Court in Amit Kapoor v. Ramesh Chander and another, : (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 Cr.P.C. Those principles can be summarised as under: i. 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. ii. 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. iii. 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 with the requirements of the offence. iv. 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. v. 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. vi. 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. vii. 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. viii. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. ix. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. x. 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. xi. 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. xii. It is neither necessary nor is the court called upon to hold a full - fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. xiii. In exercise of its jurisdiction under Section 228 and/or under Section 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. xiv. Quashing of a 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 a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. xv. 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 a charge. xvi. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or 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. xvii. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.