Ravindra Singh - (1.) -This application has been filed by the applicants Bhoop Singh and Niranjan Singh with a prayer to quash the proceeding of Complaint Case No. 798 of 2007 under Sections 323, 386, 420, 467, 468, 471 and 120B, I.P.C., P. S. Malpura, district Agra, pending in the court of learned Judicial Magistrate-I, Court No. 39, Agra.
(2.) HEARD Sri K. K. Dwivedi, learned counsel for the applicants learned A.G.A. for the State of U. P. The facts in brief of this case are that the complaint of this case has been filed by O.P. No. 2 Smt. Ganga Devi. Her statement has been recorded under Section 200, Cr. P.C. and the statement of Madan Lal, Mahaveer Singh have been recorded under Section 202, Cr. P.C. After considering the complaints and statements recorded under Sections 200 and 202, Cr. P.C. the learned Judicial Magistrate-I, Court No. 39, Agra has taken the cognizance and summoned the applicants to face the trial for the offences punishable under Sections 323, 386, 420, 467, 468, 471 and 120B, I.P.C. The allegations against the applicants and other co-accused persons is that they have prepared a forged sale deed dated 23.3.2005 in respect of the half of the land of Khata No. 50. One of the co-accused Sripati Singh came at the land in dispute on 18.6.2008 and prevented to enter the field and forcibly took away the Tractor, but the report was lodged at the P. S. Malpura, district Agra and on 22.6.2008 the accused persons came at the field in dispute and caused injuries by using kicks and fists blows thereafter O.P. No. 2 filed a suit in the Court of Bandobast Adhikari for cancellation of the order by which the name of co-accused Sripati was recorded in the revenue records on the basis of forged deed, the suit is pending. It is contended by learned counsel for the applicant that even on the basis of the allegation made in the complaint no offence is made out against the applicant. The allegations made in the complaint are purely of civil nature. The adequate remedy is available to O.P. No. 2 in the revenue courts/civil courts for which she has filed a suit in the Court of Bandobast Adhikari. The prosecution of the applicants is simply abuse of the process of the Court and the complaint has been filed for the purpose of harassment of the applicants, therefore, the proceedings of the complaint may be quashed. In reply of the above contention it is submitted by learned A.G.A. that in the present case on the basis of the allegations made in the complaint prima facie offence is made out. The allegations made in the complaint is constituting criminal offences. The genesis of the case is not purely civil in nature and there is no abuse of the process of the Court, therefore, the prayer for quashing the proceedings of complaint may not be refused. In the present case the counsel for the applicants filed arguments i.e. : (i) That on the basis of allegation made in the complaint prima facie no offence is made out or complaint does not disclose constitution of an offence. (ii) The allegations made in the complaint are purely of civil nature and the civil remedy is available to O.P. No. 2, the same has been shield by him by way of filing suit in the Court of Bandobast Adhikari. (iii) The prosecution of the applicant is simply misuse of the process of the Court because the proceedings have been initiated for the purpose of harassment of the applicants with a mala fide intention. All these questions have been exhaustively answered by the Apex Court in many of the leading cases of M/s. Indian Oil Corporation v. M/s. N.E.P.C. India Ltd. and others, 2006 (56) ACC 249 (SC), in paragraph 9 of its judgment which reads as under : 9. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandojirao Angre, State of Haryana v. Bhajanlal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Baja v. State N.C.T. of Delhi, Medchl Chemicals and Pharma (P.) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Kumar and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque. The principles, relevant to our purpose are : (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out : (a) purely a civil wrong ; or (b) purely a criminal offence ; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
(3.) ON the basis of above mentioned settled principles the complaint can be quashed where the allegations made in 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 the case alleged against the accused for this purpose on cross-examining the present complaint as a whole without examining the merits of the allegations. It appears that the allegations are not of purely civil in nature. The allegations make out a criminal offence in such cases the institution of the civil suit having nature and scope different from a criminal proceeding on the basis of the institution of a civil suit or availability of a civil remedy is not ground to quash the criminal proceedings. So far as the malicious prosecution is concerned by plain reading of the complaint it does not appear that criminal proceeding has been initiated with mala fide/ maliciously for wreaking vengeance or to cause harm or the allegations are absurd and inherently improbable because in the present case the main allegation is of committing the forgery by way of executing a forged sale deed and thereafter by way of exercising a physical power taking away a Tractor and causing the injuries by way of using kicks and fists. In such circumstances, the contention made by learned counsel for the applicants have no substance, therefore, the prayer for quashing the proceeding of Complaint Case No. 798 of 2007 under Sections 323, 386, 420, 467, 468, 471 and 120B, I.P.C., P. S. Malpura, district Agra pending in the court of learned Judicial Magistrate-I, Court No. 39, Agra is refused. However, it is directed that in case, applicants appear before the Court concerned within 30 days from today and apply for bail, the same shall be heard and disposed of expeditiously, if possible on the same day by the courts below. With this direction, this application is finally disposed of.;