Ravi Nath Verma, J. - (1.) THE petitioners of the above three criminal writ petitions have invoked the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India with prayer to quash the entire criminal proceeding arising out of Complaint Case No. 2703 of 2014 including the order taking cognizance dated 04.03.2015 whereby the learned Judicial Magistrate, Dhanbad has held that there is sufficient materials on the record for further proceeding against all the accused persons under Sections 323, 341, 403, 406, 417, 421, 423, 424, 465 and 120 -B I.P.C. and under Section 465 of I.P.C. against one of the accused Naveen Tulsiyan.
(2.) THE factual score as depicted in the complaint petition is that the complainant and accused persons Nos. 1 to 5 of the complaint petition are own brothers and co -sharers of a joint Hindu Family and for better functional control of the ever expanding wealth of the joint family, management and control of the hotch -pot over different assets were given to different family members to act as a custodian. Adarsh Kumar Agarwalla and Devendra Kumar Agarwalla - the accused No. 1 and 2 respectively were made the Directors of M/s. Anup Malleables Ltd. and other Companies. Similarly, Anup Kumar Agarwalla and Asim Kumar Agarwalla were made the Directors of B.L.A. Industries and other properties. The accused persons conspired amongst themselves and made repeated attempts to alienate joint property by deceptive and fraudulent means and with that intention, created forged documents/agreements to oust the complainant from his legitimate share and misappropriated family property causing wrongful loss to the complainant. When the complainant resisted, they assured not to indulge in any such nefarious design but in furtherance of their common intention, they again resorted to create documents keeping the complainant in dark for their unlawful gains, suppressed important materials, manipulated accounts and financial data and never placed the balance sheet. Further allegation is that the accused persons committed fraud and sold the share of companies and also violated the direction of the Hon'ble Calcutta High Court to transfer Jharia House property of H.D. Agarwalla a joint family trust to the complainant rather the accused persons deliberately submitted a false declaration to defraud the Court and the complainant and committed an offence in the nature of criminal breach of trust. Even after assurance when the joint family property was not partitioned, the complainant instituted the partition suit in a court of Civil Judge, Sr. Division -I, Dhanbad but during pendency of the said suit also, the accused persons sold the joint family properties including M/s. Anup Melliables Ltd. by an act of criminal conspiracy and misappropriated the money. The complainant when came to know of the sale of the said Company, he tried to visit the factory premises but accused persons from Sl. No. 7 to 15 restrained him from entering into the premise and assaulted him also. The shares of the joint family property have also been transferred to accused Nos. 7 to 14 at a huge price of Rupees 78 crores as informed by accused No. 7. Accused Nos. 1 to 5 including the petitioners have misappropriated the entire money and when the complainant requested them to give his 1/5th share, he was abused and threatened and also assaulted by the accused Nos. 1 to 5. Accused Nos. 2 to 4 informed him that as there was a payment of only Rs. 30 crores, most of which has been set off by liabilities, there is no question of payment of his share. After examination of the complainant on S.A. and other witnesses and after examining the available documents on record, the court below found the prima facie case and sufficient materials on record to proceed against the accused persons. Accordingly, the court took cognizance of the offence and directed to issue summons against the accused persons. Being aggrieved by the order taking cognizance, the petitioners preferred this criminal writ petition before this Court.
(3.) LEARNED senior counsel Mr. N.K. Agarwal appearing on behalf of the petitioners of W.P.(Cr.) No. 239 of 2015 and W.P.(Cr.) No. 241 of 2015 after taking the Court through the entire complaint petition and the allegations made in it and all other relevant materials on record seriously contended that even if all the allegations made in the complaint are taken at their face value as true, no case under any provision of the Indian Penal Code, in which cognizance has been taken, is made out. It was further contended that the dispute between the parties are confined to the extent of their respective shares and for that a partition suit has been filed, such right even if denied by other co -sharers for any reason, the civil remedies are available and criminal proceedings cannot be taken recourse to for enforcing such a civil right. It was also submitted that a criminal proceeding between the co -sharers of a joint family property should not be allowed to proceed rather it is mere an abuse of process of court and it would be unfair, even if there is any breach of an agreement. Learned senior counsel Mr. Agarwalla further submitted that the court below while taking cognizance of the offence failed to appreciate that now -a -days, there is a growing tendency to convert purely civil dispute into the criminal cases and before issuing process, it was the duty of the court to follow the mandates given by the Hon'ble Supreme Court in several pronouncements. Learned counsel further dealing with the principles relating to exercise of jurisdiction of this court either under Section 482 of the Code of Criminal Procedure or under the extra ordinary jurisdiction as envisaged in Article 226 of the Constitution of India to quash the entire criminal proceedings including order taking cognizance specially when the dispute relates to civil nature submitted that the Hon'ble Supreme Court in several cases have considered the similar issues and have given a clear guidelines. Some of them are mentioned herein below: (i) G. Sagar Suri and another Vs. State of U.P. and others; : (2000) 2 SCC 636, (ii) Indian Oil Corporation Vs. NEPC India Ltd. and others; : (2006) 6 SCC 736, (iii) Mohammed Ibrahim and others Vs. State of Bihar and others; : (2013) 4 SCC 505 and (v) Chandran Ratnaswami Vs. K.C. Palanisamy and others; : (2013) 6 SCC 740. Learned senior counsel relying upon the principles laid down in the above judgments submitted that when the matter, which is essentially of a civil nature, has been given a cloak of criminal offence, the criminal courts have to exercise a great deal of caution and proceeding should be quashed when the allegations made in the complaint do not prima facie constitute any offence. Learned counsel further submitted that when there is a criminal breach of contract or cheating or a civil wrong and criminal offences are also available, under such situations, if the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence and, that too, when a partition suit is also pending between the parties. It was also submitted that the complainant has not produced or given details of any document/agreement which have been alleged to be forged or created to oust the complainant and all the allegations are bald and vague and do not constitute any offence so as to initiate a criminal proceeding against the accused persons. Lastly, it was submitted that the very initial ingredients of criminal breach of trust, which is "entrustment" is completely missing and there is no order of Calcutta High Court directing the petitioners to transfer the Jharia House to the complainant.;