2009 Supreme(SC) 973

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA
Devendra & Others
Versus
State of U.P. & Another
CRIMINAL APPEAL NO.940 OF 2009 [Arising out of SLP (Crl.) No.4998 of 2008]
Decided on : 06-05-2009

IMPORTANT POINTS
Dispute between co-sharers regarding extent of their respective shares must be determined in a civil suit.
In a given case a civil suit as also a criminal proceeding would be maintainable and they can run simultaneously. However, result in one proceeding would not be binding on the court determining the issue before it in another proceeding.
In absence of any contract and/ or transaction entered into by and between the complainant and the appellants cheating cannot be alleged.
If a sale deed contains false assertions, it is the vendee who should be aggrieved not the co-sharers.
When no prima facie offence is made out, power u/s 482 CrPC should be exrcised.
Principle of res judicata has no application in a criminal proceeding.

Headnote:(a) Administration of Justice – Nature of suit – Dispute between co-sharers regarding extent of their respective shares – Civil in nature – Must be determined in a civil suit. (Para 17)

       (b) Property law – Sale deed executed with false representation – Would not bind the complainant challenging the sale deed – In case of threat of dispossession, recourse can be had to section 144 and 145 CrPC – Decision of the Criminal court would not however be binding on the civil court – In a given case a civil suit as also a criminal proceeding would be maintainable – They can run simultaneously – Result in one proceeding would not be binding on the court determining the issue before it in another proceeding. (Para 18, 19, 20)

       (2004) 1 SCC 438; AIR 2008 SC 1884 : (2008) 5 SCC 765; 2009 (5) SCALE 527 – Relied upon

       (c) Indian Penal Code, 1860 – Section 415 and 420– Cheating – No contract and/ or transaction entered into by and between the complainant and the appellants – Complainant cannot allege cheating by appellant. (Para 22)

       (2009) 3 SCC 78; (2000) 4 SCC 168; (2006) 6 SCC 736; 2007 (9) SCALE 502; 2009 (6) SCALE 162 – Relied upon

       (d) Indian Penal Code, 1860 – Section 463 and 464 – Forgery – If a sale deed contains false assertions, it is the vendee who should be aggrieved not the co-sharers – Complainant has not alleged that appellant is guilty of creating any false document – No prima facie case made out u/s 463/464. (Para 24)

       (e) Code of Criminal Procedure, 1973 – Section 482 – Quashing FIR and quashing order taking cognizance – Difference – Complainant alleging offence u/s 420 and 464 – No case made out – Magistrate taking cognizance ought to have applied its mind to the charge sheet – High Court ought to see whether a prima facie case is made out – Presently High Court ought to exercise its powers u/s 482. (Para 25, 28)

       (1999) 8 SCC 686; (2002) 1 SCC 555; (2009) 4 SCC 66 – Relied upon

       (f) Res judicata – Principle of res judicata has no application in a criminal proceeding. (Para 27)

       Facts of the case:

       Whether a pure civil dispute can be a subject matter of a criminal proceeding under Sections 420, 467, 468 and 469 is the question in this appeal.

       Solhu had five sons, viz., Girdhar, Naraina, Gabru, Roopa and Harikesh. Appellant Nos. 1 and 2 are grand sons of Girdhar. Indisputably, Gabru died issueless. According to the appellants, the share of Naraina in the joint family, who died issueless, devolved upon among the three surviving brothers, viz., Devendra, Roopa and Harikesh. However, according to the respondent No. 2, the share of Naraina devolved upon Rupa and Harikesh.

       On or about 17.03.1982, Gullu, son of Harikesh filed a suit for partition of his 1/3rd share before the Additional Sub Divisional Officer, Pargana being Suit No. 135 of 1982. By an order dated 24.11.1983, the said suit was decreed

       Gullu filed an appeal thereagainst before the Commissioner, Meerut Division. By an order dated 19.03.1984, the said decree was modified opining that 3/8th share in the joint family belonged to sons of Roopa, viz., Jai Singh, Chatar Pal, Nanakchand and Jaichand. Aggrieved by the said order, Jai Singh, son of Roopa, filed an appeal before the Board of Revenue, which by an order dated 21.10.1985 set aside the order dated 19.03.1984 passed by the Additional Commissioner and affirmed the order of the Additional Sub-Divisional Officer dated 24.11.1983.

       Aggrieved thereby, Gullu filed a Civil Misc. Writ Petition wherein the appellant Nos. 1 and 2 were not impleaded. The High Court while issuing notice, stayed the operation of the order dated 21.10.1985 passed by the Board of Revenue.

       On or about 22.08.1997, a sale deed was executed by the appellant Nos. 1 and 2 in favour of the appellant Nos. 3 and 4.

       On 24.08.2005, a suit was filed by the respondent No. 2 and others for cancelling the aforesaid deed of sale dated 22.08.1997. The said suit is still pending.

       On or about 21.09.2005, the respondent No. 2 filed an application in the Police Station, Kavinagar, Ghaziabad wherein the City Magistrate passed an order to hear the complainant and register a First Information Report which was complied with.

       Appellants filed an application for quashing the said FIR before the High Court which has been dismissed.

       A chargesheet was submitted before the Chief Judicial Magistrate who took cognizance.

       Questioning the legality of the said order, the appellants filed another application under Section 482 of the Code of Criminal Procedure, which has been dismissed.

       Finding of the Court:

       High Court ought to exercise power u/s 482 CrPC.

       Result:

       Appeal allowed.