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Supreme Court of India
K.S. RADHAKRISHNAN & DIPAK MISRA ,JJ.
Arun Bhandari - Appellant
Versus
State of U.P. & Others – Respondent
Criminal Appeal No. 78 of 2013 (Arising out of S.L.P. (Crl.) No. 2089 of 2011)
Decided On : 10-01-2013
Criminal Procedure Code,1973- Section 482 - Powers possessed by High Court u/s 482 -Powers possessed by High Court under Section 482 of the Crpc are very wide and the very plentitude of the power requires great caution in its exercise- The court must be careful to see that its decision in exercise of this power is based on sound principles and such inherent powers should not be exercised to stifle a legitimate prosecution- It is not proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed- It would be erroneous to assess the material before it and conclude that the complaint could not be proceeded with (Para 27)
Facts of the Case :
Present Appeal has been filed against order passed by High Court whereby it quashed the order passed by Magistrate taking cognizance under Sections 406 and 420 of IPC against respondent No. 2 in exercise of power under Section 190(1)(b) of CrPC and the order passed by Sessions Judge, affirming said order, on the foundation that the allegations made neither in the FIR nor in the protest petition constituted offences under said sections.
Findings of the Court :
On a perusal of FIR, the protest petition and order passed by Magistrate, it was demonstrable that at various stages of the investigation different views were expressed by Investigating Officers and Magistrate had scrutinized the same and taking note of the allegations had exercised power to reject the final report and take cognizance. The court taking cognizance and the revisional court had expressed the view that both the respondents had nurtured dishonest intentions from the very beginning of making the negotiation with the complainant and treated non-disclosure of execution of Power of Attorney in favour of the respondent No. 2 by the original owner as a material omission as a consequence of which damage had been caused to the complainant. Neither the FIR nor the protest petition was mala fide, frivolous or vexatious. It was also not a case where there was no substance in the complaint. The manner in which the investigation was conducted and the entire case diary prima facie made out a case against husband and wife regarding collusion and intention to cheat from the very beginning, inducing complainant to hand over a huge sum of money to both of them. High Court, while exercising the extraordinary jurisdiction, not proceeded on the sound principles of law for quashment of order taking cognizance. Impugned order passed by High Court was set aside. Appeal was allowed.
Result : Appeal allowed
Judgment :-
DipakMisra, J.
Leave granted.
2. Calling in question the legal pregnability of the order dated 29.1.2011 passed by the High Court of Judicature at Allahabad in Criminal Misc. Writ Petition No. 69 of 2011 whereby the learned single Judge in exercise of jurisdiction under Articles 226 and 227 of the Constitution has quashed the order dated 5.6.2010 passed by the learned Chief Judicial Magistrate, Gautam Budh Nagar, taking cognizance under Sections 406 and 420 of the Indian Penal Code (for short “the IPC”) against the respondent No. 2 in exercise of power under Section 190(1)(b) of the Code of Criminal Procedure (for short “the CrPC”) and the order dated 4.12.2010 passed by the learned Sessions Judge, Gautam Budh Nagar affirming the said order, on the foundation that the allegations made neither in the FIR nor in the protest petition constitute offences under the aforesaid sections, the present appeal by special leave has been preferred.
3. The factual score as depicted are that the appellant is a Non-Resident Indian (NRI) living in Germany and while looking for a property in Greater Noida, he came in contact with respondent No. 2 and her husband, Raghuvinder Singh, who claimed to be the owner of the property in question and offered to sell the same. On 24.3.2008, as alleged, both the husband and wife agreed to sell the residential plot bearing No. 131, Block – (Cassia-Fastula Estate), Sector CHI-4, Greater Noida, U.P. for a consideration of Rs.2,43,97,880/- and an agreement to that effect was executed by the respondent No. 3, both the husband and wife jointly received a sum of Rs.1,05,00,000/- from the appellant towards part payment of the sale consideration. It was further agreed that the respondent Nos. 2 and 3 would obtain permission from Greater Noida Authority to transfer the property in his favour and execute the deed of transfer within 45 days from the grant of such permission.
4. As the factual antecedents would further reveal, the said agreement was executed on the basis of a registered agreement executed in favour of the respondent No. 3 by the original allottee, Smt. Vandana Bhardwaj to sell the said plot. After expiry of a month or so, the appellant enquired from the respondent No. 3 about the progress of delivery of possession from the original allottee, but he received conflicting and contradictory replies which created doubt in his mind and impelled him to rush to Noida and find out the real facts from the Greater Noida Authority. On due enquiry, he came to know that there was a registered agreement in favour of the 3rd respondent by Smt. Vandana Bhardwaj; that a power of attorney had been executed by the original allottee in favour of the respondent No. 2, the wife of respondent No. 3; that the original allottee, to avoid any kind of litigation, had also executed a will in favour of the respondent No. 3; and that the respondent No. 2 by virtue of the power of attorney, executed in her favour by the original allottee, had transferred the said property in favour of one Monika Goel who had got her name mutated in the record of Greater Noida Authority. Coming to know about the aforesaid factual score, he demanded refund of the money from the respondents, but a total indifferent attitude was exhibited, which compelled him to lodge an FIR at the Police Station, Kasna, which gave rise to the Criminal Case No. 563 of 2009.
5. The Investigating Officer, after completing the investigation, submitted the final report stating that the case was of a civil nature and no criminal offence had been made out. The appellant filed a protest petition before the learned Magistrate stating, inter alia, that the accused persons had colluded with the Investigating Officer and the Station House Officer as a result of which the Investigation Officer, on 22.10.2009, had concluded the investigation observing that the dispute was of the civil nature and intended to submit the final report before the court. The appellant coming t
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