NETAJI P KAVALEKAR Vs. EDWARD AVELINO FRANCIS PEREIRA

JUDGEMENT

(1.) THE accused Nos.1, 3 to 19 respectively in CC No.1322/13 on the file of JMFC II Court, Hubli, have challenged the entire proceedings before the Magistrate and sought for quashing of the entire proceedings initiated against them by respondent No.1 for the offences punishable under Sections 405, 415, 420, 463, 464, 471 r/w Section 34 of Indian Penal Code, 1860.

(2.) THE factual matrix of the case discloses that the respondent herein who is the complainant before the JMFC, Hubli, lodged a private complaint against the petitioners herein in PCR No.108/2011. On the date of filing of the complaint, the learned Magistrate referred the matter to the jurisdictional police for investigation and report under Section 156 (3) of Cr.P.C. It seems that the police have submitted B summary report, before the Court. The complainant in fact has filed objections to the B report and requested the Court to take up into consideration his complaint averments and to take cognizance against the accused person. The learned Magistrate in fact after recording the sworn statement of the complainant and also after going through the contents of the complaint averments and objections to B summary report, has come to the conclusion that the complainant has made out prima facie case for issuing process against the accused persons. Accordingly, vide order dated 24/10/2013 issued process against the accused persons. Being aggrieved by the said proceedings, the present petitions are filed. The allegations made in the complaint by the complainant is that the complainant along with his brother and sister are having exclusive permanent leasehold rights, with regard to the property bearing its CTS No.367/1B3 of Ward No.1, Hubli. The complainant, his brother and sister were most of the time out of India and have stayed in various parts of India. Therefore, with a desire and hope to settle down in Hubli, the complainant along with his brother and sister entered into a unregistered developed agreement with accused No.1 on 4/10/2001, with a condition that the accused No.1 has to complete the entire project within two years from 4/10/2001 and handover the possession of the constructed Flats to the owners. It is alleged that due to negligence and delay in execution of the work by accused No.1, the construction was never completed within the stipulated time. The time was further extended by executing an additional development agreement. It is alleged that taking advantage of the complainant and others, being outside India, the accused No.1 has sold some of the Flats in favour of accused Nos.2 to 19. The complainant came to India in the month of November 2010 and noticed that the properties were sold to accused Nos.2 to 19 on basis of the forged and created Power of Attorney, said to be dated 26/12/1994 alleged to have been executed by the complainant and others. It is specifically alleged that the complainant never come to India during the said date or period as appearing in the alleged Power of Attorney, as such the question of executing the Power of Attorney in favour of the accused No.1 did not arise at any point of time. It is further alleged that the accused Nos.2 to 19 knowing fully well of the complainant being outside India, have joined their hands with the accused No.2 and supported him to achieve his object of forgery and cheating the complainant and as such, they are equally liable for prosecution and punishment. On the basis of the above said allegation, the above said complaint has been filed and the accused persons were summoned by the trial Court. Now, before appreciating the allegations made, it is just and necessary for this Court to bear in mind under what circumstances, the Court can quash the criminal proceeding pending before the criminal Court. The learned counsel for the petitioner strenuously contended that the matter is a civil in nature and the respondent attempted to convert a civil dispute into criminal case against this petitioner. Therefore, the said criminal proceedings amounts to abuse of process of law. Hence, the same is liable to be quashed.

(3.) PER contra, the learned Counsel contended that though there is some civil suit in the transaction between the parties, when a specific contention taken by the respondent that he never executed any Power of Attorney in favour of the petitioner No.1 or in favour of anybody and the said Power of Attorney is concocted, forged by accused No.1 for the purpose of defeating and defrauding the rights of the respondent, therefore, it is purely a criminal act of accused No.1, which is challenged before the criminal Court. Therefore, the Court cannot quash the said proceeding in a very casual manner. In this back ground, it is just and necessary to go through a decision of the Hon ble Supreme Court, which is a land mark judgement consistently followed even by Supreme Court and other High Courts, it is between State of Haryana and others Vs. Bajan Lal and others, 1992 Supp1 SCC 335. Though the Hon ble Supreme Court not exhaustively laid down particular instances, as to under what circumstances, the Court can quash the proceedings. However, some broad guidelines have been issued in the said case. The said guidelines are as follows: -