GANGA DHAR KALITA Vs STATE OF ASSAM .
Bench: DIPAK MISRA,PRAFULLA C. PANT
Case number: Crl.A. No.-000592-000592 / 2015
Diary number: 15756 / 2014
Advocates: HIMANSHU SHEKHAR Vs
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 592 OF 2015 (Arising out of S.L.P. (Crl.) No. 4425 of 2014)
Ganga Dhar Kalita … Appellant
Versus
The State of Assam and others … Respondents
J U D G M E N T
Prafulla C. Pant, J.
This appeal is directed against judgment and order
dated 20.3.2014, passed by the Gauhati High Court in
Criminal Petition No. 287 of 2009, whereby said Court has
dismissed the petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short “the Code”) and declined
to quash the criminal proceedings initiated against the
appellant.
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2. We have heard learned counsel for the parties and
perused the papers on record.
3. Brief facts of the case are that a First Information
Report dated 25.1.2009 was got lodged by respondent No. 3
Rabindra Nath Kalita at Police Station, Panbazar, District
Kamrup, Assam. It is alleged in said report that Kaustav K.
Kalita is minor son of respondent No. 3. He (Kaustav K.
Kalita), respondent No. 4 Rishi Raj Borgohain, and
respondent No. 5 Yuva Raj Borgohain are pattadars-in-
possession of the land measuring 11 Bigha 2 Kathas 12
Lachas of Patta No. 56, situated in Village Kamarkuchi under
Panbari Mouza of the District. It is further alleged that the
complainant (respondent No. 3) came to know that appellant
Ganga Dhar Kalita and one Birendra Kumar Das have sold
the above mentioned land in favour of Sewali Oza, Kabindra
Oza and Kaifie Oza. On enquiry, according to the
complainant, it was discovered that Ganga Dhar Kalita
(appellant) has fraudulently got executed a power of
attorney Deed No. 2062 dated 11.4.2006 by forging
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signatures of Kaustav K. Kalita, Rishi Raj Borgohain and Yuva
Raj Borgohain. Rishi Raj Borgohain (respondent No. 4) is
also signatory in the First Information Report given by
respondent No. 3 to the police. On the above complaint,
police appears to have registered the case as crime No. 25
of 2009 in respect of offences punishable under Sections
419, 468, 420, 471/34 of Indian Penal Code.
4. The present appellant challenged the First Information
Report by filing a petition under Section 482 of the Code on
the ground that the dispute between the parties is of civil in
nature. It is also pleaded by the appellant that a title suit
No. 477 of 2008 has already instituted by Birendra Kumar
Das. It is also urged that another suit No. 293 of 2009 was
filed before the Court of Civil Judge No. 3, Guwahati, by the
informants (respondent Nos. 3 and 4) seeking cancellation of
the power of attorney in question.
5. However, after hearing the parties, the High Court was
not impressed with the arguments advanced on behalf of the
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accused (appellant), and observed that since the allegations
made against him make out a cognizable offence, and the
allegations are serious in nature, as such, it declined to
interfere with the criminal proceedings. The High Court
further opined that the complainant has not acted mala fide.
6. Learned counsel for the appellant argued before us that
since there are two suits already instituted, one filed by
Birendra Kumar Das and another filed by the complainants,
as such, the criminal proceedings in the matter are nothing
but abuse of process of law.
7. In response to the above, learned counsel for the
respondents/complainants drew our attention to the copy of
order dated 15.11.2011 passed in Title Suit No. 477 of 2008,
i.e., one instituted by Birendra Kumar Das. Copy of said
order, which is annexure A-1 to the counter affidavit filed on
behalf of respondent Nos. 3 and 4, shows that Title Suit No.
477 of 2008 was dismissed for non-prosecution. There is
nothing on the record to suggest that after dismissal of the
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suit on 15.11.2011 said suit was restored. In view of said
fact, it can be said that the appellant has attempted to
suppress the fact that Title Suit No. 477 of 2008 has been
dismissed. As to the pendency of the suit No. 293 of 2009
filed by respondent Nos. 3 and 4 and Kaustav K. Kalita, it is
true that they have sought cancellation of general power of
attorney Deed No. 2062 of 2006 dated 11.4.2006 purporting
to have been executed in respect of the property in
question.
8. The allegations made in the First Information Report
disclose that there are serious allegations against the
appellant (accused) that he fraudulently got executed the
power of attorney, and Kaustav K. Kalita was minor (aged
nine years) on the date when the deed was said to have
been signed by him. It is also alleged that respondent No. 5
Yuva Raj Borgohain, who is said to be another person who
executed the power of attorney, was away from India on the
date of alleged execution of the Deed.
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9. In Arun Bhandari v. State of Uttar Pradesh and
others1, this Court has held that if the allegations in the
First Information Report are not frivolous, mala fide or
vexatious, it cannot be simply quashed for the reason that
civil suit is also pending in the matter. Paragraphs 2, 3 and
33 of said case are reproduced below: -
“2. The factual score as depicted is 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 2 and her husband, Raghuvendra 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 Fistula 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 Respondent 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 Respondents 2 and 3 would obtain permission from the 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.
3. As the factual antecedents would further reveal, the said agreement was executed on the basis of a registered agreement executed in favour of Respondent 3 by the original allottee, Smt
1 (2013) 2 SCC 801
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Vandana Bhardwaj to sell the said plot. After expiry of a month or so, the appellant enquired from Respondent 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 third respondent by Smt Vandana Bhardwaj; that a power of attorney had been executed by the original allottee in favour of Respondent 2, the wife of Respondent 3; that the original allottee, to avoid any kind of litigation, had also executed a will in favour of Respondent 3; and that Respondent 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 the 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 Police Station Kasna, which gave rise to Criminal Case No. 563 of 2009.
xxx xxx xxx
33. Applying the aforesaid parameters we have no hesitation in coming to hold that neither the FIR nor the protest petition was mala fide, frivolous or vexatious. It is also not a case where there is no substance in the complaint. The manner in which the investigation was conducted by the officer who eventually filed the final report and the transfer of the investigation earlier to another officer who had almost completed the investigation and the entire
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case diary which has been adverted to in detail in the protest petition prima facie makes out a case against the husband and the wife regarding collusion and the intention to cheat from the very beginning, inducing the appellant to hand over a huge sum of money to both of them. Their conduct of not stating so many aspects, namely, the power of attorney executed by the original owner, the will and also the sale effected by the wife in the name of Monika Singh on 28-7-2008 cannot be brushed aside at this stage.”
10. No doubt, where the criminal complaints are filed in
respect of property disputes of civil in nature only to harass
the accused, and to pressurize him in the civil litigation
pending, and there is prima facie abuse of process of law, it
is well within the jurisdiction of the High Court to exercise its
powers under Section 482 of the Code to quash the criminal
proceedings. However, the powers under the section are
required to be exercised sparingly. In Kamaladevi
Agarwal v. State of W.B. and others2, this Court has
observed as under: -
“This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at
2 (2002) 1 SCC 555
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their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction.”
11. Having considered the law laid down by this Court, as
above, and further considering the facts and circumstances
of the case and seriousness of the allegations made against
the accused, particularly that one of the persons said to
have executed the power of attorney was minor, and
another was away from India, in our opinion, even if the civil
suit was instituted by the complainant, the High Court
committed no error of law in declining to interfere with the
criminal proceedings initiated against the appellant in the
present case.
12. Therefore, we are not inclined to interfere with the
order passed by the High Court dismissing the petition under
Section 482 of the Code. Accordingly the appeal is
dismissed. However, we clarify that the observations made
in our order would not be read to influence the civil or
criminal proceedings pending between the parties.
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………………….....…………J. [Dipak Misra]
.………………….……………J. New Delhi; [Prafulla C. Pant]
April 13, 2015.