9911796707
TMI Blog2013 (9) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... d partnership deed dated 5.3.2002 was utilised, he had also invested a huge amount, but the said deed was subsequently replaced by a forged/fabricated deed dated 6.3.2003 in which the respondent no.1 was not a partner, was implanted in the excise office in its place to deprive him of the profits of the firm. HELD THAT:- When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the court should judge the probability, reliability or genuineness of the allegations made therein. More so, the charge sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Cr.P.C. It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not kill a still born child , and appropriate prosecution should not be stifled unless there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled a complaint alleging that while negotiating and accepting the contract for the year 2003-2004, the reconstituted partnership deed dated 5.3.2002 was utilised, wherein the said complainant-respondent no. 1 had also invested a huge amount, but the said deed was subsequently replaced by a forged/fabricated deed dated 6.3.2003 in which the respondent no.1 was not a partner. The respondent no.1 could acquire the knowledge of such facts at a much belated stage when he preferred to enter into certain transactions with the bank. E. Aggrieved, respondent no. 1 filed a Criminal Complaint Case No. 3968 of 2003 on 18.7.2003 against nine partners of the reconstituted firm alleging that the said partners had replaced the Deed of Partnership dated 5.3.2002 in the bank, and a forged partnership deed dated 6.3.2003 was implanted in the excise office in its place to deprive him of the profits of the firm. F. The respondent no.1 also filed a complaint before the Chief Secretary, Government of Madhya Pradesh in this regard. The Chief Secretary sought a report in that respect from the Office of the Collector (Excise), District Bhopal. The Collector (Excise), District Bhopal submitted a rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Sections 420, 467, 468, 471 and 120-B IPC in the court of Chief Judicial Magistrate (hereinafter referred to as CJM ), Bhopal. The CJM recorded the statement of the complainant and after considering the pre-charge evidence, vide order dated 10.4.2008, registered the case against the appellant and two others under Sections 420 and 120- B IPC. M. It may also be pertinent to point out that the respondent no. 1 also filed a complaint against the appellant before the Lokayukta, that was dismissed vide order dated 21.4.2008. N. Aggrieved, the appellant filed an application under Section 482 Cr.P.C. for quashing of the complaint dated 21.1.2008. However, the High Court dismissed the said application vide impugned judgment and order dated 11.11.2008. Hence, this appeal. 3. Shri Ashok Shrivastava, learned Senior counsel appearing for the appellant has submitted that the High Court has committed an error in dismissing the application of the appellant as the complaint filed by the respondent no.1 is nothing, but an abuse of the process of the court. The appellant stood exonerated in various departmental enquiries initiated on the complaint of the respondent no.1. More ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint. 6. We have considered the rival submissions made by learned counsel for the parties and perused the record. 7. In the complaint filed by the respondent no.1 dated 21.1.2008 in the court of CJM, Bhopal, serious allegations of cheating by replacing the partnership deed dated 5.3.2002 by a forged partnership deed dated 6.3.2003 with the connivance of the appellant and other officers in his office were made. Particulars had been furnished to establish that the partnership deed dated 6.3.2003 was a forged document. The deed dated 6.3.2003 had been deposited in the office of the appellant on the same date at Bhopal. The stamp papers had been purchased on 6.3.2003 itself at Sagar and the deed had been executed on 6.3.2003 at 12 noon at Bhopal by a Notary. This could not be possible as one of the partners, namely, Shri Anand Kumar Tiwari remained present on 6.3.2003 for the purpose of auction of Excise at Ujjain, though he had been shown as signing the said document at Bhopal on the same date. Alongwith the auction record sent by the Excise office, Bhopal to the office of Commissioner of Excise, Gwalior through the Collector, Bhopal on 11.3.2003, a copy of the partnership d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full and proper investigation. 12. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi Ors., AIR 1976 SC 1947, this Court held that where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused or where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible or where the complaint suffers from fundamental legal defects, the proceedings become liable to be quashed. 13. In Smt. Manju Gupta v. Lt. Col. M.S. Paintal, AIR 1982 SC 1181, this Court held that in a case where no specific allegation or any overt act has been ascribed to a person in the matter of the commission of an offence, the proceedings may be quashed. 14. In Union of India v. Prafulla Kumar Samal Anr., AIR 1979 SC 366, this Court dealt with the issue observing: 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1)That the Judge while considering the question of framing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. 17. The question of delay in this case remains totally immaterial in view of the fact that all these facts came to the notice of the complainant at a much belated stage in 2007 when the report etc. had been placed by the State Authorities before the High Court. 18. In Umesh Kumar v. State of Andhra Pradesh, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
