KAPTAN SINGH versus THE STATE OF UTTAR PRADESH AND OTHERS on 13 August 2021

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[2021] 8 S.C.R. 408

SUPREME COURT REPORTS

[2021] 8 S.C.R.

KAPTAN SINGH

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v.

THE STATE OF UTTAR PRADESH AND OTHERS

(Criminal Appeal No. 787 of 2021)

BAUGUST 13, 2021

[DR. DHANANJAYA Y. CHANDRACHUD ANDM. R. SHAH, JJ.]

Code of Criminal Procedure, 1973:

Cs. 482 – Inherent powers of High Court – Exercise of – Onfacts, criminal proceedings u/ss. 147, 148, 149, 406, 329 and 386IPC pending against the private respondents – High Court in exerciseof powers u/s. 482 quashed the criminal proceedings – Sustainabilityof – Held: Not sustainable – High Court exceeded its jurisdictionin quashing the criminal proceedings in exercise of powers u/s. 482D– High Court failed to consider the material collected during theinvestigation/inquiry and even the statements recorded by theInvestigating officer – High Court failed to appreciate and considerthe fact that there were very serious triable issues/allegations whichwere required to be gone into and considered at the time of trial –EHigh Court lost sight of crucial aspects which emerged during thecourse of the investigation – High Court grossly erred in enteringinto the merits of the allegations as if the High Court was exercisingthe appellate jurisdiction and/or conducting the trial – Also, theHigh Court erred in observing that original complainant has nolocus – Order passed by the High Court quashing the criminalFproceedings in exercise of powers u/s. 482 is quashed and set aside.

s. 482 – Power under – Scope and limit of – Discussed.

Allowing the appeal, the Court

HELD: 1.1 The High Court exceeded its jurisdiction inGquashing the criminal proceedings in exercise of powers underSection 482 Cr.P.C. [Para 9.3][419-D-E]

1.2 The High Court in exercise of powers under Section482 Cr.P.C. quashed the criminal proceedings for the offencesunder Sections 147, 148, 149, 406, 329 and 386 of IPC. When H

the High Court in exercise of powers under Section 482 Cr.P.C.quashed the criminal proceedings, by the time the InvestigatingOfficer after recording the statement of the witnesses, statementof the complainant and collecting the evidence from the incidentplace and after taking statement of the independent witnessesand even statement of the accused persons, filed thecharge-sheet before the Magistrate for the offences underSections 147, 148, 149, 406, 329 and 386 IPC and even theMagistrate also took the cognizance. From the impugnedjudgment and order passed by the High Court, it does not appearthat the High Court took into consideration the material collectedduring the investigation/inquiry and even the statementsrecorded. If the petition under Section 482 Cr.P.C. was at thestage of FIR in that case the allegations in the FIR/Complaintonly are required to be considered and whether a cognizableoffence is disclosed or not is required to be considered. However,thereafter when the statements are recorded, evidence iscollected and the charge-sheet is filed after conclusion of theinvestigation/inquiry the matter stands on different footing andthe Court is required to consider the material/evidence collectedduring the investigation. Even at this stage also, the High Courtis not required to go into the merits of the allegations and/orenter into the merits of the case as if the High Court is exercisingthe appellate jurisdiction and/or conducting the trial. [Para9.1][418-A-F]

1.3 The High Court failed to appreciate and consider thefact that there were very serious triable issues/allegations whichwere required to be gone into and considered at the time of trial.The High Court lost sight of crucial aspects which emerged duringthe course of the investigation. The High Court failed toappreciate and consider the fact that the document-joint notarizedaffidavit of Accused No. 2 and MD under which according toAccused no.2, Rs. 25 lakhs was paid and the possession wastransferred to her itself is seriously disputed. Whether Rs. 25lakhs has been paid or not the accused have to establish duringthe trial, because the accused are relying upon the said documentand payment of Rs. 25 lakhs as mentioned in the joint notarizedaffidavit. It is also required to be considered that the firstagreement to sell in which Rs. 25 lakhs is stated to be sale ABC

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Aconsideration and there is reference to the payment of Rs.10lakhs by cheques. It is a registered document. [Para 10][419-E-H; 420-A-B]

1.4 As regards the finding recorded by the High Court thatno case is made out for the offence under Section 406 IPC, it isBto be noted that the High Court itself noted that the joint notarizedaffidavit is seriously disputed, however as per the High Courtthe same is required to be considered in the civil proceedings.The High Court committed an error. Even the High Court failedto notice that another FIR has been lodged against the accusedfor the offences under Sections 467, 468, 471 IPC with respectCto the said alleged joint notarized affidavit. Even according to theaccused the possession was handed over to them. However, whenthe payment of Rs. 25 lakhs as mentioned in the joint notarizedaffidavit is seriously disputed and even one of the cheques out of5 cheques each of Rs. 2 lakhs was dishonoured and according to Dthe accused they were handed over the possession (which isseriously disputed) it can be said to be entrustment of property.Therefore, at this stage to opine that no case is made out for theoffence under Section 406 IPC is premature and the said aspectis to be considered during trial. It is also required to be notedthat the first suit was filed by MD and thereafter subsequent suitEcame to be filed by the accused and that too for permanentinjunction only. Nothing is on record that any suit for specificperformance has been filed. All the said aspects are required tobe considered at the time of trial only. Therefore, the High Courtgrossly erred in quashing the criminal proceedings by enteringFinto the merits of the allegations as if the High Court wasexercising the appellate jurisdiction and/or conducting the trial.[Para 11][420-B-G]

1.5 The High Court erred in observing that originalcomplainant has no locus. The said observation is made on theGpremise that the complainant has not placed on record the powerof attorney along with the counter filed before the High Court.However, when it is specifically stated in the FIR that MD hasexecuted the power of attorney and thereafter the InvestigatingOfficer has conducted the investigation and has recorded thestatement of the complainant, accused and the independentH

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witnesses, thereafter whether the complainant is having the powerof attorney or not is to be considered during trial. [Para 12][420-G-H; 421-A-B]

1.6 The impugned judgment and order passed by the HighCourt quashing the criminal proceedings in exercise of powersunder Section 482 Cr.P.C. is unsustainable and is accordinglyquashed and set aside. The trial is to be conducted and proceededfurther in accordance with law and on its own merits. [Para13][421-B-C]

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Dineshbhai Chandubhai Patel v. State of Gujarat,(2018) 3 SCC 104 : [2018] 1 SCR 62; DhruvaramMurlidhar Sonar v. State of Maharashtra, (2019) 18SCC 191 : [2018] SCR 920; CBI v. Arvind Khanna,(2019) 10 SCC 686 : [2019] 13 SCR 470; Telanganav. Managipet, (2019) 19 SCC 87; XYZ v. State ofGujarat, (2019) 10 SCC 337; State of Haryana v.Bhajan Lal, (1992) Supp 1 SCC 335 : [1990] 3 Suppl.SCR 259 – relied on.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.787 of 2021.

From the Judgment and Order dated 29.07.2020 of the High Courtof Judicature at Allahabad in Crl Misc Application No.1697 of 2016.

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Santosh Kumar Pandey, Adv. for the Appellant.

Devdatt Kamat, Sr. Adv., Ankit Goel, Amit Kumar Singh, AvnishPandey, Ms. Yugandhara Pawar Jha, Ashwin Nair, Kunal Verma, Advs.for the Respondents.

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412SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 29.07.2020 passed by the High Court of Judicature atAllahabad in Application under Section 482 No. 1697 of 2016, by whichBthe High Court in exercise of powers under Section 482 Cr.P.C. hasquashed the entire proceedings of Criminal Case No. 3302 of 2015 underSections 147, 148, 149, 406, 329 and 386 IPC, P.S. Barra, District KanpurNagar, pending in the Court of I-Additional Chief Metropolitan Magistrate,Kanpur Nagar, the original complainant has preferred the present appeal.C

2. That the appellant herein filed a complaint before the learnedMagisterial Court under Section 156(3) Cr.P.C. against the privaterespondents for the offences under Sections 147, 148, 149, 406, 329 and386 IPC; that the learned Additional Chief Metropolitan Magistrate,Kanpur Nagar, by order dated 07.09.2015, after perusal of the factsDmentioned in the application/complaint and documents and having founda prima facie case of cognizable offence and having observed that thepolice is required to investigate the same, allowed the said applicationunder Section 156(3) Cr.P.C. and directed the concerned Station HouseOfficer to register the first information report and investigate it inaccordance with law.E

2.1 That thereafter the concerned SHO registered the FIR asCase Crime No. 0645 of 2015 against the private respondents herein forthe offences under Sections 147, 148, 149, 406, 329 and 386 IPC. As perthe allegations in the FIR, one Munni Devi was the owner of Plot No.1342, W Block 2 Yojna Juhi Kala, Damodar Nagar, admeasuring 387Fsq.ft.; that she appointed the complainant – Kaptan Singh as her powerof attorney holder to take care of the said plot; that Munni Devi wantedto sell the said plot; that she entered into a registered agreement to sellwith one Mamta Gupta – respondent no. 3 herein on 27.10.2010 for atotal sale consideration of Rs.25,00,000/-; that at the time of agreement,Gthe purchaser – Mamta Gupta handed over five cheques of Rs. 2 lakheach, drawn on ICICI Bank, Branch Govind Nagar, Kanpur; that MunniDevi presented one of the cheques no. 502314 dated 15.11.2010 in herbank and the said cheque was dishonoured “due to insufficient funds”;that when the cheque returned unpaid, Munni Devi contacted MamtaGupta and then she informed her that her husband is suffering fromHkidney failure and facing financial problem and therefore she would not be able to purchase the said plot, however she is arranging money; thatthereafter Mamta Gupta showed no interest for registration of sale deedand she informed Munni Devi not to present the cheques; that thereafterMunni Devi served a legal notice dated 02.01.2015 and 18.05.2015through registered post; that after receiving notice dated 18.05.2015,Mamta Gupta showed no positive response, then Munni Devi appointedthe complainant as a power of attorney holder on 05.08.2015.

2.2 It was alleged that thereafter when the complainant alongwith his friend Ram Pratap Singh went to the plot on 20.08.2015, at thattime Mamta Gupta and her husband were present there along with threeother persons outside the tin shed. The complainant told them that theyhave not paid the full consideration amount and had forcibly put lock onthe room and requested them to open the said lock. At that time, MamtaGupta and her husband told them that they had paid Rs. 2 lakhs and theywill not open the lock till the time they will get Rs. 10 lakhs. It wasalleged that all the persons abused the complainant by using filthylanguage relating to his mother and sister and pushed the complainantdue to which he fell down and thereafter he was beaten with fist andMamta Gupta, who was carrying knife like weapon, kept the edged partof it on his chest and gave a blank paper and threatened him to sign it, ifnot, then he will be killed and the complainant signed it. The complainantalso produced the medical report. That thereafter after the completionof the investigation and after recording of the statement of the witnesses,statement of the complainant and after collecting the evidence from theplace of incident and taking statement of independent witnesses andeven the statement of the accused persons, after due enquiry and havingsatisfied that a prima facie case is made out against the accused for theoffences under Sections 147, 148, 149, 406, 329 and 386 IPC, theinvestigating officer filed chargesheet no. 320/2015 dated 26.11.2015against the private respondents herein for the aforesaid offences.

2.3 That thereafter the private respondents herein approachedthe High Court for quashing criminal proceedings under Section 482Cr.P.C. It was the case on behalf of all the accused – private respondentsherein in the 482 petition that dispute is of a civil nature; that Munni Devientered into a registered agreement to sell on 27.10.2010 with MamtaGupta as vendee; that Munni Devi undertook to get the land free holddone on the aforesaid plot and thereafter to execute the sale deed infavour of Mamta Gupta; that part payment was made immediately by AB

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Acheque and cash both and the remaining amount of Rs. 10 lakhs were tobe paid at the time of execution of the sale deed; that on the same datea joint notarized affidavit of Mamta Gupta and Munni Devi was alsoexecuted demonstrating the payment of Rs. 25 lakhs by Mamta Guptaand the transfer of possession to Mamta Gupta; that after obtainingpossession Mamta Gupta constructed a two-room set on the said plot.BIt was also the case on behalf of the accused that thereafter MunniDevi did not get the free hold executed and since the husband of MamtaGupta was suffering from a renal failure and was undergoing dialysis,she could not initiate legal proceedings for specific performance; thatthereafter Munni Devi filed a suit in the Court of Civil Judge (SeniorCDivision), Kanpur Nagar. It was also the case on behalf of the privaterespondents – accused that as Munni Devi did not get any relief fromthe court below, she got in touch with a land mafia – the originalcomplainant – the appellant herein and he was the power of attorneyholder of Munni Devi and that when he visited the plot on 20.08.2015 hewas thrown out and was assaulted. That thereafter Mamta Gupta filedDa suit for permanent injunction being O.S. No. 2077 of 2015 in the Courtof Civil Judge (Senior Division), Kanpur Nagar wherein temporaryinjunction had been granted in favour of Mamta Gupta and the saidorder is still in operation. Therefore, it was submitted that the dispute ispurely of a civil nature and criminal proceedings have been lodged onlyEwith a view to pressurize Mamta Gupta to handover the plot to thecomplainant even though Mamta Gupta has paid a sum of Rs.25 lakhs tothe owner of the plot in question. Therefore, it was prayed to quash theentire FIR.

3. That the 482 petition was opposed by the original complainant.

FA detailed affidavit/counter affidavit was filed on behalf of the originalcomplainant. It was specifically the case on behalf of the complainantthat the documents alleged to have been executed by Munni Devi infavour of Mamta Gupta on 27.10.2010/subsequent notarized documentdated 27.10.2010 are fabricated in which it is stated that Rs. 25 lakhshave been paid and that the possession has been handed over to MamtaGGupta. It was also pointed out that for the aforesaid another firstinformation report has been registered against them on 04.12.2015,registered as Case Crime No. 816 of 2015 under Sections 420, 467, 468,471 IPC at Police Station Barra, District Kanpur Nagar and theinvestigation is still going on. It was also submitted that the electricityHconnection was obtained by Mamta Gupta in a fraudulent manner and subsequently the said electricity connection has been permanentlydisconnected by Electricity Department, Kanpur Nagar on 18.08.2015and no electric connection exists in the premises in question till today. Itwas also submitted that after the completion of the investigation andafter collecting the credible evidence against the accused, the investigatingofficer has submitted a chargesheet and the learned Magistrate afterapplying its mind judiciously has taken cognizance against the accused.Therefore, it was prayed to dismiss 482 application.

4. By the impugned judgment and order, the High Court hasallowed the said application and has quashed the entire criminalproceedings mainly on the grounds that the original complainant – KaptanSingh for all practical purposes is ranked outsider and stranger to thedeal and therefore the criminal proceedings initiated at his behest cannotcontinue; that no power of attorney executed by Munni Devi in his favourhas been filed with the counter affidavit and on the ground that thedispute is of a civil nature and civil suits are pending between the partiesand veracity and genuineness of the notarized affidavit signed by MunniDevi and Mamta Gupta can be considered in the civil proceedings andthere was no entrustment of property and therefore no case is made outfor the offence under Section 406 of the IPC. That having observedthat there is no case against the accused under Section 406 IPC, theHigh Court has further observed that rest of the allegations are tangentto the main allegation without any corroborating evidence.

5. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, quashing the entire criminalproceedings in exercise of its inherent powers under Section 482 Cr.P.C.,the original complainant has preferred the present appeal.

6. Shri Santosh Kumar Pandey, learned Counsel appearing onbehalf of the appellant has vehemently submitted that in the facts andcircumstances of the case the High Court has committed a grave errorin quashing the criminal proceedings in exercise of powers under Section482 Cr.P.C. It is further submitted that the High Court ought to haveappreciated and considered the fact that after the FIR was lodged, thesame came to be investigated by the Investigating Officer and afterthorough investigation and recording the statement of the witnesses andafter collecting the evidence and even after recording the statements ofthe independent witnesses and statement of the accused persons andafter holding inquiry the Investigating Officer filed the charge-sheet A

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Aagainst the accused persons and even thereafter the Learned Magistratealso took the cognizance. It is submitted that the aforesaid aspect hasnot been considered at all by the High Court while quashing the criminalproceedings in exercise of powers under Section 482 Cr.P.C.

6.1 It is further submitted that the High Court has failed toBappreciate and consider that there are contentious issues which can beconsidered only at the time of trial.

6.2 It is further submitted that the High Court has entered into themerits of the allegations at the stage of quashing proceedings underSection 482 Cr.P.C. It is submitted that as held by this Court in catena ofCdecisions while exercising the powers under Section 482 Cr.P.C., theHigh Court is not required to enter into and/or consider the merits of theallegations in detail, which as such are required to be considered at thetime of trial. Heavy reliance is placed on the decisions of this Court inDineshbhai Chandubhai Patel vs. State of Gujarat, (2018) 3 SCC104; Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2019)D18 SCC 191; CBI vs. Arvind Khanna, (2019) 10 SCC 686;Telangana vs. Managipet, (2019) 19 SCC 87; XYZ vs. State ofGujarat, (2019) 10 SCC 337.

6.3 It is submitted that as held by this Court in the case of XYZ(Supra) when there are serious triable allegations in complaint it isEimproper to quash the FIR in exercise of inherent powers of High Courtunder Section 482 Cr.P.C.

6.4 It is further submitted that the High Court has failed toappreciate and consider that the civil proceedings were initiated initiallyby Munni Devi and thereafter the accused no. 2 filed the suit only forFpermanent injunction and no suit for specific performance has been filed.It is submitted that as such there are very serious allegations of forgeryof the joint notarized document dated 27.10.2010 by which the accusedhave alleged to have given Rs. 25 lakhs to Munni Devi. It is submittedthat the High Court has failed to appreciate and consider the fact that inGthe present case there are two documents of the very date i.e. 27.10.2010,one is registered one in which the sale consideration is stated to be Rs.25 lakhs and in another document of same date dated 27.10.2010, thesale consideration is stated to be Rs. 35 lakhs and it is stated that Rs. 25lakhs have been paid to Munni Devi. It is submitted that the payment ofRs. 25 lakhs and even the existence of joint notarized agreement datedH

27.10.2010 is to be considered at the time of trial. It is submitted thattherefore, when there are serious triable issues, the High Court is notjustified in quashing the criminal proceedings.

7. Shri Ankit Goel, learned Counsel appearing on behalf of Stateof Uttar Pradesh has supported the appellant - original complainant.

8. Shri Amit Kumar Singh, learned Counsel appearing on behalfof the private respondents while opposing the present appeal hasvehemently submitted that in the facts and circumstances of the casethe High Court has not committed any error in quashing the criminalproceedings.

8.1 It is submitted that as rightly observed by the High Court, thecase squarely falls within the exceptions as observed and held by thisCourt in the case of State of Haryana vs. Bhajan Lal, 1992 Supp (1)SCC 335.

8.2 It is submitted that in the present case there was no entrustmentof any property and therefore, there is no question of any offence beingcommitted under Section 406 IPC. It is submitted that therefore whenthe ingredients for the offence under Section 406 IPC are not satisfiedand as rightly observed by the High Court the genuineness of thedocuments dated 27.10.2010 are to be considered in the civil proceedingsand which are not required to be considered in the criminal proceedings,the High Court is absolutely justified in quashing the criminal proceedings.It is submitted that as such the civil dispute is tried to be converted intocriminal dispute which can be said to be nothing but an abuse of processof law.

8.3 It is further submitted by learned Counsel appearing on behalfof private respondents that even in the present case medical certificatewhich is now produced before this Court, was not produced before theHigh Court. It is submitted therefore in absence of any medical reportproduced before the High Court and even otherwise the injuries mentionedin the medical report are simple in nature, no case is made out for theother offences and therefore the High Court has rightly quashed thecriminal proceedings.

8.4 It is further submitted that as observed by the High Courteven the original complainant has no locus to file the complaint as nopower of attorney alleged to have been executed by Munni Devi wasplaced on record.

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418SUPREME COURT REPORTS

[2021] 8 S.C.R.

A8.5 Making the above submissions, it is prayed to dismiss the appeal.9. Heard learned Counsel for the respective parties at length.9.1 At the outset, it is required to be noted that in the present casethe High Court in exercise of powers under Section 482 Cr.P.C. hasquashed the criminal proceedings for the offences under Sections 147,B148, 149, 406, 329 and 386 of IPC. It is required to be noted that whenthe High Court in exercise of powers under Section 482 Cr.P.C. quashedthe criminal proceedings, by the time the Investigating Officer afterrecording the statement of the witnesses, statement of the complainantand collecting the evidence from the incident place and after takingCstatement of the independent witnesses and even statement of theaccused persons, has filed the charge-sheet before the LearnedMagistrate for the offences under Sections 147, 148, 149, 406, 329 and386 of IPC and even the learned Magistrate also took the cognizance.From the impugned judgment and order passed by the High Court, itdoes not appear that the High Court took into consideration the materialDcollected during the investigation/inquiry and even the statementsrecorded. If the petition under Section 482 Cr.P.C. was at the stage ofFIR in that case the allegations in the FIR/Complaint only are requiredto be considered and whether a cognizable offence is disclosed or not isrequired to be considered. However, thereafter when the statementsEare recorded, evidence is collected and the charge-sheet is filed afterconclusion of the investigation/inquiry the matterstands on different footingand the Court is required to consider the material/evidence collectedduring the investigation. Even at this stage also, as observed and held bythis Court in catena of decisions, the High Court is not required to go intothe merits of the allegations and/or enter into the merits of the case as ifFthe High Court is exercising the appellate jurisdiction and/or conductingthe trial. As held by this Court in the case of Dineshbhai ChandubhaiPatel (Supra) in order to examine as to whether factual contents ofFIR disclose any cognizable offence or not, the High Court cannot actlike the Investigating agency nor can exercise the powers like anGAppellate Court. It is further observed and held that question is requiredto be examined keeping in view, the contents of FIR and prima faciematerial, if any, requiring no proof. At such stage, the High Court cannotappreciate evidence nor can it draw its own inferences from contents ofFIR and material relied on. It is further observed it is more so, when thematerial relied on is disputed. It is further observed that in such a situation,H

it becomes the job of the Investigating Authority at such stage to probeand then of the Court to examine questions once the charge-sheet isfiled along with such material as to how far and to what extent reliancecan be placed on such material.

9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) afterconsidering the decisions of this Court in Bhajan Lal (Supra), it is heldby this Court that exercise of powers under Section 482 Cr.P.C. to quashthe proceedings is an exception and not a rule. It is further observed thatinherent jurisdiction under Section 482 Cr.P.C. though wide is to beexercised sparingly, carefully and with caution, only when such exerciseis justified by tests specifically laid down in section itself. It is furtherobserved that appreciation of evidence is not permissible at the stage ofquashing of proceedings in exercise of powers under Section 482 Cr.P.C.Similar view has been expressed by this Court in the case of ArvindKhanna (Supra), Managipet (Supra) and in the case of XYZ (Supra),referred to hereinabove.

9.3 Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, we are of the opinion that theHigh Court has exceeded its jurisdiction in quashing the criminalproceedings in exercise of powers under Section 482 Cr.P.C.

10. The High Court has failed to appreciate and consider the factthat there are very serious triable issues/allegations which are requiredto be gone into and considered at the time of trial. The High Court haslost sight of crucial aspects which have emerged during the course ofthe investigation. The High Court has failed to appreciate and considerthe fact that the document i.e. a joint notarized affidavit of Mamta Gupta– Accused No.2 and Munni Devi under which according to Accusedno.2 - Ms. Mamta Gupta, Rs. 25 lakhs was paid and the possession wastransferred to her itself is seriously disputed. It is required to be notedthat in the registered agreement to sell dated 27.10.2010, the saleconsideration is stated to be Rs. 25 lakhs and with no reference to paymentof Rs. 25 lakhs to Ms. Munni Devi and no reference to handing over thepossession. However, in the joint notarized affidavit of the same datei.e., 27.10.2010 sale consideration is stated to be Rs. 35 lakhs out ofwhich Rs. 25 lakhs is alleged to have been paid and there is a referenceto transfer of possession to Accused No.2. Whether Rs. 25 lakhs hasbeen paid or not the accused have to establish during the trial, becausethe accused are relying upon the said document and payment of Rs. 25

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Alakhs as mentioned in the joint notarized affidavit dated 27.10.2010. It isalso required to be considered that the first agreement to sell in whichRs. 25 lakhs is stated to be sale consideration and there is reference tothe payment of Rs.10 lakhs by cheques. It is a registered document.The aforesaid are all triable issues/allegations which are required to beconsidered at the time of trial. The High Court has failed to notice and/Bor consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that nocase is made out for the offence under Section 406 IPC is concerned, itis to be noted that the High Court itself has noted that the joint notarizedaffidavit dated 27.10.2010 is seriously disputed, however as per the HighCCourt the same is required to be considered in the civil proceedings.There the High Court has committed an error. Even the High Court hasfailed to notice that another FIR has been lodged against the accusedfor the offences under Sections 467, 468, 471 IPC with respect to thesaid alleged joint notarized affidavit. Even according to the accused theDpossession was handed over to them. However, when the payment ofRs. 25 lakhs as mentioned in the joint notarized affidavit is seriouslydisputed and even one of the cheques out of 5 cheques each ofRs. 2 lakhs was dishonoured and according to the accused they werehanded over the possession (which is seriously disputed) it can be saidto be entrustment of property. Therefore, at this stage to opine that noEcase is made out for the offence under Section 406 IPC is prematureand the aforesaid aspect is to be considered during trial. It is also requiredto be noted that the first suit was filed by Munni Devi and thereaftersubsequent suit came to be filed by the accused and that too for permanentinjunction only. Nothing is on record that any suit for specific performance Fhas been filed. Be that as it may, all the aforesaid aspects are required tobe considered at the time of trial only. Therefore, the High Court hasgrossly erred in quashing the criminal proceedings by entering into themerits of the allegations as if the High Court was exercising the appellatejurisdiction and/or conducting the trial. The High Court has exceeded itsjurisdiction in quashing the criminal proceedings in exercise of powersGunder Section 482 Cr.P.C.

12. Even the High Court has erred in observing that originalcomplaint has no locus. The aforesaid observation is made on the premisethat the complainant has not placed on record the power of attorneyalong with the counter filed before the High Court. However, when it isH

specifically stated in the FIR that Munni Devi has executed the powerof attorney and thereafter the Investigating Officer has conducted theinvestigation and has recorded the statement of the complainant, accusedand the independent witnesses, thereafter whether the complainant ishaving the power of attorney or not is to be considered during trial.

13. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court quashing thecriminal proceedings in exercise of powers under Section 482 Cr.P.C. isunsustainable and the same deserves to be quashed and set aside and isaccordingly quashed and set aside. Now, the trial to be conducted andproceeded further in accordance with law and on its own merits. It ismade clear that the observations made by this Court in the presentproceedings are to be treated to be confined to the proceedings underSection 482 Cr.P.C. only and the trial Court to decide the case inaccordance with law and on its own merits and on the basis of theevidence to be laid and without being influenced by any of the observationsmade by us hereinabove. The present appeal is accordingly allowed.

Nidhi Jain

Appeal allowed.

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