Kaptan Singh vs The State of Uttar Pradesh and Others

482 Cr.P.C. quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. When the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, filed the charge-sheet before the Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. [Para 9.1][418-A-F]

1.3 The High Court failed to appreciate and consider the fact that there were very serious triable issues/allegations which were required to be gone into and considered at the time of trial. The High Court lost sight of crucial aspects which emerged during the course of the investigation. The High Court failed to appreciate and consider the fact that the document-joint notarized affidavit of Accused No. 2 and MD under which according to Accused no.2, Rs. 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. Whether Rs. 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs. 25 lakhs as mentioned in the joint notarized affidavit. It is also required to be considered that the first agreement to sell in which Rs. 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs.10 lakhs by cheques. It is a registered document. [Para 10][419-EH; 420-A-B]

1.4 As regards the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC, it is to be noted that the High Court itself noted that the joint notarized affidavit is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. The High Court committed an error. Even the High Court failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarized affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs. 25 lakhs as mentioned in the joint notarized affidavit is seriously disputed and even one of the cheques out of

5 cheques each of Rs. 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the said aspect is to be considered during trial. It is also required to be noted that the first suit was filed by MD and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. All the said aspects are required to be considered at the time of trial only. Therefore, the High Court grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. [Para 11][420-B-G]

1.5 The High Court erred in observing that original complainant has no locus. The said observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that MD has executed the power of attorney and thereafter the Investigating Officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial. [Para 12][420G-H; 421-A-B]

1.6 The impugned judgment and order passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. is unsustainable and is accordingly quashed and set aside. The trial is to be conducted and proceeded further in accordance with law and on its own merits. [Para 13][421-B-C]

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