Supreme Court of India
DEVENDRA &ORS.versusSTATE OF U.P. & ANR.
- Citation
- 2009 INSC 738
- Decided
- 6 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The execution of a sale deed by co‑sharers, absent any fraudulent misrepresentation or false document, does not constitute cheating or forgery, and therefore the criminal proceedings must be quashed; res judicata does not apply in criminal matters.
Summary
The appeal arose from a civil dispute among co‑sharers over the extent of their shares in a joint family property. Two co‑sharers sold a portion of the property to third parties, prompting the remaining co‑sharer to file a suit for cancellation of the sale deed and a criminal complaint alleging cheating and forgery under IPC ss. 420, 467, 468 and 469. The High Court dismissed applications to quash the FIR and the subsequent order of cognizance by the Chief Judicial Magistrate. The Supreme Court held that the execution of the sale deed, without any misrepresentation or false document, did not constitute cheating or forgery; consequently the criminal proceedings should be quashed under s. 482 CrPC. The Court also ruled that the principle of res judicata does not apply to criminal proceedings and that a FIR can be quashed only when the allegations, even if taken at face value, do not disclose a cognizable offence. The appeal was allowed, directing the quashing of the criminal proceedings.
Issues considered
- Whether a civil dispute concerning share entitlement can give rise to a criminal prosecution under IPC ss. 420, 467, 468 and 469.
- Whether execution of a sale deed by co‑sharers, without misrepresentation, amounts to cheating or forgery.
- Whether the principle of res judicata applies to criminal proceedings.
- Whether the High Court was justified in refusing to quash the FIR and the order of cognizance under s. 482 CrPC.
Legislation cited
- Code of Civil Procedure, 1908s. 11, s. 9 Rule 13
- Code of Criminal Procedure, 1973s. 144, s. 145, s. 151, s. 482, s. 483
- Indian Penal Code, 1860s. 420, s. 463, s. 464, s. 467, s. 468, s. 469
Subjects
civil disputecriminal proceedingcheatingforgeryres judicataSection 482 CrPCinherent jurisdictionco‑sharerssale deedpartition suit
Judgment
[2009] 7 S. C.R. 872
A DEVENDRA &·ORS. ..
v.
STATE OF U.P. & ANR.
Criminal Appeal No. 940 of 2009 ..
MAY 6, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Penal Code, 1860 - ss. 420, 467, 468 and 469 - Civil
litigation between co-sharers regarding extent of their shares
•
c
- One of the parties selling a portion of the suit property to
third party - Other litigating party filing complaint alleging
cheating and forgery- FIR lodged - Petition for quashing FIR
dismissed - After investigation cognizance of the offences
-
•
taken by Magistrate - Petition for quashing the criminal
proceedings dismissed - On appeal, held: Execution of sale
D deed of the property claiming title to which the vendor was not
entitled, would not, on facts, amount to cheating or forgery -
Proceedings were liable to be quashed - Code of Criminal
Procedure, 1973 - s. 482.
Res Judicata - Applicability of - Held: The principle of
E res judicata is not applicable in criminal proceedings - Code
of Civil Procedure, 1908 - s.11
During pendency of a litigation between the co-
sharers, regarding extent of their respective shares, two
F of the co-sharers (Appellant Nos.1 & 2) sold a portion of
)
--
the property to a third party. The other co-sharer
(respondent No.2) filed a suit seeking cancellation of the
sale deed, which is still pending.
Thereafter respondent No. 2 filed a complaint as a
G result thereof FIR was lodged. Appellants' application for
quashing the FIR was dismissed by High Court. After
investigation, chargesheet was filed against them and
CJM took cognizance of the offences ulss. 420, 467, 468
H 872
DEVENDRA & ORS. V STATE OF U.P. & ANR. 873
... and 469 IPC. Appellants' another application challenging A
the order of CJM wad dismissed by High Court. Hence
the present appeal.
Allowing the appeal, the Court
HELD: 1. A distinction must be made between a civil B
wrong and a criminal wrong. When dispute between the
parties constitute only a civil wrong and not a criminal
wrong, the courts would not permit a person to be
harassed although no case for taking cognizance of the
offence has been made out. [Para 29] [887-C-D] c
2. In the instant case, it is not correct to say that by
reason of execution of a deed of sale claiming title over
the property to which the appellants were not entitled to,
the complainant-respondent had been cheated.
Appellants had not made any representation to the D
complainant. No contract and/ or transaction had been
entered into by and between the complainant and the
appellants. [Para 21] [881-D-E]
V Y Jose v State of Gujarat and Anr. (2009) 3 SCC 78 - E
referred to.
3. A misrepresentation from the very beginning is a
-· sine qua non for constitution of an offence of cheating,
although in some cases, an intention to cheat may develop
at a later stage of formation of the contract. [Para 22] [882-E] F
Hridaya Ranjan Prasad Verma and Ors. v State of Bihar
and Anr. (2000) 4 SCC 168; Indian Oil Corporation v. NEPC
India Ltd. and Ors. (2006) 6 SCC 736; Veer Prakash Sharma
v. Anil Kumar Agarwal and Anr. 2007 (9) SCALE 502; VY Jose
v. State of Gujarat and Anr. (2009) 3 SCC 78; Ravindra Kumar G
Madhanlal Goenka and Anr. v. Mis. Rugmini Ram Raghav
Spinners and Anr. 2009 (6) SCALE 162 - referred to.
4. Making of any false document, in view of the
definition of 'forgery' is the sine qua non therefor. What H
874 SUPREME COURT REPORTS [2009] 7 S.C.R.
A would amount to making of a false document is specified ..
in Section 464 IPC. What is, therefore, necessary is to
execute a document with the intention of causing it to be
believed that such document inter alia was made by the
authority of a person by whom or by whose authority he
B knows that it was not made. Appellants are the owners of
the property. They have executed a sale deed. Execution
of the deed of sale is not denied. If somebody is aggrieved
by the false assertions made in the said sale deed, he
would be the vendees and not the co-sharers. Appellants "'
have not been alleged to be guilty of creating any false
c document. [Paras 23 and 24] [883-G-H; 884-A-D]
!
5. The High Court ordinarily would exercise its
jurisdiction u/s. 482 Cr.P.C., if the allegations made in the
First Information Report, even if given face value and taken
D to be correct in their entirety, do not make out any offence.
When the allegations made in the First Information Report
or the evidences collected during investigation do not
satisfy the ingredients of an offence, the superior courts
would not encourage harassment of a person in a criminal
court for nothing. [Para 26] [886-E-F]
E
6. The High Court has refused to quash a First
Information Report as a different standard therefor was ~
required to be applied. However, when materials are
collected and a chargesheet is filed on the basis whereof
F the Magistrate takes cognizance of the offence, the same
would give rise to a new cause of action. An order taking
cognizance of an offence on the basis of a chargesheet
filed by the investigating officer and/ or directing issuance
of summons on a complaint petition, indisputably, would
attract the provisions of Section 482 Cr.P.C. if a case
G has been made out for invocation thereof. [Para 28]
[887-A-B]
7. It is not correct to contend that the earlier order of
the High Court would operate as res judicata. The principle
H of res judicata has no application in a criminal proceeding.
DEVENDRA & ORS. V. STATE OF U.P. & ANR. 875
The principles of res judicata as adumbrated in Section A
11 CPC or the general principles thereof will have no
application in a case of this nature. [Para 27] [886-G-H]
8. In a given case a civil suit as also a criminal
proceeding would be maintainable. They can run
simultaneously. Result in one proceeding would not be B
binding on the court determining the issue before it in
another proceeding. [Para 20] [880-H; 881-A]
P Swaroopa Rani v. M. Hari Narayana@ Hari Babu AIR
2008 SC 1884 : (2008) 5 sec 765 - relied on.
c
Seth Ramdayal Jat v. Laxmi Prasad 2009 (5) SCALE
527 - referred to.
9. If the appellant Nos. 1 and 2 had executed a deed
of sale in favour of a third party stating that they have one-
third share over the entire properties, the same would not D
be binding on the complainant-respondent. If any cause
of action arose by reason of a threat of dispossession at
the hands of the co-sharer or at the hands of the third-
party, recourse to legal action could always be taken. Even
for that purpose, a proceeding u/ss. Sections 144 and 145 E
Cr.P.C. would be maintainable. The decision of a criminal
court in a case of this nature would not be binding on the
civil court. [Para 18] [880-C-E]
Shanti Kumar Panda v. Shakuntala Devi (2004) 1 SCC
438 - relied on. F
Trisuns Chemical Industry v. Rajesh Agarwal and Ors.
(1999) 8 SCC 686; Kamaladevi Agarwal v. State of WB. and
Ors. (2002) 1 SCC 555 - referred to.
10. In a case of this nature where no case has been G
made out for taking cognizance of an offence under Section
420 IPC, it was obligatory on the part of the Chief Judicial
Magistrate to app·ly his mind to the contents of the
chargesheet. Such application of mind on his part should
have been reflected from the order. [Para 30] [887-E] H
876 SUPREME COURT REPORTS [2009] 7 S.C.R.
A State of Karnataka and Anr. v. Pastor P Raju (2006) 6 ..
SCC 728; Pawan Kumar Sharma v. State of Uttaranchal,
Criminal Appeal No. 1692 of 2007 - referred to.
Case Law Reference
B (2004) 1 sec 438 Relied on. Para 19
AIR 2008 SC 1884 Relied on. Para 20
2009 (5) SCALE 527 Referred to. Para 20
(2009) 3 sec 78 Referred to. Para 22 "
c '
-L..o--.
(2000) 4 sec 168 Referred to. Para 22
(2006) 6 sec 736 Referred to. Para 22
2007 (9) SCALE 50 Referred to. Para 22
D 2009 (6) SCALE 162 Referred to. Para 22
(1999) 8 sec 686 Referred to. Para 25
(2002) 1 sec 555 Referred to. Para 25
(2006) 6 sec 128 Referred to. Para 30
E
1692 of 2007 Referred to. Para 30
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 940 of 2009
)
F From the Judgement and Order dated 21.01.2008 passed
by the Hon'ble High Court of Judicature at Allahabad in Criminal
Misc. Appeal No. 8339 of 2006.
S. R. Singh, Archana Singh, Abhisth Kumar, for the
Appellant.
G
Ratnakar Das, Savitri Pandey, Rajeev Kumar, Kamlendra
Mishra, Mona Rajvanshi, Anurag Kashyap, Kamaldeep, for the ~
Respondent.
The Judgement of the Court was delivered by
H
DEVENDRA & ORS. V STATE OF UP. & ANR. 877
5.8. SINHA, J : A
1. Leave granted.
2. Whether a pure civil dispute can be a subject matter of
a criminal proceeding under Sections 420, 467, 468 and 469
of the Indian Penal Code is the question involved herein. B
It arises in the following factual matrix:
3. The parties are co-sharers. The genealogical tree of
" the family is as under:
SOLHU c
<
Girdhar Naraina . Gabru
(Died issueless) (Died issueless)
Saha ram Nanak Chattar Pal Jai Chand·
(Died) (Died)
D
'
Devendra Rajendra Phool Ompal Janter Smt.
Singh Munni .___ ___,,....__.....
4. Solhu had five sons, viz., Girdhar, Naraina Gabru, Roopa E
and Harikesh. Appellant Nos. 1 and 2 are grand sons of Girdhar.
Indisputably, Gabru died issueless. According to the appellants,
the share of Naraina in the joint family, who died issueless,
devolved upon among the three surviving brothers, viz., Girdhar,
Roopa and Harikesh. However, according to the respondent
No. 2, the share of Naraina devolved upon Rupa and Harikesh. F
5. On or about 17.03.1982, Gullu, son of Harikesh filed a
suit for partition of his 1/3'd share before the Additional Sub
Divisional Officer, Pargana being Suit No. 135 of 1982. By an
order dated 24.11.1983, the said suit was decreed, stating: .
G
"1. Plaintiff Gullu has % share in disputed land.
2. Share of defendant Devendra and Rajendra is y..th in
disputed land.
3. Share of defendants Jai Singh, ChatarPal,
Nanakchand and Jaichand is Yi in disputed land." H
878 SUPREME COURT REPORTS [2009] 7 S.C.R.
A 6. Gullu filed an appeal thereagainst before the
Commissioner, Meerut Division. By an order dated 19.03.1984,
1
the said decree was modified opining that 3/8 h share in the
joint family belonged to sons of Roopa, viz., Jai Singh, Chatar
Pal, Nanakchand and Jaichand. Aggrieved by the said order,
B Jai Singh, son of Roopa, filed an appeal before the Board of
Revenue, which by an order dated 21.10.1985 set aside the
order dated 19.03.1984 passed by the Additional
Commissioner and affirmed the order of the Additional Sub-
Divisional Officer dated 24.11.1983.
C 7. Aggrieved thereby, Gullu filed a Civil Misc. Writ Petition
bearing No. 17667 of 1985 before the High Court wherein the
appellant Nos. 1 and 2 were not impleaded. The High Court by
its order dated 7.11.1985, while issuing notice, stayed the
operation of the order dated 21.10.1985 passed by the Board
D of Revenue. ·
.l
8. On or about 22.08.1997, a sale deed was executed by
the appellant Nos. 1 and 2 in favour of the appellant Nos. 3 and 4.
9. On 24.08.2005, a suit was filed by the respondent No. 2
E and others for cancelling the aforesaid deed of sale dated
22.08.1997, which was registered as Civil Suit No. 382 of 2005.
The said suit is still pending in the Court of Learned Civil Judge
(Junior Div.) Ghaziabad. In the said suit, however, it was averred
that Solhu had four sons whereas in the suit No. 135of1982, it
F was stated that Solhu had five sons.
10. Appellants filed an application under Order 9 Rule 13
read with Section 151 of the Code of Civil Procedure before
the Court of Deputy District Magistrate (First Class) Ghaziabad
praying for dismissal of the suit No. 135 of 1982. An application
G for impleadment was also filed by the appellants in Civil Misc.
Writ Petition No. 17669 of 1985.
11. On or about 21.09.2005, the respondent No. 2 filed an
application in the Police Station, Kavinagar, Ghaziabad wherein
H the City Magistrate by an order dated 17.09.2005 passed an
DEVENDRA & ORS. V STATE OF U.P. & ANR. 879
[S.B. SINHA, J.]
order to hear the complainant and register a First Information A
Report. Thereafter, the respondent No. 2 filed a First Information
Report in the Police Station, Sahni Gate on 21.09.2005.
12. Appellants filed an application for quashing the said
First Information Report before the High Court. It was marked
as Criminal Misc. Writ Petition No. 10568 of 2005. By an order 8
dated 17.10.2005, the High Court, while dismissing the said
application, directed: ,;
"5. The investigating officer will make all possible efforts
to conclude the investigation within three months of the c
date on which a certified order of this order is served
upon him."
The investigation was thereafter taken up. A chargesheet
was submitted before the learned Chief Judicial Magistrate. ,
D
13. The learned Chief Judicial Magistrate by an order
• dated 20.02.2006 took cognizance of the offence. No reason
was assigned in support thereof.
14. Questioning the legality of the said order, the appellants
filed another application under Section 482. of the Code of E
Criminal Procedure, which by reason of the impugned judgment,
has been dismissed.
15. Mr. S.R. Singh, learned senior counsel appearing on
behalf of the appellants would submit:
F
(i) The learned Chief Judicial Magistrate having not
assigned any reason while taking cognizance of the
offence, the High Court should have held that the
same suffered from total non-application of mind.
(ii) Having regard to the question as to whether the G
appellants have one-third or one-fourth share and a
civil suit being pending, the order dated 17.10.2005
could not be sustained.
16. Mr. Ratnakar Das, learned senior counsel appearing H
880 SUPREME COURT REPORTS [2009] 7 S.C.R.
A on behalf of the respondent - State, on the other hand, would
submit that having regard to the provisions contained in Section
463 of the Indian Penal Code, an offence for commission of
forgery must be held to have been made out.
The learned counsel appearing on behalf of the
B complainant also supported the impugned order.
17. The fact that the appellants are co-sharers is not in
dispute. The dispute between them is confined to the extent of
their respective shares. It must be determined only in a civil suit.
'
c 18. If the appellant Nos. 1 and 2 had executed a deed of
sale in favour of a third party stating that they have one-third
share over the entire properties, the same would not be binding
on the complainant - respondent. If any cause of action arose
by reason of a threat of dispossession at the hands of the co-
D sharer or at the hands of the third-party, as was contended,
recourse to legal action could always be taken. Even for that
purpose, a proceeding under Sections 144 and 145 of the Code
of Criminal Procedure would be maintainable. The decision of
a criminal court in a case of this nature would not be binding on
E the civil court.
19. In Shanti Kumar Panda v. Shakuntala Devi [(2004) 1
SCC 438], this Court held:
"(3) A decision by a criminal court does not bind the civil
court while a decision by the civil court binds the criminal ....
F
court. An order passed by the Executive Magistrate in
proceedings under Sections 145/146 of the Code is an
order by a criminal court and that too based on a summary
enquiry. The order is entitled to respect and wait before
the competent court at the interlocutory stage. At the stage
G
of final adjudication of rights, which would be on the
evidence adduced before the court, the order of the
Magistrate is only one out of several pieces of evidence." ••
20. There cannot, however, be any doubt or dispute
H whatsoever that in a given case a civil suit as also a criminal
DEVENDRA & ORS. V STATE OF U.P. & ANR. 881
[S.B. SINHA, J.]
proceeding would be maintainable. They can run simultaneously. A
Result in one proceeding would not be binding on the court
determining the issue before it in another proceeding.
In P Swaroopa Rani v. M Hari Narayana @ Hari Babu~
[AIR 2008 SC 1884 ': (2008) 5 SCC 765], the law was stated,
thus: B
"13. It is, however, well-settled that in a given case, civil
proceedings and criminal proceedings can proceed
simultaneously. Whether ciyi_I proceedings or criminal
proceedings shall be stayed depends upon the fact and c
circumstances of each case."
[See also Seth Ramdayal Jat v. Laxmi Prasad, 2009 (5)
SCALE 527]
21. It was, however, submitted that by reason of execution
0
of a deed of sale claiming title over the property to which the
appellants were not entitled to, the complainant - respondent
had been cheated. It is difficult to accept the said contention.
Appellants had not made any representation to the respondent
No. 2. No contract and/ or transaction had been entered into by E
· and between the complainant and the appellants.
22. 'Cheating' has been defined in Section 415 of the Indian
Penal Code to mean:
"Cheating- Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived F
to deliver any property to any person, or to consent that
any person shall retain any property, or intentionally induces
the person so deceived to do or omit to. do anything which
he would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause damage G
or harm to that person in body, mind, reputation or property,
is said to 'cheat'."
In VY Jose v. State of Gujarat and Anr. [(2009) 3 SCC
78], this Court opined:
H
882 SUPREME COURT REPORTS [2009] 7 S.C.R.
A "An offence of cheating cannot be said to have been made
out unless the following ingredients are satisfied:
i) deception of a person either by making a false or
misleading representation or by other action or omission;
B (ii) fraudulently or dishonestly inducing any person to
deliver any property; or
(iii) To consent that any person shall retain any property
and finally intentionally inducing that person to do or omit
to do anything which he would not do or omit.
c
12. For the purpose of constituting an offence of cheating,
the complainant is required to show that the accused had
fraudulent or dishonest intention at the time of making
promise or representation. Even in a case where
allegations are made in regard to failure on the part of the
D
accused to keep his promise, in absence of a culpable
intention at the time of making initial promise being absent,
no offence under Section 420 of the Indian Penal Code
can be said to have been made out."
E It is, therefore, evident that a misrepresentation from the
very beginning is a sine qua non for constitution of an offence of
cheating, although in some cases, an intention to cheat may
develop at a later stage of formation of the contract.
In Hridaya Ranjan Prasad Verma and Ors. v. State of
F Bihar and Anr. ((2000) 4 SCC 168], this Court held:
"14. On a reading of the section it is manifest that in the
definition there are set forth two separate classes of acts
which the person deceived may be induced to do. In the
G first place he may be induced fraudulently or dishonestly
to deliver any property to any person. The second class of
acts set forth in the section is the doing or omitting to do
anything which the person deceived would not do or omit
to do if he were not so deceived. In the first class of cases
the inducing must be fraudulent or dishonest. In the second
H
DEVENDRA & ORS. V. STATE OF U.P. & ANR. 883
[S.B. SINHA, J.]
" class of acts, the inducing must be intentional but not A
fraudulent or dishonest.
15. In determining the question it has to be kept in mind that
the distinction between mere breach of contract and the
offence of cheating is a fine one. It depends upon the
intention of the accused at the time to inducement which B
may be judged by his subsequent conduct but for this
subsequent conduct is not the sole test. Mere breach of
contract cannot give rise to criminal prosecution for cheating
unless fraudulent or dishonest intention is shown right at the
beginning of the transaction, that is the time when the offence c
is said to have been committed. Therefore it is the intention
which is the gist of the offence. To hold a person guilty of
cheating it is necessary to show that he had fraudulent or
dishonest intention at the time of making the promise. From
his mere failure to keep up promise subsequently such a
culpable intention right at the beginning, that is, when he D
made the promise cannot be presumed."
[See also Indian Oil Corporation v. NEPC India Ltd. and
Ors. (2006) 6 SCC 736, Veer_Prakash Sharmq_ v. Anil Kumar
Agarwal and Anr. 2007 (9) SCALE 502, VY Jose (supra) and
Ravindra Kumar Madhanlal Goenka & Anr. v. Mis. Rugmini E
Ram Raghav Spinners & Anr. 2009 (6) SCALE 162]
23. Section 463 of the Indian Penal Code reads as under:
"Forgery
Whoever makes any false documents or false electronic F
record or part of a document or electronic record with
intent to cause damage or injury, to the public or to any
person, or to support any claim or title, o~ to cause any
person to part with property, or to enter into any express
or implied contract, or with intent to commit fraud or that G
fraud may be committed, commits forgery."
..,
According to Mr. Das, making of a false document so as
to support any claim over title would constitute forgery within the
- meaning of the said provision and as a document was created
for the purpose of showing one-third share in the joint property H
884 SUPREME COURT REPORTS [2009) 7 S.C.R.
A by the appellants although they were not entitled to therefor, they
must be held to have committed an offence.
M.aking of any false document, in view of the definition of
'forgery' is the sine qua non therefor. What would amount to
making of a false document is specified in Section 464 thereof.
B What is, therefore, necessary is to execute a document
with the intention of causing it to be believed that such document
inter alia was made by the authority of a person by whom or by
whose authority he knows that it was not made.
24. Appellants are the owners of the property. They have
C executed a sale deed. Execution of the deed of sale is not denied.
If somebody is aggrieved by the false assertions made in the
said sale deed, he would be the vendees and not the co-sharers.
Appellants have not been alleged to be guilty of creating
any false document. -f
D
25. Reliance has been placed by Mr. Das on Trisuns
Chemical Industry v. Rajesh Agarwal and Others [(1999) 8
sec 686] wherein this Court held that quashing of a complaint
should be limited to very extreme situations. There is no dispute
E with regard to the legal position.
Reliance has also been placed on Kamaladevi Agarwal v.
StateofWB. and Others [(2002) 1 SCC 555] wherein this Court held:
"9. Criminal prosecution cannot be thwarted at the initial
stage merely because civil proceedings are also pending ...
F 15. We have already noticed that the nature and scope of
civil and criminal proceedings and the standard of proof
required in both matters is different and distinct. Whereas in
civil proceedings the matter can be decided on the basis of
~
probabilities, the criminal case has to be decided by adopting
G the standard of proof of "beyond reasonable doubt" ...
17 ... We are also not impressed by the argument that as
the civil suit was pending in the High Court, the Magistrate
was not justified to proceed with the criminal case either
in law or on the basis of propriety. Criminal cases have to
H be proceeded with in accordance with the procedure as
DEVENDRA & ORS. V STATE OF U.P. & ANR. 885
- i
[S.B. SINHA, J.]
prescribed under the Code of Criminal Procedure and A
the pendency of a civil action in a different court even
though higher in status and authority, cannot be made a
basis for quashing of the proceedings.
7. This Court has consistently held that the revisional or
inherent powers of quashing the proceedings at the initial B
stage should be exercised sparingly and only where the
allegations made in the complaint or the FIR, even iftaken
at 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
c
exercise of the jurisdiction."
• We may, however, notice that the said decision has been
considered recently by this Court in Mahesh Choudhary v. State
of Rajasthan &Anr. [2009 (4) sec 66] wherein it was noticed:
"Recently in R. Kalyani v. Janak C. Mehta and Ors. 2008 (14) D
SCALE 85, this Court laid down the law in the following terms:
9. Propositions of law which emerge from the said
decisions are:
(1) The High Court ordinarily would not exercise its inherent
jurisdiction to quash a criminal proceeding and, in E
particular, a First Information Report unless the allegations
contained therein, even if given face value and taken to be
.. correct in their entirety, disclosed no cognizable offence .
... "" (2) For the said purpose, the Court, save and except in
F
very exceptional circumstances, would not look to any
document relied upon by the defence.
(3) Such a power should be exercised very sparingly. ff the
~--:~· allegations made in the FIR disclose commission of an
offence, the court shall not go beyond the same and pass
G
an order in favour of the accused to hold absence of any
mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by
itself may not be a ground to hold that the criminal
proceedings should not be allowed to continue.
H
886 SUPREME COURT REPORTS [2009] 7 S. C.R.
A 10. It is furthermore well known that no hard and fast rule
can be laid down. Each case has to be considered on its
own merits. The Court, while exercising its inherent
jurisdiction, although would not interfere with a genuine
complaint keeping in view the purport and object for which
B the provisions of Sections 482 and 483 of the Code of
Criminal Procedure had been introduced by the Parliament
but would not hesitate to exercise its jurisdiction in
appropriate cases. One of the paramount duties of the
Superior Courts is to see that a person who is apparently ·•
innocent is not subjected to persecution and humiliation
c
-
on the basis of a false and wholly untenable complaint.
16. The charge-sheet, in our opinion, prima facie discloses
commission of offences. A fair investigation was carried
out by the Investigating Officer. The charge-sheet is a
detailed one. If an order of cognizance has been passed
D relying on or on the basis thereof by the learned Magistrate,
in our opinion, no exception thereto can be taken. We, therefore,
do not find any legal infirmity in the impugned orders."
26. There is no dispute with regard to the aforementioned
propositions of law. However, it is now well-settled that the
E
High Court ordinarily would exercise its jurisdiction under
Section 482 of the Code of Criminal Procedure if the
allegations made in the First Information Report, even if
given face value and taken to be correct in their entirety, ..
F
do not make out any offence. When the allegations made
in the First Information Report or the evidences collected
"' ...
during investigation do not satisfy the ingredients of an
offence, the superior courts would not encourage
harassment of a person in a criminal court for nothing.
27. Mr. Das, furthermore, would contend that the order of
G the High Court dated 17.10.2005 would operate as res judicata.
With respect, we cannot subscribe to the said view. The principle
of res judicata has no application in a criminal proceeding. The
principles of res judicata as adumbrated in Section 11 of the
Code of Civil Procedure or the general principles thereof will
H have no application in a case of this nature.
DEVENDRA & ORS. V STATE OF U.P. & ANR. 887
[S.B. SINHA, J]
28. The High Court has refused to quash a First Information A
Report as a different standard therefor was required to be applied.
However, when materials are collected and a chargesheet is filed
on the basis whereof the Magistrate takes cognizance of the
offence, the same would give rise to a new cause of action. An
order taking cognizance of an offence on the basis of a B
chargesheet filed by the investigating officer and/ or directing
issuance of summons on a complaint petition, indisputably, would
attract the provisions of Section 482 of the Code of Criminal
Procedure if a case has been made out for invocation thereof.
29. Mr. Das submits thata wrong committed on the part of a c
~ person may be a civil wrong or a criminal wrong although an act
of omission or commission on the part of a person may give rise to
both civil action and criminal action. A distinction must be made
between a civil wrong and a criminal wrong. When dispute between
the parties constitute only a civil wrong and not a criminal wrong, D
the courts would not permit a person to be harassed although no
case for taking cognizance of the offence has been made out.
30. Furthermore, in a case of this nature where even, accor-
ding to Mr. Das, no case has been made out for taking cognizance
- ...
of an offence under Section 420 of the Indian Penal Code, it was
obligatory on the part of the learned Chief Judicial Magistrate to
apply his mind to the contents of the chargesheet. Such appli-
cation of mind on his part should have been reflected from the order.
[See State of Karnataka and Anr. v. Pastor P Raju (2006) 6 SCC
E
728 and Pawan Kumar Sharma v. State of 1
Uttarancha/, Criminal
Appeal No. 1692 of 2007 decided on 10 h December, 2007] F
31. We, however, must place on record that we have not
entered into the merit of the dispute as the civil suit is pending.
The same has to be determined in accordance with law. We
would request the court concerned to consider the desirability
of the disposing of civil suit as expeditiously as possible.
32. The appeal is allowed with the aforementioned directions.
K.K.T. Appeal allowed.
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