REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    940          OF 2009 [Arising out of SLP (Crl.) No. 4998 of 2008]

Devendra & Ors. …Appellant

Versus

State of U.P. & Anr. …Respondents

J U D G M E N T  

S.B. SINHA, J :   

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.   

It arises in the following factual matrix:

3. The parties are co-sharers.  The genealogical tree of the family is as  

under:

4. Solhu  had  five  sons,  viz.,  Girdhar,  Naraina  Gabru,  Roopa  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.

5. On  or  about  17.03.1982,  Gullu,  son  of  Harikesh  filed  a  suit  for  

partition  of  his  1/3rd 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:

“1. Plaintiff Gullu has ¼ share in disputed land. 2. Share of defendant Devendra and Rajendra  is ¼th in disputed land. 3. Share  of  defendants  Jai  Singh,  ChatarPal,  Nanakchand and Jaichand is ½ in disputed land.”   

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SOLHU

Girdhar Naraina

(Died issueless) Roopa Harikesh

Nanak Chattar Pal Jai Singh(Died) Saharam (Died)

Devendra Rajendra

Jai Chand  (Died)

Gabru (Died issueless)

Om PalPhool Singh Janter Bharat

SunderSmt. Munni

Gullu

6. Gullu filed an appeal thereagainst before the Commissioner, Meerut  

Division.   By  an  order  dated  19.03.1984,  the  said  decree  was  modified  

opining that 3/8th share in the joint family belonged to sons of Roopa, viz.,  

Jai  Singh, Chatar Pal,  Nanakchand and Jaichand.  Aggrieved by the said  

order, 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.

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 of Revenue.

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 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  

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Learned Civil Judge (Junior Div.) Ghaziabad.  In the said suit, however, it  

was averred that Solhu had four sons whereas in the suit No. 135 of 1982, it  

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 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 the City Magistrate by an  

order dated 17.09.2005 passed an order to hear the complainant and register  

a First Information 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 dated 17.10.2005, the High Court,  

while dismissing the said application, directed:

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“5. The  investigating  officer  will  make  all  possible  efforts  to  conclude  the  investigation  within  three  months  of  the  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.   

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 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:

(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.   

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(ii) Having regard to the question as to whether the 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 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  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.

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-sharer or at the hands of the third-party, as was contended, recourse to  

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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 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 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 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 whatsoever that 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  

binding on the court determining the issue before it in another proceeding.   

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In  P. Swaroopa Rani v.  M. Hari Narayana @ Hari Babu [AIR 2008  

SC 1884 : (2008) 5 SCC 765], the law was stated, thus :

“13.  It  is,  however,  well-settled  that  in a given case,  civil proceedings and criminal proceedings can proceed  simultaneously. Whether civil proceedings or criminal  proceedings shall be stayed depends upon the fact and  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 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  

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 to deliver any property to any person, or  to  consent  that  any  person  shall  retain  any  property,  or  intentionally  induces  the  person  so  

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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  or  harm  to  that  person  in  body,  mind, reputation or property, is said to `cheat'.”

In  V.Y. Jose v.  State of Gujarat  and Anr. [(2009) 3 SCC 78], this  

Court opined:

“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;

(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.

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 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.”

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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 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 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 class of acts, the inducing must be  intentional but not 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 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  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  

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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  made the promise cannot be presumed.”

[See also 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, V.Y. Jose (supra) and Ravindra Kumar Madhanlal Goenka &  

Anr. v. M/s. Rugmini 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  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, or 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 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 by the appellants although they were not  

entitled to therefor, they must be held to have committed an offence.

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Making 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.   

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 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.   

25. Reliance has been placed by Mr. Das on Trisuns Chemical Industry v.  

Rajesh Agarwal and Others [(1999) 8 SCC 686] wherein this Court held that  

quashing of a complaint should be limited to very extreme situations.  There  

is no dispute with regard to the legal position.

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Reliance  has also been placed on  Kamaladevi  Agarwal v.  State  of  

W.B. 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…  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  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 be proceeded  with  in  accordance  with  the  procedure  as  prescribed under the Code of Criminal Procedure  and 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 stage should be exercised  sparingly and only where the allegations made in  the complaint or the FIR, even if taken 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 exercise of the jurisdiction.”

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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) SCC 66] wherein it was noticed:

“Recently  in  R.  Kalyani  v.  Janak  C.  Mehta  and  Ors. 2008 (14) 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 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  very  exceptional  circumstances,  would  not  look  to  any  document  relied  upon  by  the  defence. (3)  Such  a  power  should  be  exercised  very  sparingly.  If  the  allegations  made  in  the  FIR  disclose commission of an offence, the court shall  not  go  beyond  the  same  and  pass  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. 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  the  

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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 have no application in a case of this nature.

28. 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 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 of the Code of Criminal Procedure if a case has  

been made out for invocation thereof.    

29. Mr. Das submits that a wrong committed on the part of a 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, the courts would not permit a person to be  

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harassed although no case for taking cognizance of the offence has been  

made out.

30. Furthermore, in a case of this nature where even, according 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  application  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  728  and  Pawan  Kumar  Sharma v.  State  of  Uttaranchal,  

Criminal Appeal No. 1692 of 2007 decided on 10th December, 2007]  

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.  

………………………….J. [S.B. Sinha]

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..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; May 06, 2009

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