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CASE NO.: Appeal (crl.) 1127  of  2000 Special Leave Petition (crl.)   701      of  2000

PETITIONER: LALMUNI DEVI

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       15/12/2000

BENCH: M.B.Shah,S.N.Variava

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T S.  N.  VARIAVA, J.

     Leave  granted.  This Appeal is against an Order dated 10th  November,  1999  by  which, in  an  Application  under Section  482  of the Code of Criminal Procedure, a  criminal complaint  has been quashed on the ground that the complaint spelled  out  civil  wrong and continuance of  the  criminal prosecution  would be an abuse of process of the court.  The complaint  was that Respondents 2 to 10 had fraudulently got the  father  of the Complainant to execute a gift deed.   On the  basis of this complaint the Magistrate held an  enquiry under  Section  202  of the Code of Criminal  Procedure  and dismissed  the  complaint under Section 203 of the  Code  of Criminal  Procedure.  As against the Order of dismissal  the Appellant  went in Revision.  The learned Sessions Judge set aside  the Order of dismissal and remanded the case back  to the  Magistrate.   On  such  remand  the  Magistrate  issued process  against  Respondents  2 to 10 to face  trial  under Sections  419, 420, 467 and 120 B of the Indian Penal  Code. Respondents  2 to 10 then filed a Petition under Section 482@@                                                          JJJ of  the  Code  of  Criminal   Procedure  for  quashing   the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ complaint.   By  the impugned Order the complaint  has  been quashed  on the ground, as set out above, that the complaint spelled  out a civil wrong and, therefore continuance of the criminal  prosecution  would be an abuse of process  of  the court.   Mr.   Sinha submitted that the impugned  Order  was unsustainable.   He  submitted that facts make out  a  civil wrong  as  well as a criminal liability.  He submitted  that merely  because civil action can be taken does not mean that a criminal complaint is not maintainable.  In support of his submission  he  relied  upon the case  of  Trisuns  Chemical Industry  v.   Rajesh Agarwal and Ors.  reported in JT  1999 (6) SC 618.  In this case, the agreement between the parties contained  an  Arbitration  clause.  This  Court  held  that merely  because the dispute could be referred to arbitration it   was  not  an  effective   substitute  for  a   criminal prosecution  when the act also made out an offence.  On  the other  hand, Mr.  Singh submitted that the alleged acts have@@

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                                                  JJJJJJJJJ made  out no case for taking cognizance.  He submitted  that@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ at  the highest the remedy would lie in a Civil Court  only. He  relied upon the cases of State of Haryana v.  Bhajan Lal reported in 1992 Supp (1) SCC 335 and Mr.  K.  Ramakrishna & Ors.   v.  State of Bihar & Anr.  reported in JT 2000 (Supp. 1) SC 53, In these cases it is held that inherent powers can be  exercised  to quash proceedings to prevent abuse of  the process  of law and to secure ends of justice.  It has  been held that where the allegations in the FIR do not constitute the alleged offence or where the offence is not disclosed in the  complaint or the FIR the frivolous criminal  litigation could  be  quashed.   There  could  be  no  dispute  to  the proposition  that  if  the complaint does not  make  out  an offence  it can be quashed.  However, it is also settled law that facts may give rise to a civil claim and also amount to an  offence.   Merely because a civil claim is  maintainable does  not  mean  that  the   criminal  complaint  cannot  be maintained.   In  this  case,  on the facts,  it  cannot  be stated,  at this prima facie stage, that this is a frivolous complaint.   The High Court does not state that on facts  no offence  is  made  out.  If that be so, then merely  on  the ground  that  it was a civil wrong the criminal  prosecution could  not have been quashed.  In our view, the Order of the High  Court  cannot  be maintained and  is  accordingly  set aside.   The  trial Court to proceed with the  Complaint  in accordance  with  law.  The Appeal is allowed.  There  will, however, be no Order as to costs.