Section 245(2) CrPC/Sec.482 Cr.P.C. = Complaint – under Sections 406, 420, 467, 471, 323, 504, 506, 447 and 448 IPC. – the 3rd Additional Chief Judicial Magistrate, Ghaziabad found that no ground to summon the appellants for trial was made out and the complaint being devoid of merits was liable to be dismissed under Section 203 CrPC – The aforesaid order was, however, set aside in Criminal Revision preferred by Respondent No.2 by the Additional Sessions Judge, Court No.2, Ghaziabad, who by his order remanded the matter with a direction to pass fresh orders after granting an opportunity of hearing to Respondent No.2.- The appellants being aggrieved, preferred application under Section 482 CrPC in the High Court. – Said application was disposed of by the High Court observing that if the appellants moved an application under Section 245(2) CrPC the same be heard and disposed of expeditiously.-The application for discharge was rejected by the Additional Chief Judicial Magistrate, Court No.3, Ghaziabad – While so rejecting, it was observed that sufficient grounds to frame charges under Sections 420, 323 and 504 IPC were made out.- the appellant filed petition in High Court under sec.482 Cr.P.C. – However, the High Court observed that in a petition under Section 482 CrPC disputed questions of fact could not be gone into and whether the shares were purchased by the appellants or by Respondent No.2 was a matter of evidence and as such no interference was called for. The aforesaid application was thus dismissed by the High Court on 29.05.2018, which decision is presently under challenge. –
Apex court held that
To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence.
For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality.
The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false.
In such a situation, thejudicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
- Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
- Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
- Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
- Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
- If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”
In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant No.1. The material on record is absolutely clear that the acquisition was from the funds of Appellant No.1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage.
The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No.2 and Respondent No.2. If Respondent No.2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum.
We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor (supra) and are convinced that the instant case calls for interference under Section 482 CrPC.
Further, from the facts that Appellant No.1 had disowned Respondent No.2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed.
We, therefore, allow this appeal, set aside the orders passed by the Courts below and allow the application for discharge under Section 245(2) CrPC in complaint No.3804 of 2009 on the file of third Additional Chief Judicial Magistrate, Ghaziabad.