A civil wrong is also a criminal offence, and the mere availability of a civil remedy for the complainant cannot be used to quash a criminal proceeding. The real test is whether or not the allegations in the complaint reveal a criminal offence of cheating, which was used by Justice Anubha Rawat Choudhary of the Jharkhand High Court in the matter of Shasank Gupta versus State of Jharkhand [ Cr. M. P. No. 1097 of 2008]
This order was passed in the matter where the petition was filed for the instant criminal miscellaneous application, the petitioners seek to quash the entire criminal proceeding in connection with C.P. Case No. 1484/2007, including the order taking cognisance dated 13.2.2008 passed by learned Pawan Kumar, Judicial Magistrate, Dhanbad, whereby and whereunder cognisance was taken against the petitioners and summons were issued against them. According to the complaint petition, there were three accused: one Shiv Prasad Singh, son of late Gopi Nath Singh, and the current two petitioners. Cognisance has been granted to all three defendants.
Learned senior counsel for the petitioners submits that the accused No.-1 died on June 26, 2011, and he had filed Criminal Miscellaneous Petition No. 753 of 2008, which was withdrawn due to his death by order dated August 1, 2012.
The learned senior counsel has filed the complaint petition and has submitted that upon review of the entire complaint case, it appears that the case arises out of a civil dispute between the parties and it is alleged that there were certain monetary transactions pursuant to an agreement dated 13.11.2006 and, according to the complainant, he was placed in possession of the property along with witness No. The complainant’s complaint is that, despite the fact that the accused persons took a large sum of money, the sale deed was never carried out. He claims that after reviewing the complaint case, no criminal case can be established, and thus the entire criminal proceeding should be quashed and set aside in accordance with Section 482 of the Cr.P.C. The learned senior counsel relied heavily on the Hon’ble Supreme Court’s decision reported in (2015) 8 SCC 293.
This Court also finds that the petitioners have not annexed a copy of any of the four witnesses who were examined before the learned court below prior to the learned court below taking cognisance by the impugned order. The complaint, examination of the complainant on solemn affirmation, examination of four witnesses in support of the complaint, and the documents produced before the learned court below were all considered by the learned court below. In the absence of the four witnesses’ depositions and other materials on the record of the learned court below, this Court is unable to examine their statements.
Given the foregoing facts and the law laid down by the Hon’ble Supreme Court in the case reported in 1992 Suppl. (1) SCC 335 State of Haryana and Ors. Vs. Bhajan Lal and Ors., this Court is unwilling to interfere with the order taking cognisance and dismissing the criminal proceedings against the petitioners. As a result, the current petition is dismissed.