Serial No.01
Supple List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.Petn. No.76 of 2023 Date of Decision: 22.03.2024
1.Shri. Deen Dayal Sharma
S/o(L) Chiranji Lal Sharma
Mahendru Enclave, Block-C
GT Karnal Road
P.S-Model Town Police Station
Delhi-110033.
2. Smti. Premlata Sharma
W/o Shri Deen Dayal Sharma
Mahendru Enclave, Block-C
GT Karnal Road
P.S-Model Town Police Station
Delhi-110033. :::: Petitioners.
Vs.
Smti. Anjana Sharma
W/o Shri. Ramesh Kumar Sharma
R/o Kench’s Trace, Oxford Hills,
Laban, P.S. Laban,
District East Khasi Hills,
Shillong-793004,
Meghalaya. :::: Respondent.
Coram:
B. Bhattacharjee, Judge
Hon’ble Mr. Justice
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Appearance:
For the Petitioner(s) : Mr. K. Paul, Sr. Adv. with
Mr. S. Panthi, Adv.
For the Respondent(s) : Mr. R. Choudhury, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc:
ii) Whether approved for publication Yes/No
in press:
JUDGMENT AND ORDER
The present criminal petition under Section 482 of the Cr.P.C
has been filed by the petitioners for setting aside and quashing of the
order dated 18-02-20222 passed in C.R. case No.96 (S) 2021 under
Sections 120B, 420, 406 and 418 IPC and also for quashing of the
entire C.R. case No.96 (S) 2021 pending before the Court of the
Judicial Magistrate, First Class, Shillong.
1. The petitioners herein are related as husband and wife and the
respondent is the sister-in-law of the petitioner No.1 being the wife of
the brother of the petitioner No.1.
2. The brief fact of the case is that the petitioner No.1 was
appointed as lawful Attorney by the respondent to act on her behalf in
respect of a property situated at colony Mahendru Enclave, Block-C,
J.T. Karnal Road, Area of village Malikpur Chhaoni, Delhi having
150 Sq yds out of Khasra No. 351 being holding No. C/75A by a
General Power of Attorney duly registered with the Sub-Registrar,
Shillong on 21-05-2012. The General Power of Attorney was
executed by the respondent for enabling the petitioner No.1 to deal
with the developer/contractor and other statutory authority for
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construction of a building on the understanding that the developer
would provide two flats of 3BHK at the first and fourth floor to the
respondent and the developer would take second and third floor of the
same standard. Upon completion of the construction of the building
before the Diwali festival of 2013, the petitioner No.1 along with his
family, with permission of the respondent, moved to the first floor of
the building with a condition that they would vacate the same as and
when required. The petitioner No.1 was also requested by the
respondent to look for a suitable customer for sale of the fourth floor
of the building. However, even after lapse of 4/5 years, the petitioner
No.1 failed to arrange a suitable customer as requested and also
refused to vacate the first floor of the building. The respondent being
worried made further enquiry into the matter and came to know from
her contact that the petitioner No.1 has no intention of selling the
fourth floor of the building and vacating the portion occupied by him.
3. To settle the matter, a family meeting was held on 25-12-2020
at Delhi wherein the petitioner No.1 raised certain unfounded claim
not acceptable to the respondent and also demanded Rs 1 crore from
the respondent for vacating the first floor of the building. In the said
meeting the petitioner No.1 produced certain documents which
revealed that he has sold the first floor of the building to his wife, the
petitioner No.2, by a sale agreement dated 13-09-2013 authenticated
before a Notary Public at Delhi for a consideration of Rs 8 lakhs. The
petitioner No.1 also executed an indemnity bond, a General Power of
Attorney, a possession certificate/letter, a formal money receipt and a
Special Power of Attorney, all dated 13-09-2013, in favour of the
petitioner No.2. In addition, the petitioner No.1 also sworn an
affidavit dated 13-09-2013 confirming the Special Power of Attorney
and executed a Will dated 13-09-2013 in favour of the petitioner No.2.
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Being alarmed by the deceptive activities of the petitioner No.1, the
respondent revoked the power of Attorney dated 21-05-2012 by
executing a registered deed of revocation dated 26-02-2020 at
Shillong and subsequently instituted the C.R. Case No.96(S) of 2021
under Sections 120B, 420,406 and 418 of the Indian Penal Code
against the petitioner No.1 & 2, quashing of which is sought for in this
present application.
4. Mr. K. Paul, learned Senior Counsel appearing for the petitioner
submits that the petitioner No.1 being the brother of the husband of
the respondent, has contributed immensely to the development and
any
growth of the business of the respondent’s husband without
remuneration. The husband of the respondent owes a considerable
sum of money to the petitioner No.1 in terms of his salaries and also
against the goods sent from Delhi for business expansion. The
respondent in consultation with her husband, in lieu of all the dues,
settled the property situated at Delhi by executing the General Power
of Attorney dated 21-05-2012 in favour of the petitioner No.1. He
contends that the General Power of Attorney was executed by the
respondent out of her own free will and there is nothing on record to
remotely suggest that the petitioners have ever induced her. The
learned Senior Counsel submits that the allegation made in the
complaint petition by the respondent do not fulfil the ingredients of
Sections 120B, 420,406 and 418 IPC as the General Power of
Attorney authorised the petitioner No.1 to sell the property. He further
contends that the offences alleged in the complaint, if accepted as it is,
have admittedly taken place at Delhi falling outside the territorial
jurisdiction of the Trial Court and the taking of cognizance and
issuance of process thereof by the Trial Court is without jurisdiction.
According to him, it is incumbent upon the Trial Court as per
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provision of Section 177 Cr.P.C. to first decide whether the alleged
offence has taken place within its local jurisdiction before passing any
order of issue of process. He submits that the report which was
submitted pursuant to the investigation made by the police in terms of
Section 202 Cr.P.C. also nowhere speaks of commission of any
offence by the petitioners within the local jurisdiction of the Trial
Court. He also contends that the learned Trial Court did not follow
the mandate of Section 204 Cr.P.C. and proceeded with the case
without recording any opinion as to the sufficiency of grounds for
proceedings. The learned Senior counsel by placing reliance on the
decision reported in (1992) SUPPL. (1) SCC 335, State of Haryana
and Others Vs. Bhajanlal and Others (para 102), category (3) thereof,
submits that when the allegations made in the complaint and the
evidence collected do not disclose commission of any offence, the
power of quashing should be exercised by the Courts. He also refers
to the decision of the Apex Court in (2009) CRI. L. J. 1592, Rajendra
Ramchandra Kavalekar V. State of Maharashtra & Anr. (para -13) to
contend that every offence shall ordinarily be enquired into and tried
by Court within whose local jurisdiction it was committed. On the
above, he prays for quashing of the entire proceedings initiated on the
basis of the complaint filed by the respondent.
5. On the other hand, Mr. R. Choudhury, learned counsel
appearing for the respondent, submits that the husband of the
respondent, being the elder brother, took all the care for upbringing
the petitioner No.1 right from taking care of his education and helped
the petitioner No.1 to start a business. He submits that even the
marriage between the petitioner No.1 and the petitioner No.2 was
arranged and funded by the respondent and her husband. The
petitioners, taking advantage of love and affection of the respondent
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and her husband, induced the respondent to execute the General power
of Attorney dated 21-05-2012 in respect of the property in question on
the pretext of developing it by raising structures for the benefit of the
respondent. He submits that the facts and circumstances of the case
clearly projects that the petitioners since long hatched the plan to
cheat the respondent and induced her to execute the General Power of
Attorney at Shillong in the year 2012 which the respondent could
realize only at a later stage after disclosure of the fact of transfer of the
first floor of her property by the petitioner No.1 to the petitioner No.2
in the meeting held on 25-12-2020. The learned counsel further
submits that the petitioners were bound to protect the interest of the
respondent but they did all the acts to cause wrongful loss to her in
defiance of her wishes. He contends that the act of inducement by the
petitioners and the execution of the General Power of Attorney has
taken place at Shillong, well within the local jurisdiction of the Trial
Court and hence, the taking of cognizance and issue of process by the
Trial Court cannot be faulted with. He further submits that the Trial
Court has derived its satisfaction from the statement of the respondent
and the report of the police before directing for issue of process in the
matter. The learned counsel also places reliance on para 103 of the
decision of State of Haryana and Others Vs. Bhajanlal and Others
(supra) and submits that the power of quashing a criminal proceeding
should be exercised very sparingly and that too in the rarest of rare
cases. He submits that there is no merit in the present case and the
same be dismissed.
6. A careful perusal of the complaint of the respondent in C.R.
Case No. No.96 (S) 2021 reveals that the respondent, who is the
sister-in-law of the petitioner No.1, executed a General Power of
Attorney in favour of the petitioner No.1 on 21-05-2012 at Shillong
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appointing him to be her lawful attorney in respect of her land situated
at Delhi for the purpose of facilitating the petitioner No.1 to deal with
the developer/contractor for construction of a G+4 building on her
land. The complaint also reveals that upon completion of the
construction, the first and fourth floor of the building was to be given
to the respondent and second and third floor to be retained by the
developer. However, it appears that after the completion of the
construction of the building in the year 2013, the petitioners took over
the temporary possession of the first floor of the building with the
initial consent of the respondent, which he refused to vacate even after
lapse of 4/5 years of taking over of possession. The petitioner No.1
also failed to arrange a suitable customer for the sale of fourth floor of
the building as desired by the respondent and on the contrary by
executing various documents in the year 2013, transferred the first
floor of the building in the name of the petitioner No.2. The
information derived by the respondent through her contact in Delhi
also made disclosure that the petitioner No.1 did not have any desire
to sell the fourth floor of the building. Thus, it transpires that the
entire text of the complaint, if accepted as correct, would definitely
constitute a cognizable offence as alleged by the complainant.
7. Though the petitioners herein have narrated their versions of the
fact of the case in this instant application, the same cannot be given
primacy at this stage as per the established principles of law. This
Court, at this juncture, is also not in a position to evaluate the merits
of the contention of the respective parties based on the factual aspect
of the matter. Contentions raised on behalf of the petitioners by
placing reliance on the judgment of State of Haryana and Others Vs.
Bhajanlal and Others speaks of considerations of the allegations made
in the complaint and not otherwise.
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8. Insofar as the question of issue of process by the Trial Court is
concerned, the materials on record reveals that the Trial Court had
taken into consideration the statement of the complainant and the
investigation report submitted by the police in accordance with
Section 202 Cr.P.C to derive its satisfaction before deeming it fit to
order for issuance of process in the case. Though the Trial Court has
not passed an elaborate order, but has made significant compliance of
Section 204 Cr.P.C.
9. Coming next to the question of territorial jurisdiction of the
Trial Court raised by the learned Senior Counsel, it is seen that the
General Power of Attorney dated 21-05-2012 was executed and
registered in Shillong. Whether the petitioners induced the respondent
to execute the said General Power of Attorney is a question of fact to
be decided after taking evidence in the matter. The offences alleged in
the complaint are connected to the execution of the General Power of
Attorney and hence, at this stage it cannot be said that the Trial Court
at Shillong has no territorial jurisdiction to try the matter though it
appears that the property in dispute is situated outside Shillong and a
major part of the alleged offence has also taken place outside Shillong.
The case of Rajendra Ramchandra Kavalekar V. State of Maharashtra
& Anr. (supra) relied on by the learned Senior Counsel also does not
le as it lays down that in a case
nd any support to the petitioners’ case
of commission of a large number of offences, the fact that major part
of the offence took place outside the jurisdiction of a particular Court
would be of no relevance if it is shown that a small part of the offence
was committed within the jurisdiction of the said Court.
10. Furthermore, the Apex Court in (2020) 10 SCC 92, Kaushik
Chatterjee Vs. State of Haryana & Others held:-
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“38. But be that as it may, the upshot of the above
discussion is:
38.1. That the issue of jurisdiction of a court to try
an “offence” or “offender” as well as the issue of
territorial jurisdiction, depend upon facts
established through evidence.
38.2. That if the issue is one of the territorial
jurisdiction, the same has to be decided with
respect to the various rules enunciated in Sections
177 to 184 of the Code.
38.3. That these questions may have to be raised
before the court trying the offence and such court
is bound to consider the same.”
11. It emerges from the above that the question of territorial
jurisdiction in a criminal case depends upon facts established through
evidence and the question has to be raised before the Court trying the
offence. The petitioners herein, as such, will have the liberty to raise
the issue of territorial jurisdiction before the Trial Court.
12. In view of the discussions made, there is no merit in the present
application and the same is hereby dismissed.
13. It is made clear that this Court has neither gone into the merits
of the allegations made in the complaint nor has decided the issue of
territorial/local jurisdiction of the Trial Court. It would be open for the
learned Trial Court to take its own independent view without being
influenced by any of the observations made in this order in deciding
the various pleas which may be raised by the rival parties during the
course of the trial.
JUDGE
Meghalaya
22.03.2024
Biswarup-
“ PS”
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