RUCHIR RASTOGIversusPANKAJ RASTOGI AND OTHERS ETC.

                 [2023] 14 S.C.R. 914 : 2023 INSC 941



                           CASE DETAILS
                          RUCHIR RASTOGI
                                    v.
              PANKAJ RASTOGI AND OTHERS ETC.
               (Criminal Appeal Nos. 3283-3284 of 2013)
                          OCTOBER 19, 2023
   [VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]
                            HEADNOTES
     Issue for consideration: High Court if justified in quashing the FIR
lodged by the appellant against respondents u/ss.457, 380 and 506, IPC.
      Penal Code, 1860 – ss.457, 380, 506 – FIR filed stating that the
appellant and respondent No.1 as Kartas of respective HUF were
partners in equal share and there was an interim order of preserving
the assets and belongings of the shop in question – However, Respondent
No.1, along with other co-accused, removed the assets and belongings
of the shop in violation thereof – When the appellant inquired from
respondent No.1, he was threatened to keep quiet otherwise he would
lose his life – FIR quashed – Legality:
      Held: Father of the appellant, ‘AR’, ‘KR’, and respondent No.1 are
real brothers – The shop in question was a joint partnership of the HUF of
the appellant and respondent No.1 and they had signed the partnership deed
as Kartas of the respective HUF – The purchase of the shop in question
by M/s Sushma Constructions Pvt. Ltd. of which ‘AR’ and his wife were
the promoters/Directors from the erstwhile owner could have been part
of the larger conspiracy planned in collusion with respondent No.1 but
no finding is being recorded to that effect at this stage – The filing of the
Suit for eviction by M/s Sushma Constructions Pvt. Ltd. impleading only
respondent No.1 as the defendant speaks volumes about their collusion
– What made ‘AR’ believe that it was respondent No.1, who was alone
the owner and in possession of the business being run from the shop in
question, is nowhere reflected – In any case, once the notices for eviction
were served upon respondent No.1, he ought to have disclosed this fact in
                                   914
  RUCHIR RASTOGI v. PANKAJ RASTOGI AND OTHERS                               915
                       ETC.

the said suit that firstly, the business in the shop in question was being jointly
run by him and the appellant and that there was an injunction operating
passed by a competent Court of District Judge in proceedings u/s.9, 1996
Act – Further, Respondent No.1 almost admitted the claim for eviction
which ultimately was the basis for the High Court to decree the suit – It
was a collusive suit and, in any case, respondent No.1 was dishonest and
deliberately concealed the material fact from the Court – Respondent No.1,
along with other co-accused, including not only the Directors/promoters
of M/s Sushma Constructions Pvt. Ltd. but also others, removed the assets
and belongings inside the shop in question by breaking open the locks
in violation of the injunction orders – All the offences are cognizable in
nature and on facts, basic ingredients being in the FIR, the High Court
erred in quashing the FIR – Whether the offences are proved or not would
be a subject matter of the Trial and before that of the investigation as to
whether a triable case is made out or not by the investigating agency but in
any case, was not a case where FIR was liable to be quashed – Impugned
judgment set aside – Matter to proceed with respect to the FIR in question
in accordance with law – Arbitration and Conciliation Act, 1996 – ss.9,
36. [Paras 5, 8, 9, 15 and 17]
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
3283-3284 of 2023.
     From the Judgment and Order dated 15.04.2019 of the High Court of
Judicature at Allahabad in CRMWP Nos.31343 and 31370 of 2018.
     Appearances:
     Vikas Singh, Sr. Adv., Rahul Kaushik, Ms. Bhuvneshwari Pathak,
Varun Bhasin, Ms. Deepeika Kalia, Keshav Khandelwal, Advs. for the
Appellant.
     Basant R. Sr. Adv., Suvigya Awasthy, Vivek Joshi, Kavinesh RM, Ms.
Radha Gupta, Ms. Amita Singh Kalkal, Ankit Goel, Sameer Jain, Abhinav
Shrivastava, Rohan Gulati, Shivang Rawat, Advs. for the Respondents.
916              SUPREME COURT REPORTS                              [2023] 14 S.C.R.



         JUDGMENT / ORDER OF THE SUPREME COURT
                                   JUDGMENT
       VIKRAM NATH, J.
       Leave granted.
      2. These appeals assail the correctness of the judgment and order dated
15.04.2019 passed by Allahabad High Court in Criminal Misc. Writ Petition
Nos.31343 and 31370 of 2018(filed by the respondents herein) whereby both
the writ petitions were allowed and the First Information Report1 lodged by
the present appellant dated 22.10.2018 registered as Case Crime No.0128
of 2018 under sections 457, 380 and 506 of the Indian Penal Code, 1860 2,
Police Station Pheelkhana, District Kanpur Nagar was quashed. The private
respondents herein were the accused in the said FIR.
       3. Shorn of unnecessary details, the relevant facts are as follows:
       3.1       The appellant and the private respondents belong to the same
                 family and the pedigree is as follows:

                              Lala Purushotam Rastogi
                                         =
                                    Naraini Deve
                             Lala Jugal Kishore Rastogi
                                          =
                                  Brij Kishori Devi

          Raj Kishore        Ambuj Rastogi (Dead)          Kunal           Pankaj
            Rastogi            (Respondent No.8)          Rastogi        Rastogi(A1)
               =                       =                                (Respondent
        Raj Bala Rastogi         Sushma Rastogi                             No.1)
                              (Respondent No.81)                              =
                                                                       Babita Rastogi
         Ruchir Rastogi
    (PeƟƟoner/Complainant)             SON
               =                                                   Accused List:
        Dimple Rastogi              Arpit Rastogi             A1 - Pankaj Rastogi (R1)
                                  (Respondent 8.2)            A2
                                          =                           Employee of A1
                                    Tanya Rastogi             A3
                                 (Respondent No.7)            A4 - People of Sushma
                                                              ConstrucƟon



1     FIR
2     IPC
    RUCHIR RASTOGI v. PANKAJ RASTOGI AND OTHERS                            917
               ETC. [VIKRAM NATH, J.]

      3.2     The appellant and respondent No.1 entered into a partnership
              as Karta of their respective HUFs and a partnership deed dated
              01.04.2012 was reduced into writing. The business inherited by
              them was run in shop No.26/59 as a tenant. The said premises
              was taken on rent from its owner Ms. Urmila Gupta.
      3.3     Respondent No.1 gave a legal notice dated 27.05.2013 to
              the appellant expressing his desire to dissolve the firm w.e.f.
              01.06.2013. He also retained the keys of the shop and restricted
              the appellant’s entry therein.
      3.4     In response, the appellant gave a legal notice dated 07.06.2013
              requesting the respondent 1 to withdraw his notice dated
              27.05.2013. The appellant also filed an application under
              section 9 of the Arbitration and Conciliation Act, 19963 before
              the District Judge, Kanpur registered as Misc. Arbitration
              Application No.77/70 of 2013. The District Judge passed
              an interim order dated 01.07.2013 directing the parties not
              to open the shop in the absence of the other i.e. to say that
              both the parties or their representative would enter the shop
              jointly and neither of the parties will enter the shop separately.
              The District Judge appointed an Advocate Commissioner
              to serve the notice before the next date which was fixed
              as 06.07.2013. The aforesaid order dated 01.07.2013 is
              reproduced hereunder:
                      “Application under Section 9 of the Arbitration and
                   Conciliation Act alongwith munsrim report is placed on
                   record. It deserves to be registered.
                     01.07.2013
                     The case was called.
                     7ga is registered while issuing notice to the opposite
                   parties date 06.07.2013 is fixed. Till then both the parties
                   or their representatives will enter the shop in dispute



3   The 1996 Act
918         SUPREME COURT REPORTS                        [2023] 14 S.C.R.


               jointly. No party or its representatives will enter the
               shop separately.
                  11ga application for appointment of special messenger
               or advocate Commissioner is accepted Shri Prabhat Sharma
               Advocate is appointed as advocate Commissioner who will
               go to the place and serve the notice on the opposite party
               and before the date will file their report. The plaintiff will
               pay Rs.700 asfee to the advocate Commissioner and will
               also pay the expenses of 100 too and from.
                                                                       Sd/-
                                                             District Judge
                                                           Kanpur Nagar”
      3.5   On 02.08.2013, Arbitrators were appointed to sort out the
            differences between the partners i.e. appellant and respondent
            No.1 of the firm M/s Lala Jugal Kishore and sons at Kanpur.
            Before the District Judge, Kanpur, respondents appeared and
            filed their objections in the proceedings under section 9 of 1996
            Act. After hearing learned counsel for the parties and after
            considering the material on record, the District Judge, Kanpur
            passed a detailed order dated 11.11.2013 disposing of the said
            application. The findings recorded were that the appellant
            had a prima facie case, there was a balance of convenience
            and also irreparable loss could be caused in case injunction is
            not granted. The District Judge accordingly directed that the
            entire assets and belongings of the firm M/s Lala Jugal Kishore
            and Sons at premises No.26/59, Birhana Road, Kanpur shall
            be preserved till the making of the arbitral award before it
            is enforced in accordance with section 36 of the 1996 Act.
            The operative portion of the order dated 11.11.2013 reads as
            follows: -
               “The application 4kha is decided accordingly. The entire
               assets, belongings of the firm M/s Lala Jugal Kishore
               & Sons at Premises No.26/59, Birhana Road, Kanpur
               Nagar, shall be preserved till the making of the arbitral
RUCHIR RASTOGI v. PANKAJ RASTOGI AND OTHERS                         919
           ETC. [VIKRAM NATH, J.]

           award before it is enforced in accordance with Section
           36 of the Arbitration and Conciliation Act.”
  3.6   According to the appellant, an arbitral award was passed on
        29.08.2013, a copy whereof is filed along with the rejoinder
        affidavit as Annexure-R5. The said award is on the basis of
        compromise. As per the said compromise, which included all
        the assets and belongings of the firm, the shop in question
        came to the exclusive possession of appellant and his father.
  3.7   Mr. Ambuj Rastogi, one of the respondents and one of the
        sons of Lala Jugal Kishore Rastogi purchased the shop in
        question from Ms. Urmila Gupta the owner, in the name of
        M/s Sushma Constructions Pvt. Ltd. wherein he and his wife
        Sushma Rastogi were the main promoters vide sale deed dated
        12.12.2013.
  3.8   M/s Sushma Constructions Pvt. Ltd. filed an eviction suit
        against the respondent No.1 in the Court of Judge, Small
        Causes/ Additional District Judge, Court No.16, Kanpur
        Nagar registered as Small Causes Suit No.309 of 2014. Apart
        from respondent No.1, no other person was impleaded as
        defendant in the said suit. The Trial Court, vide judgment dated
        15.07.2015, dismissed the said suit. Aggrieved by the said
        judgment dated 15.07.2015, M/s Sushma Constructions Pvt.
        Ltd. preferred a Revision under section 25 of the Provincial
        Small Causes Courts Act, 1887 before the High Court
        registered as SSC Revision no.279 of 2015. The High Court,
        vide judgment dated 19.07.2018, primarily on the basis of
        the concession given by the opposite party therein i.e. Pankaj
        Rastogi (respondent No.1 herein)allowed the said Revision
        and a direction was issued to respondent No.1 to hand over
        peaceful possession of the shop in question within a period of
        30 days. It was also provided that as per the agreed terms, if
        the possession is handed over within 30 days, the plaintiff M/s
        Sushma Constructions Pvt. Ltd. would not press for recovery
        of rent. The concession recorded and the operative portion of
        the order passed by the High Court are reproduced hereunder:
920   SUPREME COURT REPORTS                        [2023] 14 S.C.R.


        “Accordingly, the impugned judgment dated 15.07.2015
        passed by the learned Judge Small Causes Court/Additional
        District Judge, Court No.16, Kanpur Nagar in S.C.C. Suit
        No.309 of 2014, M/s Sushma Construction Pvt. Ltd. vs.
        Pankaj Rastogi stands set aside and the suit filed by the
        plaintiff stands allowed in toto. However, at this stage,
        learned counsel for the defendant-respondent submitted that
        as categorically stated in paragraph 7 of the counter affidavit
        that the defendant – respondent is not at all in a position to
        pay even a single penny as his business has been closed,
        therefore, liability to pay the arrears to set aside. On this
        statement, the learned counsel for the plaintiff-revisionist
        very fairly submits that in case the peaceful possession is
        handed over by the defendant-respondent within 30 days
        from today, he shall not press for any recovery of the
        arrears of rent.
              Accordingly, as jointly agreed between the parties, the
        defendant-respondent is directed to handover the peaceful
        possession of the shop in question within a period of thirty
        days from today. In case such possession is handed over
        within 30 days, the plaintiff-revisionist shall not press for
        any recovery of the rent. It is also made clear that any delay
        or deliberate avoidance on the part of the plaintiff in taking
        possession when handed over by the defendant would be
        taken against the spirit of the present order.
             Learned counsel for the defendant undertakes to
        send a copy of this order to his client. The plaintiff is
        also permitted to serve a certified copy on the defendant
        respondent No.1 personally as well as by registered post/
        courier services for necessary compliance.
              It is further made clear that in case possession is not
        handed over within thirty days from today, the plaintiff shall
        be at liberty to execute the same.
             Revision stands allowed, however, with the
        observations as made above.”
RUCHIR RASTOGI v. PANKAJ RASTOGI AND OTHERS                         921
           ETC. [VIKRAM NATH, J.]

  3.9    Respondent No.1, on the strength of the aforesaid order
         passed by the High Court, surrendered the shop in question to
         M/s Sushma Constructions Pvt. Ltd. - plaintiff in the suit for
         eviction, on 11.10.2018.
  3.10   The appellant came to know that the Board of M/s Sushma
         Constructions Pvt. Ltd. was put up outside the shop in question
         and also that the locks of the said shop had been changed.
         Immediately thereafter the appellant lodged an FIR on
         22.10.2018 which is a subject matter in question. In the said
         FIR, respondent No.1 along with one Mohit Rastogi, Ketan
         Shah and staff of M/s Sushama Constructions Pvt. Ltd. were
         arrayed as accused and named in the FIR. In the FIR, it was
         clearly mentioned that the appellant and respondent No.1 as
         Kartas of respected HUF were partners in equal share and there
         was an interim order operating.At the time when the interim
         order was passed, the shop had about 100 Kgs of Gold, 500
         Kgs Silver, 10,000 Carat of Diamonds and 5000 Carat of Gems.
         The appellant came to know of new locks and the Board of
         M/s Sushma Constructions Pvt. Ltd. only on 17.10.2018. It
         was also mentioned that th11e appellant had learnt that it was
         respondent No.1, along with staff named in the FIR, who had
         opened the locks and the entire stock and valuable documents
         were missing. When the appellant inquired from respondent
         No.1, he threatened him to keep quiet otherwise he would lose
         his life.
  3.11   It is this FIR which was challenged by way of Criminal Misc.
         Writ Petition No.31343 of 2018 filed by Pankaj Rastogi, Mohit
         Rastogi and Ketan Kumar Shah and Criminal Misc. Writ
         Petition No.31373 of 2018 was filed by Tanya Rastogi wife
         of Arpit Rastogi and Ambuj Rastogi praying for quashing of
         the same. These two petitions have been allowed by the High
         Court by the impugned judgment.
  3.12   The High Court allowed the petitions on the finding that no
         offence under various sections mentioned in the FIR were
         made out as the same on its face value did not satisfy the
922          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


              ingredients of the offences under section 457, 380 and 506
              of IPC. Aggrieved by the same, the present two appeals have
              been preferred by the complainant Ruchir Rastogi.
     4. We have heard the learned senior counsel for the parties, Shri Vikas
Singh for the appellant and Shri R. Basant, for the private respondents.
We have perused the material on record and also the submissions made on
behalf of the respective parties.
      5. At the outset, it may be noted that Raj Kishore Rastogi (father of the
appellant), Ambuj Rastogi, Kunal Rastogi, and Pankaj Rastogi(respondent
No.1) are real brothers. All four are sons of Lala Jugal Kishore Rastogi.
The shop in question was a joint partnership of the HUF of the appellant
and respondent No.1 and they had signed the partnership deed as Kartas of
the respective HUF.
      6. The proceedings initiated by the appellant under section 9 of 1996
Act are not disputed nor the orders passed therein on 01.07.2013 and
11.11.2013. The order dated 11.11.2013 had been passed after considering
the objections filed by respondent No.1 and also the submissions advanced
by the counsel for the parties. It is a reasoned order to which apparently
there is no challenge. Pankaj Rastogi very well knew about the order dated
01.07.2013 as also the order dated 11.11.2013.
      7. It is true that Ambuj Rastogi and Sushma Rastogi, the promoters
and Directors of M/s Sushma Constructions Pvt. Ltd. were not parties to the
proceedings under section 9 of the 1996 Act and rightly so for the reason
that they were not partners with respect to the business being run in the
shop in question.
      8. It is difficult to presume that Ambuj Rastogi and Sushma Rastogi
were not aware of the orders passed in the section 9 proceedings under the
1996 Act but even if it is assumed that they were not aware of the said orders
the fact remains that respondent No.1 had due knowledge and was well aware
of the orders passed by the District Judge in the aforesaid proceedings. The
purchase of the shop in question by M/s Sushma Constructions Pvt. Ltd. of
which Ambuj Rastogi and Sushma Rastogi were the promoters/Directors
from the erstwhile owner Smt. Urmila Gupta could have been part of the
  RUCHIR RASTOGI v. PANKAJ RASTOGI AND OTHERS                                923
             ETC. [VIKRAM NATH, J.]

larger conspiracy planned in collusion with respondent No.1 but we refrain
ourselves from recording any finding to that effect at this stage.
       9. The filing of the Small Causes Suit for eviction by M/s Sushma
Constructions Pvt. Ltd. impleading only respondent No.1 as the defendant
speaks volumes about their collusion. What made Ambuj Rastogi believe
that it was respondent No.1, who was alone the owner and in possession of
the business being run from the shop in question, is nowhere reflected. In
any case, once the notices for eviction were served upon respondent No.1,
he ought to have disclosed this fact in the said suit that firstly, the business in
the shop in question was being jointly run by him and the appellant and more
importantly, that there was an injunction operating passed by a competent
Court of District Judge in proceedings under section 9 of the 1996 Act.
Respondent No.1 almost admitted the claim for eviction which ultimately
was the basis for the High Court to decree the suit. It was a collusive suit no
doubt and, in any case, respondent No.1 had been dishonest and deliberately
concealed the material fact from the Court. Further, respondent No.1 being
under an injunction of preserving the assets and belongings of the shop
separately in violation thereof proceeded to surrender the possession in
compliance to the decree of eviction on 11.10.2018. Respondent No.1,along
with other co-accused, including not only the Directors/promoters of M/s
Sushma Constructions Pvt. Ltd. but also others, removed the assets and
belongings inside the shop in question by breaking open the locks in violation
of the injunction orders.
      10. Having considered the FIR which has been registered for the
various offences under sections 457, 380 and 506 of the IPC, we now proceed
to discuss the ingredients of sections 457, 380 and 506 of the IPC in order
to test whether the High Court was right in recording a finding that on the
face of it, the ingredients for the said offence were not made out from the
reading of the FIR.
      11. Theft is defined under section 378 of the IPC, according to
which anyone intending to dishonestly take any moveable property out of
possession of any person without that person’s consent, moves that property
in order to such taking, is said to commit Theft. In the present case, the
assets and belongings inside the shop in question were in joint possession
of the appellant as also the respondent No.1 and there was an injunction
924          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


granted by the Competent Court that the assets and belongings of the shop
in question would be preserved, removal of the same without consent or
knowledge of the appellant would amount to theft.
      12. As per the order dated 01.07.2013 and further by a subsequent
order dated 11.11.2013, it was directed that the entire assets and belongings
of the said firm would be preserved till the making of the arbitral award
before it is enforced in accordance with section 36. The possession,would
therefore, remain with the appellant and respondent No.1 so long as the
injunction was operating on it. Respondent No.1 knowing fully well could
not have firstly surrendered the shop and allowed M/s Sushma Constructions
Pvt. Ltd. to remove the assets and belongings in the said shop. It is difficult
to say whether he was directly involved in the theft but he was definitely
involved in the conspiracy and abetting the theft. Respondent No.1 should
have informed the appellant of the same but he did not.
      13. The appellant, being a partner in the said firm, removal of the
assets without his knowledge would amount to theft, be it by M/s Sushma
Constructions Pvt. Ltd. or others.
       14. Further, section 457 IPC talks of an offence regarding ‘lurking
house trespass or house breaking at night to commit an offence punishable
with imprisonment’. Theft committed in any building which is used as a
human dwelling or for a custody of a property is punishable under section
380 of the IPC and the sentence for a term which may extend to seven years
and also be liable to fine. In the present case, there was breaking open of the
locks of the premises wherein the property was stored for the purposes of
theft, the punishment under section 457 of the IPC would extend to 14 years.
      15. Section 506 of the IPC talks of the offence of criminal intimidation.
The FIR contained the specific averment that when the appellant questioned
respondent No.1, he threatened him to remain quiet otherwise he would lose
his life. All these offences are cognizable in nature and basic ingredients
being there in the FIR, the High Court clearly erred in quashing the FIR.
Whether the offences are proved or not would be a subject matter of the
Trial and before that of the investigation as to whether a triable case is made
out or not by the investigating agency but in any case, was not a case where
FIR was liable to be quashed.
  RUCHIR RASTOGI v. PANKAJ RASTOGI AND OTHERS                             925
             ETC. [VIKRAM NATH, J.]

      16. The defence taken by the respondent if adverted to and dealt with
by this Court, could cause serious prejudice to them in the investigation and
also the trial as such we are not delving into the same. However, we would
refer to the couple of objections taken, for example, the dispute regarding
the arbitration award and its execution. Even in the absence thereof once
there was an injunction granted to preserve the property, respondent No.1
could not have dealt with the same and, at the outset, he should have
informed the appellant about the orders passed under section 9 of the 1996
Act. He should have refrained himself from surrendering the possession of
the shop in question. His participation in the crime prima facie, therefore,
cannot be ruled out.
      17. For all the reasons recorded above, the appeals succeed and are
allowed. The impugned judgment of the High Court is set aside. Law to take
its own course. The matter to proceed with respect to the FIR in question in
accordance with law. It is however made clear that any observations made
in this order are only for the purposes of deciding the issue raised and the
same may not influence the investigation or the trial which shall proceed
independently and be decided on the evidence adduced.


Headnotes prepared by:                                         Appeals allowed.
Divya Pandey