Mahesh Choudhary v. State Of Rajasthan

Chatra Ram Jat, J.:— This is a criminal misc. petition under Section 482 Cr. P.C for quashing the order dated 9.1.2007 passed by Judicial Magistrate No. 22, Jaipur City, Jaipur by which he took cognizance under Sections 420, 467 and 468 I.P.C in the Criminal Case No. 26/2007 State v. Mahesh Choudhary relating to F.I.R No. 356/2004 at Police Station Brahmpuri, Jaipur.

2. The brief facts of the case are that the accused-petitioner is involved in the business of manufacturing and export of hand knotted woolen carpets in the name of Saraswati Exports and similarly the complainant party is also involved in the business of manufacture and export of hand knotted woolen carpets in the name of S.B Kapoor Exports. the complainant and the accused-petitioner agreed to promote the business of carpets and in furtherance of the aforesaid promotion of business number of transactions as well as the agreements were entered into between both the firms. One of the said agreement is dated 1.4.2001 but during the course of aforesaid business dealing various disputes arose between both the firms and the complaints as a result of which both the parties lodged various cases against each other which are pending different forums. One dated 15.5.2004 an F.I.R was registered by the accused-petitioner against the complainant in the present criminal case, in connection with forgery committed with respect to some cheques at Police Station Vidhayakpuri, Jaipur. The Complainant in present case submitted a complaint in the Court of Judicial Magistrate No. 22, Jaipur City, Jaipur for the offence under Sections 420, 406 I.P.C against the present petitioner. The said complaint being sent to police station Brahmpuri, Jaipur for investigation and an F.I.R No. 356/2004 was registered and investigation started and then investigation transferred to C.I.D (C.B) Rajasthan and thereafter the matter was also investigated by the Additional Superintendent of Police (North), Jaipur city, Jaipur. Chargesheet was submitted against the petitioner and the cognizance was taken vide order dated 9.1.2007 by the Court of learned Judicial Magistrate No. 22, Jaipur City, Jaipur for the offence under Sections 420, 467 and 468 of I.P.C and, therefore, this criminal misc. petition for quashing and setting aside the order of taking cognizance dated 9.1.2007 and entire proceedings in Criminal Case No. 26/2007 of Police Station Brahmpuri, Jaipur in respect of F.I.R No. 356/2004.

3. Learned counsel for the petitioner states that the agreement dated 1.4.2001 is the basis between the parties for the business dealing and if any dispute arise between the parties then as per paras 7, 10, 12, 15, 16 and 17 of the agreement, the dispute may be settled as per provisions of aforesaid agreement and the complainant filed this F.I.R only in counter blast, the F.I.R lodged by petitioner at Police Station Vidhayakpuri. Learned counsel also stated that as per terms of the agreement commission to the tune of Rs. 3,21,06,910/- was paid to the complainant by the firm of accused-petitioner and the dispute is only with regard to small commission of Rs. 14,44,650/-, but no offence whatsoever is made out against the accused-petitioner and it is purely a civil matter. Thus, the present case is the ill motivated case and as per the contents of charge-sheet, the accused-petitioner not only appeared but has also submitted required documents and information to he investigating agency. Hon'ble Apex Court has in its catena of judgments, held that where criminal proceedings are manifestly attended with mala fide or where proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge the same will not be allowed to continue and in this regard the jurisdiction of High Court for quashing criminal proceeding under Section 482 Cr. P.C is justified and wide enough.

4. Learned counsel for the petitioner, for quashing the criminal proceedings under Section 482 Cr. P.C relied on the judgments as under:

1. State of Haryana v. Ch. Bhajan Lal in 1992 Criminal Law Journal. 527 (Supreme Court),

2. G. Sagar Suri v. State of U.P in (2000) 2 SCC 636,

3. Sardar Trilok Singh v. Satya Deo Tripathi in (1979) 4 SCC 396,

4. Alpic Finance Ltd. v. P. Sadasivan in (2001) 3 SCC 513,

5. U. Dhar v. State of Jharkhand in (2003) 2 SCC 219

6. Ajay Mitra v. State of M.P in (2003) 3 SCC 11,

7. Hridaya Ranjan Prasad Verma v. State of Bihar in (2000) 4 SCC 168

5. Per contra, learned Public Prosecutor and the learned counsel for the complainant supported the order of cognizance passed by trial Court.

6. Learned counsel for respondents states that the trial Court found prima facie material against the petitioner and took cognizance for the offence under Section 420, 467, 468 I.P.C against accused-petitioner on the basis of material on record as investigated by the investigating agency. The order of cognizance is the final order and against such final order, he revision under Section 397 of the Code of Criminal Procedure is provided for and the revision petition filed by petitioner has been dismissed by A.D.J No. 7, Jaipur City, so the present petition under Section 482 is not maintainable. The petitioner has filed the present petition on misleading and unfounded grounds. Even special leave to appeal (Criminal) No. 657/2007 was presented before Hon'ble Supreme Court of India but that petition dismissed as withdrawn. Petitioner's main contention is that material is of civil nature as the reliance placed on the agreement and tried to make out a case that present matter is relating to business transaction and of civil nature, but in the present matter the complainant has specifically levelled allegations against the petitioner that he has committed cheating and forged documents thereby deprived the complainant of his due commission. Hence, it cannot be said that matter is of a civil nature and because of the fact that the petitioner has committed cheating and forgery of documents, hence, prima facie case is made out against the petitioner and present petition for quashing the order of cognizance is devoid of merit and deserved to be dismissed.

7. Learned counsel for the respondents made reliance on the following judgments:

(1) M. Krishnan v. Vijay Singh in (2001) 8 SCC 645 : AIR 2001 Supreme Court 3014,

(2) Meenu Kumari v. State of Bihar in (2006) 4 SCC 359

(3) State of Orissa v. Saroj Kumar Sahu in 2005 (13) Supreme Court 540 : (2006 (1) RLW 757 (SC),

(4) Hamida v. Rashida & Rasheed in 2007 R.C.C (SC) 763

(5) Indian Oil Corporation v. N.E.P.C Ltd. in (2006) 6 SCC 736 : 2006 (4) RLW 3380 (SC)

8. Section 482 Cr. P.C—Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such order as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

9. Under this Section jurisdiction is wide in its scope. This power has to be exercised with great restraint, wider should be the power, greater should be the restraint. It is a rule of practice that it will only be exercised in exceptional cases. As a rule of practice, the power being an extraordinary one, it will be exercised in exceptional cases and it will be justified for interference only when the complaint did not disclose a prima facie offence or was frivolous vexatious or oppressive.

10. Hon'ble Apex Court in Thelapalli Raghavaiah v. Station House Officer reported in 2007 AIR SCW 1816, held in paragraph 17 as follows:

“…. and relied on a decision of this Court in Madhavrao Jiwajirao Scindia v. Sambhagajirao Chandrojirao Angre, reported in (1988) 1 SCC 692, where this Court had occasion to observe that though a case of breach of trust may be both a civil wrong and criminal offence but there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. It was also observed that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie established the offence.”

11. Hon'ble Apex Court in Manjula Sinha v. State of U.P reported in 2007 AIR SCW 4555, held in paragraphs 8 and 9 as follows:

“8. Section 482 Cr. P.C does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) go give effect to an order under the Code, (ii) to prevent abuse of the process of count, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them bylaw. that is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non protest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justiciae to do real and substantial justice for the administration of which alone courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would bean abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice.”

“9. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that is decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case, where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspection without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.”

12. It is just and proper to refer a leading decision of Hon'ble Apex Court reported in State of Haryana v. Choudhary Bhajan Lal in 1992 Cri. L.J 527 (Supreme Court) (supra) (and again referred and emphasized on the said principles in their decision in Pratibha v. Rameshwari Devi, JT 2007 (11) SC 122) held in Paragraph 108 as under:

“In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decision relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the F.I.R or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the F.I.R or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code of the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

13. A complaint cannot be quashed merely because civil remedy is available to the complainant. Both civil law and criminal law remedy can be perused in diverse situations. Inherent power can be exercised to undo injustice.

14. The only question as to whether in a situation of this nature any offence of cheating can be said to have been made out. The definition of cheating is relevant and Section 415 of Indian Penal Code defines cheating to mean;

“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”

15. Hon'ble Apex Court in Hirdaya Ranjan Prasad Verma v. State of Bihar reported in (2000) 4 SCC 168, held in paragraphs 14 and 15 as follows:

14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.”

“15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.”

16. Allegations for offence are contained in relevant Para 5 of First Investigation Report runs as under:

17. As per the charge-sheet submitted by the investigation agency and the result indicated at page 6 and 7 which is as under:

18. As I have already enumerated the illustrations in Bhajan Lal's case (supra) and on careful reading of these illustration, I am of the view that the allegations emerging from the F.I.R are not covered by any of the illustrations as noted hereinabove, wherein the inherent power can be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There are allegations contained in F.I.R relating to applicable Section 420, 467, 468 I.P.C against the petitioner which are factual in nature, that cannot be adjudicated in the present petition. If ultimately the prosecution is unable to substantiate the plea, the results would follow. It is a case where the power under Section 482 Code of Criminal Procedure cannot be exercised so far allegations relating to Section 420, 467, 468 I.P.C are concerned.

19. It is made clear that I have not entered into the merits of the matter. I may not be understood to have expressed any opinion one way or the other on merits and as and when the matter will come up for trial, it will be decided strictly on its own merits without being inhibited by the observations made by me hereinabove. All contentions of all parties are kept open.

20. For the foregoing reasons, the petition deserves to be dismissed and is hereby dismissed. The trial Court is directed to conclude the trial as expeditiously as possible.