Hanuman vs State & Anr on 21 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Petition No.1490/2017
Hanuman s/o Budh Ram, b/c Kumahar, r/o nearby Sonadi Bus
Stand, Nohar, Police Station, Nohar, District Hanumangarh.

—-Petitioners
Versus

1. The State of Rajasthan

2. Dalip Singh s/o Kana Ram, b/c Jat, r/o Sonadi, presently r/o
Bharat Building Material, nearby Aradaki Bus Stand, Sonadi Road,
Nohar Police Station, Nohar, District Hanumangarh.

—-Respondents
__
For Petitioner(s) : Mr.Pankaj Gupta
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.

Mr.Kulwant Singh
__
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
Reserved on 18/08/2017

Pronounced on 21/08/2017

1. This criminal misc. petition under Section 482 Cr.P.C.

has been preferred for quashing the registration and investigation

of FIR dated 15.04.2017 bearing No.203/2017 registered at Nohar

Police Station, District Hanumangarh for the offences under

Sections 379, 420, 452, 467, 468, 471 and 120-B IPC.

2. The allegation against the present petitioner is that the

complainant is running a shop of building material, which

remained closed for 3-4 days, and was thereafter opened, upon

which the petitioner came to the shop and demanded the

documents of transaction regarding material evidence, but

simultaneously, the petitioner stole the cheques and asked
(2 of 8)

Satveer to make payment within seven days or face the

consequence. The cheques of Axis Bank were presented, but

payment towards those cheques was stopped at the instance of

the complainant under the belief that the cheques were stolen by

the present petitioner.

3. Learned counsel for the petitioner pointed out that in

the FIR itself, it is written that on 29.03.2017, the complainant

received an SMS from the Axis Bank that cheques No.3132 and

3133 pertaining to payment of Rs.1,50,000/- each have been

presented before the Bank by the present petitioner. On receiving

such SMS, the respondent has initiated the requisite proceedings.

4. Learned counsel for the petitioner has argued that on

the face of it, the FIR is highly improbable, as allegedly on

21.02.2017, the cheques were stolen, regarding which the

complainant has never made a complaint. However, learned

counsel for the petitioner argued that at the first instance, when

the cheques were produced before the Bank on 29.03.2017, the

complainant immediately filed the complaint on 30.03.2017, which

means that even the requisite time for ascertaining the theft or

the details of the cheques was not available with the complainant.

5. Learned counsel for the petitioner also argued that it is

a clear case of counterblast and to escape the liability under the

Negotiable Instruments Act, the FIR has been lodged, as the

complainant was very well aware that those cheques were with

the present petitioner and they shall have to face the liability

under the Negotiable Instruments Act.

(3 of 8)

6. Learned counsel for the petitioner has relied upon the

precedent law laid down by the Hon’ble Apex Court in Vineet

Kumar Ors. Vs. State of U.P. Anr., reported in 2017 Law

Suit (SC) 313, wherein the criminal proceeding, on being found

as a counterblast to the proceedings under Section 138 of the

Negotiable Instruments Act, had been quashed by the Hon’ble

Apex Court. The relevant paras 36, 37, 38 and 39 of the said

judgment read as under:-

“36. Writ petition was filed by the Accused for
quashing the FIR which was dismissed by the High
Court on 27.08.2007. Thereafter, charges were
framed on 01.12.2008. Dissatisfied with the framing
of charges Criminal Revision Petition was filed which
was dismissed by Delhi High Court on 16.01.2009.
The order of Additional Sessions Judge has been
extracted by this Court in paragraph 14 which is
quoted below:

“14. Dissatisfied with the action of the trial
Court in framing charges against him, the
Appellant-accused filed Criminal Revision
Petition No. 08 of 2009, whereby he assailed
the order dated 1.12.2008 passed by the
Additional Sessions Judge, New Delhi. The
Delhi High Court dismissed the revision petition
on 16.1.2009, by inter alia observing as under:

12. Truthfulness or falsity of the allegations,
essentially pertains to the realm of evidence
and the same cannot be pre-judged at this
initial stage. I do not find any illegality or
infirmity in the impugned order. Consequently,
this Revision Petition is dismissed in limine
while making it clear that anything herein shall
not be construed as an opinion on merits at
(4 of 8)

trial.”

37. The appeal was filed against the aforesaid
judgment of the High Court by the Accused
contending that there was sufficient material
collected in the investigation which proved that
allegations were unfounded and the prosecution of
the Appellant was an abuse of process of the Court.
In paragraph 23 this Court noted several
circumstances on the basis of which this Court held
that judicial conscience of the High Court ought to
have persuaded it to quash the criminal proceedings.
This Court further noticed that Investigating Officer
has acknowledged, that he could not find any proof
to substantiate the charges. The charge-sheet had
been filed only on the basis of the statement of the
complainant/prosecutrix Under Section 164 Code of
Criminal Procedure. In paragraphs 24 and 25 of the
judgment following was stated:

“24. Most importantly, as against the
aforesaid allegations, no pleadings whatsoever
have been filed by the complainant. Even
during the course of hearing, the material
relied upon by the Accused was not refuted.

As a matter of fact, the
complainant/prosecutrix had herself

approached the High Court, with the prayer
that the first information lodged by her, be
quashed. It would therefore be legitimate to
conclude, in the facts and circumstances of
this case, that the material relied upon by the
Accused has not been refuted by the
complainant/prosecutrix. Even in the charge
sheet dated 28.6.2007, (extracted above) the
investigating officer has acknowledged, that
he could not find any proof to substantiate the
charges. The charge-sheet had been filed only
(5 of 8)

on the basis of the statement of the
complainant/prosecutrix Under Section 164 of
the Code of Criminal Procedure.

25. Based on the holistic consideration of the
facts and circumstances summarized in the
foregoing two paragraphs; we are satisfied,
that all the steps delineated by this Court in
Rajiv Thapar’s case (supra) stand-satisfied. All
the steps can only be answered in the
affirmative. We therefore have no hesitation
whatsoever in concluding, that judicial
conscience of the High Court ought to have
persuaded it, on the basis of the material
available before it, while passing the
impugned order, to quash the criminal
proceedings initiated against the accused-
Appellant, in exercise of the inherent powers
vested with it Under Section 482 of the
Code of Criminal Procedure. Accordingly,
based on the conclusions drawn
hereinabove, we are satisfied, that the first
information report registered Under Sections
328, 354 and 376 of the Indian Penal Code
against the Appellant-accused, and the
consequential chargesheet dated 28.6.2007,
as also the framing of charges by the
Additional Sessions Judge, New Delhi on
1.12.2008, deserves to be quashed. The
same are accordingly quashed.”

38. Thus, above was the case where despite
statement Under Section 164 Code of Criminal
Procedure by prosecutrix the Court referring to
material collected during investigation had held that
the case was fit where the High Court ought to have
quashed the criminal proceedings.

(6 of 8)

39. Inherent power given to the High Court Under
Section 482 Code of Criminal Procedure is with the
purpose and object of advancement of justice. In
case solemn process of Court is sought to be abused
by a person with some oblique motive, the Court has
to thwart the attempt at the very threshold. The
Court cannot permit a prosecution to go on if the
case falls in one of the Categories as illustratively
enumerated by this Court in State of Haryana v.
Bhajan Lal. Judicial process is a solemn proceeding
which cannot be allowed to be converted into an
instrument of operation or harassment. When there
are material to indicate that a criminal proceeding is
manifestly attended with mala fide and proceeding is
maliciously instituted with an ulterior motive, the
High Court will not hesitate in exercise of its
jurisdiction Under Section 482 Code of Criminal
Procedure to quash the proceeding under Category 7
as enumerated in State of Haryana v. Bhajan Lal,
which is to the following effect:

“(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.

Above Category 7 is clearly attracted in the facts of
the present case. Although, the High Court has noted
the judgment of the State of Haryana v. Bhajan Lal,
but did not advert to the relevant facts of the present
case, materials on which Final Report was submitted
by the IO. We, thus, are fully satisfied that the
present is a fit case where High Court ought to have
exercised its jurisdiction Under Section 482 Code of
Criminal Procedure and quashed the criminal
proceedings.

(7 of 8)

7. Learned counsel for the respondent however,

vehemently opposed the submissions made by learned counsel for

the petitioner and stated that the theft in this case was committed

by the present petitioner and there is no delay in lodging the FIR,

because as soon as the SMS regarding the cheques in concern was

received by the complainant on 29.03.2017, the complaint was

lodged on 30.03.2017.

8. Learned counsel for the respondent submitted that the

quick action of the respondent shows that in fact he was the

sufferer of the theft of the cheques at the hands of the present

petitioner, who made use of the transition period in the shop of

the complainant and stole the cheques, on the pretext of

accounting for the transactions between the parties in the shop.

9. After hearing the learned counsel for the parties and

perusing the record of the case alongwith the precedent law cited

at the Bar, this Court is of the opinion that on the face of it, the

impugned FIR is nothing but a counterblast, as the respondent

became aware of the cheques being dishonoured on 29.03.2017

and out of fear of the proceedings under the Negotiable

Instruments Act, the complaint was lodged on 30.03.2017.

10. It is clear that the inherent jurisdiction under Section

482 Cr.P.C. can be invoked to quash the proceeding, which

amounts to the abuse of the process of law and instituted with an

ulterior motive and the Court has to act at the threshold, as

enumerated in the precedent law laid down by the Hon’ble Apex

Court in State of Haryana Ors. Vs. Ch.Bhajan Lal
(8 of 8)

Ors.,1992 Supp.(1) SCC 335, condition No.7 of which in relation

to interference by the Court with the proceedings reads as under:-

“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.”

Thus, the aforequoted condition No.7 is clearly attracted in the

present case, as the complainant had the knowledge that he shall

be facing the proceedings under the Negotiable Instruments Act

and there was no reason available with the present petitioner, so

as to stole the cheques in concern.

11. In light of the aforesaid discussion as well as the

precedent law cited by learned counsel for the petitioner, the

present misc. petition is allowed and the impugned FIR dated

15.04.2017 bearing No.203/2017 registered at Nohar Police

Station, District Hanumangarh is quashed and set aside. The stay

application also stands disposed of.

(DR. PUSHPENDRA SINGH BHATI)J.

Skant/-

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