Naresh Kumar vs State & Anr on 21 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Petition No.1085/2015
Naresh Kumar Jain s/o Surajmal Ji Jain, b/c Jain, r/o Main Road,
Machinery Shop, Behind Kabutar Khana, Main Bazar, Singoli,
District Neemuch (MP).

—-Petitioners
Versus

1. The State of Rajasthan

2. Devi Lal Jangam s/o Solanath Ji Jangam, proprietor of M/s.
Jangam Cement Udyog, r/o Bhainsrodgarh, Police Station,
Bhainsrodgarh, District Chittorgarh.

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

Mr.J.S.Bhaleria
__
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 FIR dated 20.03.2015 bearing

No.23/2015 registered at Bhainsrodgarh Police Station, District

Chittorgarh for the offences under Sections 420 and 120-B IPC.

2. The respondent made a complaint against the present

petitioner alleging therein that in August, 2014, while he was

running a factory at Rawatbhata, one Naresh Jain and Peeru

alongwith Parmanand and Radheyshyam came to his factory with

an intention to purchase the bricks. The interlocking bricks were
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shown to Naresh Jain and after examining the sample, he made

up his mind to purchase three types of interlocking bricks and the

rate was finalized, which included the transportation. At the time

of purchase order being placed for such bricks, one Dinesh

Chhabra and Abdul Latif Khan, residents of Rawatbhata were also

present there. The bricks were taken by Naresh Jain and other

accused persons in the tractor of Radheyshyam, for which

transportation was also paid by the complainant. The complainant

sought payment of the bricks, whereupon he was assured by the

accused persons that as soon as the bricks were delivered, the

payment shall be made. The factory of the complainant

accordingly delivered the bricks, after getting the requisite

signatures and details of the goods transported.

3. The allegation was that the present accused has

stocked the bricks and was selling the same and earning the profit

out of it, without making the payment towards purchase of the

said bricks. The complainant also alleged that such bricks were

hidden by the accused persons and the bricks worth Rs.6,17,750/-

were taken away, but when the payment was sought, the same

was refused by the present petitioner.

4. On such complaint being made, the same was

investigated under Section 156(3) Cr.P.C. and an FIR bearing

No.23/2015 was lodged at Bhainsrodgarh Police Station, District

Chittorgarh for the offences under Sections 420 and 120B IPC.

5. Learned counsel for the petitioner has argued that the

allegations in the FIR pertain to a civil dispute between the

parties, and merely non-payment towards the goods purchased,
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would not amount to criminal proceedings against the present

petitioner.

6. Learned counsel for the petitioner has relied upon the

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

Kumar Vs. M/s. Escorts Yamaha Motors Ltd. Ors.,

reported in 1999 Cr.L.R. (SC) 790, wherein the following order

was passed:-

“1. Leave granted.

2. The decision of the Division Bench of Delhi High
Court, quashing the F.I.R. No. 285 of 1998 at P.S.
Rajouri Garden for offence under Sections
420/406/468 IPC is under challenge in this appeal by
the informant. The informant-appellant filed the
F.I.R. alleging therein that the respondents by an act
of conspiracy committed criminal breach of trust by
presenting blank cheques, signed by the appellant for
withdrawing money for a purpose for which it had
not been given and by so doing, they have caused a
loss of Rs. 8,982/- inasmuch as this was the
commission which the appellant had to bear. The
gravaman of the appellant’s case in the F.I.R. is that
certain cheques had been given to the respondents
more particularly the Commercial Manager with the
specific understanding that these cheques can be
presented against delivery of future vehicles and not
for any past liability or dues, but the respondents
presented the same which of course could not be
encashed in view of the directions given by the
appellant-drawer. However the appellant had to
sustain the loss of Rs. 8982/- as commission
charges. The respondents filed application in Delhi
High Court for quashing of F.I.R. inter alia on the
ground that the averments in the F.I.R. do not make
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out the offence of either Section 406 or Section 420
as the necessary ingredients under Sections 405 and
415 of the IPC have not been indicated. The
respondents also took the ground that the criminal
proceeding pursuant to the F.I.R. has been initiated
with an ulterior motive and thereby there has been a
gross abuse of process of law and as such the F.I.R.
should be quashed. The High Court on consideration
of the case of the parties and on the materials was of
the opinion that the informant himself has already
resorted to civil remedy for adjudication by an
arbitrator and thereafter having lodged the complaint
must be held to have the abuse of the process of law
and, therefore, the F.I.R. should be quashed in the
interest of justice.

3. Mr.P.C. Jain, learned Senior Counsel, appearing
for the appellant contended before us that the
assertions made in the F.I.R. do constitute a
cognizable offence and as such the same could not
have been quashed in the light of the judgment of
this Court in State of Haryana and Ors. v. Bhajan Lal
and Ors.:1992 Supp. (1) SCC 335 and judgment of
this Court in Rajesh Bajaj v. State NCT of Delhi and
Ors, JT 1992(2) SC 112.

4. Mr.M.H. Salve and Mr. Arun Jaitley, learned senior
counsel appearing for different accused persons on
the other contended that the assertions made in the
FIR even taken on face value do not satisfy the
ingredients of the offence alleged to have been made
and on the other hand it manifestly indicates that the
complainant has instituted the criminal proceedings
with an ulterior motive for wreaking vengeance and
to pre-empt the filing of the criminal complaint
against him under Section 138 of the Negotiable
Instruments Act and, therefore, the High Court
rightly came to the conclusion that allowing the
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criminal proceedings to continue would result in
manifest injustice and as such quashed the FIR and
this Court, therefore, would not be justified in
interfering with the same in exercise of power under
Article 136 of the Constitution. According to the
learned Counsel, issuance of process should not be
allowed to be an instrument of oppression or
needless harassment. Responsibilities and duties on
the Magistracy lie in finding out whether the alleged
accused would be legally responsible for the offence
charged for. The Court at that stage could be
circumspect and judicious in exercising discretion and
should take all the relevant facts and circumstances
into consideration lest it would be an instrument in
the hands of the private complaint as vendetta to
harass the person needlessly. The learned Counsel
relied upon the decision of this Court in Punjab
National Bank and Ors. v. Surendra Prasad Sinha
1993 Supp.(1) SCC 499.

5. Bearing in mind the law laid down by this Court in
the cases referred to earlier and the contentions
raised by the learned Counsel appearing for the
parties and on examining the allegations made in the
FIR, we are persuaded to accept the submission of
Mr. H.N. Salve and Mr. Arun Jaitley, appearing for
the respondents that necessary ingredients of the
offence of cheating or criminal breach of trust have
not been made out and on the other hand the
attendant circumstances indicate that the FIR was
lodged to pre-empt the filing of the criminal
complaint against the informant under Section 138 of
the Negotiable Instruments Act. The High Court,
therefore, was well within its power in quashing the
FIR as otherwise it would tantamount to an abuse of
process of Court. We, therefore, see no justification
for our interference with the impugned decision of
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the High Court in exercise of power under Article 136
of the Constitution.

6. This appeal accordingly fails and is dismissed.”

7. Learned counsel for the petitioner also placed reliance

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

Holdings P. Ltd. Anr. Vs. State of Kerala Ors., reported

in 2015 Cr.L.R. (SC) 511, wherein the Hon’ble Apex Court has

laid down that there has to be an intention to cheat at the very

inception.

8. Learned counsel for the petitioner has further relied

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

Technofab Engineering Ltd. (M/s.) Anr. Vs. Bengal Mills

Stores Supply Co. Anr., reported in 2016 Cr.L.R. (SC) 887,

wherein the Hon’ble Apex Court has laid down as follows:-

“10. Question in each case is of application of the
above principles to the individual fact situations. It is
not permissible for the Court to go into the defence
pleaded by the appellants. The High Court has already
held that no case is made out under Section 420 IPC
from the allegations in the complaint which part of
the order is not under challenge before this Court. In
the present case, even if the allegations in the
complaint are taken at their face value, the dispute
between the parties is purely of civil nature involving
breach of contract. Even according to the
complainant, the accused did not given letter of credit
nor made any deposit and the matter was thus, at the
negotiation stage. We are conscious that merits of the
controversy cannot be gone into in quashing
proceedings but the Court can certainly see the
substance of allegations with the view to examine the
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contention whether initiation of criminal proceedings
was abuse of the process of Court or not. Having seen
the allegations in the complaint, we do not find any
prima case for initiating criminal proceedings against
the appellants.

11. Accordingly, this appeal is allowed and the
proceedings against the appellants are quashed. It is
made clear that we have not expressed any opinion
on availability of any other remedy of the complainant
against the appellants.”

9. Learned counsel for the petitioner also drew the

attention of this Court towards the notice dated 19.02.2015 given

by the petitioner’s lawyer to the complainant under the Negotiable

Instruments Act and the reply to the said notice was given by the

complainant on 12.03.2015. Thus, learned counsel for the

petitioner stated that there were apparently transactions of

business between both the parties and the negotiable instrument

was also one of the issues between both the parties.

10. Learned counsel for the petitioner has made out a point

that the impugned FIR lodged on 20.03.2015 soon after the

receipt of notice under the Negotiable Instruments Act, is also a

counterblast to the proceedings initiated by the present petitioner

against the complainant under the Negotiable Instruments Act by

giving a notice on 19.02.2015.

11. Learned counsel for the petitioner further argued that

the reply dated 12.03.2015 given by the complainant accepted the

liability and included the mention of purchase of interlocking bricks

worth Rs.6,17,750/-, which has also been mentioned in the FIR
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and there is also a mention of the payment being due from the

present petitioner, but without any allegation of criminal breach of

trust.

12. Learned counsel for the respondent has refuted the

aforesaid submissions made by learned counsel for the petitioner

by stating that initially, a notice was in fact given by the

complainant to the present petitioner on 10.02.2015, whereby the

complainant had sought the amount due from the present

petitioner.

13. Learned counsel for the respondent has relied upon the

precedent law laid down by the Hon’ble Supreme Court in

Mosiruddin Munshi Vs. Md. Siraj Anr., reported in 2014

Cri. L.J. 4180, wherein the Hon’ble Apex Court has laid down that

at the stage of investigation, it was too premature to declare the

transaction as civil transaction and quashing of FIR would not be

appropriate.

14. Learned counsel for the respondent has also placed

reliance on the judgment rendered by a coordinate Bench of this

Court in Manohar Singh Vs. The State of Rajasthan Anr.

(S.B.Criminal Misc. Petition No.2938/2014 decided on

26.09.2016), wherein the coordinate Bench of this Court had

refused to make any interference under the inherent jurisdiction

under Section 482 Cr.P.C., on prima facie disclosure of commission

of a cognizable offence.

15. After hearing the learned counsel for the parties as well

as perusing the record of the case alongwith the precedent law

cited at the Bar, this Court is of the opinion that on a bare reading
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of the FIR and on the face of it, the offence under Section 420

read with Section 120B is not made out, as the present petitioner

had merely entered into a financial transaction, and there is

nothing in the FIR nor on record, which could show that at the

very inception itself, the petitioner was of the view of not making

payment towards the goods so purchased.

16. A bare reading of the FIR clearly points out that the

bricks were purchased by the present petitioner, and

subsequently, the transactions between the parties went bad and

the petitioner refused to make payment on account of some other

business transaction, which is reflected in the proceedings on

record in the shape of legal notices given by both the parties to

each other under the Negotiable Instruments Act.

17. A bare reading of the FIR further reveals that the

matter pertains to civil law, and at best, the complainant could

have remedy for seeking the payment towards the material

supplied, but he has not been able to make out, in the FIR, a case

under Section 406 IPC.

18. In light of the aforesaid discussion and the precedent

law cited by learned counsel for the petitioner, the present misc.

petition is allowed and the impugned FIR dated 20.03.2015

bearing No.23/2015 registered at Bhainsrodgarh Police Station,

District Chittorgarh is quashed and set aside. The stay application

also stands disposed of.

(DR. PUSHPENDRA SINGH BHATI)J.

Skant/-

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