Kiran Bhai Kapadiya & Ors vs State & Anr on 1 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 726 / 2016

1. Kiran Bhai Kapadiya s/o Narayan Bhai – Director Partner.

2. Rasik Bhai s/o Girdhar Bahi – Director.

3. Praveen Bhai s/o Narayan Bhai – Director.

4. Subhash Hada – Ex-Regional Manager of M/s. Karan Agri
Genetics Pvt. Ltd., Jay Khodiyar Industrial Estate, Juangadh –
Rajkot Road, Sukhpur, Ta. District Junagarh (Gujarat).

—-Petitioner
Versus

1. The State of Rajasthan.

2. Shri Ashok Kumar Kamediya s/o Late Shri Pema Ram Kamediya,
b/c Kamediya (Jat) – Proprietor M/s.Hariyali Khad Beej Agency,
Anaj Mandi, Bikaner and resident of C-116, Samtanagar, Bikaner
(Rajasthan)

—-Respondent/Complainant
__
For Petitioner(s) : Mr.Kapil Purohit
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.

Mr.Pankaj Gupta
Mr.Rajendra Singh (C.O.) Sardar, Bikaner.
__
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
Reserved on 03/10/2017

Pronounced on 01/11/2017

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

has been preferred against FIR No.42 dated 01.03.2016 registered

at Police Station, Bichhwal, District Bikaner for the offences under

Sections 420, 406, 467, 468, 471 and 120B IPC.

2. The interim order, in this case, was passed on

28.03.2016 and is continuing till date.

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3. Learned counsel for the petitioners has submitted that

the amount outstanding towards M/s. Hariyali Khad Beej Agency

was reflected in the ledger for the period from 01.04.2015 to

17.07.2015. The amount was outstanding against the complainant

in connection with the goods supplied to the complainant.

4. Learned counsel for the petitioners has also submitted

that the post dated cheques for the period were issued on

13.08.2017. The said three cheques bearing No.439033, 439034

and 439035 were submitted on the concerned Bank on

23.11.2015, 30.11.2015 and 24.11.2015 respectively, which were

returned by the Bank on 24.11.2015, 30.11.2015 and 25.11.2015

respectively.

5. The legal notice dated 09.12.2015 under Section 138 of

the Negotiable Instruments Act was served upon the complainant

on 15.12.2015. On 21.12.2015, a letter was sent by the

complainant, denying the outstanding amount of the cheques, and

thereafter, the cases were filed on 25.01.2016 bearing Cases

No.71/2016, 72/2016 and 73/2016 under Section 138 of the

Negotiable Instruments Act in respect of the aforesaid three

dishonoured cheques.

6. After filing of the cases on 25.01.2016, as aforesaid,

the present FIR was lodged by the complainant on 01.03.2016 as

a counter-blast. The copy of the Bank statement of the petitioner

is also on record, reflecting that the transaction had taken place

between the parties.

7. Learned counsel for the respondent has however, stated

that the cheque was on the name of ‘Karan Agri Genetics’ and not
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‘Karan Agri Genetics Private Limited’, and therefore, the

petitioners had illegally entered the words ‘Private Limited’ and

created a forged document.

8. Learned Public Prosecutor has stated that the detailed

status report has been submitted, in which the details of the

investigation have been mentioned.

9. In support of his submissions, learned counsel for the

petitioners relied upon the precedent law laid down by the Hon’ble

Apex Court in D.P.Gulati, Manager Accounts, M/s.Jetking

Infotrain Vs. State of Uttar Pradesh Anr., reported in

2015 AIR SCW 6051, relevant paras 7 to 9 of which read as

under:-

“7. We have carefully considered the rival submissions
made before us. From bare perusal of Section 482 of
the Code, it is clear that the object of exercise of
power Under the Section is to prevent abuse of
process of law, and to secure ends of justice. In Rajiv
Thapar and Ors. v. Madan Lal Kapoor : (2013) 3 SCC
330, this Court has enumerated the steps required to
be followed before invoking inherent jurisdiction by the
High Court Under Section 482 of the Code as under:

“30. Based on the factors canvassed in the
foregoing paragraphs, we would delineate the
following steps to determine the veracity of a
prayer for quashment raised by an accused by
invoking the power vested in the High Court Under
Section 482 Code of Criminal Procedure:
30.1. Step one: whether the material relied upon
by the accused is sound, reasonable, and
indubitable i.e. the material is of sterling and
impeccable quality?

30.2. Step two: whether the material relied upon
by the accused would rule out the assertions
contained in the charges levelled against the
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accused i.e. the material is sufficient to reject and
overrule the factual assertions contained in the
complaint i.e. the material is such as would
persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as
false?

30.3. Step three: whether the material relied upon
by the accused has not been refuted by the
prosecution/complainant; and/or the material is
such that it cannot be justifiably refuted by the
prosecution/complainant?

30.4. Step four: whether proceeding with the trial
would result in an abuse of process of the court,
and would not serve the ends of justice?
30.5. If the answer to all the steps is in the
affirmative, the judicial conscience of the High
Court should persuade it to quash such criminal
proceedings in exercise of power vested in it
Under Section 482 Code of Criminal Procedure.
Such exercise of power, besides doing justice to
the accused, would save precious court time,
which would otherwise be wasted in holding such
a trial (as well as proceedings arising therefrom)
specially when it is clear that the same would not
conclude in the conviction of the accused.”

8. In Rishipal Singh v. State of Uttar Pradesh and
Anr. : (2014) 7 SC 215, explaining the law in the
similar circumstances, as in the present case, this
Court observed, in paragraph 17, as under:
“It is no doubt true that the courts have to be very
careful while exercising the power Under Section
482 Code of Criminal Procedure. At the same time
we should not allow a litigant to file vexatious
complaints to otherwise settle their scores by
setting the criminal law into motion, which is a pure
abuse of process of law and it has to be interdicted
at the threshold.”

In Rishipal Singh (supra), the complainant, who was an
accused in connection with an offence punishable Under
Section 138 of the Act, had filed a criminal complaint
relating to offences punishable Under Sections 34, 379,
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411, 417, 418, 467, 468, 471 and 477 Indian Penal
Code.

9. In view of above position of law, and having regard to
the facts and circumstances of the case in hand, and
after going through the criminal complaint filed against
Respondent No. 2 and thereafter, one filed by him
against the Appellant, we are of the view that it is a
clear case of abuse of process of law on the part of
Respondent No. 2.”

10. Learned counsel for the petitioners has also placed

reliance on the decision rendered by this Court in Hanuman Vs.

The State of Rajasthan Anr. (S.B.Criminal Misc. Petition

No.1490/2017 decided on 21.08.2017), which reads as

under:-

“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 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.

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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.

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
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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
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
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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
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
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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.

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
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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. 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
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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
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
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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.”

11. Heard learned counsel for the parties and perused the

record of the case alongwith the precedent law cited at the Bar.

12. The condition No.7 of the precedent law laid down by

the Hon’ble Apex Court in State of Haryana Ors. Vs.

Ch.Bhajan Lal Ors.,1992 Supp.(1) SCC 335 is clearly

attracted in the present case, as the complainant had complete

knowledge that he was facing proceedings under Section 138 of

the Negotiable Instruments Act in relation to the aforementioned

three cheques and there was no reason available for the

complainant to have escaped the liability arising out of the said

three cheques. In light of the aforesaid condition No.7, in which

the counterblast has been stated to be a perfect reason for

granting indulgence in a case of Negotiable Instruments Act for

the Court to stop abuse of the process of the malicious criminal

proceedings instituted with ulterior motive for wreaking vengeance

on the accused.

13. It is apparent that the cheques were submitted in 2015

and as soon as the aforesaid legal notice dated 09.12.2015 under

Section 138 of the Negotiable Instruments Act was served upon

the complainant on 15.12.2015 and a letter was sent by the

complainant on 21.12.2015, as a counterblast, the present FIR

has been lodged by the complainant on 01.03.2016 levelling

allegations against the petitioners, which clearly are nothing but
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an effort of the complainant to escape the liability arising out of

the Negotiable Instruments Act.

14. The presumption clause of the Negotiable Instruments

Act is absolute and has been discussed in the precedent law cited

above, and thus, allowing the complainant to carry on with such

malicious criminal proceedings in response to the proceedings

under Section 138 of the Negotiable Instruments Act would be

nothing but an abuse of the process of law.

15. Learned Public Prosecutor has shown the case diary,

and the case diary does not reflect any answer to the counterblast

criminal proceedings, as it is reflected by the documents that the

cheques were actually issued by the complainant, and even if

some kind of dispute regarding the multiple Firms, or the words

‘Private Limited’ is there, the same can be a good defence for the

complainant at the time of contesting the proceedings under

Section 138 of the Negotiable Instruments Act, but the same

cannot be a ground for criminal prosecution against the

petitioners.

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

precedent law cited by learned counsel for the petitioners, the

present misc. petition is allowed and the impugned FIR No.42

dated 01.03.2016 registered at Police Station, Bichhwal, District

Bikaner is quashed and set aside. The stay application also stands

disposed of.

(DR. PUSHPENDRA SINGH BHATI)J.

Skant/-

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