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Komal And Others vs State Of U.P. And Another on 29 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved on 27.4.2018

Delivered on 29.5.2018

In Chamber

Case :- APPLICATION U/S 482 No. – 40955 of 2011

Applicant :- Komal And Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Mahipal Singh

Counsel for Opposite Party :- Govt.Advocate,Anil Kumar Srivastava,Mohd. Samiuzzaman Khan

Hon’ble Abhai Kumar,J.

Heard Sri Prashant Kumar Singh, holding brief of Sri Mahipal Singh, learned counsel for the applicants, Sri Mohd. Samiuzzaman Khan, learned counsel for the opposite party no.2 and perused the record.

This petition under Section 482 Cr.P.C. has been filed with the prayer to quash the charge sheet no.244/11 dated 25.7.2011 arsing out of Case Crime No.376 of 2011, under Sections 406, 420, 504 and 506 I.P.C., Police Station Najibabad, District Bijnor as well as congnizance order dated 22.9.2011 passed by learned Judicial Magistrate 1st Class, Najibabad, Bijnor and further prayed to stay the further proceeding in Case No.1559 of 2011 (State vs. Komal and others), pending in the court of Civil Judge (J.D.)/Judicial Magistrate, Najibabad, Bijnor.

Brief facts of the case are as follows:

The opposite party no.2 lodged an FIR on 2.7.2011 against the applicants in reference to an occurrence, which is said to have taken place on 16.5.2005. The investigating officer after investigation submitted the charge sheet against the applicants.

It is submission of learned counsel for the applicants that investigating officer has not investigated the matter properly and fairly and has not taken into consideration the evidence of witnesses, namely, Naseem Ahmad and Sageer Ahmad. It is further submission of learned counsel for the applicants that dispute between the parties is purely civil in nature and initiation of criminal proceeding is blatant misuse of process of law and the same is being initiated just to pressurize the applicants to extract the money. It is alleged that an agreement entered between the applicant no.1 and husband of opposite party no.2 and if there is any dispute in regard to that, then remedy of civil nature is available to the husband of opposite party no.2. It is further submission of learned counsel for the applicants that no agreement ever took place as has been mentioned in the FIR. The agreement is forged and the same is being fabricated by the husband of opposite party no.2, who is Lekhpal. The applicant no.1 never took cash from the opposite party no.2 and other applicants have no concerned regarding the aforesaid agreement. It is admitted by learned counsel for the applicants that civil and criminal proceeding are going on between the parties and Bhupendra Singh, husband of opposite party no.2 just to blackmail the applicants, have fabricated the forged agreement.

Learned counsel for the opposite party no.2 vehemently opposed the contention of learned counsel for the applicants and submitted that investigating officer after finding evidence sufficient against the applicants, submitted the charge sheet and besides the agreement, there is another incident that is being mentioned in the FIR regarding threat extended by the applicants to the opposite party no.2, which is a disputed question of fact and the same cannot be decided by this Court in its extraordinary jurisdiction under Section 482 Cr.P.C.

Although, the agreement is being denied by the applicants, even if it is deemed to be true, then the remedy available to the opposite party no.2, is civil in nature and agreement ought to have been enforced in a civil proceeding. If any criminal proceeding is being drawn just to vent the remedy that is being available in civil proceeding, then same is ought to be considered very carefully and it is the duty of the Court to protect the interest of a genuine person.

So far as first part of FIR is concerned, which is related to the agreement, it can very well be said that dispute in this regard is civil in nature and no offence under Sections 406 and 420 I.P.C is made out. The crux of Section 420 as has been mentioned in Section 415 I.P.C., the intention of a person entering into an agreement should not be malafide from the very beginning and if it is not being proved that intention of a person is malafide at the time of entering into an agreement, an offence under Section 420 I.P.C. cannot be said to have been made out. Similarly, certain money is being given for the purpose of any business under an agreement, then same can also not be said that any offence under Section 406 I.P.C. is made out. It is not so that criminal proceeding can be set into motion by producing witnesses in support of the complaint. It is a pious duty of the Court whether the allegations made therein are genuine or baseless or frivolous.

The Hon’ble Apex Court in the case of Pepsi Foods Ltd. and another vs. Special Chief Judicial Magistrate and others1, has observed as follows:

“It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guideline is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.”

The Hon’ble Apex Court in the case of Pepsi Foods Ltd. and another (supra) further observed as follows:

“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

No doubt the magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. it was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants, If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that “in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused.” We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the magistrate as well, as the magistrate will not give any different conclusion on an application filed under section 245 of the code. The High Court says that the appellants could very well appear before the court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. if we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation.”

The Hon’ble Apex Court in the case of Pepsi Foods Ltd. and another (supra) concluded as follows:

“It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245 (2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against the. it is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it.”

If we see the facts of the present case, then it can very well be said that second part of the incident that has been shown in the FIR is being falsely made just to pressurize the applicants. In the FIR, it has been mentioned that applicants are threatening the opposite party no.2 and her husband as well as her family members and all four persons are criminal in nature and there is threat of life of family of applicant no.2. The allegations made therein are ambiguous in nature and has not been clearly made out. No date and time is being mentioned in the FIR and all the facts are referred in a general manner. It is not made clear as to when the threat is being extended and on what dates it is being extended.

It is clear that all these allegations are being made to give gravity to the offence and just to bring the matter under the criminal proceeding. As has been observed by the Hon’ble Apex Court, the same cannot be allowed to be perpetuated.

The Hon’ble Apex Court in the case of State of Haryana vs. Bhajan Lal2, has laid down some principle, which are required to be considered before initiation of any criminal proceeding. The observation of Hon’ble Apex Court is as follows:

“102. 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 decisions relating to the exercise of the extraordinary 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 channelized and inflexible guidelines or rigid formulae 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 FIR 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 FIR 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 FIR 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 FIR 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 or 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.”

The Hon’ble Apex Court in the case of State of Haryana vs. Bhajan Lal (supra) has clearly stated that where a criminal proceeding is manifestly attended with mala fide 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, the same cannot be allowed.

In the present case, an agreement is said to have taken place in the year 2005. No incident happened till 2011. One fine morning, it is alleged that no money under agreement is given and threat is being extended. No prudent person will ever accept this theory. It is manifestly clear that story of threat is fabricated one.

So far the liability of applicants under the agreement is concerned, the same can be judged in a civil proceeding and the Hon’ble Apex Court since the very beginning has in a very clear terms held that any civil liability cannot be allowed to be executed through criminal case by exerting pressure.

In V.Y. Jose and another Vs. State of Gujarat and another3, Hon’ble Apex Court in the similar circumstances held as follows:

“12. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.

15. There exists a distinction between pure contractual dispute of civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure.

We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or existence thereof from the very beginning of formation of contract.

Section 482 of the Code of Criminal Procedure, saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him.

It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is another thing to say that a person should undergo a criminal trial despite the fact that no case has been made out at all.”

In the present case as has already been discussed above, an offence under Section 420 I.P.C. is not made out if parties alleged to have agreed for a business to be under taken and money was given by husband of opposite party no.2. Agreement was observed by the parties and no complaint whatsoever is made till 2011, hence, it cannot be said that intention of accused was malafide from the very beginning.

Learned counsel for the applicants submitted that necessary ingredients of offence under Section 420 I.P.C., (in view of Section 415 I.P.C.), of ”inducement’, by practicing deception or; fraud or; dishonest means, at the time when the property (in respect of which the offence of cheating is alleged), was handed over to the accused, are completely lacking inasmuch as no allegation exists, either in the FIR or in the statements recorded during investigation, of only deception, fraud or dishonestly practiced by the applicants from the opposite party. He has relied upon a decision of the Supreme Court in Inder Mohan Goswami and another Vs. State of Uttaranchal and others4 , wherein it was held as below:

“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 a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.”

(emphasis supplied)

Clearly, from a plain reading of the FIR and the statements recorded during the course of the investigation and other material existing on record, the necessary ingredients of offence under Sections 420 read with section 415 I.P.C. are not made out on the relevant date, i.e. year 2005. Neither, the allegation of deception practiced by the applicant nor that of fraudulent or dishonest inducement made by him is alleged at the time when the opposite party no.2 lent the money to the applicants. The subsequent conduct of the applicants as alleged, is not relevant to establish the intention of the parties on the date of money being lent to the applicants.

From the FIR, it can be inferred that at the time of entering into an agreement, there was free will and money was given as per agreement due to need of applicant no.1. It is also alleged in the FIR that husband of opposite party no.2 was also assured to be made as partner and on that assurance the money is being given. It is pertinent to note that agreement is dated 18.5.2005, whereas the FIR was lodged in the year 2011. So there is no nexus between the money given and the fraudulent intention of the applicants since from the very beginning and accordingly, the charge under Section 420 I.P.C. is not made out.

As to the offence alleged under Section 406 I.P.C.-of criminal breach of trust, learned counsel for the applicants submits, for that offence to arise there had, first to be ”entrustment’ with the property and; thereafter arise dishonest misappropriation etc. of that property. According to him, in this case, the allegation of ”entrustment’ does not arise from a plain reading of the FIR and the statements recorded during the course of the investigation and other material existing on record.

He has relied on a decision of a division bench of this Court in State Vs. Tirath Das5 wherein it has been held – in case of loans or advances there would not arise ”entrustment’ to constitute an offence of criminal breach of trust, under Section 406 read with 405 IPC. It was held:

“10. In the present case………………………………………………….This handing over of the money may be termed as a deposit or may be termed as an advance. It is however, clear that it was not to be returned in specie, and the depositee was entitled to use the amount in his own business, but was bound to return the equivalent amount according to the directions of the complainant.

11. Section 405, Penal Code ……………………………………… Thus the section does not cover the case of a loan or of an advance of money when the borrower or the depositee intends to use or utilize that money, for the time being, till he is in possession of it, although he may have to return an equivalent amount later on to the person making the advance with or without interest, or compensation for the use thereof.”

(emphasis supplied)

Learned counsel for the opposite party no. 2 has, on the other hand, emphasized on the subsequent conduct of the applicants to establish that the applicants misappropriated the money.

Although, the agreement is denied by the applicants but even if it is deemed to be correct, then it can be said that as per agreement it was agreed that the husband of opposite part no.2 will be made partner that too in the year 2005. As per agreement, 70% money will be given by the husband of opposite party no.2 and 30% by applicant no.1 and parties will bear gain and loss in the same fashion. It is not alleged that the said business is wounded-up and as per the allegation made in the FIR, the same is still going on and in spite of demand, nothing has been given.

This money was given to the applicant no.1 as per agreement if it is true, then it can be said that money was given for a specific purpose and for utilization in the business under the promise to pay share of profit as well as to bear the loss in the business. Thus, the property lent was not to be returned in specific. Apparently, it is not mentioned in the FIR as to how the money to be used by the applicant no.1 and it can be inferred that applicant no.1 was entitled to use it as per own own volition with a stipulation to return the profit as said above.

In view of the above, applying the test laid down by this Court in the case of State vs. Teerath Das (supra), there was no entrustment of any property in favour of applicant no.1 by the husband of opposite party no.2.

In view of the above, the charges under Section 406 I.P.C. as well as Section 420 I.P.C. are not made out and as has already been discussed above, the criminal proceeding is being initiated just to harass and pressurize the applicants in the case going on between the parties and same is misuse of process of law and cannot be allowed to remain.

Consequently, the petition under Section 482 Cr.P.C. succeeds and is allowed. The proceeding of Case Crime No.376 of 2011, under Sections 406, 420, 504 and 506 I.P.C., Police Station Najibabad, District Bijnor as well as congnizance order dated 22.9.2011 passed by learned Judicial Magistrate 1st Class, Najibabad, Bijnor arisng out of Case No.1559 of 2011 (State vs. Komal and others), pending in the court of Civil Judge (J.D.)/Judicial Magistrate, Najibabad, Bijnor, is hereby quashed.

Order Date :- 29.5.2018

Ajeet

(Abhai Kumar,J.)

 

 

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