Surendra Singh vs State Of U.P. And Another
2021 Latest Caselaw 11405 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R.
 
Court No. - 89
 

 
Case :- APPLICATION U/S 482 No. - 24377 of 2021
 

 
Applicant :- Surendra Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rajendra Babu Gaur
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Rajendra Babu Gaur, learned counsel for the applicant and Sri K.K.Rajbhar, learned AGA, who appears for the opposite party no.1.

2. The present application purported to be under Section 482 Cr.P.C. for quashing of the Complaint Case No.1546 of 2020, (Anuj Traders Vs. Surendra Singh) under Section 138 of the Negotiable Instrument Act, 1938 P.S. Tilhar, District Shahjahanpur arising out of summoning order dated 4.3.2021 passed by Civil Judge, Junior Division/Judicial Magistrate, Shahjahanpur.

3. Briefly stated the facts of the case are that the opposite party no.2 lodged a complaint against the applicant for the offence under Section 138 of N.I. Act alleging that the applicant had taken loan of a certain amount from the opposite party no.2. It has further been lodged previously also the applicant used to take loan/financial assistance from opposite party no.2.

4. Consequently, the applicant issued a cheque of State Bank of India Branch Tilhar having account no.39516567432 dated 29.10.2020 and when the said cheque was submitted in the bank account of the opposite party no.2, then the same was not passed for the reason that request of stop payment has been made by the applicant. Even after the notice, the applicant did not pay the said amount.

5. Accordingly, the opposite party no.2 filed the complaint case no.1546 of 2010. The affidavit was submitted under Section 202 Cr.P.C.

6. The Court below by virtue of the order impugned dated 4.3.2021 has now issued summons to the applicant herein for the offence referable to Section 138 N.I. Act.

7. The Hon'ble Apex Court in the case of R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 has the occasion to consider the parameter provisions contained under section 561-A of the Cr.P.C. 1898 viz a viz the provisions contained under section 482 of the Cr.P.C. 1973 and the Hon'ble Supreme Court has carved out the same exceptions which relating to exercise of inherent power as conferred under section 482 Cr.P.C. referable to quash all the criminal proceeding at the behest of the accused.

"(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(ii) Where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not.

(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained."

8. The following judgment in the case of R.P. Kapur (supra) the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335 held as under:-

"102.(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 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 Act concerned (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 Act concerned, 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."

9. The law laid down in the case of R.P. Kapur (Supra) and Bhajan Lal (Supra) was also reiterated in the case of State of Andhra Pradesh Vs. Golconda Linga Swami (2004) 6 SCC 522 wherein the Hon'ble Apex Court has observed as under:-

"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers 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) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, 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 by law. That is the doctrine which finds expression in the section which merely recognises 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 alique concedit, conceditur et id sine quo res ipsa esse non potest (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 justitiae 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 such abuse. It would be an abuse of the 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 or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.....

8. 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. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. 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 perspective 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 proceeding at any stage. See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."

10. Yet, the Hon'ble Apex Court in the case of Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haqu(2005) 1 SCC 122 has observed as under:-

"11. ... 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. Court must be careful to see that its 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 perspective 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 proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premise arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."

11. Further, in the case of Sanapareday Maheedhar Seshagiri v. State of Andhra Pradesh (2007) 13 SCC 165 the Hon'ble Apex Court has in pare 31 has further observed as under:-

"31. A careful reading of the abovenoted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC."

12. Further in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779 the Supreme Court has held in categorically terms that the inherent powers so conferred u/s 482 Cr.P.C. can only be exercised in an appropriate case where no cognizable offence is disclosed in the FIR.

13. Recently, the Hon'ble Supreme Court has reiterated the principles of law as enumerated right from the decision in the case of R. P. Kapur (Supra) and in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192 and the paragraph no. 23 culled the following propositions of law which is enumerated hereinunder:-

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

iii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of

justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

14. In nutshell, it can be safely said that while exercising the powers under section 482 Cr.P.C. the courts of law have to be cautious in exercising of power as extent and the limit of the power is nowhere codified or defined anywhere. The exercise of inherent power is to done in a manner in which there is no scope of injustice as the powers so exercised under the said provisions is to prevent injustice and to secure the ends of justice. However, the powers so conferred under section 482 Cr.P.C. as interpreted by the Hon'ble Supreme Court while defining the scope and the ambit as well as also extent is to be in such a manner there should be prevention of judicial process being exercised by vindictive litigants.

15. Though, obviously the powers so exercised cannot be put in straitjacket formula as the same has to be exercised as per the facts and circumstances of individual cases in hand. Needless to point out that in an appropriate case and in the light of mandate of the Hon'ble Apex Court as referred to above the High courts are not helpless in undoing any wrong or injustice as the only purpose for insertion of section 482 Cr.P.C. is to secure justice and eliminate the chances of any accused being allowed to walk away. Nonetheless, the inherent powers so exercised under section 482 Cr.P.C. is also engrafted just in order to wriggle out an innocent person, who has been falsely implicated in a criminal case. In other words, section 482 Cr.P.C. is a devise in eliminating injustice.

16. On the touch stone of the aforesaid proposition of law as culled out by the Hon'ble Apex court the present case is to be decided.

17. Learned counsel for the applicant has sought to argue that he has not committed any offence as alleged in the complaint culminating into passing of the order summoning the applicant. In other word the principal submission of learned counsel for the applicant is to the extent that he is innocent and the entire allegations so sought to be levelled against him are false and malafide act.

18. Learned counsel for the applicant has further argued that he had not taken loan from the opposite party no.2 as according to the learned counsel for the applicant the cheque in question was misplaced by his son and it appears that the same was recovered by opposite party no.2 and on the said premises he initiated criminal proceedings against the applicant.

19. Learned counsel for the applicant has further argued that there was no occasion for the applicant to take financial assistance from the opposite party no.2 and in support thereof he has referred to a document that the agricultural activity is being carried out of somebody else though the land belongs to the applicant.

20. In nutshell, learned counsel for the applicant has argued that once the cheque got misplaced, he had inspected the bank to stop the payments.

21. Countering the said submissions learned AGA has submitted that all factual issues are being sought to be raised at very trial stage. These are the defences which are being claimed by the applicant and the same can be suitably raised and decided at the stage of trial itself.

22. In nutshell, the argument of learned AGA is to the effect that inherent powers under Section 482 Cr.P.C. should not be exercised in the facts of the case, when in the absence of any illegality or perversity committed by the court below while issuing summons.

23. I have gone through the pleading set forth in the present application as well as arguments canvassed by the learned counsel for the applicant revolves around factual score with relation to missing of the cheques, possession of the cheque by the opposite party no.2 and the fact that there was no occasion for the applicant to have taken amount from the opposite party no.2. The said facts cannot be determined and gone into at pre-trial stage as at best they can be the defence of the applicant which can be raised during the course of the trial.

24. All the defence with the learned counsel for the applicant as raising the subject matter of trial.

25. On the pointed query made to the learned counsel for the applicant with regard to the fact as to whether there is any jurisdictional error committed by the court below, learned counsel has made argument on factual score.

26. Be that as it may the present case is not a fit case wherein inherent power under Section 482 Cr.P.C. can be invoked.

27. Accordingly the present application is dismissed and consigned to record. However, it is open to the applicant to prefer appropriate application either while seeking bail or moving discharge application. This Court expects that the court below will decide the same for expeditiously and without being any influenced by observation made hereinabove while applying independent application of mind.

Order Date :- 30.11.2021

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