Johnny Raphael vs Jitendra Dattatray Ghadegavkar ...
2017 Latest Caselaw 3551 Bom

                                                                                              Cri.Appln 766-10 dict.doc

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPLICATION  NO.   766  OF 2010
                                                    

                Mr. Johnny Raphael,
                Aged 58 years,
                Legal Consultant for 
                Induslnd Media & Communication Ltd.,
                a company incorporated in India
                under the Indian Companies Act, 1956
                and having its registered office at
                215-G, New Charni Road,
                Next to Hinduja College,
                Mumbai 400 004                                                                   ..Applicant 
                                                                                           
                                  v/s.

                1. Jitendra Dattatraya Ghadegavkar,
                    a partner in M/s. In Cable Communications
                    having its address at B-24, 
                    Station Plaza, Station Road,
                    Bhandup (West), 
                    Mumbai 400 078.

                2. Senior Inspector of Police,
                    Bhandup Police Station, 
                    Bhandup, Mumbai

                3.  State of Maharashtra                                                ..Respondents

                Mr. Subodh Desai a/w. Mr. Prashant Asher i/b. M/s. Crawford Bayley 
                & Co. for the Applicant.
                Mr.,K.V.Saste, APP for the Respondent Nos.2 and 3.




salgaonkar                                                                                                        1 of 15

                  ::: Uploaded on - 28/06/2017                                     ::: Downloaded on - 30/06/2017 00:10:18 :::
                                                                           Cri.Appln 766-10 dict.doc

               
                                                CORAM : A.S.OKA &
                                                                 SMT. ANUJA PRABHUDESSAI, JJ.

RESERVED ON : 8TH MARCH, 2017.

PRONOUNCED ON: 23rd JUNE, 2017.

JUDGMENT (PER ANJUA PRABHUDESSAI, J.).

1. By this application, filed under Section 482 of Criminal

Procedure Code, the applicant has sought to quash and set aside

MECR No.1 of 2010 under section 467, 420 and 120-B IPC,

registered pursuant to Order dated 18th January, 2010 in Criminal

Complaint No. 2/MISC/2010 passed by the learned Metropolitan

Magistrate, 53rd Court, Mulund, Mumbai.

2. The applicant is a legal consultant with IndusInd Media and

Communications Ltd (hereinafter referred to as "the Company").

The said Company is carrying on business of Cable TV network

including supply of programme packages to various cable operators.

The said Company had appointed M/s. Inn Cable Communication, a

Partnership Firm as one of its distributors. The respondent No.1 and

one Suresh Thakur are the partners of M/s. Inn Cable

Communication (Hereinafter referred to as "the Partnership Firm").

salgaonkar 2 of 15

Cri.Appln 766-10 dict.doc

The said Partnership Firm was responsible to collect the amounts

from various operators and forward the same to the Company.

3. In April 2008 the said Partnership Firm stopped working for the

said Company. On 23rd September, 2008 the Company deposited

cheque dated 1st April, 2008 for an amount of Rs.1,60,00,000/- with

their bankers Induslnd Bank Ltd. The Company claims that the

Partnership Firm had issued the said cheque in part discharge of its

liability. The said cheque was dishonored for the reason "instrument

stopped by the drawer'. The Company issued statutory notice to the

respondent no.1 as well as to the Partnership Firm and the other

partner Mr. Suresh Thakur and subsequently filed a complaint under

Section 138 of the Negotiable Instruments Act.

4. The learned Magistrate after considering the statements of the

applicant and the Officer of the company's banker, as well as the

documentary evidence, by order dated 16 th June, 2009 issued process

against the Partnership Firm and its partners viz. Mr. Suresh Thakur

and the respondent no.1 hereinabove for the offence under Section

salgaonkar 3 of 15

Cri.Appln 766-10 dict.doc

138 of the Negotiable Instruments Act. The Respondent no. 1 and the

other accused in the said case have challenged the said order by filing

revision application before the learned Sessions Judge.

5. On 5.1.2010, the respondent no.1 filed a complaint/application

under Section 156(3) Cr.P.C. before the learned Metropolitan

Magistrate 53rd Court, Mulund, Mumbai. The respondent no.1

alleged that the Partnership Firm had issued a signed blank cheque

bearing no.843267 in favour of the Company as monthly collateral

security. The respondent no.1 claimed that in the month of April

2008, the Partnership Firm ended its relationship with the Company

and floated a new Company.

6. The Respondent no.1 claimed that the Partnership Firm had

issued a letter to its bankers and requested to stop payment of the

said cheque. The Partnership Firm had also requested the Company

to return the said cheque. The respondent no.1 claimed that the

Company without the consent of the partners forged the blank

cheque into a valuable security to the tune of Rs.1.6 crores and

salgaonkar 4 of 15

Cri.Appln 766-10 dict.doc

presented the same in the bank and upon the cheque being

dishonoured, the Applicant filed a complaint against the Partnership

Firm and the partners for an offence under Section 138 of the

Negotiable Instruments Act.

7. On the basis of the said allegations, the learned Magistrate by

order dated 18thJanuary, 2010 issued directions under Section 156(3)

of Cr.P.C. Pursuant to the said order, the respondent no.2 registered

MECR No.1 of 2010 against the applicant and the others for offences

under section 420, 427 r/w. 120(B) of Indian Penal Code, which is

sought to be quashed in the present proceedings.

8. The learned Counsel for the applicant has submitted that the

proceedings initiated by the respondent no.1 are actuated by

malafides and ulterior motive. The said complaint is nothing but a

counter blast to 138 proceedings initiated against the respondent

no.1 and others. He has submitted that the allegations leveled

against the applicant, even if assumed to be true, do not make out

any offence under Section 420, 467 and 120B of Indian Penal Code.

salgaonkar 5 of 15

Cri.Appln 766-10 dict.doc

He has submitted that continuation of such proceedings would be

abuse of process of law.

9. We have perused the records and considered the submissions

advanced by the learned Counsels for the respective parties. The

Apex Court in plethora of judgments has explained the scope and

ambit of the powers of the High Court under section 482 Cr.P.C. In

State of Haryana vs. Bhajanlal1 the Apex Court has listed the

categories of cases when the power under Section 482 of the Code of

Criminal Procedure can be exercised by the High Court. The Apex

Court in Rishipal Singh vs. State of U.P.2 after taking survey of the

earlier decisions with regard to the scope and object of Section 482

of Code of Criminal Procedure, has held that :

" 12. This Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C. In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335, this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in (1) Central Bureau of Investigation v. Duncans Agro

1 1992 SCC (Cri) 426 2 (2014) 7 SCC 2015

salgaonkar 6 of 15

Cri.Appln 766-10 dict.doc

Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque & Anr (2005) 1 SCC 122. This Court in Zandu Pharmaceuticals Ltd., observed that:

"The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Section 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72.

What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482 Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact.

13. In the backdrop of the legal position, well settled by this Court through catena of judgements, we would like to deal with the facts of the present case which lead to filing of the present complaint against the appellant

salgaonkar 7 of 15

Cri.Appln 766-10 dict.doc

under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. on the file of the Additional Chief Judicial Magistrate, Ghaziabad.

10. There can be thus no dispute that the inherent powers

conferred on the Court under Section 482 of Cr.P.C., though vast,

have to be exercised sparingly and with circumspection to prevent

abuse of process of the court or to subserve the ends of justice. It is

well settled that the test to be applied by the Court in exercise of

these powers is as to whether the uncontroverted allegations in the

FIR disclose the essential ingredients of the offence.

11. In the instant case, the applicant is alleged to have committed

offences under Section 420, 467 r/w. 120(B) of Indian Penal Code.

Hence, before adverting to the facts of the case, it would be

advantageous to refer to the provisions and the ingredients of the

alleged offences.

12. Section 420 of Indian Penal Code prescribes punishment for an

offence of 'Cheating', which is defined under Section 415 of IPC as

salgaonkar 8 of 15

Cri.Appln 766-10 dict.doc

under:

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"

Explanation: A dishonest concealment of facts is a deception within the meaning of this section.

13. Thus, in order to constitute an offence of cheating, there must

be deception of any person, fraudulently or dishonestly inducing that

person -

(i) to deliver any property to any person; or

(ii) to consent that any person shall retain any property; or

(b) intentionally inducing that person to do or omit to do anything

which he would not do or omit if he were not so deceived, and which

act or omission causes or is likely to cause damage or harm to that

person in body mind, reputation or property.

14. Section 467 of IPC deals with offence relating to offence of

salgaonkar 9 of 15

Cri.Appln 766-10 dict.doc

valuable security and the same reads as under:

"467. Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

15. Thus, the essential ingredient of section 467 is forgery of the

document enumerated in the section. The terms 'Forgery' is defined

in Section 463 I.P.C. The essential ingredient of Forgery is making a

false document as defined in Section 464 of Indian Penal Code. In

short, the person is said to have made a false document - (i) if he

makes or executes the document claiming to be someone else or

authorized by someone else; or (ii) of if he altered or tampered a

document; or (iii) the obtained a document by practicing deception,

or from a person not in control of his senses.

salgaonkar 10 of 15

Cri.Appln 766-10 dict.doc

16. Section 120A defines conspiracy as under:

" When two or more persons agree to do, or cause to be done,-

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation:- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

17. The essential ingredient of the offence of criminal conspiracy is

an agreement between the persons to commit an offence i.e. to do an

illegal act or an act by illegal means.

18. Having considered the aforesaid provisions, the question which

falls for our determination is whether the uncontroverted averments

made in the complaint/application under Section 156(3) Cr.P.C.

disclose the essential ingredients of the offences under Section 467,

salgaonkar 11 of 15

Cri.Appln 766-10 dict.doc

420, r/w. 120B of the Indian Penal Code.

19. Reverting to the facts of the present case, it is not in dispute

that the Partnership Firm had issued a cheque bearing No.843267 in

favour of the Company. The said cheque was dishonoured for the

reason "instrument stopped by the drawer", and that proceedings for

offence under Section 138 of the Negotiable Instruments Act are

pending against the Partnership Firm and its partners. The

respondent no.1, who is one of the partners had lodged a complaint

at Bhandup Police Station alleging that the cheque on the basis of

which complaint under Section 138 of Negotiable Instrument Act was

filed, was forged by the Company by altering the date from 1.4.2008

to 1.9.2008. In this regard it is relevant to refer to the order dated

17th March, 2010 of this Court (B.R.Gavai, J.) which reads as under :-

"...

2. It was basically the contention of the respondent, that the cheque on the basis of which the proceedigns under Section 138 of the Negotiable Instruments Act have been initiated by the present applicant was dated 1.9.2008. However, the date was changed to 1.4.2008.

salgaonkar 12 of 15

Cri.Appln 766-10 dict.doc

3. I have also perused the oriignal cheque. The original cheque tallies with the cheque which has been produced at page 25 of the paper book.

4. Primafacie, even the contention of the applicant regarding cheque no.843267 being dt.1.9.2008 also does not appear to be correct. Perusal of Exh.L i.e. letter dt.9.3.2009 addressed to the respondent no.1 by his bankers would show that cheque no.843266 has been cleared on 31st March, 2008 and the cheque no.843268 is cleared on 9.4.2008 , as such the contention of the respondent-complainant regarding cheque no 843267 dt.1.9.2008 appears to be atleast prima facie incorrect.

20. The respondent no.1 had challenged the said order before the

Apex Court in SLP No.3671 of 2010. By order dated 2 nd August,

2013 the said SLP has been dismissed as withdrawn. We are

conscious of the fact that the observations in order dt. 17th March,

2010 were prima facie observations made at the stage of admission.

Nevertheless, it has to be noted that the allegations in the

complaint/application under Section 156(3) are that the cheque

which is the subject matter of 138 proceedings was given as a

collateral security. The said complaint/application under Section

salgaonkar 13 of 15

Cri.Appln 766-10 dict.doc

156(3) does not state that the Company or the applicant herein had

altered or tampered the date of the subject cheque, or that the said

cheque was obtained by practicing deception. Similarly, the

complaint/the application under Section 156(3) also does not

contain the allegations of deception, false or misleading

representation and/or fraudulent or dishonest inducement to deliver

any property. The only accusation in the complaint/156(3)

application is that the Company had filled in the date and the

amount in the blank cheque which was issued as a collateral security.

Suffice it to say that mere insertion of the date or the amount in a

blank cheque or presenting the cheque despite instructions of "stop

payment" do not constitute offence of forgery or cheating as defined

under Section 463/464 and 420 of the Indian Penal Code.

21. Thus, the uncontroverted allegations made against the

applicant even if taken at their face value, do not disclose the

essential ingredients either of cheating, forgery or conspiracy. These

allegations can at the most be a matter of defence in 138

proceedings, but certainly cannot be the basis for issuing process

salgaonkar 14 of 15

Cri.Appln 766-10 dict.doc

under Section 467, 420 and 120B of Indian Penal Code against the

present applicant who is only a legal consultant of the Company. In

such circumstances, continuation of the criminal proceedings against

the present applicant would tantamount to abuse of process of law.

Hence, in our considered view this is a fit case to invoke the

jurisdiction of Section 482 of Cr.P.C. and to quash MECR No.1 of

2010 and all the further proceedings arising from the said MECR

No.1 of 2010 qua the applicant.

22. For the reasons stated above, the application is allowed.

. MECR No.1 of 2010 registered with Bhandup Police Station

pursuant to the order dated 18th January, 2010, passed by the of the

learned Metropolitan Magistrate's, 53rd Court, Mulund, Mumbai, in

Criminal Complaint No.2/Misc/2010 and all further proceedings , if

any, arising from the said MECR No.1 of 2010 are hereby quashed

and set aside qua the present applicant.

             (ANUJA PRABHUDESSAI, J.)                                  (A.S.OKA, J.)




salgaonkar                                                                                     15 of 15