Bombay High Court
Sameer S/O. Sureshchandra Tripathi vs State Of Maharashtra Thr. P.S.O. ... on 27 September, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:10798
246.Cri.Apl.612.2018.jud.+1.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 612 OF 2018
Sameer S/o. Sureshchandra Tripathi,
Aged about : 40 yrs, Occ: Business,
R/o. Flat No.201, Hayat Residency,
Bhagvaghar Layout, Dharampeth,
Nagpur. .... APPLICANT
// V E R S U S //
1. State of Maharashtra,
Through P.S.O. Dhantoli Police Station,
Nagpur
2. Sanjay S/o. Gulabchand Gupta,
Aged about : 50 Yrs., Occu.: Business,
R/o. Aath Rasta Chowk, Laxminagar,
Nagpur
3. Gulabchand Bhairavprasad Gupta,
Aged about : 80 Yrs., Occu.: Business,
R/o. Aath Rasta Chowk, Laxminagar,
Nagpur ... RESPONDENTS
WITH
CRIMINAL APPLICATION (APL) NO. 613 OF 2018
Sameer S/o. Sureshchandra Tripathi,
Aged about : 40 yrs, Occ: Business,
R/o. Flat No.201, Hayat Residency,
Bhagvaghar Layout, Dharampeth,
Nagpur. .... APPLICANT
// V E R S U S //
1. State of Maharashtra,
Through P.S.O. Dhantoli Police Station,
Nagpur
246.Cri.Apl.612.2018.jud.+1.odt
2
2. Gulabchand Bhairavprasad Gupta,
Aged about : 80 Yrs., Occu.: Business,
R/o. Aath Rasta Chowk, Laxminagar,
Nagpur ... RESPONDENTS
-----------------------------------------------------------------------------------------------
Mr Masood Shareef, Adv. with Adv. Adil Anwar J. Mirza, Advocates for
applicant in both applications.
Ms H. S. Dhande, APP for the respondent No.1/State in both applications
Mr A. S. Mardikar, Sr. Adv. assisted Mr D. P. Singh and Mr C. B.
Dharmadhikari, Advocates for respondent Nos.2 and 3 in APL No.
612/2018 and Advocate for respondent No.2 APL No.613/2018
Mr Anand Parchure, Advocate for respondent No.3 in APL No. 612/2018
and for respondent No. 2 in APL No. 613/2018
-----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
JUDGMENT RESERVED ON : 20.08.2024
JUDGMENT PRONOUNCED ON : 27.09.2024
JUDGMENT :
1 Both these applications arise out of two separate
judgments of discharge of accused No.1 and 2/respondent Nos.
2 and 3, dated 05.05.2018, passed by the learned Additional
Sessions Judge, Nagpur in Criminal Revision Application No.
90 of 2018 and Criminal Revision Application No. 265 of
2017 and therefore, both these applications are being disposed
of by the common judgment. The applicant in both
applications is the original complainant and the respondent
Nos.2 & 3 in Cri.Apl. No.612 of 2018 are the accused persons.
246.Cri.Apl.612.2018.jud.+1.odt
2 Background facts
The complainant/applicant is engaged in the hotel
business and is the owner of 'Mustard' and 'Bawarchi' hotels.
Accused No.1 Sanjay is the proprietor of the hotel Ashok,
Nagpur. Accused No.2 is the father of accused No.1. The
complainant came into contact with accused No.1 in
connection with the management of food and beverages at
Hotel Ashok Nagpur. The Hotel Ashok Nagpur, was to be
inaugurated very soon. The complainant was looking for the
premises for running the business of his catering. He
approached accused No.1. Accused No.1 told the complainant
that he is looking for a reliable person to provide food and
beverages for the banquet hall of the hotel. Accused No.1,
represented that three star hotel by name 'The Ashok Nagpur',
having an alliance with the Indian Tourism Development
Corporation, was to be inaugurated very soon. In connection
with this business, an agreement was arrived at between the
complainant and accused No.1. It was agreed that at the initial
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stage accused Nos. 1 and 2 would allow the complainant to
provide the services of food and beverages from the premises of
the hotel. It was also agreed that the complainant should give
25% of the total sale to the accused and he should retain the
balance 75%. The complainant believed them. The
complainant agreed to deposit Rs.40,00,000/- with accused
No.1 as a security deposit. The complainant paid the amount of
Rs.20,00,000/- by two cheques i.e. one drawn on his account
maintained with Punjab National Bank for Rs.5,00,000/- in the
name of accused No.2 and another drawn on Tirupati Urban
Co-operative Bank of Rs.15,00,000/- in the name of Accused
No.1.
3 For the purpose of starting the business, the
necessary articles namely crockery, utensils, chairs and tables,
were required as suggested by accused No.1. They went to
China for purchasing the articles. At that time, the complainant
paid Rs.23,00,000/- to accused No.1. The complainant had
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engaged the staff. He paid salary to the tune of Rs.5,00,000/-
to the staff. The contract between the complainant and accused
Nos.1 and 2 was not reduced into writing because accused Nos.
2 on one pretext or the other avoided to reduce the agreement
into writing.
4 It is the case of the complainant that accused No.1
informed him that the inauguration function was arranged on
06.02.2011. The complainant made the arrangement of food
etc. for 700 dignitaries and the guest from his own restaurants
'Mustard' and 'Bawarchi'. Accused No.1 did not pay for the
same. The complainant was informed by accused No.1 that the
hotel would be opened for public on 18.02.2012. It is alleged
that accused No.1 all of a sudden changed his attitude and
started avoiding the complainant. He was trying to keep the
complainant away from working in the food and beverages
department. He did not provide the account of the same. Later
on, accused No.1 called upon the complainant to stop working
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from hotel Ashok and took charge of the entire hotel. It is
stated that accused No.1 cheated the complainant.
5 The complainant, therefore, filed a civil suit for
recovery of Rs.78,99,282/- in the Civil Court at Nagpur. On
15.03.2013, he lodged the report against accused Nos. 1 and 2
with the police. The police did not take any action against
accused Nos. 1 and 2. The complainant, therefore, filed an
application under Section 156(3) of the Code of Criminal
Procedure (for short 'the Cr.P.C.') in the Court of Judicial
Magistrate First Class, Nagpur. Learned Magistrate on
13.05.2013, allowed the application and directed the police to
conduct the investigation. In terms of this order, the crime
bearing No. 142 of 2013 for the offences under Sections 420,
406 read with Section 34 of the Indian Penal Code (for short
'the IPC') was registered against accused Nos. 1 and 2 and one
Mr Dinesh Chandak, who is the chartered accountant. The
investigation into the crime led to filing of the charge-sheet
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against accused Nos. 1 and 2.
6 In the criminal case, accused Nos. 1 and 2 made
applications for their discharge. The discharge applications
came to be rejected. After rejection of the discharge
application, the charge was framed against accused Nos. 1 and 2
by the learned Magistrate. The accused challenged the said
order of rejection of the discharge applications, by filing
separate revision applications. In the said revision applications,
the complainant was not made a party. Learned Additional
Sessions Judge, Nagpur by order dated 05.05.2018 in both
revision applications allowed the revision applications. Learned
Judge allowed the discharge applications made by accused Nos.
1 and 2. Learned Additional Sessions Judge set aside the order
of framing of the charge against accused Nos. 1 and 2.
7 The complainant, being aggrieved by the order of
discharge of accused Nos. 1 and 2 and order of setting aside the
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charge passed by the learned Additional Sessions Judge,
Nagpur has approached this Court by way of these proceedings.
8 I have heard learned Advocate Mr Masood Shareef
for the complainant and learned Senior Advocate Mr. A. S.
Mardikar for accused Nos. 1 and 2 and learned APP Ms H. S.
Dhande for the respondent No.1/State. Perused the record and
proceedings.
9 Learned Advocate for the complainant submitted
that in the revision applications filed by accused persons, the
complainant was not made a party. It is pointed out that the
accused deliberately did not join the complainant as a party in
the revision applications. Learned Advocate pointed out that at
the stage of hearing the discharge application, made by accused
Nos. 1 and 2, the complainant was allowed to assist the
prosecution. He had filed the reply to the application as well as
written arguments. Learned Advocate submitted that a
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valuable right had accrued in favour of the complainant on
rejection of discharge applications made by accused Nos.1 and
2. The complainant deserved an opportunity of hearing in the
revision applications filed by accused Nos.1 and 2 against the
orders of their discharge. Learned Advocate submitted the
revision applications have been allowed without granting an
opportunity of hearing to the complainant and as such, the
orders of discharge of accused Nos. 1 and 2 and the order
setting aside the charge are vitiated on that count.
10 Learned Advocate for the complainant further
submitted that merely because of filing of a civil suit, it cannot
be assumed that on the same set of facts, the criminal offence
could not be made out. Learned Advocate submitted that
accused Nos. 1 and 2 conspired and pursuant to the said
conspiracy, entered into a contract with the complainant which
to their own knowledge was not to be performed. Learned
Advocate submitted that the facts stated in the complaint and
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the documents compiled in the chargesheet would show that
the accused, with the fraudulent intention, prevailed upon the
complainant to pay the money. Learned Advocate submitted
that the accused, with a dishonest intention, deceived the
complainant. In short, the learned Advocate submitted that the
material on record is sufficient to make out the basic
ingredients of the offence of cheating. Learned Advocate
submitted that therefore, the charge framed by the learned
Magistrate was fully justified.
11 Learned Senior Advocate Mr Mardikar for accused
Nos. 1 and 2 made the following submissions.
The complaint does not disclose commission of any
offence much less an offence of cheating. The complaint, at the
most, would show that there was a contract between the parties
and for some reason or another the same could not be taken to
the logical conclusion. It was the case of a breach of contract
246.Cri.Apl.612.2018.jud.+1.odt
and not the dishonest inducement or deception. It is pointed
out that before filing the report with the police, the
complainant had filed the civil suit for recovery of
Rs.78,99,282/-. It is pointed out that for running a business of
food and beverages, the complainant was in need of money and
therefore, accused No.1 paid Rs.15,00,000/- by cheque. At the
time of the inauguration, the arrangement of the food etc. was
made by the complainant and for that, accused No.1 has paid
the money to the complainant. The goods and articles were
purchased from China by accused No.1. Accused No.1 had
transferred the purchase amount from his own account. The
amount of Rs.15,00,000/- paid by the complainant was
adjusted against this bill. The dispute between them is of a civil
nature. The complainant initially filed the civil suit for
recovery of the money. In the said civil suit, the application for
temporary injunction made by the complainant was rejected.
The complainant did not repay the hand loan taken by him
246.Cri.Apl.612.2018.jud.+1.odt
from accused No.1 and therefore, accused No.1 deposited
cheques for encashment in the bank. The cheques were dis-
honored. Accused No.1 issued the notices to the complainant.
The complainant replied to these notices. In the reply to the
said notices, he did not make any grievance that he was cheated
or deceived. The accused No.1 filed three complaints under
Section 138 of the Negotiable Instruments, Act, 1881 ( for
short 'the N. I. Act' ), on 22.11.2012. After this, the
complainant filed the suit on 23.01.2013 for recovery of the
amount. The report was lodged by him on 15.03.2013. The
police did not register the crime because it was a civil dispute.
Learned senior Advocate submitted that a civil dispute has been
given the colour of a criminal offence. Learned Senior
Advocate submitted that the conduct of the complainant till the
time of lodging of the report on 15.03.2013 would show that
he did not make a whisper that he was either cheated or there
was a criminal breach of trust. Learned senior Advocate
246.Cri.Apl.612.2018.jud.+1.odt
submitted that in one of the complaints filed under Section 138
of the N. I. Act he has been convicted. Learned Senior
Advocate submitted that the inconsistent stand of the
complainant by itself is sufficient to sustain the order passed by
the learned Sessions Judge.
12 Learned Senior Advocate submitted that in
the criminal case the informant is represented by the State. It is
pointed out that the learned prosecutor on behalf of the state
opposed the revision applications. In short, it is submitted that
the failure to make the complainant as a party in the revision
applications has not caused miscarriage of justice. It is
submitted that the grievance made by the complainant has to
be addressed keeping in mind the facts and evidence on record,
which shows that the civil dispute was converted to a criminal
offence. It was an abuse of process of law. The complaint was
filed with malicious intent. It is further submitted that no role
has been attributed to accused No.2 in the entire proceedings
246.Cri.Apl.612.2018.jud.+1.odt
till the filing of the suit. But for the first time some untenable
and unbelievable allegations have been made against him.
13 In this case, the Court is required to consider two
aspects. First, whether the material on record is sufficient to
frame the charge against the accused and second, whether the
non-joinder of the complainant as a party in the revision
applications by itself would be sufficient to set aside the orders.
In my view, for the purpose of addressing the second issue the
facts, circumstances and material placed on record are required
to be taken into consideration. Similarly, the conduct of the
parties is also required to be borne in mind. The Court has to
ascertain from the record as to whether the dispute was purely
of civil nature or it had some element of criminal dispute. In
my view, in order to consider this, it would be necessary to
peruse the complaint, the pleadings of the complainant in his
civil suit, his contention in the complaint filed by accused No.1
against the complainant under Section 138 of the N. I. Act and
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other attending circumstances.
14 Perusal of the plaint filed by the complainant in the
civil Court would show that in the plaint he has set out the
nature of the business transaction between them. The amount
paid by the complainant to the accused. The purchase of the
utensil articles, furniture and crockery from China for starting
the business of serving food and beverages from the hotel of
accused No.1. It is seen that in the month of November 2008
they agreed to do the business. In the year 2009, they went to
China for the purchase of crockery, furniture, utensils etc. for
starting the business. The complainant paid Rs.15,00,000/- by
cheques to accused No.1. The opening ceremony of the hotel
was held on 06.02.2011. The sailing was smooth between the
parties up to February 2011. In the plaint, the complainant
stated that he had issued four cheques of Rs.5,00,000/- each
to the accused towards a security amount in 2011. It is stated
that at the time of their visit to China, he paid Rs.23,00,000/-
246.Cri.Apl.612.2018.jud.+1.odt
to accused No.1. The plaint is silent about any conspiracy.
The plaint is also silent about the dishonest intention. There is
no allegation of deception. There is no allegation of wrongful
loss as well as wrongful gain.
15 The plain reading of the plaint would show that
there was a contract between the complainant and accused
No.1. The complainant alleged that accused No. 1 did not
honour his commitment under the contract. He did not allow
the complainant to carry out the business. The complainant
was prevented from doing the business from the hotel premises
despite having invested a huge amount in the business. It is
further stated that he was not paid his share of 75 % in the sale
of the food and beverages. There are no allegations in this
plaint against accused No.2. In my view, the averments made
in the plaint cannot be brushed aside.
16 In these circumstances, it is necessary to consider
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the reply dated 30.10.2012 sent by the complainant to the
notice issued by accused No.1 dated 15.10.2012. The accused
No.1 issued three notices dated 15.10.2012 to the complainant
when the three cheques submitted for encashment had been
dishonored. It is the case of the complainant that these three
cheques were issued by way of security. It is the case of the
accused No.1 that for the purpose of starting the business of
food and beverages from the hotel, he was short of money and
therefore he advanced the loan to the complainant. This fact
was categorically stated by accused No.1 in the three notices
dated 15.10.2012. It is the case of the complainant that, by the
time of issuance of the reply dated 30.12.2012 he was not
allowed to do business from the hotel. The reasons may not be
of any relevance. The relevant fact is that the complainant was
put to the notice by accused No.1 that he was not interested to
continue the contract or the business dealings with the
complainant. It was therefore expected from the complainant
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to mention all the relevant facts in his reply. In his reply, he has
stated about the contract and the nature of the business
dealings. He demanded the amount of Rs.78,99,282/- from
accused No.1 which, according to the complainant, the accused
No.1 was liable to pay on account of the breach of the contract.
This reply would show that there was a dispute between them
with regard to the breach of the contract. In this reply, the
complainant stated that, as agreed, he was not paid 75 % share
of the sale of the food and beverages. Perusal of this reply
would show that it is silent about any cheating, fraud or forgery.
It was not stated in the reply that the accused misrepresented
the complainant and thereby deceived the complainant.
Perusal of the reply would show that it is a plain and simple
civil dispute. This reply is dated 30.10.2012.
17 Accused No. 1 filed three complaints against the
complainant under Section 138 of the N. I. Act on 22.11.2012.
It is not out of place to mention at this stage that in one of the
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complaints the complainant has been convicted. The
complainant filed the civil suit on 23.01.2013. I have set out
herein above the material facts pleaded in the suit. The
application made seeking a temporary injunction restraining
the accused from transferring the hotel or business was rejected
vide order dated 12.03.2013. The complainant lodged the
report with the police on 15.03.2013 and for the first time in
this report, tried to convert the civil dispute into a criminal
dispute. The police did not register the FIR, stating that it was
a civil dispute. He, therefore, filed an application under Section
156 (3) of the Cr.P.C. Learned Magistrate passed the order.
18 It is to be noted that the genesis of the civil as well
as criminal dispute is the contract between the complainant and
accused No.1. The nature of the contract has been highlighted
herein above. It is evident that for some reason or another the
parties could not sail through the contract. It is the case of the
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complainant that it is accused No.1 who has backed out of the
contact. It is the case of the accused No.1 that it is the
complainant who has backed out of the contract. In short, their
grievance is with regard to the breach of the contract. The
complainant and the accused No.1 were well acquainted before
entering into the contract. They were already in the hotel
business. They had knowledge of the business. They had
knowledge of the consequences of backing out of the contract
for one reason or another. It is seen that for two years and nine
months from the date of the actual dispute having escalated, the
complainant did not make a whisper either in reply to the
notice sent by the accused No.1 or in the civil suit that he was
cheated by the accused Nos. 1 and 2. On perusal of the
material on record, I am fully satisfied that the dispute between
the parties was of a civil nature. It was given the colour of a
criminal dispute.
19 Learned Senior Advocate for the accused relied
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upon the following three decisions and submitted that
converting a civil dispute into a criminal dispute is not
permissible and the same amounts to abuse of the process of
law.
i. Rashmi Jain .v/s. State of Utter Pradesh and another1
ii. Rajib Ranjan and others .v/s. R. Vijay Kumar2
iii. Mohd. Khalid. Khan .v/s. State of Uttar Pradesh and
another3.
20 In the case of Rashmi Jain (supra), the Hon'ble
Apex Court has held that the civil dispute cannot be converted
into a criminal dispute. The Court has to consider the
utterances attributed to the accused inserted in the complaint.
If the court finds that the same are with a malicious intent to
convert a purely civil dispute into a criminal offence then the
Court has to be very careful. If it is found that the civil dispute
has been converted into a criminal offence then the Court has
1 (2014) 13 SCC 553
2 (2015) 1 SCC 513
3 (2015) 15 SCC 679
246.Cri.Apl.612.2018.jud.+1.odt
to quash the same. The continuation of the proceedings in
such a situation amounts to misuse of the process of the law. In
the case of Rajib Ranjan (supra) it is observed that the civil
dispute cannot be converted into criminal proceedings. Filing
of a criminal complaint by party after losing matter in civil
litigation amounts to misuse and abuse of process of law. In
such a situation, the complaint is liable to be quashed. The
same view has been taken by the Hon'ble Apex Court in the
case of Mohd. Khalid. Khan (supra).
21 In my view, the above stated factual position, if
considered in juxtaposition with the principle of law culled out
from the decisions of the Hon'ble Apex Court, it would show
that the complainant, out of a sheer frustration of breach of a
contract on the part of the accused No.1 and initiation of the
proceeding by accused No.1 against him, resorted to the
criminal proceedings. Initially, he pursued his available
remedies before the Civil Court by filing a civil suit. The civil
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suit is still pending. Perusal of the plaint would show that he
has claimed the money decree against accused No.1 on the
ground of breach of contract by him. The complainant, after
filing of civil suit and after defending the notice issued by
accused No.1 on dishonor of three cheques, changed the tenor
of his allegations. For the first time in the report dated
15.03.2013 in respect of very same transaction he has stated
that there was a conspiracy and pursuant to the said conspiracy,
he was made to enter into the contract and in the said contract
he was deceived. Perusal of the record would show that these
allegations of deception or cheating have not been at all made
out. Learned Additional Sessions Judge was therefore right in
allowing the revision applications and discharging accused
Nos.1 and 2.
22 It is pertinent to note that the mala fides of the
complainant can be seen from his subsequent change of a stand.
Initially, in the suit, he did not make any averments or
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allegations against accused No.2, who is the father of accused
No.1. In the plaint he has contended that his contract was with
accused No.1. Similarly, in the reply to the notice issued by
accused No.1 for a dishonor of three cheques he did not make
any allegation against accused No.2, the father of accused No.1.
For the first time, the complainant invented a new story in his
report. Perusal of the report and complaint would show that
story is also half cooked. In my view, this shows the mala fide
intention of the complainant. He gave a colour of criminal
offence to the purely civil dispute. I am conscious of the fact
that even a civil dispute has traces of a criminal offence. It is a
cardinal principle of law that every criminal offence requires
mens rea. The mens rea must be present in the case of a breach
of contract since the inception of the contract. It must be
pleaded to the satisfaction of the Court. The Court, on the
perusal of the pleadings coupled with the attending
circumstances, must be satisfied that it is sufficient to attribute a
246.Cri.Apl.612.2018.jud.+1.odt
mens rea to the accused. A breach of a contract or backing out
of a contract by one of the parties one fine morning could not
be made the basis to attribute the mens rea to the said party. In
this case, the complainant has tried to play hide and seek game.
A litigant who is guilty of suppression of material facts does not
deserve any equity or relief. As far as the first point is
concerned, I am satisfied that the learned Additional Sessions
Judge was right in discharging the accused No. 1 and 2.
23 In the backdrop of the above stated factual scenario
and the fate of the prosecution having been sealed, which was
initiated at the behest of the complainant, it would be necessary
to dilate upon his right of hearing in the criminal revisions filed
by accused Nos. 1 and 2 in the Sessions Court wherein they
had assailed the order passed by the learned Magistrate rejecting
their application for discharge and also for setting aside the
order of framing of charge.
246.Cri.Apl.612.2018.jud.+1.odt
24 Learned Advocate for the complainant submitted
that, in the earlier part of the proceeding, which was initiated
by accused Nos.1 and 2 before the Sessions Court by way of a
revision, the complainant was made a party. Learned Advocate
submitted that accused Nos.1 and 2 deliberately did not join
the complainant as a party in the subsequent revision
applications. Learned Advocate further submitted that while
opposing the discharge applications, the complainant was
granted opportunity to file the reply as well as file his written
submissions. The record would show that the request made by
the complainant to assist the prosecution was granted. Learned
Advocate for the complainant, relying upon the decisions in the
cases of Mohit alias Sonu and Anr. Vs. State of Uttar Pradesh
and Anr.4; Shriram s/o. Nagordhar Mahajan Vs. State of
Maharashtra and Anr.5; Kalyani w/o. Subhash Buty Vs. State of
Maharashtra and Ors.6; J.K. International Vs. State (Govt. of
4 (2013) 7 SCC 789
5 2006 (1) Mh.L.J. (Cri.) 574
6 2012 (2) Mh.L.J. (Cri.) 239
246.Cri.Apl.612.2018.jud.+1.odt
NCT of Delhi) and Ors.7 and Rekha Murarka Vs. State of West
Bengal and Anr.8, submitted that the order in the revision
applications impugned in this case discharging accused Nos.1
and 2 in a criminal case was prejudicial to the interest of the
complainant and therefore, before passing such an order, the
learned Additional Sessions Judge was duty-bound to hear the
complainant in whose favour a right had accrued on account of
rejection of the applications for discharge made by accused
Nos.1 and 2.
25 As against this, learned Senior Advocate Mr.
Mardikar submitted that, in such a matter, the Court has to take
into consideration the overall facts of the case to form an
opinion as to whether the order in question has caused the
prejudice to the informant or complainant merely because of
the failure to add him as a party or to grant him an opportunity
of hearing. Learned Senior Advocate took me through the
7 (2001) 3 SCC 462
8 (2020) 2 SCC 474
246.Cri.Apl.612.2018.jud.+1.odt
record and pointed out that prima facie the civil dispute has
been converted into a criminal offence. Learned Senior
Advocate submitted that the offence of criminal breach of trust
or offence of cheating has not at all been made out. Learned
Senior Advocate submitted that the entire record was examined
by the learned Additional Sessions Judge, including the reply
filed before the Magistrate by the complainant and his written
notes of arguments. Learned Senior Advocate submitted that
the prosecution against accused Nos.1 and 2 was itself not
tenable inasmuch as the civil dispute was converted into a
criminal offence. Learned Senior Advocate submitted that the
proceeding initiated by the complainant was total abuse of the
process of law, resulting into a sever prejudice to accused Nos. 1
and 2. Learned Senior Advocate submitted that while
considering the law laid down in the decisions relied upon by
the learned Advocate for the complainant, the Court has to
consider the basic facts and see whether any criminal offence
246.Cri.Apl.612.2018.jud.+1.odt
has been made out or not. Learned Senior Advocate pointed
out that, if the Court comes to the conclusion that the dispute
between the parties was of civil nature but with embellishment
it was given a colour of criminal offence, then failure to grant
him an opportunity in the revision applications would not go to
the root of the matter. Learned Senior Advocate submitted that
the prosecution was ably conducted by the in-charge
Prosecutor.
26 It is necessary to state at the cost of repetition that
while considering the factual matrix and the materials placed on
record, I have concluded that the evidence on record is
sufficient to accept the contention of accused Nos.1 and 2 that
it was a pure civil dispute. The dispute was with regard to the
breach of contract. On account of breach of contract, the
complainant had taken a recourse to the remedy for recovery of
money by filing a substantive suit. The complainant lodged the
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report after about two years and nine months. In my view, all
these facts and the observations cannot be brushed aside while
considering the applicability of the law.
27 In the case of J.K. International Vs. State (Govt. of
NCT of Delhi) and Ors. (supra), three Judge Bench of the
Hon'ble Apex Court has held that the scheme envisaged in the
Code of Criminal Procedure indicates that a person who is
aggrieved by the offence committed is not altogether wiped out
from the scenario of the trial merely because the investigation
was taken over by the police and the charge-sheet was laid by
them. Even the fact that the Court had taken cognizance of the
offence is not sufficient to debar him from reaching the Court
for ventilating his grievance. Even in the Sessions Court, where
the Public Prosecutor is the only authority empowered to
conduct the prosecution as per Section 225 of the Cr.P.C., a
private person who is aggrieved by the offence involved in the
246.Cri.Apl.612.2018.jud.+1.odt
case is not altogether debarred from participating in the trial. It
is observed that it can be discerned from Section 301(2) of the
Cr.P.C. Further, when the trial is before a Magistrate's Court,
the scope of any other private person intending to participate in
the conduct of the prosecution is still wider. The genesis in
almost all such cases is the grievance of one or more individual
that they were wronged by the accused by committing offences
against them. It is held that the private person who is permitted
to conduct prosecution in the Magistrate's Court can engage a
counsel to do the needful in the court on his behalf. Further, if
a private person is aggrieved by the offence committed against
him or against anyone in whom he is interested, he can
approach the Magistrate and seek permission to conduct the
prosecution by himself. It is open to the Court to consider his
request. If the Court thinks that the cause of justice would be
served better by granting such permission, the Court would
generally grant such permission. It is observed that, of course,
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this wider amplitude is limited to Magistrates' Courts as the
right of such private individual to participate in the conduct of
the prosecution in the Sessions Court is very much restricted
and is made subject to the control of Public Prosecutor.
28 It is to be noted that this law has been consistently
followed in the other decisions relied upon by the learned
Advocate for the complainant cited supra. The right of the
complainant or the informant to participate in the revision
applications has not been diluted in any manner. He is required
to be heard in the revision applications where the order is
prejudicial to his interest.
29 In my view, in the backdrop of the facts of the case
on hand, I am of the view that the complaint or the prosecution
initiated at the behest of the complainant was itself a misuse of
the process of the Court. The complainant, as can be seen from
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the record, at the first opportunity, did not make any grievance
that accused Nos.1 and 2 had committed any offence of
cheating or criminal breach of trust. Perusal of the record would
show that no offence either of criminal breach of trust or
cheating, is made out on the basis of the averments. Perusal of
the record would show that there was a concluded contract
between the complainant and accused No.1. The contract was
not reduced into writing. The complainant and accused No.1
continued with the contract as per the oral understanding. The
civil suit filed by the complainant for recovery of the amount on
account of breach of contract by accused No.1 is a testimony to
the fact that it was a simple dispute of civil nature. It needs to
be stated that offence of criminal breach of trust and offence of
cheating are antithesis of each other. These two offences
cannot go hand-in-hand. These offences can be invoked
together in rare and exceptional case. In this case, I am satisfied
that the allegations made in the complaint do not have even the
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traces of criminal offences. After about three years, the wisdom
dawned upon the complainant to take recourse to the remedy
of lodging the report.
30 It is evident that the complainant misused the
process of law. The police filed the charge-sheet after the order
passed by the learned Magistrate to register the FIR as per the
order under Section 156(3) of the Cr.PC. It is evident, on the
plain reading of the complaint and the pleadings in the plaint,
that it was a simple civil dispute with regard to the breach of
contract and as such for recovery of the money. The
complainant, with the passage of time, painted it with the brush
of the criminal offence. In my view, it was a misuse of the
process of law. Any attempt made by a litigant to misuse the
process of law is required to be thwarted. If the litigant is found
guilty of misuse of process of law, then the Court has to take a
very strict view of the matter. In such a case, the grievance of
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prejudice of the kind made in the application cannot be
entertained. In this proceeding, the complainant has not been
able to satisfy this Court that accused Nos. 1 and 2 have
committed the alleged offences. In this background, the
grievance of prejudice needs appreciation. In my view, in the
teeth of the peculiar facts of the case, grant of an opportunity of
hearing before the Sessions Court would not have changed the
course of litigation in his favour.
31 In my view, in the facts and circumstances, the law
laid down above is of no help and assistance to advance the case
of the complainant further. Accordingly, I conclude that the
learned Additional Sessions Judge was right in allowing the
revision applications. The learned Judge, as can be seen from
the reasoned order, has taken the entire material into
consideration. I do not see any substance in the applications. In
my view, the remand of matter on this technical ground in the
246.Cri.Apl.612.2018.jud.+1.odt
backdrop of the finding of fact arrived at on the basis of the
material would not change the fate of the litigation. As such, I
conclude that there is no substance in the applications. The
applications are, accordingly, dismissed.
(G. A. SANAP, J.)
Namrata /Vijay Kumar
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 27/09/2024 17:56:19
