Delhi High Court
Anil Bothra & Ors. vs State & Ors. on 22 January, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd January, 2013
+ CRL. M.C. 3978/2011
ANIL BOTHRA & ORS. ..... Petitioners
Through: Mr. K.B. Andley, Sr. Advocate with
Mr. M.L. Yadav, Advocate
versus
STATE & ORS. ..... Respondents
Through: Ms. Rajdipa Behura, APP for the State
along with ASI Ram Gopal Singh, P.S.
Mukherjee Nagar.
Mr. J.S. Bakshi, Advocate for the
Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Petitioners invoke the inherent powers of this Court under Section
482 Cr.P.C. for quashing of charge for the offence punishable under
Sections 420/34, 406/34 and 506(ii)/34 IPC.
2. A criminal complaint was preferred by the complainant Ashish Begwani
alleging that the three Petitioners approached the complainant and allured
him to deposit his money with their firm as they had a very flourishing
and lucrative business and the complainant would be paid interest @ 24%
per annum. The complainant was lured by the representations made by
the Petitioners and made a deposit of `3,50,000/- for which certain
promissory notes, receipts etc. were executed by the Petitioners.
According to the averments made by the complainant when the
complainant approached the Petitioners for payment of interest and return
of money, initially they made false excuses and later on became
unavailable. According to the complainant, the Petitioners conduct
created reasonable apprehension about the dishonest intention of the
Petitioners and on re-examination the receipt dated 15.12.1998 of
`1,00,000/- executed on behalf of the firm Anil Textiles, its proprietor,
Petitioner Shanti Lal Bothra had put different signatures than those on the
other receipts. In the complaint, it was further stated that the Petitioners
extended threat to kidnap and murder the complainant.
3. By an order dated 06.12.2010, the learned Metropolitan
Magistrate("MM") found prima facie case against the Petitioners under
Sections 406/420/506/34 and framed the charges against the Petitioners.
4. It is urged by the learned Sr. Counsel for the Petitioners that the
transaction in question was purely a civil transaction without any
criminality involved therein and thus the complaint and the charges
framed thereon are liable to be quashed.
5. It is well settled that the powers under Section 482 of the Code are very
wide and the very plentitude of the power requires great caution in its
exercise. The powers under Section 482 can be exercised only in the
interest of justice and to prevent the abuse of the process of the Court or
otherwise to secure the ends of justice. While exercising power under
Section 482 Cr.P.C., the Court is not to go into the truthness or the falsity
of the evidence relied upon by the complainant/prosecution or where the
evidence relied on or sought to be produced would result in conviction of
the accused or not. In Amit Kapoor v. Ramesh Chander & Anr., (2012) 9
SCC 460 while dealing with the powers of the High Court under Section
482 of the Code in relation to quashing of FIR or discharge of an
accused, the Supreme Court held as under:
"16. The abovestated principles clearly show that inherent as
well as revisional jurisdiction should be exercised cautiously. If
the jurisdiction under Section 482 of the Code in relation to
quashing of an FIR is circumscribed by the factum and caution
aforenoticed, in that event, the revisional jurisdiction,
particularly while dealing with framing of a charge, has to be
even more limited.
17. Framing of a charge is an exercise of jurisdiction by the
trial court in terms of Section 228 of the Code, unless the
accused is discharged under Section 227 of the Code. Under
both these provisions, the court is required to consider the
"record of the case" and documents submitted therewith and,
after hearing the parties, may either discharge the accused or
where it appears to the court and in its opinion there is ground
for presuming that the accused has committed an offence, it
shall frame the charge. Once the facts and ingredients of the
section exists, then the court would be right in presuming that
there is ground to proceed against the accused and frame the
charge accordingly. This presumption is not a presumption of
law as such. The satisfaction of the court in relation to the
existence of constituents of an offence and the facts leading to
that offence is a sine qua non for exercise of such jurisdiction.
It may even be weaker than a prima facie case. There is a fine
distinction between the language of Sections 227 and 228 of the
Code. Section 227 is the expression of a definite opinion and
judgment of the Court while Section 228 is tentative. Thus, to
say that at the stage of framing of charge, the Court should
form an opinion that the accused is certainly guilty of
committing an offence, is an approach which is impermissible
in terms of Section 228 of the Code.
18. It may also be noticed that the revisional jurisdiction
exercised by the High Court is in a way final and no inter court
remedy is available in such cases. Of course, it may be subject
to jurisdiction of this Court under Article 136 of the
Constitution of India. Normally, a revisional jurisdiction should
be exercised on a question of law. However, when factual
appreciation is involved, then it must find place in the class of
cases resulting in a perverse finding. Basically, the power is
required to be exercised so that justice is done and there is no
abuse of power by the court. Merely an apprehension or
suspicion of the same would not be a sufficient ground for
interference in such cases."
6. A perusal of the averments made in the complaint did reveal that there
was a representation by the three Petitioners for deposit of the amount.
The Petitioners' avoidance to meet the complainant and subsequent
revelations in variation of signatures of Petitioner No.3 coupled with non-
payment of the interest even once would show the dishonest intention
since the very beginning. It has to be borne in mind that the conduct of a
person may give rise to civil as well as criminal liability. Simply because
a person has a civil remedy may not necessarily mean that he cannot
pursue the criminal action. Thus, as far as Sections 420/34 IPC is
concerned, this Court would not like to interfere with the framing of the
charge on the basis of the material produced by the complainant.
7. But, at the same time, it has to be borne in mind that as per the case of the
complainant himself, the amount was given as a loan. So, there was no
entrustment for a specific purpose making the Petitioners liable for
criminal misappropriation. Similarly, there is not even a whisper as to
when the alleged threat of kidnapping or murder was extended and by
which of the Petitioners. The framing of the charge itself shows that the
entrustment and alleged threat was alleged to be extended sometimes
between December, 1998 to January, 2001. This shows that the
complaint lacked specific allegation with regard to threat; admittedly
there was no allegation of criminal misappropriation. Thus, charges for
the offence punishable under Sections 406/34 and 506(ii)/34 IPC are
quashed.
8. The Trial Court shall proceed with the trial for the offence punishable
under Sections 406/34 IPC.
9. The Petition is allowed to the extent indicated above.
(G.P. MITTAL)
JUDGE
JANUARY 22, 2013
pst
01.02.2013
File is taken up today.
It is pointed out that there is a typographical mistake in Para 8 of the
judgment, wherein instead of Sections 420/34, Sections 406/34 IPC has been
mentioned. Now, Para 8 shall be read as under:-
"8. The Trial Court shall proceed with the trial for the offence
punishable under Sections 420/34 IPC."
(G.P. MITTAL)
JUDGE
FEBRUARY 01, 2013
pst
