Delhi High Court
Vivek Khanna vs State & Anr. on 12 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 12th April, 2017
+ CRL.M.C. 1419/2017
VIVEK KHANNA
..... Petitioner
Represented by: Mr. S.N. Pandey, Mr. N.S.
Hooda, Ms Poonam, Advs.
versus
STATE & ANR.
..... Respondent
Represented by: Ms. Aashaa Tiwari, APP with
SHO Satendra, ASI Ram Karan,
PS Darya Ganj.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A. 5870/2017
Exemption allowed subject to just exceptions.
CRL.M.C. 1419/2017 & Crl.M.A. 5869/2017 (stay)
1. By the present petition the petitioner seeks quashing of FIR
No.232/2016 registered under Sections 420/406 IPC at PS Darya Ganj and
the proceedings pursuant thereto on the ground that the FIR does not disclose
commission of any cognizable offence.
2. The allegations against the petitioner by the complainant who was the
head of Finance Department of M/s Shri Adhya Educational Books Pvt. Ltd.
are that the petitioner approached the complainant for supply of books worth
₹59 lakhs from the company. For payment against the supplies the petitioner
gave pre-dated cheques issued from the account of M/s Khanna Computer
Books Shop maintained at J & K Bank, Chandni Chowk and Central Bank of
India, Darya Ganj. Believing that the pre-dated cheques would be honoured,
the complainant supplied the books worth ₹58,94,215/-. After receipt of the
books when the six cheques were presented, they were dishonoured. Rest of
the cheques were not presented in view of the request of the petitioner.
When the complainant went to recover the money from the petitioner, it was
revealed that the petitioner had sold M/s. Khanna Computer Book Shop and
left for unknown place. Thus it is alleged that the petitioner was dishonestly
induced to deliver the books and the complainant was cheated for a sum of
₹58,94,215/-. It is further alleged that if pre-dated cheques which were
assured to be honoured were not entrusted, the complainant would not have
handed over the books to the petitioner. Further the intention of the
petitioner was dishonest from the very inception as immediately after
receiving the books he sold of the concern and left the property.
3. Learned counsel for the petitioner contends that the allegations in the
FIR are of civil dispute and no FIR thereon could be registered. Even
otherwise the allegations at best show an offence punishable under Section
138 Negotiable Instruments Act and not a cognizable offence.
4. One of the secondary grievance of the petitioner is that when he
applied for anticipatory bail he was asked to deposit ₹15 lakhs which was
too onerous and no such condition could be imposed. However, in the
petition there is no prayer challenging the order dated 1 st April, 2017
granting conditional interim bail to the petitioner and it is on the willingness
of the petitioner to compromise the matter and statement made to the affect
that the petitioner was ready to pay ₹15 lakhs on or before 10 th April, 2017,
the order dated 1st April, 2017 appears to have been passed by the learned
Trial Court.
5. Be that as it may, since there is no prayer challenging the order dated
1st April, 2017 this Court need not go into the same and confine itself only
whether on the allegations in the FIR the same is liable to be quashed.
6. Supreme Court in the decision reported as 1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426 State of Haryana Vs. Bhajan Lal laid down the
guidelines for quashing of FIR as under:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that
too in the rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court
to act according to its whim or caprice."
7. As noted above, after giving pre-dated cheques the petitioner took the
delivery of books for ₹58,94,215/-. It is thus apparent that the petitioner
represented that he had sufficient funds. Further the intention of the
petitioner being dishonest from the inception can be inferred from the fact
that after receipt of the books, the petitioner left the property and was not
traceable. Having come to know about the dishonest intention of the
petitioner the complainant presented only six cheques and did not present the
other cheques. On the allegation in the FIR as noted above, it cannot be held
that the present case falls within the ambit of Section 138 Negotiable
Instruments Act only and no case for registration of FIR under Section
420/406 IPC is made out.
8. Finding no merit in the petition, the petition and application are
dismissed.
(MUKTA GUPTA)
JUDGE
APRIL 12, 2017
'ga'
