Gauhati High Court
Crl.Pet./922/2023 on 6 May, 2024
Page 1 of 22
GAHC010188452023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL
PRADESH)
Crl.Pet/922/2023
1. Ashimara Housing Private Ltd.
Having registered address at B3/47,
Safdarjung Enclave, New Delhi-110029
2. Manish Mahendra Choksi,
Director-Ashimara Housing Private
Limited
B3/47 Safdarjung Enclave New Delhi-29
3. Ramachandra Kasargod Kamath
Director-Ashimara Housing Private
Limited
B3/47 Safdarjung Enclave New Delhi-29
4. Sanjaya Gupta,
Director-Ashimara Housing Private
Limited
B3/47 Safdarjung Enclave New Delhi-29
5. Shubha Lal
Executive Director-Ashimara Housing
Private Limited
B3/47 Safdarjung Enclave New Delhi-29
6. Nidhi Kumra,
Executive Director- Ashimara Housing
Crl.Pet 922 of 2023 1
Page 2 of 22
Private Limited
B3/47 Safdarjung Enclave New Delhi-29
Petitioners
-Versus-
1. Neha Saraf D/O- P.L Poddar,
Director, Growth Maximisers Pvt. Ltd,
having its Regd Office at Saraf Building ,
A.T Road, Guwahati 01, Kamrup (M), Assam
2. The State of Assam
Represented through the Public Prosecutor,
Assam
Respondents
For Petitioner(s) : Mr. A.M. Bora, Senior Advocate
Mr. V.A. Chowdhury, Advocate
For Respondent(s) : Mr. D. Saraf, Advocate
Date of judgment : 06.05.2024
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
1. Heard Mr. A. M. Bora, learned senior counsel, assisted by
Mr. V. A. Chowdhury, learned counsel for the petitioners. Also
heard Mr. D. Saraf, learned counsel for the Respondent No.1.
2. This Criminal Petition has been registered on filing of an
application under Section 482 of the Code of Criminal
Procedure, 1973 by the petitioners, praying for quashing of
the criminal proceedings in CR Case No.5875/2022, pending
before the Court of learned Judicial Magistrate 1st Class,
Kamrup (M) as well as for setting aside the order dated
28.11.2022, passed by learned Judicial Magistrate 1st Class,
Kamrup (M), in CR Case No.5875/2022,
whereby summons were issued against the present
petitioners.
3. The facts relevant for adjudication of this Criminal Petition, in
brief, are as follows:
i. That the Petitioner No. 1, namely, Ashimara Housing
Private Ltd. is a private limited company incorporated as
per the provisions of the Indian Companies Act, 1913. It
is operating "Your Space", which is a premier student
housing brand, having pan India presence. It caters to
nearly 600 plus students. The Petitioner Nos. 2 to 4, are
on the Board of Directors of the Petitioner No.1
Company and are not involved in the day-to-day
operations of the Company. The Petitioner Nos.5 and 6
are the Executive Directors of the Petitioner No.1
Company.
ii. The Respondent No. 1, Smt. Neha Saraf, has filed a
complaint under Section 200 of the Code of Criminal
Procedure, 1973, before the Court of learned Chief
Judicial Magistrate, Kamrup (M), inter-alia, alleging that
the petitioners have committed the offences under
Sections 384/406/420 of the Indian Penal Code.
iii. It is stated in complaint filed by the Respondent No.1
that she is the Director of "Growth Maximisers Pvt. Ltd",
which is a private limited company and engaged in the
business of providing hiring services to all industries by
sourcing candidate to their clientele.
iv. It is alleged, in the complaint filed by the Respondent
No. 1, that the Petitioner No. 1 Company had requested
the respondent‟s company to start providing their
services for hiring suitable candidates and accordingly,
the respondent‟s company informed the petitioners‟
company about the terms and conditions of the service,
which was confirmed by the petitioners‟ company
through e-mail. However, no written agreement is there
between the parties.
v. It is also stated in the complaint that the respondent‟s
company started providing head hunting services to the
petitioners‟ company on agreed terms and conditions.
However, it is alleged in the complaint that the
petitioners‟ company always used to violate the terms of
payment by withholding the payments to the
respondent‟s company and used to pay the same only
after repeated persuasion via e-mail.
vi. It is also alleged in the complaint that the respondent‟s
company sourced two candidates, namely, Shridhar
Prabhu Anantharaman and Neetika as per the given
requirement. However, it is alleged that one Mr. Vinayak
representing the petitioners‟ company instructed the
respondent‟s company not to co-ordinate with Shridhar
Prabhu Anantharaman as he wanted to deal with the
candidate himself.
vii. Thereafter, the respondent‟s company raised invoice
dated 17.05.2022 for Rs. 3,24,500/- in respect of
charges for hiring of Shridhar Prabhu Anantharaman and
invoice dated 18.05.2022 for Rs. 1,06,200/- in respect of
charges for hiring Neetika . The total amount in respect
of two candidates was of Rs. 4,30,700/-.
viii. It is alleged in the complaint that the petitioners‟
company, after availing the services of the respondent‟s
company in respect of the aforesaid candidates started
harassing the respondent company by asking them to
reduce the invoice amount and demanded adjustment of
the service charge for hiring one Mr. Anish Dhatavkar,
which had already been paid by the petitioners‟
company.
ix. The respondent‟s company also issued a legal notice
dated 27.07.2022 to the petitioners‟ company in this
respect regarding the above matter.
x. The petitioners‟ company replied to the said legal notice,
inter-alia, stating that the said Mr. Anish had failed to
attend minimum working hours and claimed adjustment
of the overdue service charge for hiring of Neetika from
service charges paid towards hiring of Mr. Anish
Dhatavkar.
xi. It is alleged in the complaint by the Respondent No.1
that the accused with fraudulent intention, through their
representative Vinayak tried to make out a different
story for not paying the service charges relating to hiring
of Mr. Shridhar and has illegally retained the payment,
which was due to the respondent‟s company. It is also
alleged in the complaint that the accused (present
petitioners) had criminal intention from the very
beginning of the transaction.
xii. On receipt of the said complaint, the complainant was
examined under Section 200 of the Code of Criminal
Procedure, 1973, and the cognizance of offence under
Section 420 of the Indian Penal Code was taken by the
learned Judicial Magistrate 1st Class, Kamrup (M),
Guwahati, by order dated 28.10.2022. Thereafter, by
order dated 28.11.2022, after examining the
complainant‟s witnesses, summonses were issued to the
present petitioners. The said order has been impugned
in this instant Criminal Petition.
4. Mr. A. M. Bora, learned senior counsel for the petitioners has
submitted that in this case, there was a continuing business
transaction between the petitioners‟ company as well as
respondent‟s company. He has submitted that there is no
dispute that the petitioners‟ company had availed the services
of the respondent‟s company regarding sourcing of
candidates, however, a dispute arose between them regarding
payment of charges for hiring of two candidates, namely,
Shridhar Prabhu Anantharaman and Neetika and due to the
petitioners‟ request to adjust some charges against the service
charges already paid in respect of another candidate, namely,
Mr. Anish Dhatavkar. Learned senior counsel for the
petitioners has submitted that the dispute which has arisen
between the parties is purely a commercial dispute and is civil
in nature. He has submitted that there are no ingredients of
offence under Section 420 of the Indian Penal Code in the
instant case. He has also submitted that the complaint case
has been filed by the Respondent No. 1 against the present
petitioners only to give a criminal colour to a commercial
dispute and to pressurize and harass the present petitioners.
5. Learned senior counsel for the petitioners has also submitted
that the dispute between the parties is in respect of payment
of hiring charges amounting to Rs. 4,30,700/- with regard to
which the respondent„s company has also issued a legal notice
to the petitioners, and the petitioners have replied to the said
legal notice putting forth their version. He has stated that it is
not a case where there was any deception from the very
inception of transaction between the parties. He has submitted
that the Respondent No. 1 has admitted in her complaint that
her company was providing services to the petitioners‟
company and received payment for the same. It is submitted
by learned senior counsel for the petitioners that the
Respondent No.1 has failed to show in her complaint that the
petitioners had fraudulent or dishonest intention at the time of
making promise or representation, hence, no offence under
Section 420 of the Indian Penal Code has been made out in
this case. It is further submitted by learned senior counsel for
the petitioners that the learned Judicial Magistrate 1st Class,
Kamrup (M) had taken cognizance under Section 420 of the
Indian Penal Code against the present petitioners and issued
summonses to them without there being any ingredient of the
offence under Section 420 of the Indian Penal Code
specifically averred against any of the petitioners. He has
submitted that in absence of a culpable intention on the part
of the petitioners at the time of making initial promise, no
offence under Section 420 of the Indian Penal Code can be
said to have been made out and therefore, learned Judicial
Magistrate was wrong in taking cognizance against the present
petitioners and issuing summonses to them. In support of his
submission, learned senior counsel for the petitioners has cited
a ruling of the Apex Court in the case of "Vesa Holdings Pvt
Limited and Another Vs. State of Kerala and Others" reported in
(2015) 8 SCC 293, wherein it was observed as follows:
"12. From the decisions cited by the appellant,
the settled proposition of law is that every
breach of contract would not give rise to an
offence of cheating and only in those cases
breach of contract would amount to cheating
where there was any deception played at the
very inception. If the intention to cheat has
developed later on, the same cannot amount to
cheating. In other words for the purpose of
constituting an offence of cheating, the
complainant is required to show that the
accused had fraudulent or dishonest intention
at the time of making promise or
representation. Even in a case where
allegations are made in regard to failure on the
part of the accused to keep his promise, in the
absence of a culpable intention at the time of
making initial promise being absent, no offence
under Section 420 of the Penal Code, 1860 can
be said to have been made out."
6. Learned senior counsel for the petitioners has also submitted
that for establishing an offence of cheating the complainant is
required to show that the accused had fraudulent and
dishonest intention at the time of making promise or
representation, merely, on failure to keep the promise
subsequently due to some dispute which has arisen between
the parties, the culpable intention right at the time of
beginning when the promise was made cannot be presumed.
He has submitted that no specific averment has been made in
complaint petition, by the Respondent No.1, against the
present petitioners to show that the petitioners had culpable
intention at the time of entering into an agreement with the
Respondent No. 1. He has submitted that in a business
transaction dispute may arise between the parties, however, in
absence of any culpable state of mind from the initial stage on
the part of one party to deceive the other, such dispute may
not be given colour of a criminal case. In support of his
submission, he has cited the ruling of the Apex Court in the
case of "Sushil Sethi and Another Vs. State of Arunachal
Pradesh and Others" reported in (2020) 3 SCC 240.
7. Learned senior counsel for the petitioners has also submitted
that, though, the Respondent No.1 has alleged in her
Complaint Petition that one Vinayak representing the
petitioners‟ company had instructed the complainant not to co-
operate with Shridhar Prabhu Anantaraman as he wanted to
deal with him himself, however, the said Vinayak has not been
made an accused in the complaint case by the Respondent
No.1.
8. Learned senior counsel for the petitioners has also submitted
that though names of Petitioner Nos. 2 to 4 are there in the
Board of Directors of Petitioner No.1 Company, however, they
are in no way involved in day-to-day affairs of the company
and therefore, unaware about the business transaction
between petitioners‟ company and respondent‟s company. He
has also submitted that no specific allegations have been
made against the petitioners individually and no specific role
has been attributed to each of them in the complaint petition,
as to how they had committed the offence of cheating against
the present petitioners, therefore, learned Judicial Magistrate
was not justified in issuing summonses to the present
petitioners. To fortify his submission, learned senior counsel
for the petitioners has cited a ruling of the Apex Court in the
case of "Ravindranatha Bajpe Vs. Manglore Special Economic
Zone Limited and Others" reported in 2021 SCC OnLine SC 806.
9. Learned senior counsel for the petitioners has also submitted
that the respondent No. 1 has made vague and general
allegations against the present petitioners in the complaint
petition without bringing to specifying the particulars of
offence committed by each and every petitioner and role
played by each and every petitioner in committing the alleged
offence under Section 420 of the Indian Penal Code. He has
submitted that in absence of such particulars in the complaint
petition to show that there was existence of fraudulent or
dishonest intention on the part of the petitioners at the time of
making initial promise, the learned Judicial Magistrate 1st
Class, Kamrup (M) had erred in taking cognizance of the case
under Section 420 of the Indian Penal Code and issuing
processes to the present petitioners. In support of his
submission, learned senior counsel for the petitioners has cited
a ruling of the Apex Court in the case of "Neelu Chopra Vs.
Bharti" reported in (2009) 10 SCC 184, wherein it was
observed as follows:
"9. In order to lodge a proper complaint, mere
mention of the sections and the language of
those sections is not the be all and end all of
the matter. What is required to be brought to
the notice of the court is the particulars of the
offence committed by each and every accused
and the role played by each and every accused
in committing of that offence."
10. Learned senior counsel for the petitioners has also submitted
that the learned Judicial Magistrate, 1st Class, Kamrup (M) has
failed to apply mind before summoning the present petitioners
and initiating criminal proceeding against them, without there
being sufficient materials on record to take cognizance against
them under Section 420 of the Indian Penal Code. He has
submitted that the summoning of an accused in a criminal
case is a serious matter and the criminal law cannot be set
into the motion as a matter of course. In this regard, he has
cited a ruling of the Apex Court in the case of "Pepsi Food
Limited Vs. Special Judicial Magistrate" reported in (1998) 5
SCC 749.
11. The learned senior counsel has submitted that by filing a
criminal complaint for a dispute which is purely civil in nature
and arising out of commercial transaction between the parties,
the complainant has abused the process of law only for the
purpose of pressurizing the present petitioners and therefore,
the complaint Case No. 5875/2022 is liable to be quashed as
per the guidelines laid down by the Apex Court in the case of
"State of Haryana Vs. Bhjanlal and Others" reported in (1992)
Supp (1) SCC 335.
12. On the other hand, Mr. D. Saraf, learned counsel for the
Respondent No. 1 has submitted that in the instant case, the
Respondent No. 1 has categorically mentioned, in Paragraph
Nos. 12 and 13 of her complaint, filed before the learned
Judicial Magistrate 1st Class, Kamrup (M), Guwahati, that the
petitioners had criminal intentions from the very beginning and
had made false representation with an intention to defraud the
respondent‟s company and such intention further came to the
light in the reply filed by the petitioners‟ company to the legal
notice sent to them by the Respondent No. 1.
13. Learned counsel for the Respondent No. 1 has also submitted
that one Mr. Vinayak representing the petitioners‟ company,
had instructed the respondent‟s company not to co-ordinate
with the candidate Shridhar Prabhu Anantharaman. He has
also submitted that though, the entire process of selecting the
said candidate was undertaken by the respondent‟s company,
however, the petitioners‟ company later on, endorsed the
action of Vinayak in their reply to the legal notice of the
Respondent No. 2 and failed to make the payment against
charges for hiring the said candidate, which itself shows that
the petitioners‟ company had culpable intention to defraud the
respondent‟s company from the very beginning of formation of
contract with the respondent‟s company. He has also
submitted that the learned Judicial Magistrate 1st Class,
Kamrup (M), Guwahati took the cognizance of the offence
under Section 420 of the Indian Penal Code after following all
the procedures prescribed by law and after application of mind
on the materials available on record. Therefore, he has
submitted that the instant criminal petition is liable to be
dismissed.
14. I have considered the submissions made by learned counsel
for both the sides and have carefully perused the materials
available on record.
15. In the case of "Pepsi Food Limited Vs. Special Judicial
Magistrate" (Supra), the Apex Court has observed as follows:
"28. Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot
be set into motion as a matter of course. It is
not that the complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate
summoning the accused must reflect that he
has applied his mind to the facts of the case
and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would that
be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning of the accused. The
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant and
his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and
then examine if any offence is prima facie
committed by all or any of the accused."
16. Under Section 190 of the Code of Criminal Procedure, 1973,
one of the mode by which any Magistrate of 1st Class may take
cognizance of an offence is upon receiving a complaint of facts
which constitute such offence. On the other hand, under
Section 204 of the Code of Criminal Procedure, 1973, if in the
opinion of the Magistrate taking cognizance of offence, there
is sufficient ground for proceeding, he may issue processes
against the accused. In the instant case, the cognizance of
offence under Section 420 of the Indian Penal Code has been
taken by the Judicial Magistrate 1st Class, Kamrup (M),
Guwahati. Thus, a Magistrate can take cognizance of an
offence on a complaint, if facts narrated in the said complaints
constitute such an offence. Further, before issuing process to
the accused, the Magistrate must be satisfied that there are
sufficient ground for proceeding against the accused for an
offence, the cognizance of which has been taken under
Section 190 (1)(a) of the Code of Criminal Procedure, 1973.
Before issuing the process under Section 204 of the Code of
Criminal Procedure, 1973, the Magistrate shall also examine
upon oath the complainant and the witnesses present, if any.
Further, in a case where the accused is residing at a place
beyond the area in which such Magistrate exercise his
jurisdiction, he shall postpone the issuance of process against
the accused and shall either inquire into the case himself or
direct an investigation to be made by a police officer or by
such other person as he thinks fit under Section 202 of the
Code of Criminal Procedure, 1973. The purpose of such an
inquiry or the investigation is for deciding whether or not,
there is sufficient ground for proceeding. Thus, apart from the
complaint, the statement of the complainant, the deposition of
witnesses recorded under Section 200/202 of the Code of
Criminal Procedure, 1973, and other documentary evidence
brought on record by the complainant would be relevant for
the Magistrate for deciding whether or not, there is sufficient
ground for proceeding against the accused for the offence of
which cognizance has been taken by such Magistrate under
Section 190 (1)(a) of the Code of Criminal Procedure, 1973. As
observed in "Pepsi Food Limited Vs. Special Judicial Magistrate"
(Supra), the Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put questions to the
complainant and his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then examine
if any offence is prima facie committed by all or any of the
accused.
17. Though, the Respondent No. 1 had filed the complaint under
Section 200 of the Code of Criminal Procedure, 1973, praying
for taking cognizance of offences under Section 384/406/420
of the Indian Penal Code against the present petitioners,
however, learned Judicial Magistrate 1st Class, Kamrup (M),
Guwahati took cognizance of offence only under Section 420
of the Indian Penal Code and issued processes to the
petitioners. Let us now examine as to whether there were
sufficient ground for proceeding against the present
petitioners in CR Case No. 5875/2022.
18. It appears on perusal of the complaint petition filed by the
Respondent No. 1, that there were business transactions
between the respondent‟s company and the petitioners‟
company regarding hiring of suitable candidates for
petitioners‟ company since the year 2020. It also appears that
the petitioners‟ company used to pay service charges for such
hiring to the respondent‟s company. Though, the respondent
has alleged that the petitioners‟ company used to make
delayed payment from the very beginning, however, there is
no allegation of making no payment at all by the petitioners‟
company to the respondent‟s company. It also appears that in
the month of May 2022, there arose a dispute between the
parties regarding payment of hiring charges in respect of two
candidates, namely, Shridhar Prabhu Anantharaman and
Neetika. The total amount due was Rs, 4,30,700/- and in this
regard, the Respondent No.1 issued a legal notice to the
petitioners which was replied by them, wherein certain issues
were raised including some allegations made against one
candidate, namely, Mr. Anish. It also appears that in its reply
to the notice of the Respondent No.2, the petitioners have
raised the issue of deficiency of service and requested to
adjust the invoice of Neetika against the payment made
towards Mr. Anish‟s appointment.
19. From above materials, it appears that though, the existence of
a dispute during business transaction, between the parties, is
apparent on record, however, no materials are there either in
the complaint petition or in the testimony of complainant and
her witnesses recorded under Section 200/202 of the Code of
Criminal Procedure, 1973, to show that the petitioners had
culpable intention, right from the beginning when the
agreement to avail the services of Respondent No. 1 was
entered into by the petitioners.
20. In the case of "Sushil Sethi and Another Vs. State of Arunachal
Pradesh and Others" (Supra), the Apex Court has referred to a
catena of decisions, regarding the requirements for taking
cognizance of an offence under Section 420 of the Indian
Penal Code. Some of the decisions cited in the aforesaid case
are quoted herein below:
"7.3. In Hira Lal Hari Lal Bhagwati [Hira Lal
Hari Lal Bhagwati v. CBI, (2003) 5 SCC 257
: 2003 SCC (Cri) 1121] , in para 40, this Court
has observed and held as under: (SCC p. 280)
"40. It is settled law, by a catena of
decisions, that for establishing the offence of
cheating, the complainant is required to show
that the accused had fraudulent or dishonest
intention at the time of making promise or
representation. From his making failure to keep
promise subsequently, such a culpable
intention right at the beginning that is at the
time when the promise was made cannot be
presumed. ..................."
7.4. In V.Y. Jose [V.Y. Jose v. State of
Gujarat, (2009) 3 SCC 78 : (2009) 1 SCC (Cri)
996] , it is observed and held by this Court that
one of the ingredients of cheating is the
existence of fraudulent or dishonest intention
of making initial promise or existence thereof,
from the very beginning of formation of
contract. It is further observed and held that it
is one thing to say that a case has been made
out for trial and as such criminal proceedings
should not be quashed, but it is another thing
to say that a person should undergo a criminal
trial despite the fact that no case has been
made out at all.
21. In the instant case, it appears that though, the petitioners‟
company was availing the services offered by the respondent‟s
company since the year 2020, however, when a dispute arose
between them regarding the payment of Rs. 4,30,700/- by the
petitioners‟ company to the respondent‟s company against
hiring charges for two candidates and after the reply given by
the petitioners to the notice dated 27.07.2022, of the
Respondent No. 1, she has lodged the criminal complaint,
alleging the offence of cheating, extortion and criminal breach
of trust against the present petitioners. Though, learned
Judicial Magistrate 1st Class, Kamrup (M) only took cognizance
of offence under Section 420 of the Indian Penal Code,
however, for the purpose of constituting offence of cheating,
the complainant is required to show that the accused had
fraudulent or dishonest intention at the time of making
promise or representation, which the Respondent No.1 has
failed to show in his complaint as well as in testimony of
witnesses recorded under Section 200/202 of the Code of
Criminal Procedure, 1973.
22. Further, merely stating that the accused had criminal intention
from the very beginning and had made false representation
with an intention to collectively deceive the respondent‟s
company without any specific averment against each of the
petitioner as what role has been played by each of the
petitioner in committing the alleged offence, in the complaint
petition or in the statements recorded under Section 200/202
of the Code of Criminal Procedure, 1973, would not fulfill the
requirement necessary to take cognizance of offence under
Section 420 of the Indian Penal Code, against the present
petitioners. It would, therefore, be an abuse of process of law
to allow the prosecution in CR Case No. 5875/2022 to continue
against the present petitioners.
23. The Apex Court has observed in the case of "Joseph Salvaraj
A. Vs. State of Gujarat", reported in (2011) 7 SCC 59 that when
dispute between the parties constitutes only a civil wrong and
not a criminal wrong, the courts would not permit a person to
be harassed although no case for taking cognizance of the
offence has been made out. In the instant case also, though,
there appears to be a commercial dispute between the parties,
however, no ingredient of offence under Section 420 of the
Indian Penal Code was available on record when the learned
Judicial Magistrate 1st Class, Kamrup (M), Guwahati issued
summons to the present petitioners. From the materials
available on record, it appears that there are no sufficient
grounds for proceeding against the present petitioners under
Section 420 of the Indian Penal Code. Under such
circumstances, learned Judicial Magistrate 1st Class, Kamrup
(M), Guwahati ought not to have issued summonses against
the present petitioners in CR Case No. 5875/2022.
24. The Apex Court has observed in the case of "Inder Mohan
Goswami v. State of Uttaranchal" reported in (2007) 12 SCC 1,
that the Court must ensure that criminal prosecution is not
used as an instrument of harassment or for seeking private
vendetta or with an ulterior motive to pressurise the accused.
It is further observed and held by this Court that it is neither
possible nor desirable to lay down an inflexible rule that would
govern the exercise of inherent jurisdiction. It is further
observed and held that inherent jurisdiction of the High Courts
under Section 482 of the Code of Criminal Procedure, 1973,
though, wide has to be exercised sparingly, carefully and with
caution and only when it is justified by the tests specifically
laid down in the statute itself. In the instant case also it
appears that the Respondent No.1 has tried to give the colour
of criminal litigation to a dispute which is exclusively civil in
nature arising out of the business transaction between the
parties. No prima-facie case for the offence under Section 420
of the Indian Penal Code is made out against the present
petitioners.
25. In view of above, discussions and reasons, this Court is of the
considered opinion that this is a fit case to exercise the powers
under Section 482 of the Code of Criminal Procedure, 1973,
and to quash CR Case No. 5875/2022, against the present
petitioners under Section 420 of the Indian Penal Code.
26. Accordingly, the impugned order dated 28.11.2022, passed in
CR Case No. 5875/2022, is hereby set aside and the
proceedings of the CR Case No. 5875/2022, is hereby
quashed.
27. Send back the case record of CR Case No. 5875/2022, along
with a copy of this judgment to the Court of learned Judicial
Magistrate 1st Class, Kamrup (M), Guwahati.
JUDGE
Comparing Assistant
