Page No.# 1/ vs The State Of Assam And Anr
2025 Latest Caselaw 3733 Gua

Gauhati High Court

Page No.# 1/ vs The State Of Assam And Anr on 5 March, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                              Page No.# 1/10

GAHC010019052022




                                                         2025:GAU-AS:2273

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : Crl.Pet./77/2022

         RATU TECHI AND 5 ORS.
         SON OF LATE TECHI KERAP
         R/O MODEL VILLAGE- NAHARLAGUN P.O. AND P.S. NAHARLAGUN, DIST.
         PAPUMPARE, ARUNACHAL PRADESH.

         2: SHRI TECHI TARA
          S/O LATE TECHI KERAP
         R/O MODEL VILLAGE
          NAHARLAGUN P.O.
          P.S. NAHARLAGUN
          DIST. PAPUMPARE
         ARUNACHAL PRADESH.

         3: SMTI. TECHI JULLY
         W/O SHRI RATU TECHI
         R/O MODEL VILLAGE

         NAHARLAGUN PO./P.S. NAHARLAGUN
         DIST. PAPUMPARE
         ARUNACHAL PRADESH.

         4: SHRI TECHI TATU
          S/O LATE TECHI KERAP
         R/O MODEL VILLAGE
         NAHARLAGUN P.O./P.S.NAHARLAGUN
         DIST. PAPUMPARE
         ARUNACHAL PRADESH.

         5: SHRI PRADIP KUMAR ROY
          S/O RAKESH CHANDRA ROY
         R/O FLAT NO. 204
          BLOCK A-3
          GAME VILLAGE
          BELTOLA
                                                                        Page No.# 2/10

            P.S. BASISTHA
             DIST. KAMRUP (M)
            ASSAM

            6: SHRI KISHOR KUMAR SENAPATI
             S/OLATE SENAPATI
            KISHNA MURUITHY

            R/O MODEL VILLAGE

            NAHARLAGUN P.O./P.S. NAHARLAGUN
            DIST. PAPUMPARE
            ARUNACHAL PRADESH

            VERSUS

            THE STATE OF ASSAM AND ANR.
            TO BE REP. BY THE PP, ASSAM

            2:SHRI DILIP BANSAL
             SOLE PROPRIETOR
            THE HINDUSTAN EARTHMOVERS
             CHINMOY COMPLEX
             2ND FLOOR
            A.T. ROAD

            TOKOBARI
            GUWAHATI-78100

Advocate for the Petitioner   : MR. S K DEORI, MR J LIKHA,MS. SOMILA

Advocate for the Respondent : PP, ASSAM, MR. R P SARMAH (R-2),M. I. H. CHOUDHURY (R-
2),MS. P BORA (R-2,MS. S. TODI (R-2),MR. P DEKA (R-2),MD ASLAM,MR. P BORA (R-2),MR G
N SAHEWALLA (R-2)




             Linked Case : I.A.(Crl.)/96/2023

            SHRI DILIP BANSAL
            SOLE PROPRIETOR
            THE HINDUSTAN EARTHMOVERS
            CHINMOY COMPLEX
            2ND FLOOR
            A.T. ROAD
                                                     Page No.# 3/10


TOKOBARI
GUWAHATI-781001


VERSUS

RATU TECHI AND 6 ORS.
SON OF LATE TECHI KERAP R/O MODEL VILLAGE- NAHARLAGUN P.O. AND
P.S. NAHARLAGUN
 DIST. PAPUMPARE
ARUNACHAL PRADESH

2:SHRI TECHI TARA
S/O LATE TECHI KERAP
R/O MODEL VILLAGE
 NAHARLAGUN P.O.
 P.S. NAHARLAGUN
 DIST. PAPUMPARE
ARUNACHAL PRADESH.

3:SMTI. TECHI JULLY
W/O SHRI RATU TECHI
R/O MODEL VILLAGE

NAHARLAGUN PO./P.S. NAHARLAGUN
DIST. PAPUMPARE
ARUNACHAL PRADESH.

4:SHRI TECHI TATU
S/O LATE TECHI KERAP
R/O MODEL VILLAGE
NAHARLAGUN P.O./P.S.NAHARLAGUN
DIST. PAPUMPARE
ARUNACHAL PRADESH.

 5:SHRI PRADIP KUMAR ROY
S/O RAKESH CHANDRA ROY
R/O FLAT NO. 204
 BLOCK A-3
 GAME VILLAGE
 BELTOLA
P.S. BASISTHA
 DIST. KAMRUP (M)
ASSAM

6:SHRI KISHOR KUMAR SENAPATI
S/OLATE SENAPATI
                                                                           Page No.# 4/10

           KISHNA MURUITHY

           R/O MODEL VILLAGE

           NAHARLAGUN P.O./P.S. NAHARLAGUN
           DIST. PAPUMPARE
           ARUNACHAL PRADESH.

           7:THE STATE OF ASSAM
           REPRESENTED BY THE PUBLIC PROSECUTOR
           ASSAM
           ------------

Advocate for : MR. R P SARMAH Advocate for : MR. S K DEORI appearing for RATU TECHI AND 6 ORS.

:: PRESENT ::

HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Petitioners : Mr. A.M. Bora, Senior Advocate.

Mr. V.A. Chowdhury, Advocate.

                  For the Respondents      :       Mr. R.P. Sharma,
                                                   Senior Advocate.
                                                   Mr. Naresh Balodia,
                                                   Advocate.

                  Date of Hearing              :    05.11.2024.
                  Date of Judgment             :    05.03.2025.


                          JUDGMENT AND ORDER (CAV)

Heard Mr. A.M. Bora, the learned senior counsel assisted by Mr. V.A. Chowdhury appearing for the petitioners. Also heard Mr. R.P. Sharma, learned senior counsel assisted by Mr. Naresh Balodia , learned counsel for the respondents.

2. This is an application under Section 482 of the CrPC read with Section 401 of the said Code praying for quashing and setting aside the charge sheet and the proceedings in respect of PRC Case No.1018/2021 arising out of Bharalumukh P.S. Page No.# 5/10

Case No.583/2020 pending in the court of Judicial Magistrate First Class, Kamrup (M), Guwahati.

3. On 14.09.2020, the Respondent No.2 Shri Dilip Bansal, being the proprietor of Hindustan Earthmover, lodged an FIR before police. The allegations brought in the said FIR are like this-

I. The Respondent No.2 is a registered micro MSME. According to the informant, the present petitioners representing T.K. Engineering Consortium Private Limited, had hatched a plan with dubious intention. They allegedly approached the informant at his office at "CHINMOY COMPLEX", A.T. Road, Guwahati. They claimed to be big Government Contractors. They persuaded the informant to supply spare parts of Bulldozers, Excavators and Loaders to their office at Naharlagun, Arunachal Pradesh. The petitioners allegedly agreed to pay the bills within 20 days of submissions of bills.

II. The informant supplied spares worth about ₹4,15,99,869/- between February, 2016 to May, 2020. On 06.01.2019, the petitioners gave 12 number of cheques, out of which 11 cheques were of ₹25,000,00/- each and 1 cheque was worth ₹14,22,248/-. The cheques were dated 31.03.2019. In fact, all the cheques were valued at ₹2,89,22,248/-. On presentation, all the cheques were dishonoured by the Bank. The Notice under Section 138 of the N.I. Act was issued to the petitioners. On the other hand, the petitioners requested the informant to give them some more time to clear the dues. Therefore, the informant did not file any case under Section 138 of the N.I. Act.

III. The informant alleged that out of the total dues, the petitioners had converted a sum of ₹3,80,97,589/- to the loan account as on 02.04.2019, for the period between 30.03.2016 to 31.03.2019. According to the informant, the petitioners are cancelling such converted loan account. The informant claimed that the petitioners are now required to pay an amount of ₹7,97,40,840/-, which includes both the principal Page No.# 6/10

amount and the interest thereon till August, 2020.

4. Police registered the Bharalumukh P.S. case No.583/2020 under Sections 406 and 420 of the Indian Penal Code.

5. Mr. Bora has submitted that the FIR does not disclose the elements of a criminal case. According to Mr. Bora, the informant has converted a civil dispute into a criminal case. Mr. Bora has submitted that the informant is at liberty to approach the civil court for recovery of the money.

6. In order to buttress his point, the learned counsel Mr. Bora has relied upon a decision of the Hon'ble Supreme Court that was delivered in Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai -versus- State of Gujarat and Anr., (2017) 9 SCC 641. Paragraph 16 of the said judgment is quoted as under:

"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. 16.4. While the inherent power of the High Court has a wide ambit and plenitude it Page No.# 7/10

has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.

16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned. 16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. 16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

Page No.# 8/10

7. Mr. Bora further relied upon State of Haryana -versus- Bhajan Lal and Ors., AIR 1992 SC 604. Paragraph 102 of the judgment reads 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."

8. Per contra, Mr. Sharma has submitted that the FIR discloses a clear criminal case against the petitioners. Mr. Sharma while deliberated upon the law under Section 415 Page No.# 9/10

of the Indian Penal Code has submitted that the dishonest intention of the petitioners can be seen from the beginning of their deal with the informant. Mr. Sharma has submitted that after 31.05.2017, the informant had stopped supplying goods to the petitioners but they again with criminal intention persuaded him to supply goods. Between 01.02.2018 to 31.05.2020, the informant accordingly supplied goods more than one ₹1,71,000,00/-. Mr. Sharma concluded his argument by asserting that the petitioners had cheated the informant.

9. Mr. Sharma has relied upon paragraph 27 of the judgment of the Hon'ble Supreme Court that was delivered in Shiv Kumar Jatia -versus- State (NCT of Delhi) , (2019) 17 SCC 193, which reads as under:

"27. From a reading of the impugned order [ Aseem Kapoor v. State (NCT of Delhi), 2018 SCC OnLine Del 9073] passed by the High Court we are of the view that the High Court mainly relied on the judgment in Sushil Ansal v. State [Sushil Ansal v. State, (2014) 6 SCC 173 : (2014) 3 SCC (Civ) 343 : (2014) 2 SCC (Cri) 717] . In the aforesaid case which relates to Uphaar Cinema which caught fire and resulted in death of number of persons was a case where a repair to the transformer that had been made on the day before the incident, was not properly done. The faulty repair to the transformer resulted in a loose connection that led to the catching of fire to the transformer and all the cars in the parking lot were burnt in the fire which resulted in suffocation for viewers of the cinema in the hall. Further it was held that in that case there was an addition of an 8-seater box that closed off the exit on the right side of the balcony. It was also found that the owners of the cinema have added 52 additional seats to the theatre which blocked the gangway on the right side of the movie hall. In the aforesaid case both A-1 and A-2 were found guilty not by virtue of their position in the company, but rather by virtue of specific allegations made against them. In the aforesaid case the accused themselves were found to be occupiers, there were gross statutory violations, which had a direct nexus with the death of the victims. Further looking at the facts and circumstances of the present case, the said case cannot be applied against the appellant-accused."

Page No.# 10/10

10. I have considered the submissions made by the learned counsel of both sides.

11. The contents of the FIR clearly show that it was business transaction between two parties. The Respondent No.2 supplied goods and the petitioners failed to pay the money. This Court is of the opinion that the allegation made in the FIR, 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 petitioners. It is purely a civil dispute. This Court has decided to agree with the petitioners that a civil dispute has been given the colour of a criminal case. The Respondent No.2 is at liberty to move a civil court for recovery of the money.

12. For the aforesaid reasons, this Court is of the opinion that allowing the criminal proceedings before the trial court, would be nothing abuse of the process of the court. This is a fit case for exercising powers under Section 482 of the Code of Criminal Procedure.

13. The criminal petition is allowed.

14. The charge sheet and the proceedings in respect of PRC Case No.1018/2021 arising out of Bharalumukh P.S. Case No.583/2020 pending in the court of Judicial Magistrate First Class, Kamrup (M), Guwahati, are quashed and set aside.

The criminal petition as well as the connected Interlocutory Application is disposed of accordingly.

JUDGE

Comparing Assistant