Madhya Pradesh High Court
Dhawal vs The State Of Madhya Pradesh on 29 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1883
1 MCRC-492-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 29th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 492 of 2025
DHAWAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Jitendra Singh Kushwah - Advocate for applicant.
Dr. Anjali Gyanani - Public Prosecutor for respondent No.1/State.
ORDER
This application under Section 528 of BNSS has been filed for
quashment of F.I.R. in Crime No.462/2024 registered at Police Station
Kotwali, District Ashoknagar for offence under Sections 420, 406, 409 of
IPC.
2. It is submitted by counsel for applicant that he is based in Nadiad
(Gujrat). Complainant lodged an F.I.R. alleging that complainant in the name
of Mahadev Industries is dealing in the business of sale and purchase of
agricultural produce. Ajay Kumar Jain is a broker of agricultural produce in
Krishi Upaj Mandi Premises. Phone number of applicant was given to
complainant by Ajay Kumar Jain and accordingly, complainant talked to
applicant on phone. It is alleged that applicant assured that complainant may
supply the foodgrains to his firm Astha Corporation situated in S/209
Ghantakarna Complex, Nadiad and applicant would ensure sale of wheat to
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different firms and it was also assured that in case, if the wheat could not be
sold, then the same shall be returned back. Accordingly, complainant started
sending the agricultural produce and as per the assurance given by applicant,
he was continuously making the payment of agricultural produce supplied by
complainant. As a result, a bonding of faith developed between applicant and
complainant. Under that belief, complainant supplied the wheat of worth of
Rs.1,57,34,508/- however, the payment was not made by applicant. When
complainant contacted applicant, then applicant informed that the wheat is
not being purchased by the local firms and the wheat of complainant is lying
in a secured condition with him. After lot of time was spent and the payment
was not made, then Uncle of complainant namely Rajkumar Arora went to
Nadiad and found that applicant has already sold the entire agricultural
produce and has misappropriated the amount. Accordingly, police registered
the case for offences under Sections 420, 406 and 409 of IPC. The police,
after completing the investigation, has also filed the charge sheet.
3. Challenging the F.I.R. as well as charge sheet, it is submitted by
counsel for applicant that just before lodging of F.I.R., applicant has paid
Rs.3,86,24,460/- and he is ready to pay the remaining amount. It is further
submitted that dispute is primarily of civil in nature and the complainant has
tried to convert into a criminal case. It is further submitted that it is a well
established principle of law that the commercial transactions are generally
purely of civil in nature and lodging of F.I.R. for recovery of amount should
be discouraged. To buttress his contention, counsel for applicant has relied
upon the judgments passed by the Supreme Court in the case of Naresh
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Kumar and Anr. Vs. The State of Karnataka & Anr. decided on 12.03.2024
i n S.L.P. Criminal No.1570/2021 , Sarabjit Kaur Vs. The State of Pujab &
Anr. decided on 01.03.2023 in Criminal Appeal No.581/2023 , Paramjeet
Batra Vs. State of Uttarakhand and Ors. decided on 14.12.2012 in Criminal
Appeal No.2069/2012.
4. Per contra, application is vehemently opposed by counsel for
respondent No.1/State.
5. Heard learned counsel for the parties.
6 . In order to constitute an offence under Section 420 of IPC,
complainant is required to show that the intention of accused from very
beginning was to cheat complainant. It is true that mere failure to keep the
promise will not constitute an offence under Section 420 of IPC. Therefore,
if the facts of the present case are considered in the light of the above
mentioned proposition of law, then it is clear that the allegations made in the
F.I.R. can be bifurcated into two parts which are as under :-
1. On the assurance given by applicant, complainant was supplying
agricultural produce and applicant was making payment of the same as per
his assurance. The complainant has supplied the foodgrains of worth Rs.
1,57,34,508/- and the payment was not released by applicant. On inquiry, it
was informed by applicant that goods have not been sold so far and the entire
goods are lying with him.
2 . When Uncle of complaint went to Nadiad to verify the aforesaid
facts, then it was found that applicant had already sold the entire foodgrains
and had misappropriated the amount.
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7. If the first part of F.I.R is considered, then non-payment of about of
Rs.1,57,34,508/- can be said to be purely of civil in nature because if
applicant was not in a position to sell the agricultural produce supplied by
complainant then it can not be said that the intention of applicant from very
inception was to cheat the complainant. However, the difficulty is with the
second part of F.I.R. It is specifically mentioned that when Uncle of
applicant went to Nadiad in order to verify the factual position then it was
found that applicant had already sold the entire foodgrains and has
misappropriated the amount. Whether the accused had an intention to cheat
the complainant from very inception or not is to be considered from the
conduct of accused. If the intention of the accused was not to cheat the
complainant, then he should have repaid the amount after the foodgrains
were sold but misappropriating the amount and wrongly informing the
complainant that foodgrains have not been sold would clearly indicate that
right from very inception, the intention of applicant was to cheat the
complainant.
8. It is well established principle of law that certain cases may include
civil as well as the criminal ingredients and only the dispute which are purely
of civil in nature should not be allowed to be converted into criminal cases.
A criminal case involving civil and criminal ingredients cannot be quashed
merely on the ground that it also involves civil ingredients.
9. The Supreme Court in the case Amit Kumar v. Ramesh Chander
reported in (2012) 9 SCC 460 has held as under :-
"27. Having discussed the scope of jurisdiction under these two
provisions i.e. Section 397 and Section 482 of the Code and the
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fine line of jurisdictional distinction, now it will be appropriate
for us to enlist the principles with reference to which the courts
should exercise such jurisdiction. However, it is not only
difficult but is inherently impossible to state with precision such
principles. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of the
principles to be considered for proper exercise of jurisdiction,
particularly, with regard to quashing of charge either in exercise
of jurisdiction under Section 397 or Section 482 of the Code or
together, as the case may be: 27.1. Though there are no limits of
the powers of the Court under Section 482 of the Code but the
more the power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of Section
228 of the
Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the case
and the documents submitted therewith prima facie establish the
offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach such
a conclusion and where the basic ingredients of a criminal
offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous
examination of the evidence is needed for considering whether
the case would end in conviction or not at the stage of framing of
charge or quashing of charge. 27.4. Where the exercise of such
power is absolutely essential to prevent patent miscarriage of
justice and for correcting some grave error that might be
committed by the subordinate courts even in such cases, the High
Court should be loath to interfere, at the threshold, to throttle the
prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the
provisions of the Code or any specific law in force to the very
initiation or institution and continuance of such
criminal proceedings, such a bar is intended to provide specific
protection to an accused.
27.6. The Court has a duty to balance the freedom of a person
and the right of the complainant or prosecution to investigate and
prosecute the offender.
27.7. The process of the court cannot be permitted to be used for
an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the
record and documents annexed therewith to predominantly give
rise and constitute a "civil wrong" with no "element of
criminality" and does not satisfy the basic ingredients of a
criminal offence, the court may be justified in quashing the
charge. Even in such cases, the court would not embark upon the
critical analysis of the evidence.
27.9. Another very significant caution that the courts have to
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observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is sufficient
material on the basis of which the case would end in a
conviction; the court is concerned primarily with the allegations
taken as a whole whether they will constitute an offence and, if
so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold
a full-fledged enquiry or to appreciate evidence collected by the
investigating agencies to find out whether it is a case of acquittal
or conviction.
27.11. Where allegations give rise to a civil claim and also
amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint cannot be
maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or
under Section 482, the Court cannot take into consideration
external materials given by an accused for reaching the
conclusion that no offence was disclosed or that there was
possibility of his acquittal. The Court has to consider the record
and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit
continuation of prosecution rather than its quashing at that initial
stage. The Court is not expected to marshal the records with a
view to decide admissibility and reliability of the documents or
records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the
Code, suffers from fundamental legal defects, the Court may be
well within its jurisdiction to frame a charge. 27.15. Coupled
with any or all of the above, where the Court finds that it would
amount to abuse of process of the Code or that the interest of
justice favours, otherwise it may quash the charge. The power is
to be exercised ex debito justitiae i.e. to do real and substantial
justice for administration of which alone, the courts exist.
[Ref. State of W.B. v. Swapan Kumar GuhaMadhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre; Janata Dal v. H.S.
Chowdhary; Rupan Deol Bajaj v. Kanwar Pal Singh Gill; G.
Sagar Suri v. State of U.P.; Ajay Mitra v. State of M.P.; Pepsi
Foods Ltd. v. Special Judicial Magistrate; State of U.P. v. O.P.
Sharma; Ganesh Narayan Hegde v. S. Bangarappa; Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque; Medchl
Chemicals and Pharma (P) Ltd. v. Biological E. Ltd.; Shakson
Belthissor v. State of Kerala; V.V.S. Rama Sharma v. State of
U.P.; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu;
Sheonandan Paswan v. State of Bihar; State of Bihar v. P.P.
Sharma; Lalmuni Devi v. State of Bihar; M. Krishnan v. Vijay
Singh; Savita v. State of Rajasthan and S.M. Datta v. State of
Gujarat.] 27.16. These are the principles which individually and
preferably cumulatively (one or more) be taken into
consideration as precepts to exercise of extraordinary and wide
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plenitude and jurisdiction under Section 482 of the Code by the
High Court. Where the factual foundation for an offence has been
laid down, the courts should be reluctant and should not hasten
to quash the proceedings even on the premise that one or two
ingredients have not been stated or do not appear to be satisfied
if there is substantial compliance with the requirements of the
offence."
(Underline Supplied)
10. In view of the second part of the F.I.R. which alleges that not only
entire foodgrains supplied by complainant were sold by applicant but he has
misappropriated the amount, this Court is of the considered opinion that it is
a case in which the civil and criminal ingredients are involved and it cannot
be said that allegations made in F.I.R. are purely of civil in nature.
Accordingly, no case is made out warranting interference.
11. The application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AK/-
