Punjab-Haryana High Court
Balwinder Kumar @ Jwala vs Raj Rani And Another on 11 December, 2023
Neutral Citation No:=2023:PHHC:157741
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
109 CRM M-25471 of 2014
Date of Decision: 11.12.2023
Balwinder Kumar @ Jwala ...Petitioner
Versus
Raj Rani and another ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present:- Mr. L.S. Mann, Advocate for the petitioner.
Mr. Aditiya Dassaur, Advocate for respondents No. 1 and
2.
Mr. Mohit Chaudhary, AAG, Punjab.
Mr. Ankur Sharma, Advocate for
Mr. Amrita Singh, Advocate
for the respondent No. 3.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the present petition under Section
482 Cr.P.C. with a prayer to quash the complaint No. 342/1/2012
dated 07.11.2012 titled as "Raj Rani Vs. Jawala and others" under
Sections 406, 420 and 506-B IPC, which was pending in the Court of
Judicial Magistrate 1st Class Jalandhar and all subsequent proceedings
arising therefrom.
2. A short reply by way of an affidavit of the Deputy
Superintendent of Police, NRI Wing, Sub-Division, Jalandhar-1 has
been filed on behalf of the respondent No.2-State and the same is
taken on record.
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2. The complaint in the present case was filed by
respondent No. 1 under Sections 406, 420 and 506 IPC. As per
respondent No. 1-complainant, she is NRI and permanently settled in
England. The petitioner/accused and co-accused Bindu were closely
related to respondent No. 1/Complainant. The petitioner and Bindu,
co-accused were running a finance company under the name and style
of M/s Jalandhar Capital Services Private Limited, having its
registered office At 59, Ranjit Nagar Jalandhar. Another accused
Rajinder was also running the business with them. The respondent
No. 1 and her husband were having good family relations with the
petitioner and his co-accused. They were well aware of the good
financial status of respondent No. 1 as they were well settled in
England. The petitioner and his co-accused made an allurement to the
respondent No. 1 that they would pay the interest at the rate of 18%
per annum, which was higher than the interest rate given by the bank.
The complainant and her husband believed their words and were
trapped in the net of the accused. On different dates, a total sum of
Rs. 39 lacs was handed over to the petitioner and his co-accused. The
accused did not issue any original FDR's, but later on they had
handed over different receipts to respondent No. 1. All the amounts
were handed over to the accused in the presence of Balbir Ram and
Ram Pyari, mother of the complainant/respondent No. 1. Later on,
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FDR's were also issued to the respondent No. 1 by the accused with
the assurance that an interest at the rate of 18% per annum would be
paid to her. However, no amount was paid to the respondent No. 1.
When the respondent No. 1 and her husband demanded their money,
the accused started making one pretext or the other. In April 2012,
respondent No. 1 again visited India and inquired from the accused,
however, they flatly refused to return the amount of FDR's alongwith
interest and threatened the respondent No. 1. Respondent No. 1 made
a complaint to the Commissioner of Police through the Police Station
NRI Sabha Punjab, but the police did not take any action in the
matter. After the filing of the aforesaid complaint, the respondent
No. 1 examined Ram Pyari, mother of the complainant as CW1,
Darshan Kumar as CW2, Balbir Ram as CW3 and the complainant
herself appeared as CW4. Even HC Nirmal Chand was examined as
CW5. Vide order dated 06.09.2013 passed by the Judicial Magistate
1st Class Jalandhar, the petitioner No. 1 and co-accused were ordered
to be summoned under Sections 406, 420 and 506 IPC. Accordingly,
challenging the impugned complaint (Annexure P-1) and summoning
order (Annexure P-2), the petitioner has filed the present petition
before this Court.
3. Learned counsel for the petitioner contended that
respondent No.1/complainant is the maternal sister of the petitioner.
In the complaint, it has been wrongly alleged that the petitioner was
working as Managing Director of the Firm M/s Jalander Capital
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Services Private Limited. In fact, the petitioner was running a gas
agency since the last so many years in the area of Phillaur and had
never indulged in any business of finance as alleged in the complaint.
Even the petitioner had no concern whatsoever with the finance
company. Moreover, Ex.C-1 to Ex. C-14 did not bear the signatures of
the petitioner. Learned counsel further contended that first transaction
in the present case had taken place in the year 1999 and the last
transaction was on 18.04.2004. However, the complaint was moved to
the police in the year 2012 and in view of Section 468 Cr.P.C., the
complaint was not maintainable before this Court. Still further, in the
present case, the inquiries were conducted by the various police
officers and the allegations leveled by the complainant were not found
to be correct. Still further, it was a financial dispute between
respondent No. 1 and the Managing Director of the complainant,
namely, Harbhajan Bhatia. However, Harbhajan Bhatia expired later
on and the petitioner was falsely involved in the present case. Apart
from that, when the respondent No. 1 and her muscle men started
harassing the petitioner, his sister and brother-in-law by filing various
false complaints. The petitioner filed a suit on 27.08.2012 (Annexure
P-10) with a prayer to restrain the respondent No.1, their attorneys
and agents from recovering any amount forcibly and illegally or with
the help of the police. Consequently, it is a civil suit, which has been
given the colour of criminal offence and the petition is liable to be
allowed by this Court.
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4. On the other hand, learned counsel appearing on behalf
of respondent No. 1 submitted that there are specific allegations
against the present petitioner. In fact, the respondent
No.1/complainant is the cousin of the present petitioner and other
accused, namely, Bindu. Due to close relationship, the respondent
No. 1 trusted them and invested money in their finance company.
Even, the petitioner and his other co-accused had assured the
complaint that the money would be deposited in the fixed deposits
and an interest at the rate of 18% per annum would be provided to
respondent No. 1, which is much higher than the rate of interest given
by the bank. Even, learned counsel appearing on behalf of respondent
No. 1 referred to the annual returns filed by the Jalandher Capital
Services Private Limited (Annexure R-1 and R-2), which clearly
showed that the present petitioner was acting as Director of the
finance company, where the respondent had invested the money. Still
further, learned counsel submitted that the petitioner was prosecuted
under the various provisions of the Indian Penal Code and it was not a
prosecution under the provisions of the Companies Act. Thus,
whether the petitioner was acting as Director/Managing Director of
the Company or not, was immaterial. In fact, the petitioner was one of
the main accused, who had taken about Rs.39 lacs from the
respondent No.1/complainant on different dates and later on cheated
the respondent No. 1 of her hard earned money.
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5. I have heard the learned counsel for the parties and
perused the record.
6. The primary contention raised on behalf of the petitioner
is that the petitioner had no concern with the finance company
M/s Jalandher Capital Services Private Limited and he was running a
gas agency in the area of Phillaur. It was further alleged that it was a
financial dispute between the said company and respondent No.1 and
petitioner never acted as director of the said company. On the other
hand, learned counsel appearing on behalf of respondent No.1 had
placed reliance on Annexures R-1 and R-2, i.e., the annual return of
the finance company under the provisions of Companies Act and the
present petitioner had been shown as one of the Directors of the
Company. Apart from that, even he was one of the major shareholders
in the company as well as on 30.09.2004. Apart from that, the
complainant had examined several witnesses, in whose presence, the
money was handed over to the petitioner and his co-accused. Thus, it
is apparent that the complainant had been able to prima facie show
that the present petitioner was also involved in the affairs of the
finance company M/s Jalandher Capital Services Private Limited.
Even otherwise, the petitioner has raised several disputed questions of
fact, which can never be adjudicated upon by this Court while
exercising its jurisdiction under Section 482 Cr.P.C. Whether the
petitioner was a Director/Managing Director/Employee of M/s
Jalandher Capital Services Private Limited, is a fact, regarding which,
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both the sides are required to lead their respective evidence and the
said fact can only be established only during the course of trial.
7. Even, the Hon'ble Supreme Court has held in the matter
of Central Bureau of Investigation Vs. Aryan Singh etc. AIR 2023
(Supreme Court) 1987, as follows:-
"4. Having gone through the impugned common
judgment and order passed by the High Court quashing
the criminal proceedings and discharging the accused,
we are of the opinion that the High Court has exceeded
in its jurisdiction in quashing the entire criminal
proceedings in exercise of the limited powers under
Section 482 Cr.P.C., 1973 and/or in exercise of the
powers under Article 226 of the Constitution of India.
4.1 From the impugned common judgment and order
passed by the High Court, it appears that the High Court
has dealt with the proceedings before it, as if, the High
Court was conducting a mini trial and/or the High Court
was considering the applications against the judgment
and order passed by the learned Trial Court on
conclusion of trial. As per the cardinal principle of law,
at the stage of discharge and/or quashing of the criminal
proceedings, while exercising the powers under Section
482 Cr.P.C., 1973 the Court is not required to conduct
the mini trial. The High Court in the common impugned
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judgment and order has observed that the charges
against the accused are not proved. This is not the stage
where the prosecution / investigating agency is/are
required to prove the charges. The charges are required
to be proved during the trial on the basis of the evidence
led by the prosecution / investigating agency. Therefore,
the High Court has materially erred in going in detail in
the allegations and the material collected during the
course of the investigation against the accused, at this
stage. At the stage of discharge and/or while exercising
the powers under Section 482 Cr.P.C., 1973 the Court
has a very limited jurisdiction and is required to
consider "whether any sufficient material is available to
proceed further against the accused for which the
accused is required to be tried or not".
4.2 One another reason pointed by the High Court is that
the initiation of the criminal proceedings / proceedings is
malicious. At this stage, it is required to be noted that the
investigation was handed over to the CBI pursuant to the
directions issued by the High Court. That thereafter, on
conclusion of the investigation, the accused persons have
been chargesheeted. Therefore, the High Court has erred
in observing at this stage that the initiation of the
criminal proceedings / proceedings is malicious.
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Whether the criminal proceedings was/were malicious or
not, is not required to be considered at this stage. The
same is required to be considered at the conclusion of
the trial. In any case, at this stage, what is required to be
considered is a prima facie case and the material
collected during the course of the investigation, which
warranted the accused to be tried".
8. Still further, learned counsel appearing on behalf of the
petitioner submitted that in the present case, the first transaction took
place in the year 1999 and the last transaction was on 18.04.2004
whereas the first complaint was moved by the respondent
No. 1/complainant in the year 2012 and the cognizance of the
complaint shall be barred in view of the provisions contained under
Section 468 Cr.P.C. In fact, in the present case, the petitioner has been
summoned in the provisions of Sections 406, 420 and 506 IPC. The
maximum punishment provided by the statute for the offence under
Section 420 IPC is 07 years and as a consequence the provisions of
Section 468 Cr.P.C. would not apply to the facts of the present case.
The provisions of Section 468 Cr.P.C. are applicable for only those
offences, which are punishable for a term not exceeding 03 years.
Thus, there is no merit in the argument raised by the learned counsel
for the petitioner and the same is rejected.
9. Learned counsel for the petitioner had further submitted
that during the various police inquiries, the matter was found to be
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false and the complaints filed by the present petitioner were ordered
to be filed by the police. However, the said argument cannot serve as
a basis for quashing of a legitimate prosecution, filed by way of a
complaint. The respondent No. 10 specifically pleaded in the
complaint that she made complaints to the police authorities but no
action was taken by the police in collusion with the accused.
Ultimately, she was constrained to file a criminal complaint before the
Court of Judicial Magistrate 1st Class. Thus, there is no substance in
the argument raised on behalf of learned counsel for the petitioner.
10. In view of the above discussion, there is no merit in the
present petition and deserves dismissal by this Court.
11. Dismissed.
12. All pending applications, if any, are disposed off,
accordingly.
11.12.2023 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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