Punjab-Haryana High Court
Radhanath Pattanayak And Ors vs State Of Haryana And Another on 5 September, 2023
Neutral Citation No:=2023:PHHC:116276
CRM-M-36864-2022 (O&M) 2023:PHHC:116276
247
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-36864-2022 (O&M)
Reserved on : 28.07.2023
Pronounced on : 05.09.2023
Radhanath Pattanayak and others ....Petitioners
Versus
State of Haryana and another ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present:- Mr. Amit Jhanji, Sr. Advocate with
Mr. Raghav Kakkar, Advocate,
Mr. Amrinder Singh, Advocate,
Mr. Sachit Singla, Advocate and
Mr. Himmat Singh Sidhu, Advocate
for the petitioners.
Mr. Ramesh Kumar Ambavta, A.A.G., Haryana.
Mr. A.P.S. Deol, Sr. Advocate with
Mr. Vishal R. Lamba, Advocate and
Mr. H.S. Deol, Advocate
for respondent No.2/complainant.
****
PANKAJ JAIN, J.
Petitioners pray for quashing of FIR No.243 dated 15.07.2022
registered under Sections 406, 420, 467, 468 & 471 IPC at Police Station
Kasola, District Rewari (Annexure P-1) along with all subsequent
proceedings arising therefrom.
2. Respondent No.2 approached the concerned Magistrate under
Section 156(3) Cr.P.C. Under the orders passed by the Magistrate the
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application preferred by the complainant was entertained and an FIR was
ordered to be registered vide order dated 08.02.2022 (Annexure P-9). Under
the orders passed, the FIR No.0064 dated 09.02.2022 came into being which
was registered under Sections 406, 420, 467, 468 & 471 IPC. The same was
challenged before this Court in CRM-M No.8296 of 2022. This Court
disposed off the same vide order dated 02.06.2022 (Annexure P-14) which
reads as under:-
"By filing this petition, quashing of FIR No.64 dated
09.02.2022 under Sections 406, 420, 467, 468, 471 IPC, Police
Station Kasola, District Rewari, the order dated 08.02.2022
passed by Ld. Judicial Magistrate Ist Class, Bawal, District
Rewari on a complaint bearing No.COMI-4-2022 filed by
respondent No.2 under Section 156(3) CrPC and all subsequent
proceedings arising therefrom, is sought.
Mr.Deol, Ld. Senior Counsel appearing for respondent
No.2 - complainant states that in view of the mandatory
requirement that a complaint filed under Section 156(3) CrPC
be supported with an affidavit of the complainant, the instant
complaint having been filed without such affidavit, the
impugned order dated 08.02.2022 (Annexure P-2) passed by
Ld. Judicial Magistrate Ist Class, Bawal, may be set aside and
all consequential proceedings including the FIR (Annexure P-1)
be quashed. However, the complainant be given liberty to file a
fresh complaint complying with the requirement of supporting
affidavit.
Accordingly, the order dated 08.02.2022 (Annexure
P-2) is set aside. All consequential proceedings including the
FIR No.64 dated 09.02.2022 under Sections 406, 420, 467, 468,
471 IPC, Police Station Kasola, District Rewari are quashed
with liberty to the complainant to file a fresh complaint on the
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same cause of action and facts, by complying with the
requirement of an affidavit. Disposed of accordingly."
3. The aforesaid order was impugned before the Supreme Court in
SLP (Crl.) Nos.6973 of 2022 Etc. which stands dismissed by the Apex
Court vide order dated 08.08.2022 observing as under:-
"We are not inclined to interfere with the impugned order of
remand as all rights and contentions of the petitioners have
been left open.
Recording the aforesaid, the petition for special leave to
appeal is dismissed.
Pending application(s), if any, shall stand disposed of."
4. Pursuant to the order passed by this Court dated 02.06.2022
(Annexure P-14) fresh complaint was preferred along with affidavit. The
Magistrate ordered registration of FIR vide order dated 13.07.2022
(Annexure P-2) which led to registration of the impugned FIR (Annexure
P-1), the contents thereof reads as under:-
"1. That the complainant-firm M/s. M.S. Metal, Ganpat Nagar,
Circular Road, Rewari namely Arvind Kumar Saraf, Radha
Nath Pattanayak and Rishabh Saraf are the
Share-holder/Directors of M/s. Arcotech Limited having its
property at 181, Sector-3, Bawal Growth Centre, Bawal
(hereinafter referred to as "the Accused). That the accused no.
2 and 4 namely Arvind Kumar Saraf and his son Rishabh Saraf
are the major shareholder in Arcotech Ltd. whereas accused
no.3 Radha Nath Pattanayak is the Chairman/promoter of the
said accused company. That the complainant has supplied
metal scrap (copper scrap, cupro nickle scrap etc. etc.) to the
accused party during the intervening period of 22.04.2017 to
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28.01.2018 amounting 3,96,03,130/- for which the order was
placed by the above mentioned three accused persons (accused
No 2 to 4). The copies of the relevant ledger/bills are enclosed
to substantiate the fact that the above mentioned material was
supplied by the complainant-firm to M/s. Acrotech Limited.
That the complainant had supplied the metal scrap as per the
order placed by the aforesaid accused persons and there was
no deficiency or defect in the material supplied by the
complainant. That no defect was ever reported by the accused
person for a sufficient long period i.e. for 20 (Twenty months).
On the contrary, the accused have acknowledged the receipt of
the abovesaid material and their liability to the tune of
Rs.3,30,89,211/-. The receipt dated 26.05.2017 issued by M/s
Acrotech Limited in this regard which was duly signed by
accused Radha Nath Patnayak is enclosed herewith. That the
accused persons had intention to cheat the complainant from
the very inception and to attain their nefarious object, the
accused persons vide letter dated 10.12.2018 stated for the first
time that the material supplied by the complainant was not up
to the mark and that the supplied material was having iron. In
fact, the above mentioned version of the accused persons is
absolutely false and baseless. In fact, the ordered material was
duly supplied by the complainant to the accused company as
per the specification and that the said material was not having
any iron contents and the same was absolutely pure as per the
order/requirement of the accused. This document/letter had
been prepared forged by the accused with ulterior motive of
cheating the complainant. Accused had also forged certain
debit notes (Copy 2 of the same are enclosed). The said debit
notes had been forged by the accused in order to cheat the
applicant. 9. That the following facts and the circumstances
prove beyond doubt that the version of the accused is absolutely
false and baseless and that their only object had been to cheat
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the complainant with intent to usurp the Crores of rupees of the
complainant. (1) That the accused have never supplied alleged
defective material to the complainant till date and that the
accused also did not return the tax amount paid by the
complainant, though the accused have retained and
misappropriated the said material and had not made payment
of the said material. On the contrary, they have made false,
frivolous and baseless allegations regarding impurity of
material in order to cause wrongful loss to the complainant and
on their own wrongful gain. The material in question was
supplied on the dates vide separate bills and the same could not
have been melted in single go because the capacity of the
melting pot is very less. If the accused have come to know that
the material was impure, then they should have immediately
informed the complainant and should have returned the
material and tax returned 17122 amount immediately which
was never done by them. That as per section 34 of the CGST
Act, 2017, the purchaser had no right to prepare/supply the
debit notes as the said Act (section 34) makes it amply clear
that the said right is only vested with the seller and that the
purchaser cannot issue debit notes. It is settled practice that
whenever any shortcoming found in the article/material
supplied by the seller to the purchaser, the purchaser will
immediately intimate the seller about the defective material and
thereafter, it is the seller who will issue credit note to the
purchaser and thereafter the purchaser will issue delivery
challan. In the present case, the accused party had not
intimated about the defective material till 10.12.2018 and they
kept silent for a long period i.e. for 20 years. That the receipt
dated 26.05.2017 duly signed by the accused Radha Nath
Patnayak falsifies the version of the accused party and the said
receipt clearly proves that the version of the accused party is
totally false and baseless and that the same has been
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introduced by the accused party after due deliberation and
consultation in order to deceive the complainant to the tune of
Rs.3,96,03,130 interest. The version of the accused party is
further falsified by the fact that the accused party had made
payment to the tune of Five Lakhs on 29.04.2019, which is
contrary to their stand taken by them in their email dated
16.04.2019. That the complainant had filed petition in the
NCLT under the relevant provisions of law wherein the accused
party had used false, manipulated and forged documents to
escape their legal liability and to cheat the complainant. That
the accused persons have also adopted this modus operandi
with other firms/parties and they have also filed petitions
against the accused company in NCLT. The copies of the same
are enclosed. 10. That all the three accused Nos.2 to 4 had
been managing day to day affairs of the accused company.
Accused Arvind Bakumar Saraf and his Rishabh Saraf are
major shareholders whereas accused Radha Nath Patnayak is
Chairman/promoter of the accused company. The
acknowledgement receipt dated 26.05.2017 and manipulated
forged debit notes bear his signatures. Accused No 2 to 4 have
been dealing with the said transactions and also managing the
affairs of the accused No.1 from the very inception. 11. That the
act and conduct of the accused revealed that from the very
inception the accused had intention to cheat the complainant
and they have wrongfully and legally retained and usurped the
material which was supplied by the complainant and did not
return the same and also did not pay the tax amount to the
complainant and also prepared false and frivolous debit notes.
12. That the complainant had also approached the concerned
police station, but the concerned SHO in collusion with the
accused did not take any action against the accused nor has
lodged FIR against the accused person on the basis of the
aforesaid facts. 13. That when no action was taken by the
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concerned SHO of Police Station the complainant has also
moved an application No.1249-PSP dated 25.10.2021 before
the Superintendent of Police, but still no action has been taken
against the accused persons. 14. That by means of aforesaid
acts, the accused had rendered themselves liable to be
prosecuted and punished under sections 406, 420, 467, 468 and
471 of the Indian Penal Code. 15. That there has been wilful
disobedience of law by the accused. 16. That the office of the
accused firm is situated within the jurisdiction of Police Station
Kasola and that the order was also placed by the accused at
Bawal and that the material was supplied accordingly to the
accused at Bawal. As such, the Hon'ble Court has jurisdiction
to entertain and try the present complaint. 17. That earlier on a
criminal complaint was filed by the complainant against the
accused before the Hon'ble Court and thereafter in terms of the
order dated 08.02.2022 the Hon'ble Court was pleased to pass
order under section 156(3) Cr. P.C. to get registered FIR on
the basis of which FIR no. 64 dated 09.02.2022 under sections
406, 420 467, 468 and 471 of the Indian Penal Code was
registered against the accused persons. Thereafter, the accused
persons had moved a petition before the Hon'ble High Court of
Punjab and Haryana for getting the aforesaid FIR quashed.
That the Hon'ble High Court of Punjab and Haryana has
passed an order dated 02.06.2022 (copy of the said order is
enclosed herewith for your kind perusal). The complainant has
now filed the present criminal complaint in pursuance of the
order dated 02.06.2022 since the earlier criminal complaint
filed by the complainant was not accompanied and supported
by an affidavit. The Hon'ble High Court had given liberty to the
complainant to file a fresh complaint alongwith the supporting
affidavit. The complainant has complied with the directions
given by the Hon'ble High Court and the present criminal
complaint has been filed supported with the affidavit of the
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complainant. The same is annexed as Annexure A with the
present criminal complaint. 19. That the appropriate court fees
has been affixed on the complaint. PRAYER: It is, therefore,
prayed- (a) That the present complaint may kindly be registered
and may kindly be sent to police station Kasola, District,
Rewari for registration of the FIR against the accused for the
commission of the offences under sections 406, 420, 467, 468
and 471 of Indian Penal Code, under the provisions of section
156(3) of the Code of Criminal Procedure. (b) That in the
alternative, accused may kindly be summoned, tried and
punished in accordance with law. (c) That any other relief
which this Hon'ble Court deems fit and proper, in the facts and
circumstances of the case may also be granted in favour of the
complainant."
5. Learned Senior counsel for petitioners while assailing the FIR
(Annexure P-1) has argued that a bare perusal of contents would reveal that
in fact its a purely commercial transaction which has been given colour of
criminal offence in order to arm-twist the petitioners. It has been further
contended by learned Senior counsel representing the petitioners that from
bare perusal of the contents of FIR (Annexure P-1) no allegation to
constitute offence punishable under Sections 406, 420, 467, 468 & 471 IPC
is made out. Thus, it would be a fit case to exercise jurisdiction under
Section 482 Cr.P.C. to quash the FIR. Learned Senior counsel representing
the petitioners has further placed reliance upon the judgment of Supreme
Court in 'Bandekar Brothers Pvt. Ltd. Vs. Prasad Vassudev Keni' 2020
AIR Supreme Court 4247 to submit that the alleged forged debit notes
cannot be said to be forged once the petitioners own it. Merely for the
reason that they are claimed to be ante-dated cannot lead to an inference that
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the same are forged. The contention raised by learned Senior counsel for
petitioners seems to be attractive but is misplaced.
6. Per contra, leaned Senior counsel representing respondent
No.2/complainant submits that it is a settled law that merely for the reason
that the dispute involves commercial transaction and has a civil consequence
as well, criminal prosecution cannot be held to be barred. It has been further
contended that from the bare perusal of the contents of FIR (Annexure P-1)
it is evident that the accused/petitioners had an intent to cheat respondent
No.2/complainant from the very inception and with an intent to cause
unlawful gain to themselves, the accused/petitioners dishonestly and
fraudulently created antedated false documents which would amount to
forgery and thus constitute offence punishable under Sections 467, 468 &
471 IPC. He further contends that the investigation being at a very nascent
stage cannot be nipped in the bud. Reliance has been placed upon the
judgments of the Supreme Court in the matters of M/s Neeharika
Infrastructure Pvt. Ltd. vs. State of Maharashtra and others reported as
2021 AIR (Supreme Court) 1918 and Priti Saraf and another vs. State of
NCT of Delhi and another reported as 2021(2) R.C.R. (Criminal) 340W
7. I have heard counsel for the parties and have gone through
records of the case.
8. Law with respect to exercise of jurisdiction under Section 482
Cr.P.C. stands well settled by the Supreme Court in the case of State of
Haryana and others vs. Ch. Bhajan Lal & others, 1992 AIR (Supreme
Court) 604, wherein while issuing a word of caution to exercise power of
quashing a criminal proceeding very sparingly and with circumspection and
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that too in the rarest cases, the Supreme Court has given an exhaustive list to
illustrate the kinds of cases wherein such power should be exercised holding
that:-
"102. In the backdrop of the interpretation of the various
relevant provisions of the Codeunder 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,
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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
malafide 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."
9. So far as the first limb of the argument raised by Ld. Senior
Counsel representing the petitioners is concerned, the same is misconceived.
As per the settled proposition of law, FIR cannot be quashed only for the
reason that the same involves commercial transaction and/or probably can be
a cause of action for civil remedy as well. Reliance can be placed upon law
laid down by Apex Court in 'Pratibha Rani vs. Suraj Kumar', 1985(1)
RCR (Criminal) 539 wherein Apex Court held as under :
".....There are a large number of cases where criminal law and
civil law can run side by side. the two remedies are not mutu-
ally exclusive but clearly coextensive and essentially differ in
their content and consequence. The object of the criminal law is
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to punish an offender who commits an offence against a person,
property of the State for which the accused, on proof of the of-
fence, is deprived of his liberty and in some cases even his life.
This does not, however, affect the civil remedies at all for suing
the wrong deer in cases like arson, accidents, etc. It is an
anathema to suppose that when a civil remedy is available, a
criminal prosecution is completely barred. The two types of ac-
tions are quite different in content, scope and import."
10. So far as the allegations levelled in the FIR are concerned, this
Court does not find that the FIR is bereft even of the basic facts to constitute
the offence(s). The allegation against the petitioners is that they had intent to
cheat the petitioners right from the inception and in order to defeat the claim
of the petitioners it was informed to the petitioners vide communication
dated 10th of December, 2018 that the material supplied by the complaint
was not up to the mark. Letter has been placed on record and the same reads
as under :
"As you are aware that there are various discrepancies and
disputes in our accounts with debit note/quality rejections/
shortages and other differences including quantity discounts
etc.
Therefore, we request you to depute someone to our works to
reconcile the accounts to clear the differences, if any, and ad-
just your book accounts accordingly.
If there is no reply, we shall consider our balance to be final
and binding."
Further allegation is that the debit notes being relied upon by
the petitioners to defeat claim of the complainant are forged documents as
thy find no mention even in communication dated 10.12.2018.
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11. Ld. Senior Counsel representing the petitioners does not deny
that the debit notes were not referred to in the said communication but were
produced for the first time before the NCLT on 17th of August, 2019 and it is
on the basis of these documents that 90% value being claimed by the
complainant has been denied.
12. Section 463 IPC defines 'forgery' which includes making false
document or false electronic record or part of a document or electronic
record, with an intent to cause damage or injury to a public or to any person,
or to support any claim or title, or to cause any person to part with property,
or to enter into any express or implied contract, or with intent to commit.
Making a false document has been defined under Section 464 IPC. Explana-
tion-I appended thereto explicitly provides that the man's signature of his
own name also may amount to forgery. In the present case, self serving
debit notes have been relied upon by the accused/petitioners to claim that the
materials supplied by respondent No.2/complainant was not upto the mark
and thus the petitioners are not required to pay for the same. The allegation
against the accused/petitioners are that those debit notes were created by
antedating the same with an intent to defraud the complainant.
13. The issue thus hinges upon answer to the question as to whether
the petitioners antedated the debit notes with an intent to defraud the com-
plainant or not?
14. Trite it is that while exercising jurisdiction under Section 482
Cr.P.C. the High Court is precluded from holding an inquiry into disputed
question of fact and from holding mini trial. The High Court cannot sieve
the complaint through the cullender of finest gauzes for testing the ingredi-
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ents of the offence alleged. Thus, this Court is of the opinion that the intent
of the petitioners being matter of trial, this Court should resist the temptation
to foray into the territories which this Court ought not while exercising juris-
diction under Section 482 Cr.P.C.
15. Resultantly, the present petition is dismissed.
16. Pending application(s), if any, shall also stand disposed off.
( PANKAJ JAIN )
JUDGE
September 05, 2023
ashish/Dpr
Whether speaking/reasoned: Yes
Whether reportable: No
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