Rajasthan High Court

Sumit Maheshwari S/O Shri Shiv ... vs State Of Rajasthan on 11 February, 2021

Bench: Mahendar Kumar Goyal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 6717/2018

Sumit Maheshwari S/o Shri Shiv Kumar Maheshwari, R/o Near
Mandir Radha Bag, Colony, Kaswa Chomu, Tehsil Chomu, District
Jaipur, Raj.
                                                            ----Accused/Petitioner
                                      Versus
1.      State Of Rajasthan, Through PP
                                                                   ----Respondent

2. Nand Kishor Kulwal S/o Late Shri Damodar Kulwal, R/o Bhukhmariyo Ka Mohalla, Kaswa, Chomu, District Jaipur, Raj.

----Complainant/Respondent

For Petitioner(s) : Mr. Anil Kumar Upman For Respondent(s) : Mr. F.R. Meena, PP Mr. Amitabh Vijaywargia

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

11/02/2021

This criminal miscellaneous petition under Section 482 Cr.P.C.

has been filed for quashing the FIR No.392/2018 dated

03.07.2018 registered at Police Station Chomu, District Jaipur

(West) under Section 420 I.P.C.

Drawing attention of this Court towards the contents of FIR

in question, learned counsel for the petitioner contended that a

loan of Rs.10,00,000/- was advanced to him by the complainant

on interest @ 12% per annum and the instant FIR was lodged only

after four years therefrom to recover the loan amount when the

suit for recovery of the loan amount became barred by limitation.

He submitted that since the transaction in question reveals, at the

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best, breach of promise by the petitioner, the FIR in question,

which does not disclose commission of offence of cheating,

deserves to be quashed. He relied on the judgment of Hon'ble

Apex Court of India in case of Sushil Sethi & Anr Vs. The State

of Arunachal Pradesh & Ors.: Criminal Appeal

No.125/2020(Arising from SLP(CrL.) NO.590/2019),

decided on 31.01.2020 and a co-ordinate Bench judgment of this

Court in case of Pradip Mundhra Vs. State of Rajasthan &

Anr.: 2008(1) Cr.L.R. (Raj.) 855, in support of his submissions.

Learned Public Prosecutor assisted by learned counsel for the

complainant opposing the prayed submitted that a bare reading of

the FIR discloses commission of offence of cheating and hence, it

cannot be quashed by this Court under its extraordinary

jurisdiction vide Section 482 Cr.P.C. They submitted that the

complainant did not lodge the FIR against the petitioner

immediately inasmuch as the petitioner has promised to repay the

amount after three years. They submitted that there is specific

allegation in the FIR that the amount was taken by the petitioner

from the complainant with dishonest and fraudulent intention from

the very inception satisfying the ingredients necessary to

constitute offence under Section 420 I.P.C. and hence, the petition

deserves to be dismissed. They relied upon the judgment of

Hon'ble Apex Court of India in case of Varalal Bharath Kumar

and Anr. Vs. State of Telangana and Anr.: 2018 CRI.L.J. 431

and judgment of Hon'ble Allahabad High Court in case of Vijay

Prakash and Anr. Vs. State of Uttar Pradesh and Ors.: 2000

CRI.L.J. 4157.

Heard the learned counsels for the parties and perused

record.

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It is well established principle of law that if the contents of

FIR do not disclose commission of any offence, the same can be

quashed by the High Court in exercise of its jurisdiction under

Section 482 Cr.P.C. otherwise the investigation should not be

scuttled at the threshold. The Hon'ble Apex Court has, in case of

Dineshbhai Chandubhai Patel Vs. State of Gujarat and Ors.

and other connected cases reported in (2018) 3 Supreme Court

Cases 104, held as under:-

"25. The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such question is fairly well settled.

26. This Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle:

"21. The condition precedent to the commencement of investigation under Secton 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.

66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each

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particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence."

27. Keeping in view the aforesaid principle of law, which was consistently followed by this Court in later years and on perusing the impugned judgment, we are constrained to observe that the High Court without any justifiable reason devoted 89 pages judgment (see-paper book) to examine the aforesaid question and then came to a conclusion that some part of the FIR in question is bad in law because it does not disclose any cognizable offence against any of the accused persons whereas only a part of the FIR is good which discloses a prima facie case against the accused persons and hence it needs further investigation to that extent in accordance with law.

28. In doing so, the High Court, in our view, virtually decided all the issues arising out of the case like an investigating authority or/and appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code at this stage.

29. The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.

30. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the complainants and vice versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to

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what extent reliance can be placed on such material.

31. In our considered opinion, once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code." (Emphasis mine).

The Hon'ble Apex Court of India in case of Kamaladevi

Agarwal Vs. State of West Bengal and Ors.: (2002) 1 SCC

555 held as under:-

"9.Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in State of Haryana v. Bhajan Lal and Rajesh Bajaj v. State NCT of Delhi this Court in Trisuns chemical Industry v. Rajesh Agarwal held: (SCC p. 692, paras 7-8)

"7.Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal and Rajesh Bajaj v. State NCT of Delhi).

8.In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: (SCC p. 263, para 10) '10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transaction.' "

10.In Medchl Chemical & Pharma (P) Ltd. v.

Biological E. Ltd. this Court again reiterated the

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position and held: (SCC pp. 272 & 278, paras 2 &

14)

"2.Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations leveled in the complaint or charge- sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law.

14.Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observations in Nagawwa v. Veeranna Shivalingappa Konjalgi lend support to the above statement of law: (SCC p. 741, para 5) "(1)where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

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(2)where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3)where the discretion exercised by the Magistrate in issuing process in capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4)where the complaint suffers from fundamental legal defect, such as, want of sanction, or absence of a complaint by legally competent authority and the like.'

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

11. In Lalmuni Devi v. State of Bihar this Court held: (SCC p.19, para 8)

"8.There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed."

12. Again in M. Krishnan v. Vijay Singh this court held that while exercising powers under Section 482 of the Code, the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there is always some element of civil nature. In a case where the accused

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alleged that the transaction between the parties is of civil nature and the criminal court cannot proceed with the complaint because the factum of document being forged was pending in the civil court, the court observed: (SCC pp. 647-48, para

"5.Accepting such a general proposition would be against the provision of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the document and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be use against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of."

The Hon'ble Allahabad High Court, in case of Vijay Prakash (supra), held as under:-

In our opinion, the submission made by the learned counsel cannot be sustained. It has been held, in Rajesh Bajaj v. State NCT of Delhi, (1999) 2 JT (SC)

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112 : (AIR 1999 SC 1216) inter alia, that it is not necessary that complainant should verbatim reproduce in the body of the complaint all the ingredients of the offence he is alleging; that it is not necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent; and that the crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which become decisive in discerning whether there was commission of offence or not. The Apex Court observed that since the complainant had stated in the body of the complainant that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the accused therein were not clear inasmuch as the accused after receiving the goods sold them to others and still he did not pay the money, "prima facie" case was made out for investigation by the authorities. In L.V. Jadhav v. Shankarrao Abasaheb Pawar MANU/SC/0116/1983MANU/SC/0116/1983 : AIR 1983 SC 1219 the Supreme Court has held :

The High Court, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen.

In Medchel Chemicals and Pharma Pvt. Ltd. v. Biological,ELtd.MANU/SC/0128/2000MANU/SC/0128/2 000 the Supreme Court has very clearly laid down that if the complaint in its entirety discloses commission of offence the High Court has no authority or jurisdiction to go into the matter and examine its correctness. As pointed out above the allegations in the instant case are that the complainant was induced to supply plywood and other materials on the inducement of the petitioners that they would pay the price within three days. The said averments, in our opinion, constitute offence of cheating and in the circumstances the arguments advanced by the learned counsel for the petitioners has no force and the writ petition is dismissed. This is, however, without prejudice to the right of the petitioners to apply for bail before the courts below. It is also observed that nothing observed herein-above would be treated to be an expression of opinion on the merits of the case.

In the present case, the FIR, wherein, there is specific

allegation against the petitioner of taking amount of

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Rs.10,00,000/- from the complainant under the pretext of loan by

deceitful means with promise to repay

after three years with fraudulent intention not to repay the same

from the very inception, discloses commission of cognizable

offence and prima facie satisfies the ingredients necessary to

constitute offence under Section 420 I.P.C. and cannot be

quashed. Insofar as the contention of the learned counsel for the

petitioner that the complainant filed the FIR only after expiry of

the period of limitation for filing the recovery suit, is concerned,