Rajasthan High Court - Jodhpur
Suhil Kumar vs State Of Rajasthan on 12 January, 2022
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3125/2017
1. Ram Chandra S/o Ram Kishan, By Caste Jat, R/o Village
Bhrusari, Tehsil Rawatsar, District Hanumangarh.
2. Sushil Kumar S/o Bal Ram, By Caste Jat, R/o 16 Bibi
Dhani, Tehsil Padampur, District Sri Ganganagar.
----Petitioners
Versus
1. The State Of Rajasthan
2. Kana Ram S/o Ramrakh Ram, By Caste Jat, Resident Of
Village Upani, Tehsil Sri Dungargarh, District Bikaner.
----Respondents
CONNECTED WITH
S.B. Criminal Misc(Pet.) No. 1626/2019
1. Smt. Kiranbala W/o Ramchandra, Aged About 37 Years,
2. Ramchandra S/o Shri Ramkrishna, Aged About 42 Years,
3. Rohitash S/o Shri Ramjilal, Aged About 30 Years,
All by Caste Jat, R/o Bhairusari, Rawatsar, Hanumangarh.
----Petitioners
Versus
1. State of Rajasthan
2. Hardutt Singh S/o Rati Ram Kaswan, By Caste Jat, R/o
Ward No.4, Rawatsar, Tehsil Rawatsar, District
Hanumangarh.
----Respondents
S.B. Criminal Misc(Pet.) No. 1628/2019
Suhil Kumar S/o Shri Bal Ram, Aged About 27 Years, By Caste
Jat, Resident of 2 EE, VPO Sawatsar, Tehsil Padampur, District Sri
Ganganagar
----Petitioner
Versus
1. The State of Rajasthan
2. Hardutt Singh S/o Rati Ram Kaswan, By Caste Jat, R/o
Ward No.4, Rawatsar, Tehsil Rawatsar, District
Hanumangarh.
----Respondents
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S.B. Criminal Misc(Pet.) No. 4841/2021
1. Sushil Kumar S/o Shri Bal Ram, Aged About 29 Years, B/c
Jat, R/o 2 EE, VPO Sawantsar, Tehsil Padampur, District
Sri Ganganagar.
2. Ram Chandra S/o Shri Ram Krishan, Aged About 44
Years, By Caste Jat, R/o Ward No. 5, Bhairusari,
Rawatsar, District Hanumangarh.
----Petitioners
Versus
1. The State of Rajasthan
2. Suresh Chandra S/o Shri Puran Chand, B/c Agrawal, R/o
71, Shambhukunj, Kamla Nagar, P.S. Kamla Nagar, Agra
(U.P.)
----Respondents
S.B. Criminal Misc(Pet.) No. 5701/2021
Sushil Kumar S/o Shri Bal Ram, B/c Jat, Aged about 29 years,
R/o 2EE, VPO Sawantsar, Tehsil Padampur, District
Sirganganagar (Raj.)
----Petitioner
Versus
1. The State of Rajasthan
2. Director General of Police, Jaipur.
3. Inspector General of Police, Bikaner Range, Bikaner
4. Superintendent of Police, Hanumangarh.
5. Station House Officer, Police Station Rawatsar, District
Hanumangarh.
----Respondents
For Petitioners : Mr. J.S. Choudhary, Sr. Advocate assisted
by Mr. Pradeep Choudhary
Mr. Rakesh Matoria
Mr. Shreedhar Purohit (through VC)
For Respondents : Mr. S.K. Bhati, Public Prosecutor
Mr. Rajendra Choudhary (through VC)
Mr. A.R. Godara
Mr. R.S. Choudhary
Mr. Jayant Mahecha
for Mr. Sudhir Saruparia
Present in person : Mr. Vedpalshivram, CI, SHO,
PS Rawatsar, District Hanumangarh
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HON'BLE MR. JUSTICE VIJAY BISHNOI
Order
Date of Order Reserved : 03/01/2022
Date of Order Pronouncement : 12/01/2022
By the Court :-
Since the subject matter of SBCRLMP No.5701/2021 is
similar to that of SBCRLMP Nos.3125/2017, 1626/2019,
1628/2019 and 4841/2021, the record of SBCRLMP No.5701/2021
was called and the said misc. petition is being decided by this
common order along with the above referred criminal misc.
petitions.
The following criminal misc. petitions under section 482
Cr.P.C. have been filed by the petitioners for quashing the
following FIRs;
SBCRLMP FIR No. & Police Station & for the offences
No. Date District punishable u/S
218/2017 Sri Dungargarh,
3125/2017 420 and 406 IPC
04.09.2017 District Bikaner
1626/2019 91/2019 Rawatsar, District 420, 406 and 120-B
1628/2019 13.03.2019 Hanumangarh IPC
426/2021 Rawatsar, District 420, 406 and 506
4841/2021
01.09.2021 Hanumangarh IPC
whereas, SBCRLMP No.5701/2021 has been filed by petitioner for
issuing directions to the police authorities to conduct fair and
impartial investigation into the FIR No.426/2021 dated 01.09.2021
(4 of 14) [CRLMP-3125/2017]
of Police Station Rawatsar, District Hanumangarh for the offences
punishable under Sections 420, 406 and 506 IPC.
Brief facts relevant and essential for disposal of these
criminal misc. petitions are noted herein below :-
SBCRLMP No.3125/2017
Complainant/Respondent No.2 - Kana Ram submitted a
report at Police Station Shridungargarh, District Bikaner alleging,
inter alia, therein that on an oral agreement between him and
petitioners Ramchandra and Sushil Kumar, who happened to be
the partners of partnership firm viz. M/s Santpal Sushil Kumar Oil
Mills, Rawatsar, Hanumangarh in the presence of some other
responsible and prestigious persons, the complainant/respondent
No.2 agreed to sell groundnuts to the petitioners worth Rs.3 Crore
and the petitioners promised him that the payment would be
made on delivery of goods. In pursuance thereof,
complainant/respondent No.2 supplied groundnuts worth
Rs.2,84,18,661/- to the petitioners but received partial payment
of Rs.1,39,50,000/- only on different dates that too in installments
through RTGS and some groundnuts worth Rs.24,35,806/- was
also returned and, thus, he received a sum of Rs.1,63,85,806/-
(Rs.1,39,50,000/- + Rs.24,35,806/-) in respect of the above
supplied goods.
After receiving the aforementioned amount, the total amount
outstanding from the petitioners was Rs.1,23,88,791/-
(Rs.1,20,32,855/- for goods supplied + Rs.3,55,936/- for
Bardana). The complainant/respondent No.2 allegedly demanded
the due amount from the petitioners on several occasions but they
didn't pay the same.
(5 of 14) [CRLMP-3125/2017]
It is alleged that on 21.08.2017, in the presence of the
complainant/respondent No.2 and other responsible persons, the
petitioners refused to pay the due amount as well as groundnuts
stating that it is their way to cheat the people by making payment
in part and misappropriating the remaining due amount and the
complainant/respondent No.2 can do whatever he wants. Thus,
the petitioners, with the intention to gain illegal profit, allegedly
misappropriated the amount of Rs.1,23,88,791/-
(Rs.1,20,32,855/- for goods supplied + Rs.3,55,936/- for
Bardana), which caused loss to the complainant/respondent No.2.
On the basis of the said information, FIR No.218/2017 was
registered at Police Station Sridungargarh, District Bikaner for the
offences punishable under Sections 420 and 406 IPC and
investigation was commenced.
SBCRLMP Nos.1626/2019 & 1628/2019
Complainant/Respondent No.2 - Hardutt Singh submitted a
report at Police Station Rawatsar, District Hanumangarh, alleging,
inter alia, therein that the complainant/respondent No.2 used to
do business with the petitioners and on account of that several
business transactions were carried out between them, however, a
sum of Rs.18,47,749/- became due from the petitioners. It is
further alleged that upon demanding the said due amount by the
complainant/respondent No.2, the petitioners told him that if they
receive Rs.49,50,000/-, they could get their bank account limit
increased and would be able to repay his all due amount with the
interest. It is also alleged that relying upon the statement of the
petitioners, the complainant/respondent No.2 gave Rs.49,50,000/-
to them through RTGS and thus the total amount of
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Rs.67,97,749/- was due from them. The complainant/respondent
No.2 demanded the due amount from the petitioners on several
occasions but no heed was paid to the same and finally they
refused to pay the due amount.
The complainant/respondent No.2 further alleged that from
the very beginning, the petitioners had the dishonest and
fraudulent intention to cheat, defraud and cause loss to him and to
gain illegal profit, misappropriated the amount of Rs.67,97,749/-.
On the basis of the said report, FIR No.91/2019 came to be
registered at Police Station Rawatsar, District Hanumangarh for
the offences punishable under Sections 420, 406 and 120-B IPC
and investigation was commenced.
SBCRLMP NoS.4841/2021 & 5701/2021
Complainant/Respondent No.2 - Suresh Chandra submitted
a report at Police Station Rawatsar, District Hanumangarh alleging,
inter alia, therein that he is an edible oil trader and sole proprietor
of a firm viz. M/s. P.C. Traders, Agra. On 28.08.2021, he entered
into an agreement through a broker with the mill of the petitioners
to purchase 32 tons mustard oil. According to the said agreement
and as stated by the petitioners, the complainant/respondent No.2
sent Rs.50 lac and a tanker bearing No.UP-80-ET-4282 through
his driver to purchase and bring 32 tons of mustard oil from the
mill of the petitioners. As per the instructions of the
complainant/respondent No.2, his driver reached the mill of the
petitioners on 29.08.2021 with tanker and gave Rs.50 lac to them
and asked them to fill 32 tons of mustard oil in the tanker,
however, they filled only 20 tons of mustard oil and said that
remaining oil would be filled on the next day at 10:00 A.M.,
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however, on the next day, they did not fill the remaining oil on the
ground that it was a holiday. Thereafter on 31.08.2021,
petitioners came with four to five other persons and started taking
oil out from the tanker through a pipe and when the driver of the
complainant/respondent No.2 objected them, they threatened
him. It is alleged that after emptying the tanker, the petitioners
beat up the driver of the complainant/respondent No.2 and drove
him out of their mill and when he asked for returning the amount
of Rs.50 lac, they said that they would not return any amount,
then he informed about the said incident to the
complainant/respondent No.2 on telephone.
On the next day, when the complainant/respondent No.2
along with the broker reached the mill of the petitioners and asked
them either to give oil or return the amount then they replied and
said that they would not give anything to him and if he tries to
come back again to their mill, he would be implicated in the false
case of theft. Thus, the petitioners allegedly, made a false promise
to supply 32 tons of mustard oil and grabbed Rs.50 lac.
On the basis of the aforesaid information, FIR No.426/2021
was registered at Police Station Rawatsar, District Hanumangarh
for the offences punishable under Sections 420, 406 and 506 IPC
and investigation was commenced.
Assailing the impugned FIRs, learned counsel for the
petitioners have argued that the registration of the impugned FIRs
against the petitioners at the instance of the complainants is
nothing but an abuse of process of law. It is submitted that from
the contents of the impugned FIRs, it is more than clear that the
petitioners and the complainants were having business relation
(8 of 14) [CRLMP-3125/2017]
since long and during the course of business transactions, the
complainants supplied certain items to the petitioners and in lieu
thereof the petitioners also made payments to the complainants
from time to time. It is submitted that during those business
transactions, if some amount is due against the petitioners, it
cannot be said that they have committed the offences as alleged
in the complaint.
Learned counsel for the petitioners have submitted that the
facts mentioned in the complaint of making payment on the part
of the petitioners from time to time in lieu of goods received, itself
is sufficient to assume that the petitioners had no intention to
cheat the complainants since initiation of the business
transactions. It is also submitted that due to some financial
constraints, may be the petitioners have failed to make payment
of the received goods within time but this fact itself is not
sufficient to conclude that the petitioners have committed cheating
with the complainants.
Learned counsel for the petitioners have submitted that as a
matter of fact the disputes between the petitioners and the
complainants are predominantly of civil nature which gave the
color of the criminal prosecution. Learned counsel for the
petitioners have, therefore, argued that when the disputes
between the parties are purely of civil nature, the initiation of
criminal proceedings against one of the party is nothing but an
abuse of process of law.
In support of the above contentions, learned counsel for the
petitioners have placed reliance on the decisions rendered by the
Hon'ble Apex Court in Paramjeet Batra Vs. State of
(9 of 14) [CRLMP-3125/2017]
Uttarakahand & Ors. (Criminal Appeal No.2069/2012) reported
in 2013 Cr.L.R. (SC) 67; Satishchandra Ratanlal Shah Vs.
State of Gujarat & Anr. (Criminal Appeal No.9/2019) reported in
AIR 2019 SC 1538 and the decisions rendered by a Coordinate
Bench of this Court in Anil Dudha Bhai Kaneria & Ors. Vs.
State of Rajasthan Thro' P.P. & Anr. (S.B. Criminal Misc.
Petition No.1910/2016) decided on 17.05.2017 reported in
2017(3) Cr.L.R. (Raj.) 1373; Amit Kumar Choudhary Vs.
State of Rajasthan & Anr. (S.B. Criminal Misc. Petition
No.3278/2016) decided on 06.07.2017 and Smt. Shanta Bai &
Ors. Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition
No.1391/2016) decided on 17.07.2017.
Learned counsel for the petitioners have, therefore, prayed
that the impugned FIRs as well as any proceedings in pursuance
to the said FIRs may kindly be quashed.
Per contra, learned Public Prosecutor as well as learned
counsel for the complainants have vehemently opposed the prayer
made in these criminal misc. petitions and argued that simply
because the disputes between the parties are having some
element of civil nature, it cannot prohibit the aggrieved parties to
initiate criminal prosecution against the accused persons when the
complaint filed against them reveals that the accused persons
were having fraudulent and dishonest intention to cheat the
complainants even at the time of start of business transactions in
between them.
Learned Public Prosecutor as well as learned counsel for the
complainants have further argued that even if the complaint
reveals a commercial transaction and money transaction between
(10 of 14) [CRLMP-3125/2017]
the parties but that is hardly a reason for holding that the offence
of cheating would elude from such a transaction. It is also
submitted that many times, the offence of cheating is committed
in the course of commercial transactions. It is further argued that
the law in this respect is well settled that when the contents of the
complaint disclose the commission of an offence then the said
FIR/complaint cannot be quashed.
In support of the above contentions, learned Public
Prosecutor as well as learned counsel for the complainants have
placed reliance on the decision rendered by Hon'ble Apex Court in
Lakshman (Dr.) Vs. State of Karnataka & Ors. reported in
2019 (Suppl.) Cr.L.R. (SC) 18.
Heard learned counsel for the parties and perused the
material available on record as well as the impugned FIRs.
The law in respect of quashing the FIR/complaint while
exercising power under Section 482 Cr.P.C. is well settled. The
Hon'ble Apex Court in State of Haryana & Ors. Vs. Bhajan Lal
& Ors. reported in 1992 SCC (Cri) 426 and Rupan Deol Bajaj
(Mrs) & Anr. Vs. Kanwar Pal Singh Gill & Anr. reported in
1995 SCC (Cri) 1059 and in the catena of decisions has laid
down certain principles, wherein a criminal FIR/complaint can be
quashed by the High Court while exercising power under Section
482 Cr.P.C. if from bare reading of the FIR/complaint, no case is
made out.
The said principles are reiterated here under :-
"(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
(11 of 14) [CRLMP-3125/2017]
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 F.I.R.
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 F.I.R. 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."
Though, the above principles laid down by the Hon'ble Apex
Court are illustrative and not exhaustible but throw light on the
eventualities, which are required to be taken into consideration,
(12 of 14) [CRLMP-3125/2017]
while exercising inherent powers under Section 482 Cr.P.C. in the
case of quashing of FIRs/complainants.
After carefully scrutinizing the impugned FIRs/complaints, I
am of the view that it cannot be said that the FIRs/complaints do
not disclose the commission of an offence, rather the contents of
the FIRs/complaints reveal that the ingredients of the offences
under Sections 406 and 420 IPC are made out.
It is a different thing that whether the allegations in the
FIRs/complaints are otherwise correct or not, as the same has to
be decided on the basis of the evidence to be led by the parties
before the competent criminal court. It is well settled that in both
the criminal and civil law, remedy can be availed simultaneously
as both are not mutually exclusive but clearly extensive and
essentially different in there contents and question.
The Hon'ble Apex Court in a recent decision dated
10.03.2021 rendered in Priti Saraf & Anr. Vs. State of NCT of
Delhi & Anr. (Criminal Appeal No.296/2021) reported in AIR
2021 SC 1531 has held as under :-
"33. We have perused the pleadings of the parties, the
complaint/FIR/charge-sheet and orders of the Courts below
and have taken into consideration the material on record.
After hearing learned counsel for the parties, we are
satisfied that the issue involved in the matter under
consideration is not a case in which the criminal trial should
have been short-circuited. The High Court was not justified
in quashing the criminal proceedings in exercise of its
inherent jurisdiction. The High Court has primarily adverted
on two circumstances, (i) that it was a case of termination
of agreement to sell on account of an alleged breach of the
contract and (ii) the fact that the arbitral proceedings have
been initiated at the instance of the appellants. Both the
alleged circumstances noticed by the High Court, in our
(13 of 14) [CRLMP-3125/2017]
view, are unsustainable in law. The facts narrated in the
present complaint/FIR/charge-sheet indeed reveal the
commercial transaction but that is hardly a reason for
holding that the offence of cheating would elude from such
transaction. In fact, many a times, offence of cheating is
committed in the course of commercial transactions and the
illustrations have been set out under Sections 415, 418 and
420 IPC. Similar observations have been made by this Court
in Trisuns Chemical Industry V. Rajesh Agarwal and Ors.
(supra) :-
"9. We are unable to appreciate the reasoning that
the provision incorporated in the agreement for
referring the disputes to arbitration is an effective
substitute for a criminal prosecution when the
disputed act is an offence. Arbitration is a remedy
for affording reliefs to the party affected by breach
of the agreement but the arbitrator cannot conduct a
trial of any act which amounted to an offence albeit
the same act may be connected with the discharge
of any function under the agreement. Hence, those
are not good reasons for the High Court to axe down
the complaint at the threshold itself. The
investigating agency should have had the freedom to
go into the whole gamut of the allegations and to
reach a conclusion of its own. Pre-emption of such
investigation would be justified only in very extreme
cases as indicated in State of Haryana v. Bhajan Lal
(1992 Supp (1) SCC 335)"
(emphasis supplied)
There is no quarrel about the law laid down by the Hon'ble
Apex Court as well as the Coordinate Benches of this Court in the
above mentioned judgments relied by learned counsel for the
petitioners but as observed earlier merely civil/commercial
transaction between the parties is hardly a reason to hold that
criminal prosecution cannot be launched when the FIR/complaint
reveals that a case for commission of offence is made out.
Apart from the above facts and circumstances, one thing
which is bothering the Court, is the conduct of the petitioners.
Multiple FIRs have been lodged against the petitioners in around
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four years by the different businessmen levelling similar types of
allegations that the petitioners asked them to supply some goods
with the assurance that payment would be made to them in due
course of time, however, part payments were made but thereafter
the petitioners refused to make payment of the due amount. Such
conduct of the petitioners itself deprives them to seek indulgence
form this Court in its extraordinary jurisdiction as the facts and
circumstances of the case lead to an impression that the
petitioners are in habit of doing such activities and for this reason
also the challenge of the petitioners to the impugned FIRs is
without any basis.
In view of the above discussions, I don't find any merit in
these criminal misc. petitions and the same are, therefore,
dismissed.
Stay petitions also stand dismissed.
(VIJAY BISHNOI),J
Abhishek Kumar
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