Rajasthan High Court - Jodhpur

Smt Usha Devi And Anr vs State And Anr on 14 September, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2199/2016

Smt Usha Devi And Anr.

----Petitioner Versus State And Anr.

----Respondent

For Petitioner(s) : Mr. Ravi Bhansali, Sr. Adv. Assisted by Mr. Vipul Dharnia For Respondent(s) : Mr. Mahipal Bishnoi, P.P.

Mr. D.L.R. Vyas

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 12/09/2022 Pronounced on 14/09/2022

1. This Criminal Misc. Petition under Section 482 Cr.P.C. has

been preferred with the following prayer:-

"It is, therefore, respectfully prayed that your Lordships may graciously be pleased to accept and allow the present criminal misc. petition and the FIR No.82/2016 registered at Police Station- Kankroli, District: Rajsamand may kindly be quashed and set aside; and the police be restrained from making any further investigation in the FIR, and it may be further directed not to take any coercive action against the petitioner."

2. Brief facts of the case as the pleaded facts, and the record

would reveal are that the private respondent, Rahul S/o

Bhagchand, lodged an F.I.R. bearing No. 82/2016, alleging therein

that he is a partner in M/s Maruti Mineral and Chemical, in which

the petitioner no. 1, Usha Devi Jain was also a partner; financial

dealings thereof were between Usha Jain and Smt. Pushpa Jain

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(mother of the complainant); Pushpa Jain, fell into dispute as a

result of which a suit was filed before the concerned Court. It was

further alleged that the petitioner no. 1 proposed to withdraw the

said suit if a sum of Rs. 17 lacs is paid to her and shall also sign

the retirement-deed as partner of the said Firm, to which the

complainant acquiesced and complied with. It was, however,

further alleged that at a subsequent stage, the present petitioners

made an additional demand of Rs. 50 lacs from the complainant;

upon refusal whereof, the present petitioners threatened him and

was made to resign from the said Firm by the complainant, by

concealment of a certain mining lease, which was in favour of the

said firm.

3. At the outset, learned Public Prosecutor submitted that the

charge-sheet, against the present petitioners, has been filed and

the offences under Sections 420 & 384 I.P.C. were found to be

made out, and that on 22.08.2016 the said charge-sheet was

produced before the learned Chief Judicial Magistrate, Rajsamand.

In support of the same, the learned Public Prosecutor produced a

copy of the factual report, dated 11.09.2022, issued by the Police

Station, Kankaroli, Dist. Rajsamand; the same is taken on record.

4. Learned Senior Counsel, learned Senior Counsel appearing

for the petitioners, Mr. Ravi Bhansali assisted by Mr. Vipul Dharnia,

submitted that the controversy between the parties herein is in

fact of a civil nature, and that the F.I.R. in question is in fact a

consequence of the said pending litigation between the parties and

used to give a criminal color to an issue of a civil nature. And that,

therefore, the F.I.R. in question ought to be quashed and set

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aside. Learned Senior Counsel also drew the attention of this

Court to the copy of the civil suit, dated 04.04.2016, between the

parties, at Annexure - 3.

5. Learned Senior Counsel placed reliance on the judgments of

Joseph Salvaraj Vs. State of Gujarat and Ors. (2011) 7 SCC

59 and Anand Kumar Mohatta and Ors. Vs. State (Govt. of

NCT of Delhi) Department of Home and Ors. (2019) 11 SCC

706.

Relevant portion of the judgments are reproduced hereinunder:-

In Joseph Salvaraj (supra):-

"In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.

In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra v. State of U.P. 2009 (7) SCC 495, relevant part thereof is reproduced hereinbelow:

A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.

In fact, all these questions have been elaborately discussed by this Court in the most oft-quoted judgment reported in 1992 (Supp) 1 SCC 335 State of Haryana v. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused is taken.

The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at

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least after having gone through the F.I.R., which discloses only a civil dispute."

In Anand Kumar Mohatta (supra):-

"In Indian Oil Corporation v. NEPC India Ltd. and Ors. 2006 (6) SCC 736, this Court observed as follows:

13. ... Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged....

The Court noticed a growing trend in business circles to convert purely civil dispute into criminal cases.

It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and Ors. 1977 (2) SCC 699 which read as follows:

7. ...In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice....

We find that the prosecution is mala fide, untenable and solely intended to harass the Appellants. We are forfeited in view of the Respondent not having made any attempt to recover the deposit of Rs. One Crore through a civil action."

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6. Learned Senior Counsel however submitted that although the

charge-sheet has been filed, but looking into the facts and

circumstances of the case, the same ought to be quashed.

7. On the other hand, learned Public Prosecutor and learned

counsel for the private respondent opposed the submissions made

on behalf of the petitioners.

8. Learned counsel for the private respondent drew the

attention of this Court to the prayer made in the present petition,

on behalf of the present petitioners, and submitted that there is

no prayer for quashing of charge-sheet, and that since the charge-

sheet has been filed against the petitioners for the offences

mentioned therein, the petition is rendered infructuous.

9. Learned counsel for the private respondent, however, further

submitted that the grounds raised on behalf of the petitioners do

not warrant the interference of this Court to quash the F.I.R. in

question nor the charge-sheet.

10. Learned counsel for the private respondent placed reliance

on the judgments of Satish Kumar Jatav Vs. The State of U.P.

& Ors. Criminal Appeal No. 770 of 2022 (Supreme Court of

India) and State of Uttar Pradesh & Anr. Vs. Akhil Sharda &

Ors. Criminal Appeal No. 840 of 2022 (Supreme Court of

India).

Relevant portions of the judgments are reproduced hereinunder:-

In Satish Kumar Jatav (supra):-

"The High Court has not at all observed on how the order passed by the learned Magistrate summoning the accused was wrong and/or erroneous. The manner in which the High Court has

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disposed of the application under Section 482 Cr.P.C. and has quashed the criminal proceedings is deprecated. When serious allegations for the offences under Sections 307, 504, 506 of the IPC and Section 3(10)(15) of the Act were made, the High Court ought to have been more cautious and circumspect while considering the application under Section 482 Cr.P.C. and quashing the criminal proceedings for the aforesaid offences. Under the circumstances the impugned judgment and order passed by the High Court is unsustainable both on facts as well as in law."

In State of Uttar Pradesh & Anr. Vs. Akhil Sharda

(supra):-

"Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. "

11. Heard learned counsel for both parties and perused the

record of the case, and the judgments cited at the Bar.

12. At the outset, this Court observes that the judgment of the

Hon'ble Apex Court rendered in the decision of State of Haryana

and Ors. Vs. Ch. Bhajan Lal and Ors. AIR 1992 SC 604 :

1992Supp (1) SCC 33 wherein the Hon'ble Apex Court laid down

seven categories of cases wherein the exercise of inherent powers

of the Criminal Court under Section 482 Cr.P.C. in quashing an

F.I.R. would be justified, in order to prevent abuse of the process

of any Court or otherwise to secure the ends of justice. The

relevant portion of the judgment reads as under:

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"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 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.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or

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inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

13. This Court, after taking into consideration the overall facts

and circumstances of the case, and looking into the contents of

the F.I.R. in question, and keeping in mind the principles as

enumerated by the Hon'ble Apex Court in State of Haryana and

Ors. Vs. Ch. Bhajan Lal and Ors. (supra), is not inclined to

interfere its inherent jurisdiction under Section 482 Cr.P.C. in the

present case.

14. Moreover, this Court further observes that the charge-sheet

in the present case has been filed, and the prayer made on behalf

of the present petitioners is limited, thereby further limiting