Uttarakhand High Court
Bhag Chand vs State Of Uttarakhand And Others on 18 February, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 307 of 2021
Bhag Chand ......... Petitioner
Vs.
State of Uttarakhand and others .......Respondents
Present: Mr. Dharmendra Barthwal, Advocate for the petitioner.
Mr. J.S. Virk, DAG for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Instant writ petition has been filed for quashing the FIR No.
14 of 2021, under Section 420 IPC, Police Station Badkot, District
Uttarkashi lodged by the respondent no.3 on 12.02.2021.
2. According to the FIR, the petitioner runs a meat shop in
Tyuni, District Uttarkashi. In the year 2019, he purchased goats of value
Rs.12,16,700/-. The petitioner paid Rs.3,50,000/- and for the remaining
amount, he gave a cheque which when presented was dishonored.
Subsequent to it, the petitioner again gave a cheque to the informant of
Rs.50,00,000/-, but it could not be honoured because there were
discrepancies in the amount written on it. The informant claimed his
amount from the petitioner, but instead of making payment the petitioner
executed an agreement. Thereafter, Rs.80,000/- were given to the
informant by the petitioner and remaining amount was not paid.
Thereafter, the petitioner started threatening the informant to life. There
are other averments as well in the FIR.
3. Learned counsel for the petitioner would submit that the
allegations of dishonouring of cheque is of the year 2019 for which
appropriate remedy in under Section 138 of the Negotiable Instruments
Act, 1881. It is argued that an agreement has been executed between the
parties, which provides remedy. The informant could have availed that
remedy in civil court and there is no element of criminality in the instant
matter.
4. It is a writ petition under Article 226 of the Constitution of
India. It is no rule that if a case is civil in nature, a criminal prosecution
cannot be launched. A case having civil nature may also have an element
of criminality in it. It is a matter of intention.
5. In the case of Indian Oil Corpn. Vs. NEPC India Ltd. and
others, (2006) 6 SCC 736, the Hon'ble Supreme Court in para 12 (v)
observed as hereunder:-
"(v) A given set of facts may make out: (a) purely a civil
wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a
criminal offence. A commercial transaction or a contractual dispute,
apart from furnishing a cause of action for seeking remedy in civil law,
may also involve a criminal offence. As the nature and scope of a civil
proceeding are different from a criminal proceeding, the mere fact that
the complaint relates to a commercial transaction or breach of contract,
for which a civil remedy is available or has been availed, is not by itself
a ground to quash the criminal proceedings. The test is whether the
allegations in the complaint disclose a criminal offence or not."
6. Undoubtedly, instant case also makes out a civil case, but the
question whether it lacks any element of criminality. The FIR narrates the
story as to at what stages, the petitioner cheated the informant, first by
giving a cheque which was not honoured; secondly, by giving a cheque
which was not properly filled up and thirdly, by executing an agreement
and not fulfilling his part of a promise. Prima facie, it cannot be said that
this case has not element of criminality. In fact, it has an element of
criminality. The FIR discloses commission of cognizable offence. In fact,
FIR has been lodged after order under Section 156 (3) of the Code of
Criminal Procedure, 1973 passed by learned Judicial Magistrate, Purola
on 20.01.2020. The order is also quite elaborate to observe that prima
facie, a case is made out. Therefore, this Court sees no reason to make any
interference and the writ petition deserves to be dismissed.
7. The writ petition is dismissed.
8. Learned counsel for the petitioner would submit that the
petitioner apprehends that he may be arrested in a very routine and
mechanical manner by the Investigating Officer without ascertaining
their role.
9. Needless to say, arrest is not a mechanical act of the
Investigating Officer. First and foremost, he has to ascertain the
complicity of a person in the offence and thereafter, to weigh in his
mind the need for arrest. This Court has no doubt that the Investigating
Officer, in the instant case, shall also follow the law on the subject of
arrest, if any occasion to arrest arises in the instant case.
10. Let a certified copy of this judgment be provided to learned
counsel for the parties, today itself, on payment of usual charges.
(Ravindra Maithani, J.)
Vacation Judge
18.02.2021
Jitendra
