Unknown vs Where The Allegations Made In The ...
2022 Latest Caselaw 1735 UK

           IN THE HIGH COURT OF UTTARAKHAND
                               AT NAINITAL
                         SRI JUSTICE S.K. MISHRA, A.C.J.

  CRIMINAL MISCELLANEOUS APPLICATION NO. 1355 OF 2018

                   (under Section 482 of the Cr.P.C.)

                              10TH JUNE, 2022

BETWEEN:

Amit Sharma & others                                       ....Petitioners.
And

State of Uttarakhand & another                             ....Respondents.

Counsel for the Petitioners : Mr. Shiv Bhatt, learned counsel.

Counsel for the Respondent No.1 : Mr. J.S. Virk, learned Deputy Advocate General for the State.

Counsel for the Respondent No.2 : Mr. Piyush Garg, learned counsel.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT :(per Sri S.K. Mishra, A.C.J.)

By filing this petition under Section 482 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as

"Cr.P.C." for brevity), the petitioners have prayed to quash

the charge-sheet No.110 of 2018 dated 10.06.2018, and the

order of cognizance/summoning dated 19.07.2018, passed by

the learned Judicial Magistrate, First, Dehradun, in Criminal

Case No.3502 of 2018, under Sections 420, 504 and 506 of

the Indian Penal Code, 1860 (hereinafter referred to as "the

Code" for brevity).

2. Brief facts of the case are that the complainant,

respondent No.2 in this petition, had supplied certain material

to the petitioners. It is his allegation in the FIR that the

petitioners did not pay the price of the same, and kept

deferring the payment on the pretext that they have to

receive certain money from the Uttar Pradesh Rajkiya Nirman

Nigam (hereinafter referred to as "Nigam" for short), and only

after receiving their dues from the Nigam, they shall pay the

amount to the complainant. However, the complainant

inquired from the Nigam, and came to know that a very non-

substantial amount, approximately Rs.2.00 Lakh, was due to

the petitioners, which was paid to them. On such information,

the complainant went to the office of the petitioners, and

confronted. On such an event, the petitioners abused him,

and threatened him. Therefore, he lodged the FIR. The police

took up the investigation, and after completion of the same,

filed the charge-sheet against the petitioners.

3. Mr. Shiv Bhatt, the learned counsel for the

petitioners, would argue that this is a civil dispute and, prima

facie, it is not shown by the complainant that from the

inception, i.e. from the date the petitioners placed orders with

the complainant, they had an intention of defrauding the

complainant by receiving material from him, and not paying

the amount due to him. However, it is apparent from the

record that in the FIR itself, the complainant has mentioned

that from the very inception, the petitioners have the

intention to defraud him.

4. Thereafter, the learned counsel took the Court to

certain documents, and argued that there is no malafide on

the part of the petitioners, and that the complainant did not

come to the Court with clean hands. However, it is apparent

from the records that in an application filed under Section

482 of Cr.P.C., the documents filed by the accused person

before the Court cannot be taken into consideration. In this

connection, this Court takes into consideration of reported

judgment of the Hon'ble Supreme Court in the case of "State

of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568",

wherein the Hon'ble Supreme Court has held that at the time

of framing the charge, or taking the cognizance, the accused

has no right to produce any material to prove his innocence.

No provision in the Code grants to the accused any right to

file any material or document at the stage of framing of

charge. That right is granted only at the stage of the trial.

The Hon'ble Supreme Court after relying upon the case of

"Satish Mehra vs. Delhi Administration, (1996) 6 SCC 766",

has further held that the trial court has power to consider

even materials which the accused may produce at the stage

of Section 227 of the Code has not been correctly decided. It

is well-settled by the Hon'ble Supreme Court that at the stage

of framing of charge, the defence of the accused cannot be

put forth. The acceptance of the contention of the learned

counsel for the accused would mean permitting the accused

to adduce his defence at the stage of framing of charge and

for examination thereof at that stage which is against the

criminal jurisprudence.

5. The reported case involved the case against a high

official of the State of Orissa, who filed an application in a

criminal case pending against him under Section 227 of the

Code to discharge him. Thereafter, on rejection is prayer, he

filed an application before the High Court of Orissa, which was

allowed, and then the matter was carried to the Hon'ble

Supreme Court by the State of Orissa. While upholding the

order of the original Court, in refusing to discharge the

accused under Section 227 of the Code, the Hon'ble Supreme

Court has held that the defence case cannot be considered at

the time of framing of charge. Though, it is reported on a

different stage of proceedings, the principles that guide

framing of charge, or discharging of any accused will also be

applicable to any application filed, either under Article 226 of

the Constitution of India, or under Section 482, or Section

397 of the Cr.P.C.

6. In all such cases, the Court has to see from the

undisputed material available on record whether the case is

made out, or not. In this connection, this Court also takes

into consideration the oft-quoted judgment of the Hon'ble

Supreme Court in the case of "State of Haryana & others vs.

Bhajan Lal & others, 1992 Supp. (1) SCC 335". The Hon'ble

Supreme Court, very pithily laid down the principles that

guide applications for crossing of FIR, charge-sheet,

cognizance etc. This Court feels it appropriate to quote the

exact words used by the Hon'ble Supreme Court, which are

as follows:-

"101. Mr. Parasaran, according to whom the allegations in the present case do not make out an offence, drew our attention to a recent judgment of this Court in State of U.P. v. V.R.K. Srivastava and Anr.: (1989) 4 SCC 59 to which one of us (S. Ratnavel Pandian, J.) was a party. In that case, it has been ruled that if the allegations made in the FIR, taken on the face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. The principle laid down in this case does not depart from the proposition of law consistently propounded in a line of decisions of this Court and on the other hand it reiterates the principle that the Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the FIR, do not constitute an offence and that it depends upon the facts and circumstances of each particular case.

102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra- ordinary 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 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".

7. Thus, it is clear that if the allegations made by the

complainant before the Investigating Officer, and the material

collected by the Investigating Officer are taken at their face

value to be the gospel truth, or where a prima facie case is

not made out, or if the facts alleged in the FIR, or in the

statement of the witnesses are so patently absurd, that they

cannot be accepted by a reasonable person, or 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, then the FIR, charge-sheet, or the cognizance

order can be quashed.

8. However, the learned counsel for the petitioners,

has failed to establish any such ground in this case. It is

apparent from the record that there is a civil transaction

between the parties. The said civil transaction itself will not

take it away from the ambit of criminal offence, if there is

malice on the part of the accused to commit the offence, or

defraud the complainant.

9. In fact, in the case of "Paramjeet Batra vs. State of

Uttarakhand, (2013) 11 SCC 673", the Hon'ble Supreme

Court held that while exercising its jurisdiction under Section

482 of the Code, the High Court has to be cautious. The

Hon'ble Supreme Court further held that this power is to be

used sparingly and only for the purpose of preventing abuse

of the process of any court or otherwise to secure ends of

justice. Whether a complaint discloses a criminal offence or

not depends upon the nature of facts alleged therein.

Whether essential ingredients of criminal offence are present

or not has to be judged by the High Court. A complaint

disclosing civil transactions may also have a criminal texture.

But the High Court must see whether a dispute which is

essentially of a civil nature is given a cloak of criminal

offence. The Hon'ble Supreme Court further held that in such

a situation, if a civil remedy is available and is, in fact,

adopted as has happened in that case, the High Court should

not hesitate to quash the criminal proceedings to prevent

abuse of process of the Court.

10. From the facts of this case, it is apparent that the

allegations are that the petitioners took delivery of the goods

and did not pay the price of the goods to the complainant in

time on the pretext that they are entitled to certain payment

from the Nigam, which later on, found to be false. It is

apparent from the record that the complainant has

specifically stated in the FIR that right from the inception the

petitioners had the intention to defraud him.

11. In that view of the matter, this Court is of the

opinion that there is some civil transactions between the

parties. At this stage, it is apparent from the record that the

transactions have also a criminal texture.

12. Another important aspect which this Court cannot

ignore is that the complainant has stated before the

Investigating Officer that one Mr. Bhupendra Bhatt has issued

a receipt of the goods. The rejoinder-affidavit has been filed

by the petitioners to the application under Section 482 of the

Code stating that Mr. Bhupendra Bhatt has committed certain

fraudulent activities, and the FIR has been lodged against

him, in which a criminal case is initiated against him and

against others in the year 2016. However, a reference to the

FIR, which forms part of the record, reveals that the said Mr.

Bhupendra Bhatt is never named as an accused in the FIR. So

on the face of record, the petitioners sworn in an erroneous

statement of fact in their rejoinder-affidavit.

13. It is apparent from the statement of Mr. Rohit

Sharma, a copy of which is provided by the learned Deputy

Advocate General, that Mr. Bhupendra Bhatt was employed

by the petitioners in the firm in the year 2017 only for four

months, whereas the FIR was registered in the year 2016. It

is also borne out from the record that Mr. Bhupendra Bhatt

has been examined by the police and he has stated that he

has signed the bills in evidence of delivery of goods.

14. Thus, it is apparent from material available on

record that, prima facie, a case is made out against the

petitioners. Hence, the investigating agency did not commit

any error by filing the charge-sheet against the petitioners.

There is no illegality in the order of cognizance passed by the

learned Judicial Magistrate, First, Dehradun. It is also

apparent from the record that this is not a case, as per the

judgment of the Hon'ble Supreme Court in the case of Bhajan

Lal (supra) to consider it as a rare case, and quash the FIR,

charge-sheet, and the cognizance order.

15. Additionally, it is noted here, and in fact, heavy

emphasis is placed by Mr. Piyush Garg, the learned counsel

for the complainant, and Mr. J.S. Virk,, the learned Deputy

Advocate General for the State that the application was

admitted, and stay was granted on 24.08.2018 by a Co-

ordinate Bench of this Court on the first day of listing on the

submission made by Mr. R.S. Sammal, the learned counsel

for the petitioners that his clients are ready and willing to pay

entire dues of respondent No.2, and he sought a week's time

to settle the account. It is not disputed that Mr. R.S. Sammal,

was the counsel originally engaged by the petitioners, and

later on, Mr. Shiv Bhatt, the learned counsel has taken over.

This is the additional ground to come to the conclusion that

this is not a fit case to quash the criminal proceedings

initiated against the petitioners.

16. Hence, the C-482 petition is dismissed being devoid

of any merit. Interim order dated 24.08.2018 stands vacated.

17. Urgent certified copy of this order be issued to the

learned counsel for the parties, as per Rules.

(S.K. MISHRA, A.C.J.)

Dated: 10th June, 2022 NISHANT