Mathura Prasad Singh v. State Of Bihar — 1989 DIGILAW 423 (PAT)

Judgment B. Prasad, J. 1. This is an application under Sec.482 of the Code of criminal Procedure, 1973 (in short the Code ). It has been filed for quashing the first information report lodged by opposite party no.2 on 7-7-1989 before the officer-incharge Athmalgola Police station against the petitioners making out allegation for an offence under Sec.406 of the Indian Penal code on the basis of which Baroh P. S. Case No.215 of 1989 was registered. 2. The first information report in the aforesaid case is on the record. It has been lodged by opposite party no 2 against the present petitioners. In this first information report the allegation has been made of an offence under Sec.406 of the Indian Penal Code. It has been drawn up on the basis of a petition filed by opposite party no.2 before the police. From the contents of this petition it would appear that in it a reference has been made to a petition dated 23-8-1989 filed before the police by Suman Kumar, the son of opposite party no.2. The allegations made are that this Suman Kumar had advanced a sum of Rs.7,600/- to one Ramserekha Singh for the purchase of coal out of which Rs.1,800/- was returned and Rs.5,800/- was outstanding ramserekha Singh had given in writing to return this amount on 28 or 29th of June, 1989 to the person who will come with his endorsement to that effect. He however, did not keep this promise. Again on 28-6-1989 in the presence of the Officer-incharge of the Police station Ramserekha Singh had promised that he will return Rs.3,000/- on 6-7-1989. Earlier also undertaking was given by him in presence of several others person. When, however, on 6-7-1989 Suman Kumar had gone to take back this amount it was not returned to him but Ramserekha Singh acknowledged this due in presence of the A. S. I. of the Police. Accordingly, the informant who happens to be the father of Suman Kumar had lodged this information before the police alleging that the petitioners do not intend to return this amount but are trying to delay any action on the part of the opposite party no.2 on false pretext. A case under Sec.406 of the Indian Penal Code was instituted and the first information report was drawn up. 3. A case under Sec.406 of the Indian Penal Code was instituted and the first information report was drawn up. 3. On behalf of the petitioners it has been submitted that this is a dispute of a civil nature and from the reading of the first information report it appears that no criminal liability has been alleged against the petitioners. The very statement in the first information report will make it clear that a sum of money was due to the son of the information a part of which was already returned and for the rest an undertaking was given and as such it has been contended that there is no allegation to show that any offence under section 406 of the Indian Penal Code was made out since the evidence of entrustment is missing and not a chit of paper has been produced. On these grounds, it has been contended that the first information report be quashed, 4. From the record it appears that on 3-8-1989 the petitioners had contended before the court that even if the entire allegations made in the first information report are accepted in their entirety no case under Sec.406 of the Indian Penal Code was made out. The application was admitted for hearing the rule was made returnable within two months and further investigation in the case was stayed till then. 5. Opposite party no.2 had appeared and had filed a petition for vacating the interim order of stay granted by the court on 3-8-1989. In this petition it has been contended that the application in question suffers from serious infirmity and suppression of material facts. The very first line of the first information report will show that it is in continuation of another petition filed by the son of the informant before the police. The copy of this petition has been annexed as Annexure-A/a. From Annexure-A/a it appears that in it an incident of 23-6-1989 has been narrated according to which ramserekha Singh and Ramparvesh Singh (petitioner nos.2 and 3) had abused opposite party no.2. On protest Ramparveh Singh had pressed the neck of the present informant and Ramserekha Singh had taken away the wrist watch from the hand of Suman Kumar. Ramparvesh Singh also snatched away sum of Rs.200/- from the pocket of the present informant (opposite party no.2 ). On protest Ramparveh Singh had pressed the neck of the present informant and Ramserekha Singh had taken away the wrist watch from the hand of Suman Kumar. Ramparvesh Singh also snatched away sum of Rs.200/- from the pocket of the present informant (opposite party no.2 ). In this petition for vacating the order of stay it has been stated that these facts will reveal that serious offences of theft, criminal breach of trust and attempt to commit murder have been committed and as such it cannot be said that this is a dispute of civil nature only. Under these circumstances, by this petition it has been prayed that the order of stay granted by the court be vacated and the application in question be dismissed. 6. At the time of hearing the learned counsel for the opposite party no.2 has taken pains to point out that the present first information report was in continuation of the allegations, made in Annexure-A/a. No doubt in the present first information report there is mention of a petition filed on 23-6-1989 by Suman Kumar the son of the informant. However, it appears that it was only on the basis of Rs.4/- first information report lodged by opposite party no.2 that a case under Sec.406 of the Indian Penal Code was registered by the police. Obviously, it appears that the copy of the earlier petition dated 23-6-1989 was not annexed with this petition otherwise a case only under Sec.406 of the Indian Penal Code could not have been registered by the police inasmuch as the allegations made in Annexure-A/a disclosed various other offences like assault, snatching away the money and the wrist watch etc. if the police would have taken the allegations made in annexure-A/a also into account naturally the case also lor the offence disclosed in it would have been registered. However, in the present first information report a case only under Sec.406 of the Indian Penal Code appears to have been registered. Apparently, the police had not alternative since it appears that alongwith the present first information report the copy of the petition filed by Suman Kumar on 23-6-1989 was not annexed and therefore the police officer was not aware of its contents. 7. Apparently, the police had not alternative since it appears that alongwith the present first information report the copy of the petition filed by Suman Kumar on 23-6-1989 was not annexed and therefore the police officer was not aware of its contents. 7. On behalf of the opposite party no.2 it has been contended that through Annexure-A/a the information with respect to the commission of cognizable offences was lodged with the police as long back as on 23-6-1989 itselt. However, the police has not as yet taken any action on the basis of annexure-A/a. When in this connection, the attention of learned counsel was drawn to the provisions to sub-section (3) of Sec.154 of the Code, she has stated that already a petition to this effect with the copy of Annexure-A/a has been addressed to the Superintendent of Police but as yet opposite party no.2 does not know whether Superintendent of police has taken any action in this regard or not. It was also her submission that in view of the allegations made in Annexure-A/a various offences under Indian Penal Code were made out and therefore it cannot be said that the dispute between the parties is only of civil nature. 8. As against it the learned counsel for the petitioners has pointed out that the present first information report will show that the case was instituted only under Sec.406 of the Indian Penal Code on its basis since in it no other allegation has been made. It was also submitted on behalf of the petitioners that even if entire allegations made in the first information report are accepted as correct at best they disclose only a dispute of civil nature and no criminal offence has been made out. 9. In this connection learned A. P. P. has drawn my attention to the case of Bharat Lal V/s. Mohan Lal, 1986 BBCJ 403. It was held in this case that a criminal proceeding can be quashed to prevent the abused of process of the court so far as the offence under Sec.406 of the Indian Penal Code is concerned. 9. In this connection learned A. P. P. has drawn my attention to the case of Bharat Lal V/s. Mohan Lal, 1986 BBCJ 403. It was held in this case that a criminal proceeding can be quashed to prevent the abused of process of the court so far as the offence under Sec.406 of the Indian Penal Code is concerned. It was further held that it was a case filed without disclosing the fact who entrusted the ornaments to the sister of the complainant or to the complainant himself or his father, it was accordingly held that in order to constitute an offence under Sec.406 of the Indian Penal Code the entrustment of the property must be specific. In this case a reference has been made to the case of Dr. Sharda Prasad Sinha V/s. State of Bihar, 1977 Cri LJ (SC) 1446 and the following paragraph in this judgment has been quoted : "it is now settled law that where the allegation set out in the complaint or the charge sheet do not constitute any offence, it is the competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. The question which therefore, arises for consideration is whether the allegations set out in the complaint constituted any offence against the appellant. " This case, therefore does not help the case of the prosecution. 10 Learned counsel for the petitioners has seriously contended that annexure-A/a cannot be imported to the present first information report inasmuch as the same was not annexed with it and it is not clear whether the petition dated 23-6-1989 mentioned in the first information report invariably relates to Annexure-A/a. Further it has been contended that the same was not before the police or the Magistrate as a result of which only a case under Sec.406 of the Indian Penal Code was registered. Hence, and of annexure-A/a cannot be taken at this stage to show that the allegation made therein will also have to be taken into account by the police officer before whom in obviously the same was not available. Hence, and of annexure-A/a cannot be taken at this stage to show that the allegation made therein will also have to be taken into account by the police officer before whom in obviously the same was not available. It has further been pointed out by learned counsel for the petitioners that is Suman Kumar or the present informant had any grievance against the police for not instituting a case on the basis of Annexure-A/a, they could have taken recourse to suitable legal action in the matter. However, for the present before the court the only allegation made against the petitioners are those as contained in the present first information report and not those which are contained in Annexure-A/a which was not before the police. It has also been submitted that it is not only with respect to the present first information report that it has to be decided whether, the allegations made therein constitute only a dispute of civil nature or not. These submissions made on behalf of the learned counsel for the petitioners appears to be well founded and have to be accepted. If Suman kumar or opposite party No.2 has got any grievance against the police for not instituting a case on the basis of Annexure-A/a it was open to them to take recourse to the provisions of law provided for the purpose. However, those allegations made in Annexure-A/a cannot be read into the present first information report since Annexure-A/a was not annexed with the present first information report and only a vague reference was made to a petition dated 23-6-1989 filed by the son of the present informant, it may also be remembered in this connection that while in Annexure-A/a the son of opposite party No.2 was the informant, in the present case it is opposite party no.2 himself who is the informant. Hence, both cannot be read together. If Suman Kumar had any grievance against the police for not instituting a case on the basis of Annexure-A/a it was open to him to take suitable legal action in the matter. However, for the present only the allegation made in the present first information report have to be taken into consideration. 11. So far as the present first information report is concerned, it is obviously clear that it disclosed a civil dispute between the parties for the return of the money advanced to Ramserekha Singh, petitioner No.2. However, for the present only the allegation made in the present first information report have to be taken into consideration. 11. So far as the present first information report is concerned, it is obviously clear that it disclosed a civil dispute between the parties for the return of the money advanced to Ramserekha Singh, petitioner No.2. It further discloses that when a sum of Rs.5,800/- was still due with petitioner no.2 he made a promise to refund this amount in presence of police officer and others. The only thing is that he did not keep his promise as will appear from the first information report. This alone is, however, will not constitute an offence as it is not uncommon for a debtor to make the promise to return the money to the creditor which he does not keep unless it is shown that the failure of the debtor to return the money had arisen out of dishonest intention. This first information report was lodged on 6-7-1989 and on this date also petitioner No.2 had acknowledged that a sum of Rs, 5,800/- was due with him which he will pay. If really petitioner No.2 had any dishonest intention, he would not have acknowledge the due in presence of several persons including the police officer and he would not have undertaken to return back the money in their presence. This conduct of petitioner No.2 clearly goes to show that he did not have any dishonest intention so far as return of the money was concerned. However, the amount is said to have been entrusted to the petitioner No.2 by Suman Kumar and not by the present informant. It is also not clear from the first information report when this amount of Rs, 7,600/- was entrusted to petitioner No.2. Thus, the allegations made in this connection are vague. 12. From these discussions, it would appear that the allegation made in the first information report at best made out a dispute of civil nature which will not invite any criminal liability or criminal action. 13. The law on this point is well settled. Thus, the allegations made in this connection are vague. 12. From these discussions, it would appear that the allegation made in the first information report at best made out a dispute of civil nature which will not invite any criminal liability or criminal action. 13. The law on this point is well settled. In the case R. P. Kapoor V/s. State of Punjab, AIR 1960 SC 866 , it has been held that when the allegation made in the first information report even when they are taken at their face value and accepted in their entirety do not constitute any offence, the High court can exercise of its inherent power and quash the proceeding. Relying on this decision in the case of S. K. Singh V/s. B. Singh, 1971 BLJR 61 it was held by this court that if the dispute is of civil nature it is the additional ground to hold that no criminal case is made out. In this connection, a reference may be made to the case of State of West Bengal V/s. Swapan Kumar guha, AIR 1982 SC 949 , in which it was held that if the allegation made do not disclose any offence at all the court would be entitled to quesh the first information report. In the present case also this appears to be the situation, 14. Learned counsel for the petitioners has placed reliance on the case of Balwant Singh V/s. District Food and Supplies Controller, 1973 Cri LJ 687. It was held by Hon ble Single Judge of Punjab and Haryana High Court that if the first information report lodged with police did not disclose any offence, in the inherent power of the court to quash the same must be exercised in the interest of justice. 15. Further reliance has been placed on the case of H. K. Sahay v State 1981 BBCJ 350 . This is a Single Bench decision of this court in which the effect of the cases of R. P. Kapoor (Supra) and the case of Smt. Nagawwa V/s. Veeranna AIR 1976 SC 1947 were taken into account. 15. Further reliance has been placed on the case of H. K. Sahay v State 1981 BBCJ 350 . This is a Single Bench decision of this court in which the effect of the cases of R. P. Kapoor (Supra) and the case of Smt. Nagawwa V/s. Veeranna AIR 1976 SC 1947 were taken into account. On consideration of these two decisions it was held that the total effect of the Supreme Court decision cited above is that in a case instituted on the basis of a first information report it is only the first information report and no other material which need be looked into for the purpose of examining if the prosecution is to be quashed or not. 16. Also reliance has been placed on behalf of the petitioners on the case of Sardar Trilok Singh V/s. Satya Deo Tripathi, 1979 (4) SCC 396 equivalent to AIR 1979 SC 850 . This was a case of hire-purchase agreement with respect to the sale of a truck. The financier had seized the truck on default in payment of instalment. The buyer, however, launched criminal prosecution. It was held that it was an abuse of the process of court since the dispute was essentially of civil nature and accordingly, the proceedings were quashed. Referring to Sec.482 of the Code it was observed that the authority under this section can be exercised also to prevent the abuse of the process of court. 17. In the present case as stated above, the first information report discloses only a dispute of civil nature between the parties and no criminal offence against the petitioners appears to be disclosed. As stated above, in coming to any such conclusion the add of Annexure-A/a filed by the opposite party No.2 cannot be taken. 18. In the result, this application is allowed and the first information report as also the criminal prosecution against the petitioners are hereby quashed. Application allowed.