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Gauhati High Court · body

1995 DIGILAW 183 (GAU)

Dalbinder Singh v. Vimal Kumar Jain

1995-08-11

A.K.PATNAIK

body1995
This application has been filed under section 482 of the Criminal Procedure Code, 1973 for quashing the criminal proceedings in Case No. CR 1262 of 1993 pending in the Court of the Magistrate, First Class, Diphu, as well as the order dated 4.10.93 passed in the said case. 2. The facts briefly are that the opposite party filed a complaint dated 28.9.93 stating therein that his wife Ms. Hira Devi was the owner of a truck bearing No. AS-09-0102 and that he was looking after the said truck on behalf of his wife. He has further alleged in the said complaint that on 27.2.93, he entered into an agreement with the petitioner for sale of the said truck and as per the said agreement the petitioner was to pay a sum of Rs.75,0007- towards value of the said truck out of which the petitioner has paid a sum of Rs. 10,0007- as first kist and out of the remaining amount 50% was to be paid as second kist on 30.1.93 and the balance 50% was to be paid as final kist on or before 10.4.93 and he handed over the possession of the truck to the petitioner in good faith, but after taking such possession, the petitioner was neither paying the kist money nor returning the vehicle and when the opposite party met the petitioner on 15.9.93, the petitioner refused to give him the truck and instead threatened him with dire consequences. The Magistrate, First Class, Diphu recorded the statement of the opposite party in support of the said complaint and passed orders on 4.10.93 in the aforesaid Case No. CR 1262 of 1993 that he found materials under sections 406 and 4201PC, to proceed with the case. Aggrieved by the aforesaid order dated 4.10.93 of the Magistrate, First Class, Diphu, the petitioner has filed this application for quashing the said order as well as the criminal proceedings. 3. At the hearing, Mr. Aggrieved by the aforesaid order dated 4.10.93 of the Magistrate, First Class, Diphu, the petitioner has filed this application for quashing the said order as well as the criminal proceedings. 3. At the hearing, Mr. OP Bhati, learned counsel for the petitioner, •submitted that the facts stated in the complaint of the opposite party do not make out offences of criminal breach of trust and cheating under sections 406 and 420 IPC inasmuch as they do not disclose any dishonest intention on the part of the petitioner and accordingly the initiation of the criminal proceedings against the petitioner by the Magistrate by the impugned order dated 4.10.93 was bad and is liable to be quashed and the remedy, if any of the opposite party against the petitioner is a civil suit. In support of his submissions, Mr. Bhati relied on the judgment of the Supreme Court in the case of State of Kerala vs. AP Filial, AIR 1973 SC 326 , in which it has been held that to hold a person guilty of an offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise and such dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise made under an agreement. It has further been held in the aforesaid case by the Supreme Court that such breach of promise may give rise only to civil liability but was not sufficient to fasten criminal liability on the accused. Mr. Bhati also cited the decision of the Apex Court in the case of Delhi Municipality vs. Ram Kishan, AIR 1983 SC 67 , wherein it has been held that proceedings against an accused in the initial stage can be quashed if on the face of the complaint or the papers accompanying the same no offence is constituted. 4. Mr. Z. Kamar, learned counsel for the opposite party, however, raised an objection to the maintainability of the application under section 482 CrPC contending that since the Rules for the Administration of Justice and Police in Sibsagar, Nagaon and Mikir Hills Tracts were applicable to the present case instituted at Diphu the application of the Criminal Procedure Code was excluded by virtue of sections 4 and 5 of the Criminal Procedure Code, 1973. He submitted that under Rule 16 of the said Rules, the High Court has very limited powers and the powers under section 482 CrPC, are not available to be exercised by the High Court to quash the criminal proceedings before the Magistrate, 1st Class, Diphu. Mr. Kamar, however, submitted that assuming that the powers of the High Court under section 482, CrPC, could be exercised in the present case, it has been held by the Apex Court in the case of State of Bihar vs. KJD Singh, (1993) Crl LJ 3537 (SC) that the inherent powers of the High Court under section 482, CrPC, 1973, should not be exercised to cut short the normal process of criminal trial save in exceptional cases in the interest of justice. Mr. Kamar argued that the facts as stated in the complaint as well as the statement of the opposite party recorded by the Magistrate, 1 st Class, Diphu, discloses dishonest intention on the part of the petitioner and the contention of Mr. Bhati that offences under sections 406 and 420, IPC, have not been made out against the petitioner is misconceived. 5. In reply to the preliminary objection raised by Mr. Kamar to the maintainability of the application under section 482, CrPC, Mr. Bhati, learned counsel for the petitioner, brought to my notice Rule 22 of the Rules for the Administration of Justice and Police in Sibsagar, Nagaon and Mikir Hills Tracts which stipulated that the procedure of the High Court shall be in the spirit of Code of Criminal Procedure as far as it is applicable to the circumstances of the facts and consistent with the rules and submitted that the spirit of section 482, CrPC is applicable to the present case and the High Court could always invoke its inherent powers under the said section 482 CrPC to quash criminal proceedings if the facts alleged in the complaint petition did not make out a case for initiation of a criminal proceeding. 6. So far as the preliminary objection of Mr. 6. So far as the preliminary objection of Mr. Kamar is concerned, I find on a reading of Rule 22 of the Rules for the Administration of Justice and Police in Sibsagar, Nagaon and Mikir Hills Tracts that the spirit of Criminal Procedure Code is applicable in the areas where the aforesaid Rules are in force and accordingly as discretion is vested in the High Court to quash the criminal proceedings against an accused person in accordance with the spirit of the provisions in section 482 CrPC for preventing the abuse of the process of the Court or to secure the ends of justice. In a recent decision in the case of Janata Dal vs. HS Choudhury, AIR 1993 SC 892 however, the Supreme Court after considering a whole catena of the decisions held : “This inherent power conferred by section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issue involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material.” . The aforesaid decision in the case of Janata Dal vs. HS Choudhury (supra) has been relied on by the Apex Court in the case of State of Bihar vs. KJD Singh, (1993) Crl LJ 3537, cited by Mr.Kamar and it has been held therein that the inherent powers under section 482, CrPC has to be exercised for the ends of justice and should not be arbitrarily exercised to cut short the normal process of criminal trial. Thus powers of the High Court either under Rule 22 of the Administration of Justice and Police in Sibsagar, Nagaon and Mikir Hills Tracts read with section 482, CrPC should be exercised very cautiously and in exceptional cii cumstances only for securing the ends of justice or to prevent the abuse of the process of the Court as it is an extraordinary power and when an accused moves the Court for exercise of such power he must satisfy the Court as has been held in the case of Delhi Municipality vs. Ram Kishan, AIR 1983 SC 67 , that taking the allegations in the complaint as they are without adding or subtracting anything, no offence is made out at all. 7. Applying the aforesaid test to the complaint filed by the opposite party in the present case, it has been alleged by the opposite party that pursuant to an agreement entered into between the opposite party and the petitioner on 27.2.93. the possession of the truck was given to the petitioner on good faith and as per the said agreement, the petitioner was to pay, in addition to Rs. 10,0007- paid as first kist for the sale of the truck, the balance amount of Rs.65,0007- in two equal instalments one on 31.3.93 and the other on 10.4.93, but contrary to the said agreement, the petitioner was neither paying instalments not returning the vehicle and on 15.9.93 when the opposite party went to the petitioner, he refused to give him the truck and threatened him with dire consequences. These allegations made in the plaint have been reiterated by the opposite party in his statement recorded on4.10.93 by the Magistrate. The word 'dishonest' has been defined in section 24 of the Indian Penal Code in the following words. “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly.” Accordingly in section 405 of the IPC which defines the offence of criminal breach of trust and in section 415 of the IPC which defines the offence of cheating, the word 'dishonestly' has to be understood to include an intention on the part of the accused to cause wrongful loss to another person. As per the allegation in the complaint and the statement of the opposite party recorded by the Magistrate, by the agreement dated 27.2.93, the petitioner was to pay the balance amount Rs.65,000/- to the opposite party in two instalments and when the petitioner failed to comply with the said condition of the agreement to pay the balance amount Rs.65,000/- and instead threatened the opposite party with dire consequence when he approached the petitioner, the inference is irresistible that the intention of the petitioner was not to pay the balance amount of Rs.65,000/-to the opposite party and to cause wrongful loss of Rs.65,000/- to the opposite party or his wife who was the owner of the truck. Thus the contention of Mr. Bhati that no dishonest intention on the part of the petitioner has been made out in the facts as set out in the complaint and statement of the opposite party before the Magistrate has no merit at all. 8. At the later stage of the case, however, the petitioner may be able to show that on the basis of the evidence that may be adduced by the opposite party or the petitioner that there was no such dishonest intention on his part, but the said evidence is yet to be adduced in the trial and as has been held by the Apex Court in the decisions discussed above, this is not a fit case where the High Court should exercised its extraordinary jurisdiction under section 482, CrPC read with Rule 22 of the Rules for the Administration of Justice and Police in Sibsagar, Nagaon and Mikir Hills Tracts to cut short the normal process of trial and by a premature decision quash the order dated 4.10.93 of the Magistrate, First Class, Diphu and the criminal proceedings before him. In the case of State of Kerala vs. AP Filial (supra) relied on by Mr. In the case of State of Kerala vs. AP Filial (supra) relied on by Mr. Bhati the Supreme Court was not dealing with a case for quashing the criminal proceeding at the initial stage but with a case where the respondent therein had already been convicted of an offence of cheating under section 420IPC and on the evidence adduced in the trial, the Supreme Court took the view that the accused therein had no doshonest intention at the time of making the promise and that dishonest intention could not be inferred from the mere fact that he could not subsequently fulfil the promise. But in the present case, the allegations in the complaint as well as statement of the opposite party before the Magistrate were not just that the petitioner subsequently did not fulfil his promise to pay Rs.65,000/- but also that he threatened the opposite party with dire consequences when the opposite party approached the petitioner which indicated a dishonest intention on his part to cause a wrongful loss of Rs.65,000/- to the opposite party. The facts of the present case, therefore, are distinguishable from the facts of the case of State of Kerala vs. AP Filial (supra) cited by Mr.Bhati, learned counsel for the petitioner. 9. In the result, I am not inclined to quash the impugned order dated 4.10.93 of the Magistrate, First Class, Diphu and the criminal proceeding in Case No.CR 1262 of 1993 under section 406 and 420 of IPC pending before him and the criminal revision is accordingly dismissed and the interim orders dated 21.12.93 and 16.2.94 staying further proceedings in the aforesaid case in the Court of the Magistrate, First Class, Diphu, are vacated.