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2000 DIGILAW 873 (ALL)

MAHESH PATHAK, v. STATE OF UTTAR PRADESH

2000-07-06

R.K.DASH, S.R.SINGH

body2000
S. R. SINGH, J. ( 1 ) THIS petition under Article 226 of the Constitution seeks issuance of writ in the nature of certiorari quashing the F. I. R dated 11-11-1999 lodged by the respondent No. 5 under Sections 409/420. IPC on the basis of which Case Crime No. 216 of 1999 come to be registered at police station Gopeshwar. District Chamoli. ( 2 ) THE petitioner Mahesh Pathak is the Managing Director of a Company called Crystal Credits Corporation Limited. which it is said, was incorporated under the Companies Act. 1956 on February 4. 1992 by the Registrar of the Companies. Delhi and Haryana at New Delhi. The company, it is claimed, is entitled to do business as a Non Banking Finance Company. The informant, party respondent No. 5, according to the F. I. R deposited a sum of Rs. 23,000/- in the Gopeshwar Branch of the Company on 16-3-1998 in a fixed deposit scheme which matured on 16. 9. 1999. The petitioner Dr. Mahesh Pathak according to the F. I. R. was instrumental in getting the money deposited by the informant in the Company. A sum of Rs. 28,622/- became payable to the informant on the expiry of the maturity period on 16-9-1999 but the money was not paid to the informant despite even after maturity. It is alleged in the F. I. R. that the accused persons namely, Govind Singh Negi, Regional Branch Manager. Crystal Credit Corporation Limited, Gopeshwar and Dr. Mahesh Pathak, the petitioner herein have embezzled the money. The main allegations in the F. I. R. reads as under:aisa LAGTA HAI KI IN DONO NIMNLIKHIT VYAKTIYON DWARA JANBUJHKAR DHOKHADH AM KARKE MERE RUPYE GABAN KAR LIYE GAYE HAIN. UPROKT DHANRASHI SHRI GOVIND SINGH NEGI KHETRIYA PARBANDHAK CRISTAL CAPITAL CORPORAIION LIMITED, GOPESHWAR KE BAHKER MEIN AAKAR JAMA KI GAYI THI SHRI GOVIND SINGH V ARCMAN MEIN APNA KARYALAYA CRISTAL CORPORAIION KO CHODKAR CHALE GAYE HAIN. INKO LAGBHAG TEEN MAH SE ADHIK KARYALAYA CHOR HI GAYAHAI. DOCTOR MAHESH PATHAK MUKHYA ADHISHAHSI NIDESHAK KRISTAL CAPITAL CORPORAIION LIMITED NAINI - C-21, NAYA BAZAR, ALLAHABAD, UITAR PRADESH MAIN HAT. DOCTOR MAHESH PATHAK CRISTAL CAPITAL CORPORA TION LIMITED KE MADHYASTH PAD PAR KARYARAI HAT. JINKE DWARA JAANBOOJHKAR UPROKT -DHANRASHI KA BHUGTAN NAHIN KIYA JA RAHA. HAI. ATAH NIMNLIKHIT KE VIRUDH PRAIHAM SUCHNA REPORT DARJ KARIE HUYE MERA UPROKT DHAN MUJHE VAPAS DILANE KI KARYAV AHI KARNE KA KAST KARENGE. DOCTOR MAHESH PATHAK CRISTAL CAPITAL CORPORA TION LIMITED KE MADHYASTH PAD PAR KARYARAI HAT. JINKE DWARA JAANBOOJHKAR UPROKT -DHANRASHI KA BHUGTAN NAHIN KIYA JA RAHA. HAI. ATAH NIMNLIKHIT KE VIRUDH PRAIHAM SUCHNA REPORT DARJ KARIE HUYE MERA UPROKT DHAN MUJHE VAPAS DILANE KI KARYAV AHI KARNE KA KAST KARENGE. ( 3 ) IT has been submitted by Shri Rakesh Thapliyal, learned counsel appearing for the petitioner that the allegations made in the F. I. R. , prima facie, do not disclose commission of an offence punishable under Section-409/420, IPC. It has been submitted by the learned counsel that the relationships between the informant and the Company was of a creditor and debtor and not that of beneficiary and trustee. It has been submitted by the learned counsel that the dispute between the parties is essentially of civil nature and mere fact that it has been given clock of criminal offence would not justify investigation and arrest of the petitioner in the case. Reliance has been placed on Shanti Prasad Jam v. The Director of Enforcement and another and G. Sagar Surt and Another v. State of U. P. and Ors. . In the first case the Supreme Court has held thus: Now the law is well settled that when moneys are deposited in a Bank, relationship that is constituted between the banker and. the customer is one of debtor and creditor and not trustee and beneficiary. The Banker is entitled to use the moneys without being called upon to account for such user, his only liability being to return the amount in accordance with the terms agreed between him and the customer. ( 4 ) THE decision, in our opinion, does not help the petitioner in the instant case where despite maturity of the period of deposit the company failed to return the amount in accordance with the terms agreed upon between the parties. Until expiry of the period of deposit the Banker was no doubt entitled to use the money in any manner it liked but after expiration of the maturity period the Banker became liable to return the money due under the F. D. R. Relationship of trustee and beneficiary between the company and the complainant came into being on expiration of the period of maturity. Retention of money even after maturity of F. D. R. was not in terms of any contract express or implied. Retention of money even after maturity of F. D. R. was not in terms of any contract express or implied. Such a case would be covered by Section 405 IPC depending of evidence that may be collected during investigation. In such view of the matter if the depositor comes forward with an allegation attributing Dishonest intention on the part of the Banker it would not be apt and proper for this Court to interfere with the process of investigation at the very threshold of it. ( 5 ) IN so far as G. Sagar Sun and another (supra) is concerned what was under challenge there in was the charge sheet submitted after completion of investigation. In the fact situation of the case after taking into consideration the charge - sheet which constitutes prima fide evidence3 and the fact that though a complaint under Section 138 of the Negotiable Instruments Act had already been filed and yet the investigating agency failed to look into the complaint the Apex Court held that the accused could approach the High Court under Section 482 of the Code of Criminal Procedure or Article 227 of the Constitution. The following observations made by the Apex Court may significantly be noted that: Apart from making the omnibus statement that the first appellant with dishonest intentions and misrepresentations got loan of Rs. 50,00,000/- from the complainant company for Ganga Automobiles, Limited. There is nothing said as to what were those misrepresentations and how the complainant company was duped There is no allegation as if they duped the Finance Company in parting with the amount of Rs. 50,00,000/- None of the respondents has been able to explain as to why offences under Section 406/420. IPC were not added in the complaint filed under Section 138 of the Negotiable Instruments Act and why resort was had to filing of a separate First Information Report. ( 6 ) IT would thus appear that it was in the peculiar facts and circumstances of the case that the prosecution of the appellant therein under Section 406/ 420. IPC pending in the Court of Chief Judicial Magistrate, Ghaziabad was quashed. In the present case, investigation is yet to be completed. ( 6 ) IT would thus appear that it was in the peculiar facts and circumstances of the case that the prosecution of the appellant therein under Section 406/ 420. IPC pending in the Court of Chief Judicial Magistrate, Ghaziabad was quashed. In the present case, investigation is yet to be completed. ( 7 ) IN Trisuns Chemical Industry v. Rajesh Agarwal and Others it has been very clearly ruled that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit". Reliance in that case was placed by the Supreme Court on its earlier decision in Rajesh Bajaj v. State N. C. T. of Delhi and Others in which it was observed as under:"it may be that the facts narrated in the present complaint would as well reveal of commercial transaction or money transaction. But that is hardly a reason (or holding that the offence of cheating would elude from such a transaction. In fact, many cheatings were committed in the course of commercial and also money transactions. " ( 8 ) IN the instant case the complainant has clearly alleged that the two accused persons have cheated her and embezzled her money as would be evident from the relevant portion of the impugned F. I. R. extracted hereinabove. At the stage of quashing the F. I. R. this Court has no authority or jurisdiction to go into the correctness of the allegations made in the F. I. R. In M/s. Medchl Chemicals and Phanna Pvt. Ltd. v. M/s. Biological E. Ltd. , and orthers it has been very clearly ruled that where the complaint discloses commission of offence, the High Court has no authority or jurisdiction to go into the matter or examine its correctness. In State of Maharashtra v. Ishwar Pirqji Kalpatn and in Rupan Deol Bajaj v. K. P. S. Gill, it has been ruled that the High Court will not be justified in embarking upon an enquiry as to the probability reliability or genuineness of the allegations made in the complaint. In Rajesh Bajaj (supra) it has also been held that it is not necessary that a complainant should verbatim reproduce in the body of the complaint all the ingredients of the offence he is alleging. In Rajesh Bajaj (supra) it has also been held that it is not necessary that a complainant should verbatim reproduce in the body of the complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in I so many words that the intention of the accused was dishonest or fraudulent. The crux of the postulate, it has been further held is the intention of the person who induces the victim of his representation and not the nature of the transaction, which would become decisive in discerning whether there was commission of offence or not. In such view of the matter this Court should refrain from invoking its extraordinary jurisdiction under Article 226 of the Constitution of India from interfering with the process of investigation and quashing the F. I. R. at the very threshold. The power of quashing the F. I. R. is to be exercised sparingly and with circumspection keeping in view that the power of investigation falls with in the exclusive domain of the executive. The investigation is a statutory function of the police officer. With his expertise and skill he proceeds with the investigation to find whether the accused was involved in the offence or not. Day to day steps taken by him in the Investigation is supervised by his higher officer if there is anything wrong in the investigation necessary directions can be issued by his authorities to correct it. Therefore, whenever mala fide or bias is imputed either by the accused or the victim, the same should be brought to the notice of the higher authorities at the earliest point of time. To impute motive Mala fide or bias is easy but difficult to prove. Unless specific and definite allegations are made and established from the facts and circumstances to the satisfaction of the Court the court would be loath to exercise its extra-ordinary writ Jurisdiction and interfere with the process of investigation9. Though the power of investigation and arrest under the Code is seemingly unfettered, the principle of law well settled is that an ostensibly unfettered grant of discretionary power does not necessarily stultify judicial review particularly in view of ever expanding horizon of the fundamental rights guaranteed by Articles 14 and 21 of the Constitution. Though the power of investigation and arrest under the Code is seemingly unfettered, the principle of law well settled is that an ostensibly unfettered grant of discretionary power does not necessarily stultify judicial review particularly in view of ever expanding horizon of the fundamental rights guaranteed by Articles 14 and 21 of the Constitution. However, it is equally well settled that the extraordinary jurisdiction of the Court under Article 226 of the Constitution albeit plenary should not be invoked in derogation of the statutory power of the police under the Code and so as to pre-empt the exercise of discretion of the concerned police officer under Section 157 read with Section 41 of the Code. We are of the considered view that normally the courts should not interfere with the process of investigation much less with the power of the police to arrest a person accused of a cognizable offence except in rarest of rare cases and on proof of fact that the police would not act reasonablyt and honestly and would Raiher act mala in se or in bad faith. No interim order staying investigation and arrest should be granted during the stage of criminal investigation except in a case where Tmanifest injustice cries for the order of the Court10 or where some Tgrossly in-equitous act is going to be perpetrated and any delay would result in the fait accompli of a monstrosity11 or except where, on facts pleaded and proved the court is satisfied that the police officer will not be fair and reasonable in exercise of his power of arrest under the Code. Barring these and the like situations the High Court should refrain itself from intervening in the matter at the pre-arrest stage and Raiher leave it to the experienced judgment of the concerned police officer as to whether or not arrest, in the fact situation of a given case, is needed keeping in view the gravity of the offence: likelihood of any adverse impact on law and order: safety of the accused himself: criminal antecedent, if any, of the accused: need to prevent repetition of crimes: need to secure or preserve evidence relating to the offence or to obtain such evidence from the suspect by questioning him etc. etc. etc. No mala fide is alleged against the police officer investigating the case and there is nothing in the petition to suggest that the Police would act in contravention of the principles aforestated. ( 9 ) THE writ petition is, however, disposed of with the direction that even if the police officer investigating the case is, prima facie, satisfied about the bona fide of the allegations made in the impugned F. I. R, he shall, before effecting arrest on the basis of the impugned F. I. R. , address himself to the principles aforestated vis-a-vis the imperativeness of arrest and record, in brief reasons in the case diary in vindication of how does he consider the arrest of the petitioner in the case to be necessary. Petition disposed of accordingly. .