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2001 DIGILAW 68 (PAT)

A. C. Srivastava v. State of Bihar

2001-01-23

S.K.CHATTOPADHYAYA

body2001
ORDER A question has been posed in this case as to whether if a person files a complaint suppressing the material and real facts and if those facts have been disclosed by the accused before the High Court, which remain uncontroverted, the High Court will be precluded from interfering by quashing the complaint petition merely on the ground that those facts have not been stated in the complaint petition. 2. In order to answer the question some facts may be stated briefly: The complainant filed a complaint petition before the Chief Judicial Magistrate, Buxar giving rise to complaint case No. 646 (C)/99. The allegation was made that the complainant had a deal with petitioner No.2, A.K. Banerjee, the Manager of M/s. Sone Valley Portlands Cements for purchase of 50 MT of Cement. To this effect a Bank draft of Rs. 31,000/- in the name of Sone valley Portlands Cement Company was handed-over to Mr. Banerjee who granted a receipt on 30.8.1985 in acknowledgement of the said draft. He also gave delivery order bearing No. 164 dated 30.8.1985. 3. When the complainant visited the cement factory at Japla to take supply of cement, he was not supplied with the same. He wanted to get the money refund and, as such, he contacted Mr. Banerjee and other accused persons, namely, Mr. A.C. Srivastava on several occasions and also made correspondences to this effect. However, neither any reply was given to him nor cement was supplied. Ultimately, the complainant wrote a letter to the Ministry of Industry and Registrar of the Company but without any effect. It is further alleged that the accused-persons acted in connivance and with concert with each other and by cheating the petitioners misappropriated the said sum of Rs. 31,000/-. In his complaint petition the complaint has annexed several letters which were exchanged between the accused-persons and the complainant. The complaint petition further reveals that said Banerjee even gave him assurance that as due to lock-out in the factory the cement could not be supplied but on the opening of the Company either cement would be supplied as promised or the money would be refunded. According to the complainant, though in between 1990 to April 1992 the accused-persons started production of cement and sold out the same but with connivance neither supplied required cement to him nor returned the amount. 4. According to the complainant, though in between 1990 to April 1992 the accused-persons started production of cement and sold out the same but with connivance neither supplied required cement to him nor returned the amount. 4. With the aforesaid allegations the complaint being filed on 3.11.1999 the Chief Judicial Magistrate on the same day sent the complaint petition to the Officer-in-Charge, Buxar police station to register a case and investigate into the matter. Pursuant to this order, Buxar Town PS Case No. 65/2000, dated 9.4.2000 was registered under Sections 406, 420, 467, 427 and 120-B of the Penal Code. 5. It is not in dispute that the police has not yet submitted final form and the investigation is in progress. At this stage the petitioners have moved this Court under Article 226 of the Constitution of India with a prayer to quash the First Information Report itself. 6. One of the main grounds for quashing the First Information Report raised by the petitioners is that the Opposite Party 2 with an oblique motive and mala fide intention has filed the First Information report by suppressing material facts. It is averred that the complainant has deliaberately suppressed the fact that for realising the said amount of Rs. 31,000/- had filed Money Suit No. 10/88 against the Company impleading the petitioners and others as party defendants. The said Money Suit was decreed on contest by Subordinate Judge-IV, Buxar on 20.12.1996. The Execution Case No. 1/97 was filed by Opposite Party No. 2 for execution of the said decree and a petition under Order XXI, Rule 5 of the Code of Civil Procedure was also filed by him for issuance of warrant of arrest against the judgment debtor including the accused-persons. 7. It is stated that the against the said judgment and decree of the Money Suit No. 10 of 1988, Petitioner No. 2 filed Money Appeal No.2 of 1997 on 26.8.1998. On being moved by the appellant-petitioners the 1st Additional District and Sessions Judge stayed the execution proceeding in Execution Case No.1 of 1997. Copies of the plaint judgment and decree and the order-sheet of the execution Court are annexed to this petition. 8. It is the case of the petitioners that due to various reasons including labour unrest etc. On being moved by the appellant-petitioners the 1st Additional District and Sessions Judge stayed the execution proceeding in Execution Case No.1 of 1997. Copies of the plaint judgment and decree and the order-sheet of the execution Court are annexed to this petition. 8. It is the case of the petitioners that due to various reasons including labour unrest etc. in 1985 the Company had to close down its manufacturing process with effect from 29.9.1985 and finally declared closure of the establishment with effect from 1.2.1987. The Management of the Company tried his best to obtain Financial Assistance from Financial Institutions and Banks and ultimately succeeded to frame scheme for revival of the Company in consultation with IDBI, IRBI (Now IIBI) and Punjab National Bank. The package was prepared on 24.11.1987 which was approved by the financial institutions and had to submit its report before the Board for Industrial and Financial Reconstruction in view of the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the 'SICA'). The BIFR declared the Company a Sick Industrial Company under Clause (O) of Section 3 of SICA. It was of the opinion that the Company can be revived and thus appointed an operating agency and Special Director was also inducted on the Board of the Company. The operating agency prepared a package/ scheme for revival of the Company and all the parties to the scheme including the State of Bihar gave concurrence and adopted the same which was notified by the BIFR. 9. However, ultimately rehabilitation scheme failed because the• parties to the scheme failed to abide by promises and contributions. The BIFR reviewed the matter and considering abnormal delay in disbursement of fund passed order on 7.3.1995 under Section 20(1) of SICA and directed that the Company be wound-up. To that effect the order was communicated to this Court having jurisdiction in the matter. The said letter of BIFR is Annexure 6. On such recommendation being made Petition No. 5 of 1995 has been registered by the High Court. Being aggrieved against the order of BIFR dated 7.3.1995 the Company preferred an appeal before the appellate authority but the same was rejected on 1.4.1997. This order is Annexure 7. 10. Being aggrieved by the order of the BIFR and the appellate authority the Company moved this Court under Articles 226 and 227 of the Constitution giving rise to Cr. Being aggrieved against the order of BIFR dated 7.3.1995 the Company preferred an appeal before the appellate authority but the same was rejected on 1.4.1997. This order is Annexure 7. 10. Being aggrieved by the order of the BIFR and the appellate authority the Company moved this Court under Articles 226 and 227 of the Constitution giving rise to Cr. WJC No. 7098 of 1997. The said writ application has been admitted on 29.6.1998 and the interim order dated 18.8.1997 was allowed to continue. These two orders are Annexure 8. 11. It is, however, asserted that the complainant had booked his order to take supply of cement through the Distributor M/s. Usha Tin and Steel Convertors Private Ltd. and to that effect a registration receipt is dated 30.8.1985 according to which the complainant was to take delivery of cement at factory and the balance payment was to be made before delivery. According to the petitioners, Opposite Party No.2 failed to take delivery of cement of his own and he has not deliberately disclosed the date on which he went to take delivery of Cement because according to the order registration, he was to take supply of two trucks on 4.9.1985 and remaining two trucks on 9.9.1985. The complainant failed to take supply of cement on those two dates and, as such, when the Company was declared lock-out and subsequent closure supply of cement was not possible. Lastly it is stated that prior to the report submitted to BIFR the Company was declared Sick Company having complete control of BIFR over the Company and particularly on its financial matters. The assurance was given to the complainant for payment or delivery of cement during the period the matter was before the BIFR and during pendency of winding up proceeding. The petitioners are not liable in any manner. Apart from this, it is asserted that none of the ingredients of any of the penal provisions levelled in the complaint petitions is made out. 12. Mr. Singh, learned senior counsel appearing on behalf of the petitioners, vehemently urged that when suppressing material facts the Opposite Party No.2 has filed the complaint petition giving rise to the First Information Report, this Court in exercising its power under Article 226 of the Constitution will be justified in quashing the First Information Report. 13. Mr. 12. Mr. Singh, learned senior counsel appearing on behalf of the petitioners, vehemently urged that when suppressing material facts the Opposite Party No.2 has filed the complaint petition giving rise to the First Information Report, this Court in exercising its power under Article 226 of the Constitution will be justified in quashing the First Information Report. 13. Mr. S.D. Sanjay, learned counsel appearing on behalf of the Opposite Party No.2, while not controverting the factual position given by the petitioners in the writ application submits that only because the complainant has availed the civil remedy and got a decree it does not preclude him from proceeding against the petitioners criminally. According to him, though a decree was obtained by the Opposite Party in said Money Suit but due to pendency of the appeal before the 1st Appellate Court and stay of execution proceeding, the petitioners are not in a position to enjoy the fruits of the decree and, as such, he has every right to proceed against the petitioners criminally. 14. It is pertinent to mention here that the Opposite Party No.2 has not controverted the factual position given by the petitioners by filing any counter affidavit and Mr. Sanjay as a counsel also does not dispute the said facts. 15. In such circumstances, a question arises as to whether this Court in exercising its discretionary power under Article 226 of the Constitution should quash the First Information Report and throttle the investigation or allow the Investigating agency to proceed in accordance with law for coming to its logical conclusion. The power of the High Court to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure has again been interpreted by their Lordships of the Supreme Court in the case of Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. and others, reported in (2000)3 SCC 269 : 2000(2) BBCJ 173(SC). I may usefully quote the observations of their Lordships which are as follows :- "Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount." In the case of L.V. Jadhav v. Shankarrao Abasaheb Pawar, reported in AIR 1983 SC 1219 their Lordships have held that "the high Court, we cannot refrain from observating, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen." According to their Lordships a settled principle of law is that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegations made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration with out any critical examination of the same. But the offence ought to appear ex facie on the complaint. 16. From the aforesaid principle of law settled by their Lordships the fact of the present case is to be considered. In the complaint petition the complainant has alleged cheating and misappropriation and inducement against the petitioners. The learned Magistrate has sent the complaint to the police for investigation as required under Section 156(3) of the Code. On receipt of the complaint the police registered First Information Report and started investigation. In the complaint petition the complainant has alleged cheating and misappropriation and inducement against the petitioners. The learned Magistrate has sent the complaint to the police for investigation as required under Section 156(3) of the Code. On receipt of the complaint the police registered First Information Report and started investigation. Thus, now the ball is in the Court of investigating agency who is to examine the truth or otherwise of the allegations and to make an investigation into the real facts. It is true that the assertions of the petitioners that the Opposite Party No.2 with an oblique motive has filed the complaint even after obtaining money decree have not been controverted by the Opposite Party No. 2 but, in my view, these facts can also be investigated by the police during investigation. The investigation will reveal as to how the complainant was compelled to file the present complaint making allegations of cheating and misappropriation against the petitioners. There is nothing on record to show that the police has submitted charge-sheet against the petitioners or cognizance of offence has been taken by issuing process against them. Thus, at this stage, in my view, it is premature for the petitioners to pray for quashing of the First Information Report when the matter is still under investigation. The facts which have been stated in the writ petition also can be looked into by the police during investigation. Only because the opposite party has not controverted those facts, in my view, does not give any jurisdiction to the High Court under Article 226 of the Constitution to throttle the investigation by quashing the First Information Report at the very initial stage. 17. Having given my anxious consideration to the facts and circumstances of the case, I am of the opinion that at this stage the entire First Information Report cannot be quashed by exercising power under Article 226 of the Constitution. In the result, I find no merit in this case, which is, accordingly, dismissed.