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2003 DIGILAW 1282 (PNJ)

Raj Kumar v. State of Punjab

2003-09-11

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity the Code) prays for quashing of FIR No. 74 dated 11.7.2003 registered under Sections 420/406/467/468/471 Indian Penal Code P.S. City Fazika, District Ferozepur. 2. The FIR has been registered on the basis of allegations levelled by one Rajinder Kumar (complainant-respondent No. 2) son of Saheb Ram against various persons namely 1. Krishan Lal 2. Kewal Krishan sons of Sada Lal resident of Krishna Gali, Fazilka, Gaushala Road 3. Raj Kumar son of Sada Lal, Gali Tanalian Wali, Fazika, Distt. Ferozepur, 4. Rakesh Kumar, 5. Surinder Kumar son of Krishan Lal resident of Gaushala Road, Krishna Gali near OBC Bank, Fazilka 6. Ricky son of Darshan Lal resident of Shop No. 120 New Anaz Mandi, Muktsar and 7. Sandeep Kumar son of Om Parkash Juneja, resident of near old Post Office, Hanumangarh Town, District Hanumangarh. It is alleged that they have prepared fake record relating to original payments and they have failed to pay bonus in respect of paddy to the complainant-respondent No. 2. Allegations further are that complainant-respondent No. 2 is an agriculturist and has been selling his crop to the firm M/s Krishan Lal Rajinder Pal, of which accused Nos. 1 and 3 are partners. The accused have been arrayed in the FIR as accused Nos. 1 to 7. The accused Nos. 1 and 3 (petitioners) are partners. The accused Nos. 4 and 5 are sons of accused No. 1 and accused Nos. 6 and 7 are his relatives. All the accused are alleged to be share holders in the firm. It is alleged that on account of good relations of the complainant- respondent No. 2 with the accused persons he never suspected the intention of the accused including the petitioners. He had been keeping his sale proceeds with the accused persons and would take the amount as and when he needed the same. It is alleged that on 1.5.2003 the complainant-respondent No. 2 asked accused No. 1 Krishan Lal to prepare his accounts and render the same to him. A sum of Rs. 7,62,100/- was lying to the credit of complainant-respondent No. 2 and the same was payable. The complainant got suspicious as the credit shown in his account was far less than his estimation. A sum of Rs. 7,62,100/- was lying to the credit of complainant-respondent No. 2 and the same was payable. The complainant got suspicious as the credit shown in his account was far less than his estimation. He demanded form J in respect of the sale of the crop and the accused supplied to him the photostat copies. The photostat of copy of J Form No. 77 dated 19.10.2002 showed sale proceeds of Rs. 19,822/- which infact was never signed by the complainant- respondent No. 2. It is alleged that accused No. 1, Krishan Lal has signed the same by impersonating himself as complainant-respondent No. 2. The photo copy of form J was sent with the complaint. Similarly form J No. 78 dated 23.10.2002; form No. 92 dated 28.10.2002 and J form No. 323 dated 21.4.2003 which have also been issued by the accused to complainant-respondent No. 2 did not show the full quantity of the paddy crop sold by complainant-respondent No. 2 to the accused. The accused are alleged to have told the complainant- respondent No. 2 that the entire paddy has been sold by them to the sheller owners by back door entry and the amount would be paid to the complainant- respondent No. 2 separately. In other words the sale proceeds of paddy sold by the complainant-respondent No. 2 has not been credited to his account. The amount has not been paid either. The allegation of cheating has been levelled. 3. Further allegations are that Government had given bonus of Rs. 20/- per quintal on the paddy crop in the previous year and the amount of bonus has not been paid. The afore mentioned amount is obviously mis-appropriated. In the year 2001, the Government had given the first instalment with bonus of Rs. 10/- per qtl. on the paddy crop and the amount was deposited in the accounts of the avocationists which is alleged to be mis-appropriated by the accused. Complainant-respondent No. 2 has further alleged that accounts have been falsely prepared. As a matter of fact, the accused persons owe the complainant-respondent No. 2 Rs. 10/10.5 lacs. Photo copies of the account prepared by the complainant-respondent No. 2 were also attached with the complaint. On demand due amount has not been paid to the complainant- respondent No. 2 on the on the pretext that their business in Fazilka is likely to come to standstill. 10/10.5 lacs. Photo copies of the account prepared by the complainant-respondent No. 2 were also attached with the complaint. On demand due amount has not been paid to the complainant- respondent No. 2 on the on the pretext that their business in Fazilka is likely to come to standstill. It is further alleged that accused Nos. 1 to 5 in connivance with accused Nos. 6 and 7 have deposited their amount in Hanumangarh after withdrawing the same from Muktsar with the object of causing loss to the complainant-respondent No. 2. It is further alleged that the whole dealing is kept secret to grab the amount payable to complainant- respondent No. 2. On the basis of the afore-mentioned complainant filed by complainant-respondent No. 2 FIR No. 74 dated 11.7.2003 was registered against the accused and the police is investigating the same. 4. Shri R.C. Setia, learned senior counsel has argued that a perusal of the FIR shows no criminal breach of trust or forgery of the account books. Learned counsel has submitted that the dispute is purely of civil nature and it is mis-use of the process of criminal law. According to the learned counsel, the necessary ingredients of criminal breach of trust or forgery have not been prima facie established on the perusal of the FIR. Therefore, the learned counsel has prayed for quashing the FIR. 5. After hearing the learned counsel and perusing the FIR minutely, I do not find that the ingredients of offence alleged to have been committed have not been indicated in the FIR. It is well settled that under Article 226 of the Constitution or Section 482 of the Code, FIR or a criminal complaint could be quashed very rarely and only under specified circumstances. If the allegations made in the FIR ex-facie disclose commission of a cognizable offence warranting registration of case and investigation of the same then it would not fall under any of the categories of cases where this Court while exercising inherent jurisdiction would quash the FIR itself. The proposition that FIR can be quashed if it fails to disclose the basic ingredients of the offence alleged to have been committed fell for consideration of the Supreme Court in the case of State of West Bengal v. Swapan Kumar Guha, AIR 1982 Supreme Court 949. The proposition that FIR can be quashed if it fails to disclose the basic ingredients of the offence alleged to have been committed fell for consideration of the Supreme Court in the case of State of West Bengal v. Swapan Kumar Guha, AIR 1982 Supreme Court 949. The observations of their Lordship in this regard reads as under : "The position which emerges from these decisions and the other decisions which are discussed by Brother A.N. Sen is that the condition precedent to the commencement of investigation under Section 517 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so that suspect unless the FIR prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmed will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received." 6. The afore-mentioned view has also been considered, followed and applied by the Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. In that case, their Lordships have concretized the cases in which interference under Section 482 of the Code or Article 226 of the Constitution would be warranted. The afore-mentioned view has also been considered, followed and applied by the Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. In that case, their Lordships have concretized the cases in which interference under Section 482 of the Code or Article 226 of the Constitution would be warranted. The same reads as under : "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 guide-lines 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 FIR 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. 4. Where, the allegations in the FIR 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. We also give a note of caution to the effect that the power of quashing a criminal preceding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." (emphasis supplied) 7. This view has also been taken in the case of P.S. Rajya v. State of Bihar, (1996)9 SCC 1. 8. It is also well known that investigation of an offence lies within the powers of the police officer so long as the power to investigate is legitimately exercised in accordance with the provisions of Chapter XII of the Code. By a catena of judgments of the Supreme Court, it has been pointed out that investigation by a police officer and the power of the Courts to interfere is well defined and both the channels flow side by side but their water never intermingles. By a catena of judgments of the Supreme Court, it has been pointed out that investigation by a police officer and the power of the Courts to interfere is well defined and both the channels flow side by side but their water never intermingles. In King Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18, the Privy Council has observed, "The functions of the judiciary and the police are complimentary, not overlapping, and the combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own functions." This view has been followed by the Supreme Court in State of West Bengal v. S.N. Basak, AIR 1963 Supreme Court 447; H.N. Rishbud v. State of Delhi, AIR 1955 Supreme Court 196 and Abhinandan Jha v. Dinesh Mishra, AIR 1968 Supreme Court 117. In Khwaja Nazir Ahmads case (supra) the Privy Council observed that if the information furnished to the police officer discloses the commission of a cognizable offence then investigation into the allegations must necessarily follow in the interests of justice and the Court will not normally interfere with the investigation. The observations of their Lordship in this regard read as under : "Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary, not overlapping and the combination of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the courts functions begin when a charge is preferred before it, and not until then." 9. The afore-mentioned observations have been approved by the Supreme Court in S.N. Basaks case and Rishbuds case (supra). Similar view has been taken in the case of Bhajan Lal (supra) and it has been observed that power of both the police as well as judiciary are complementary to each other and do not overlap. The observations of their Lordship in this regard in Bhajan Lals case (supra) read as under : "The sum and substance of the above deliberation results in a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as afore- mentioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgress the circumscribed limits and improperly and illegally exercises his investigatory power in breach of any statutory provisions causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any recognition of such power ill be tantamount to recognition of Divine Power which no authority on earth can enjoy." 10. If the facts of the present case are examined in the light of the principles laid down by the Supreme Court it can hardly be doubted that inherent power under Section 482 of the Code for quashing the FIR cannot be exercised because all the ingredients of a cognizable offence of forgery, mis-appropriation and cheating are satisfied. There are allegations that the petitioners alongwith others have forged the signatures of complainant- respondent No. 2, non-payment of bonus, mis-appropriation and defalcation of accounts. These allegations constitute offences of forgery, cheating, mis- appropriation etc. In Bank of India v. Yeturi Maredi Shanker Rao, AIR 1987 Supreme Court 821 forged signatures on a withdrawal form which was presented to the bank to obtain money was considered sufficient to conclude that it was the accused who forged the signature of the complainant on a document, used the same to withdraw the money from the bank and pocketed the same. In the present case, the allegations have been levelled that signature of the complainant-respondent No. 2 have been forged and therefore it cannot be said that the basic ingredients of the offence constituting an offence of forgery have not been made out. 11. The argument that the dispute between the parties is of purely civil nature has failed to impress me because in cases where the penal consequences flow, the civil nature of the dispute cannot exclude the obligation of criminal law. In this regard reliance could be placed on a judgment of the Supreme Court in Kamla Devi Agarwal v. State of W.B., 2002(1) SCC 555. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.