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2005 DIGILAW 823 (GAU)

Chandra Prakash Bagaria v. Ashok Kumar Sharma

2005-12-12

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. Heard Mr. P.K. Deka, learned Counsel for the petitioner. Also heard Mr. A.K. Goswami, learned Senior counsel assisted by Mr. S. Banik, learned Counsel for the respondents. 2. This is a quashing proceeding initiated by, the petitioner under Section 482 Cr.P.C. in respect of complaint case No. 356C/2005 pending in the Court of the learned Special Judicial Magistrate, Kamrup, Guwahati. The complaint case has been filed by the respondent herein alleging inter alia that the petitioner No. 1 who is the Director of petitioner No. 2 Company has committed an offence under Section 420/406/409/34 IPC against the respondent/complainant in deceiving him to part with an amount of Rs. 4,11,763 (Rs. 3,00,000 + Rs. 1,11,763) which he took as the consideration money for delivering, an Ambulance as the agent of M/s. Mahindra & Mahindra Ltd. The vehicle having not been delivered in spite of repeated requests, it is alleged in the complaint that the accused/petitioners have cheated the complainant/respondent. 3. Upon filing of the complaint, the complainant was examined by the trial Court alongwith another witness and took cognizance of the case registering the same under Section 420/406/409/34 IPC and issued summons to the accused/petitioners and others named in the complaint. The petitioners seek quashing of the proceeding so initiated on two fold grounds of there being no ingredients so as to constituted offence under Section 420/406/409/34 IPC and pendency of a consumer protection case being CPC No. 39/04 before the District Consumer Redrosssal Forum, Guwahati. 4. On being pointed, out that the consumer case being altogether on a different issue and the liability under both the proceedings being different, there is no bar in proceeding with the complaint case, the learned Counsel' for the petitioners has confined his argument to the second ground, i.e., there is no ingredient to constitute an offence under the aforesaid provisions of IPC. 5. I have carefully considered the submissions made by the learned Counsel for the parties and have taken into consideration the materials on record. Needless to emphasize that a criminal complaint cannot be quashed merely on the basis of assertion of the accused. Facts may have to be established on evidence at the trial. It is the well settled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. Needless to emphasize that a criminal complaint cannot be quashed merely on the basis of assertion of the accused. Facts may have to be established on evidence at the trial. It is the well settled law that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. At this stage as in the instant case, the Court is not justified in embarking upon an enquiry as to the reliability or geniuses or otherwise of the allegations made in the complaint. Needless to say that the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. At this stage, the Court cannot go into merits and/or come to a conclusion that there was no breach of trust or cheating. 6. In the instant case, the facts as disclosed in the complaint have not been controverted. However, it is the submission of the learned Counsel for the petitioners that the ingredients so as to prima facie constitute an offence under Section 420/406/409/34 IPC are missing and the nature of grievance raised in the complaint can at best constitute a civil dispute. I am unable to accept the submission of the learned Counsel and rather inclined to accept the submissions made by the learned Counsel for the complainant/respondent that the fact having been admitted, it prima-facie constitutes the offence for which the learned Magistrate has taken the cognizance. 7. Nothing has been stated or could be pointed out as to why the vehicle in question could not be delivered inspite of accepting the value for the same. The amount taken has also not been returned. It is under these circumstances, it has been alleged in the complaint that the complainant was induced by the accused persons on the basis of the promise of delivering the Ambulance after receiving the full payment which led to parting with the hard earned money and accordingly the accused persons have committed the offence of criminal breach of trust and cheating. In this connection, the following observations of the Apex Court in Rajesh Bajaj v. State of NCT of Delhi reported in 1999 CriLJ 1833 is quoted below: 9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. In this connection, the following observations of the Apex Court in Rajesh Bajaj v. State of NCT of Delhi reported in 1999 CriLJ 1833 is quoted below: 9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. 8. In the case of State of Haryana v. Bhajan Lal reported in AIR 1992 SC 81 , the Apex Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decision are a sound reminder: 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding 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. 9. In the case of Trisuns Chemical Industry v. Rajesh Agarwal reported in 1999 CriLJ 4325, the Apex Court held that the exercise of inherent power should be limited to very extreme exceptions. Further, it was held that referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. 9. In the case of Trisuns Chemical Industry v. Rajesh Agarwal reported in 1999 CriLJ 4325, the Apex Court held that the exercise of inherent power should be limited to very extreme exceptions. Further, it was held that referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. This judgment also takes care of the first leg of argument of the learned Counsel for the petitioner, which, of course was not insisted upon. 10. In view of the above, I am of the considered opinion that it is not a case which warrants interference with the complainant and the cognizance taken by the learned Magistrate in exercise of the power under Section 482 Cr.P.C. 11. Consequently, the revision petition stands dismissed. There shall be no order as to costs. Petition dismissed