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2007 DIGILAW 6 (GAU)

Tata Elxsi (India) Ltd. v. Viswanath Goenka

2007-01-02

I.A.ANSARI

body2007
ORDER I.A. Ansari, J. 1. By making this application under Section 482 of the Code of Criminal Procedure read with Article227 of the Constitution of India, the petitioners, who are accused Nos. 1, 2, 3 and 4 in the Complaint Case No. 354 of 1995, have sought for, inter alia, setting aside and quashing the order, dated 21-2-1995, passed, in the Complaint Case aforementioned, whereby direction was given to issue summons to the accused named in the complaint, which include the present petitioners and two more persons (who have not challenged the order dated 21-2-1995, aforementioned). 2. In a nutshell, the complainant's case is thus : Pursuant to the publication of an advertisement, by the accused No. 1, inviting people to purchase equity shares and/or partly convertible debentures, the complainant and four members of his family paid, by way of cheques, on 21-11-1991, a sum of Rs. 7,500/- each, subscribing to the public issue of the equity shares of the accused No. 1. Though the accused No. 4 received the applications for shares and also the amounts, paid by way of the cheques aforementioned, no acknowledgment was made, in this regard, by the accused No. 1 and/or 4 nor did they intimate to the complainant and/or his four other members of the family the decision taken by them (i.e. accused No. 1 to 4) on the said applications. By various letters, sent by the complainant and his said four other family members, they made enquiries about the fate of their applications, from the accused No. 1 and 4, but none of the accused bothered to respond thereto. This was followed by legal notices issued on behalf of the complainant and his family members aforementioned demanding refund of their money from the accused aforementioned. On receipt of the advocate's notices, the accused No. 4 sent photocopies of five refund orders, dated 30-1-92, of Rs. 7,500/- each with further intimation to the complainant and has family members that all the said refund orders had been cleared on 24-4-92/27-4-92 and encashed through the bankers, namely, accused Nos. 5 and 6. The accused No. 4 also advised the complainant and his family members to take up the matter with their bankers, namely, accused No. 5 and 6. As the complainant and his four family members had never opined their accounts with accused Nos. 5 and 6. The accused No. 4 also advised the complainant and his family members to take up the matter with their bankers, namely, accused No. 5 and 6. As the complainant and his four family members had never opined their accounts with accused Nos. 5 and 6, they intimated this fact to accused No. 4; but the accused aforementioned maintained silence. Subsequent enquiries made by the complainant, however, revealed that the refund orders, issued in their favour, were encashed by opening fictitious accounts, in their names, with the accused Nos. 5 and 6. In these premises, the complainant alleges that the accused No. 1 to 4 have either acted negligently or they have, colluded with those, who had opened, as indicated hereinbefore, the said fictitious accounts and encashed the cheques. 3. Having recorded the statement of the complainant and having found a prima facie case made out against all the accused aforementioned under Section 409/418/509/34, IPC, learned Judicial Magistrate, 1st Class, Guwahati, passed the order, dated 24-1-1995, aforementioned directing issuance of summons to all the accused and it is this order, which stands impugned in the present revision. 4. I have heard Mr. B. D. Goswami, learned Counsel for the accused petitioners, and Dr. G. Lal, learned Counsel for the complainant-opposite party. 5. While considering the present petition for quashing, what may be noted is that the law with regard to quashing of criminal complaint is no longer res Integra. A catena of judicial decisions have settled the position of law on this aspect of the matter. I may refer to the case of R. P. Kapur v. State of Punjab 1960 CriLJ 1239 , wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561-A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out; but Gajendragadkar, J. speaking for the Court, observed that though, ordinarily, criminal proceedings instituted against an accused must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can, and should, be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R. P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint shows that the contends of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint constitute offence, such a complaint cannot be quashed. 6. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in State of Haryana v. Bhajanlal reported in 1992 Supp (1) SCC 335 : 1992 Cri LJ 527 para 102 laid down as follows: 102. 6. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in State of Haryana v. Bhajanlal reported in 1992 Supp (1) SCC 335 : 1992 Cri LJ 527 para 102 laid down as follows: 102. 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 extraordinary power under Article 226 of the inherent powers under Section482 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 the 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 guidelines of 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 made in the First Information Report and other materials, if any, accompanying the FIR 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 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 allegation 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 allegation 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. (5) Where the allegation 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 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 private grudge. 7. In the case of Bhajanlal (supra), the Apex Court gave a note of caution on the power of quashing of criminal proceeding in the following words: 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 extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. 8. 8. It is clear from a close reading of the principles laid down in the case of R. P. Kapoor (supra) and Bhajanlal (supra) that broadly speaking, quashing of the First Information Report or the complaint is possible (a) when the allegations made in the First Information Report or the complaint, even if taken, at their face value and accepted in their entirety as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 9. In other words, when the allegations made in a complaint disclose commission of an offence, such a complaint cannot be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the complaint or the probability of the defence plea can be determined only by effective investigation at the trial. I am guided to take this view from the case in State of Bihar v. Md. Khalique, reported in 2002 CriLJ 553 wherein the Apex Court, while dealing with the question of quashing of FIR, observed as follows: 7. In Bhajan Lal case, this Court has also held that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. The present case is not rarest of rare case. 8. In view of the settled legal position and as offences have been disclosed in the FIR, the High Court ought not to have interfered with the investigation and should have permitted the police to complete it. We, accordingly, hold that the High Court has committed a grave error in quashing tile entire proceedings and ought not to have thwarted the prosecution. 10. We, accordingly, hold that the High Court has committed a grave error in quashing tile entire proceedings and ought not to have thwarted the prosecution. 10. In the backdrop of the position of law, on the subject of quashing of complaint or FIR, as discussed above, let me, now, turn to the grounds, on which the order, dated 21-2-1995, stands challenged in the present revision. It is the case of the accused-petitioners that in response to the publication of the prospectus inviting people to purchase equity shares and convertible debentures, the accused-petitioners received 14 lakhs applications and, out of them, as many as 7,101 numbers of applications were received from Guwahati. Having scrutinized the application forms, the applicants, who could not be allotted shares/debentures, were to be refunded back their money. In this regard, the officials of the petitioner company approached the postal authority, at Bangalore, for sending, by registered post, refund orders to all the 14 lakhs persons, but the Chief Post Master, G.P.O. Bangalore, informed the petitioner company that they were not equipped to handle such, a large number of registered letters and that they could accept only ten registered letters from a single party and that the maximum number of registered letters acceptable from a single firm or company cannot be more than 5,000 per day provided that advance intimation is received, in this regard, by the postal authorities concerned. As the sending of all refund orders by registered post would have required more than a year, the petitioner company opted to dispatch the entire refund orders within the period, as prescribed under Section 73 of the Companies Act, under certificate of posting. The refund orders in respect of the complainant and his family members were accordingly dispatched under certificate of posting and the same were to be encashed at Guwahati. As the petitioner company had received several complaints of refund orders having been encashed by persons not authorised in this regard, the petitioner company lodged an FIR, which has resulted into registration of Bharalumukh Police Station Case No. 106/ 92 and the investigation is already in progress. This apart, the complainant and his family members have already instituted suits for recovery of their unpaid dues. In such circumstances, there is nothing to show that the money, meant for the complainant and his family members, had been withdrawn or misappropriated in collusion with the present accused-petitioners. This apart, the complainant and his family members have already instituted suits for recovery of their unpaid dues. In such circumstances, there is nothing to show that the money, meant for the complainant and his family members, had been withdrawn or misappropriated in collusion with the present accused-petitioners. In short, what the accused-petitioners contend is that, compelled by circumstances, they had to send the refund orders under certificate of posting and not by registered post and that there was no collusion between the persons, who had allegedly withdrawn the money meant for the complainant and his family members, and the present accused persons. It is also the case of the accused petitioners that as the complaint and his family members have already instituted suits for recovery of their unpaid dues and that investigation by police is in progress, the lodging of complaint against the accused-petitioners and direction to issue processes against them were illegal and cannot be sustained. 11. The question as to whether the petitioner company had approached the postal authorities, as contended by the petitioners, the question as to whether the accused-petitioners had, compelled by circumstances, sent the refund orders under certificate of posting or it was in collusion with the persons, who had opened the accounts in the names of the complainant and his family members and encashed the refund orders, are all questions of fact. Such disputed questions of fact cannot be decided in a quashing proceeding under Section 482, Cr. P.C., for, in order to sustain the submissions made by the accused-petitioners, the materials, which have been relied upon by the accused-petitioners, would have to be looked into and the correctness and/or veracity thereof would have to be determined, which is impermissible in law in a proceeding under Section 482, CPC. This apart, the mere fact, that the complainant and the members of his family have instituted suits for recovery of their unpaid dues, cannot be made a ground for quashing the criminal proceedings. 12. As far as Baralumukh Police Station Case No. 106/92 is concerned, it is, now, submitted, on behalf of the accused-petitioners, that the case has resulted in filing of charge-sheet against some persons and none of the accused-petitioners are accused in the said charge-sheet. While considering this aspect of the case, it needs to be noted that a copy of the charge-sheet has been produced before this Court. While considering this aspect of the case, it needs to be noted that a copy of the charge-sheet has been produced before this Court. However, nothing, contained therein, indicates that any effort was made by the investigating agency to ascertain if there was any collusion between the accused-petitioners and the persons, who have been charge-sheeted. When the criminal liability of the accused-petitioners has not at all been ascertained by the police investigation, such an investigation or filing of the charge-sheet, based on such an investigation, cannot be made a ground for quashing an order, such as, the one, which stands impugned in the present revision. On a cautious reading of the complaint and also the statement of the complainant, it cannot be said that there was no material before the learned Court below to hold that there was a prima facie case against the accused named in the complaint and direct their appearance in the Court. 13. At the time of hearing of the present revision, Mr. B. D. Goswami, learned Counsel for the accused-petitioners, has also drawn the attention of this Court to the order, dated 29-9-98, passed by the Special Court for Economic Offences, at Bangalore, which arose out of the encashment of the refund orders as in the case at hand. While considering the order, dated 29-9-98, aforementioned, what needs to be noted is that in its observations, the learned Special Court made it clear that the question as to whether the company was able to send money orders by registered post or not is not material for the purpose of the decision of the said case, for, there is no mandatory requirement to send the refund orders by registered post. Thus, the order, dated 29-9-1998, also cannot be made a ground for setting aside the impugned order, dated 21-2-1995, inasmuch as the Special Court has not determined the criminal liability of the accused-petitioners in the case filed by the present complainant. 14. What emerges from the above discussion is that the law does not permit this Court to rely on the case, set up by the defence, for the purpose of quashing a complaint, under Section 482, Cr. P.C. when the correctness or veracity of the defence taken by the accused has to be determined at the trial. 14. What emerges from the above discussion is that the law does not permit this Court to rely on the case, set up by the defence, for the purpose of quashing a complaint, under Section 482, Cr. P.C. when the correctness or veracity of the defence taken by the accused has to be determined at the trial. In this view of the matter, no case for setting aside the impugned order, dated 21 -2-1995, can be said to have been made out at this stage. This, however, does not mean, I must hasten to add. that the accused-petitioners will be completely debarred from challenging the legality of the criminal proceeding launched against them if and when the materials relevant for the purpose are brought on the record of the case. 15. Because of what have been discussed and pointed out above, this revision fails and the impugned order is not interfered with at this stage. The accused-petitioners are hereby ordered to comply with the directions given by the impugned order, dated 21-2-1995, aforementioned. The accused-petitioners are, however, left at liberty to make application seeking themselves to be represented through their appointed counsel, in terms of the provision under Section 205, Cr. P.C. and, if such an application is made, the learned Counsel below shall consider and dispose of the same in accordance with law. 16. Before parting with this revision, it is hereby clarified that notwithstanding the fact that this Court has declined to quash the complaint, the accused-petitioners shall remain at liberty to raise the questions, which they have raised in the present application for quashing, at the appropriate stage of the trial and if such questions are raised by the accused-petitioners, the learned Court below shall not be influenced by the observations made hereinabove, for, these observations are made keeping in view the law with regard to the quashing of a criminal proceeding and anything observed hereinabove shall not be construed as the final conclusion or inference drawn by this Court against the accused-petitioners. The accused-petitioners shall further have the liberty to rely on any such documents, which might have been produced and/or considered in this quashing proceeding. 17. With the above observations and directions, this revision shall stand disposed of. 18. Send back the LCR.