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2007 DIGILAW 854 (JHR)

Saroj Kumar Prasad v. State of Jharkhand

2007-11-07

D.G.R.PATNAIK

body2007
Order Petitioners have filed the instant application invoking the powers of this court under section 482 of the Cr. PC for quashing the order dated 15.3.2004 passed by Shri R.K. Mishra, Judicial Magistrate, 1st Class, Dhanbad, in C.P. Case No. 84 of 2004, whereby after taking cognizance of the offences under sections 406, 420 and 34 of the IPC, summons were issued against the petitioners directing them to appear and face trial in the case. 2. Case against the petitioners was registered on the basis of the complaint filed by the complainant/opposite party no.2 Sudama Prasad before the learned Chief Judicial Magistrate, alleging inter alia that a partnership firm was constituted by and between the complainant and the petitioners as well as one L.K. Mandai vide partnership deed dated 3.1.2002 by the name of M/s Heavy Earth Engineering for the purpose of business. Each partner had invested a sum of Rs.30,0001- in the business and a bank account in the name of the firm was opened in the Syndicate Bank. A lathe machine was installed in the firm's business premises. It is alleged that though, account was opened in the names of all the partners, but the petitioners dishonestly retained exclusive powers of operating the bank account without the knowledge and consent of the complainant. This fact came to the knowledge of the complainant a month after the commencement of the partnership business and he further learnt that the present petitioners had unilaterally ousted the fourth partner from the business. The complainant thereafter demanded the statement of account of the business from the petitioners, but they avoided to submit the accounts on one pretext or the other, whereupon by notice issued by the complainant to the bank, the operation of the bank account was stayed. On this, petitioners referred the dispute between them and the complainant for arbitration/panchayat to one Manoj Kumar Singh. It was decided in the panchayat that the petitioners shall pay a sum of Rs.55,0001- to the complainant in three instalments and by way of affirming their assurance to abide by the decision, the petitioners swore an affidavit on 4.8.2003 in accordance with the decision of the panchayat, a deed of retirement was executed by the complainant which was authenticated before the notary. However, the petitioners did not deliver a copy of the retirement deed to the complainant. However, the petitioners did not deliver a copy of the retirement deed to the complainant. The complainant alleges that by dishonest inducement, the accused persons had obtained his signature on the retirement deed and did not return his money and on the contrary, they have been issuing threats to implicate in false cases. 3. After receiving the complaint petition on 17.1.2004, and after perusing the same, the learned Chief Judicial Magistrate, Dhanbad transferred the complaint petition to the court of R.K. Mishra, Judicial Magistrate, 1st Class, Dhanbad under section 192(1) of the Cr. PC. for inquiry and disposal. Inquiry under section 202 of the Cr. PC. was conducted by the transferee court and on considering the statements of the complainant and his witnesses recorded on solemn affirmation, the learned court below recorded its satisfaction that a prima facie case for the offences under sections 406, 420 and 34 of the IPC is made out against the present petitioners and directed for issuance of summons against the petitioners calling upon them to appear and face trial for the aforesaid offences. 4. The petitioners have assailed the impugned order of the court below on the ground that the impugned order was passed by the learned Magistrate without application of judicial mind and by failing to appreciate that even according to the allegations in the complaint petition read with the statements of the complaint and his witnesses, no case either for the offence under section 406 or 420 of the IPC is made out at all and as a matter of fact, the dispute arising out of partnership agreement and for rendition of accounts, is essentially a dispute of civil nature and no criminal liability can be attracted against the petitioners. Shri Shekhar Prasad Sintla, learned counsel appearing for tile petitioners, submits that the complaint has been filed by the complainant/opposite party no. 2 with false and frivolous allegation and by suppressing the material fact that he had already received a sum of Rs. 40,000/- on 5.8.2003 and another sum of Rs.15,000/- on 22.10.2003 from the petitioners and had executed money receipts in token of the payment of the money to him and as such, the petitioners do not owe any money whatsoever to the complainant. 40,000/- on 5.8.2003 and another sum of Rs.15,000/- on 22.10.2003 from the petitioners and had executed money receipts in token of the payment of the money to him and as such, the petitioners do not owe any money whatsoever to the complainant. Learned counsel adds further that even the deed of partnership contains specific stipulation that any dispute if arises between the partners in relation to the partnership business, shall be referred to arbitration and as such, without abiding by the condition of the partnership deed for reference of the dispute to the arbitration, the complainant had no authority to institute criminal proceeding against the petitioners. 5. Opposite party no. 2 has filed his counter affidavit denying and disputing the entire grounds of the petitioners and challenging the very maintainability of the present petition. Learned counsel takes support of the judgment of the Supreme Court in the case of Rajendra Kumar Sitaram vs. Uttam and Another reported in 1999(2) PLJR (SC)5. Shri Jai Prakash, learned counsel representing the opposite party no. 2, claims that the petitioners have wrongly construed the order dated 15.3.2004 as the order of cognizance while the fact is that the cognizance of the offences was taken by the learned Chief Judicial Magistrate on 17.1 .2004 when he had perused the complaint petition of the opposite party no. 2 and had transferred the proceeding under section 192(1) of the Cr. RC. for inquiry and disposal to the transferee court. Learned counsel adds that the order dated 15.3.2004 cannot therefore be considered as the order of cognizance and by the very nature of the order, it can at best be stated that it is an order directing issuance of processes against the petitioners. Such order, according to the learned counsel, being not an interlocutory order, is a revisable order and amenable to the provisions of Section 397 of the Cr. RC. The petitioners ought to have preferred a revision application instead of an application under section 482 of the Cr.RC. and in such cases, powers under section 482 of the Cr. RC. cannot be invoked where appropriate forum for revision does exist under the law. Learned counsel explains further that the claim of the petitioners that the opposite party no. RC. The petitioners ought to have preferred a revision application instead of an application under section 482 of the Cr.RC. and in such cases, powers under section 482 of the Cr. RC. cannot be invoked where appropriate forum for revision does exist under the law. Learned counsel explains further that the claim of the petitioners that the opposite party no. 2 had received a total sum of Rs.55,000/- from the petitioners, is false and misleading and the receipts, copies of which petitioners have annexed to their application, are forged and fabricated. Learned counsel explained that as a matter of fact, petitioners had paid Rs.10,000/- in the first instance followed by another payment of Rs. 5,000/only to the opposite party no. 2 for which he had executed receipts and balance of Rs.40,000/- is yet to be paid by the petitioners to the opposite party no. 2. 6. From perusal of the lower court records, it transpires that on the date of filing of the complaint by the opposite party no. 2, learned Chief Judicial Magistrate after receiving the same, had passed the following orders: "17.1.2004 Complaint petition under sections 420, 406, 467, 468, 506 and 1208 IPC is filed by the complainant Sudama Prasad alongwith Vakalatnama against the accused persons named in the complaint petition. Register it. ' Perused the complaint petition and heard the learned lawyer of the complainant. Under the provision of u/s 192 (1) Cr. RC. the complaint petition is .transferred to the Court of Sri R.K. Mishra, J.M. 1st Class, Dhanbad for enquiry and disposal in accordance with law. Put up on 28.1 .2004 for enquiry. (Dictated)" 7. It is apparent from the above order that the learned Chief Judicial Magistrate had gone through the complaint petition and had applied his mind whereafter, he transferred the present case for inquiry and disposal to the transferee court in exercise of his powers under section 192(1) of the Cr. PC. Section 192 of the Cr. PC. is quoted hereinbelow:- . "1. Making over of cases to Magistrates.-(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. PC. Section 192 of the Cr. PC. is quoted hereinbelow:- . "1. Making over of cases to Magistrates.-(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial." On bare reading of the above provisions, it is manifest that the act of making over the case for inquiry or trial by the Chief Judicial Magistrate, to any competent court subordinate to him,' is only after the Chief Judicial Magistrate takes cognizance of the offences. Thus, the order of cognizance in the instant case Is essentially the order dated 17.1.2004. 8. The transferee court by its order dated 15.3.2004 (impugned), has recorded its finding that on the basis of the statements of the complainant and his witnesses recorded on solemn affirmation in course of inquiry under section 202 of the Cr. PC., prima facie case for the of• fences under sections 406, 420 and 34 of the IPC is made out against the petitioners and had also recorded its satisfaction that there was sufficient material available on record for proceeding against the petitioners and has therefore directed issuance of summons to the petitioner calling upon them to appear and face trial in the case. The impugned order is essentially an order directing issuance of process. In the case of Rajendra Kumar Sitaram (supra), the Supreme Court has explained that the order of the Magistrate directing issuance of process is not purely interlocutory. Rather, it is an intermediate quasi final order and is therefore amenable to the powers of revision under section 397 of the Cr.PC. 9. The question as posed by the opposite party no. 2 is, whether the inherent powers of this court under Section 482 of the Cr. PC. can be invoked in matters where specific provisions under Section 397 of the Code is available. It is by now well settled that powers under section 482 of the Cr. PC. has a different parameter and is a provision independent of Section 397(2) of the Cr. PC. can be invoked in matters where specific provisions under Section 397 of the Code is available. It is by now well settled that powers under section 482 of the Cr. PC. has a different parameter and is a provision independent of Section 397(2) of the Cr. PC. Powers under Section 482 of the Cr. PC. regulates the inherent powers of this court to pass necessary orders in order to prevent the abuse of the process of the court. The scope and range of Section 482 Cr. PC. is quite different from the powers conferred by the Code under section 397 of the Cr. PC. 10. On bare reading of Section 482 of the Cr. PC., it would be manifest that nothing in the Code, which would include sub-section 2 of Section 397 of the Cr. PC. also, shall be deemed to limit or affect the inherent powers of the High Court. 11. Undeniably, it has been settled by a catena of decisions of the Apex Court that inherent powers under section 482 of the Cr. PC. can be exercised only when no other remedy is available to the litigant and not where specific remedy is provided by the statute and further, that the power being extraordinary one, it has to be exercised sparingly. 12. Nevertheless, if the impugned order clearly brings out a situation. which is an abuse of the process of the court, or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) C)f the Cr. RC. can limit or affect the exercise of the inherent powers of the High Court. 13. This matter has been adequately discussed by the Supreme Court in the case of Municipal Corporation of Delhi VS. RC. can limit or affect the exercise of the inherent powers of the High Court. 13. This matter has been adequately discussed by the Supreme Court in the case of Municipal Corporation of Delhi VS. Ram Kishan Rohtagi and Others reported in AIR 1983 Supreme Court 76, wherein reiterating the observation of the Supreme Court in the case of Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi reported in AIR 1976, 1947, the Apex Court has laid down the guidelines and the grounds on which the proceeding can be quashed, and has held as follows: "Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused: (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." Thus, it is now well settled that where allegation stated in the complaint do not constitute any offence, it is open to the High Court to exercise its inherent jurisdiction under section 482 of the Cr. PC to quash the order passed by the Magistrate directing issuance of process against the accused. 14. In the light of the above guidelines, it is now to be seen as to whether the allegation as contained in the complaint petition .of the opposite party no. 2 read with his statements and that of his witnesses recorded on solemn affirmation in course of inquiry under section 202 of the Cr. 14. In the light of the above guidelines, it is now to be seen as to whether the allegation as contained in the complaint petition .of the opposite party no. 2 read with his statements and that of his witnesses recorded on solemn affirmation in course of inquiry under section 202 of the Cr. PC, do invite any criminal liability against the petitioners for the offences alleged? 15. On reading the averments in the complaint petition, it is apparent that the dispute between the complainant/opposite party no. 2 and the present petitioners arose on the basis of the partnership deed. The complainant, for the reasons of his own, had desired to withdraw himself from the partnership and while declaring his intention to withdraw, had demanded statement of account. of the partnership business. Admittedly, the dispute was referred to the Arbitrator, termed by the complainant as "panchayat". The parties to the arbitration had acknowledged the decisions of the Arbitrator and the petitioners had agreed to pay a sum of Rs.55,000/- to the outgoing partner namely the complainant and declaration to this effect was also executed by way of an affidavit by the petitioner no. 1. The undertaking given by the petitioners was admittedly acted upon by payment of the money by the petitioners to the complainant. The complainant has claimed that the entire amount as awarded by the Arbitrator has not been paid and only a sum of Rs.15,000/- has been paid by the petitioners. His grievance, therefore, is that the petitioners had not paid him his dues. It is not disputed by the complainant that pursuant to his entering into partnership with the petitioners alongwith the fourth person, each of them had invested Rs.30,000/- as capital and a deed of partnership was executed on 3.1.2002, whereafter the partnership business had commenced. The complainant was also actively involved in the business by rendering his own services as lathe mechanic. There is absolutely no allegation, nor is even remotely suggested by the complainant that at the time when the money was invested by him, the petitioners had any dishonest intention to cause wrongful loss to the complainant. The complainant was also actively involved in the business by rendering his own services as lathe mechanic. There is absolutely no allegation, nor is even remotely suggested by the complainant that at the time when the money was invested by him, the petitioners had any dishonest intention to cause wrongful loss to the complainant. The amount paid by the complainant as his share in the capita!, was admittedly invested in the partnership business and it was more than one year after the commencement of the business that the complainant had sought to retire from the business and had declared his intentions by executing deed of retirement. Under such circumstances, the complainant could at best be entitled to demand rendition of accounts of the Firm's business from the surviving partners namely the petitioners and could demand his share in the Firm's assets from the petitioners. The mere allegation that the petitioners had failed to pay up to the complainant his dues on his retirement from the partnership business cannot lead to the inference that the petitioners had committed any criminal breach of trust and of cheating the complainant. As rightly contended by the learned counsel for the petitioners, the dispute between the parties is essentially a civil dispute and there is no allegation or circumstance appearing in the entire averments in the complaint petition of the opposite party no. 2 to attract any criminal liability against the petitioners. 16. It appears that the learned court below has not considered the above aspects as appearing in the statements of the complainant in his complaint petition, in proper perspective and has proceeded to direct the petitioners to face trial, although no criminal liability can be imposed against the petitioners. Under such circumstances, subjecting the petitioners to undergo the rigours of trial for a criminal liability which, in the facts and circumstances of the case they do not owe, would certainly be an abuse of the process of the court and injustice upon the petitioners. 17. In this view of the matter, in my opinion, it would be appropriate to exercise the inherent powers of this court under section 482 of the Cr. PC for quashing the entire criminal proceeding against the petitioners. 18. In the light of the above discussion, I find merit in this application. Accordingly, this application is allowed. 17. In this view of the matter, in my opinion, it would be appropriate to exercise the inherent powers of this court under section 482 of the Cr. PC for quashing the entire criminal proceeding against the petitioners. 18. In the light of the above discussion, I find merit in this application. Accordingly, this application is allowed. The impugned order dated 15.3.2004 as passed by the learned court below including the entire. criminal proceeding against the petitioners pending in the Court of Shri R.K. Mishra, Judicial Magistrate, 1st Class, Dhanbad vide C.P. Case No. 84 of 2004, is hereby quashed.