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J&K High Court · body

2009 DIGILAW 85 (JK)

Kanhaiya Gupta v. Parmanand Shastri

2009-02-26

J.P.SINGH

body2009
1. Petitioner has filed this petition under section 561-A of the Code of Criminal Procedure seeking quashing of proceedings initiated against him by the learned Chief Judicial Magistrate Kathua, on respondents complaint, for infraction of Section 420 of the Ranbir Penal Code (for short RPC). 2. Referring to the facts pleaded in the petition, petitioners learned counsel Mr. Ashok Parihar submits that although KG Steel Rolling Mills, a Private Limited Company had liquidated the loan, which had been advanced by the respondent to the Company by Payees Account Cheques, yet the respondent would not be satisfied with the amount paid to him by the Company and had been demanding interest thereon, and on refusal thereof, a complaint, to settle a purely civil dispute, on truncated facts, was filed seeking initiation of criminal proceedings against the petitioner, to abuse the process of Criminal Court. 3. Justifying the initiation of proceedings by the criminal court on respondents complaint against the petitioner, respondents learned counsel Mr. Shukla submitted that the facts pleaded by the petitioner in his petition under section 561-A of the Code of Criminal Procedure cannot be taken note of for discrediting the complaint which the respondent/complainant had made against the petitioner, and the complaint, when considered, in the light of the material which was available before the learned Chief Judicial Magistrate, did disclose the commission of offence punishable under section 420 RPC by the petitioner, and the process issued by the learned Chief Judicial Magistrate cannot be faulted. He thus prayed for the rejection of petitioners petition. 4. I have considered the submissions of learned counsel for the parties and gone through the records of learned Chief Judicial Magistrate and the documents placed by the petitioners on records. 5. Perusal of respondents complaint indicates that posing as sole proprietor of KG Steel Rolling Mills, the petitioner is stated to have induced the respondent to pay him an amount of Rs. 20,000/- for taking him as a partner in his concern, which amount he had not later deposited with KG Steel Rolling Mills and had misappropriated the amount by en-cashing the cheque as sole proprietor of KG Steel Rolling Mills. 6. The aforementioned act of the petitioner had caused wrongful loss to the respondent and accordingly amounted to commission of offences of forgery, fraud, misrepresentation and cheating. 6. The aforementioned act of the petitioner had caused wrongful loss to the respondent and accordingly amounted to commission of offences of forgery, fraud, misrepresentation and cheating. It is further indicated in the complaint that in terms of the settlement between the parties, the respondent had to pay tentatively an amount of Rs. 4.00 lacs for continuance of the partnership. 7. Before proceeding further, it needs to be noticed that on being asked by this court to respond to petitioners petition, the respondent had filed an affidavit, in paragraph No. 2 whereof, it has been stated that, in addition to Rs. 20,000/-, the respondent had advanced money through cheques and cash, from time to time to the petitioner, and the amount so advanced was Rs. 2.15 lacs, out of which an amount of Rs. 1.40 lacs only had been returned to the respondent thereby leaving the balance of Rs. 75,000/- with the petitioner. It is stated that the respondent-complainant had not indicated in the complaint about payment of Rs. 55,000/- to the petitioner because the amount had been paid in cash. He however admits the receipt of cheques amounting to Rs. 95,000/- 20,000/- and 25,000/- from the Company on different occasions. 8. Respondents counsels submission that facts pleaded by the petitioner in the present petition cannot be taken into account to discredit the complaint, may not be tenable, in that, there may not be any impediment in taking into consideration those facts which were admitted by the parties to the proceedings, for no proof of those facts, which are admitted, is required to be furnished under law. 9. Respondent-complainants plea in the complaint that the petitioner had misappropriated the amount of Rs. 20,000/- which had been paid to him to take him as partner in his concern by misappropriating it, is thus proved to be an incorrect statement on facts, in view of the documents placed by the petitioner on records and admitted by the respondent in his affidavit that the amount stood deposited with KG Steel Rolling Mills Pvt. Limited which had, in lieu of various amounts received by it from the respondent, returned an amount of Rs. 1.40 lacs to him. The records further indicate that even before the payment of Rs. 20,000/- reflected by the respondent in his complaint, an amount of Rs. 1.40 lacs to him. The records further indicate that even before the payment of Rs. 20,000/- reflected by the respondent in his complaint, an amount of Rs. 95,000/- had been paid by the respondent to the company by his cheque No. 194232. 10. Perusal of the complaint further indicates that the petitioner is stated to have disclosed him to be the sole proprietor of KG Steel Rolling Mills and the respondent had paid Rs. 20,000/- to him being the sole proprietor of KG Steel Rolling Mills on the assurance that petitioner would take the respondent as a partner in his concern. Respondent cannot thus have any legitimate grievance if the petitioner had withdrawn the amount covered by his cheque in his capacity as sole proprietor of KG Steel Rolling Mills because he had every right to withdraw the amount, which had allegedly been given by the respondent to him as sole proprietor of KG Steel Rolling Mills. His grievance, as stated in the complaint appears only to be that he had not been taken as partner in KG Steel Rolling Mills. Even if these facts were to be admitted, which position however, does not appear from the material placed on records, and the admission made by the respondent in his affidavit, yet these facts would not indicate commission of any offence as the respondents alleged grievance of petitioners failure to take him as partner in the Concern, would not have been made subject matter of a litigation in a criminal court. 11. Be that as it may, in view of the admission made by the respondent in his affidavit filed in response to petitioners petition under Section 561-A Cr. P.C, inter alia admitting the receipt of Rs. 1.40 lacs from the KG Steel Rolling Mills indicates that the dispute between the Company, the respondent and the petitioner, who is the Managing Director of the Company, is purely of a civil nature. 12. P.C, inter alia admitting the receipt of Rs. 1.40 lacs from the KG Steel Rolling Mills indicates that the dispute between the Company, the respondent and the petitioner, who is the Managing Director of the Company, is purely of a civil nature. 12. Documents placed on records further indicate that the complaint which the respondent had made against the petitioner of his withdrawing the amount stated to have been paid by the respondent to him having been found to be incorrect, continuance of criminal proceedings against the petitioner on respondents complaint, which was not based on true facts, may not be justified, particularly when the facts pleaded in the complaint and the respondent-complainants statement recorded in support thereof, does not indicate the commission of any offence. 13. For all what has been said above, I am of the view that the continuance of proceedings on the respondents complaint against the petitioner would amount to abuse of the process of court. 14. Allowing this petition, proceedings initiated on respondents complaint against the petitioner by learned Chief Judicial Magistrate, Kathua, are accordingly quashed.