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2011 DIGILAW 1298 (CAL)

Evangelist. C. A. Easow v. Shri S. Sisubalan

2011-09-20

TARUN KUMAR GUPTA

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Judgment : TARUN KUMAR GUPTA, J. This revisional application under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure is directed mainly against the order dated 5th May, 2011 wherein learned Judicial Magistrate, First Class at Mayabunder in C.R. Case No.6 of 2011 took cognizance of a complaint filed by respondent S. Sisubalan for issuance of summons under Section 420 of the Indian Penal Code against the petitioner. It is the case of the petitioner that for some construction works for opening a school on behalf of Marthoma Church at Mayabunder an estimate was prepared to the tune of Rs.3,40,000/- and approved by Churches Auziliary for Social Action(CASA), New Delhi. However, respondent no.1 submitted a quotation for Rs.4,44,504/- and the same was accepted by the authority of Church and the said respondent ultimately raised a bill for Rs.6,22,411/- which is inclusive of some additional works which were done under the direction of the petitioner. As full payment could not be made to the respondent no.1, he filed said complaint alleging cheating and criminal breach of trust against the present petitioner though the dispute was purely civil in nature. Learned trial court mechanically took cognizance and issued summons against the petitioner under Section 420 IPC and the said Criminal case is liable to be quashed. This revisional application is being contested by respondent-S. Sisubalan as well as respondent-State. Mr. Roshan George, learned advocate for the petitioner has submitted that the dispute was purely civil in nature and that there was correspondence between authorities of Church in the one hand and the respondent no.1 on the other hand for payment of balance amount of work and that no offence under Section 420 was committed as present petitioner has no mens rea. He has further submitted that continuation of the Criminal proceeding is nothing but an abuse of the process of the law and that the same should be quashed. In support of his contention Mr. George has referred to case laws reported in (2010) 9 Supreme Court Cases 701 (State of Maharashtra and others v. Arun Gulab Gawali and others), AIR 2000 Supreme Court 754 (G. Sagar Suri and another v. State of U.P. and others) and AIR 1988 Supreme Court 709 (Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others). Mr. George has referred to case laws reported in (2010) 9 Supreme Court Cases 701 (State of Maharashtra and others v. Arun Gulab Gawali and others), AIR 2000 Supreme Court 754 (G. Sagar Suri and another v. State of U.P. and others) and AIR 1988 Supreme Court 709 (Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others). Mr. Rakesh Pal Gobind, learned advocate for the respondent no.1-complainant on the other hand has submitted that though the petitioner-accused was well aware that the sanctioned amount for the estimated work was Rs.3,40,000/-he induced the private respondent-complainant to make construction work for Rs.4,44,504/- by suppressing the sanctioned amount, and that even after the completion of the scheduled work he induced the private respondent-complainant to go for further work total amounting to Rs.6,22,411/- with the assurance that payment would be made; but ultimately denied to make payment not only for the additional work but also of the shortfall amount of the initial estimated work alleging that he had no hand in making such payment. According to Mr. Gobind, there was dishonest concealment of facts by the petitioner-accused who induced the complainant firstly to do estimated approved work for an amount of Rs.4,44,504/- though he knew well that approved estimate was only for Rs.3,40,000/-. He further submitted that the petitioner-accused further induced the private respondent-complainant to do further work with the assurance that payment of the same would be made accordingly, but later on denied his liability in making said payment causing heavy loss to the complainant and that it amounted to cheating. In support of his contention, he has referred to case laws reported in AIR 2011 Supreme Court 20 (Iridium India Telecom Ltd. V. Motorola Incorporated & Ors.); 2010 Cri.L.J. 3428 (Supreme Court) (S.P. Gupta v. Ashutosh Gupta); 2009 Cri.L.J. 2852 (Ravindra Kumar Madhanlal Goenka & Anr. V. M/s. Rugmini Ram Raghav Spinners P. Ltd.); 2009 (Suppl.) Cr.L.R. (SC) 131 (Mahesh Choudhary v. State of Rajasthan & Anr.) and 2009 Cr.L.R. (SC) 783 (Devendra & Ors. V. State of Uttar Pradesh & Anr.). Mr. Mandal, learned Public Prosecutor has submitted in support of the private respondent. According to Mr. Mandal though the petitioner-accused knew that the approved estimate was Rs.3 lakhs and odd he induced the complainant to do the construction work worth Rs. V. State of Uttar Pradesh & Anr.). Mr. Mandal, learned Public Prosecutor has submitted in support of the private respondent. According to Mr. Mandal though the petitioner-accused knew that the approved estimate was Rs.3 lakhs and odd he induced the complainant to do the construction work worth Rs. 4 lakhs and odd and also further construction work and that later on payments were not made on the plea that no sanction for said balance amount of initial work or for extra work was approved by the authority. According to Mr. Mandal, it prima facie amounted to a dishonest concealment of facts amounting deception within the meaning of Section 415 IPC which defined the offence cheating and that it is not a fit case for quashing the criminal proceeding already initiated under Section 420 IPC. The case laws as referred by Mr. Roshan George, learned advocate has laid down the principles on which the High Court can quash a criminal proceeding at the initial stage by invoking its powers under Section 482 of the Code of Criminal Procedure. It was held in those referred case laws that when a prosecution at the initial sage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegation as made prima facie established the offence. It is also for the Court to take into consideration in special features which appearing in particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. The case laws relied on by Mr. Rakesh Pal Gobind, learned advocate for the private respondent–complainant has laid down that even if allegation made in the complaint discloses a civil dispute but is not sufficient to quash the criminal proceeding if the fact of the case is made out in the complaint prima facie discloses the criminal offence. I have considered the submission made by learned advocates of both sides. Perused the case laws referred in support of their respective submissions. I have considered the submission made by learned advocates of both sides. Perused the case laws referred in support of their respective submissions. A power of quashing criminal proceeding has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. It has also been settled judicially by the Hon’ble Apex Court that the provisions of section 482 of the Code of Criminal Procedure are device to advance justice and not to frustrate it. This power of judicial review is discretionary, however it, must be exercised to prevent the miscarriage of justice. In the famous case of State vs. Bhajan Lal AIR 1992 SC 604 the Hon’ble Apex Court laid down following categories of cases by way of illustration wherein such power of quashing under Section 482 of the Criminal Procedure Code could be exercised:- “(1) Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec. 156(1) except under an order of a Magistrate within the purview of sec. 155(2). (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support thereof 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 sec. 155(2). (5) Where the allegations 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 or proceeding against the accused. 155(2). (5) Where the allegations 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 or proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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 with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” If we apply the above principles as laid down in the case of Bhajan Lal and other cases as referred above, it appears that in the complaint of the instant case it was specifically alleged that though petitioner-accused knew that an amount of only Rs.3,40,000/- was sanctioned for the work but he accepted the quotation of Rs.4,44,504/- submitted by the complainant and induced him to do the work concealing the fact that only Rs.3,40,000/-was sanctioned amount for the said work. It was further alleged in the complaint that complainant was persuaded to do additional work incurring additional expenditure on the verbal representation of the petitioner-accused that the amount would be paid in due course. If a complaint is read as a whole it prima facie discloses an offence under section 420 of the Indian Penal Code though a civil case could have also been filed. Under the facts and circumstances, I am of the opinion that this is not a fit case for exercising the extra-ordinary power under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding which has already been initiated. However, the petitioner-accused is certainly at liberty to take his defence as made out in this petition of revisional application during said trial. As a result, the revisional application is dismissed on contest. However, I pass no order as to costs.