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2012 DIGILAW 449 (JHR)

Dilip Goyal v. State of Jharkhand

2012-03-27

H.C.MISHRA

body2012
JUDGMENT H.C.Mishra, J. Heard the learned counsels for both the sides. 2. This writ application has been filed for quashing the entire criminal proceedings relating to Mango P.S Case No.54 of 2001, arising out of C-1 Case No. 152 of 2001 for the offences under Sections 406, 420, 193, 120-B, 467, 468 and 471 of the Indian Penal Code. It may be stated here that this writ application was earlier allowed by order dated 1.3.2001, but the said order was set aside by the Hon'ble Supreme Court on 18.1.2002 in Cr.Appeal No. 86 of 2002, as the order was passed by this Court without noticing the respondent, on whose complaint, the learned Magistrate had directed for the investigation under Section 156(3) of the Cr.P.C. Accordingly, the said order was set aside and this Court was directed by the Hon'ble Supreme Court of India to reconsider the matter after giving an opportunity of hearing to the complainant and as such, the matter was re-admitted and notice was issued to the complainant-respondent no.2 who has since appeared. 3. From perusal of the complaint case filed by the respondent no.2, it appears that the complainant was the Managing Director of an industrial unit namely M/s Everest Electrical and Engineering Co. Pvt. Ltd. and the complaint petition mainly deals with the retirement of the complainant from the said business and induction of the accused nos. 1 and 2, namely, Sanjay Dubey and Smt. Rina Dubey as the Directors in the said company, with which the petitioner has no concern. The petitioner has been made accused no.3 in the case and so far as this petitioner is concerned, it is alleged that while leaving the company, the complainant had left some undated blank or filled up signed cheques which were converted / fabricated to be used as genuine instruments by the accused nos. 1 and 2 and were handed over to the accused no.3, i.e this petitioner, in connivance, who presented the cheques for encashment and got the same dishonored from the bank. It also appears from the complaint petition itself that several cases were filed upon the complainant by the petitioner under Section 138 of the Negotiable Instrument Act as the said cheques issued by the complainant were dishonored. So far the allegation against this petitioner is concerned, the same is mentioned in paragraph 29 of the complaint petition which is reproduced here-in-below:- “29. So far the allegation against this petitioner is concerned, the same is mentioned in paragraph 29 of the complaint petition which is reproduced here-in-below:- “29. That since the accused No.3 has filed a number of cases against the complainant on the basis of such forged, fabricated and invalid document knowing well about it and for being it used as evidence in the process of Law hence has practised a fraud against the Court itself to which the accused no.1 and 2 have knowingly and voluntarily assisted.” 4. It appears that the said complaint petition was sent by the Court of learned Chief Judicial Magistrate, Jamshedpur for institution of the police case, on the basis of which, Mango P.S Case No. 54 of 2001 corresponding to G.R No. 339 of 2001 was instituted for the aforesaid sections. The institution and continuation of the proceedings in the said criminal case has been challenged by the petitioner in this writ application. 5. Learned counsel for the petitioner has submitted that from the statements made in complaint petition, particularly in paragraph 29, it is apparent that the petitioner had filed the complaint cases under Section 138 of the Negotiable Instrument Act against the respondent no. 2 and subsequently, the respondent has filed the present complaint petition which was sent for institution of the police case. Learned counsel has accordingly, submitted that the present case has been lodged by the complainant only with malicious intention and with ulterior motive for wreacking vengeance against the petitioner and with a view to spite him due to private and personal grudge for filing the complaint cases under Section 138 of the N.I Act against the complainant. 6. Learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of State of Haryana and others -Vs.-Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335, submitting that in this case the Hon'ble Apex Court has laid down the categories of cases, in which, the High Court can exercise the extra ordinary power under Art. 226 of the Constitution of India or inherent power under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding and the seventh category as detailed by the Hon'ble Supreme Court is the one, which precisely covers the case of the petitioner. 7. 7. Learned counsel further placed reliance upon the decision of the Hon'ble Supreme Court of India in Eicher Tractor Ltd. And others -Vs.-Harihar Singh and Another, reported in 2008 (16) SCC 763, wherein, again placing reliance upon the decision of the Hon'ble Supreme Court of India in Bhajan Lal’s case (supra), the Supreme Court has quashed the proceedings for the offences punishable under Sections 420, 468 and 471 of the Indian Penal Code in the facts of the given case, which also related to lodging the criminal case pursuant to the legal notice served upon the complainant under Section 138 of the Negotiable Instrument Act. 8. Placing reliance on these decisions, learned counsel for the petitioner has submitted that it is manifestly clear that the case is precisely covered by the law laid down in Bhajan Lal’s case (supra), as the same has been filed with a malafide intention and ulterior motive for wreacking vengeance on the petitioner for filing the complaint cases against the respondent No. 2 under the Negotiable Instrument Act. In this connection, learned counsel has also placed reliance upon the decisions of the Hon'ble Supreme Court of India Sunil Kumar Vs. M/s Escorts Yahama Motors Ltd. And others, reported in 2000 Cr.L.J 174 and in Sundar Babu and others Vs. State of Tamil Nadu, reported in 2009 (3) East Cr C 230 (SC). 9. Learned counsel for the private respondent no.2, on the other hand, has submitted that there is direct allegation in the complaint petition that forgery was made in the cheques by the accused persons and as such, there is direct allegation against the petitioner to have committed forgery in the valuable security for the purpose of cheating and as such, the offences are made out against the petitioner. Learned counsel has also placed reliance upon the decision of the Hon'ble Supreme Court of India in Bhajan Lal’s case (Supra) in support of his contention that where the allegations made in the FIR or complaint make out an offence against an accused, the same cannot be quashed at its initial stage. Learned Counsel also placed reliance upon the decision of the Hon'ble Supreme Court of India in State of Karnataka Vs. Learned Counsel also placed reliance upon the decision of the Hon'ble Supreme Court of India in State of Karnataka Vs. M. Devendrappa and another, reported in A.I.R 2002 (SC) 671, wherein it was held that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused persons. The allegations of mala fides against the informant are of no consequence and cannot be by itself be the basis for quashing the proceedings. Learned counsel has pointed out that the decision in Bhajan Lal’s case (supra) was taken note of by the Hon'ble Supreme Court in this case and the law was laid down as above. It has been pointed out by the learned counsel that the complaint petition filed by the complainant was sent for institution of the police case and upon institution of the police case, it has no more remained a private complaint. Learned counsel further placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of State of Maharastra Vs. Ishwar Piraji Kalpatri and Others, reported in 1996 (1) SCC 542 , wherein, it has been laid down as follows :- “22. In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence had been committed which will have to be established in a court of Law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of malafides , would be no ground for quashing the prosecution. **** ** It was held by this Court that when an information is lodged at the police station and an offence is registered, then the malafides of the informant would be of secondary importance. But the mere fact that the complainant is guilty of malafides , would be no ground for quashing the prosecution. **** ** It was held by this Court that when an information is lodged at the police station and an offence is registered, then the malafides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings.” 10. Learned counsel also pointed out that the aforesaid view has also been expressed even in the cases of Eicher Tractor Ltd. (Supra) and M. Devendrappa (supra), relied upon by the learned counsel for the petitioner. Learned counsel has further pointed out from Judgments of this Court in Acquittal Appeal No. 28 of 2008 and Acquittal Appeal No. 31 of 2008, reported in 2012 (1) JCR 434 (Jhr) and in 2012 (1) East Cr C 551(Jhr) respectively, which arose out of some of the same cheques, about which, it is alleged in the present complaint petition that those were stolen away and forgery were committed therein on the basis of which, complaint cases were filed under Section 138 of the N.I.Act against the respondent no.2, in which the respondent no.2 has been acquitted because material alterations were actually found in the cheques in question. Learned counsel has accordingly submitted that there is force in the allegation against the petitioner that forgery were committed in the cheques in question for filing the false complaint cases under Section 138 of the N.I.Act. Learned counsel accordingly, submitted that in view of the fact that the offences are made out on the basis of the allegations in the complaint petition, the present writ application which has been filed for quashing the criminal proceedings against the petitioner, is only fit to be dismissed. 12. Learned counsel accordingly, submitted that in view of the fact that the offences are made out on the basis of the allegations in the complaint petition, the present writ application which has been filed for quashing the criminal proceedings against the petitioner, is only fit to be dismissed. 12. After having heard the learned counsels for both the sides and upon going through the records, I find that in the present case, there is direct allegation in the complaint petition as mentioned above that the cheques were stolen and on the basis of forged cheques, the number of cases were filed against the complainant, due to which, the present complaint petition has been filed which was sent for institution of the police case. It also appears from the decisions in Acquittal Appeal Nos.28 & 31 of 2008 that the criminal case filed against the complainant failed as interpolations were actually found in the cheques in question. As such, it cannot be said that the present complaint case, on the basis of which, Mango P.S case N o. 54 of 2001 was lodged, was instituted only with ulterior motive and in order to wreacking vengeance against the petitioner. The allegations made in the complaint petition make out the offences against the petitioner and it would not be appropriate to quash the criminal proceedings and the F.I.R at this initial stage. Even in the decisions relied upon by the learned counsel for the petitioner, in Eicher Tractor Ltd. (supra) and Sundar Babu (supra), the Hon'ble Apex Court has laid down that in a proceeding instituted on a complaint, the exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous , vexatious or oppressive . It has also been held that when an information is lodged at the police station and the offence is registered, the mala fides of the informant would be of secondary importance and of no consequence and cannot by themselves be the basis of quashing the proceedings. In the case of M. Devendrappa (Supra) also the same view has been expressed by the Hon'ble Supreme Court. In the case of Sunder Babu (supra) which has been relied upon by the learned counsel for the petitioner, the Hon’ble Supreme Court has also held as follows:- “8. In the case of M. Devendrappa (Supra) also the same view has been expressed by the Hon'ble Supreme Court. In the case of Sunder Babu (supra) which has been relied upon by the learned counsel for the petitioner, the Hon’ble Supreme Court has also held as follows:- “8. -----The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. ----------” 13. In the facts and circumstances of the case, I am of the considered view that as the offences are made out against the petitioner on the basis of the allegations made in the complaint petition, in view of the settled principle of law as discussed above, it is not a fit case where this Court should exercise its extraordinary power under Art. 226 of the Constitution of India for quashing the criminal proceedings against th+e petitioner. Hence, I do not find any merit in this writ application and as such, the same is, hereby, dismissed.