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2012 DIGILAW 923 (GAU)

Mridul Kumar Saikia v. Jiban Saha

2012-08-03

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482 CrPC, the petitioner, who is an accused in CR Case No. 2072 of 2004, has sought for setting aside and quashing not only the complaint, which has given rise to the case aforementioned, but also the order, whereby the learned Additional Chief Judicial Magistrate, Dhubri, has taken cognizance of offences, under Sections 420/406/427 IPC, and directed issuance of process accordingly against the accused-petitioner. The case of the complainant, may, in brief, be described thus: The accused is supplier of LPG cylinder and the proprietor of M/S NK Gases, having office at Club Road, Jorhat. In the year 1994, the accused came in contact with the complainant through the witness No. 1 and expressed his desire to give dealership of LPG cylinders in the areas of Gauripur, Alomganj, Balojan, Kachok-hana, Purnia, Rupshi, etc, in the district of Dhubri. In course of time, an agreement was reached, on 10.09.1994, between the complainant and the accused appointing the complainant as a dealer of LPG cylinders. In terms of the agreement, so arrived at, accused took Rs.30,000/- as security deposit on 10.09.1994 and Rs.35,250/- as value of 30 numbers of empty cylinders subject to the condition that the money, so received, shall be refunded to the complainant within a year of the date of determination or cancellation or surrender of the dealership. Thereafter, the complainant, in order to obtain refilled cylinders, sent, on 10.10.1996, a sum of Rs.4,000/- in favour of the accused by demand draft. Since 10.10.1996, the accused has not sent refilled cylinder against the said sum of Rs.4,000/- despite requisition slip submitted, in this regard, to the accused. The failure of the accused to supply the cylinder, as mentioned hereinbefore, adversely affected the complainant's relationship with his customers. On stopping of refilling of the cylinders by the accused, in violation of the agreement, which had been arrived at by the parties concerned, on 10.09.1994, the complainant sent pleader's notices, dated 24.12.1999 and 14.07.2004, to the accused demanding refund of his money, but the accused never repaid the amount on one pretext or another, The accused has, thus, cheated the complainant, he has also committed criminal breach of trust and has made the complainant suffer loss. 2. 2. Having taken cognizance of offences, as mentioned hereinabove, the learned Court below has directed issuance of process against the accused-petitioner, which has been, as mentioned above, put to challenge by way of this application made under Section 482 Cr.P.C. 3. While considering the present application, made under Section 482 Cr.PC., it needs to be noted that the law, with regard to quashing of criminal complaint, is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 , wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561A 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 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, in R.P. Kapur (supra), 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 look into the contents of a complaint shows that the contents 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. Similarly, where an FIR does not disclose commission of an offence, the FIR has got to be quashed. 4. Similarly, where an FIR does not disclose commission of an offence, the FIR has got to be quashed. 4. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint disclose commission of offence, such a complaint cannot be, ordinarily, quashed nor can an FIR be, ordinarily, quashed if the FIR discloses commission of a cognizable offence. 5. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Supreme Court, in State of Haryana & Ors. Vs. Bhajanlal & Ors., reported in 1992 Supp (1) SCC 335, 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 Section 482 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 entirely, 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 of 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. (3) Where the uncontroverted allegations made in the FIR of 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 of the Code. (5) Where the allegations made 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 of the accused and with view to spite him due to private and personal private grudge. 6. In the case of Bhajanlal (supra), the Supreme Court gave a note of caution, on the powers of quashing of criminal proceedings, 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. (Emphasis is added) 7. (Emphasis is added) 7. 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 a First formation Report or a 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 entirely 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. 8. In other words, when the allegations, made in an FIR, disclose commission of a cognizable offence, such an FIR cannot, ordinarily, 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 FIR or the probability of the defence plea can be determined only by effective investigation or at the trial. 9. However, in Harshendra Kumar D, Vs. Rebatilata Kiley & Ors., reported in (2011) 3 SCC 351 , the Supreme Court has made it clear that it is not an absolute rule of law that the High Court, while exercising its jurisdiction under Section 482 CrPC, or, while exercising its revisional jurisdiction under Section 397 CrPC, cannot, under any circumstances, look into the nature of public document or such materials, which are beyond suspicion or doubt, in order to ascertain if the criminal prosecution should or should not be allowed to proceed. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. In fact, the Supreme Court has also made it clear, in Harshendra Kumar D. (supra), that no greater damage can be done to the reputation of a person than dragging him in a criminal case. The Supreme Court has, therefore, held, in Harshendra Kumar D. (supra), that the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of "director of the company, which, if looked into, would have made, it clear that the appellant's resignation from the post of director of the company was much before the cheques had been issued by the company. The relevant, observations, which appear, in this regard, at paragraph 25 and 26, in Harshendra Kumar D. (supra), read as under: 25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused, which are in the nature of public documents or the materials which are beyond suspension or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspension or doubt-placed by the accused the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial Court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. (Emphasis is supplied) 10. From the law laid down in Harshendra Kumar D. (supra), it becomes clear that when the High Court is approached for quashing of a criminal prosecution in exercise of its extraordinary jurisdiction under Section 482 CrPC, or in exercise of its revisional jurisdiction under Section 397 CrPC, the High Court has to bear in mind that criminal prosecution affects the liberty of a person and there can be no greater damage done to the reputation of a person than dragging him in a criminal case. There is, therefore, no absolute bar, on the High Court's power, to take into consideration any uncontroverted document, which may have come on record, for the purpose of arriving at a decision as to whether a criminal prosecution should or should not be allowed to continue and, if the Court, on the basis of any public or uncontroverted document, comes to the conclusion that allowing the criminal prosecution to proceed, in such a case, would amount to abuse of the process of the Court, the High Court has the duty to quash such a proceeding. 11. It is, no doubt, true that while exercising its inherent jurisdiction under Section 482 CrPC, or its revisional jurisdiction, under Section 397 CrPC. where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. where a complaint or FIR is sought to be quashed, it is not proper, on the part of the High Court, to consider the defence of the accused or enquire into the correctness or veracity of the accusations made against the accused. Nonetheless, in appropriate cases, if, in the face of the documents placed by the accused, which are beyond suspicion or doubt, the accusations against the accused cannot stand, it would be travesty of justice if the accused is asked to face trial, for, if it is so done, it would amount, to denial of justice and would be tantamount to preventing justice from being done. This would be nothing short of abuse of the process of the Court. 12. Coupled with the above, there is no doubt that an FIR or a complaint may be quashed if the same is found to be actuated by mala fide (See Hire Lai & Ors. Vs. State of Uttar Pradesh, reported in (2009) 11 SCC 89 ) or if the FIR or the complaint makes accusations, which are so absurd or inherently improbable that no reasonable man would accept the allegations, made in the FIR or the complaint, as the case may be, as true and/or in a case, where the FIR and/or the complaint, as the case may be, is lodged as a counterblast (See MN Ojha & Ors. Vs. Alok Kumar Srivastav & Ors, reported in (2009) 9 SCC 682 ). The FIR or a complaint may even be quashed, when the same is used as a weapon of harassment or persecution (See State of Karnataka Vs. L. Muniswamy, ( AIR 1977 SC 1489 ); but an FIR or a complaint shall be quashed, as held in Bhajanlal (supra), very sparingly and with great circumspection and that too, in the rarest of rare cases. 13. Before entering into the discussion as to whether the impugned order taking cognizance of offences aforementioned and directing issuance of process against the accused-petitioner is sustainable in law or not, one needs to point out the principal distinction between 'criminal breach of trust' and 'cheating'. DISTINCTION BETWEEN CRIMINAL BREACH OF TRUST AND CHEATING 14. 13. Before entering into the discussion as to whether the impugned order taking cognizance of offences aforementioned and directing issuance of process against the accused-petitioner is sustainable in law or not, one needs to point out the principal distinction between 'criminal breach of trust' and 'cheating'. DISTINCTION BETWEEN CRIMINAL BREACH OF TRUST AND CHEATING 14. In 'criminal breach of trust', the accused comes into possession of the property or acquires dominion over the property honestly and bona fide, but he develops dishonest intention subsequent to the taking possession of, or subsequent to having acquired the dominion over, the property and, having developed such dishonest intention, he dishonestly misappropriates or converts to his own use the property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do. 15. Thus, in 'criminal breach of trust', the intention of the accused cannot be dishonest or mala fide at the time, when he comes into possession of the property or comes to acquire dominion over the property; but, having come into possession of, or having acquired dominion over, the property, the accused develops dishonest intention and actuated by such mens rea, he converts to his own use the property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do. 16. Contrary to what happens in 'criminal breach of trust', the intention of the accused, in a case of 'cheating', is dishonest from the very commencement of the transaction. There is really no consent by the person, who is intentionally induced by deception to deliver the property or allow any person to retain the property or is intentionally induced, as a result of deception, to do or omit to do anything, which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 17. In short, thus, while in 'criminal breach of trust', the accused comes into possession of the property without dishonest intention and develops dishonest intention subsequent to his coming into possession of the property, the offence of cheating is one, wherein the accused has dishonest intention from the very commencement of the transaction. 18. What logically follows from the above discussion is that if a person is accused to have committed an offence, under Section 406 IPC, in relation to a transaction, he cannot, in one and the same breath, be said to have committed the offence, under Section 420 IPC, in relation to the same transaction. 19. In a case of cheating, as indicated above, the complaint must disclose adequate materials to show that the person, sought to be prosecuted as accused, had acted with fraudulent or dishonest intention. The complain, in the present case, discloses that the agreement was reached between the parties concerned on 10.09.1994. Did the complainant, pursuant to the agreement, so reached, receive supply of LPG cylinders? The answer to this momentous question is provided by the complainant's own notice, dated 13.07.2004, which he gave to the accused-petitioner. In this notice, the complainant clearly mentioned that he had purchased 30 numbers of empty cylinders @ Rs.1175/- per empty cylinder and deposited accordingly, with the accused-petitioner, a sum of Rs.35,250/- and, on submission of requisition, along with the cash memo, the accused-petitioner had, initially, sent cylinders for some months, but thereafter, the supply of cylinder was suddenly stopped. 20. When acting upon the agreement, in question, the complainant had already been supplied with refilled cylinders, it cannot be said, in the absence of any other allegation made in the complaint, that the accused, right from the inception of the transaction, had dishonest intention. Ordinarily, a document, which forms the basis of defence of an accused, cannot be relied upon to quash a complaint. However, there is no absolute bar in taking into account a document on which the defence of an accused rests, if the document is, otherwise admitted and/or genuine. 21. In the present case, it is not the case of the complainant that the notice, dated 13.07.2004, had not been issued on his instructions. In fact, the issuance of this notice finds mention in the complaint itself. 21. In the present case, it is not the case of the complainant that the notice, dated 13.07.2004, had not been issued on his instructions. In fact, the issuance of this notice finds mention in the complaint itself. This apart, suppression of the fact that the complainant had, pursuant to the agreement, dated 10.09.1994 deposited an amount of Rs.35,250/- and received, in consideration thereof, cylinders at the initial stage, clearly shows that the complaint, in question, is an admixture of half-truth and untruth and such a manipulated allegations made in a complaint, cannot be allowed to become foundation for prosecution of a person. If so permitted, it would amount to abuse of the process of the Court and cause serious miscarriage of duty. 22. It is also pertinent to note that even if the allegation of the complainant, that in return of a sum of Rs.4,000/-, no cylinder has been supplied to him, is true, this act, on the part of the accused, would not ipso facto make out a case for criminal breach of trust nor can the complaint, in question, be said to have made out a case of criminal mischief. The transaction between the parties concerned is civil transaction. Though there is no absolute bar to the prosecution of a person for commission of offence arising out of a civil contract, the tact remains that the contents of the complaint, when read as a whole, does not make out a case of commission of offence of cheating, criminal breach of trust and/or criminal mischief. In fact, the complainant has not even, in his complaint, alleged that the said sum of Rs.4,000/- has been dishonestly misappropriated by the accused inasmuch as what the complainant has alleged is merely that the accused has committed criminal breach of trust. Using legal phraseology in a complaint will not make a complaint sustainable in law unless allegations, disclosing commission of offence are present in the complaint. Every breach of contract cannot become the foundation for criminal prosecution and in the case at hand, even if there was breach of contract, the same, in the absence of anything else, cannot be allowed to be made the basis for prosecution of the present petitioner as accused. 23. Every breach of contract cannot become the foundation for criminal prosecution and in the case at hand, even if there was breach of contract, the same, in the absence of anything else, cannot be allowed to be made the basis for prosecution of the present petitioner as accused. 23. Because of what have been discussed and pointed out above, this Court does not find that the complaint, in question, discloses commission of any offence warranting taking of cognizance of offences aforementioned and/or issuance of process against the accused-petitioner as has been done in the present case and any reluctance, on the part of this Court, in stopping prosecution of the accused-petitioner, would be nothing, but abuse of the process of Court and cause serious miscarriage of justice. 24. In the result and for the reasons discussed above, this revision succeeds. The complaint, in question, is set aside and quashed and, in consequence thereof, the order, taking cognizance of the offences aforementioned and directing issuance of process, shall stand accordingly set aside and quashed. 25. With the above observations and directions, this revision petition shall stand disposed of. Send back the LCR.