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2013 DIGILAW 292 (JK)

Gh. Rasool Ganai v. Gh. Mohd Mathangi

2013-05-10

JANAK RAJ KOTWAL

body2013
1. Petitioner has invoked jurisdiction of this Court under Sec. 561-A, Code of Criminal Procedure (for short `the Code'), to seek quashing of proceedings initiated against him by the Court of learned Judicial Magistrate, 1st Class, Charari Sharief, on a complaint, for offences under secs. 420 & 409 RPC, filed by the respondent. 2. Heard. I have perused the record. 3. Record on the trial Court file reveals that upon taking cognizance of the complaint, filed by the respondent on 24.01.2009, learned Magistrate seems to have recorded the statements of respondent and two witnesses appearing for him. However, order passed on that date shows that learned Magistrate without taking into consideration the allegations stated in the complaint or statements of complainant and witnesses, straightway proceeded to issue process against the petitioner. Case came to be adjourned repeatedly right up to the month of September, 2009. Thereafter, learned Magistrate gone into the process and issued non-bailable warrants against the petitioner to secure his presence in the Court. 4. Learned counsel for the petitioner would say that the parties were involved in the business of purchase and sale of dry fruits. Complaint discloses that the dispute arises out of the said business and the respondent has sought intervention of the Court for redressal of his grievance. The complaint does not disclose commission of any offence, much less, offence under secs. 420 or 409 RPC and redressal of business dispute could not have been sought by filing the complaint before the learned Magistrate. Learned counsel further submitted that learned Magistrate has fallen into an error, firstly, by taking cognizance of the complaint and secondly, by issuing process against the petitioner without even applying his mind as to whether prima facie case for proceeding against the petitioner was made out or not. 5. In reply, learned counsel for the respondent sought to project that the commission of offence punishable under Secs. 420 & 409 RPC is made out in the complaint, so learned Magistrate has made no error while taking cognizance of the complaint and issuing process against the petitioner. 6. On perusal of the complaint would reveal that petitioner (accused) had motivated the respondent to invest Rs. 2,40,000/- for starting walnuts business. Both of them made sale and purchase of walnuts satisfactorily. Petitioner, however, started playing tricks to shunt the respondent out of the business and grab the amount invested by him. 6. On perusal of the complaint would reveal that petitioner (accused) had motivated the respondent to invest Rs. 2,40,000/- for starting walnuts business. Both of them made sale and purchase of walnuts satisfactorily. Petitioner, however, started playing tricks to shunt the respondent out of the business and grab the amount invested by him. He requested the petitioner to return only the amount of Rs. 2,40,000/- invested by him and decided to surrender the profit. The petitioner, however, paid him Rs. 1,00,000/- only and owes with him Rs. 1,40,000/-. It is further alleged that business was started by them only with the money invested by him, whereas, petitioner while earning considerable profit has not paid him even a single penny. The petitioner, by his acts of deceiving and criminal breach of trust has caused financial loss to him and has also caused mental torture, harassment and has left him to face hardships. 7. A bare look of the complaint shows that the respondent had narrated before the Magistrate as to how the business was started by them and as to how the petitioner wanted to shunt him out of the business and did not paid him his share in the profit and even not returned the amount invested by him. Thus, this is a pure case of settlement of accounts, which could have done either by amicably settlement or by approaching a civil Court. The dispute from its very nature does not constitute commission of criminal offence, much less, commission of offence of deceiving or criminal breach of trust. Learned Magistrate, it would be seen, has acted without minimum application of mind while issuing process against the petitioner and going to the extent of issuing non-bailable warrants against him. What was required for the Magistrate to examine and consider the material, that is, complaint accompanied with documents and initial statements recorded by the Court and to record the findings as to whether prima facie case under secs. 420 and 409 RPC or any other offence was made out or not. Process could have been issued only, if prima facie case was found. To say the least, learned Magistrate has left much to be desired. 8. To conclude precisely, complaint filed by the respondent did not disclose commission of criminal offence, but rather discloses the business dispute calling for settlement of accounts between the parties. Process could have been issued only, if prima facie case was found. To say the least, learned Magistrate has left much to be desired. 8. To conclude precisely, complaint filed by the respondent did not disclose commission of criminal offence, but rather discloses the business dispute calling for settlement of accounts between the parties. Issuance of process against the petitioner without recording findings as regards existence of prima facie case was an act of irresponsibility by the learned Magistrate and contrary to law. 9. Viewed thus, this petition is allowed and the complaint filed by the respondent and proceedings conducted by the learned Magistrate are quashed. 10. Record of the trial Court be remitted back.