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2013 DIGILAW 393 (JHR)

Champa Devi v. State of Jharkhand

2013-03-19

R.R.PRASAD

body2013
ORDER This application has been filed for quashing of the order dated 6.11.2012 passed by the then Chief Judicial Magistrate, Dhanbad in Dhanbad (Bank More) P.S. Case No. 104 of 2012 whereby and whereunder cognizance of the offences punishable under Sections 406, 420, 506/34 of the Indian Penal Code has been taken against the petitioners. 2. A piece of land measuring an area of 73 decimals situated at Dhanbad belonging to the petitioners was mortgaged with the United Bank of India by the petitioners' company known as M/s World Metal Movers. Due to non-payment of the loan advanced in favour of the said company, the Bank moved to Debt Recovery Tribunal for recovery of the outstanding amount due to be paid by the Company. The property was to be auction sold. At that point of time, the petitioners, who were under financial constraint, approached to the opposite party no. 2 and offered the said piece of land for its development on a condition of payment of Rs. 55 lacs to the petitioners so that payment be made to the Bank and the property be made free from encumbrances. The opposite party no. 2 (complainant) accepted the offer and paid the said amount. Thereupon, the parties entered into a development agreement on 8.8.2007. After execution of the development agreement, possession of the land was handed over to the complainant on 3.4.2008, whereupon construction got started, By the passage of time when the complainant did invest a sum of Rs. 5,21,59,889/-, dispute arose in between the parties. According to the development agreement, original deed pertaining to land was required to be handed over to the opposite party No. 2 for the purpose of putting the property under mortgage so that opposite party no. 2 may get loan from financial institution for completion of the project but the petitioners in spite of repeated request, did not hand over the documents which hampered the progress of the construction work. The dispute resulted into an appointment of Arbitrator. While the matter was pending before the Arbitrator, the petitioners did not only revoke the power of attorney but also cancelled the development agreement and the complainant was asked to hand over the possession of the land. After receiving a letter to that effect when the complainant did approach to the petitioner no. While the matter was pending before the Arbitrator, the petitioners did not only revoke the power of attorney but also cancelled the development agreement and the complainant was asked to hand over the possession of the land. After receiving a letter to that effect when the complainant did approach to the petitioner no. 2 and raised grievance that he has been cheated, he was threatened with dire consequence. 3. Thereupon a complaint bearing C.P. Case No. 154 of 2012 was filed which was sent before the concerned police station for its institution and investigation. Accordingly, Dhanbad (Bank More) P.S. Case No. 104 of 2012 was registered under Sections 406, 420, 506/34 of the Indian Penal Code. 4. After the case was instituted, the company namely, B.N. Hotels Pvt. Ltd. and the petitioner no. 2 moved to this Court vide W.P.(Cr.) No. 49 of 2012 for quashing of the F.I.R. 5. The ground which had been taken was that accepting the entire allegation to be true, no case is made out of the offences under which case has been registered and thereby the petitioners cannot be fastened with any criminal liability, though there may be civil liability as it is a mere case of breach of promise. However, that plea was not accepted by this Court, as a result of which said writ application was dismissed. 6. It be stated that meanwhile the dispute which had cropped up in between the parties was referred to an Arbitrator whereby an award was given in favour of the complainant. 7. It further appears that after the writ application was dismissed by this Court, petitioner no. 2 moved to the Hon’ble Supreme Court, vide Special Leave to Appeal (Cr.) No.8563 of 2012. When the matter was taken up by the Hon’ble Supreme Court, petitioner no. 2 and the Company agreed to deposit Rs. 6 crore in the arbitration proceeding for getting interim protection but when the said amount was not deposited, the SLR was dismissed. Thereafter an application was filed for modification of the order whereunder case had been dismissed but that was also rejected. 8. Meanwhile, charge-sheet was submitted, upon which cognizance of the offence was taken which is under challenge. 9. Mr. Thereafter an application was filed for modification of the order whereunder case had been dismissed but that was also rejected. 8. Meanwhile, charge-sheet was submitted, upon which cognizance of the offence was taken which is under challenge. 9. Mr. Tiwary, learned counsel appearing for the petitioners submitted that even if all the averments made in the complaint are taken to be correct, no case is made out either under Section 420 or under Section 406 of the Indian Penal Code as the petitioners had never been alleged to have induced the complainant fraudulently or dishonestly to enter into an agreement and to invest money over the construction of the building, rather simple case of the complainant is that the petitioners failed to honour one of the terms of the agreement whereby petitioners have been alleged to have refused to hand over the original deed of conveyance relating to the property in question which can be said to be a mere breach of agreement for which appropriate remedy for the opposite party no. 2 was to file a civil suit for enforcing civil liability but in no case, the petitioners can be said to have committed any offence of criminal breach of trust or cheating and if the petitioners, in the circumstances stated above, are allowed to face rigour of the trial, it would amount abuse of the process of the court. 10. Learned counsel in support of his submission has referred to number of decisions rendered in cases Murari Lal Gupta vs. Gopi Singh [(2006)2 SCC (Cri.) 430], Thermax Limited and Others vs. K.M. Johny and Others [(2011)13 SCC 4012], Indium India Telecom Limited vs. Motorola Incorporated and Others [ (2011)1 SCC 74 ]. 11. As against this, Mr. Dilip Jerath, learned counsel appearing for the opposite party no. 2 submitted that earlier the petitioner no. 2 had raised the same issue when he alongwith the Company had moved to this Court in a writ application bearing W.P.(Cr.) No. 49 of 2012 for quashing of the FIR but this Court after taking notice of the fact as well as law did record that submissions made on behalf of the petitioners that the allegation made in the FIR do not constitute criminal offence is not tenable. 12. 12. In such situation, the petitioners' now cannot be allowed to invoke inherent power of the High Court to get a order passed in his favour as any such order if passed would amount to review of the order passed by a Bench of a co-ordinate jurisdiction of this Court that too when the earlier order has attained its finality. 13. In support of his submissions decisions rendered in the cases of Dr. Subhadip Laskar vs. Dr. Sanjukta Laskar (Nee Sarkar) and Another [2010(2) East CLC. 292 (Cal.)], Sunita Jain vs. Pawan Kumar Jain and Others [ (2008)2 SCC 705 ] " [: 2008(2) JLJR (SC)122] and Sunil Kumar vs. State of Haryana [ (2012)5 SCC 398 ] [: 2012(2) JLJR (SC)278] were referred to. 14. Thus, the question what does arise for consideration is that whether the finding given by this Court that allegations made in the FIR prima facie do constitute offences under which FIR was registered can be reviewed by a Bench of co-ordinate jurisdiction in exercise of power under Section 482 of the Code of Criminal Procedure under the teeth of the provision as contained in Section 362 of the Code of Criminal Procedure? 15. Mr. Tiwary, learned counsel appearing for the petitioners. submitted that it is true that the court earlier has given finding when the FIR had .itself been challenged in the writ application that the allegations made in the FIR do constitute offences under which it was lodged but that finding had been given before the case was investigated upon and the charge-sheet was submitted and therefore, that order does not deter this Court to give finding when at this stage, the order taking cognizance has been challenged, particularly when the court while disposing of the writ application had given liberty to the petitioners to raise relevant issues at an appropriate stage before an appropriate court. 16. In this regard it was further submitted that it has never been alleged in the FIR that the complainant entered into a development agreement and invested money on being induced fraudulently or dishonestly which fact is sufficient to hold that no offence of cheating or criminal breach of trust is made out. 17. 16. In this regard it was further submitted that it has never been alleged in the FIR that the complainant entered into a development agreement and invested money on being induced fraudulently or dishonestly which fact is sufficient to hold that no offence of cheating or criminal breach of trust is made out. 17. It has been further stated that crux of the allegation is that in spite of entering into development agreement wherein one of the clauses is that the petitioners would hand over the deed of conveyance to the complainant to carry out work relating to construction which deed of conveyance, according to allegation, was not given but that allegation amounts to mere breach of contract and nothing more. 18. It does appear that all those pleas had been taken earlier while the petitioner no. 2 had moved to this Court in a writ application whereby FIR had been challenged but this Court after having regard of the allegations and the various decisions of the Hon'ble Supreme Court particularly a decision rendered in a case of Telecom Limited vs. Motorola Incorporated and Others (supra) did record finding which is hereunder:- "The facts referred to above appearing in the complaint prima facie attracts the ingredients of cheating and therefore, the submission that contention made in the FIR does not constitute criminal offence, is not tenable." 19. Thereafter, the petitioners being aggrieved with that order moved to the Hon'ble Supreme Court and filed Special Leave to Appeal (Cr.) 8563 of 2012. By that time the Arbitrator appointed had given an award and the other side seems to have agitated about non-payment of the amount of the award. When this matter was agitated before the Hon'ble Supreme Court, petitioner no. 2 and the Company agreed to deposit Rs. 6 crores in the Arbitration proceeding for getting interim protection but when the said amount was not deposited, SLP was dismissed. Thereafter an application was filed for modification of the order wherein case had been dismissed but that was also rejected. 20. Thereafter the police after investigating the case submitted charge-sheet, upon which cognizance of the offence punishable under Sections 406, 420, 506/34 was taken which is under challenge. 21. Thereafter an application was filed for modification of the order wherein case had been dismissed but that was also rejected. 20. Thereafter the police after investigating the case submitted charge-sheet, upon which cognizance of the offence punishable under Sections 406, 420, 506/34 was taken which is under challenge. 21. In the aforesaid circumstances, the submission which has been advanced on behalf of the petitioners if it is accepted, that would amount review of the finding given earlier by a Bench of coordinate jurisdiction or would amount its recall. 22. In this regard. I may refer to a provision as contained in Section 362 of the Code which reads as follows:- “362. Court not to alter judgment. - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 23. The provision makes it clear that a court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. 24. On the other hand, it has been well settled proposition that the High Court should exercise inherent power under Section 482 of the Code of Criminal Procedure sparingly in rarest of the rare cases only on the following circumstances:(i) to give effect to any order under the Code, (ii) to prevent abuse of the process of the court, (iii) to otherwise secure the ends of justice. 25. Obviously, the petitioners are seeking invocation of inherent power of the Court as according to them, there would be abuse of the process of court if the petitioners are allowed to face rigour of the trial. 26. But I am afraid that the petitioners would succeed in getting the inherent power to be invoked when finding of the fact has been recorded by the court earlier. 27. More or less, similar issue had fell for consideration before the Hon'ble Supreme Court in a case of Sunita Jain vs. Pawan Kumar Jain and Others (supra) wherein when charges were framed against the respondent nos. 1 to 3 as well as other accused persons, that order was challenged before the High Court. The High Court uphold the order of framing of charge against the respondents. 1 to 3 as well as other accused persons, that order was challenged before the High Court. The High Court uphold the order of framing of charge against the respondents. That order was challenged before the Supreme Court which was dismissed. After the SLP was dismissed, respondent nos. 1 to 3 again moved to the High Court under Section 482 of the Code of Criminal Procedure for quashing of the criminal proceeding. That prayer was allowed by the High Court by holding that the case in hand was fit one to exercise inherent power under Section 482 of the Code of Criminal Procedure as court of law cannot be expected to remain silent spectator and cannot be made a tool of gratifying personal vengeance of any party. That order was challenged before the Hon'ble Supreme Court. The Hon’ble Supreme Court after taking notice of its earlier various decisions and also relevant provision did observe as follows:- "The decision makes it clear that a court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a court, it becomes functus officio (ceases to have control over the case) and has not power to review, override, alter or interfere with it. No doubt the section starts with the words "save as otherwise provided by this Code". Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127. But in absence of express power, alteration or modification of judgment or order is not permissible. It is also well settled that power of review is not an inherent power and must be conferred on a court by a specific or express provision to that effect. (vide Patel Narshi Thakershi vs. Pradyumansinghji Arjusinghji). No power of review has been conferred by the Code on a criminal court and it cannot review an order passed or judgment pronouncement." 28. (vide Patel Narshi Thakershi vs. Pradyumansinghji Arjusinghji). No power of review has been conferred by the Code on a criminal court and it cannot review an order passed or judgment pronouncement." 28. It was further held that even if we may not go to the extent that the High Court ventured to sit over the order passed by this Court in quashing the proceedings, in our considered opinion, on the facts and in the circumstances of the case, the High Court was not justified in invoking Section 482 of the Code and in quashing prosecution against the respondents. 29. So far the instant case is concerned, it be recorded that an application under Section 482 of the Code of Criminal Procedure, according to the petitioners, has been filed in a changed situation as earlier the petitioners had moved when the FIR had been lodged and at this point of time when cognizance has been taken and that too upon liberty being granted and in such changed situation, according to the petitioners, one in view of the decision rendered in a case of Superintendent and Rememberancer of Legal Affairs, West Bengal vs. Mohan Singh and Others [ (1975)3 SCC 706 ] and also in a case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Shalla [ (2007)4 SCC 70 ] [ : 2007(2) JLJR (SC)56] can maintain its application under Section 482 of the Code of Criminal Procedure. 30. As I have already noted that the court earlier had recorded its finding given in paragraph 13 as quoted above. Having recorded such finding, liberty was granted in following terms:- "The petitioners are at liberty to raise relevant issues at an appropriate stage before the appropriate court for which liberty is granted and the observation with regard to the fact made by this Court shall not cause of any prejudice to any of the parties in course of trial." 31. Thus, it is obvious that whatever observation was made by this Court that was confined to the extent that finding given may not be prejudicial if the party raises those points during trial. No such observation is there to agitate the said issue before this Court. In such situation, the petitioners cannot derive any advantage of such observation when virtually order passed by this Court earlier is being sought to be reviewed or recalled. 32. No such observation is there to agitate the said issue before this Court. In such situation, the petitioners cannot derive any advantage of such observation when virtually order passed by this Court earlier is being sought to be reviewed or recalled. 32. It is true that at earlier occasion the petitioner no. 1 had not moved to this court but in view of the fact that finding given by this Court on the issue involved in this case has taken its finality, it would not be in the interest of justice to take contrary view in case of petitioner no. 1. 33. So far the" decision rendered in a are d Superintendent and Rememberancer of Legal Affairs, West Bengal vs. Mohan Singh and Others (supra) relied upon by the petitioners is concerned, that does not seems to be applicable in the facts and circumstances of the instant case. The petitioners who were being prosecuted under Section 304A of the Indian Penal Code had challenged their prosecution before the High Court. That application was rejected by the Court earlier after holding that "the points raised...........................depend on certain questions of fact which have to be ascertained on evidence by the Court of fact". When there was no progress in the trial for about one and half year, petitioners again moved an application for quashing of the proceeding before the High Court and the Court allowed the application and quashed the proceeding by holding that no prima facie case is made out and as such, any continuation of the proceeding would amount to abuse of the process of the court. That order was challenged before the Hon'ble Supreme Court where the plea was taken that by allowing the application, the Calcutta High Court has virtually reviewed its earlier order but that plea was not accepted. It was held that the present case is not one where the High Court was invited to revise or review an earlier order made by it in exercise of its revisional jurisdiction finally disposing of a criminal proceeding and by holding so, order passed by the Calcutta High Court was affirmed. It was held that the present case is not one where the High Court was invited to revise or review an earlier order made by it in exercise of its revisional jurisdiction finally disposing of a criminal proceeding and by holding so, order passed by the Calcutta High Court was affirmed. Thus; it is evident that the High Court had never given any finding earlier on any of the issues, rather the Court had earlier declined to interfere with the order impugned and under this situation the Hon'ble Supreme Court did hold that the subsequent application was never meant for review or recall of the earlier order. 34. So far other decision rendered in a case of S.M.S. Pharmaceuticals Ltd. VS. Neeta Bhalla [ (2007)4 SCC 70 ] [:2007(2) JLJR (SC) 56] (supra) is concerned, it appears that when a discharge application' of respondent' no. 1 was rejected by the trial court, it was challenged before the revisional court, who affirmed the order passed by the trial court and thereafter an application under Section 482 of the Code of Criminal Procedure was filed which was permitted to be withdrawn by the High Court giving liberty to the petitioner to avail the remedy if any, available to her in-law, Subsequently, another application was filed which was allowed by holding' that allegations contained in the complaint petition as against the respondent no. 1 are vague, indefinite and do not specify the requirement of law as contained in Section 141 of the Negotiable Instrument Act and as such, no case is made out for issuance of any summon against the respondent no.1. That order was challenged before the Hon'ble Supreme Court where the matter came up for consideration about the requirement of law for proceeding against the Director of the Company for their purported constructive liability. The matter was referred to a Larger Bench for deciding the issues posed thereunder. The issues which had been referred were decided and the matter was again sent before the Divisional Bench for determination on the merit. At that point of time, plea was taken that the High Court while allowing the application has virtually reviewed its earlier order. The matter was referred to a Larger Bench for deciding the issues posed thereunder. The issues which had been referred were decided and the matter was again sent before the Divisional Bench for determination on the merit. At that point of time, plea was taken that the High Court while allowing the application has virtually reviewed its earlier order. In support of the submission, a decision rendered in a case of Simrikhia vs. Dolley Mukherjee [ (1990)2 SCC 437 ] was referred to wherein it had been held by His Lordship as under:- "The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is dearly stated in Sooraj Devi vs. Pyare Lal that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore, clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not fined any compelling reasons to quash the proceedings at that stage." 35. However, Their Lordships did not find the case, referred to above, applicable as the High Court had given liberty to the respondent no. 1 to agitate the matter once again and the respondent no. 1 had taken recourse of that. Earlier the High Court had never given any conclusive finding on the issues and in such situation, Their Lordships did not accept the contention, that order being barred under Section 362 of the Code of Criminal Procedure is illegal. That plea was also not accepted as earlier this point had never been taken either before the High Court or even at earlier occasion before the Hon'ble Supreme Court. Thus, both the cases do not seem to be applicable in the facts and circumstances of the instant case as in the instant case finding had earlier been recorded. 36. That plea was also not accepted as earlier this point had never been taken either before the High Court or even at earlier occasion before the Hon'ble Supreme Court. Thus, both the cases do not seem to be applicable in the facts and circumstances of the instant case as in the instant case finding had earlier been recorded. 36. Having regard to the provision as stated above and also law laid down by the Hon'ble Supreme Court, it is held that the Code of Criminal Procedure does not authorize the High Court to review its judgment or order passed either in exercise of his appellate, revisional or original jurisdiction. Such power cannot be exercised under cloak of Section 482 of the Code of Criminal Procedure since the provision as contained in Section 362 of the Code of Criminal Procedure operates a bar for reviewing not only its judgment but also its final order except in cases of clerical or arithmetical errors. Therefore, exercise of power under Section 482 of the Code of Criminal Procedure to reopen or alter an order disposing of a petition on its merit is not legally permissible. 37. Accordingly, I do not find any merit in this application and hence, it is dismissed.