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2013 DIGILAW 761 (GAU)

Tazul Islam Hazarika v. State of Assam and Anr.

2013-11-01

NISHITENDU CHAUDHURY

body2013
Whether the materials produced by the accused person as a petitioner in a case praying for quashing of criminal proceeding under section 482, Cr.PC can be considered is the moot question to be decided in this revision petition. 2. One Ms. Ashma Begum as a complainant lodged a complaint before the learned Chief Judicial Magistrate, Sivasagar, against the present petitioner, namely, Taj Islam Hazarika. Upon perusal of the said complaint, the learned Chief Judicial Magistrate passed his endorsement dated 3.5.2012 referring the same to police and thereupon Sivasagar Police Station Case No. 241 of 2012 under sections 406/420, IPC was registered. As against the said FIR the present petitioner came before this court and made a prayer for quashing of the FIR. Although this court by order dated 2.8.2012 appeared to have stayed further proceeding of the said police case, yet police proceeded with the same and thereafter, submitted charge sheet on 10.9.2012. This development was brought to the notice of this court and thereupon the earlier quashing petition vide Criminal Petition No. 490 of 2012 was closed by this court on 21.1.2013. Under such circumstances, the petitioner has filed the present criminal petition seeking for quashment of the charge sheet dated 10.9.2012 submitted by police in Sivasagar, P.S. Case No. 241 of 2012 corresponding to G.R. Case No. 592 of 2012. 3. I have heard Mr. A. Alam, learned counsel for the petitioner as well as Mr. P. Bora, learned counsel for opposite party. I have also heard Mr. N. J. Dutta, learned Addl. Public Prosecutor, Assam, for opposite party No.1. 4. Before deciding this criminal petition it is necessary to state the summarized facts of the case as placed by the respective parties. In the complaint which was treated as a written ejahar, the opposite party No.2, being informant, Stated that she had purchased a Tavera Vehicle on finance from the HDFC Bank at on EMI of Rs 11,000. She continued paying the same till August 2008 but thereafter in view of sudden financial crisis looming over her family, she could not make payment of installment since September 2008 and as such desired to dispose of the vehicle The petitioner herein proposed to purchase the same and promised to repay the monthly installments of the bank. Thereupon, a written agreement between the parties was executed on 9.9.2008. Thereupon, a written agreement between the parties was executed on 9.9.2008. The informant states that she handed over the vehicle to the accused (petitioner herein) and believed that in terms of the aforesaid agreement he would be making payment to the bank. She further stated that she received a sum of Rs. 1,85,000 in cash from the accused but since the accused did not make payment to the bank she was informed by the office of the bank on 5.3.2012 that she should clear all the dues within a period of 7 days. According to the informant, she thereafter met the accused who promised her to make payment to the bank. In the first week of April 2012 the accused by making a telephonic call to her conveyed that he had already cleared all the loan of the HDFC bank in her name. The informant believed in the accused, but later on she came to know that the accused really did not make 'any payment' to the bank for which a criminal case was instituted by the bank in Calcutta wherein non-bailable warrant of arrest was issued by the Calcutta Metropolition Magistrate against the informant. With these facts, the informant made a prayer for registration of appropriate case against the accused for his arrest and for a trial after investigation. Along with the said ejahar a copy of the agreement dated 9.9.2008, the registration certificate of the vehicle No.AS-06/F-5034(Tavera) and a letter of the HDFC bank issued on 9.3.2012 were also annexed. 5. As stated above, the aforesaid FIR was impeached before this court in Criminal Petition No. 490 of 2012 and this court by order dated 2.8.2012 on consideration of the fact that the loan account has been closed already found, prima facie, case to interfere and accordingly, all further proceedings of the concerned police case were stayed. It is the case of the petitioner here that even after communication of the aforesaid stay order police at the behest of the informant proceeded with perfunctory investigation and ultimately submitted a charge sheet on 10.9.2012, opining that a prima facie case under section 406/420, IPC was made out against the petitioner. 6. The petitioner has filed photo copy of as many as 30 money receipts along with this application to show payment made to the HDFC Bank. 6. The petitioner has filed photo copy of as many as 30 money receipts along with this application to show payment made to the HDFC Bank. A clearance certificate dated 7.5.2012 issued by the said bank has also been filed before this court as Annexure 4 to this petition. The said annexure carries seal and signature of the SDJM, Sivasagar, which is suggestive of the fact that the document was produced before the said learned court. The Annexure 4 shows that total amount of Rs. 66,818 stood paid to the bank, out of which principal outstanding is Rs. 33,816, late payment penalty charges is Rs. 22,050, pre-payment purchase on outstanding principal is Rs. 10,952 and, thus, the total amount is Rs. 66,818. By annexing a copy of the ledger sheet as Annexure 9 of this application, the petitioner shows that the aforesaid amount of Rs. 66,818 on being paid to the bank the loan had been closed. This page also carries seal and signature of learned SDJM, Sivasagar, and as such it is clear it was also available on being produced before the learned court. The petitioner has annexed a copy of the insurance policy as Annexure 10 of the petition. On totality all of these documents, i.e., it the payment receipts, the copy of ledger sheet of the concerned loan account and the loan clearance certificate issued by the bank, prima facie, it shows that the payment to the bank has really taken place and the same has been done on 7.5.2011. The complaint was lodged by the informant on 30.4.2011 and the same received the consideration of the learned CJM, Sivasagar, on 3.5.2012 whereupon the case was referred to police. So when the matter was under consideration of police on 7.5.2012, the petitioner had already made payment to the bank. The payment of Rs. 1,85,000 to the informant by the petitioner is acknowledged by her by giving receipt on a revenue stamp and the said receipt was duly signed by her. This is available at Annexure 6 of this application. The petitioner in paragraph 13 of his complaint has stated about the payment of the Rs. 1,85,000 to the informant and as to payment of 30 installments to the bank in various dates in paragraph 32 of the petition. All these payment receipts are annexed as Annexure 5 series of this application. The petitioner in paragraph 13 of his complaint has stated about the payment of the Rs. 1,85,000 to the informant and as to payment of 30 installments to the bank in various dates in paragraph 32 of the petition. All these payment receipts are annexed as Annexure 5 series of this application. In paragraph 10 of this application the petitioner has specifically stated that as per the terms of the agreement entire balance was cleared and the last payment was made on 5.5.2012 by paying the last installment of Rs. 66,820 in respect of loan account No. 27000446 standing in the name of Ms. Ashma Begum in connection with vehicle No. ASS-06/F-5034 (Tavera). By citing all these documents the petitioner has further claimed that as per the term of the agreement which is annexed as Annexure 2 to this application, the informant is duty bound to execute appropriate document in favour of the accused for transferring its title and accordingly, she had really signed Form No. 29 which is a notice of transfer of vehicle in favour of the petitioner and Form No. 30, the report on transfer of ownership of the motor vehicle. The said 2 documents are available at Annexures 7 and 8 of the petition and it is apparent on the face of it that the informant had duly put her signature there on. It is the case of the petitioner that once the payment has been cleared and even notice of transfer of vehicle was signed by the informant, she cannot deprive the petitioner from getting the benefit of the vehicle by lodging an ejahar on false averment of fact. According to the learned counsel for the petitioner on the face of the aforesaid documents any person of reasonable prudence would be satisfied that no prima facie case under section 426/420, IPC is made out against the petitioner and merely on perusal of these documents the charge sheet, which does not mention these documents, should be quashed. The learned counsel for the petitioner has further stated that pursuant to the filing of the charge sheet the informant claimed possession of the vehicle by making seizure of the same and accordingly, the vehicle has already been taken from the custody of the petitioner and the same is lying in possession of the informant. The learned counsel for the petitioner has further stated that pursuant to the filing of the charge sheet the informant claimed possession of the vehicle by making seizure of the same and accordingly, the vehicle has already been taken from the custody of the petitioner and the same is lying in possession of the informant. Fact remains that the informant has not only received the consideration in full partly and partly by liquidation of her bank liability, she has also taken back the vehicle in her custody and in the process the accused petitioner has been put to serious prejudice. 7. Mr. P. Bora, learned counsel for the opposite party No. 2, has taken objection to the submission of the learned counsel for the petitioner on the ground that the said documents having been produced to this court by the accused cannot be considered for the purpose of quashing of the charge sheet. According to the learned counsel for the opposite party No.2 praying for quashment of charge sheet has to be decided on the basis of the charge sheet along with the materials annexed with it only and not otherwise. Once the said documents are not considered, the allegations in the ejahar as well as in the charge sheet make it clear that a prima facie case under section 406/420, IPC has been made out and as such the prayer for quashment of the charge sheet cannot be allowed. 8. On the basis of the rival contentions now the question arises before this court as to whether for the purpose of deciding a petition praying for quashment of charge sheet, documents furnished by the accused can at all be taken into consideration. It appears that in the case of State of M.P. v. Awadh Kishore Gupta, (2004)1 SCC 691 , the hon'ble Supreme Court did not find favour with consideration of such materials. The hon'ble Supreme Court held that if the investigation is not complete it is impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. The hon'ble Supreme Court held that the High Court while deciding an application under section 482, Cr.PC cannot act like a trial court. The hon'ble Supreme Court held that if the investigation is not complete it is impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. The hon'ble Supreme Court held that the High Court while deciding an application under section 482, Cr.PC cannot act like a trial court. But subsequently in the case of Harshendra Kumar D. v. Rebatilata Koley and Others, (2011) 3 SCC 351 the hon'ble Supreme Court after consideration of the aforesaid case of Awadh Kishore Gupta (supra) has held to the contrary. Paragraphs 25 and 26 of the said judgment may be relevant for the purpose of the question arising in this case and the same are quoted below : “……………………………………………………………………………………………………………………………………… 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 suspicion 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 enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents -- which are beyond suspicion 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. No greater damage can be done to the reputation of a person than dragging him in a criminal case. 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." 9. It is clear from above that the hon'ble Supreme Court after consideration of the case of Awadh Kishore Gupta (supra) did not accept the contention that the High Court under section 482 of the Code cannot look into the materials relied upon by the accused. The hon'ble Supreme Court felt that while exercising its jurisdiction under section 482 of the Code or revisional jurisdiction under section 397 of the Code the documents placed by the accused which are beyond suspicion or doubt cannot (sic) be taken into consideration if on or before perusal of the same it appears that continuance of the proceeding would be travesty of justice. The hon'ble Supreme Court has also felt that no greater damage can be done to the reputation to a person than dragging him in a criminal case unnecessarily. It is on the basis of all these considerations, the hon'ble Supreme Court found fault with the hon'ble Calcutta High Court and accordingly, the criminal appeal in the case of Harshendra Kumar D. (supra) was allowed. The ratio of the aforesaid decision of the hon'ble Supreme Court has resulted in a watershed in regard to the scope and limitation of the High Court in exercising power under section 482, Cr.PC. After all, the anxiety of this court is to arrive at the truth and there cannot be any doubt that the quest of count for truth cannot be derailed by rules of hyper technicality. Once the High Court is satisfied after considering all the materials placed before it that continuance of further proceeding before a criminal court would be injustice, the power under section 482 can definitely be exercised. However, in so doing the materials so produced have to be beyond or above all doubts or suspicions. Once the High Court is satisfied after considering all the materials placed before it that continuance of further proceeding before a criminal court would be injustice, the power under section 482 can definitely be exercised. However, in so doing the materials so produced have to be beyond or above all doubts or suspicions. If the documents are not public documents ana if the prosecution side raises reasonable doubt as to authenticity or veracity of the contents thereof, the High Court may not proceed or rely on those documents. In short, the documents to be relied on either have to be public documents or documents of such nature which is not disputed by any one. 10. It has been noted above that in various paragraphs starting from paragraph 10 of this criminal petition, the accused/petitioner has specifically claimed that he had paid Rs. 1,85,000 in cash to the informant and a duly acknowledged receipt thereof has been produced as Annexure 4 to this application. Similarly, 30 installments of money paid to the bank and payment of loans/installment, leading to closure of the loan account is also supported by the documents and the said documents are available on record. It appears from the ledger sheet of the bank as well as a clearance certificate bearing seal and signature of the learned trial court indicate that the documents were placed before the said court as well. While specific statements on oath have been made by the accused petitioner while presenting these documents as annexures to this application, the opposite party No.2 has neither denied the veracity of the statements by filing an affidavit-in-opposition nor has the learned counsel said in course of argument that the documents are forged or that the statements are wrong. It is important to note here that not a single submission has been made by the learned counsel for the opposite party No.2, challenging the veracity of the statements made in the criminal petition. The documents, namely, the clearance certificate and the bank ledger book as referred to above are not shrouded by the suspicion. It is also not case of the opposite party No.2 that bank loan account has not been closed or that the informant opposite party No.2 did not receive the sum of Rs. 1,85,000 in cash. The documents, namely, the clearance certificate and the bank ledger book as referred to above are not shrouded by the suspicion. It is also not case of the opposite party No.2 that bank loan account has not been closed or that the informant opposite party No.2 did not receive the sum of Rs. 1,85,000 in cash. Moreover, the agreement for sale of the vehicle has been brought on record before the learned Magistrate by none other then the opposite party No.2 and on perusal of the said agreement which is Annexure 2 to this application. It contains the terms and condition and clause 3 of the terms and conditions shows that second party, i.e., opposite party No.2 herein received a sum of Rs. 1,85,000 and only thing to be done by the petitioner/accused is to make full payment of the installments to the bank. In condition No.6 of the same agreement it is provided that after final payment to the bank, the opposite party No.2 would be duty bound to execute the necessary document for effective transfer of the vehicle in favour of the accused petitioner. It is unfortunate to note here that although the accused petitioner has already performed his part of the contract yet by taking recourse to proceedings before the criminal court, the opposite party No.2 has managed to get back the possession of the vehicle, not to speak of honouring clause 6 of the agreement referred to above. In that view of the matter, by operation of Term 7 of the agreement, action should have been taken against the opposite party No.2. It is inequitous to the extreme to find that the accused petitioner has not only mode payments in full towards the agreed consideration price of the vehicle but he has been deprived from the possession of the vehicle by granting pendente life custody in favour of the opposite party No.2 by order of the learned trial magistrate under section 451, Cr.PC. However, there is a condition in the said order that as and when necessary the opposite party No.2 shall produce the vehicle before the learned Magistrate, Sivasagar. 11. In view of what has been stated above. However, there is a condition in the said order that as and when necessary the opposite party No.2 shall produce the vehicle before the learned Magistrate, Sivasagar. 11. In view of what has been stated above. I find and hold that once the accused petitioner has made all payments, required as per agreement dated 9.9.2008 (Annexure 2) to this application, the charge sheet submitted by police against the petitioner on 10.9.2012 is not only baseless, but the same also has the potential of causing abuse of the process of the court by dragging the petitioner to criminal court unnecessarily. Accordingly, the charge sheet dated 10.9.2012 submitted in G.R. Case No. 592 of 2012 is liable to be quashed and it is accordingly quashed. 12. Since the quashment of the charge sheet would put an end to the G.R. Case No. 592 of 2012 of the court of learned CJM, Sivasagar, the order of interim custody in favour of the opposite party No.2 is also liable to be quashed and it is accordingly, quashed. 13. The learned CJM. Sivasagar, shall take appropriate steps for restoring the vehicle to the petitioner from whom the same was seized by an order dated 3.5.2012 passed by the said learned court. 14. The criminal petition is allowed. No order as to cost.