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2014 DIGILAW 844 (HP)

T. T. Siddarth v. State of Himachal Pradesh

2014-07-04

TARLOK SINGH CHAUHAN

body2014
Judgment : Per Justice Tarlok Singh Chauhan, Judge: The petitioners are the accused in FIR No.119/2013, dated 19.6.2013 registered at Police Station Nalagarh, District Solan, H.P., which reads thus:- “To the Deputy Superintendent of Police Nalagarh Distt. Solan (HP) Subject:- Complaint against Sh. T.T. Sidharth, s/o Sh. T.T. Vardarajan Residing at No.2 Bot Club 1st Avenue R.A. Purran Chennai and also resident of No.: 10/5, Roval Enclave Besant Avenue Adyar, Chennai- 600020 and Ms. Deepa Vardarajan, w/o Sh. Vijay Siriniwashan resident at Sowcar Golden apartment, c- 4.29, Cenotaph road Second lane, Teynampet, Chennai. For committing forgery and cheating. Sir, the complainant submits as under. 1. that the complainant and accused T.T. Sidharth, was, running a partnership firm under name and style M/s Sigma Converters from 17th day of March 2010. 2. That the complainant and accused T.T. Sidharth carried the business of Partnership firm till 20th January 2011, and the ratio of profit and loss sharing was 20% and 80% respectively. 3. That in the month of Jan 2011, the accused T.T. Sidharth, contacted the complainant and got him ready for retirement from the business of partnership under the pretext that he is going to sell his business of multination company along with goodwill and he has represented to the buying company that entire business belongs to his family and none outsider is having interest and keeping in view the good relations the complainant got ready to cooperate with him, and on assurance given by the accused T.T. Sidharth without receiving any amount from the accused T.T. Sidharth, and firm the complainant signed deed of admission cum retirement of partners, dated 20th day of January 2011. 4. That thereupon the accused T.T. Sidharth, inducted accused T.T. Sidharth Ms. Deepa Vardarajan to avoid the liability of the complainant started showing themselves, the only partners of the firm for the year 2010-11 in spite of the fact that the complainant was the partners of the firm up to 20th January 2011. The accused T.T. Sidharth and Ms. Sidharth and Ms. Deepa Vardarajan conspired with each other to cause wrongful loss to the complainant and gain for themselves and forged false balance sheet and filed false and frivolous account statements before the sale tax department. 5. The accused T.T. Sidharth and Ms. Sidharth and Ms. Deepa Vardarajan conspired with each other to cause wrongful loss to the complainant and gain for themselves and forged false balance sheet and filed false and frivolous account statements before the sale tax department. 5. That accused T.T. Sidharth has also criminally misappropriated the money, payable to the complainant on his retirement as accused by him, by keeping the money with him and has caused financial loss to the complainant. 6. That the accused persons have committed forgery, cheating and criminal misappropriation of money of the complainant with common intention, with the motive to cause wrongful gain for themselves and wrongful loss to the complainant. 7. That the complainant and accused T.T. Sidharth, were carrying on their business and deed of admission cum retirement of partners dated 20.1.2011, where made at Nalagarh and wrong account statements/balance sheet was filed before the authorities at Nalagarh. It is therefore requested that action against the accused persons may be taken and they be punished as per provisions of law. Submitted by Sd/- Sumeet Singal, s/o Sh. Ghanshayam Singal residing at the Fort, Nalagarh, Tehsil Nalagarh, Distt. Solan, H.P., Mob. 9810- 38433. (Complainant) dated 19.6.2013.” 2. They seek quashing of the aforesaid FIR on the ground that even if the complete contents of the FIR are taken as a whole, even then no offence is made out, much less the offence alleged. They further contend that even if the complaint is accepted in its entirety, it does not make out a case under Section 420 of the Indian Penal Code, which can be investigated by the police. It is further argued that even if it is accepted that false balance sheets and accounts statements had been filed before the Income Tax Authorities, even then no offence under Section 420 of the Indian Penal Code is made out as there has been no wilful misrepresentation, which is the mandate of Section 420 of the Indian Penal Code. It is also claimed that this is a dispute between the partners essentially of a civil nature and, therefore, no criminal proceedings can be initiated on the basis of such allegations. 3. It is also claimed that this is a dispute between the partners essentially of a civil nature and, therefore, no criminal proceedings can be initiated on the basis of such allegations. 3. On the other hand, respondent-State has contested the claim so put-forth by the petitioners on the ground that as per the accounts statement for the year 2010-2011 filed before the Income Tax Department, total balance/profit has been shown at Rs.99,61,683/-. Share of respondent No.3 (complainant) was to the extent of 20%. But, in the account statement for the year 2010-11, he has not been shown as a partner. Instead of respondent No.3, petitioner, Deepa V. (in Cr.MMO No.69 of 2014) has been shown as partner to the extent of 50%, whereas she became partner only on 20.1.2011. Therefore, the petitioners have filed the false accounts statements in connivance with each other. 4. Respondent No.3, who is the complainant, has filed his reply, wherein it has been said that the petitioners have not approached this Court with clean hands and are guilty of suppressing material facts. It is also alleged that the veracity and authenticity of the various documents annexed by the petitioners, in this case, are yet to be verified, ascertained and proved, which can only be done during the enquiry, investigation and then at the time of trial of the case and at this stage, the petitioners cannot be permitted to scuttle the prosecution at the threshold. It is claimed that the petitioners, who are brother and sister, have cheated respondent No.3 by forging as well as manipulating documents and, therefore, have prima facie committed the offence punishable under Section 420 read with Section 34 of the Indian Penal Code. It is claimed that in Annexure P-1, which is deed of partnership dated 17.3.2010, the complainant has been shown as the partner to the extent of 20% while in income tax returns, it is petitioner Deepa V., who has been shown as partner in place of respondent No.3 that too, to the extent of 50%. It is submitted that in the income tax returns for the assessment year 2011-12, partnership firm, M/s. Sigma Converters had earned profits to the tune of Rs.99,61,684/-. 5. I have heard learned counsel on both sides and also gone through the record carefully and minutely. 6. It is submitted that in the income tax returns for the assessment year 2011-12, partnership firm, M/s. Sigma Converters had earned profits to the tune of Rs.99,61,684/-. 5. I have heard learned counsel on both sides and also gone through the record carefully and minutely. 6. Learned counsel for the petitioners, at the outset, would argue that the police had no jurisdiction or authority to register the FIR, because respondent No.3 preferred a complaint under Section 156(3) Cr.P.C. before the court of learned Judicial Magistrate, 1st Class, Nalagarh, District Solan on 24.5.2013, the contents whereof were verbatim the same as in the present FIR. This complaint was dismissed by a speaking order dated 5.6.2013, which reads as under:- “Office report seen. It be registered. Heard. The allegations set-forth in the complaint against the accused persons in no manner reveal commission of a cognizable case rather the dispute inter se the parties is of a civil nature and if it being so no direction deserves to be issued to Officer-in-Charge Police Station, Nalagarh within the ambit of Section 156(3) Cr.P.C. for registration of the case against the accused persons. The direction for registration of the case under Section 156(3) Cr.P.C. can only be issued, if the allegations reveal commission of a cognizable case. The allegations set forth in the complaint against the accused persons even do not reveal the commission of non-cognizable case, what to talk of a cognizable case. Consequently application is dismissed. It be considered to the record room.” 7. On the strength of the aforesaid order, it is contended that the investigating agency had no authority whatsoever to sit over the judgment passed by the learned Judicial Magistrate, 1st Class, Nalagarh. I do not find any force in the submission. It is well settled legal position that the police has statutory right to investigate into the circumstances of any alleged cognizable offence and this statutory power of investigation cannot be interfered with by the Court unless it is found that the allegation does not disclose commission of cognizable offence or the power of investigation is being exercised by the police mala fidely. The power of the police under Chapter XII of the Cr. P. C. cannot be whittled away even after rejection of the application by the Magistrate for directing the police to investigate the offence. The power of the police under Chapter XII of the Cr. P. C. cannot be whittled away even after rejection of the application by the Magistrate for directing the police to investigate the offence. Once the information relating to the commission of cognizable offence is received it is within the province of the police to investigate and submit report under Section 173 Cr. P. C. The Hon'ble Apex Court in the case of S. N. Sharma v. Bipen Kumar Tiwari and others, AIR 1970 SC 786 : (1970 Cri LJ 764) held that the power of police to investigate has been made independent of any control by the Magistrate. Therefore, mere fact that the application of respondent No. 3 for directing the police to investigate has been rejected by the Magistrate, cannot be a ground for quashing the FIR if it discloses commission of cognizable offence. Learned counsel for the petitioners could not point out any provision in the Cr. P. C. nor cited any authority before me providing that in the event of rejection of application under Section 156(3) Cr. P. C. the police has no authority or jurisdiction to investigate on receipt of information of commission of cognizable offence. Investigation of cognizable offence is primary duty of the police and, therefore, regardless of the order of the Magistrate refusing to exercise his discretion directing the police to investigate any cognizable offence under Section 156(3) Cr. P. C., the police has ample power to investigate into a cognizable offence as soon as the information of commission of cognizable offence is received and thereafter submit report under Section 173(2) Cr. P. C. 8. Learned counsel for the petitioners would then contend that the allegations in the FIR, if taken on the face value, do not disclose the commission of any offence whatsoever and at best, it can be said to be a civil liability, therefore, the same ought to be quashed. 9. I find no merit in this argument. The FIR does contain averments regarding fraudulent conduct of the petitioners so as to attract the applicability of Section 420 of the Indian Penal Code. It needs to be clarified at this stage that this court is not required to have hypertechnical approach and such an endeavour can only be justified during a trial. The FIR does contain averments regarding fraudulent conduct of the petitioners so as to attract the applicability of Section 420 of the Indian Penal Code. It needs to be clarified at this stage that this court is not required to have hypertechnical approach and such an endeavour can only be justified during a trial. At any rate, it is too premature at this stage for this Court to step in and stall the investigation by declaring that it is a civil transaction, wherein no semblance of criminal offence is involved. The FIR definitely discloses criminal overtones. This court, at the preliminary stage, would not be justified in embarking upon an inquiry and quashing proceedings. A given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This was so held by the three Judges’ decision of the Hon’ble Supreme Court in Vijayander Kumar and others vs. State of Rajasthan and another, (2014) 3 Supreme Court Cases 389. 9. It cannot be disputed that this Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani vs. Janak C. Mehta, (2009) 1 SCC 516, is attracted, which are as under:- “(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” 10 The Hon’ble Supreme Court in Indian Oil Corpn. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” 10 The Hon’ble Supreme Court in Indian Oil Corpn. v. NEPC India Ltd. [ 2006 (6) SCC 736 ], at page 747 has laid down the principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings:- (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not." 11. Learned counsel for the petitioners would then contend that the petitioner Deepa V. has unnecessarily been roped only on the ground of vicarious liability, which concept is unknown to criminal law. I am afraid even this argument of the petitioners is without merit since specific allegations of forgery and criminal misappropriation have been set out against her in the FIR and it is not only on the ground of vicarious liability that her name finds mention in the FIR. 12. Thus, for the reasons stated above, I do not find any merit in both the petitions and the same are dismissed. Interim order dated 7.4.2014 passed by this Court is vacated. Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.