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2014 DIGILAW 861 (HP)

Sanjay Kumar v. State of H. P.

2014-07-08

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, J. (oral). This petition has been filed with a prayer to quash the criminal proceedings initiated against the petitioner, who is an accused in FIR No. 108 of 2011, registered against him in Police Station, Kumarsain, District Shimla. 2. Challenge to the FIR is on the ground inter alia that the same is counterblast of filing a complaint under Section 138 of the Negotiable Instruments Act in the Court at Delhi by the accused-petitioner against the complainant after bouncing of cheque No.375775, in the sum of Rs.32,00,000/- of Punjab National Bank, Kumarsain, issued by the complainant in favour of the accused petitioner. It has been pointed out that this cheque was issued by the complainant himself in favour of the accused-petitioner on 15.9.2011 and not stolen by him during his stay at Narkanda, when apple season in the year 2010 was in progress. Also that when the cheque book has been issued to the complainant on 11.11.2010, how the accused-petitioner could have stolen the disputed cheque in the month of August/September, 2010, during his stay with the complainant in the hotel at Narkanda. Anyhow, the police has conducted the investigation in this case and collected oral as well as documentary evidence. 3. On completion of the investigation, the police has also filed challan against the accused petitioner and the proceedings against him are at initial stage as the case has not been considered for consideration of charge also. 4. On hearing learned counsel on both sides and also going through the record available at this stage, sole question arises for determination is that in the given facts and circumstances, the criminal proceedings initiated against the accused-petitioner amount to abuse of the process of law and deserve to be quashed in the exercise of jurisdiction vested in this Court under Section 482 of the Code of Criminal Procedure. 5. It is well settled at this stage that criminal proceedings should not be throttled down at its initial stage and rather sparingly and only in appropriate cases where even if the evidence collected by the investigating agency is taken as it is on its face value and accepted to be correct in its entirety does not prima facie disclose the commission of any cognizable offence. The support in this behalf can be drawn from the judgment of the apex Court in State of Haryana and others versus Ch. Bhajan Lal and others, AIR 1992 Supreme Court 604, which reads as follows:- “108. 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 or 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 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 or rigid formulae and to given an exhaustive list of myriad kind 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 entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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 or complaint and the 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 allegations in the F.I.R 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(2) 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. 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 a criminal proceeding in 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 on the accused and with a view to spite him due to private and personal grudge.” 6. This Court while placing reliance on the judgment in Chaudhary Bhajan Lal’s case supra has held in Jiwan Lal versus State of H.P., 2013 (3) Shim. L.C., 1254, as follows:- “8. What, therefore, emerges from the law so laid down by the Apex Court is that the inherent powers vested in the High Court under Section 482 Cr.P.C, should not be exercised to defeat the legitimate prosecution and rather should refrain from exercising such powers in a case where on an information lodged at the police Station an offence is registered and the evidence collected during the course of investigation. The allegations of mala fides, if any, against the informant would be of secondary importance. Such powers, however, can be exercised in those cases where the allegations in the complaint, even if taken at its face value and accepted as true in its entirety, does not disclose even prima-facie the commission of an offence as it is that complaint which can be said to be the abuse of process of law and deserves to be quashed. To this effect is even the ratio of the judgment of the Apex Court in G.Sagar Suri and another versus State of U.P. and others (2000) 2 Supreme Court Cases 636 and of this Court in Khan Mohammad versus Talib Hussain 1995 Cri.L.J. 1401 cited by learned counsel representing the petitioner. To this effect is even the ratio of the judgment of the Apex Court in G.Sagar Suri and another versus State of U.P. and others (2000) 2 Supreme Court Cases 636 and of this Court in Khan Mohammad versus Talib Hussain 1995 Cri.L.J. 1401 cited by learned counsel representing the petitioner. The Apex Court in R.Kalyani versus Janak C.Mehta and others (2009) 1 Supreme Court Cases 516 has also held that High Court should not exercise its inherent jurisdiction to quash the criminal proceedings and in particular, First Information Report containing the allegations during the course of investigation.” 7. Adverting to the evidence collected by the investigating agency, it may not be appropriate to appreciate the same exhaustively as in that event prejudice is likely to be caused to the case of either party, however; suffice would it to say that the investigating agency has collected sufficient evidence, which prima facie reveals that cheque No.375775 was never issued by the complainant to the accused-petitioner. The issuance of cheque book in November, 2010 and the allegations that the accused had stolen the disputed cheque during his stay at Narkanda with the complainant in the month of August/September, 2010 is a fact to be pleaded and proved during the course of further trial in the case. Such recital in the complaint cannot be made basis to doubt the credibility of the remaining evidence collected by the investigating agency or to quash the FIR and consequential proceedings. 8. The record further reveals that the accused-petitioner did not produce the cheque either in original or its copy during the course of investigation and to the contrary during his interrogation disclosed that he burnt the same with a view to destroy the same. The stand of the accused-petitioner, however, is that the same, in original, has been produced by him along with the complaint filed against the complainant under Section 138 of the Negotiable Instruments Act in the Court at Delhi. This aspect of the matter can also be gone into during the course of the trial. The investigation conducted in this case reveals that the disputed cheque was neither received in the Kumarsain Branch of Punjab National Bank for clearance nor returned. 9. The case is not yet considered for framing of charge. This aspect of the matter can also be gone into during the course of the trial. The investigation conducted in this case reveals that the disputed cheque was neither received in the Kumarsain Branch of Punjab National Bank for clearance nor returned. 9. The case is not yet considered for framing of charge. Therefore, it is open to the accused-petitioner to raise all such grounds before learned trial Court at the stage of consideration of charge. 10. Another contention of learned counsel that the dispute being civil in nature an effort has been made to implicate the accused-petitioner falsely in this case is also without any substance for the reason that from the record the commission of cognizable offence is found to be prima facie disclosed and as such merely that the dispute is civil in nature, the accused-petitioner cannot escape from the criminal liability on this score. It has been held so by the apex Court in Vijayander Kumar & Others versus State of Rajasthan and Another, (2014) 3 SCC 389 , which reads as follows:- “12. The learned counsel for the respondents is correct in contending that 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 informant/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 proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd.” 11. In view of what has been stated hereinabove, I find no merit in this petition and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of.