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2017 DIGILAW 1004 (JK)

Dharminder Kharee v. Bashir Ahmad Rather

2017-11-14

ALI MOHAMMAD MAGREY

body2017
JUDGMENT : Ali Mohammad Magrey, J. Petitioner has invoked the inherent jurisdiction of this Court in terms of Section 561-A of the Criminal Procedure Code, for short Cr.P.C to undone the injustice subjected and meted out to him. 2. Subject matter of the challenge is the proceedings intiated by court of Special Mobile Magistrate (under 13th Finance Commission), Srinagar, for short trial Magistrate, on a private criminal complaint titled Bashir Ahmad Rather vs. Dharminder Kharee and Ors. 3. Facts, as are necessary for the adjudication of the matter, are briefly taken note of as under: (a) Petitioners claim to be running a fertilizer company under the name of Krishi Fertilizers with its Head Office at Mumbai. The respondent is stated to have approached the petitioners for distributorship for Kashmir valley and a memorandum of understanding, MOU, was executed between the parties on 16th September, 2013, at UP, wherein, the terms and conditions were settled between the parties and contract signed. (b) Petitioners are stated to have dispatched the material which was dully billed and received by the respondent. It is further stated that respondent breached the terms and conditions of the contract which, as stated, resulted in the cancellation of the contract/ MOU. (c) It is further stated that as a result of the cancellation of the contract, respondent filed a false and frivolous complaint before the court of Chief Judicial Magistrate, Srinagar, which was transferred to the trial court. The trial court initially referred the matter to SHO of Police Station Nowgam in terms of Section 202 Cr.P.C., 1973 for investigation on 21.6.2013 and in terms of the order dated 24.8.2013. The trial court has further issued the process against the petitioners under sections 420, 406 and 506 of the Ranbir Penal Code, for short Ranbir Penal code. 4. Aggrieved of the cognizance taken and the issuance of process the petitioners assail the same by the instant petition seeking its quashment on the grounds detailed out in the petition with particular reference to the fact that the matter is purely of civil nature as the basis for complaint has reference to the cancellation of contract. The complaint is started to have been filed with the intention of harassing the petitioners as the allegations made in the complaint do not constitute a criminal offence but the issue is purely of civil nature. 5. The complaint is started to have been filed with the intention of harassing the petitioners as the allegations made in the complaint do not constitute a criminal offence but the issue is purely of civil nature. 5. On notice respondent/complainant through his counsel appeared and sought dismissal of the petition on the ground that none of the rights of the petitioners has been violated which would warrant interference of this court at this stage as mere issuance of process does not amount to curtailing the rights of the petitioners. 6. Heard learned counsel for the parties, considered the matter and perused the records. 7. Learned counsel for the petitioners submitted that the dispute is purely of civil nature and no ingredients constituting the offence punishable under section 420, 406 and 506 of the Ranbir Penal code are made out from the contents of the complaint or during the investigation. 8. Learned counsel for the respondent submitted that the contents of the complaint does make out a case for proceeding against the petitioners and the issuance of process and taking cognizance on the complaint does not amount to abuse of process of court. Learned counsel, in support of his contention referred to and relied upon a judgment reported as 2017 (1) SLJ 213 in case titled 2017 (3) JKJ 10 [HC] Ab. Rashid Lone vs. State of J&K and Anr. 9. It would be profitable to reproduce the paragraphs 12, 13, 14 and 15 of the judgment supra hereunder, thus: “12. Law on exercise of the inherent power of the Court under section 561A Cr.P.C, 1973 which is pari materia with Section 482 of the Central Criminal Procedure Code, has since long been thoroughly discussed and settled by the Supreme Court in numerous of its judgments. Law on exercise of the inherent power of the Court under section 561A Cr.P.C, 1973 which is pari materia with Section 482 of the Central Criminal Procedure Code, has since long been thoroughly discussed and settled by the Supreme Court in numerous of its judgments. It has been held that the inherent jurisdiction of the High Court under this particular provision of the Code is very wide, but it has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself and that too ex debito Justitiae to do real and substantial justice for the administration of which alone courts exist; It has also been laid down that in the inherent power prior to the Commencement of trial and before letting in the evidence is not desirable and that the power should be exercised only in exceptional cases. The Supreme Court in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335, after discussing the law laid down in its numerous judgments, in para 102 gave the categories of cases by way of illustration wherein the inherent power could be exercised by the Courts, either to prevent abuse of the process of any court on otherwise to secure the ends of justice. The Supreme Court therein said as under: “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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds 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 FIR 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 the Code. (2) Where the allegations in the first information report and other materials, if any accompanying the FIR 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 the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR 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) 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 is 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 tide 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. 13. In the instant case, the allegations made in the complaint are that the petitioner had agreed to sell his residential house situated at Gulberg Colony, Srinagar, to the complainant against the consideration of Rs. 1.20 crores, and that subsequent to the agreement the complainant paid an amount of Rs. 28 lacs to the petitioner through different instruments. However, after payment of the said amount over a period of ten months, the petitioner resiled from the agreement. He promised to return the paid amount, but returned only an amount of Rs. 12.40 lacs and rest of the amount Rs. 15.60 lacs has been grabbed. 14. The allegations contained in the complaint, on their face, do not make out the ingredients of the offence under Section 420 Ranbir Penal code. He promised to return the paid amount, but returned only an amount of Rs. 12.40 lacs and rest of the amount Rs. 15.60 lacs has been grabbed. 14. The allegations contained in the complaint, on their face, do not make out the ingredients of the offence under Section 420 Ranbir Penal code. This, at best, is a breach of agreement for which the remedy for the complainant was to go to the civil court, either for specific performance of the oral agreement of sale or for recovery of the amount, whatever remedy he would wish to pursue. It is to be borne in mind that the ingredients of the offence under Section 420 Ranbir Penal code are cheating, dishonest inducement to deliver property. Admittedly, in the instant case, the petitioner, at best, can be said to have made a false representation and promise to return money after he allegedly resiled from the oral agreement. There is nothing contained in the FIR as would even remotely suggest that the petitioner-accused had any dishonest intention of cheating or inducing the complainant to deliver his property to him. It is a case which clearly falls within the first, second and the third categories of cases mentioned in State of Haryana vs. Bhajan Lal (supra) and, therefore, this is a fit ease where the court should exercise its inherent powers under Section 561-A Cr.P.C. to undo the injustice being meted out to the petitioner. 15. Coming to the law cited at the Bar by the learned counsel for the petitioner, in Rashmi Jain vs. State of U.P. (supra) it was observed that from mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promises cannot be presumed and that a distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent and dishonest intention is shown at the beginning of the transaction. As mentioned above, such is not the case herein.” 10. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent and dishonest intention is shown at the beginning of the transaction. As mentioned above, such is not the case herein.” 10. Applying the law laid down by the Apex Court, I have no doubt in my mind that the contents of the complaint do not disclose the offence, punishable in terms of Section 420, 406 and 506 of the RPC, having been made out against the petitioner therefore, the cognizance taken on the complaint and the proceeding initiated thereupon by the trial court is unwarranted, therefore quashed. It goes without saying that the quashing of the complaint and the proceedings of the trial court initiated thereupon, does not leave the respondent without any remedy. He would be free to pursue the remedial measures to seek damages for the caused due to alleged breach of contract. 11. Disposed of along with connected MP.