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2017 DIGILAW 1012 (JK)

Syed Mohammad Fazullah v. Syed Mohammad Yousuf

2017-11-15

ALI MOHAMMAD MAGREY

body2017
JUDGMENT : 1. Petitioner has invoked the writ jurisdiction of this Court in terms of Article 226 of the Constitution of India read with section 103 of Constitution of J&K to undone the injustice subjected and meted out to him. 2. Subject matter of the challenge is the proceedings initiated by the Court of Judicial Magistrate (First Additional Munsiff) Srinagar (for short Trial Magistrate) on private criminal complaint titled “Dr Syed Mohammad Hussain Rizvi vs. Syed Mohamamd Fazullulah and Ors.”. 3. Facts, as are necessary for the adjudication of the matter, are briefly taken note of as under:— (a) Petitioner claims to have filed a complaint u/s 500 RPC on 10.07.2012, pending before the Court of learned CJM, Srinagar and subsequently, it is stated that after one year the respondent filed a complaint under section 323, 500, 506 RPC against the petitioner and his two brothers on the allegations detailed out in the complaint, as the petitioner and other two persons named in the complaint as accused have by way of using unparliamentarily, uncivilized and abusive language defaming the status and dignity of the complainant. (b) It is further stated in the complaint that upon receipt of the complaint made by the accused no.1, the complainant was put under suspension upon the complaint without verifying the truth of the complaint of the accused no.1, which caused defamation and damage to the reputation of the complainant. (c) It is further stated that the accused no.1 had forwarded a letter vide reference No. TC/JK/PS/400-401 dated 14.09.2011 to Shri K. Rajandra Kumar IPS ADGP Armed/Law and Order Jammu and Kashmir Srinagar and also a letter vide reference TC/JK/PS/398 dated 14.09.2011 to Shri Kuldeep Khoda the then DGP J&K Srinagar and also copy was forwarded to SSP Srinagar for necessary action, wherein it is stated that the accused no.1 has assassinated the character of the complainant by using of malignant statement and used the words Mischievous, imposter, self styled, criminality oriented mischief monger rapscallion and links with terror outfit (Hizbul Mujahedeen). (d) It is stated in the complaint that the accused no. 1 and 2 on 02.06.2011 also physically assaulted and abused the complainant at SKIMS. This way the accused are harassing intimidating, humiliating and insulating the complainant continuously from that date through every means and are playing with complainant’s dignity self-respect and reputation. (d) It is stated in the complaint that the accused no. 1 and 2 on 02.06.2011 also physically assaulted and abused the complainant at SKIMS. This way the accused are harassing intimidating, humiliating and insulating the complainant continuously from that date through every means and are playing with complainant’s dignity self-respect and reputation. (e) It is further stated that learned magistrate (first Additional Munsiff) Srinagar on 3.8.15 dismissed the complaint with reference to accused no. 2 and 3 and took cognizance with regard to petitioner-accused no.1 in the complaint. 4. Aggrieved of the cognizance taken and the issuance of process the petitioner assails the same in the instant petition seeking its quashment on particular reference to the facts that the complaint does not disclose commission of offence under sections 323, 500, 506 RPC against the petitioner-accused no.1. The complaint is stated to have been filed with the intention of harassing the petitioner as the allegations made in the complaint do not constitute a criminal offence. 5. On notice respondent/complainant appeared and sought dismissal of the petition on the ground that none of the rights of the petitioner 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 petitioner. 6. Heard learned counsel for the parties, considered the matter and perused the records. 7. Respondent who is present in person submits that the contents of the complaint does make out a case against the petitioner 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 Abdul Rashid Lone v. State of J&K & Anr., 8. It would be profitable to reproduce the paragraphs 12, 13, 14 & 15 of the judgment supra hereunder, thus:— “12. Law on exercise of the inherent power of the Court under Section 561A Cr. P. C, which is pari materia with Section 482 of the Central Code of Criminal Procedure, 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, which is pari materia with Section 482 of the Central Code of Criminal Procedure, 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 Justitia to do real and substantial justice for the administration of which alone courts exist; It has also been laid down that invoking 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 v. 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 or 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 RPC. 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 RPC. 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 RPC 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 v. Bhajan Lat (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 v. 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.” 9. 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.” 9. Applying the law laid down by the Apex Court, as reiterated by this Court I have no doubt in my mind that the learned trial magistrate has committed any illegality while taking cognizance and issuing process, therefore, the same is warranted and does not require any interference. 10. In the above background, the writ petition being without merit shall stand dismissed along with connected MP.