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J&K High Court · body

2017 DIGILAW 138 (JK)

Abdul Rashid Lone v. State of J&K

2017-03-16

ALI MOHAMMAD MAGREY

body2017
Judgment 1. The admitted facts of this case speak of a classic example of abuse of the process of law. The petitioner has come up to this Court invoking its inherent jurisdiction under Section 561-Cr. P. C. to undo the injustice sought to be meted out to him. The subject matter of challenge is FIR no.03/2016 registered at Police Station, Crime Branch, Kashmir, on 20.01.2016 against the petitioner for an offence under Section 420 RPC. 2. Heard learned counsel for the parties, perused the material on record and considered the matter. 3. The facts stated in the petition are somewhat clumsy. There is more clarity of the facts depicted and disclosed in communication no.CBK/PV53/141-14501 dated 26.12.2016 addressed by the Senior Superintendent of Police, Crime Branch, Kashmir, to the Inspector General of, Police, State Crime Branch, Jammu, in response to the latter’s letter no.CHQ/Clt/K-551/14/22378 dated 05.10.2015, placed on record. as annexure ‘D’ of this petition. Therefore, I feel it rather advantages to quote the relevant portion of the said communication hereunder:— “Brief facts of the enquiry are that a complaint was lodged by the complainant, Dr. Muzaffar Hussain Sheerwani to the effect that one Ab. Rashid Lone (suspect) had agreed to sell his residential house situated at Gulberg Colony to the complainant against consideration ofRs.l.20 crores. An amount of Rs.28.0 lacs was paid by the complainant to the suspect by cheques with the commitment that the remaining amount will be paid after the complainant disposes off his residential house situated in the same locality; After some time the suspect Ab. Rashid Lone approached the complainant and informed him that he has changed his mind to sell the residential house with promise that he will return him the amount so paid. The suspect refunded an amount of Rs.12.40 lacs only out of total amount of Rs.28 lacs thereby grabbing the rest amount. Accordingly, the present enquiry was ordered to be conducted. During the course of enquiry the E/O has obtained bank statements’ from the concerned banks which established that the complainant has paid an amount of Rs.28 lacs to Ab. Rashid Lone. The E/O has also recorded the statements of the witnesses and also placed on file the decision copy of the Gulberga Welfare Committee on record. After considering the evidence placed on file the E/O has concluded the PV as proved against the suspect Ab. Rashid Lone. The E/O has also recorded the statements of the witnesses and also placed on file the decision copy of the Gulberga Welfare Committee on record. After considering the evidence placed on file the E/O has concluded the PV as proved against the suspect Ab. Rashid Lone S/O Sonaullah Lone R/O Gulbarga Colony, Hyderpora, Srinagar. The file was referred to ld. Sr. ‘P. O. CBK for legal comments who has raised observations to clarify the criminal liability of the suspect. Thereafter the file was returned back to the E/O for clarification ‘of observations raised. The E/O after rectification of observations has come up with a supplementary report wherein he has submitted that .the suspect has refunded an amount of Rs.12.40 lacs out of Rs.28 lacs to the complainant and no dishonest intention was found on part of the suspect for returning of balance amount, however, has failed to return the balance amount till date. The E/O has recommended that the matter is of civil nature and complainant can agitate the matter before Civil Court for redressal of his grievances and has closed the PV as Not Proved. The file was referred to Sr. P.O., CBK for legal opinion who has endorsed the recommendations of E/O. In light of report of E/O and legal opinion of law officer, the file is submitted for appropriate orders.” The contents of the communication are self descriptive and need no further deal of making them plain. 4. The above communication was founded on the detailed investigation report prepared by the enquiry officer of the rank of Deputy Superintendent of police, Crime Branch, Wherein he had concluded: (1) that the issue was a private dispute between the parties; (2) that there appeared no criminality on part of any of the parties; and (3) that the issues were addressed by the Welfare Committee which was also seized of the matter. It was disclosed in that report that the amount of Rs.28 lacs had been paid by the complainant to the petitioner through cheques between 9.10.2007 and 16.08.2008 - in a period of about ten months - pursuant to the oral agreement between him and the petitioner about the sale of petitioner’s residential house. It was disclosed in that report that the amount of Rs.28 lacs had been paid by the complainant to the petitioner through cheques between 9.10.2007 and 16.08.2008 - in a period of about ten months - pursuant to the oral agreement between him and the petitioner about the sale of petitioner’s residential house. However, as the complainant failed to make immediate payment of the agreed consideration amount of the house, the petitioner, sometime after receipt of the last cheque dated 16.08.2008, approached the complainant and told him that the deal could not be proceeded with. It was I further disclosed in the aforesaid report that the petitioner himself had entered into an agreement of purchase of land with a third party and he had to meet the cost thereof from the amount to be paid to him by the complainant. Since the complainant failed to make the payment, the petitioner himself suffered loss. 5. In response to the above response of the Senior Superintendent of Police, Crime Branch, Kashmir, the Inspector General of Police, State Crime Branch, J&K, Jammu, vide his communication No.CHQ/Clt/K-551/14/126 dated 02.01.2016 wrote back to him that the complainant bad been cheated and had suffered wrongful loss at the hands of Abdul Rashid Lone, therefore, a formal case be registered under relevant provisions of law for in-depth investigation and copy of the FIR be furnished to him. 6. Consequent upon the above communication dated 02.01.2016, case FIR No.03/2016 of Police Station Crime Branch, Kashmir, has been registered on 20.01.2016 against the petitioner for offence under Section 420 RPC. 7. In their objections, the respondents have stated that complainant paid an amount of Rs.28 lacs to petitioner-accused through the mode of different instruments. However, after making the payments, the petitioner accused resiled from the agreement and subsequently after repeated requests the petitioner-accused returned only Rs.12.40 lacs to the complainant, while as rest of the amount has been grabbed. According to the respondents, the oral and documentary evidence collected during the course of investigation prima facie establishes the ingredients of offences punishable under Section 420 RPC. 8. According to the respondents, the oral and documentary evidence collected during the course of investigation prima facie establishes the ingredients of offences punishable under Section 420 RPC. 8. In their fresh status report filed on 26.02.2016, the respondents stated that on the basis of evidence, the investigation of the case was closed as challan against the petitioner-accused and the file was submitted to the Crime Headquarters, J&K, Jammu, for accord of approval for production of its charge sheet before the competent court of jurisdiction for judicial determination and that the required approval has been accorded vide CHQ letter no.CHQ/FIR/03/2016/CBK-3035 dated 14.02.2017. 9. Learned counsel for the petitioner argued that the dispute between the complainant and the petitioner herein is purely civil in nature and that no ingredient of the offence of Section 420 RPC alleged against the petitioner is made out from the contents of the complaint or during the investigation. The learn d counsel further submitted that the offence of Section 420 RPC is attracted only when there is dishonest intention. In the instant case, the learned counsel submitted, admittedly, there is no dishonest intention on the part of the petitioner. There was an agreement which could not be proceeded with on account of non-payment by the complainant. The dispute is purely civil in nature and that the complainant, at best, could seek civil remedy for breach of agreement, if he felt that it was the petitioner who had breached the same. He further submitted that mere breach of contract would not give rise to a criminal prosecution. To buttress his arguments, the learned counsel cited and relied upon the decision of the Supreme Court in Devendra v. State of U.P., (2009) 7 SCC 495 ; Rashmi Jain v. State of U.P., (2014) 13 SCC 553; ARCI v. Nimra Cerglass Technics (P) Ltd, (2016)1 SC 348; and Rinhi Johar v. State of M.P., AIR 2016 SC 2679 . 10. Learned counsel for the petitioner further submitted that the conduct of the investigating agency has been wholly fishy inasmuch as it changed ‘its stances from time to time. In any case, it is submitted that the investigating agency, after thorough enquiry conducted by a Police Officer of the rank of Deputy Superintendent of Police, had come to a definite conclusion that no offence, whatsoever, was made out and that the dispute between the parties was purely of civil nature. In any case, it is submitted that the investigating agency, after thorough enquiry conducted by a Police Officer of the rank of Deputy Superintendent of Police, had come to a definite conclusion that no offence, whatsoever, was made out and that the dispute between the parties was purely of civil nature. Not only that, the report prepared by the Enquiring Officer was duly gone through by the Senior Superintendent of Police, Crime Branch, who, after being fully satisfied about the enquiry and the report so made by the Enquiry Officer, wrote to the Inspector General of Police about the outcome of the enquiry. However, the Inspector General of Police ordered registration of FIR for the offence of cheating. The learned Counsel submitted that registration of the FIR has not been outcome of an enquiry, but the pressure exerted by the Inspector General of Police, when, in the facts and circumstances of the case, there was no reason for the respondents, but for abuse of the process of law, to register the FIR and proceed with investigation thereof. The learned counsel submitted that such a course and he act of the respondents cannot withstand the judicial scrutiny. 11. The learned State counsel could not do anything more than to chuckle the stuff he had to defend. He tried to make the best efforts to bring the dispute between the complainant and the petitioner within the ingredients of Section 420 RPC. He vehemently argued that the present petition is not maintainable and is, therefore liable to be dismissed. 12. Law on exercise of the inherent power of the Court under Section 561- A 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 Judgment 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 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 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:— “... [W]e give the following categories of cases by way of illustration on wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure e ends’ of justice, though it may not be possible to lay do r any’ precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds or cases wherein such power should be exercised. (1) Where the allegations made in the first in formation 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 riot disclose 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 FIR do not constitute 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 he 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 each a just conclusion that there is sufficient ground or proceeding against the accused. (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 each a just conclusion that there is sufficient ground or 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 mal 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. 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. 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. 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 Lal (supra) and, therefore, this is a fit case 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 dish nest intention is shown at the beginning of the transaction. As mentioned above, such is not the case herein. 16. In ARCI v. Nimra Cerglass Technics (P) Ltd. (supra), the respondent, a private limited company, engaged in the manufacture and marketing of scientific devices and equipments, filed a complaint against International Advanced Research Centre for Powder Metallurgy and New Materials (for short ‘ARCI’) and its officers, i.e., appellant No.2, S.V. Joshi, Associate Director and appellant No.3, G. Sunderarajan, Director, before the Supreme Court, alleging that the appellants represented that ARCI was possessed of technology for manufacture of extruded ceramic honeycombs which was used in manufacturing of catalytic converters used in automobiles for controlling emission. On that representation, the respondent entered into an agreement dated 18.06.1999 with ARCI for transfer of technology for the manufacturing process of extruded ceramic Honeycombs for a consideration of rupees ten lakhs in instalments. In pursuance of the agreement, the respondent was permitted to establish Its industrial unit within the campus of ARCI at Balapur, Hyderabad, for the purpose of installing and commissioning production of preferred technology and for which respondent spent around rupees one crore thirty lakhs. In pursuance of the agreement, the respondent was permitted to establish Its industrial unit within the campus of ARCI at Balapur, Hyderabad, for the purpose of installing and commissioning production of preferred technology and for which respondent spent around rupees one crore thirty lakhs. The respondent alleged that after having taken number of trial runs for testing the efficacy of the extruded ceramic honeycombs in the function organized by ARCI in May 2003, the technology was handed over to the respondent and accordingly the respondent was induced into emitting the third instalment of rupees two lakhs, in addition Ito the amount already paid.: Respondent stated that he was informed that he initial trial runs conducted by the Scientists of ARCI succeeded and the appellants thus, handed over a few samples of the final product which were subsequently displayed at a joint programme launched at Hyderabad. As result, respondent spent an amount of rupees fifteen lakhs for procuring raw materials in anticipation of Commencing commercial production in the belief that the final perfected technology is in its, hands. The respondent further alleged that after three years, the respondent was informed vide letter ARCI/AD/2006-2007 dated 23.10.2006 addressed to Technology Information, Forecasting and Assessment Council (TIFAC) targeted specification of the end product could not be achieved. The respondent alleged that scientists working in ARCI had not perfected the honeycomb technology sufficient for commencing commercial production and by their false representations induced the respondent to spend huge amount and thus appellants had committed an offence of cheating. The respondent lodged a criminal complaint on 06.11.2007 before the court of the II Metropolitan Magistrate Cyberabad seeking prosecution of the appellants for the offences Punishable under Sections 405, 415, 418, 420 IPC read with Sections 34 and 120B IPC. After investigation, the investigating officer submitted final report dated 28.01.2008 stating that the dispute is purely of civil nature and that no offence was made out against the appellants and the same may be accepted and the case be treated as closed. On protest petition filed by the respondent, the Magistrate took Cognizance of the case for offences under Sections 419 and 420 IPC read with Section 34 IPC vide order dated 11.11.2008. On protest petition filed by the respondent, the Magistrate took Cognizance of the case for offences under Sections 419 and 420 IPC read with Section 34 IPC vide order dated 11.11.2008. Aggrieved by the summoning order issued by the II Metropolitan Magistrate, Cybrabad, the appellants filed petition under Section 482 Cr.P.C. before the High Court to quash the proceedings in CC No.840 of 2008 and the same was missed, which-was under challenge in the appeal before the Supreme Court. The Supreme Court in paras 13 to 16 of the Judgment held as under:— “13. The leagal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State should refrain from analyzing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 Cr.P.C. Should not be exercised 482 Cr.P.C. is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon facts and circumstances of each case.[Vide State of Haryana v. Bhajan Lal {1992 Supp.(1) SCC 335}; State of T.N. v. Thirukkural perumal, { (1995) 2 SCC 449 }; and Central Bureau of Investigation vs. Ravi Shankar Srivastava, { (2006) 7 SCC 188 }]. 14. In the light the Well-settled principles, it is to be seen whether the allegations in the complaint filed against ARCI and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under Sections 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute an offence of cheating. 15. The essential ingredients to attract Section 420 IPC are: (i) cheating; dishonest inducement to deliver property or to make, alter r destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mens rea of the accused at the time of making the inducement. 15. The essential ingredients to attract Section 420 IPC are: (i) cheating; dishonest inducement to deliver property or to make, alter r destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security; and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant. 16. Distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating, On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is’ shown at the beginning of the transaction. in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 , this Court held as under:— ‘21. ...In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure I to keep up promise subsequently cannot be presumed as an act leading to cheating.’ The above view in Palanitkar’s case was referred to and followed in Rashmi Jain v State of Uttar Pradesh, (2014) 3 SCC 553.” 17. A mere failure I to keep up promise subsequently cannot be presumed as an act leading to cheating.’ The above view in Palanitkar’s case was referred to and followed in Rashmi Jain v State of Uttar Pradesh, (2014) 3 SCC 553.” 17. Applying the law laid do by the Supreme Court, as aforesaid, I have no doubt in my mind that the contents of the complaint, As reflected in the FIR, do not disclose the ingredients of the offence under Section 420 RPC; therefore, the FIR could not have been registered on such a complaint. Now that the respondents have done so, proceeded with the investigation and, according to the status report submitted before the court, during the pendency of this petition, have also accorded approval to production of challan before a court of competent jurisdiction, all such acts are nothing but a clear abuse of the process of law. In my view, to secure the ends of justice, there is no Alternative, but to quash the FIR so registered by the Crime Branch. 18. In light of whatever is s id above, this petition is allowed and FIR No.03/2016 registered against the petitioner at Police Station Crime Branch, Kashmir, for offence Under Section 420 RPC is quashed. It hardly needs, a mention that, as a natural consequence of quashing of the FIR, any steps taken by the respondents pursuant and subsequent to Registration of the FIR are rendered immaterial. 19. This also disposes of the connected MP.