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2017 DIGILAW 1877 (RAJ)

Hanuman S/o Budh Ram v. State of Rajasthan

2017-08-21

PUSHPENDRA SINGH BHATI

body2017
ORDER : 1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred for quashing the registration and investigation of FIR dated 15.04.2017 bearing No. 203/2017 registered at Nohar Police Station, District Hanumangarh for the offences under Sections 379, 420, 452, 467, 468, 471 and 120-B IPC. 2. The allegation against the present petitioner is that the complainant is running a shop of building material, which remained closed for 3-4 days and was thereafter opened, upon which the petitioner came to the shop and demanded the documents of transaction regarding material evidence, but simultaneously, the petitioner stole the cheques and asked Satveer to make payment within seven days or face the consequence. The cheques of Axis Bank were presented, but payment towards those cheques was stopped at the instance of the complainant under the belief that the cheques were stolen by the present petitioner. 3. Learned counsel for the petitioner pointed out that in the FIR itself, it is written that on 29.03.2017, the complainant received an SMS from the Axis Bank that cheques No. 3132 and 3133 pertaining to payment of Rs. 1,50,000/- each have been presented before the Bank by the present petitioner. On receiving such SMS, the respondent has initiated the requisite proceedings. 4. Learned counsel for the petitioner has argued that on the face of it, the FIR is highly improbable, as allegedly on 21.02.2017, the cheques were stolen, regarding which the complainant has never made a complaint. However, learned counsel for the petitioner argued that at the first instance, when the cheques were produced before the Bank on 29.03.2017, the complainant immediately filed the complaint on 30.03.2017, which means that even the requisite time for ascertaining the theft or the details of the cheques was not available with the complainant. 5. Learned counsel for the petitioner also argued that it is a clear case of counterblast and to escape the liability under the Negotiable Instruments Act, the FIR has been lodged, as the complainant was very well aware that those cheques were with the present petitioner and they shall have to face the liability under the Negotiable Instruments Act. 6. 5. Learned counsel for the petitioner also argued that it is a clear case of counterblast and to escape the liability under the Negotiable Instruments Act, the FIR has been lodged, as the complainant was very well aware that those cheques were with the present petitioner and they shall have to face the liability under the Negotiable Instruments Act. 6. Learned counsel for the petitioner has relied upon the precedent law laid down by the Hon’ble Apex Court in Vineet Kumar and Others vs. State of U.P. and Another, 2017 Law Suit (SC) 313, wherein the criminal proceeding, on being found as a counterblast to the proceedings under Section 138 of the Negotiable Instruments Act, had been quashed by the Hon’ble Apex Court. The relevant paras 36, 37, 38 and 39 of the said judgment read as under:- “36. Writ petition was filed by the Accused for quashing the FIR which was dismissed by the High Court on 27.08.2007. Thereafter, charges were framed on 01.12.2008. Dissatisfied with the framing of charges Criminal Revision Petition was filed which was dismissed by Delhi High Court on 16.01.2009. The order of Additional Sessions Judge has been extracted by this Court in paragraph 14 which is quoted below: “14. Dissatisfied with the action of the trial Court in framing charges against him, the Appellant-accused filed Criminal Revision Petition No. 08 of 2009, whereby he assailed the order dated 1.12.2008 passed by the Additional Sessions Judge, New Delhi. The Delhi High Court dismissed the revision petition on 16.1.2009, by inter alia observing as under: 12. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this Revision Petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial.” 37. The appeal was filed against the aforesaid judgment of the High Court by the Accused contending that there was sufficient material collected in the investigation which proved that allegations were unfounded and the prosecution of the Appellant was an abuse of process of the Court. In paragraph 23 this Court noted several circumstances on the basis of which this Court held that judicial conscience of the High Court ought to have persuaded it to quash the criminal proceedings. In paragraph 23 this Court noted several circumstances on the basis of which this Court held that judicial conscience of the High Court ought to have persuaded it to quash the criminal proceedings. This Court further noticed that Investigating Officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/ prosecutrix Under Section 164 Code of Criminal Procedure. In paragraphs 24 and 25 of the judgment following was stated: “24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the Accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the Accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix Under Section 164 of the Code of Criminal Procedure. 25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar's case (supra) stand-satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-Appellant, in exercise of the inherent powers vested with it Under Section 482 of the Code of Criminal Procedure. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered Under Sections 328, 354 and 376 of the Indian Penal Code against the Appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed.” 38. The same are accordingly quashed.” 38. Thus, above was the case where despite statement Under Section 164 Code of Criminal Procedure by prosecutrix the Court referring to material collected during investigation had held that the case was fit where the High Court ought to have quashed the criminal proceedings. 39. Inherent power given to the High Court Under Section 482 Code of Criminal Procedure is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala-fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction Under Section 482 Code of Criminal Procedure to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect: “(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. Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction Under Section 482 Code of Criminal Procedure and quashed the criminal proceedings. 7. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction Under Section 482 Code of Criminal Procedure and quashed the criminal proceedings. 7. Learned counsel for the respondent however, vehemently opposed the submissions made by learned counsel for the petitioner and stated that the theft in this case was committed by the present petitioner and there is no delay in lodging the FIR, because as soon as the SMS regarding the cheques in concern was received by the complainant on 29.03.2017, the complaint was lodged on 30.03.2017. 8. Learned counsel for the respondent submitted that the quick action of the respondent shows that in fact he was the sufferer of the theft of the cheques at the hands of the present petitioner, who made use of the transition period in the shop of the complainant and stole the cheques, on the pretext of accounting for the transactions between the parties in the shop. 9. After hearing the learned counsel for the parties and perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that on the face of it, the impugned FIR is nothing but a counterblast, as the respondent became aware of the cheques being dishonoured on 29.03.2017 and out of fear of the proceedings under the Negotiable Instruments Act, the complaint was lodged on 30.03.2017. 10. It is clear that the inherent jurisdiction under Section 482 Cr.P.C. can be invoked to quash the proceeding, which amounts to the abuse of the process of law and instituted with an ulterior motive and the Court has to act at the threshold, as enumerated in the precedent law laid down by the Hon’ble Apex Court in State of Haryana and Others vs. Ch. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, condition No. 7 of which in relation to interference by the Court with the proceedings reads as under:- “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.” 11. 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.” 11. Thus, the aforequoted condition No. 7 is clearly attracted in the present case, as the complainant had the knowledge that he shall be facing the proceedings under the Negotiable Instruments Act and there was no reason available with the present petitioner, so as to stole the cheques in concern. 12. In light of the aforesaid discussion as well as the precedent law cited by learned counsel for the petitioner, the present misc. petition is allowed and the impugned FIR dated 15.04.2017 bearing No. 203/2017 registered at Nohar Police Station, District Hanumangarh is quashed and set aside. The stay application also stands disposed of.