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2017 DIGILAW 237 (HP)

Basant v. Virender Singh

2017-03-23

TARLOK SINGH CHAUHAN

body2017
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. By medium of this petition under Section 482 Cr.P.C., the petitioner has sought quashing of criminal proceedings initiated against him by respondent No. 1 under Section 138 of the Negotiable Instruments Act, 1881 (for short 'Act'). 2. It is averred that the petitioner and respondent No.1 were close friends and petitioner used to expend loan to the respondent, who was a PWD contractor. The respondent No.1 asked for a loan of Rs. 5,25,000/- and the petitioner accordingly gave Rs. 1,25,000/- in cash in the month of May, 2016 and Rs. 4,00,000/- on 27.7.2016 vide cheque No. 996712. 3. The respondent assured the petitioner that Rs. 1,25,000/- would be repaid by him by billing done on PWD in his name in the month of June, 2016. However, the respondent never got the billing done and, therefore, the petitioner even did not put the requisite amount of Rs. 4,00,000/- in his bank account. Obviously, when the cheque in question was presented for encashment, the same was dishonoured. On the allegations set out above, the petitioner would claim that it is respondent No.1, who in fact has committed criminal breach of trust and, therefore, the complaint should be dismissed. 4. Mr. Dinesh Thakur, Advocate, learned counsel for respondent No.1 has vehemently opposed this petition by claiming that the aforesaid allegations set out by the petitioner is nothing but a cock and bull story. It is argued that in the apple season of 2016, the petitioner had approached the respondent and made a deal of 300 cartons of packed apple fruit for total consideration of Rs.5,25,000/- at the rate of Rs.1,750/- per box. The respondent made the part payment of Rs.1,25,000/- in cash and the consignment of the accused/petitioner purchased from the respondent/complainant was sent for sale in the market. Out of the total consideration of Rs.5,25,000/- after deducting the cash paid to the respondent/complainant, a sum of Rs.4,00,000/- remained towards balance for which the petitioner expressed his inability and, therefore, issued a post dated cheque bearing No. 996712 dated 27.7.2016 for Rs.4,00,000/-, which on presentation was dishonoured on the ground of 'insufficient fund' and thus the petitioner was guilty of having committed an offence punishable under Section 138 of the Act and hence the complaint. 5. I have heard learned counsel for the parties and gone through the records of the case carefully. 6. 5. I have heard learned counsel for the parties and gone through the records of the case carefully. 6. The parameters for quashing proceedings in criminal complaint or FIR are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court's process, quashing jurisdiction can be exercised. 7. In State of Madhya Pradesh v. Awadh Kishore Gupta, (2004) 1 SCC 691 , Hon'ble Supreme Court culled out the following principles for exercise of power under Section 482 of the Code:- "(1) To give effect to an order under the Code. (2) To prevent abuse of the process of court. (3) To otherwise secure the ends of justice. (4) Court does not function as a court of appeal or revision. (5) Inherent jurisdiction under Section 482 though wide 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. (6) It would be an abuse of process of court to allow any action which would result in injustice. (7) In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts t abuse of the process of court. (8) When no offence is disclosed by the complaint, the court may examine the question of fact. (9) When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it acquisition would not be sustained-That is the function of the trial Judge. (10) Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. (11) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. (12) If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. (12) If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. (13) When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance-It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person-The allegations of mala fides against the informant are of no consequence and cannot be itself be the basis for quashing the proceedings." 8. In Amit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460 , the Hon'ble Supreme Court laid down the principles to be considered for proper exercise of jurisdiction. 9. In C.P. Subhash v. Inspector of Police Chennai and others (2013) 11 SCC 599, it was once again reiterated by the Hon'ble Supreme Court that where complaint prima facie makes out commission of offence, High Court in ordinary course should not invoke its powers to quash such proceedings, except in rare and compelling circumstances and it was observed as under:- "7. The legal position regarding the exercise of powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India by the High Court in relation to pending criminal proceedings including FIRs under investigation is fairly well settled by a long line of decisions of this Court. Suffice it to say that in cases where the complaint lodged by the complainant whether before a Court or before the jurisdictional police station makes out the commission of an offence, the High Court would not in the ordinary course invoke its powers to quash such proceedings except in rare and compelling circumstances enumerated in the decision of this Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Others, 1992 Supp 1 SCC 335. 8. Reference may also be made to the decision of this Court in Rajesh Bajaj v. State, NCT of Delhi, 1999 (3) SCC 259 where this Court observed: "...If factual foundation for the offence has been laid down in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence." 9. To the same effect is the decision of this Court in State of Madhya Pradesh v. Awadh Kishore Gupta, 2004 (1) SCC 691 where this Court said: "11...The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code " 10. Decisions of this Court in V.Y. Jose and Anr. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code " 10. Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr., 2009 (3) SCC 78 and Harshendra Kumar D. v. Rebatilata Koley etc., 2011 (3) SCC 351 reiterate the above legal position." 10. Thus, what can be considered to be settled on the basis of the exposition of law by the Hon'ble Supreme Court is that while exercising its jurisdiction under Section 482 of the Code, High Court has to be both cautious as also circumspect. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. 11. Tested on the touch stone of the aforesaid exposition of law, it would be noticed that there is practically no material placed on the record which may have been remotely lend credence to the case as put-forth by the petitioner before this Court. 12. Though, heavy reliance is placed upon the statement of his accounts, but the same is also of no assistance to the petitioner at this stage for more than one reason. Firstly, this statement is only a photocopy ; secondly the same has not been certified as is mandatorily required under Bankers' Books Evidence Act, 1891; thirdly, this statement apparently is a electronic generated statement and the same again does not comply with the mandatory provisions contained in the Indian Evidence Act and lastly the transaction recorded therein is neither self speaking and would at best only show that on 6.6.2015 a sum of Rs.40,000/- and Rs.30,000/- respectively have been transferred to one Virender Singh. 13. 13. Even if it is presumed that Virender Singh referred to therein is the respondent No.1 in the instant case, even then this fact of the aforesaid amount having been transferred to his account in itself does not in any manner carry forward the case of the petitioner to establish that only on account of the business dealings, the petitioner may have given a loan of Rs.5,25,000/- to the respondent. Even otherwise, there is a lot of difference between "may have" and "had". The petitioner has to travel a long distance to prove either of these facts and these can only be established during the course of a regular trial. 14. Having said so, I find no merit in this petition and the same is dismissed, leaving the parties to bear their own costs.