Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 739 (JK)

Ajaib Singh v. Sunny Sharma

2017-08-25

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner invokes inherent jurisdiction of this Court under Section 561-A Cr.P.C. seeking quashment of the complaint dated 23.01.2016 filed by respondent No.1, Sunny Sharma, and summoning order thereof passed by learned City Judge, Jammu, in criminal complaint No.148/C/2016 under Sections 341, 323 and 506 RPC. 2. In the petition, it is stated that respondent No.1 has filed a false/frivolous and vexatious complaint dated 23.01.2016 in the Court of learned Chief Judicial Magistrate, Jammu and the same complaint has been transferred to the court of learned City Judge, Jammu. It is further stated that the statements of the witnesses were recorded by the learned City Judge, Jammu and after considering the statements along with complaint, the learned Magistrate has taken cognizance and summoned the petitioner to face the trial for the commission of offence punishable under Sections 341, 323 and 506 RPC. Respondent No.1 is a business man and is a Managing Director of Transport Company, namely Jhelum Road lines Pvt. Ltd and was having business relationship with petitioner as well as respondent No.2. The petitioner in 2010 joined the branch office of the company of respondent No.1 at Zirakpur, Punjab and was getting salary @ 10,000/- per month. Even after providing services for 5 long years only once the hike of Rs.1,000/- was done in the salary of the petitioner. It is further stated that due to the bona fide efforts of the petitioner along with respondent No.2, the company’s business was established in the State of Punjab. After the business got established and respondent No.1 started earning profits, the petitioner requested respondent No.1 for increasing his salary and also to give provident fund and other benefits to the employees of the company to which the respondent denied. However, it is notably put forth after being disappointed by the repeated denials to the increase the salary of the petitioner by the respondent despite of the fact that the petitioner had established the business of respondent No.1 in the State of Punjab, the petitioner gave the resignation to respondent No.1 on 14.11.2014 which was not accepted by respondent No.1. The petitioner on 02.12.2014 joined another company i.e. Bharat Roadway’s (Regd) firm with its Head office at Udhampur and Branch Office at Zirakpur, Haryana as a loading clerk. 3. The petitioner on 02.12.2014 joined another company i.e. Bharat Roadway’s (Regd) firm with its Head office at Udhampur and Branch Office at Zirakpur, Haryana as a loading clerk. 3. It is further contended that respondent No.1 in order to take out personal grudges from the petitioner, filed an application via his father, namely, Sh. Som Nath Sharma with the request to lodge an FIR on 13.12.2014 against the petitioner and respondent No.2 lodged the same in the Police Post Baltana, District S.A.S. Nagar, Punjab which was later on transferred to Police Station Zirakpur. It is further stated that it is clear from the enquiry report submitted by the police station Zirakpur that respondent No.1 was contacted many times for inquiry of the application made against the petitioner and respondent No.2 but respondent No.1 never presented him before the Zirakpur Police authorities even for recording the statements. 4. In the impugned complaint under para nos.3 & 4 false allegations have been leveled by respondent No.1 against the petitioner that the accounts of the firm were settled and the petitioner and respondent no.2 were found misappropriation of amount Rs.14.00 lacs which is against the amount mentioned in the criminal complaint i.e. Rs.15.00 lacs which also reveals that the present complaint is made only to give shape to the personal grudges. It is further alleged that respondent No.2 failed in providing any material evidence on record which is in support of his complaint and the present complaint has been filed with oblique motive with only motive to harass the petitioner and to wreck vengeance on the petitioner with a view to spite him due to private and personal grudge and the sole motive behind filing this complaint is to harass the petitioner as the complaint being criminal in nature the petitioner needs to be present in person on each and every date which will impact him badly as he is working as a loading clerk and it is not possible for the type of job he is in to get a leave every month and also there is threat to the life of the petitioner as respondent No.1 being an influential person and holds good links with the goons here and for a person from another state it’s not too tough to cause harm to him even killing him is also not such a big deal for respondent No.1. 5. 5. The complaint being misconceived and against the provisions of law is required to be quashed on the following grounds:- (a) That it is an admitted position that the application mentioned in the complaint was closed by the police authorities of Zirakpura for the reason that respondent No.1 never gone to the concerned police station after moving an application in the Zirakpur Police Station with respect to misappropriation of funds amounting to Rs.15.00 lacs and as the application has been closed by the police of Zirakpur whereby nothing was found against the petitioner and this is the only reason that respondent No.1 has moved a complaint after a period of almost one year from the date of closure of the inquiry of the application by the police of Zirakpur and hence only with the motive to harass the petitioner respondent No.1 has moved the fresh complaint with concocted story and the Court of learned City Judge, Jammu without applying proper judicial mind had allowed the application of respondent no.1 and issued summoning order dated 22.03.2016 against the complaint are false and without any material evidence and it is apt to consider that the petitioner was at Zirakpur on the day when the cause of action in the complaint has been mentioned. (b) That Hon’ble Supreme Court has laid down following guidelines with regard to the quashing of complaint in case titled State of Haryana & ors Vs. Ch. Bhajan Lal and ors reported in 1992 AIR 604, 1990 SCR Supl.(3) 259. (c) That present case is fully covered under the principles laid by the Hon’ble Supreme Court in the case (supra) as such the order dated 06.11.2016 is liable to be set aside and quashed. (d) That the allegations made in the complaint filed by respondent No.1 before the learned Court of City Judge, Jammu, 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 as such the complaint dated 23.1.2016 and in furtherance of which summoning order dated 22.03.2016 has been issued have merits to be quashed and the allegations in the application do not disclose a cognizable offence for proceedings against the petitioners, therefore, the said order dated 06.11.2012 is required to be quashed. (e) That the allegations made in the complaint are so absurd and inherently improbable on the basis of which it has been inferred that there is sufficient ground for proceeding against the petitioner. The complaint has been maliciously instituted with an ulterior motive for wreaking vengeance on the petitioners. (f) That the Hon’ble Apex Court in various authoritative pronouncement has categorically held that the proceedings instituted with ulterior motives should be quashed at the very outset if the same has been lodged maliciously with an ulterior motive for wreaking vengeance or with a view to spite a person due to private and personal grudge. The Hon’ble Supreme Court as already mentioned above has also laid down in State of Haryana v/s Bhajan Lal when complaint is abuse of the process of law and where the prosecution is malicious and full of vengeance or to satisfy personal grudge the same should be quashed at the very threshold. In the instant case the impugned complaint dated 23.1.2016 are just to wreck vengeance against the petitioner. 6. This Court vide order dated 12.05.2016, issued notice to other side and further proceedings before the learned trial Court were ordered to remain stayed till next date before the Bench. 7. Heard learned counsel for the parties and perused the record file. 8. Learned counsel for the petitioner has reiterated all grounds taken in memo of this petition. 9. In opposition, learned counsel for the respondents has relied upon the judgments of this Court in case titled Rajiv Luthra & ors. Vs. Neena Luthra and ors., reported in 2006(1) JKJ 125 and in case titled Kanta Verma vs. Surinder Gupta and another, reported in 2005(Supp.)JKJ 638. 10. I have given my thoughtful consideration to the arguments of counsel for the parties and complaint filed before the Court below. 11. The scope for interference by High Court while exercising the inherent power u/s 561-A Cr.P.C. for quashing the complaint/FIR has been enumerated in AIR 2017 SUPREME COURT 37 in case titled State of Telangana v. Habib Abdullah Jeelani & ors., wherein it is held as under:- “11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad, Jehan Singh v. Delhi Administration, Amar Nath v. State of Haryana, Kurukshetra University v. State of Haryana, State of Bihar v. J.A.C. Saldanha, State of West Bengal v. Swapan Kumar Guha, Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Bihar v. Murad Ali Khan and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that 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 cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:- “(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(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 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. (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 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.” 12. The relevant Paras of complaint, which give rise to trial Court to take cognizance u/s 341/323/506 RPC reads as under:- “4. That due to pressure from the Police, the accused persons approached the complainant for the settlement of the dispute. The complainant who is a businessman also thought that the accused persons were the employees and it is advisable to have negotiations with them so that the money misappropriated by them may be returned to the complainant. As per negotiations both accused agreed to come at Jammu for settlement of the disputes. 5. That on 16-01-2016 at about 3.00 PM the accused called the complainant in a house of their relatives at Greater Kailash. The complainant reached in the said house with his driver namely Ashwani Kumar who sit in the car parked outside the house and the complainant went in the house for meeting with the accused persons. When the complainant entered the room he saw the accused persons sitting in the room along with a third person namely Sanjay Kumar. 6. The complainant reached in the said house with his driver namely Ashwani Kumar who sit in the car parked outside the house and the complainant went in the house for meeting with the accused persons. When the complainant entered the room he saw the accused persons sitting in the room along with a third person namely Sanjay Kumar. 6. That when the complainant was sitting with the accused persons and negotiations were going on but all of a sudden without any provocation from the complainant, all the three person started using filthy languages and abuses against the complainant and also used force against the complainant, somehow with some trick the complainant saved his life by pushing them and ran away from the room. When the complainant reached near his car parked in the lane, the complainant shouted and asked his driver to start the car to fled away from the spot immediately. When the driver was to start the car and the complainant to sit in the car the accused persons by chasing the complainant came in front of the car and voluntarily obstructed the car and dragged the complainant from the car. All the three accused started giving thrashing to complainant and also induced him to desist from prosecuting the report lodged with the police, threatened to kill the complainant, but the complainant was saved from the cruel clutches of the accused persons by the driver of the complainant and some passersby namely, Rakesh Saini, Bhanu Charak etc. The accused persons fled away from the spot after giving threats that in future if the complainant dares to demand money he will face the consequences.” 13. Bare perusal of contents of complaint, it is evident that it has been cleverly drafted so as to create illusion for giving cause of action for filing criminal proceeding. In complaint a general plea has been made that on 16-01-2016 at about 3.00 PM the accused called the complainant in a house of their relatives at Greater Kailash. But no specific name of relative of accused, the house number and proper location has been given. No number of Car and other detail of car has been given in which complainant has allegedly gone alongwith another person. Even in statement of complainant, no such specification of vehicle has been narrated. But no specific name of relative of accused, the house number and proper location has been given. No number of Car and other detail of car has been given in which complainant has allegedly gone alongwith another person. Even in statement of complainant, no such specification of vehicle has been narrated. Further in complaint it has been stated that matter was referred to police, there is nothing on record. A general aversion has been made that after incident he reported the matter to police station. But no police station has been named where report was allegedly made. No date and time has been mentioned when he went to police station to inquire about his complaint. It is also not mentioned whether report was given in writing or oral. No medical certificate has been annexed with regard to injuries sustained, because it is case of complainant that he was dragged outside car by the accused persons. No affidavit has been annexed alongwith complaint. 14. The petitioner Ajaib Singh is resident of Panchkula Haryana; other accused/ Performa respondent is from Samba. It is improbable that petitioner Ajaib Singh will come from Haryana to commit such act. The Magistrate has taken cognizance in a casual and routine manner, without going through the complaint and law on the subject, which is not proper. 15. In 1998 (5) SCC 749 in case titled Pepsi food Ltd. Vs. Judicial Magistrate, it is held as under: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 16. In view of above law, it is legal duty of Magistrate to apply his judicial mind before taking cognizance, in order to satisfy as to whether essential ingredients of alleged offences are made out or not. 17. In present case, the allegations made in the 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. This 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. I have gone through the law cited by respondent no.1; these are not applicable in present case. 18. Hence this petition is allowed and summoning order thereof passed by learned City Judge, Jammu in criminal complaint No.148/C/2016 under Section 341, 323 and 506 RPC against petitioner and respondent no.2 is quashed.