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2019 DIGILAW 147 (JK)

Sanjay Chander Sharma v. Tajamul Islam

2019-03-20

SANJAY KUMAR GUPTA

body2019
Judgment 01. In this petition, the petitioner seeks quashing of the order dated 30-10-2018, passed by the learned Judicial Magistrate, 1st Class, Dooru, Anantnag, in a complaint filed in terms of section 190 Cr.PC, for taking cognizance against the accused - petitioner herein, u/s 420, 403, 506 and 507 Ranbir Penal code. 02. The factual matrix of the case of the petitioner is that the respondent filed a complaint before the trial Court, who took cognizance and bailable warrants were issued. The petitioner, inter alia, challenges the proceedings as also order of taking cognizance so taken by the trial Court on the grounds that the order passed by the Court below is bad as it has been passed without perusing the contents of the complaint and statements of the witnesses ; since a plain reading of the complaint would reveal that 2 the ingredients required to establish an offence is not made out, and the order of cognizance passed by the Court below deserves to be quashed. It is further pleaded by the petitioner that even if it is presumed that the contents of the complaint, read with the statements of the witnesses, if taken in its right perspective, even then it is just a civil transaction and the respondent has misused and abused the process of law. Not a single element of offence has been made out by the complainant because in order to establish commission of offence of cheating u/s 420 RPC, the bad intention has to be there right from the beginning of the act/transaction and it has to be pleaded expressly, which is missing in the complaint. The petitioner further pleads in the petition that there is not even a whisper which can show that there was misappropriation of any entrustment committed by the petitioner. 03. It has further been pleaded that just for the sake of it, many sections of law have been mentioned by the respondent without really showing any offence in the complaint, which could be taken cognizance of. The respondent has himself admitted that there has been a civil transaction between the parties as it is mentioned in the complaint that the petitioner took the amount as sale consideration of the land situated at Ordisha. The respondent has himself admitted that there has been a civil transaction between the parties as it is mentioned in the complaint that the petitioner took the amount as sale consideration of the land situated at Ordisha. It has further been stated that the contents of the impugned complaint make it manifestly clear that there has been a civil transaction between the petitioner and the respondent. However, instead of initiating a civil action 3 the respondent has come with a complaint, thus, he has abused and misused the process of law which is not permissible in the eyes of law. 04. Before proceeding in the matter, the relevant paragraph of complaint filed by the respondent reads as under:— “1/ That the complainant is a resident of Nunwan Anantnag and is having a shop at Dooru main market under his own name and style which falls within territorial limits of this Court and the complainant is within his rights to seek redressal of his grievances by invoking the jurisdiction of this court. 2/ That the complainant is running his business at the said shop and the accused person being the Manager of India Potash Ltd., approached the complainant on his shop for business purposes and the complainant was purchasing the items from the company of the accused resulting therein a friendly relation developed between the accused and the complainant. 1. That the accused was visiting the shop of the complainant again and again in relationship with the business and the accused in the month of April 2017 offered the complainant that he will provide land at Bhubaneswar Odisha in consideration of Rupees Ten Lac (Rs. 10,00,000/-) for expansion of the business of the complainant so that the complainant will be in a position to start his own manufacturing unit there at Bhubaneswar Odisha. 2. That the complainant firstly refused the offer but the accused continuously approached the complainants shop and convinced the complainant that the offer will bear good fruits in future resulting therein the complainant got convinced on the very condition that the complainant will first visit the land and will take a decision accordingly. 3. 2. That the complainant firstly refused the offer but the accused continuously approached the complainants shop and convinced the complainant that the offer will bear good fruits in future resulting therein the complainant got convinced on the very condition that the complainant will first visit the land and will take a decision accordingly. 3. That after few days the accused visited the shop of the complainant from whom the complainant and the accused who along with other persons went to Bhubaneswar Odisha whereby the accused identified the land also claimed that he is the owner of the land and will transfer the ownership in favour of the complainant after receiving the consideration amount as mentioned above. 4. That the complainant got satisfied with the offer of the accused and came back from Odisha. The complainant managed the amount for consideration of sale of the land and the accused once again visited the shop of the complainant at Dooru for receipt of the amount. 5. That as per the directions of the accused the complainant transferred the consideration amount in the account as provided by the accused through TRGS via Subhijay Dealcom Private Limited who are having business relationships with the complainant and through them the complainant transferred the consideration amount in favour of the accused. 6. That the complainant after transferring the said amount in the account of the accused informed the accused about the same who acknowledged the same and as per mutual understanding the complainant visited the accused at Bhubaneswar Odisha for transferring the land in his favour but to the utter surprise the accused neither transferred the land in favour of the complainant nor was he able to produce the documents and after that the complainant was able to know from other sources that the accused had already transferred the said land in favour of some third person and as such the accused cheated the complainant. The complainant was shocked by the behaviour of the accused who openly denied to repay the money back resulting therein the complainant was somehow managed to save his life as the accused openly threatened the complainant with the dire consequences in case he did not give up the demand. 7. The complainant was shocked by the behaviour of the accused who openly denied to repay the money back resulting therein the complainant was somehow managed to save his life as the accused openly threatened the complainant with the dire consequences in case he did not give up the demand. 7. That after reaching the Dooru Anantnag, the complainant once again telephonically approached the accused person for repayment of money but the accused categorically refused to pay the money and also gave life threats to the complainant in case the complainant does not give up the demand as such the accused not only cheated the complainant but is also giving life threats. It is pertinent to mention here that the accused sent some gundas in the shop of the complainant who gave life threats to the complainant. The accused through anonymous communications warned the complainant that in case he did not give up the demand or complain before any person the complainant will suffer heavy loss not only economically but physically as well hence the complainant. 8. The complainant as the accused person gave the threats therefore has committed an offence, therein the complainant is having no other efficacious remedy available but to approach this Hon’ble Court for redressal of his grievances. 9. That the accused person intentionally deceived and cheated the complainant and denies repaying the aforementioned amount, criminally intimidating, misappropriated the money of the complainant which constrained the complainant to approach this Court for redressal of his grievances. the life and the property of the complainant is at stake and in case the Hon’ble Court will not come to rescue of the complainant, the complainant will suffer irreparable loss which cannot be compensated. 05. On the basis of this complaint , the court below recorded the statement of complainant and issued process on 3.10.2018 under sections 420/403/406/506/507 Ranbir Penal code and issued the bailable warrant against petitioner. I have given my thoughtful consideration to the whole aspect of the matter. Law with regard to inherent power of High court has now been well settled. In AIR 2017 Supreme Court 37 in case titled State of Telangana v Habib Abdullah Jeelani and Ors., 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. In AIR 2017 Supreme Court 37 in case titled State of Telangana v Habib Abdullah Jeelani and Ors., 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. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] 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. (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. (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.” It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court’s inherent power can be exercised. 12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court. 06. As per above law, a complaint is liable to be quashed, if it does not disclose any offence or is frivolous, vexatious or oppressive; further if the allegations set out in complaint do not constitute offence of which cognizance has been taken by Magistrate, then it can be quashed. 06. As per above law, a complaint is liable to be quashed, if it does not disclose any offence or is frivolous, vexatious or oppressive; further if the allegations set out in complaint do not constitute offence of which cognizance has been taken by Magistrate, then it can be quashed. 07. In present from bare perusal of contents of complaint, it is evident that , the case of complaint is with regard to land situated at Bhubaneswar Odisha; it has been alleged that respondent/petitioner herein received Rupees Ten Lac (Rs.10,00,000/-) for expansion of the business and to start manufacturing unit there at Bhubaneswar Odisha by complainant; complainant has also gone to Bhubaneswar Odisha whereby the accused identified the land also claimed that he is the owner of the land and undertaken to transfer the ownership of land . The said amount was allegedly transferred in the account of petitioner through TRGS via Subhijay Dealcom Private Limited who were having business relationships with the complainant . It is the further case of respondent that accused neither transferred the land nor repaid the money. It is further case of complainant that at Dooru Anantnag, he once again telephonically approached the accused person for repayment of money but the accused categorically refused to pay the money and also gave life threats to the complainant in case the complainant does not give up the demand as such the accused not only cheated the complainant but also given threats; that the accused sent some gundas in the shop of the complainant who gave life threats to the complainant. 08. So from whole facts of case it is evident that there appears to be civil liability if any of petitioner against complainant, which has been given the shape of criminal . In complaint, only general allegations have been leveled, no specific date , time and month has been given as to when transaction took place ,when money was transferred to petitioner and from which account to which account it was transferred and what was detail of land. The criminal cause of action at Dooru Kashmir has been manufactured only to create an illusion for lodging complaint within territorial jurisdiction of that Court at JMIC Dooru. The criminal cause of action at Dooru Kashmir has been manufactured only to create an illusion for lodging complaint within territorial jurisdiction of that Court at JMIC Dooru. Further there is no compliance of section 154(1) and clause (3) of Cr.p.c as in complaint there is no mention as to whether complainant has ever approached to concern police or District Superintendent of police for lodging FIR before filing criminal complaint before Magistrate. 09. In view of above facts and circumstances of case, it is quite clear that all allegations have been manufactured in order to create illusion of facts that criminal offences as mentioned in complaint have taken place. This criminal proceeding is manifestly attended with mala fide and 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. 10. In view of above this petition is allowed and complaint is quashed and consequently order impugned of Magistrate is also set aside.