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2021 DIGILAW 361 (GAU)

Manjit Gurung v. State of Arunachal Pradesh

2021-04-19

PARTHIV JYOTI SAIKIA

body2021
ORDER : 1. Heard the learned counsel, Mr. K. Lollen, appearing for the petitioners. Also heard the learned Public Prosecutor, Mr. J. Tsering, appearing for the State of Arunachal Pradesh. 2. This is an application under section 482 of the CrPC praying for quashing of the FIR in Longding P.S. Case No. 43/2020, registered under section 420 of the Penal Code, 1860. 3. The 2 petitioners intended to buy one Truck from the informant. They were to pay Rs. 2,50,000 only by cheque and the remaining amount of Rs. 15,000 only in cash. The cheque was issued and the Truck was taken away. When the informant presented the cheque in the Bank for encashment, it was refused because of insufficient fund. Therefore, the informant filed the FIR alleging that the petitioners had cheated him. 4. The learned counsel, Mr. Lollen, appearing for the petitioners, has submitted that this is a pure civil dispute which has been given the colour of a criminal case just to harass the petitioners. The learned counsel, Mr. Lollen, has relied upon a judgment of the hon'ble Supreme Court that was rendered in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. The learned counsel has further relied upon paragraph 102 of the said judgment, which is reads as under— “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any piease, clearly defined and sufficiently channellized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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. (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 FDR 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.” 5. Mr. Lollen, the learned counsel, further relied upon another recent judgment of the Supreme Court that was delivered in the Commissioner of Police v. Devender Anand, Criminal Appeal No. 834/2017. 6. The case history of Devender Anand (supra) is like this The original complainant entered an agreement to sell a house to the respondents for a sum of Rs. 54 lakhs. The entire amount of Rs. 54 lakhs was paid to the seller. 6. The case history of Devender Anand (supra) is like this The original complainant entered an agreement to sell a house to the respondents for a sum of Rs. 54 lakhs. The entire amount of Rs. 54 lakhs was paid to the seller. Thereafter, the respondents came to know that the house was already mortgaged to Andhra Bank and, therefore, the respondent had to release the house from the custody of Andhra Bank after payment of a huge amount of money. The respondent, thereafter, filed an FIR before the Police. Under the aforesaid circumstances, the Supreme Court has held that the complainant failed to make out a case for taking cognizance of the offence under section 420 of the Penal Code, 1860. The Supreme Court has held that it is a civil dispute and the allegation brought against the respondents is nothing but an abuse of a process of law. 7. Per contra, Mr. Tsering, the learned Public Prosecutor, has relied upon a decision of the Supreme Court that was rendered in K. Jagadish v. Udaya Kumar G.S., (2020) 14 SCC 552 : AIR 2020 SC 936 . In this case, the Supreme Court has held that it is a settled position of law that in certain cases very set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law. Paragraphs 9, 10 and 11 of K. Jagadish (supra) are quoted as under— “9. It is, thus, well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law. 10. In Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370 this court summed up the distinction between the two remedies as under: “21. There are large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. 10. In Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370 this court summed up the distinction between the two remedies as under: “21. There are large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under section 406, IPC or render the ingredients of section 405, IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.” 11. In Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 this court observed: “10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. Once of the illustrations set out under section 415 of the Penal Code, 1860 [Illustrations (f)] is worthy of notice now: “(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.” 11. Once of the illustrations set out under section 415 of the Penal Code, 1860 [Illustrations (f)] is worthy of notice now: “(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.” 11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities. 12. The High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a colander of finest gauzes for testing the ingredients under section 415, IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved.” 8. In order to buttress his point, Mr. Tsering, the learned Public Prosecutor, has further relied upon another judgment of the Supreme Court that was rendered in Rajesh Bajaj v. State of NCT of Delhi, (1999) 3 SCC 259 . Paragraph 9 of the judgment is quoted as under— “9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid 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. In State of Haryana v. Bhajan Lal (supra) this court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder: “[W]e also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 9. Mr. Tsering, the learned Public Prosecutor, has pointed out that the primary ingredient of the offence under section 420 of the Indian Penal Code is dishonest intention from the very beginning, which is sine qua non. Mr. Tsering, the learned Public Prosecutor, referred to the statement of the petitioners recorded under section 161 of the CrPC. According to Mr. Tsering, the Truck has already been taken away without paying anything, as promised, to the complainant. 10. I have given my anxious consideration to the submissions made by the learned counsels of both sides. The power under section 482 of the CrPC is the inherent power of the High Court. This power is exercised to prevent abuse of the process of the court and for advancing the cause of justice. 11. 10. I have given my anxious consideration to the submissions made by the learned counsels of both sides. The power under section 482 of the CrPC is the inherent power of the High Court. This power is exercised to prevent abuse of the process of the court and for advancing the cause of justice. 11. In paragraph 103 of Bhajan Lal (supra), the Supreme Court has cautioned that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 12. After going through the materials available in the record including the FIR, this court finds that it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offence under section 420 of the Penal Code, 1860 cannot be said to be absent on the basis of the allegations in the complaint/FIR. Simply because there is a remedy provided for the breach of contract, that does not by itself do the court to come to a conclusion that civil remedy is the only remedy and the initiation of criminal proceeding in any manner will be an abuse of the process of the court for exercising inherent power of the High Court under section 482 of the CrPC for quashing such proceedings. The facts narrated in the FIR reveal a commercial transaction but that is hardly any reason for holding that the offence of cheating would elude from such transaction. Many a times, the offence of cheating is committed in the course of commercial transaction. 13. Avoiding prolongevity, but at the risk of repetition, it must be stated that the power under section 482 of the CrPC is to prevent the abuse of the process of court and to advance the cause of justice. This power is not meant to overshadow the powers of law enforcement or courts acting under the provisions of the CrPC. 14. With the aforesaid premised reasons, this court does not consider it appropriate to interfere into the matter. Police investigation is still going on. This court finds that it is not a fit case for exercising the power under section 482 of the CrPC. Accordingly, the criminal petition stands dismissed and disposed of.