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2022 DIGILAW 136 (UTT)

Amit Sharma v. State of Uttarakhand

2022-06-10

S.K.MISHRA

body2022
JUDGMENT : Sri S.K. Mishra, J. By filing this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for brevity), the petitioners have prayed to quash the charge-sheet No.110 of 2018 dated 10.06.2018, and the order of cognizance/summoning dated 19.07.2018, passed by the learned Judicial Magistrate, First, Dehradun, in Criminal Case No.3502 of 2018, under Sections 420, 504 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as “the Code” for brevity). 2. Brief facts of the case are that the complainant, respondent No.2 in this petition, had supplied certain material to the petitioners. It is his allegation in the FIR that the petitioners did not pay the price of the same, and kept deferring the payment on the pretext that they have to receive certain money from the Uttar Pradesh Rajkiya Nirman Nigam (hereinafter referred to as “Nigam” for short), and only after receiving their dues from the Nigam, they shall pay the amount to the complainant. However, the complainant inquired from the Nigam, and came to know that a very non-substantial amount, approximately Rs.2.00 Lakh, was due to the petitioners, which was paid to them. On such information, the complainant went to the office of the petitioners, and confronted. On such an event, the petitioners abused him, and threatened him. Therefore, he lodged the FIR. The police took up the investigation, and after completion of the same, filed the charge-sheet against the petitioners. 3. Mr. Shiv Bhatt, the learned counsel for the petitioners, would argue that this is a civil dispute and, prima facie, it is not shown by the complainant that from the inception, i.e. from the date the petitioners placed orders with the complainant, they had an intention of defrauding the complainant by receiving material from him, and not paying the amount due to him. However, it is apparent from the record that in the FIR itself, the complainant has mentioned that from the very inception, the petitioners have the intention to defraud him. 4. Thereafter, the learned counsel took the Court to certain documents, and argued that there is no malafide on the part of the petitioners, and that the complainant did not come to the Court with clean hands. 4. Thereafter, the learned counsel took the Court to certain documents, and argued that there is no malafide on the part of the petitioners, and that the complainant did not come to the Court with clean hands. However, it is apparent from the records that in an application filed under Section 482 of Cr.P.C., the documents filed by the accused person before the Court cannot be taken into consideration. In this connection, this Court takes into consideration of reported judgment of the Hon’ble Supreme Court in the case of “State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568 ”, wherein the Hon’ble Supreme Court has held that at the time of framing the charge, or taking the cognizance, the accused has no right to produce any material to prove his innocence. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. The Hon’ble Supreme Court after relying upon the case of “Satish Mehra vs. Delhi Administration, (1996) 6 SCC 766”, has further held that the trial court has power to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. It is well-settled by the Hon’ble Supreme Court that at the stage of framing of charge, the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. 5. The reported case involved the case against a high official of the State of Orissa, who filed an application in a criminal case pending against him under Section 227 of the Code to discharge him. Thereafter, on rejection is prayer, he filed an application before the High Court of Orissa, which was allowed, and then the matter was carried to the Hon’ble Supreme Court by the State of Orissa. While upholding the order of the original Court, in refusing to discharge the accused under Section 227 of the Code, the Hon’ble Supreme Court has held that the defence case cannot be considered at the time of framing of charge. While upholding the order of the original Court, in refusing to discharge the accused under Section 227 of the Code, the Hon’ble Supreme Court has held that the defence case cannot be considered at the time of framing of charge. Though, it is reported on a different stage of proceedings, the principles that guide framing of charge, or discharging of any accused will also be applicable to any application filed, either under Article 226 of the Constitution of India, or under Section 482, or Section 397 of the Cr.P.C. 6. In all such cases, the Court has to see from the undisputed material available on record whether the case is made out, or not. In this connection, this Court also takes into consideration the oft-quoted judgment of the Hon’ble Supreme Court in the case of “State of Haryana & others vs. Bhajan Lal & others, 1992 Supp. (1) SCC 335”. The Hon’ble Supreme Court, very pithily laid down the principles that guide applications for crossing of FIR, charge-sheet, cognizance etc. This Court feels it appropriate to quote the exact words used by the Hon’ble Supreme Court, which are as follows:- “101. Mr. Parasaran, according to whom the allegations in the present case do not make out an offence, drew our attention to a recent judgment of this Court in State of U.P. v. V.R.K. Srivastava and Anr.: (1989) 4 SCC 59 to which one of us (S. Ratnavel Pandian, J.) was a party. In that case, it has been ruled that if the allegations made in the FIR, taken on the face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. The principle laid down in this case does not depart from the proposition of law consistently propounded in a line of decisions of this Court and on the other hand it reiterates the principle that the Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the FIR, do not constitute an offence and that it depends upon the facts and circumstances of each particular case. 102. 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 precise, clearly defined and sufficiently channelised 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. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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 F.I.R. 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. 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”. 7. Thus, it is clear that if the allegations made by the complainant before the Investigating Officer, and the material collected by the Investigating Officer are taken at their face value to be the gospel truth, or where a prima facie case is not made out, or if the facts alleged in the FIR, or in the statement of the witnesses are so patently absurd, that they cannot be accepted by a reasonable person, or 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, then the FIR, charge-sheet, or the cognizance order can be quashed. 8. However, the learned counsel for the petitioners, has failed to establish any such ground in this case. It is apparent from the record that there is a civil transaction between the parties. The said civil transaction itself will not take it away from the ambit of criminal offence, if there is malice on the part of the accused to commit the offence, or defraud the complainant. 9. In fact, in the case of “Paramjeet Batra vs. State of Uttarakhand, (2013) 11 SCC 673 ”, the Hon’ble Supreme Court held that while exercising its jurisdiction under Section 482 of the Code, the High Court has to be cautious. 9. In fact, in the case of “Paramjeet Batra vs. State of Uttarakhand, (2013) 11 SCC 673 ”, the Hon’ble Supreme Court held that while exercising its jurisdiction under Section 482 of the Code, the High Court has to be cautious. The Hon’ble Supreme Court further held that 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. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. The Hon’ble Supreme Court further held that in such a situation, if a civil remedy is available and is, in fact, adopted as has happened in that case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the Court. 10. From the facts of this case, it is apparent that the allegations are that the petitioners took delivery of the goods and did not pay the price of the goods to the complainant in time on the pretext that they are entitled to certain payment from the Nigam, which later on, found to be false. It is apparent from the record that the complainant has specifically stated in the FIR that right from the inception the petitioners had the intention to defraud him. 11. In that view of the matter, this Court is of the opinion that there is some civil transactions between the parties. At this stage, it is apparent from the record that the transactions have also a criminal texture. 12. Another important aspect which this Court cannot ignore is that the complainant has stated before the Investigating Officer that one Mr. Bhupendra Bhatt has issued a receipt of the goods. The rejoinder-affidavit has been filed by the petitioners to the application under Section 482 of the Code stating that Mr. Bhupendra Bhatt has committed certain fraudulent activities, and the FIR has been lodged against him, in which a criminal case is initiated against him and against others in the year 2016. Bhupendra Bhatt has issued a receipt of the goods. The rejoinder-affidavit has been filed by the petitioners to the application under Section 482 of the Code stating that Mr. Bhupendra Bhatt has committed certain fraudulent activities, and the FIR has been lodged against him, in which a criminal case is initiated against him and against others in the year 2016. However, a reference to the FIR, which forms part of the record, reveals that the said Mr. Bhupendra Bhatt is never named as an accused in the FIR. So on the face of record, the petitioners sworn in an erroneous statement of fact in their rejoinder-affidavit. 13. It is apparent from the statement of Mr. Rohit Sharma, a copy of which is provided by the learned Deputy Advocate General, that Mr. Bhupendra Bhatt was employed by the petitioners in the firm in the year 2017 only for four months, whereas the FIR was registered in the year 2016. It is also borne out from the record that Mr. Bhupendra Bhatt has been examined by the police and he has stated that he has signed the bills in evidence of delivery of goods. 14. Thus, it is apparent from material available on record that, prima facie, a case is made out against the petitioners. Hence, the investigating agency did not commit any error by filing the charge-sheet against the petitioners. There is no illegality in the order of cognizance passed by the learned Judicial Magistrate, First, Dehradun. It is also apparent from the record that this is not a case, as per the judgment of the Hon’ble Supreme Court in the case of Bhajan Lal (supra) to consider it as a rare case, and quash the FIR, charge-sheet, and the cognizance order. 15. Additionally, it is noted here, and in fact, heavy emphasis is placed by Mr. Piyush Garg, the learned counsel for the complainant, and Mr. J.S. Virk,, the learned Deputy Advocate General for the State that the application was admitted, and stay was granted on 24.08.2018 by a Coordinate Bench of this Court on the first day of listing on the submission made by Mr. R.S. Sammal, the learned counsel for the petitioners that his clients are ready and willing to pay entire dues of respondent No.2, and he sought a week’s time to settle the account. It is not disputed that Mr. R.S. Sammal, the learned counsel for the petitioners that his clients are ready and willing to pay entire dues of respondent No.2, and he sought a week’s time to settle the account. It is not disputed that Mr. R.S. Sammal, was the counsel originally engaged by the petitioners, and later on, Mr. Shiv Bhatt, the learned counsel has taken over. This is the additional ground to come to the conclusion that this is not a fit case to quash the criminal proceedings initiated against the petitioners. 16. Hence, the C-482 petition is dismissed being devoid of any merit. Interim order dated 24.08.2018 stands vacated. 17. Urgent certified copy of this order be issued to the learned counsel for the parties, as per Rules.