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2023 DIGILAW 2329 (ALL)

Pritam Singh Raghuvanshi v. State of U. P.

2023-10-10

ARUN KUMAR SINGH DESHWAL

body2023
JUDGMENT : 1. Heard Sri Swetashwa Agarwal, learned counsel for the applicant and Sri Brijesh Kr. Dwivedi, learned A.G.A. for the State. 2. Present application under Section 482 Cr.P.C. has been filed for quashing the entire criminal proceedings arising out of Complaint Case No. 1151 of 2017, M/s Deepak Agro vs. M/s Raghu, under Section 420 IPC, Police Station-Transport Nagar, District-Meerut along with the impugned summoning order dated 01.03.2017 passed by the A.C.J.M. Court No. 8, Meerut. 3. As per the impugned complaint, applicant and opposite party No.2 were having business relationship and during the course of business, opposite party No.2 supplied tractor accessories and other parts on different dates in the year 2006 to the applicant. Bill was also raised. It was further alleged that the applicant instead of making payment had also given cheque dated 25.1.2008 of Rs. 38,628/-, but subsequently, this cheque was bounced when presented before the bank. Thereafter, the applicant kept on assuring for making payment to opposite party No.2, but no payment was made. Finally, a complaint was filed in the year 2017. In support of his complaint, Vishal Gupta, who was manager of opposite party No.2, was also examined and the court below after perusal of the complaint and statement, summoned the applicant u/s 420 I.P.C. 4. Learned counsel for the applicant has challenged the impugned proceeding on the following grounds:- i. The dispute between the applicant and opposite party no. 2 is purely a business transaction and no case is made out as the same is purely a civil dispute and there are no ingredients of cheating as defined under Section 415 I.P.C., therefore, no offence under Section 420 I.P.C. is made out; ii. As the applicants were residing at a place which is outside from the jurisdiction of the Magistrate concerned, the mandatory inquiry as required under Section 202(2) Cr.P.C. was not conducted for the purpose of deciding whether or not there is sufficient ground for proceeding; iii. The impugned complaint was filed after the expiry of eleven years from the date of transaction; therefore, impugned proceeding was initiated with mala fide reason to extract money from applicant. 5. In support of his case, learned counsel for the applicant has also relied upon the following judgments of Hon'ble Apex Court: a) Govind Prasad Kejriwal vs. State of Bihar and Others, reported in 2020 (16) SCC 714 . 5. In support of his case, learned counsel for the applicant has also relied upon the following judgments of Hon'ble Apex Court: a) Govind Prasad Kejriwal vs. State of Bihar and Others, reported in 2020 (16) SCC 714 . b) Birla Corporation Limited vs. Adventz Investments & Holdings Ltd., reported in 2019 (6) SCC 610. c) Lalankumar Singh & Others vs. Sate of Maharashtra, reported in 2022 SCC online SC 1383. d) Randheer Singh vs. State of U.P. and Others, reported in (2021) 14 SCC 626 . e) Gulam Mustafa vs. State of Karnataka and another; 2023 SCC online SC 603. 6. Per contra, learned AGA has submitted that while passing the impugned summoning order, learned Magistrate formed his opinion regarding prima facie case after the examination of complainant and witnesses which is sufficient for the inquiry as required under Section 202(1) Cr.P.C. as per the mandate of Vijay Dhanuka v. Najima Mamtaj, reported in (2014) 14 SCC 638 case. 7. I have considered the rival submissions and perusal of record, it is clear from the complaint as well as impugned order that transaction between the applicant and the opposite party no. 2, was done in the year 2006 and initially two cheques were also issued by the company of applicant to opposite party no. 2. Though, it was alleged in the complaint that both the cheques were bounced but the opposite party no. 2 had not filed any complaint under Section 138 N.I. Act and subsequently after almost eleven years, impugned complaint was filed. From the perusal of complaint, it is clear that it was purely a case of business transaction between the parties and there was no element of cheating at the time of business transaction. 8. For making out a case under Section 420 IPC, element of cheating must be there as required under Section 415 IPC. Section 415 IPC and Section 420 IPC are quoted hereunder: "415. 8. For making out a case under Section 420 IPC, element of cheating must be there as required under Section 415 IPC. Section 415 IPC and Section 420 IPC are quoted hereunder: "415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.—A dishonest concealment of facts is a deception within the meaning of this section." "420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 9. Similar dispute was also came into question before the Hon'ble Apex Court in the case of Prof. R.K. Vijayasarathy and another vs. Sudha Seetharam and another, reported in (2019) 16 SCC 739 . Relevant paragraphs of the aforesaid judgment is quoted hereunder: "17. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. 18. Section 420 of the Penal Code reads thus: “Section 420. Cheating and dishonestly inducing deliver of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable to being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 19. The ingredients to constitute an offence under Section 420 are as follows: i) A person must commit the offence of cheating under Section 415; and ii) The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. 20. Cheating is an essential ingredient for an act to constitute an offence under Section 420." 10. The aforesaid judgment was further relied upon by Hon'ble Apex Court in the case of Archana Rana vs. State of Uttar Pradesh and another, reported in (2021) 3 SCC 751 wherein the Hon'ble Apex Court observed that for making out a case under Section 420 I.P.C., there must be ingredients of cheating as required under Section 415 of IPC. On applying the above principle to the fact in question, it is clear that there was no ingredient of cheating. There was allegation that bouncing of cheques given by applicant during business transaction in the year 2006 but complaint under Section 138 N.I. Act was not filed and impugned complaint was itself filed after 11 years of bouncing of cheques. Therefore, no offence under Section 420 IPC is made out. 11. So far as the second question regarding enquiry under Section 202(1) Cr.P.C. is concerned when the accused persons were residing at a place beyond the territorial jurisdiction of the Magistrate concerned. This question was also considered by the Hon'ble Apex Court in the case of Vijay Dhanuka v. Najima Mamtaj, reported in (2014) 14 SCC 638 , in which Hon'ble Apex Court observed that in such cases, inquiry under Section 202(1) Cr.P.C. is mandatory and in the inquiry under Section 202(1) Cr.P.C., Court is required to examine witnesses along with the complainant and only then Magistrate must make his opinion about prima facie case. Paragraph 14 of the Vijay Dhanuka (supra) case is as follows: "14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows: "2. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows: "2. (g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;" It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code." 12. This issue was again considered by the Hon'ble Apex Court in the case of Govind Prasad Kejriwal vs. State of Bihar and Others, reported in 2020 (16) SCC 714 . In this case, Hon'ble Apex Court, in paragraph 6.5 observed that while conducting the inquiry under Section 202 Cr.P.C., Magistrate is required to consider whether the prima facie case is made out or not or whether the criminal proceedings initiated are abuse of process of law or the Court and also whether the dispute is of purely a civil nature or whether the civil dispute is tried to be given a colour of criminal dispute. Paragraph 6.5 of the case passed in Govind Prasad Kejriwal (supra) is quoted as under: "6.5. Now so far as the reliance placed on the decision of this Court in the case of National Bank of Oman vs. Barakara Abdul Aziz (Supra) relied upon by the Learned Advocate appearing on behalf of the complainant is concerned, we are of the opinion that in the facts and circumstances of the case, the said decision shall not be of any assistance to the complainant. It cannot be disputed that while holding the inquiry under Section 202 Cr.P.C. the Magistrate is required to take a broad view and a prima facie case. It cannot be disputed that while holding the inquiry under Section 202 Cr.P.C. the Magistrate is required to take a broad view and a prima facie case. However, even while conducting/holding an inquiry under Section 202 Cr.P.C., the Magistrate is required to consider whether even a prima facie case is made out or not and whether the criminal proceedings initiated are an abuse of process of law or the Court or not and/or whether the dispute is purely of a civil nature or not and/or whether the civil dispute is tried to be given a colour of criminal dispute or not. As observed hereinabove, the dispute between the parties can be said to be purely of a civil nature. Therefore, this is a fit case to quash and set aside the impugned criminal proceedings." 13. The above question was also considered in the judgment of the Hon'ble Apex Court in the case of Birla Corporation Limited vs. Adventz Investments & Holdings Ltd., reported in 2019 (6) SCC 610. In that case, Hon'ble Apex Court observed that in the inquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or evidence in support of the averment made in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused. It was also observed that purpose of inquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground of proceeding against the accused. Paragraphs 26, 27 & 60 of the aforesaid judgment is quoted as under: "26. Complaint filed under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process:-Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Paragraphs 26, 27 & 60 of the aforesaid judgment is quoted as under: "26. Complaint filed under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process:-Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused. 27. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 Cr.P.C. or whether the complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused." "60. The object of investigation under Section 202 Cr.P.C. is "for the purpose of deciding whether or not there is sufficient ground for proceeding". The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. As discussed earlier, issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity. In the present case, the satisfaction of the Magistrate in ordering issuance of process to the respondents is not well founded and the order summoning the accused cannot be sustained. The impugned order of the High Court holding that there was compliance of the procedure under Section 202 Cr.P.C. cannot be sustained and is liable to be set aside." 14. From perusal of the aforesaid judgment, it is clear that the Magistrate while issuing summons upon receiving complaint must satisfy himself after making necessary inquiry that prima facie case is made out against the applicant. In the present case learned Magistrate has not recorded any reason showing his satisfaction that despite being business transaction and complaint was filed after 11 years of that transaction, prima facie case u/s 420 I.P.C. is made out against the applicant. Therefore, this court held that in the present case Magistrate has not conducted mandatory inquiry as required by Section 202(1) Cr.P.C. 15. Therefore, considering the facts and circumstances of the case and keeping in mind the law discussed above, the dispute between the complainant and opposite party no. 2 is purely a commercial dispute and the remedy for the same lies under civil remedy and the opposite party no. 2 has given the colour of criminality to the purely business transaction and there is no element of cheating. Therefore, Section 420 Cr.P.C. is not made out. 16. Hon'ble Apex Court in the case of Randheer Singh vs. State of U.P. and Others, reported in (2021) 14 SCC 626 in paragraphs 28 and 33 has observed that when the dispute of civil nature has been given colour of criminal offence, then it should be quashed: "28. In Paramjeet Batra (supra), this Court held that :- "12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. In Paramjeet Batra (supra), this Court held that :- "12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. 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. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court." 33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above." 17. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above." 17. Similar observation was made by the Apex Court in the judgment of Gulam Mustafa vs. State of Karnataka and another; 2023 SCC online SC 603 in paragraph 36 as under:- "36. What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no.2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance." 18. It is also clear from the record that impugned complaint was filed after 11 years of disputed money transaction with ulterior motive. 19. In view of the above, proceeding of the Complaint Case No. 1151 of 2017, M/s Deepak Agro vs. M/s Raghu, under Section 420 IPC, Police Station-Transport Nagar, District-Meerut along with the impugned summoning order dated 01.03.2017 passed by the A.C.J.M. Court No. 8, Meerut, is hereby quashed. 20. Accordingly, the application is allowed.