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2023 DIGILAW 299 (UTT)

Arpit Gupta v. State of Uttarakhand

2023-05-09

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. These are bunch of five C482 Applications, which have been respectively preferred by the applicant, who is common in all the C482 Applications, as against the respective summoning order, which has been issued by the learned trial Court, calling upon the applicant, to participate in the complaint proceedings under Section 138 of the Negotiable Instruments Act, 1881. The precise details would be as under. 2. In C482 Application No. 410 of 2021, the challenge given by the applicant is to the Complaint Case No. 134/19-1739/19 of 2019, by virtue of which, he has put a challenge to the summoning order, as it has been issued by the Court of 2nd Judicial Magistrate, Roorkee, District Haridwar on 10.04.2019. 3. In C482 Application No. 411 of 2021, the applicant has put a challenge to the proceedings of Complaint Case No. 131/19-1740/19 of 2019, as well as to the summoning order dated 10.04.2019, as it was issued in the aforesaid complaint proceedings under Section 138 of N.I. Act, by the Court of 2nd Judicial Magistrate, Roorkee, District Haridwar. 4. In C482 Application No. 412 of 2021, the applicant has put a challenge to the proceedings of Complaint Case No. 135/19-1741/19 of 2019, as well as the summoning order, which has been issued by 2nd Judicial Magistrate, Roorkee, District Haridwar on 10.04.2019. 5. In C482 Application No. 413 of 2021, the applicant has put a challenge to the proceedings of Complaint Case No. 133/19-1742/19 of 2019, as well as the summoning order, as issued on 10.04.2019, by the Court of 2nd Judicial Magistrate, Roorkee, District Haridwar. 6. In C482 Application No. 414 of 2021, the applicant has put a challenge to the proceedings of Complaint Case No. 132/19-1743/19 of 2019, as well as the summoning order dated 10.04.2019, which has been issued by 2nd Judicial Magistrate, Roorkee, District Haridwar. 7. The basic argument, as extended by the learned Senior Counsel for the applicant is, that in all these C482 Applications, invariably, no offence under Section 138 of the Negotiable Instruments Act, could be made out against the applicant, on the ground, that in view of the details given with regard to the alleged payment, which has been claimed to have been made by the applicant. He contends, that since the entire financial liability, which was due to be paid by the applicant under the instrument, has already been remitted, no offence under Section 138 of the Negotiable Instruments Act, could be made out against him, and in an event, if the amount has already been remitted by him, if the proceedings under Section 138 of the Negotiable Instruments Act, is initiated, that in itself will be an abuse of process. 8. This argument has been consistently raised by the learned Senior Counsel for the applicant in all the connected C482 Applications. 9. In order to answer this argument of the learned Senior Counsel for the applicant, the question would be, as to what was the amount due to be paid under an instrument? what amount has actually been remitted as detailed by him in the respective C482 Applications? they require an arithmetical calculation, and if the Court, exercising its inherent powers under Section 482 of CrPC, ventures to scrutinize the details of payment and the liability, it would be beyond the scope of exercising its inherent jurisdiction under Section 482 of CrPC, because that may not be the scope for the Court, to exercise its inherent powers by scrutinizing the details and evidence, in order to make out a case as to whether the offence under Section 138 of the Negotiable Instruments Act, is at all, made out or not. 10. In fact, this is the principle, which has been widely dealt with by the Hon’ble Apex Court recently in a judgment rendered in Criminal Appeal Nos. 1025-1026 of 2023, Central Bureau of Investigation vs. Aryan Singh, whereby the Hon’ble Apex Court has observed in its judgment that the Court, exercising the powers under Section 482 of CrPC is not suppose to conduct a mini trial into the factual aspects by appreciating the evidence in order to cull out the case as to whether an offence, which has been complained of in a proceedings under Section 482 of CrPC is made out or not. The said principle has been observed in Para 4.1 of the said judgment, which is extracted hereunder: “4.1 From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C. the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C. the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not.” 11. Prior to the aforesaid judgment of the Hon’ble Apex Court, as extracted above, the Hon’ble Apex Court had earlier too, in a judgment as reported in State of Odisha vs. Pratima Mohanty, AIR 2022 SC 41 has observed in Para 6, has held that the High Courts, in exercising its inherent powers under Section 482 of CrPC, is not suppose to conduct a mini trial to venture into the facts of the case, in order to establish an engagement of an accused person in commission of offence, because that would be exclusively falling within the domain of the trial Court to venture into the merits of the matter and to determine on merits as to what would be the liability payable by the applicant or whether at all he is engaged in commission of offence for which the complaint proceedings have been drawn? Para 6 of the said judgment is extracted hereunder: 6. At the outset, it is required to be noted that by the impugned judgment and order the High Court in exercise of its powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Section 13(2) read with Section 13(1)(d) of the Act and Section 420 read with Section 120B IPC. From the impugned judgment and order passed by the High Court, it appears that the High Court has entered into the merits of the allegations and has conducted the minitrial by weighing the evidence in detail which, as such, as observed and held by this Court in a catena of decisions is wholly impermissible. As held by this Court in the case of State of Haryana and Others vs. Ch. Bhajan Lal and Others, AIR 1992 SC 604 , the powers under Section 482 Cr.P.C. could be exercised either to prevent an abuse of process of any court and/or otherwise to secure the ends of justice. In the said decision this Court had carved out the exceptions to the general rule that normally in exercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. Exceptions to the above general rule are carved out in Para 102 in Bhajan Lal (supra) which 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 precise, clearly defined and sufficiently channelized 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 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.” 6.1 Looking to the allegations in the present case against the respondents-accused and considering the fact that charge-sheet has been filed by the Vigilance Cell after a thorough investigation, it cannot be said that the case falls within any of the exceptions as carved out by this Court in Para 102 in the case of Bhajan Lal (supra). It cannot be said that the criminal proceedings initiated against the respondents-accused are an abuse of process of any court. It cannot be said that the criminal proceedings initiated against the respondents-accused are an abuse of process of any court. On the contrary, the allegations are an instance of abuse of the powers with a mala-fide intention and allotment of the plots to the family members by hatching a criminal conspiracy and to allot the plots to the family members at throw away price causing loss to the B.D.A. and the public exchequer. 6.2 It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases. As per settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed. At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducing the minitrial. As held by this Court the powers under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court. 6.3 In the present case the allegations were with respect to allotment of 10 plots which were required to be allotted under the discretionary quota. It is not in dispute that at the relevant time the respondents-accused were connected with the Department concerned with regard to allotment of the plots directly or indirectly. Accused No. 4 Smt. Pratima Mohanty was serving as Steno to Vice-Chairman, B.D.A. As per the case of the prosecution an undated application for allotment of plots on plain paper was received from Shri Pradyumna Kumar Mohanty, brother of the accused Smt. Pratima Mohanty. It is also the case on behalf of the prosecution that though the plot was applied in the name of her brother, after the allotment of the plot she is in possession of the same. It is also the case on behalf of the prosecution that though the plot was applied in the name of her brother, after the allotment of the plot she is in possession of the same. So far as accused No. 5-Shri Prakash Chandra Patra is concerned, as per the case on behalf of the prosecution, an application on plain paper for allotment of plot of Ms. Rajalaxmi Samal, sisterinlaw of the respondent-Shri Prakash Chandra Patra (accused No. 5) was forwarded by the Minister of Housing Urban Development-Mr. Samer Dey (accused No. 6) to Shri P.K. Pattanaik, Secretary, B.D.A. It is noted that at the relevant time the said accused was working as Jr. Assistant, Allotment Section, B.D.A. Pursuant to the aforesaid application the sister-in-law of the said accused has been allotted a plot. So far as accused No. 3 Rajendra Kumar Samal is concerned, as per the case of the prosecution and as alleged, an application was made for allotment of plot in favour of his wife who was Dealing Assistant, Allotment Section II, B.D.A. and Personal Assistant to Minister, Housing and Urban Development. It is noted that even the then Minister is the original accused No. 6. As per the allegation the application was without any date and on the basis of such undated application, the plot has been allotted in favour of his wife. 12. Apart from the aforesaid tenacity of argument of the learned Senior Counsel for the applicant, there is no other legal ground, which has been pleaded in all the C482 Applications, or argued before this Court, which at all, could have called for an interference under Section 138 of the Negotiable Instruments Act, since all the factual aspects are required to be dealt with by the learned trial Court, who is ceased with the proceedings under Section 138 of the N.I. Act, coupled with the fact, that if the summoning order itself is taken into consideration, the Court of 2nd Judicial Magistrate, Roorkee, District Haridwar, has quite elaborately dealt with various facets of the controversy, including the documentations, which were placed before it, prior to issuance of respective summoning orders and hence, it cannot be said that the Court of 2nd Judicial Magistrate, Rookee, District Haridwar, has passed the summoning order, without an application of mind. 13. 13. The Court has assigned a logic that owing to the fact, that the instrument upon its presentation, when it was dishonored on account of the closure of the account, the closure of amount in itself would be a cognizable offence under Section 138 of N.I. Act, and as such, the reason, which has been given in Para 5 & 6 of the summoning order, do justify to summoning of the present applicant under Section 138 of the N.I. Act. 14. In that view of the matter, since the summoning order does not suffer from any legal vices, coupled with the fact that the applicant has attempted to venture to establish his innocence by venturing into the facts, which is not a subject matter of Section 482 of CrPC, this Court declines to interfere in the C482 Applications; the same are, accordingly, dismissed. 15. On this, the learned counsel for the respondent has submitted that he has preferred an Application under Section 340 to be read with Section 195 of the Code of Criminal Procedure, on account of certain misleading facts or documentations, which has been placed on record or relied by the learned counsel for the applicant. Since this Court is not exercising its inherent powers under Section 482 of CrPC and has dismissed the C482 Applications, all the contentions raised in the Application under Section 340 would still be a subject matter, left open for the applicant to be raised before the competent trial Court, which has to deal with it on its own merit, after appreciation of evidence. 16. Let a copy of this judgment be placed in the order sheet of the connected matters.