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2023 DIGILAW 40 (JK)

Afab Ahmed v. Neelam

2023-02-10

RAJNESH OSWAL

body2023
JUDGMENT : Rajnesh Oswal, J. 1. The petitioners have filed the present petition under section 482 Code of Criminal Procedure (Cr.P.C.) for quashing the criminal proceedings arising out of a complaint, titled, Neelam vs. Talib Hussain and Others as well as the order dated 10.07.2021 by virtue of which, learned JMIC, Billawar has issued the process against the petitioners and the proforma respondent No. 2. 2. It is stated that the petitioner No. 2 is a registered owner of the Truck bearing registration No. JK08A-9569 and vide agreement to sell dated 23.11.2020, the petitioner No. 2 agreed to sell/transfer the aforesaid vehicle to the respondent No. 1. After execution of the agreement, the respondent No. 1 failed to pay a single instalment to the finance company and despite reminder, she did not deposit the instalments and the finance company started reminding the petitioner No. 2-owner that they would seize the vehicle and take steps to proceed against the petitioner No. 2-owner under section 138 Negotiable Instruments Act. Faced with such situation, the petitioner No. 2 himself started depositing the instalments with the finance company against proper receipt. As the respondent No. 1 failed to perform her part of the agreement, the petitioners took control of the said vehicle as per the terms and conditions of the agreement to sell dated 23.11.2020. The respondent No. 1 with mala fide intention on 24.06.2021 after more than three months, filed a complaint against the petitioners and the proforma respondent before the learned JMIC, Billawar. The learned Magistrate forwarded the said complaint to SHO Police Station, Billawar to seek report in terms of section 202 Cr.P.C. and after receiving the report from the SHO, Police Station, Billawar, issued the process against the petitioners and the proforma respondent No. 2. 3. The petitioners have impugned the criminal proceedings initiated by the respondent No. 1 and also the order dated 10.07.2021 on the following grounds: (a) that the matter is purely civil in nature and the launching of criminal proceedings is not only illegal but a sheer abuse of process of law and further that the petitioner No. 2 is a registered owner of the vehicle and continues to be so till date. (b) that the court below was under obligation to atleast record the statement of the complainant on oath to satisfy itself with regard to the commission of offence but the same has not been done. (c) that the order impugned dated 10.07.2021 is absolutely silent with respect to the offences for which the process has been issued against the petitioners and the proforma respondent. 4. The reply has been filed by the respondent No. 1, wherein it has been stated that the petitioners have raised the disputed questions of facts which cannot be adjudicated in a petition filed under section 482 Cr.P.C. It is further stated that when the petitioners and the proforma respondent forcibly took the truck from the possession of the driver of the answering respondent, the complaint was made to Police Station, Billawar. The truck was seized under section 207 of the Motor Vehicle Act and then an application was moved by the petitioner No. 1 by portraying himself as registered owner of the said vehicle and the same was released in his favour after furnishing an affidavit before the learned Munsiff Billawar. It is also stated that the answering respondent started paying instalments timely to the finance company sometime in cash and sometimes through online transfer and till the time the truck was forcibly snatched, she had paid four instalments amounting to Rs. 68,000/-. She also claims to have spent of Rs. 1,00,000/- so as to make the truck roadworthy. It is also stated that the statement of the answering respondent was recorded by the learned Magistrate as is evident from order dated 03.07.2021 and thereafter the complaint was sent to SHO Police Station, Billawar under section 202 Cr.P.C. The process was issued only after the report was submitted by the SHO Billawar. 5. Mr. Ved Bhushan Gupta, learned counsel for the petitioners vehemently argued that the dispute is primarily civil in nature and the criminal proceedings have been initiated by the respondent No. 1 just to harass the petitioners. 6. On the contrary, Mr. R.D. Singh Bandral, learned counsel for respondent No. 1 vehemently argued that right from the beginning, the petitioner No. 2 had dishonest intention to cheat the respondent No. 1 and further the disputed questions of facts have been raised by the petitioners which cannot be adjudicated upon while adjudicating the present petition. 7. 6. On the contrary, Mr. R.D. Singh Bandral, learned counsel for respondent No. 1 vehemently argued that right from the beginning, the petitioner No. 2 had dishonest intention to cheat the respondent No. 1 and further the disputed questions of facts have been raised by the petitioners which cannot be adjudicated upon while adjudicating the present petition. 7. Heard and perused the record as well as the orders of the learned Magistrate. 8. The respondent No. 1 has filed a complaint on the basis of an agreement dated 23.11.2020, which has been duly admitted by petitioner No. 2 as well. The relevant portion of the aforesaid agreement is reproduced as under: “1. That the party of the first part has received an amount of Rs. 1,30,000/- (Rupees One Lakh Thirty Thousand only) from the party of the second part and balance amount of Rs. 4,50,000/- (Rupees Four Lakh Fifty Thousand only) shall be paid by the party of the second part to the bank in equal monthly instalments on behalf party of the first part. 2. That the party of the first part has handed over the possession of the aforesaid vehicle along with its all the relevant documents to the party of the second part, who shall be entitled to use the aforesaid vehicle in the manner she likes. 3. That party of the first part undertakes that he shall execute all the necessary documents for transfer of the aforesaid vehicle in favour of the party of the second part after liquidation of entire outstanding amount of the financer by the party of the second part. 4. That part of the second part undertakes that she shall repay the entire loan along with interest outstanding in the loan account in respect of aforesaid vehicle and in case party of the second fails to repay the loan amount, the party of the first part shall be entitled to take the possession back of the aforesaid vehicle from the party of the second part in that event the party of the second part shall have no right to object the same.” 9. From the agreement, it is clear that the petitioner No. 2 has received an amount of Rs. 1,30,000/- from respondent No. 1 and the respondent No. 1 was under a legal obligation to pay the balance amount of Rs. 4,50,000/- i.e. the outstanding loan amount in equal monthly instalments. From the agreement, it is clear that the petitioner No. 2 has received an amount of Rs. 1,30,000/- from respondent No. 1 and the respondent No. 1 was under a legal obligation to pay the balance amount of Rs. 4,50,000/- i.e. the outstanding loan amount in equal monthly instalments. Further, the petitioner No. 2 was under an obligation to execute all the necessary documents for the transfer of the vehicle-truck in question in favour of the respondent No. 1 after the liquidation of the entire outstanding loan amount due towards the finance company. It was also one of the clauses in the agreement that in the event, respondent No. 1 failed to pay the amount, then the petitioner No. 2 was entitled to take back the possession of the vehicle-truck in question. The respondent No. 1 has placed on record certain receipts demonstrating the deposit of some amount with the finance company. 10. The dispute in the instant case is with regard to the terms and conditions of the agreement to sell dated 23.11.2020. A perusal of the order dated 03.07.2021 reveals that the learned Magistrate has recorded his satisfaction with regard to the commission of offence under section 420 IPC but in order to find the veracity of the allegations, the complaint was forwarded to the SHO Police Station, Billawar to conduct an inquiry under section 202 Cr.P.C. 11. The main grievance of the respondent No. 1 is that on 17.03.2021, the driver of the respondent No. 1 was plying the said vehicle and when he reached at Village Sukrala Billawar at about 7:00 PM, all the accused persons with their criminal and common intention snatched the said truck forcibly from him by putting the said driver under the fear of causing grievous injuries/killing as they claimed to have been armed with weapons. Simultaneously, the grievance was also made that the petitioner No. 1 had managed to release the said vehicle from the court by making a false statement that it was his personal vehicle. Respondent No. 1 is mainly relying upon the agreement to sell in order to lay a claim over the truck in question and her main grievance is that the possession of the truck be restored to her in terms of the conditions of the agreement mentioned above. Respondent No. 1 is mainly relying upon the agreement to sell in order to lay a claim over the truck in question and her main grievance is that the possession of the truck be restored to her in terms of the conditions of the agreement mentioned above. It would be relevant to take note of the averments made in para-6 of the complaint which is reproduced as under: “That all the accused have put the complainant in the wrongful loss of her hard earned money without any fault of her and now yesterday on 03.06.2021, all the accused threatened the complainant to do away with her and her husband's life, if she dare to contest any complaint against them. The complainant has made several requests to Police for restoring the possession of the said truck to the complainant but till date all in vain as such the complainant is filing this complaint against the accused persons so that an FIR against all of them may be registered against them and the possession of the Truck No. JK08A-9569, model 2007 may be restored to the complainant in the spirit of the terms and conditions of agreement mentioned above.” 12. It is evident that the respondent No. 1 in fact wants to get the possession of the truck and for that purpose the respondent No. 1 has resorted to criminal proceedings for enforcement of her civil rights. Whether she is having right of possession over the truck or not, the issue is required to be considered by the civil court and the criminal proceedings cannot be resorted to settle the civil dispute. It would be profitable to take note of the observations made in Deepak Gaba vs. State of U.P. 2023 SCC Online SC 3, wherein Hon'ble Apex Court has held as under: 22. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by respondent no. 2-complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420, and 471 of the IPC, as the allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Limited vs. K.M. Johny, 2011 (13) SCC 412 as it refers to earlier case laws in copious detail. In Thermax Limited (Supra), it was pointed that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued [Birla Corporation Limited vs. Adventz Investments and Holdings Limited and Others, (2019) 16 SCC 610 , Pepsi Foods Ltd. (Supra) and Mehmood Ul Rehman vs. Khazir Mohammad Tunda, (2015) 12 SCC 420 ]. Summoning order is to be passed when the complainant discloses the offence and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times. (Emphasis Supplied) 13. The perusal of the order dated 10.07.2021 reveals that the learned Magistrate has issued process against the petitioners and the proforma respondent after the receipt of the report under section 202 Cr.P.C. without recording its satisfaction that the offence under section 420 IPC is made against the petitioner and the other accused. The perusal of the complaint reveals that the ingredients of offence under section 420 IPC are absolutely missing. The learned Magistrate has issued the process in mechanical manner and has failed to take note that the respondent No. 1 wanted to get the vehicle back by filing the criminal complaint. 14. Viewed thus, the present petition is allowed and the criminal proceedings arising out of complaint, titled, Neelam vs. Talib Hussain and Others as well as the order dated 10.07.2021 by virtue of which, learned JMIC, Billawar, has issued the process against the petitioners and the proforma respondent No. 2 are quashed.