Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 859 (RAJ)

Dharmesh Brahmin v. State of Rajasthan

2023-04-18

MANOJ KUMAR GARG

body2023
JUDGMENT : MANOJ KUMAR GARG, J. 1. Instant misc. petition has been filed by the petitioner for quashing of FIR No. 229/2021 registered at Police Station Khamnor, District Rajsamand for offence under Section 420, 406, 120B IPC and Section 4, 5, 6 of Prize Chits & Money Circulation Schemes (Banning) Act, 1978. 2. Brief facts of the case are that an FIR No. 229/2021 came to be lodged by the complainant against the petitioners stating therein that the present petitioners came to his village about three and half years back and suggested to invest money in their company and assured that the company will provide 5% dividend. The complainant invested a sum of Rs. 14 lacs on different dates, however, the petitioners accused failed to give returns and also did not refund the invested amount. Thus, the accused persons cheated the complainant and took money from the complainant. 3. Counsel for the petitioners submits, that as per definition of “conventional chit” means a transaction in which a person responsible for the conduct of the chit enters into an agreement with a specific number of persons that every one of them shall subscribe a certain sum of money by way of periodical instalments, for a definite period and that such subscriber, shall in his turn, as determined by lot or by auction or by tender or in such manner as may be provided for in the chit agreement be entitled to a prize amount, whereas, in the present case, the company of petitioners dealt in business of shares/stock securities and therefore, offence under Section 4, 5, 6 of the Act of 1978 is not at all made out. It is argued that petitioners were operating the business of shares and the complainant had invested his amount in stock securities and as per terms of business, the investor and operator both are equally liable for loss and profit. Thus, if there is any loss to the company, the liabilities passes on to both the parties. It is argued that the complainant had invested a sum of Rs. 4 lacs in the company, out of. which a sum of Rs. 3 lacs has already been withdrawn by the complainant. Similarly, complainant's brother Basant Singh had deposited a sum of Rs. 1 lac, out of which, Rs. 90,000/- has been refunded in. the account of Basant Singh. It is argued that the complainant had invested a sum of Rs. 4 lacs in the company, out of. which a sum of Rs. 3 lacs has already been withdrawn by the complainant. Similarly, complainant's brother Basant Singh had deposited a sum of Rs. 1 lac, out of which, Rs. 90,000/- has been refunded in. the account of Basant Singh. It is also argued that the basic ingredient of offence of cheating u/s. 420 which is fraudulent or dishonest inducement (which is required to be in existence since inception) is clearly lacking. The complainant only with a view to harass and pressurize the petitioner, has filed the present FIR. Therefore, it is prayed that the FIR may be quashed. He placed reliance on judgment of Hon'ble Apex Court in the case of Joseph Salvaraj v. State of Gujarat, (2011) 7 SCC 59 : AIR 2011 SC 2258 , Binod Kumar v. State of Bihar, 2014 SCW 6310 and order passed by Jaipur Bench of this Court in the case of Bhupindr Singh Kochar v. State of Raj, 2015 WLC (Raj) UC 663. 4. Learned Public Prosecutor vehemently argued that offences as alleged by the complainant has been prima facie proved after thorough investigation by the police inasmuch if the petitioners had operated the business of shares, there would have been an agreement between the parties but no such agreement exists between the parties. The petitioners are involved in illegal business of cheating the innocent persons and several other criminal cases of similar nature have been registered against the accused petitioners at Mumbai (Maharashtra). Moreover, the fraudulent and dishonest intention can be gathered from the fact that the accused petitioners were absconding from their residence and did not appear before the investigating officer nor cooperated in the investigation. It is submitted that prima facie case is established against the petitioners, therefore, at this stage, the FIR is not liable to be quashed. 5. I have considered the rival arguments and carefully gone through the FIR and material on record. 6. From the perusal of the FIR and material on record it is revealed that the accused petitioners in furtherance of conspiracy, allured people to invest in their company and took money from them. The complainant has made payment to the accused petitioners and the specific allegation is made that petitioners had misappropriated the complainant's money to the tune of Rs. From the perusal of the FIR and material on record it is revealed that the accused petitioners in furtherance of conspiracy, allured people to invest in their company and took money from them. The complainant has made payment to the accused petitioners and the specific allegation is made that petitioners had misappropriated the complainant's money to the tune of Rs. 14 lacs and the same has not been refunded. Thus, a prima facie case of cheating and siphoning off money belonging to the innocent investors is made out against the petitioners. So far as the allegation that charge under Sections 4, 5, 6 of the Act of 1978 is not made out against the petitioners, is not the subject under Section 482 Cr.P.C. This ground could be raised by the petitioners before the Trial Court at the stage of charge and while deciding petition under Section 482 Cr.P.C. appreciation of evidence is not permissible as held in Allaudin Khan v. State of Bihar, (2019) 6 SCC 107 . Since the matter is at the investigation stage, it cannot be said that the FIR is liable to be quashed. 7. Hon'ble Supreme Court in the case of State of Haryana v. Choudhary Bhajanlal, 1992 Supp (1) SCC 335, laid down guidelines for exercising inherent powers under Section 482 Cr.P.C. to quash FIR and criminal proceedings. The Court held: “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. 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 noncognizable 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. 103. 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. 103. We 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.” 8. Yet again, Supreme Court, in case of Janta Pal v. H.S. Choudhary, (1992) 4 SCC 305 , while relying on Choudhary Bhajanlal's case, (supra), held: “This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the. proceedings at any stage. This Court in State of Haryana v. Ch. Bhajanlal, to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code.” 9. In another decision in the case of Pratibha v. Rameshwari Devi, JT (2007) 11 SC 122, the Hon'ble Apex Court held that while exercising the extraordinary jurisdiction under Section 482 Cr.P.C. the High Court cannot go beyond the allegations made in the F.I.R. or rely upon extraneous consideration. In another decision in the case of Pratibha v. Rameshwari Devi, JT (2007) 11 SC 122, the Hon'ble Apex Court held that while exercising the extraordinary jurisdiction under Section 482 Cr.P.C. the High Court cannot go beyond the allegations made in the F.I.R. or rely upon extraneous consideration. For the purpose of finding out the commission of a cognizable offence, the High Court is only required to look into the allegations made in the complaint or the F.I.R. 10. In another case of N. Soundaram v. P.K. Pounraj, (2014) 10 SCC 616 , Supreme Court, while reiterating the principles laid down in Bhajan Lai (supra) on scope of exercise of powers under Section 482 Cr.P.C. held: “It is well settled by this Court in a catena of cases that the power under Section 482 Cr.P.C. has to be exercised sparingly and cautiously to prevent the abuse of process of any Court and to secure the ends of justice [See State of Haryana v. Bhajanlal]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482, Cr.P.C. [See MCD v. Ram Kishan Rohtagi]. An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora].” 11. In the case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 Cri. L.J. 2419, Hon'ble Apex Court, on scope of exercise of powers under Section 482 of Cr.P.C. in Para 23(xii) & (xv) observed as under: “(xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure. (xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C. only has to consider whether the allegations in the FIR disclose the commission of a cognizable offence or not. The Court is not required to consider on merits whether the merits of the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.” 12. So far as the judgments cited by counsel for the Petitioners are concerned, it cannot be applied as a uniform standard to each and every case, but each case will have to be decided on its own facts. Although it is a well settled legal position that for an offence of cheating to be made out, it is to be shown that the accused had fraudulent or dishonest intention from the very inception i.e. when promise or representation was made and mere not keeping the promise later on does not amount such an offence, but at the same time, it is also a settled legal position that subsequent conduct of the accused is also relevant fact to infer whether the accused was having such an intention at the time when the offence was committed; The present case is not an isolated one but criminal cases of similar nature have been registered against the petitioners in Mumbai (Maharashtra) which smacks deep rooted conspiracy of the petitioners in misappropriating money of investors. 13. In the facts and circumstances of the case so also in the light of the judicial pronouncements of Hon'ble Apex Court, no case for quashing of FIR No. 229/2021 registered at Police Station Khamnor, District Rajsamand is made out. Hence, the misc. petition is hereby dismissed. Stay petition is also dismissed.