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2023 DIGILAW 918 (JHR)

Md. Shamshad Alam v. State of Jharkhand

2023-07-24

SUJIT NARAYAN PRASAD

body2023
JUDGMENT : 1. The instant petitions under Section 482 of the Code of Criminal Procedure are filed for quashing of the entire criminal proceeding including the order taking cognizance dated 11.03.2021 and 17.02.2017 by which the cognizance of the offence have been taken under Section 420 of IPC arising out of Complaint Case No. 1979 of 2015 and under Sections 420, 406 and 120-B of IPC in connection with Complaint Case No. 2108 of 2015. 2. The brief facts of the case as per the version of the complainant as disclosed in the complaint petition, reads as under: Cr. M.P. No. 4400 of 2022: The case of the complainant is that he is retired personnel who on instance of one Mahendra Turi, who, on coming to know about one company named Kolkata Ware Industries, convinced the complainant that it is a banking company which enhances the invested money to double in the span of three-four and a half year. It is further alleged that the present petitioner, accused no.3 in the complaint, along with the other accused persons have convinced the complainant to invest the money in the said company after showing him various documents. Thereafter, the complainant invested Rs.5.85 lakhs in the company between 2010-13 and on completion of time period, another accused person who was working as accomplish, issued receipt and stated that they will pay the matured amount within 15 days. But, on 26.03.2014, the complainant came to know that the company has been closed and on inquiry, it was informed that the company is planning to establish its own house since there are some differences between the landlord and the company, but, the company never opened. The petitioner and other accused persons, have only given assurance to the complainant but never disbursed the matured amount. For redressal of grievance, the complainant filed the complaint case being Complaint Case No. 1979 of 2015 and accordingly, after perusal of the record, the court of Judicial Magistrate, First Class, Giridih took cognizance of the offence vide order dated 11.03.2021. Cr. M.P. No. 4462 of 2022: The case of the complainant is that on instance of one Krishna, who, on coming to know about one company named Kolkata Ware Industries, convinced the complainant that it is a banking company which enhances the invested money to double in the span of three-four and a half year. Cr. M.P. No. 4462 of 2022: The case of the complainant is that on instance of one Krishna, who, on coming to know about one company named Kolkata Ware Industries, convinced the complainant that it is a banking company which enhances the invested money to double in the span of three-four and a half year. It is further alleged that the present petitioner, accused no.3 in the complaint, along with the other accused persons have convinced the complainant to invest the money in the said company after showing him various documents. Thereafter, the complainant invested Rs.10.90 lakhs in the company between 2010-13. But, on 26.03.2014, the complainant came to know that the company has been closed. The petitioner and other accused persons, have only given assurance to the complainant but never disbursed the matured amount. For redressal of grievance, the complainant filed the complaint case being Complaint Case No. 2108 of 2015 and accordingly, after perusal of the record, the court of Judicial Magistrate, First Class, Giridih took cognizance of the offence vide order dated 17.02.2017. 3. Learned counsel for the petitioner has submitted that the entire criminal proceeding including the order taking cognizance dated 11.03.2021 and 17.02.2017, by which the cognizance has been taken, is nothing but misuse of proceeding and only to harass the petitioner, the same has been filed, therefore, the entire criminal proceeding is fit to be quashed. Such submission has been made on the following grounds: (i) The first ground is that if the entire complaint petitions will be taken into consideration on its face value, no prima facie case is made out against the petitioner; (ii) There is no ingredient of Section 420 of IPC since there is no allegation to the effect that the money was collected by way of any inducement; (iii) The petitioner himself is a victim since he was working as a computer operator but had not been paid remuneration/salary due to the closure of the said company; (iv) The company has not been arrayed as a party and in support of this contention, he has relied upon a judgment rendered by the Hon'ble Apex Court in Aneeta Hada vs. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661 . (v) The ground has also been agitated that if the entire nature of allegation as stated in the complaint petitions will be taken into consideration in entirety, the same is for the purpose of recovery of the amount so invested, therefore, the litigation is civil in nature; (vi) The last ground has been taken that the complainant himself was an agent since he was a platinum club member and he is the person who has collected money from different customers and when the company itself has been closed, thereafter, the complaint case has been filed in order to save himself. 4. While, on the other hand, Mrs. Ruby Pandey, learned Additional Public Prosecutor appearing for the opposite party-State has submitted that it is incorrect of the part of the petitioner to take the ground that no prima facie case is made out since it is evident from the complaint itself coupled with solemn affirmation wherein it has come specifically that it is the petitioner who has convinced the customers for investing the money in the non-financial institution. The argument has been advanced in reply to the fact that the allegation levelled in the complaint case is not in conformity with the solemn affirmation but the submission has been made by placing the solemn affirmation as available in the paperbook that it is the petitioner who, when approached by the complainant then he informed that the company will be opened within 10 days but even beyond the period of 10 days, when the company was not opened, then the petitioner assured that he will go to Kolkata and see the matter. Thereafter, the petitioner had gone to Kolkata along with the complainant including the others but there also they have found that the office of the company was closed. It has been contended therefore that the allegation which has been levelled in the complaint as under paragraph-2 is being supported by the solemn affirmation. Moreover, the submission has been made that the admitted fact since depends upon the appreciation of the fact, therefore, at this stage, the entire proceeding cannot be quashed. 5. The argument has been advanced so far as non-availability of Section 420 of IPC is concerned, it has been submitted that the ingredient of Section 420 of IPC is that since the inception is there. 5. The argument has been advanced so far as non-availability of Section 420 of IPC is concerned, it has been submitted that the ingredient of Section 420 of IPC is that since the inception is there. Herein, the entire allegation of the complaint case will be taken into consideration together with the solemn affirmation, it would clearly establish that there was clear intent of deceit right from the beginning, hence, it is incorrect on the part of the petitioner to take the ground that the ingredient of Section 420 of IPC is not available. Coupled with the said argument, it has also been submitted that the aforesaid aspect of the matter also cannot be taken at this stage since the same depends upon the evidence which is to be taken in course of trial as to whether the intent of the company including the petitioner was for deceitful in nature. 6. The argument has been advanced so far as the fact that the petitioner was himself a victim, the same totally depends upon the appreciation of factual aspect, as such, it is incorrect on the part of the petitioner to take the aforesaid ground of victimization due to the closure of the company rather the same is also required to be appreciated at the stage of trial, i.e., when the evidence will be taken. 7. The response has been given, so far as the fact that the company was not arrayed as party, that the company although has not been arrayed as party but merely because the company has not been arrayed as party, the liability of the petitioner will not be washed away because specific attributably has been levelled by the victim complainant against the petitioner regarding convincing them to invest money in the said company. Therefore, merely the company has not been arrayed as a party, the criminal proceeding will not vitiate. 8. Therefore, merely the company has not been arrayed as a party, the criminal proceeding will not vitiate. 8. So far as the argument with respect to the fact that the complaint case has been filed only to recover the money therefore, it is a dispute which is civil nature, but, the same is also not applicable since even accepting the dispute having civil in nature then also the criminal liability of the petitioner will not go away since in the criminal liability the intent of the petitioner is to be looked into while so far as the recovery is concerned, the same is on different parameter having no connection with the intent of criminality with the recovery. 9. So far as the ground that the complainant was aged, in support thereof Annexure-3 has been relied, it has been contended that the same depends upon the factual aspect, therefore, the same can only be looked into at the stage of trial and not at this stage. Learned counsel for the opposite party-State, on the aforesaid premise, has submitted that it is not a fit case where the criminal proceeding is to be quashed. 10. This Court has heard the learned counsel for the parties and gone across the imputation of the allegation as levelled in the complaint petition and the solemn affirmation of the complainant. 11. This Court, before proceeding to examine as to whether the case is fit for showing interference in exercise of inherent power under Section 482 of Cr.P.C. for quashing the entire criminal proceeding, deems it fit and proper to refer the principle governing as to whether under which circumstances, the criminal case including the entire proceeding is to be quashed. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in R.P. Kapur vs. State of Punjab, AIR (1960) SC 866 wherein the Hon'ble Apex Court has been pleased to lay down parameters, which is being referred as under: “6. Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561-A of the Code. Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the Magistrate before whom the police report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point.” 12. The aforesaid judgment is still a good law having been followed by the Hon'ble Apex Court in State of Haryana and Ors. vs. Bhajan Lal and Ors., 1992 Supp (1) SCC 335 and it is being followed regarding the principle governing the scope of interference in the criminal proceeding at the threshold. Relevant paragraph of the said judgment, i.e., paragraph-102, is being referred 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 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 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. (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.” 13. This Court is now proceeding to examine the argument advanced on behalf of the parties so as to come to the finding that the entire criminal proceeding including the order taking cognizance requires interference or not and the first argument is that no prima facie case is made out. 14. This Court is now proceeding to examine the argument advanced on behalf of the parties so as to come to the finding that the entire criminal proceeding including the order taking cognizance requires interference or not and the first argument is that no prima facie case is made out. 14. This Court in order to appreciate the said argument has considered the imputation of allegation as levelled in the complaint petition wherefrom it is evident from paragraph-2 that there is specific allegation that the petitioner, who was accused no.3 along with accused nos.1, 2 and 4 time and again approached the complainant for investing the money with assurance that they will not be subjected to any forgery and if in future any amount will not be repaid, the same will be paid by the accused persons along with interest. For ready reference, the said paragraph is being referred as under: ^^2- ;g fd vfHk;qDr laŒ 01] 02] 03 ,oa 04 us vfHk;ksxh dks iSlk tek djus ds fy, vusdks ckj ?kj tk tk dj le>k;k rFkk ;g oknk fd;k fd ge yksx fxfjMhg ftyk ds fuoklh gSA fdlh izdkj dh /kks[kk&/kMh ugh gksxh vxj Hkfo"; esa ,slk dqN gksrk gS rks vki ds iSLkks dks ge yksx lwn lfgr ykSVk;saxsA var% vfHk;ksxh mDr pkjksa vfHk;qDrks ds >kals esa vkdj viuk iSlk tks lsok fuo`fr ds i'pkr feyk Fkk vkSj csVh dh 'kknh ds fy, NksVs NksVs fuos'kks es tek j[kk Fkk mls rksM+dj vfHk;qDRk laŒ 01] 02 ,oa 03 dks muds }kjk pyk;h tk jgh dEiuh es tek djus ds fy,s ck/; gksdj fuEu izdkj iSlk fn;kA bl Øe es vfHk;qDr laŒ05 rk 10 Hkh iwjh rjg lafyIr jgs 05 rk 10 dks mDr dEiuh dk mPp vf/kdkjh crk;k vkSj yksx dEiuh izpkj&izlkj esa cjkcj fxfjMhg vkrs rFkk yksxks dks izksRlkfgr ,oa izsfjr djus ds fy, gksVyksa esa izksxzke djrs FksA vfHk;ksxh }kjk tek fd;k x;k iSlk fuEu izdkj gS ftldh dEiuh jlhn ekStwn gSA fnukad tek dh xbZ jkf'k 02.12.2010 50,000/- 03.01.2011 50,000/- 03.01.2011 50,000/- 07.02.2011 10,000/- 01.06.2011 50,000/- 01.06.2011 5,000/- 17.08.2011 50,000/- 06.09.2011 50,000/- 06.01.2012 25,000/- 06.01.2012 25,000/- 24.09.2012 10,000/- 06.10.2012 10,000/- 16.08.2013 25,000/- 16.08.2013 25,000/- 10.09.2013 50,000/- 06.02.2013 60,000/- 06.07.2013 10,000/- 19.08.2013 10,000/- 07.10.2013 10,000/- 07.10.2013 10,000/- dqy tek jkf'k 5,85,000/- 15. It further appears from paragraph-3 that the office of the said non-financial institution was running from 2010-13 in the district of Giridih under the supervision of the accused no.1 to 4. It further appears from the solemn affirmation that the complainant has supported the aforesaid version which would be evident from the content of the version of the complainant wherein it has been stated that the complainant has approached the petitioner for repayment of the said amount since they came to know that the company was closed from the year 2014 and they have invested the money which he has got under the retirement head. It is further evident therefrom that the petitioner had assured them that within 10 days, the office of the company will be opened. The complainant had again approached after 10 days but the office of the company had not been found opened and it is the petitioner who had apprised them that he will go to Kolkata and see, thereafter, he had gone to Kolkata along with the petitioner and other customers but the company was found to be closed. 16. The aforesaid version as recorded by the learned court by way of solemn affirmation, this Court prima facie is of the view that the same is in conformity with the allegation as referred in paragraph-2 for the reason that if the plea of the petitioner will be taken to be correct that he was merely a computer operator then in that circumstances he would not have assured the complainant and others that the company will be opened within 10 days and further, he has also rushed to Kolkata to see. If the petitioner was not having any nexus with the customers like that of the complainant, there was no reason for the petitioner to give them assurance. 17. This Court, in that view of the matter, is of the view that the ground which has been taken that no prima facie case is made out, is having no substance, accordingly, rejected. 18. So far as the non-availability of ingredient of Section 420 of IPC is concerned, it is not in dispute that in order to make out a case under Section 420 of IPC, the intention to deceive is to be there since inspection. 19. 18. So far as the non-availability of ingredient of Section 420 of IPC is concerned, it is not in dispute that in order to make out a case under Section 420 of IPC, the intention to deceive is to be there since inspection. 19. At this stage It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. 20. Further it is settled preposition of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the concerned Court, at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. Reference in this regard may be taken from the judgment as rendered by the Hon’ble Apex Court in the case of M.A.A. Annamalai v. State of Karnataka reported in (2010) 8 SCC 524 wherein at para-34 it has been observed as under: 34. Reliance was also placed on Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [ (2000) 3 SCC 269 ] wherein this Court observed as under: (SCC p. 278, para 14) “14. Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint.” 21. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint.” 21. This Court, since is at the stage of consideration of the aforesaid ground in order to assist as to whether the ingredient of Section 420 of IPC is available or not, is not going into detail otherwise the case of the petitioner will be prejudiced in trial but so far as the prima facie is concerned, this Court is of the view that at this stage, the ground of non-availability of ingredient of Section 420 of IPC cannot be said to be there. 22. This Court at this stage, is only to see the prima facie case as to whether the accused, the petitioner herein, has been able to make out a prima facie case of non-availability of the ingredient, therefore, this Court is of the view by bare reading of the entire complaint case coupled with the statement made in the solemn affirmation that it is incorrect to say that there is no ingredient of Section 420 of IPC. 23. So far as the fact about that the petitioner himself is a victim and was working for the company or the company has not been arrayed as a party or the suit is civil in nature, according to the considered view of this Court, the same is factual aspect which cannot be considered at this stage on the basis of the principle laid down by the Hon'ble Apex Court in R.P. Kapur vs. State of Punjab (supra) and State of Haryana and Ors. vs. Bhajan Lal and Ors. (supra) wherein only requirement to see that the criminal case along with its entire proceeding is to be quashed at the threshold by considering the allegation as has been levelled in the complaint or in the FIR as to whether by bare reading of the same the case is made out on its face value or not. 24. This Court, therefore, is of the view by applying the aforesaid principle as laid down by the Hon'ble Apex Court in R.P. Kapur vs. State of Punjab (supra), and State of Haryana and Ors. vs. Bhajan Lal and Ors. 24. This Court, therefore, is of the view by applying the aforesaid principle as laid down by the Hon'ble Apex Court in R.P. Kapur vs. State of Punjab (supra), and State of Haryana and Ors. vs. Bhajan Lal and Ors. (supra) none of the ingredient is available for showing interference for quashing the entire criminal proceeding including the order taking cognizance dated 11.03.2021 and 17.02.2017. 25. Accordingly, both the instant criminal misc. petitions fail and stand dismissed.