Allahabad High Court
Nitin Jain And Others vs State Of U.P. & Another on 28 November, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Case :- APPLICATION U/S 482 No. - 18256 of 2012 AFR
Applicant :- Nitin Jain And Others
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Vijaya Prakash
Counsel for Opposite Party :- Govt. Advocate,Dinesh Pathak,Rakesh Pathak
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the parties.
The applicants, by means of the present application under Section 482 Cr.P.C., have prayed for quashing of the entire proceedings of Complaint Case No.5870 of 2010, Ram Singh Vs. Nitin Jain and others, under Section 420, 406, 323, 504, 506 IPC, Police Station Sahibabad, District Ghaziabad pending before the Additional Chief Judicial Magistrate Court No.6, Ghaziabad, as well as the summoning order dated 05.02.2011. The applicants have also challenged the order dated 25.06.2010 whereby the learned Magistrate has treated the application moved under Section 156(3) Cr.P.C. as complaint.
Brief facts as emanate from perusal of the records reflect that opposite party no.2 Ram Singh moved an application under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Ghaziabad, who in trun made over the case for proper disposal to the court of the Additional Chief Judicial Magistrate, Court No.6, Ghaziabad. The learned Magistrate after hearing the complainant-opposite party no.2 on merits of the application, directed vide his order dated 25.06.2010 that the application so moved is to be treated as a complaint. Thereafter the learned Magistrate proceeded to record statement of the complainant and his witnesses under Section 200 and 202 Cr.P.C. respectively. After hearing the complainant-opposite party no.2 on merits, learned Magistrate vide his order dated 05.02.2011 summoned the present applicants under Sections 420, 406, 323, 504, 506 I.P.C., Police Station Sahibabad, District Ghaziabad.
Feeling aggrieved by the same, the applicants have moved the instant application praying for quashing of the proceedings of complaint case (5870 of 2010), consequent summoning order dated 05.02.2011 and the order dated 25.06.2010 whereby learned Magistrate treated the application under Section 156 (3) Cr.P.C. as a complaint case.
I have heard respective submissions of both the sides and perused the record of the case as available on file.
The basic thrust of the argument advanced on behalf of the applicants is confined to the point that the complainant-opposite party no.2 Ram Singh moved false application after concealing material and relevant facts relating to the actual transaction that took place between the two Companies of the applicants as well as of the complainant-opposite party no.2. The dispute is basically of civil nature and it has been deliberately categorized as a criminal offence. Opposite party no.2 cannot be allowed to mischievously embark on criminal proceeding by imputing criminal intent on the part of the applicants, whereas, opposite party no.2 without any basis and out of vengeance, has concocted altogether false story of assault being caused to him at the hands of the applicants and has deliberately tried to conceal the material facts regarding full and final payment made by the applicant-Company and accepted by the son of opposite party no.2 say Jagdish Prasad, who projected himself to be the proprietor of M/s Turning Engineering Company.
Learned counsel for the applicants has further submitted that no relevant papers have been brought on record which may justify the claim of the complainant-opposite party no.2 and which may reveal the very manner of committing forgery in the record of the complainant-Company. No worth papers have been produced that may give inference to allegation that the actual payment stood to Rs.33,18,685 instead of Rs.14,65,569.20. He further submitted that in absence of details and particulars regarding the very manner of committing fraud, the only fact that comes out, shows shrewdness in cleverly drafting of complaint by the opposite party no.2 by misusing the process of law.
At this stage, learned counsel for opposite party no.2 has vehemently submitted that the actual outstanding liability stood to Rs.33,18,685/-, whereas, the applicants committed forgery and paid only Rs.14,65,569.20 towards the service utilized by the applicants-Company which fraud later on came to the knowledge of the complainant-Company whereupon the balance outstanding money was demanded from the applicants who in turn not only denied the actual payment but also beat up the complainant.
Learned counsel further added that all the relevant particulars of the fraud have been specifically stated in the complaint. Jagdish Prasad is not proprietor of the complainant-Company and he had no authority to settle the matter on behalf of the complainant-Company with the present applicants. He has further denied suggestion of the applicants that the dispute relates to the civil nature. The very facts alleged in the complaint by opposite party no.2 prima facie make out offence against the applicants and the order passed by the learned Magistrate dated 25.06.2010 whereby he treated the application under Section 156(3) Cr.P.C. as a complaint (case) and the summoning order passed by the Magistrate, dated 05.02.2011 pursuant thereto is wholly justified. The course of action adopted by the complainant can not be termed as misuse of process of law.
In view of the above rival submissions, the moot point which arises for consideration before this Court qua the fact is whether the application moved under Section 156(3) Cr.P.C. by the complainant before the learned Magistrate is confined to civil dispute and the course of action so adopted is misuse/abuse of process of the Court?
As per claim of the applicants, they have urged that the controversy in issue is one basically of civil nature and this fact is amply borne out by perusal of the contents of the complaint moved by opposite party no.2. In this context, perusal of the contents of the complaint dated 08.02.2010 moved by opposite party no.2 Ram Singh reflects that allegations have been made to the extent that some auto parts were purchased by the applicants-Company from the complainant-Company and auto parts were supplied in pursuance thereto. After ensuring partial payment towards cost of auto parts, the applicants-(Company) stopped the payment. However, they requested opposite party no.2-(Company) to keep on supplying auto parts and full payment will be made.
After liability of the applicants for payment arose to Rs.33,18,685/- when demand for payment was made by the complainant. But the demand so made was refused. Later on Vivek Agrawal and Y.K. Sharma, Secretary of the applicants-Company informed the complainant on 06.09.2009 that the complainant should pay Rs.4,00,000/- in case he wished payment of the goods supplied by him. When the complainant refused to act on this suggestion, he was assaulted by the above persons. Next day at about 11:00 a.m. the complainant went to the office of the factory/company of the applicants and informed about the above happening whereupon Nitin Jain, Manish Malik, Ashit Mehta also assaulted and threatened him with dire consequence.
As per allegations made in paragraph 4 of the complaint, the aforesaid Directors in collusion with Omveer Singh, the Manager, and Laxmi Chand conspired to cheat the complainant to the tune of Rs.18,53,115/- by committing forgery in actual payment of Rs.33,18,685/- by making partial payment of Rs.14,65,569.20.
Perusal of the statement of the complainant and witness recorded under Sections 200 and 202 Cr.P.C. respectively, in support of the complaint reveals that no whisper regarding manner of committing forgery has been made which may give credence to the outstanding payment to the claim of opposite party no.2 Ram Singh that in place of actual payment of Rs.33,18,685/- only partial payment of Rs.14,65,569.20 has been made.
As per counter affidavit filed on behalf of opposite party no.2, specific averments have been made in paragraph no.17 which is reproduced hereinbelow:
"17. That the contents of paragraph nos.16-A, 16-B, 16-C, 16-D 1.2, 16-E & 16-F of the affidavit are wrong, hence denied. It is respectfully submitted that the documents which are relied by the applicants are forged and fabricated. Deponent has no concerned with the aforesaid documents."
The aforementioned paragraph relates to the specific reply to paragraph nos. 16-A, 16-B, 16-C, 16-D 1.2, 16-E & 16-F of the affidavit filed by the present applicants in support of their application.
The above pleadings as extracted from paragraph no.17 of the counter affidavit alludes to inference that the complainant denied authenticity of the averments contained in application regarding full and final payment of Rs.14,65,569.20 by the applicants-Company and its deposition in complainant's account.
Perusal of the record further shows that as per annexures appended to the present application, the matter was settled by one Jagdish Prasad (the son of opposite party no.2 Ram Singh), the so-called proprietor for M/s Turning Engineering Company executed memorandum of settlement, copy whereof makes it obvious that total payment has been finally settled between the complainant-Company and the applicants. The person who made an endorsement on behalf of M/s Turning Engineering Company is stated to be Jagdish Prasad who as per the pleadings made between the parties is son of opposite party no.2. Specific pleading on point of Jagdish Prasad being son of opposite party no.2 Ram Singh has not been denied.
In rejoinder affidavit filed by the applicants, it has been stated in paragraph no.9 that Jagdish Prasad is son of the complainant and he made full and final settlement with M/s Madhusudan Auto Ltd. after receiving the entire payment and nothing is due.
It is surprising that in the complaint itself, opposite party no.2 has admitted to have received the payment of Rs.14,65,569.20 and claims that Rs.18,53,115.80 remains to be paid by the applicants. Nothing has been brought on record either by way of counter affidavit or by supplementary counter affidavit to establish the claim of the complainant that the actual payment to be made stood to Rs.33,18,685/- and only partial payment of Rs.14,65,569.20 has been made by the applicants-Company. Relevant accountancy register has not been brought on record. It is surprising that after the applicants had made it specific that Jagdish Prasad who happens to be son of opposite party no.2 has appropriately issued letter to the applicants to the effect that nothing remains to be paid at the end of the applicants after the above payment of Rs.14,65,569.20.
In the supplementary counter affidavit filed by opposite party no.2, it has been specifically stated in paragraph no.7 thereof that Jagdish Prasad is neither proprietor of Turning Engineering Company nor he has been authorized to settle the dispute between the complainant and applicants. If it is so exactly then as to how and why the entire complaint, statement of the complainant and witness are absolutely silent about the role of Jagdish Prasad. The complainant had ample opportunity to come out with the case that the papers, purportedly signed and issued by Jagdish Prasad, are forged and the some clinching evidence or document ought to have been produced or brought on record showing it well as to who received the cheque worth Rs.14,65,569.20 and as to who issued the receipt for the cheque so received on behalf of the complainant-Company and non-production of any such record before the Court tilts this case in favour of the applicants than the complainant-opposite party no.2 to the extent that the dispute involved is one of civil nature.
Hence the contention of the learned counsel for the applicants to the extent that the dispute specifically relates to the civil nature is predominantly established. This fact is amply borne out by the admission of opposite party no.2 himself as made in paragraph no.8 of the supplementary counter affidavit wherein it has been stated in categorical term that full and final payment has been made between the complainant and the applicants. No clarification has been given even at the time of argument or after filing of this supplementary counter affidavit on behalf of opposite party no.2 that the aforesaid admission/assertion was mistakenly given.
In view of the aforesaid specific admission made in paragraph no.8 of the supplementary counter affidavit, it is obvious that the matter has been settled between the complainant and the applicants and final payment has been made in satisfaction of the goods supplied and the son of opposite party no.2 Jagdish Prasad has himself interacted with the applicants. Had it not been so, allegation of cheating, forgery and conspiracy must have been agitated more strongly by Jagdish Prasad against the applicants. But Jagdish Prasad has kept silent.
On careful scrutiny of record, I could not come across even a single piece of paper which could elaborate on the point that son of the complainant Jagdish Prasad who acted in the capacity of proprietor was ever prosecuted with any offence on civil side at the behest of opposite party no.2. Either Jagdish Prasad or the complainant are answerable for entering into settlement between the two Companies if fact of final settlement is denied. The authority of Jagdish Prasad as proprietor of the Company has been stoutly denied by the complainant-opposite party no.2 by filing supplementary counter affidavit but no wisher of any action being taken against Jagdish Prasad has been made. The contention of the learned counsel for the applicants to the extent that the complainant has not come out with real facts and is guilty of suppressing and concealing material facts, carries force.
Now the centre point which attracts attention of the Court relates to the fact that the complainant has not made specific and particular allegations about the role of the applicants for committing forgery in the payment of total amount of payment to be made by the applicants to the complainant-Company. In view of above facts, the case in hand basically assumes civil nomenclature instead of being criminal offence. This fact certainly escaped attention of the learned Magistrate while scrutinizing the relevant material at his end in true perspective. It was incumbent upon the court below to have first discovered the basic nature of the dispute which altogether involves question of actual payment. If the complainant did not receive the so-called Rs.18,53,115.80 and which remains to be paid then instituting criminal proceedings was not sufficient to ensure payment of the aforesaid amount to the complainant.
Above discussion makes it apparent that the dispute between the parties is predominantly of civil wrong and the complainant has deliberately introduced the story of assault in order to wreck vengeance. The present controversy bears nomenclature of civil wrong which, per se, predominates the controversy then the dispute will not be branded a criminal offence as has been laid down by Hon'ble Apex Court in the case of GHCL Employees Stock Option Trust Vs. India Infoline Ltd. (2013) 2 SCC (Cri) 414. The relevant paragraph no.13 of the said decision is extracted as follows:
"There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence."
Now the point which crops up for consideration whether the proceedings initiated at the instance of the complainant is sheer misuse of the process of law or not? The inherent power under Section 482 Cr.P.C. is not to be exercised by this Court generally to stifle the legitimate prosecution but here the prosecution has been launched, in concealment of material facts in the name of wrecking vengeance on the applicants. The complainant very clverly chose to brand a civil dispute as criminal offence. It is obvious that the entire proceedings initiated at the instance of the complainant is in abuse of the process of the Court and the ends of justice require that such proceedings which have been initiated with an ulterior motive should not be allowed to go unchecked as that would adversely affect the ends of justice. At this stage, when the dispute in question is discovered to be predominantly of civil nature then an attempt to make it criminal offence should be thwarted and discouraged. The payment made in full satisfaction of the transaction is to be ascertained on the face of evidence and documents which may be scrutinized by the civil court of the competent jurisdiction. The complainant instead of choosing proper forum for realization of the claimed outstanding amount, has chosen a different path which will not serve the ultimate purpose of full payment. The dispute in question is purely of civil nature and the proceedings in question are discovered to be misuse of the process of the Court and the same cannot be allowed to go on any further.
In this context, it is relevant to mention the observations of the Hon'ble Apex Court made in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others 2008 (60) ACC page 1, in paragraph no.28 which is extracted hereinbelow:
This Court in State of Karnataka v. L. Muniswamy & Others, (1977) 2 SCC 699 observed that the wholesome power under section 482, Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this Court and other Courts.
In view of what has been discussed above, entire proceedings of Complaint Case No.5870 of 2010, Ram Singh Vs. Nitin Jain and others, under Section 420, 406, 323, 504, 506 IPC, Police Station Sahibabad, District Ghaziabad pending before the Additional Chief Judicial Magistrate Court No.6, Ghaziabad, as well as the order dated 05.02.2011 and order dated 25.06.2010 passed by the Additional Chief Judicial Magistrate, Court No.6, Ghaziabad are quashed. The application under Section 482 Cr.P.C. is allowed.
Let a copy of this order be certified to the court concerned for necessary compliance.
Dt. 28.11.2014 rkg