Allahabad High Court
Shailendra Singh vs State Of U.P. And Another on 14 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 23rd February, 2023. Delivered on 14th March, 2023 Court No. - 73 Case :- APPLICATION U/S 482 No. - 5947 of 2023 Applicant :- Shailendra Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ramanand Gupta,Harshit Gupta Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
1. From the perusal of the certified copy of the impugned order passed by the revisional court enclosed as Annexure-7 to the affidavit accompanying the present application, it is apparent that the said order has been passed on 16th January, 2023 but inadvertently, in the prayer clause of this application it has wrongly been transcribed as "16th January, 2022" in place of 16th January, 2023.
2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
3. This application under Section 482 Cr.P.C. has been filed for quashing the Judgement and order dated 16.01.2023 passed by learned Additional Sessions Judge-I, Lalitpur, whereby Criminal Revision No. 90 of 2022 (Shailendra Singh Vs. State of U.P. and another) filed by the revisionist has been rejected upholding the summoning order dated 14.02.2020 passed by learned Additional Chief Judicial Magistrate, Lalitpur passed in Complaint Case No. 3983 of 2018 (Sandeep Awasthi Vs. Shailendra Singh Bundela) under Sections 420, 504, 506 I.P.C. Police Station Taalbehat, District Lalitpur. The applicant has further prayed for stay of the entire proceedings of the aforesaid complaint case.
4. The crux of the allegations made in the complaint is that opposite party no.2 had moved an application under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Lalitpur stating therein that the complainant had very good relations with the applicant and he disclosed him that he works in the company in the name and style of "Shubhalaya Greens 303 R.K. Towar, M.P. in Bhopal", which provides plot on a very low prices. Further he offered him a plot measuring 20 x 70 yards in Bhaurikal, Madhya Pradesh at 5,25,000/-. Trusting on the proposal/offer given by the applicant, the complainant made his first payment of Rs. 50,000/- through Cheque no. 001669 Central Bank, Taalbehat, Lalitpur on 01.05.2015 in favour of Shubhalay Mines and Developers Pvt. Ltd., Central Bank Jail Road, Bhopal (M.P.) (hereinafter referred as the 'company of opposite party no.2") towards his purchase of the land and applicant gave a receipt bearing serial no. 901 dated 01.05.2015 to the complainant on behalf of the company. It is further alleged that after some time applicant again demanded Rs. 3,50,000/- out of remaining amount and complainant issued another cheque bearing cheque no. 891084 dated 12.05.2015 of amount 3,50,000/- in favour of company. Similarly, complainant invested Rs. 4,00,000/- in the said project. For one year several times the complainant contacted the applicant on the phone for execution of the sale-deed and he was assured by the applicant that work is in progress and the registry of the land will be done as soon as possible. Your plot has been booked. Later on the complainant came to know that the applicant/opposite party had taken money from several persons by cheating and promising them to give a plot, after which several calls were made by the complainant but the applicant/opposite party did not respond. Attaching the receipt and other documents, the applicant made an application before the Chairman, RERA Bhavan at Bhopal and the Chairman said that no transaction has been done by the applicant Shailendra Singh. Under the criminal conspiracy, the opposite party has taken money by luring many persons and did not return the money to anyone and a new firm Shrimant Vinayak Infrastructure has been formed by the applicant/opposite party under the guise of that company, the applicant/opposite party is doing similar work. On 01.06.2018, the complainant went to residence of opposite party and talked about his plot after being very upset and when he asked for his money back, the applicant behaved indecently, abused him, talked about usurping the money and threatened to kill him. After that, the complainant also sent a legal notice to the applicant/opposite party through an Advocate. Neither the applicant replied to the notice nor returned the money and there was no contact with the applicant nor was it known.
5. It is further alleged that on 13.08.2018 at around 10.00 am, the complainant received information that the applicant was at his home, then the complainant along with Satish Litauria Sanjay Srivastava went to the residence of the applicant and demanded his money and talked about the plot, then he abused him along with his associates and refused to give the money and said that your money have usurped. He also threatened them that if they demand their money or lodge any report to the Police Station, he will kill them. Just after, the complainant sent the information about the aforesaid incident to the concerned police station and he has also sent his report through registry to the Superintendent of Police, Lalitpur but no action was taken, due to which the complainant has filed the present complaint against the applicant under Section 156 (3) Cr.P.C.
6. After considering the facts and circumstances of the present case the Learned Additional Chief Judicial, Magistrate, Lalitpur summoned the applicant under section 420, 504, 506 IPC vide order dated 14.02.2020. Being aggrieved by the aforesaid summoning order dated 14.02.2020 applicant filed criminal revision along with delay condonation application before District- Judge, Lalitpur wherein he briefly explained his contention regarding misappropriation of money with complainant and said offence is made out against applicant. The said revision was admitted and the delay condonation application was allowed by the court below on 30.09.2022 and the court concerned also issued notice to complainant to resolve the controversy. However, vide judgement and order dated 16.01.2023 applicant's revision has been rejected by the District Judge, Lalitpur. During the pendency of the said revision Civil Judge Junior Division (F.T.C.), Lalitpur issued non- bailable warrant against applicant on 18.07.2022 and meantime the said court further proceeded with the proceedings of Section 82 Cr.P.C. on 02.09.2022.
7. It is the case of the applicant that he applicant was the employee of the company and the cheques in question was issued by the complainant in favour of company and being an agent the applicant only communicated the complainant about the company's offers and nothing more than that. The applicant had never forced to complainant to invest his money in aforesaid company/project. It is further stated that there is no forgery as alleged, is made out against the applicant, inasmuch as the applicant was completely unaware from the alleged forgery which was committed by the company. It was only on account of being employee false and frivolous complaint case has been registered against him at a belated stage by means of an application under Section 156 (3) Cr.P.C. It is further submitted that entire disputed amount has been duly received by the company and the company is not impleaded as party in present complaint case. Just on account of harassment complainant falsely implicated the applicant in present case without any cogent and clinching evidence. The entire proceedings of the present case are nothing but an abuse of process of law which is liable to be quashed by this Court.
8. Submission of the learned counsel for the applicant:
(i) The application of the complainant (opposite party no.2 herein) under section 156(3) Cr.P.C. came to be filed in the Court of Chief Judicial Magistrate, Lalitpur on 29.08.2018 after delay of 3 years of making his first payment towards company for which no plausible explanation has been given.
(ii) The court below has treated the aforesaid application as complaint case and recorded the statements of the complainant and his witnesses under Sections 200 & 202 Cr.P.C. In the statement recorded under Section 200 Cr.P.C., the complainant/opposite party no.2 has reiterated the same version as unfolded in his application under Section 156 (3) Cr.P.C.
(iii) Thereafter another person namely Anil came into picture apart from the witnesses mentioned in the complaint case and his statement has been recorded as P.W.-1 before the court concerned under section 202 Cr.P.C. in which he has supported prosecution story. As per his statement, he works at complainant's shop for many years.
(iv) Statement of Ajit Kumar, who was unknown person has been recorded under section 202 Cr.P.C. as P.W.-2 wherein he has reiterated the version as unfolded in the complaint case. The testimony of the P.W.2 is completely unreliable and unsustainable because he specifically alleged against the applicant and his statement before the court appears to be influenced by the complainant. Moreover, complainant has not adduced Satish Litoria and Sanjay Srivastava, who are alleged to be the witnesses of complaint and in place of them, the complainant has produced another two new witnesses i.e. Anil and Ajit Kumar only in order to strengthen his case.
(v) entire case is civil in nature wherein company in question misappropriates the money of the complainant and for the recovery of disputed amount complainant should institute a civil suit for recovery of 4 lacs from the company but the complainant opted criminal way to harass the applicant even when applicant has no role to play in the matter. In support of this submission, learned counsel for the applicant has placed on record the account statement of company and copy of registration certificate of the company which is incorporated under the companies act, 1956 having its registered office in Madhya Pradesh.
(vi) The aforesaid complaint has been moved by the opposite party no. 2 with ulterior motive only for harassment of the applicant meaning thereby entire prosecution story seems false and fabricated and is initiated only for harassing the applicant. The applicant has not received any single penny from the complainant and he resigned for the said company in 2015 after serving four months only therein.
(vii). The complainant/opposite party no.2 has neither impleaded the company in the complaint case as one of the opposite parties nor filed any civil suit for recovery of his earnest money and therefore, no offence under Sections 420, 504, 506 I.P.C can be said to be made out against the applicant.
In support of his case, learned counsel for the applicant has placed reliance upon the following judgments of the Hon'ble Supreme Court as well as this Court:
(a) Sayeed Yaseer Ibrahim Vs. State of U.P. & Another reported in 2020 0 Supreme (SC) 1280;
(b) R. Nagendra Yadav Vs. The State of Telangana & Another reported in 2022 0 Supreme (SC) 1250;
(c) Randheer Singh VS. The State of U.P. & Others reported in 2021 0 Supreme (SC) 664; and
(d) Raghvendra Singh & 3 Others Vs. State of U.P. & Another, in Application U/S 482 No. 2300 of 2016 decided on 11th August, 2022.
On the cumulative strength of the aforesaid,, the learned counsel for the applicant submits that the applicant is an innocent person, who has been falsely implicated in the aforesaid case and he has no criminal antecedents to his credit except the present one. The Additional Chief Judicial Magistrate, Lalitpur in a routine manner has summoned the applicant vide order dated 14.02.2020 to face trial under Sections 420, 504, 506 I.P.C. against which, the applicant preferred Criminal Revision No. 90 of 2022 (Shailendra Singh Vs. State of U.P. and another) which too has been illegally rejected by the learned revisional Court vide order dated 16.01.2022 without considering the factual and legal aspects of the matter and therefore. the impugned orders are liable to be quashed by this Court. Apart from the above, he also prays that since no case under Sections 420, 504, 506 I.P.C. is made out against the applicant as essential ingredients of cheating are missing, entire proceedings of the complaint case be quashed.
9. Per contra, learned A.G.A. has submitted that the impugned summoning order has been passed after appraising the evidence available on the face of record, which order has been rightly upheld by the learned revisional Court, therefore the impugned orders are perfectly, legal just and proper which calls for no interference by this Court in exercise of powers conferred under Section 482 Cr.P.C. jurisdiction. It is further submitted that from the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants at this stage. All the submissions made relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. He also submits that it is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. On the cumulative strength of the aforesaid, learned A.G.A. urges that offence under Sections 420,504 and 506 I.P.C. is made out against the applicants. The present application under Section 482 Cr.P.C. is devoid of merit and the same is liable to be dismissed by this Court.
10. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application under Section 482 Cr.P.C.
11. Seeing the fact that order dated 18th July, 2022 issuing non-bailable warrants has been issued to the applicant as also proceedings under Sections 82 Cr.P.C. have been initiated against him by the court below on 2nd September, 2022 and some documents as to whether the applicant was only an employee of the company or its owner or one of its partner have not been brought on record. Before proceeding on merit of the orders impugned, this Court was issuing notice to the complainant/opposite party no.2 calling upon him to file his counter affidavit along with the counter affidavit of the State, but the learned counsel for the applicant insisted the Court to decide this application finally on that day itself. Therefore, this Court has no other option but to decide the same on the basis of materials whichever are available on record.
12. So far as the submission made by the learned counsel for the applicant that there is a delay of three years in making application under Section 156 (3) Cr.P.C. by the complainant for which no plausible explanation has been given, is concerned, this Court may record that perusal of the present complaint case itself explains such delay. In the complaint it has been submitted by the applicant that after giving second cheque of Rs. 3,50,000/- to the applicant for purchasing the plot as offered by the applicant, the complainant contacted the applicant time and again, and on every occasion, the applicant avoided him. When the complainant met the applicant, he has taken time from the complainant ensuring every time that soon the sale-deed of the plot will be executed in his favour. The complainant has came to know that like the complainant, the applicant has also taken money from various persons for giving plot and he also avoided them and has not got the sale-deed executed qua the plot in their favour and he insisted him either to return his money or get the sale-deed executed in his favour, however, he was abused and threatened. After that the complainant made an application before the RERA where he has not obtained any fruitful order. Thereafter, he made various applications before the concerned Police Station and the Officer of the Police Department, this time again his request for lodging of the FIR in that regard has gone unheard. Hence he has approached the court below by filing an application under Section 156 (3) Cr.P.C. Because of the aforesaid reason, three years have elapsed and delay has occurred in the present case which is not on the part of the complainant.
13. Even otherwise, the Hon'ble Supreme Court of India in the case of State of H.P. Vs. Gian Chand reported in (2001) 6 SCC 71 has opined that the entire prosecution story could not be disbelieved on the ground of delay. Relevant paragraph 12 of the aforesaid judgment is as follows:
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the present case, PW1, the mother of the prosecutrix is a widow. The accused is a close relation of brother of late husband of PW1. PW1 obviously needed her family members consisting of her in-laws to accompany her or at least help her in lodging the first information report at the police station. The incident having occurred in a village, the approach of the in-laws of PW1 displayed rusticity in first calling upon the father of the accused and complaining to him of what his son had done. It remained an unpleasant family affair on the next day of the incident which was tried to be settled, if it could be, within the walls of family. That failed. It is thereafter only that the complainant, the widow woman, left all by herself and having no male family member willing to accompany her, proceeded alone to police station. She was lent moral support by Ruldu Ram, the village Panch, whereupon the report of the incident was lodged. The sequence of events soon following the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explanation for the delay. It was found to be so by the learned Sessions Judge. The High Court has not looked into the explanation offered and very superficially recorded a finding of the delay having remained unexplained and hence fatal to the prosecution case. It is common knowledge and also judicially noted fact that incidents like rape, more so when the perpetrator of the crime happens to be a member of the family or related therewith, involve the honour of the family and therefore there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the court. A cool thought may precede lodging of the FIR. Such are the observations found to have been made by this Court in State of Punjab Vs. Gurmit Singh & Ors., (1996) 2 SCC 384 and also in the case of Harpal Singh (1981) SCC Crl. 208. We are satisfied that the delay in making the FIR has been satisfactorily explained and therefore does not cause any dent in the prosecution case."
14. To the submission made by the learned counsel for the applicant that entire case is civil in nature, this Court may record that this case is not civil but criminal, in which the applicant received four lacs rupees in the name of is company for the purposes of providing land to the complainant. However, the complainant was neither allotted the land in his favour nor his money was returned due to which Rs. 4 lacs of the complainant is alleged to have been looted. When the complainant demanded his money from the applicant twice, he abused and threatened him. Apart from the above, there is no civil litigation pending between the applicant and the complainant as the stage of civil litigation has not been reached. This is a case of breach of trust.
The judgments relied upon by the learned counsel for the applicant in support of his aforesaid submission are not applicable in the facts of the present case In the case of Sayeed Yaseer Ibrahim (Supra), the Apex Court has not found any ingredient of Section 420 I.P.C. The Apex Court in R. Nagendra Yadav (Supra) has quashed the proceedings on the ground that for the same dispute civil suit was pending between the parties. In the case of Randheer Singh (Supra), the Hon'ble Supreme Court from the version of the FIR and the charge-sheet submitted has not found any case under Sections 420, 467, 468 and 471 I.P.C. being made out against the accused. In Raghvendra Singh (Supra), the Hon'ble Single Judge of this Court has observed that the dispute between the parties arose due to a forged will and such case does not relate to criminality.
15. Apart from the aforesaid two submissions advanced by the learned counsel for the applicant, the other submissions raise disputed question of fact and the correctness or otherwise of the same cannot be examined or decided at this pre-trial stage. This Court finds substance in the submissions made by the learned A.G.A. for the State in toto.
16. Now this Court comes on the issue of any cheating, fraud, deception, dishonesty being committed by the applicant in committing cheating upon the complainant by taking Rs. 4 lacs in the garb of purchase of a land.
17. Before coming to the merits of the submissions and replies on the issue of applicant on committing cheating, deception, fraud, it would be worthwhile to reproduce Section 420 I.P.C., which is cheating and defined in Section 415 I.P.C. and the same are being quoted herein-below:
"415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
18. In order to attract allegations of "cheating", following things must exist:
(i) deception of a person;
(ii) (A) fraudulent or dishonest inducement of that person,
(a) to deliver any property to any person; or,
(b) to consent that any person shall retain any property, (B) intentional inducing that person to do or omit to do any thing,
(a) which he would not do or omit if he was not so deceived, and,
(b) such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
(Emphasis added)
19. Then in order to attract Section 420 I.P.C., essential ingredients are:
(I) cheating;
(ii) dishonest inducement to deliver property or to make or destroy any valuable security or any thing which is sealed or signed or is capable of being converted into a valuable security; and,
(iii) mens rea of accused at the time of making inducement and which act of omission.
20. In Mahadeo Prasad Vs. State of West Bengal, reported in AIR 1954 SC 724 it was observed that to constitute offence of cheating, intention to deceive should be in existence at the time when inducement was offered.
21. In Jaswantrai Manilal Akhaney Vs. State of Bombay, reported in AIR 1956 SC 575, Court said that a guilty intention is an essential ingredient of the offence of cheating. For the offence of cheating, "mens rea" on the part of that person, must be established.
22. In G.V. Rao Vs. L.H.V. Prasad and others, reported in 2000(3) SCC 693, Court said that Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and in the second part the person should intentionally induce the complainant to do or omit to do a thing. In other words in the first part, inducement must be dishonest or fraudulent while in the second part, inducement should be intentional.
23. In Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another, reported in 2000(4) SCC 168, Court said that in the definition of 'cheating', there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducement must be fraudulent or dishonest. In the second class of acts, the inducement must be intentional but not fraudulent or dishonest. It was pointed out that there is a fine distinction between mere breach of contract and the offence of cheating. It depends upon the intention of accused at the time to inducement which may be judged by his subsequent conduct but for this, subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. In order to hold a person guilty of cheating it would be obligatory to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep up promise subsequently such a culpable intention right at the beginning, i.e, when he made the promise cannot be presumed.
24. In S.W. Palanitkar and others Vs. State of Bihar and another, reported in 2002(1) SCC 241, while examining the ingredients of Section 415 IPC, the aforesaid authorities were followed.
25. In Hira Lal Hari lal Bhagwati Vs. CBI, New Delhi, reported in 2003(5) SCC 257, Court said that to hold a person guilty of cheating under Section 415 IPC it is necessary to show that he has fraudulent or dishonest intention at the time of making promise with an intention to retain property. The Court further said:
"Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person, anybody's mind, reputation or property. In view of the aforesaid provisions, the appellants state that person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the Section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest."
(Emphasis added)
26. In Devender Kumar Singla Vs. Baldev Krishan Singh reported in 2004 (2) JT 539 (SC), it was held that making of a false representation is one of the ingredients of offence of cheating.
27. In Indian Oil Corporation Vs. NEPC India Ltd., reported in 2006(6) SCC 736 in similar circumstances of advancement of loan against hypothecation, the complainant relied on Illustrations (f) and (g) to Section 415, which read as under:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract."
28. The Court said that crux of the postulate is intention of the person who induces victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. Court also referred to its earlier decisions in Rajesh Bajaj Vs. State NCT of Delhi, reported in 1999(3) SCC 259 and held that it is not necessary that in the body of his complaint, a complainant should verbatim reproduce all the ingredients of the offence which 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.
29. In Vir Prakash Sharma Vs. Anil Kumar Agarwal and another, reported in 2007(7) SCC 373 it was held that if no act of inducement on the part of accused is alleged and no allegation is made in the complaint that there was any intention to cheat from the very inception, the requirement of Section 415 read with Section 420 IPC would not be satisfied. The Court relied on the earlier decisions in Hridaya Ranjan Prasad Verma (supra) and Indian Oil Corporation Vs. NEPC India Ltd.(supra).
30. The aforesaid authorities have been referred to and relied on in reference to offence under Section 420 I.P.C. by a Division Bench of this Court in Sh. Suneel Galgotia and another Vs. State of U.P. and others reported in 2016 (92) ACC 40.
31. Apart from the above, this Court has also noticed the other judgments of the Apex Court, reiterating the aforesaid laws.
32. In the case of United India Insurance Company Ltd. V. B.Rajendra Singh and others, reported in JT 2000(3)SC.151, considering the fact of fraud, the Apex Court held in paragraph 3 as under :
"Fraud and justice never dwell together". (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper overall these centuries. Lord Denning observed in a language without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything"(Lazarus Estate Ltd. V. Beasley 1956(1)QB 702)."
33. In the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Another Vs. Girdhari Lal Yadav, reported in 2004 (6) SCC 325, the Apex Court considered the applicability of principles of natural justice in cases involving fraud and held in paragraph 12 and 13 as under :
"12. Furthermore, the respondent herein has been found guilty of an act of fraud. In opinion, no further opportunity of hearing is necessary to be afforded to him. It is not necessary to dwell into the matter any further as recently in the case of Ram chandra Singh v. Savitri devi this Court has noticed:
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16.Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad."
34. In the case of Ram Chandra Singh Vs. Savitri Devi and others, reported in 2003(8) SCC 319, the Apex Court held in paragraphs 15, 16, 17, 18, 25 and 37 as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata.
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
35. In the case of S.P. ChengalVaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, reported in AIR 1994 SC 853, the Apex Court held in para 7 as under:
"7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
36. In State of Maharastra Vs. Mayer Hans George reported in AIR 1965 SC 722 (V 52 C 123), the Apex Court specially in paragraph-10, has observed as follows:
"10. In Russell on Crime, 11th edn. Vol. 1, it is stated at p. 64:.......... there is a presumption that in any statutory crime the common law mental element, mens rea, is an essential ingredient."
On the question how to rebut this presumption, the learned author points out that the policy of the courts is unpredictable. I shall notice some of the decisions which appear to substantiate the author's view. In Halsbury's Laws of England, 3rd edn. Vol. 10, in para, 508, at p. 273, the following passage appears:
"A statutory crime may or may not contain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness. or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or not mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute." This passage also indicates that the absence of any specific mention of a state of mind as an ingredient of an offence in a statute is not decisive of the question whether mens rea is an ingredient of the offence or not: it depends upon the object and the terms of the statute. So too, Archbold in his book on "Criminal Pleading, Evidence and Practice", 35th edn., says much to the same effect at p. 48 thus:
"It has always been a principle of the common law that mens rea is an essential element in the commission of any criminal offence against the common law In the case of statutory offences it depends on the effect of the statute...... There is a presumption that mens era is an essential ingredient in a statutory offence, but this presumption is liable to be displaced either by the works of the statute creating the offence or by the subject matter with which it deals."
The leading case on the subject is Sherras v. De Rutzen(1). Section 16(2) of the Licensing Act, 1872, prohibited a licensed victualler from supplying liquor to a police constable while on duty. It was held that section did not apply where a licensed victualler bona fide believed that the police officer was off duty Wright J., observed "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.".................."
37. In Kartar Singh Versus State of Punjab reported in (1994) 3 SCC 569, the Apex Court specifically in paragraph nos. 115 to 119 has observed as follows:
"115. In a criminal action, the general conditions of penal liabilities are indicated in old maxim "actus non facit reum, nisi mens sit rea" i.e. the act alone does not amount to guilt, it must be accompanied by a guilty mind. But there are exceptions to this rule and the reasons for this is that the legislature, under certain situations and circumstances, in its wisdom may think it so important, in order to prevent a particular act from being committed, to forbid or rule out the element of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge. However, unless a statute either expressly or by necessary implication rules out 'mens rea' in cases of this kind, the element of 'mens rea' must be read into the provisions of the statute. The question is not what the word means but whether there are sufficient grounds for infer-ring that the Parliament intended to exclude the general rule that mens rea is an essential element for bringing any person under the definition of 'abet'.
116. There are judicial decisions to the effect that it is generally necessary to go behind the words of the enactment and take other factors into consideration as to whether the element of 'mens rea' or actual knowledge should be imported into the definition. See (1) Brand v. Wood (2) Sherras v. De Rutzen, (3) Nicholls v. Hall, and (4) Inder Sain v. State of Punjab.
117. This Court in State of Maharashtra v. M.H. George while examining a question as to whether mens rea or actual knowledge is an essential ingredient of the offence under Section 8(1) read with Section 23(1)(a) of the Foreign Exchange Regulation Act, 1947, when it was shown that the respondent (accused) in that case voluntarily brought gold in India without the permission of Reserve Bank, held by majority that the Foreign Exchange Regulation Act is designed to safeguarding and conserving foreign exchange which is essential to the economic life of a developing country and the provisions have therefore to be stringent aiming at eliminating smuggling. Hence, in the background of the object and purpose of the legislation, if the element of mens rea is not by necessary implication invoked, its effectiveness as an instrument for preventing smuggling would be entirely frustrated.
118. But Subba Rao, J. dissented and held thus : (SCR p.
139) "... the mere fact that the object of a statute is to promote welfare activities or to eradicate grave social evils is in itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by putting a person under strict liability helps him to assist the State in the enforcement of the law : can he do anything to promote the observance of the law? Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law. The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof."
119. Thereafter, a similar question arose in Nathulal v. State of M.P. as regards the exclusion of the element of mens rea in the absence of any specific provision of exclusion. Subba Rao, J. reiterated his earlier stand taken M.H. George and observed thus : (AIR p. 45) "Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated."
38. From the records of the present application, it is crystal clear that though the applicant is stated to be ex-employee of the company in question, but it is not disputed that it was the applicant on whose insistence or persuasion, the complainant has given Rs. 4,00,000/- (Rupees four lacs only) in favour of the said company for purchasing of a plot and as per the case of the complainant neither any sale-deed has been executed in his favour nor the said amount has been returned to him and also when he used to demand his money, he has been abused and threatened by the applicant twice. Neither the complainant knew the said company nor he has given Rs. 4 lacs by way of two cheques to the applicant directly in favour of the said company. Such acts of the applicant, in the opinion of this Court prima facie amounts to cheating, deception and mens rea.
39. It is now well settled that the corporate veil can in certain situations be pierced or lifted. The principle behind the doctrine is a changing concept and it is expanding its horizon as was held in State of U.P. v. Renusagar Power Co. The ratio of the said decision clearly suggests that whenever a corporate entity is abused for an unjust and inequitable purpose, the court would not hesitate to lift the veil and look into the realities so as to identify the persons who are guilty and liable therefore.
40. In view of the aforesaid facts, this Court finds substance in the submission made by the learned Additional Government Advocates that case for the offences under Sections 420, 504, 506 I.P.C. prima facie is made out against the applicant and the ingredients of Sections 420, 504, 506 I.P.C. are prima facie attracted to the applicant.
41. Now, this Court comes on the issue whether it is appropriate for this Court being the Highest Court to exercise its power under Section 482 Cr.P.C. to quash the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to begin, only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law. The aforesaid issue has elaborately been discussed by the Apex Court in the following judgments:
(i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866,
(ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335,
(iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222,
(iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122, and
(v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682.
42. In the case of R.P. Kapur (Supra), the following has been observed by the Apex Court in paragraph 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 s. 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 s. 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. 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 ques- tion 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 an 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 s. 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 magis- trate, 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 s. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar AIR 1928 Bom 184, Jagat Ohandra Mozumdar v. Queen Empress ILR 26 Cal 786), Dr. Shanker Singh v. The State of Punjab 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Ray v. Govind Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar ILR 47 Mad 722: (AIR 1925 Mad 39)."
43. In the case of State of Haryana (Supra), the following has been observed by the Apex Court in paragraph 105:
"105. 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 extra-ordinary 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 F.I.R. 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 F.I.R. 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."
44. In the case of State of Bihar (Supra), the following has been observed by the Apex Court in paragraph 22. :-
"The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorised purpose. There is no material whatsoever is this case to show that on the date when the FIR was lodged by R.K. Singh he was activated by bias or had any reason to act maliciously. The dominant purpose of registering the case against the respondents was to have an investigation done into the allegations contained in the FIR and in the event of there being sufficient material in support of the allegations to present the charge sheet before the court. There is no material to show that the dominant object of registering the case was the character assassination of the respondents or to harass and humiliate them. This Court in State of Bihar v J.A.C. Saldhana and Ors., [1980] 2 SCR 16 has held that when the information is lodged at the police station and an offence is registered, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., J.T. 1990 (4) S.C. 650 permitted the State Government to hold investigation afresh against Ch. Bhajan Lal inspite of the fact the prosecution was lodged at the instance of Dharam Pal who was enimical towards Bhajan Lal."
45. In the case of Zandu Pharmaceuticals Works Ltd. (Supra), the following has been observed by the Apex Court in paragraphs nos. 8 to 12:
"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R. P. Kapur v. State of Punjab (AIR 1960 SC 866) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last case, 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 clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.
11. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"(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 Act concerned (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 Act concerned, 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."
As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power 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 prima facie decision in a case where the entire facts are 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 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 cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259.
12. The above position was recently highlighted in State of Karnataka v. M. Devendrappa and Another (2002 (3) SCC 89)."
(emphasis added)
46. Thereafter, in the case of M.N. Ojha Vs. Alok Kumar Srivastava, reported in 2009 (9) SCC 682 has made observations in paragraphs 25, 27, 28, 29 and 30 regarding the exercise of power under section 482 Cr.P.C. as well as the principles governing the exercise of such jurisdiction:-
"25. Had the learned SDJM applied his mind to the facts and circumstances and sequence of events and as well as the documents filed by the complainant himself along with the complaint, surely he would have dismissed the complaint. He would have realized that the complaint was only a counter blast to the FIR lodged by the Bank against the complainant and others with regard to same transaction.
26. This Court in Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. [(1998)5 SCC 749 held:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
27. The case on hand is a classic illustration of non-application of mind by the learned Magistrate. The learned Magistrate did not scrutinize even the contents of the complaint, leave aside the material documents available on record. The learned Magistrate truly was a silent spectator at the time of recording of preliminary evidence before summoning the appellants.
28. The High Court committed a manifest error in disposing of the petition filed by the appellants under Section 482 of the Code without even adverting to the basic facts which were placed before it for its consideration.
29. It is true that the court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure cannot go into the truth or otherwise of the allegations and appreciate the evidence if any available on record. Normally, the High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending.
30. Interference by the High Court in exercise of its jurisdiction under Section 482 of Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the Complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint."
(emphasis added)
47. In the case of Mohd. Allauddin Khan Vs. The State of Bihar & Others reported in 2019 0 Supreme (SC) 454, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidence in proceedings under Section 482 Cr.P.C. The relevant paragraph nos. 15 to 17 are being quoted herein below:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(Emphasis added)
48. The Apex Court in its another judgment in the case of Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors. reported in 2020 0 Supreme (SC) 45, dealing with a case under Sections 406 and 420 I.P.C. has observed that the Court does not have to delve deep into probative value of evidence regarding the charge. It has only to see if a prima facie case has been made out. Veracity of deposition/material is a matter of trial and not required to be examined while framing charge. The Apex Court further observed that the veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The Apex Court in paragraph nos. 21, 22 and 24 has observed as follows:
"21 The appellant has relied upon a two-judge Bench decision of this Court in Onkar Nath Mishra v The State, (2008) 2 SCC 561 to substantiate the point that the ingredients of Sections 406 and 420 of the IPC have not been established. This Court while dealing with the nature of evaluation by a court at the stage of framing of charge, held thus:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
(Emphasis supplied) 22 In the present case, the High Court while directing the framing the additional charges has evaluated the material and evidence brought on record after investigation and held:
"LW1 is the father of the de facto complainant, who states that his son in law i.e., the first accused promised that he would look after his daughter at United Kingdom (UK) and promised to provide Doctor job at UK and claimed Rs.5 lakhs for the said purpose and received the same and he took his daughter to the UK. He states that his son-in-law made him believe and received Rs.5 lakhs in the presence of elders. He states that he could not mention about the cheating done by his son-in- law, when he was examined earlier. LW13, who is an independent witness, also supports the version of LW1 and states that Rs.5 lakhs were received by A1 with a promise that he would secure doctor job to the complainant's daughter. He states that A1 cheated LW1, stating that he would provide job and received Rs.5 lakhs. LW14, also is an independent witness and he supported the version of LW13. He further states that A1 left his wife and child in India and went away after receiving Rs.5 lakhs.
Hence, from the above facts, stated by LWs. 13 and 14, prima facie, the version of LW1 that he gave Rs.5 lakhs to A1 on a promise that he would provide a job to his daughter and that A1 did not provide any job and cheated him, receives support from LWs. 13 and 14. When the amount is entrusted to A1, with a promise to provide a job and when he fails to provide the job and does not return the amount, it can be made out that A1 did not have any intention to provide job to his wife and that he utilised the amount for a purpose other than the purpose for which he collected the amount from LW1, which would suffice to attract the offences under Sections 406 and 420 IPC. Whether there is truth in the improved version of LW.1 and what have been the reasons for his lapse in not stating the same in his earlier statement, can be adjudicated at the time of trial.
It is also evidence from the record that the additional charge sheet filed by the investigating officer, missed the attention of the lower court due to which the additional charges could not be framed."
(Emphasis supplied) 24 The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference."
(Emphasis added)
49. The Apex Court in the case of Rajeev Kaurav Vs. Balasahab & Others reported in 2020 0 Supreme (SC) 143 has clearly held that the conclusion of the High Court to quash the criminal proceedings on the basis of its assessment of the statements recorded under Section 161 Cr.P.C. is not permissible as the evidence of the accused cannot be looked into before the stage of trial. The relevant portions whereof read as follows:
"6. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.
7. Mr.Shoeb Alam, learned counsel appearing for Respondent Nos.1 to 3 relied upon several judgments of this Court to submit that allegations only disclose a case of harassment meted out to the deceased. The ingredients of Section 306 and 107 IPC have not been made out. It is submitted that there is nothing on record to show that the Respondents have abetted the commission of suicide by the deceased. He further argued that abetment as defined under Section 107 IPC is instigation which is missing in the complaint made by the Appellant. He further argued that if the allegations against Respondent Nos.1 to 3 are not prima facie made out, there is no reason why they should face a criminal trial.
8. We do not agree with the submissions made on behalf of Respondent Nos.1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC1.
9. Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondent Nos.1 to 3 which she was not able to bear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 Cr. P.C.
10. We have not expressed any opinion on the merits of the matter. The High Court ought not to have quashed the proceedings at this stage, scuttling a full-fledged trial in which Respondent Nos.1 to 3 would have a fair opportunity to prove their innocence."
(Emphasis supplied)
50. In the latest judgment of the Hon'ble Supreme Court in the case of State of U.P. Vs. Akhil Sharda & Others reported in 2022 SCC OnLine SC 820 has held that while deciding the application under Section 482 Cr.P.C., the High Court has conducted mini trial which is not permissible at that stage. The relevant portion whereof reads as follows:
"28. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. (See Pratima (supra); Thom (supra); Rajiv (supra) and Niharika (supra).
29. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has allowed the petition under Section 482 Cr.P.C., we are of the opinion that the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.
30. It is also required to be noted that even the High Court itself has opined that the allegations are very serious and it requires further investigation and that is why the High Court has directed to conduct the investigation by CBCID with respect to the FIR No.227 of 2019. However, while directing the CBCID to conduct further investigation, the High Court has restricted the scope of investigation. The High Court has not appreciated and considered the fact that both the FIRs namely FIR Nos.260 of 2018 and 227 of 2019 can be said to be interconnected and the allegations of a larger conspiracy are required to be investigated. It is alleged that the overall allegations are disappearance of the trucks transporting the beer/contraband goods which are subject to the rules and regulations of the Excise Department and Excise Law.
31 The High Court has quashed the criminal proceedings by observing that there was no loss to the Excise Department. However, the High Court has not at all appreciated the allegations of the larger conspiracy. The FIR need not be an encyclopedia ( See Satpal Vs. Haryana, (2018) 6 SCC 110 Para 7).
32 Even otherwise, it is required to be noted that the allegation of missing of two trucks was the beginning of the investigation and when during the investigation it was alleged that earlier also a number of trucks were missing transporting contraband goods, the FIR should not have been restricted to missing of the two trucks only and return of on the goods thereafter. The High Court has not at all appreciated and/or considered the allegation of the larger conspiracy and that both the FIRs/criminal cases are interconnected and part of the main conspiracy which is very serious if found to be true. We however refrain from making any further observations as at this stage of proceedings as we are at the stage of deciding the application under Section 482 Cr.P.C. only and as the trial of both the cases have yet to take place. Therefore, we refrain from making any further observations which may affect the case of the either of the parties. Suffice it to say and mention that in the facts and circumstances of the case the High Court has committed a grave/serious error in quashing and setting aside the criminal proceedings arising out of Criminal Case No.5694 of 2019 and Case Crime No.260 of 2018 PS lodged under Section 406, registered at PS - Husainganj, District - Lucknow.
(Emphasis supplied)
51. In view of the aforesaid, this Court finds that the submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint case and the material led before the court below makes out a prima facie case against the accused/applicant at this stage and there appears to be sufficient ground for proceeding against the accused/applicant. I do not find any justification to quash the orders impugned passed against the applicant as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. All the judgments relied upon by the learned counsel for the applicants referred to above are clearly distinguishable in the facts of the present case. On examination of both the impugned orders, this Court finds that both the courts below while passing the impugned orders have recorded categorical finding of fact that prima facie case for the alleged Sections is made out against the applicant.
52. Even otherwise, the applicant has made a mockery of the orders of the lower court by avoiding process of summon, bailable warrant, non-bailable warrant and the proceedings under Section 82 Cr.P.C. is not entitled to get leniency, mercy and justice in any way and that too from the Court which exercises inherent power under Section 482 Cr.P.C.
53. In view of the deliberations and discussions made above, this Court finds that the allegations made in the complaint disclose commission of a cognizable offence and those allegations have found support in the statements recorded under Sections 200 and 202 Cr.P.C. on the basis whereof the summoning order has been passed against the applicant, which has been rightly upheld by the learned revisional Court and thus the impugned orders do not call for any interference by this Court in exercise of powers conferred under 482 Cr.P.C. jurisdiction.
54. The present application under Section 482 Cr.P.C. is, accordingly, rejected. There shall be no order as to costs.
55. Written submission filed by the learned counsel for the applicants is taken on record.
Order Date :- 14.03.2023 Sushil/-