Gujarat High Court
Arvindbhai Maganlal Master & vs State Of Gujarat & on 13 November, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/11031/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 11031 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ARVINDBHAI MAGANLAL MASTER & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PRAVIN GONDALIYA, ADVOCATE for the Applicant(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR ALKESH N.SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/11/2014
CAV JUDGMENT
Page 1 of 21
R/CR.MA/11031/2014 CAV JUDGMENT
Rule. Mr. A.N.Shah, the learned APP, waives service of notice of rule for and on behalf of the respondent no.1 - State of Gujarat. The respondent no.2 - original first informant, although served with the notice issued by this Court, yet not chosen to appear either in person or through an advocate.
By this application under Section 482 of the Code of Criminal Procedure, the petitioners - original accused nos.1 and 3 pray for quashing of the First Information Report being C.R.No.I-98 of 2014 registered with the Chowk Bazar Police Station, Surat, for the offence punishable under Sections 406, 420, 120-B read with Section 34 of the Indian Penal Code.
The case made out by the respondent herein in his First Information Report may be summarized as under :
The petitioner no.1 herein and the original accused no.2 were the lawful owners of a property bearing Entry No.1194 admeasuring 87.97.42 sq.mtrs. and Entry No.599 admeasuring 7.52.03 sq.mtrs. situated in the City Ward No.11, Surat, Taluka & District Surat. The said property had been given on rent past couple of years and the legal heirs of the contractual tenant, viz. Maheshbhai Purshottambhai, Rameshbhai Purshottambhai and Vijay Purshottambhai were in possession of the same as statutory tenants.
The petitioner no.1 and the original accused no.2 are the residents of Mumbai (Maharashtra). Since both the joint owners were residing at Mumbai, they had executed a power Page 2 of 21 R/CR.MA/11031/2014 CAV JUDGMENT of attorney dated 4th October 2005 in favour of the petitioner no.2 herein (original accused no.3) for the purpose of maintenance of the property in question.
The respondent no.2 was interested in buying the property from the petitioner no.1 and the original accused no.2 and, therefore, for that purpose, they started negotiations. It was ultimately decided that the respondent no.2 would buy the property for a total sale consideration of Rs.8,11,000=00 and pursuant to such a deal Rs.2,11,000=00 as earnest money was paid by the respondent no.2 to the owners by way of a cheque. An agreement to sell was executed in favour of the respondent no.2 by the power of attorney holder of the owners i.e. the petitioner no.2 herein, dated 2nd December 2005.
It is the case of the respondent no.2 that the balance amount of Rs.6,00,000=00 was also paid to the owners on 7th June 2007 by way of a cheque and also by cash. According to the respondent no.2, in all, the total sale consideration of Rs.8,11,000=00 was paid to the owners of the property.
After the entire sale consideration was paid by the respondent no.2 in favour of the owners, the respondent no.2 requested for execution of a registered sale deed in his favour. However, at that point of time, the owners and the power of attorney holder stated before the respondent no.2 that it was not possible to execute the sale deed as the tenants were not ready and willing to part with the possession of the property. According to the respondent no.2, later on, he managed even with the tenants by paying a sum of Rs.4 lac for the purpose of vacating the premises.
Page 3 of 21 R/CR.MA/11031/2014 CAV JUDGMENTIt is his case that on 10th January 2008, the vacant possession of the premises was taken over by him and a possession receipt was also issued in his favour.
According to the respondent no.2, even thereafter, the owners and the power of attorney holder failed to execute a registered sale deed in his favour and, therefore, vide notice dated 26th February 2008 issued through an advocate, the respondent no.2 called upon the accused persons to execute the registered sale deed in his favour on the strength of the agreement to sell.
Despite service of notice, the accused persons did not execute the sale deed and, therefore, the respondent no.2 filed a Special Civil Suit No.32 of 2011 in the Court of the Senior Civil Judge, Surat, for the specific performance of the contract on the basis of the agreement to sell.
It is the case of the respondent no.2 that knowing fully well that he had filed a suit for the specific performance of the contract, the accused persons, with a dishonest intention, transferred the property by way of a registered sale deed in favour of the original accused nos.4 and 5.
Thus, according to the respondent no.2, although he had paid the entire amount in favour of the owners of the property towards the sale consideration, yet the owners through their power of attorney holder failed to execute the sale deed, and on the contrary, despite pendency of the civil suit for the specific performance, transferred the property fraudulently in Page 4 of 21 R/CR.MA/11031/2014 CAV JUDGMENT favour of the original accused nos.4 and 5, thereby committing offences punishable under Sections 406, 420, 120-B read with Section 34 of the Indian Penal Code.
Mr. Pravin Gondalia, the learned advocate appearing on behalf of the petitioners, submitted that the First Information Report lodged by the respondent no.2 is nothing but an abuse of process of law. Mr.Gondalia submits that even if the entire case of the respondent no.2 is accepted as true, the FIR fails to disclose commission of any cognizable offence, not to speak of offence of criminal breach of trust, punishable under Section 406 the Indian Penal Code and the offence of cheating punishable under Section 420 of Indian Penal Code.
Mr.Gondalia submitted that the first informant has deliberately suppressed an important fact in the FIR that he had also prayed for an injunction before the civil court to restrain the owners of the property from transferring the property during the pendency of the civil suit for the specific performance and the learned Civil Judge vide order dated 23rd September 2011 had rejected the injunction application Exh.5 by assigning cogent reasons. Mr.Gondalia further submits that against the order passed by the learned Civil Judge rejecting the injunction application Exh.5, the respondent no.2 herein has not thought fit to file any appeal challenging the same. According to Mr.Gondalia, had this fact been brought to the notice of the police, then probably the First Information Report itself would not have been registered.
Mr.Gondalia submits that one of the terms and conditions in the agreement to sell dated 20th December 2005 was that Page 5 of 21 R/CR.MA/11031/2014 CAV JUDGMENT the balance amount of Rs.6 lac was to be paid by the buyer to the seller within a period of 90 days from the date of the agreement to sell. Mr.Gondalia submits that the balance amount of Rs.6 lac was not paid to his client and, therefore, there was no question of executing a registered sale deed in favour of the respondent no.2.
On the other hand, the learned APP Mr.Shah has opposed this application submitting that the First Information Report should not be quashed solely on the ground that a civil suit is pending regarding the subject matter of the dispute. Mr.Shah submits that a civil dispute at times may also disclose commission of a criminal offence. He submits that the investigation should be permitted to proceed. Mr.Shah, therefore, prays that there being no merit in this application, the same may be rejected.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration in this application is, whether the First Information Report lodged by the respondent no.2 deserves to be quashed.
The following facts are not in dispute :
i) The petitioner no.1 herein and the original accused no.2 named in the FIR are the joint owners of the property in question.
ii) Since the owners of the property are residing in Mumbai they had executed a power of attorney Page 6 of 21 R/CR.MA/11031/2014 CAV JUDGMENT dated 4th October 2005 in favour of the respondent no.3 for the purpose of maintenance of the property.
iii) The respondent no.2 got an agreement to sell dated 20th December 2005 executed in his favour through the power of attorney holder of the original owners.
iv) At the time of execution of the agreement to sell, a sum of Rs.2,11,000=00 was paid by the respondent no.2 in favour of the owners towards the earnest money by way of cheques drawn on the UCO Bank, Muglisara, Surat.
v) According to one of the terms and conditions of the agreement to sell, the balance amount of Rs.6 lac was to be paid by the respondent no.2 within a period of 90 days from the date of the agreement to sell.
vi) According to the respondent no.2, the balance amount was paid by him in piecemeal and the payment was completed by 7th June 2007. This fact has been seriously disputed by the applicants herein.
vii) A Special Civil Suit No.32 of 2011 has been filed by the respondent no.2 for the specific performance of contract in the Court of the Additional Senior Civil Judge, Surat. The respondent no.2 as a plaintiff also prayed for injunction vide Exh.5 and the said Page 7 of 21 R/CR.MA/11031/2014 CAV JUDGMENT injunction application was ordered to be rejected by the 6th Additional Senior Civil Judge, Surat vide order dated 23rd September 2011.
viii) The learned 6th Additional Senior Civil Judge, while rejecting the injunction application Exh.5, has prima facie observed that the plaintiff does not appear to have complied with the terms and conditions of the agreement to sell. The learned Civil Judge has observed in his order that the case put forward by the plaintiff that the balance amount towards sale consideration was paid to the owners is not believable because the evidence adduced by the plaintiff suggests that the payment was made to one Ganesh Enterprise with which the owners of the property have nothing to do. Thus, the respondent no.2 as a plaintiff failed to establish any prima facie case before the Civil Judge for the purpose of obtaining an injunction restraining the accused persons from transferring the property.
ix) The respondent no.2 has also not thought fit to challenge the order passed by the Civil Judge rejecting his Exh.5 application, before the higher forum.
x) The fact about the injunction application being rejected by the Civil Judge, Surat, with the findings that the plaintiff had failed to perform his part of the contract according to the terms of the agreement to sell and there was no evidence adduced to prima Page 8 of 21 R/CR.MA/11031/2014 CAV JUDGMENT facie show that the balance amount towards sale consideration was paid by him to the owners, had been suppressed in the First Information Report.
Taking into consideration the undisputed facts noted above, I am of the view that the lodging of the First Information Report is nothing but an abuse of process of law. It deserves to be stated that the civil suit for the specific performance was filed by the respondent no.2 herein on 25th January 2011. This injunction application Exh.5 came to be rejected on 23rd September 2011, however, he thought fit to file the First Information Report only on 26th June 2014.
The facts of the instant case portray desperate efforts on the part of the respondent no.2 in 'dressing up' a civil dispute relating to the alleged breach of contract into a criminal proceedings by making out a case of fraudulent transfer of the property in favour of the original accused nos.4 and 5.
The institution and continuation of such proceedings at the behest of the respondent no.2 who had suppressed the material facts before the police and had not lodged the FIR with clean hands and had sought to portray a 'more sinister picture' relating to the alleged transaction, is a malicious attempt to convert a dispute relating to the alleged breach of contract into an offence of cheating and criminal breach of trust. Such an endeavour clearly falls within the species of 'abuse of process of court' and ought to be nipped in the bud.
The offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients. In Page 9 of 21 R/CR.MA/11031/2014 CAV JUDGMENT order to constitute a criminal breach of trust (Section 406 IPC).
1) There must be entrustment with person for property or dominion over the property, and
2) The person entrusted :
a) dishonestly misappropriated or converted property to his own use, or
b) dishonestly used or disposed of the property or willfully suffers any other person so to do in violation -
i) any direction of law prescribing the method in which the trust is discharged and
ii) of legal contract touching the discharge of trust (see: S.W.P. Palanitkar v. State of Bihar, (2002)1 SCC 241) : (AIR 2001 SC 2960).
Similarly, in respect of an offence under section 420 IPC, the essential ingredients are :
1) deception of any person, either by making a false or misleading representation or by other action or by omission;
2) fraudulently or dishonestly inducing any person to deliver any property, or
3) the consent that any persons shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit (see: Harmanpeet Singh Ahluwalia v. State of Punjab, (2009)7 SCC 712 :
(2009) Cr.L.J. 3462 (SC) ) Further, in both sections, mens rea i.e. intention to defraud or the dishonest intention must be present from the very beginning or inception without which either of these Page 10 of 21 R/CR.MA/11031/2014 CAV JUDGMENT sections cannot be invoked.
In my view, the plain reading of the First Information Report fails to spell out any of the aforesaid ingredients noted above. I may only say with a view to clear a serious misconception of law in the mind of the police as well as the courts below that if it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 of IPC, punishable under Section 406 of IPC, is committed by the accused, then in the same breath it could not be said that the accused has also committed the offence of cheating as defined and explained in Section 415 of the IPC, punishable under Section 420 of the IPC.
Every act of breach of trust may not be resulted in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but any breach of trust with a mens rea gives rise to a criminal prosecution as well. It has been held in Hart Prasad Chamaria v. B.K. Surekha and others, reported in 1973(2) SCC 823 as under :
"We have heard Mr. Maheshwarit on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does riot disclose the commission of any offence on the part of the respondents under Section 420 Indian Penal Code. There is nothing in the complaint Page 11 of 21 R/CR.MA/11031/2014 CAV JUDGMENT to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35.000/- There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35.000/- by deceiving him. It is further not the case of the appellant that a representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability on the respondents for the offence of cheating."
To put it in other words, the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of the movable property receives it legally, but illegally retains it or converts it to his own use against the terms of the contract. Then the question is, in a case like this, whether the retention is with dishonest intention or not. Whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case.
The distinction between mere breach of contract and the offence of criminal breach of trust and cheating are fine one. In case of cheating, it depends upon the intention of the accused at the time of inducement, which may be judged by a subsequent conduct but for this the subsequent conduct is not the sole test but mere breach of contract which cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is his intention, which is the gist of the Page 12 of 21 R/CR.MA/11031/2014 CAV JUDGMENT offence. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence after breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership of it must be of some other person. The accused must hold that property on trust of such other person. But the offence, i.e. the offence of breach of trust and cheating involve dishonest intention but they are mutually exclusive and different in basic concept. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of entrustment. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender practices fraudulent or dishonest to induce with another person to deliver the property. In such situation, both the offences cannot co-exist simultaneously.
I may quote with profit a decision of the Supreme Court in the case of Nageshwar Prasad Singh alias Sinha v. Narayan Singh, AIR 1999 SC 1480. In the said case, the allegation of the prosecution was that an agreement was signed between the complainant respondent and the appellant whereby some land was agreed to be sold by the appellant to the complainants on a consideration, and allegedly a part thereof was paid as earnest money, the balance being payable in the manner indicated in the deed. The most important term in the deed was that possession of the plot would stand transferred to the complainants and possession in fact was delivered to the Page 13 of 21 R/CR.MA/11031/2014 CAV JUDGMENT complainants over which they made certain constructions. The complaint was laid on the basis that the appellant had cheated the complainants of the sum of money they had paid as earnest money as his subsequent conduct reflected that he was not willing to complete the bargain for which the complainants had to file a suit for specific performance which was pending in the civil court. Held, that latter part of illustration (g) to Section 415, I.P.C. illustrates that at the time when agreement for sell was executed, it could have, in no event, been termed dishonestly so as to hold that the complainants were cheated of the earnest money, which they passed to the appellant as part consideration and possession of the total amount involved in the bargain was passed over to the complainant/respondent and which remained in their possession. Now it is left to imagine who would be interested for dealing the matter for completing the bargain when admittedly the complainants have not performed their part in making full payment. The matter was, therefore, before the civil court in this respect. The liability, if any, arising out by breaching thereof was civil in nature and not criminal. Accordingly, the appeal was allowed and complaint proceedings were quashed.
It was further held by the Supreme Court in the case of Hridaya Ranjan Prasad Verma v. State of Bihar, AIR 2000 SC 2341 at Pp. 2345-46 of para 16) as below :
"15. In determining the question it has to be kept in mind that the distinction between, mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for Page 14 of 21 R/CR.MA/11031/2014 CAV JUDGMENT 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. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
In All Cargo Movers (I) Pvt. Ltd. & others v. Dhanesh Badarmal Jain & another, JT 2007 (12) SC 345, the Apex Court quashed a criminal proceeding on the premise that the allegations contained in complaint were wholly inconsistent with the pleadings in a collateral civil proceeding. It held as follows :
"17. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted Page 15 of 21 R/CR.MA/11031/2014 CAV JUDGMENT documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice."
In K.L.E. Society & others v. Siddalingesh, (2008) 4 SCC 541, on a similar issue, the Supreme Court quashed a criminal proceeding labeling it to be an abuse of process of Court as the allegations contained in the complaint ran contrary to the averments made in the petition filed under the Industrial Disputes Act. The Apex Court held as follows :
"7. One thing is clear on reading of High Court's reasoning that the High Court came to the conclusion that deductions were made without any rhyme and reason and without any basis. That was not the case of the complainant. On the other hand, it tried to make out a case that the deduction was made with an object. That obviously, was the foundation to substantiate claim of entrustment. On a close reading of the complaint it is clear that the ingredients of Sections 403, 405 and 415 do not exist. The statement made in the complaint runs contrary to the averments made in the petition in terms of Section 33-(C) (2)."
In State of Orissa v. Debendra Nath Padhi, (2005) SCC (Cri.) 415, the Supreme Court held that the High Court could take into account materials of "unimpeachable character of sterling quality" while exercising its inherent powers to quash a criminal proceeding and observed as follows :-
"29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Page 16 of 21 R/CR.MA/11031/2014 CAV JUDGMENT Code and Article 226 of Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lals case."
In Vijaya Rao v. State of Rajasthan & another (2005) SCC (Cri.) 1600, the Supreme Court held that merely using expressions like "fraudulent representation" and "malafide intention" does not give rise to an inference that the complaint discloses the ingredients of the offence of cheating.
In Hridaya Ranjan Prasad Verma & others v. State of Bihar & another (2000) SCC (Cri.) 786, the Supreme Court succinctly laid down the distinction between breach of contract in one hand and the offence of cheating in the other.
"15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the 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. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."Page 17 of 21 R/CR.MA/11031/2014 CAV JUDGMENT
In Anil Kumar Bose v. State of Bihar, (1974) SCC (Cri.) 652, the Supreme Court held that mere failure to perform a duty or observe rules of procedure may be an administrative lapse or any error of judgement but cannot be equated with dishonest intention or cheating.
Criticizing the institution of malicious and frivolous criminal proceeding against individuals, the Supreme Court in PEPSI Foods Ltd. & another v. Special Judicial Magistrate & Ors., (1998) SCC (Cri.) 1400, held as follows :
"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. 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."
In B.Suresh Yadav v. Sharifa Bee & another, JT (2007) 12 SC 341, the Supreme Court again highlighted the distinction between a mere breach of contract and the offence of cheating.
Page 18 of 21 R/CR.MA/11031/2014 CAV JUDGMENTIn Inder Mohan Goswami & another v. State of Uttaranchal & others, (2007)12 SCC 1, the Supreme Court analysed inherent powers of the High Court under Section 482 as follows :
"23. This court in a number of cases has laid down the scope and ambit of courts' powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(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.
24. Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."
The delay in lodging the First Information Report also assumes significance in the facts of the present case. At the cost of repetition, I may state that the injunction application Exh.5 was rejected way back in the year 2011. Whereas, the First Information Report came to be lodged in the year 2014.
Prompt and early reporting of the occurrence by the Page 19 of 21 R/CR.MA/11031/2014 CAV JUDGMENT informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].
In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases, the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before a civil court may initiate criminal proceedings just to harass the other side with a malafide intention or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].
Page 20 of 21 R/CR.MA/11031/2014 CAV JUDGMENTFor the foregoing reasons, this application is allowed. The First Information Report being C.R.No.I-98 of 2014 registered with the Chowk Bazar Police Station, Surat, is hereby ordered to be quashed.
It is clarified that the observations made by this Court in this judgment and order are relevant only for the purpose of deciding the present application and shall have no bearing so far as the civil suit which is pending before the Civil Court. The Civil Court shall decide the civil proceedings on the basis of the evidence that may be adduced by the parties, oral as well as documentary, without being influenced in any manner by any of the observations made by this Court for the purpose of deciding a quashing application.
(J.B.PARDIWALA, J.) MOIN Page 21 of 21