Bombay High Court
Sameer S/O. Sureshchandra Tripathi vs State Of Maharashtra Thr. P.S.O. ... on 27 September, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:10798
246.Cri.Apl.612.2018.jud.+1.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 612 OF 2018
Sameer S/o. Sureshchandra Tripathi,
Aged about : 40 yrs, Occ: Business,
R/o. Flat No.201, Hayat Residency,
Bhagvaghar Layout, Dharampeth,
Nagpur. .... APPLICANT
// V E R S U S //
1. State of Maharashtra,
Through P.S.O. Dhantoli Police Station,
Nagpur
2. Sanjay S/o. Gulabchand Gupta,
Aged about : 50 Yrs., Occu.: Business,
R/o. Aath Rasta Chowk, Laxminagar,
Nagpur
3. Gulabchand Bhairavprasad Gupta,
Aged about : 80 Yrs., Occu.: Business,
R/o. Aath Rasta Chowk, Laxminagar,
Nagpur ... RESPONDENTS
WITH
CRIMINAL APPLICATION (APL) NO. 613 OF 2018
Sameer S/o. Sureshchandra Tripathi,
Aged about : 40 yrs, Occ: Business,
R/o. Flat No.201, Hayat Residency,
Bhagvaghar Layout, Dharampeth,
Nagpur. .... APPLICANT
// V E R S U S //
1. State of Maharashtra,
Through P.S.O. Dhantoli Police Station,
Nagpur
246.Cri.Apl.612.2018.jud.+1.odt
2
2. Gulabchand Bhairavprasad Gupta,
Aged about : 80 Yrs., Occu.: Business,
R/o. Aath Rasta Chowk, Laxminagar,
Nagpur ... RESPONDENTS
-----------------------------------------------------------------------------------------------
Mr Masood Shareef, Adv. with Adv. Adil Anwar J. Mirza, Advocates for
applicant in both applications.
Ms H. S. Dhande, APP for the respondent No.1/State in both applications
Mr A. S. Mardikar, Sr. Adv. assisted Mr D. P. Singh and Mr C. B.
Dharmadhikari, Advocates for respondent Nos.2 and 3 in APL No.
612/2018 and Advocate for respondent No.2 APL No.613/2018
Mr Anand Parchure, Advocate for respondent No.3 in APL No. 612/2018
and for respondent No. 2 in APL No. 613/2018
-----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
JUDGMENT RESERVED ON : 20.08.2024
JUDGMENT PRONOUNCED ON : 27.09.2024
JUDGMENT :
1 Both these applications arise out of two separate judgments of discharge of accused No.1 and 2/respondent Nos. 2 and 3, dated 05.05.2018, passed by the learned Additional Sessions Judge, Nagpur in Criminal Revision Application No. 90 of 2018 and Criminal Revision Application No. 265 of 2017 and therefore, both these applications are being disposed of by the common judgment. The applicant in both applications is the original complainant and the respondent Nos.2 & 3 in Cri.Apl. No.612 of 2018 are the accused persons.
246.Cri.Apl.612.2018.jud.+1.odt 3 2 Background facts The complainant/applicant is engaged in the hotel business and is the owner of 'Mustard' and 'Bawarchi' hotels. Accused No.1 Sanjay is the proprietor of the hotel Ashok, Nagpur. Accused No.2 is the father of accused No.1. The complainant came into contact with accused No.1 in connection with the management of food and beverages at Hotel Ashok Nagpur. The Hotel Ashok Nagpur, was to be inaugurated very soon. The complainant was looking for the premises for running the business of his catering. He approached accused No.1. Accused No.1 told the complainant that he is looking for a reliable person to provide food and beverages for the banquet hall of the hotel. Accused No.1, represented that three star hotel by name 'The Ashok Nagpur', having an alliance with the Indian Tourism Development Corporation, was to be inaugurated very soon. In connection with this business, an agreement was arrived at between the complainant and accused No.1. It was agreed that at the initial
246.Cri.Apl.612.2018.jud.+1.odt 4 stage accused Nos. 1 and 2 would allow the complainant to provide the services of food and beverages from the premises of the hotel. It was also agreed that the complainant should give 25% of the total sale to the accused and he should retain the balance 75%. The complainant believed them. The complainant agreed to deposit Rs.40,00,000/- with accused No.1 as a security deposit. The complainant paid the amount of Rs.20,00,000/- by two cheques i.e. one drawn on his account maintained with Punjab National Bank for Rs.5,00,000/- in the name of accused No.2 and another drawn on Tirupati Urban Co-operative Bank of Rs.15,00,000/- in the name of Accused No.1.
3 For the purpose of starting the business, the necessary articles namely crockery, utensils, chairs and tables, were required as suggested by accused No.1. They went to China for purchasing the articles. At that time, the complainant paid Rs.23,00,000/- to accused No.1. The complainant had
246.Cri.Apl.612.2018.jud.+1.odt 5 engaged the staff. He paid salary to the tune of Rs.5,00,000/- to the staff. The contract between the complainant and accused Nos.1 and 2 was not reduced into writing because accused Nos. 2 on one pretext or the other avoided to reduce the agreement into writing.
4 It is the case of the complainant that accused No.1 informed him that the inauguration function was arranged on 06.02.2011. The complainant made the arrangement of food etc. for 700 dignitaries and the guest from his own restaurants 'Mustard' and 'Bawarchi'. Accused No.1 did not pay for the same. The complainant was informed by accused No.1 that the hotel would be opened for public on 18.02.2012. It is alleged that accused No.1 all of a sudden changed his attitude and started avoiding the complainant. He was trying to keep the complainant away from working in the food and beverages department. He did not provide the account of the same. Later on, accused No.1 called upon the complainant to stop working
246.Cri.Apl.612.2018.jud.+1.odt 6 from hotel Ashok and took charge of the entire hotel. It is stated that accused No.1 cheated the complainant. 5 The complainant, therefore, filed a civil suit for recovery of Rs.78,99,282/- in the Civil Court at Nagpur. On 15.03.2013, he lodged the report against accused Nos. 1 and 2 with the police. The police did not take any action against accused Nos. 1 and 2. The complainant, therefore, filed an application under Section 156(3) of the Code of Criminal Procedure (for short 'the Cr.P.C.') in the Court of Judicial Magistrate First Class, Nagpur. Learned Magistrate on 13.05.2013, allowed the application and directed the police to conduct the investigation. In terms of this order, the crime bearing No. 142 of 2013 for the offences under Sections 420, 406 read with Section 34 of the Indian Penal Code (for short 'the IPC') was registered against accused Nos. 1 and 2 and one Mr Dinesh Chandak, who is the chartered accountant. The investigation into the crime led to filing of the charge-sheet
246.Cri.Apl.612.2018.jud.+1.odt 7 against accused Nos. 1 and 2.
6 In the criminal case, accused Nos. 1 and 2 made applications for their discharge. The discharge applications came to be rejected. After rejection of the discharge application, the charge was framed against accused Nos. 1 and 2 by the learned Magistrate. The accused challenged the said order of rejection of the discharge applications, by filing separate revision applications. In the said revision applications, the complainant was not made a party. Learned Additional Sessions Judge, Nagpur by order dated 05.05.2018 in both revision applications allowed the revision applications. Learned Judge allowed the discharge applications made by accused Nos. 1 and 2. Learned Additional Sessions Judge set aside the order of framing of the charge against accused Nos. 1 and 2. 7 The complainant, being aggrieved by the order of discharge of accused Nos. 1 and 2 and order of setting aside the
246.Cri.Apl.612.2018.jud.+1.odt 8 charge passed by the learned Additional Sessions Judge, Nagpur has approached this Court by way of these proceedings. 8 I have heard learned Advocate Mr Masood Shareef for the complainant and learned Senior Advocate Mr. A. S. Mardikar for accused Nos. 1 and 2 and learned APP Ms H. S. Dhande for the respondent No.1/State. Perused the record and proceedings.
9 Learned Advocate for the complainant submitted that in the revision applications filed by accused persons, the complainant was not made a party. It is pointed out that the accused deliberately did not join the complainant as a party in the revision applications. Learned Advocate pointed out that at the stage of hearing the discharge application, made by accused Nos. 1 and 2, the complainant was allowed to assist the prosecution. He had filed the reply to the application as well as written arguments. Learned Advocate submitted that a
246.Cri.Apl.612.2018.jud.+1.odt 9 valuable right had accrued in favour of the complainant on rejection of discharge applications made by accused Nos.1 and
2. The complainant deserved an opportunity of hearing in the revision applications filed by accused Nos.1 and 2 against the orders of their discharge. Learned Advocate submitted the revision applications have been allowed without granting an opportunity of hearing to the complainant and as such, the orders of discharge of accused Nos. 1 and 2 and the order setting aside the charge are vitiated on that count. 10 Learned Advocate for the complainant further submitted that merely because of filing of a civil suit, it cannot be assumed that on the same set of facts, the criminal offence could not be made out. Learned Advocate submitted that accused Nos. 1 and 2 conspired and pursuant to the said conspiracy, entered into a contract with the complainant which to their own knowledge was not to be performed. Learned Advocate submitted that the facts stated in the complaint and
246.Cri.Apl.612.2018.jud.+1.odt 10 the documents compiled in the chargesheet would show that the accused, with the fraudulent intention, prevailed upon the complainant to pay the money. Learned Advocate submitted that the accused, with a dishonest intention, deceived the complainant. In short, the learned Advocate submitted that the material on record is sufficient to make out the basic ingredients of the offence of cheating. Learned Advocate submitted that therefore, the charge framed by the learned Magistrate was fully justified.
11 Learned Senior Advocate Mr Mardikar for accused Nos. 1 and 2 made the following submissions.
The complaint does not disclose commission of any offence much less an offence of cheating. The complaint, at the most, would show that there was a contract between the parties and for some reason or another the same could not be taken to the logical conclusion. It was the case of a breach of contract
246.Cri.Apl.612.2018.jud.+1.odt 11 and not the dishonest inducement or deception. It is pointed out that before filing the report with the police, the complainant had filed the civil suit for recovery of Rs.78,99,282/-. It is pointed out that for running a business of food and beverages, the complainant was in need of money and therefore, accused No.1 paid Rs.15,00,000/- by cheque. At the time of the inauguration, the arrangement of the food etc. was made by the complainant and for that, accused No.1 has paid the money to the complainant. The goods and articles were purchased from China by accused No.1. Accused No.1 had transferred the purchase amount from his own account. The amount of Rs.15,00,000/- paid by the complainant was adjusted against this bill. The dispute between them is of a civil nature. The complainant initially filed the civil suit for recovery of the money. In the said civil suit, the application for temporary injunction made by the complainant was rejected. The complainant did not repay the hand loan taken by him
246.Cri.Apl.612.2018.jud.+1.odt 12 from accused No.1 and therefore, accused No.1 deposited cheques for encashment in the bank. The cheques were dis- honored. Accused No.1 issued the notices to the complainant. The complainant replied to these notices. In the reply to the said notices, he did not make any grievance that he was cheated or deceived. The accused No.1 filed three complaints under Section 138 of the Negotiable Instruments, Act, 1881 ( for short 'the N. I. Act' ), on 22.11.2012. After this, the complainant filed the suit on 23.01.2013 for recovery of the amount. The report was lodged by him on 15.03.2013. The police did not register the crime because it was a civil dispute. Learned senior Advocate submitted that a civil dispute has been given the colour of a criminal offence. Learned Senior Advocate submitted that the conduct of the complainant till the time of lodging of the report on 15.03.2013 would show that he did not make a whisper that he was either cheated or there was a criminal breach of trust. Learned senior Advocate
246.Cri.Apl.612.2018.jud.+1.odt 13 submitted that in one of the complaints filed under Section 138 of the N. I. Act he has been convicted. Learned Senior Advocate submitted that the inconsistent stand of the complainant by itself is sufficient to sustain the order passed by the learned Sessions Judge.
12 Learned Senior Advocate submitted that in the criminal case the informant is represented by the State. It is pointed out that the learned prosecutor on behalf of the state opposed the revision applications. In short, it is submitted that the failure to make the complainant as a party in the revision applications has not caused miscarriage of justice. It is submitted that the grievance made by the complainant has to be addressed keeping in mind the facts and evidence on record, which shows that the civil dispute was converted to a criminal offence. It was an abuse of process of law. The complaint was filed with malicious intent. It is further submitted that no role has been attributed to accused No.2 in the entire proceedings
246.Cri.Apl.612.2018.jud.+1.odt 14 till the filing of the suit. But for the first time some untenable and unbelievable allegations have been made against him. 13 In this case, the Court is required to consider two aspects. First, whether the material on record is sufficient to frame the charge against the accused and second, whether the non-joinder of the complainant as a party in the revision applications by itself would be sufficient to set aside the orders. In my view, for the purpose of addressing the second issue the facts, circumstances and material placed on record are required to be taken into consideration. Similarly, the conduct of the parties is also required to be borne in mind. The Court has to ascertain from the record as to whether the dispute was purely of civil nature or it had some element of criminal dispute. In my view, in order to consider this, it would be necessary to peruse the complaint, the pleadings of the complainant in his civil suit, his contention in the complaint filed by accused No.1 against the complainant under Section 138 of the N. I. Act and
246.Cri.Apl.612.2018.jud.+1.odt 15 other attending circumstances.
14 Perusal of the plaint filed by the complainant in the civil Court would show that in the plaint he has set out the nature of the business transaction between them. The amount paid by the complainant to the accused. The purchase of the utensil articles, furniture and crockery from China for starting the business of serving food and beverages from the hotel of accused No.1. It is seen that in the month of November 2008 they agreed to do the business. In the year 2009, they went to China for the purchase of crockery, furniture, utensils etc. for starting the business. The complainant paid Rs.15,00,000/- by cheques to accused No.1. The opening ceremony of the hotel was held on 06.02.2011. The sailing was smooth between the parties up to February 2011. In the plaint, the complainant stated that he had issued four cheques of Rs.5,00,000/- each to the accused towards a security amount in 2011. It is stated that at the time of their visit to China, he paid Rs.23,00,000/-
246.Cri.Apl.612.2018.jud.+1.odt 16 to accused No.1. The plaint is silent about any conspiracy. The plaint is also silent about the dishonest intention. There is no allegation of deception. There is no allegation of wrongful loss as well as wrongful gain.
15 The plain reading of the plaint would show that there was a contract between the complainant and accused No.1. The complainant alleged that accused No. 1 did not honour his commitment under the contract. He did not allow the complainant to carry out the business. The complainant was prevented from doing the business from the hotel premises despite having invested a huge amount in the business. It is further stated that he was not paid his share of 75 % in the sale of the food and beverages. There are no allegations in this plaint against accused No.2. In my view, the averments made in the plaint cannot be brushed aside.
16 In these circumstances, it is necessary to consider
246.Cri.Apl.612.2018.jud.+1.odt 17 the reply dated 30.10.2012 sent by the complainant to the notice issued by accused No.1 dated 15.10.2012. The accused No.1 issued three notices dated 15.10.2012 to the complainant when the three cheques submitted for encashment had been dishonored. It is the case of the complainant that these three cheques were issued by way of security. It is the case of the accused No.1 that for the purpose of starting the business of food and beverages from the hotel, he was short of money and therefore he advanced the loan to the complainant. This fact was categorically stated by accused No.1 in the three notices dated 15.10.2012. It is the case of the complainant that, by the time of issuance of the reply dated 30.12.2012 he was not allowed to do business from the hotel. The reasons may not be of any relevance. The relevant fact is that the complainant was put to the notice by accused No.1 that he was not interested to continue the contract or the business dealings with the complainant. It was therefore expected from the complainant
246.Cri.Apl.612.2018.jud.+1.odt 18 to mention all the relevant facts in his reply. In his reply, he has stated about the contract and the nature of the business dealings. He demanded the amount of Rs.78,99,282/- from accused No.1 which, according to the complainant, the accused No.1 was liable to pay on account of the breach of the contract. This reply would show that there was a dispute between them with regard to the breach of the contract. In this reply, the complainant stated that, as agreed, he was not paid 75 % share of the sale of the food and beverages. Perusal of this reply would show that it is silent about any cheating, fraud or forgery. It was not stated in the reply that the accused misrepresented the complainant and thereby deceived the complainant. Perusal of the reply would show that it is a plain and simple civil dispute. This reply is dated 30.10.2012. 17 Accused No. 1 filed three complaints against the complainant under Section 138 of the N. I. Act on 22.11.2012. It is not out of place to mention at this stage that in one of the
246.Cri.Apl.612.2018.jud.+1.odt 19 complaints the complainant has been convicted. The complainant filed the civil suit on 23.01.2013. I have set out herein above the material facts pleaded in the suit. The application made seeking a temporary injunction restraining the accused from transferring the hotel or business was rejected vide order dated 12.03.2013. The complainant lodged the report with the police on 15.03.2013 and for the first time in this report, tried to convert the civil dispute into a criminal dispute. The police did not register the FIR, stating that it was a civil dispute. He, therefore, filed an application under Section 156 (3) of the Cr.P.C. Learned Magistrate passed the order. 18 It is to be noted that the genesis of the civil as well as criminal dispute is the contract between the complainant and accused No.1. The nature of the contract has been highlighted herein above. It is evident that for some reason or another the parties could not sail through the contract. It is the case of the
246.Cri.Apl.612.2018.jud.+1.odt 20 complainant that it is accused No.1 who has backed out of the contact. It is the case of the accused No.1 that it is the complainant who has backed out of the contract. In short, their grievance is with regard to the breach of the contract. The complainant and the accused No.1 were well acquainted before entering into the contract. They were already in the hotel business. They had knowledge of the business. They had knowledge of the consequences of backing out of the contract for one reason or another. It is seen that for two years and nine months from the date of the actual dispute having escalated, the complainant did not make a whisper either in reply to the notice sent by the accused No.1 or in the civil suit that he was cheated by the accused Nos. 1 and 2. On perusal of the material on record, I am fully satisfied that the dispute between the parties was of a civil nature. It was given the colour of a criminal dispute.
19 Learned Senior Advocate for the accused relied
246.Cri.Apl.612.2018.jud.+1.odt 21 upon the following three decisions and submitted that converting a civil dispute into a criminal dispute is not permissible and the same amounts to abuse of the process of law.
i. Rashmi Jain .v/s. State of Utter Pradesh and another1 ii. Rajib Ranjan and others .v/s. R. Vijay Kumar2 iii. Mohd. Khalid. Khan .v/s. State of Uttar Pradesh and another3.
20 In the case of Rashmi Jain (supra), the Hon'ble Apex Court has held that the civil dispute cannot be converted into a criminal dispute. The Court has to consider the utterances attributed to the accused inserted in the complaint. If the court finds that the same are with a malicious intent to convert a purely civil dispute into a criminal offence then the Court has to be very careful. If it is found that the civil dispute has been converted into a criminal offence then the Court has 1 (2014) 13 SCC 553 2 (2015) 1 SCC 513 3 (2015) 15 SCC 679
246.Cri.Apl.612.2018.jud.+1.odt 22 to quash the same. The continuation of the proceedings in such a situation amounts to misuse of the process of the law. In the case of Rajib Ranjan (supra) it is observed that the civil dispute cannot be converted into criminal proceedings. Filing of a criminal complaint by party after losing matter in civil litigation amounts to misuse and abuse of process of law. In such a situation, the complaint is liable to be quashed. The same view has been taken by the Hon'ble Apex Court in the case of Mohd. Khalid. Khan (supra).
21 In my view, the above stated factual position, if considered in juxtaposition with the principle of law culled out from the decisions of the Hon'ble Apex Court, it would show that the complainant, out of a sheer frustration of breach of a contract on the part of the accused No.1 and initiation of the proceeding by accused No.1 against him, resorted to the criminal proceedings. Initially, he pursued his available remedies before the Civil Court by filing a civil suit. The civil
246.Cri.Apl.612.2018.jud.+1.odt 23 suit is still pending. Perusal of the plaint would show that he has claimed the money decree against accused No.1 on the ground of breach of contract by him. The complainant, after filing of civil suit and after defending the notice issued by accused No.1 on dishonor of three cheques, changed the tenor of his allegations. For the first time in the report dated 15.03.2013 in respect of very same transaction he has stated that there was a conspiracy and pursuant to the said conspiracy, he was made to enter into the contract and in the said contract he was deceived. Perusal of the record would show that these allegations of deception or cheating have not been at all made out. Learned Additional Sessions Judge was therefore right in allowing the revision applications and discharging accused Nos.1 and 2.
22 It is pertinent to note that the mala fides of the complainant can be seen from his subsequent change of a stand. Initially, in the suit, he did not make any averments or
246.Cri.Apl.612.2018.jud.+1.odt 24 allegations against accused No.2, who is the father of accused No.1. In the plaint he has contended that his contract was with accused No.1. Similarly, in the reply to the notice issued by accused No.1 for a dishonor of three cheques he did not make any allegation against accused No.2, the father of accused No.1. For the first time, the complainant invented a new story in his report. Perusal of the report and complaint would show that story is also half cooked. In my view, this shows the mala fide intention of the complainant. He gave a colour of criminal offence to the purely civil dispute. I am conscious of the fact that even a civil dispute has traces of a criminal offence. It is a cardinal principle of law that every criminal offence requires mens rea. The mens rea must be present in the case of a breach of contract since the inception of the contract. It must be pleaded to the satisfaction of the Court. The Court, on the perusal of the pleadings coupled with the attending circumstances, must be satisfied that it is sufficient to attribute a
246.Cri.Apl.612.2018.jud.+1.odt 25 mens rea to the accused. A breach of a contract or backing out of a contract by one of the parties one fine morning could not be made the basis to attribute the mens rea to the said party. In this case, the complainant has tried to play hide and seek game. A litigant who is guilty of suppression of material facts does not deserve any equity or relief. As far as the first point is concerned, I am satisfied that the learned Additional Sessions Judge was right in discharging the accused No. 1 and 2. 23 In the backdrop of the above stated factual scenario and the fate of the prosecution having been sealed, which was initiated at the behest of the complainant, it would be necessary to dilate upon his right of hearing in the criminal revisions filed by accused Nos. 1 and 2 in the Sessions Court wherein they had assailed the order passed by the learned Magistrate rejecting their application for discharge and also for setting aside the order of framing of charge.
246.Cri.Apl.612.2018.jud.+1.odt 26 24 Learned Advocate for the complainant submitted that, in the earlier part of the proceeding, which was initiated by accused Nos.1 and 2 before the Sessions Court by way of a revision, the complainant was made a party. Learned Advocate submitted that accused Nos.1 and 2 deliberately did not join the complainant as a party in the subsequent revision applications. Learned Advocate further submitted that while opposing the discharge applications, the complainant was granted opportunity to file the reply as well as file his written submissions. The record would show that the request made by the complainant to assist the prosecution was granted. Learned Advocate for the complainant, relying upon the decisions in the cases of Mohit alias Sonu and Anr. Vs. State of Uttar Pradesh and Anr.4; Shriram s/o. Nagordhar Mahajan Vs. State of Maharashtra and Anr.5; Kalyani w/o. Subhash Buty Vs. State of Maharashtra and Ors.6; J.K. International Vs. State (Govt. of 4 (2013) 7 SCC 789 5 2006 (1) Mh.L.J. (Cri.) 574 6 2012 (2) Mh.L.J. (Cri.) 239
246.Cri.Apl.612.2018.jud.+1.odt 27 NCT of Delhi) and Ors.7 and Rekha Murarka Vs. State of West Bengal and Anr.8, submitted that the order in the revision applications impugned in this case discharging accused Nos.1 and 2 in a criminal case was prejudicial to the interest of the complainant and therefore, before passing such an order, the learned Additional Sessions Judge was duty-bound to hear the complainant in whose favour a right had accrued on account of rejection of the applications for discharge made by accused Nos.1 and 2.
25 As against this, learned Senior Advocate Mr. Mardikar submitted that, in such a matter, the Court has to take into consideration the overall facts of the case to form an opinion as to whether the order in question has caused the prejudice to the informant or complainant merely because of the failure to add him as a party or to grant him an opportunity of hearing. Learned Senior Advocate took me through the 7 (2001) 3 SCC 462 8 (2020) 2 SCC 474
246.Cri.Apl.612.2018.jud.+1.odt 28 record and pointed out that prima facie the civil dispute has been converted into a criminal offence. Learned Senior Advocate submitted that the offence of criminal breach of trust or offence of cheating has not at all been made out. Learned Senior Advocate submitted that the entire record was examined by the learned Additional Sessions Judge, including the reply filed before the Magistrate by the complainant and his written notes of arguments. Learned Senior Advocate submitted that the prosecution against accused Nos.1 and 2 was itself not tenable inasmuch as the civil dispute was converted into a criminal offence. Learned Senior Advocate submitted that the proceeding initiated by the complainant was total abuse of the process of law, resulting into a sever prejudice to accused Nos. 1 and 2. Learned Senior Advocate submitted that while considering the law laid down in the decisions relied upon by the learned Advocate for the complainant, the Court has to consider the basic facts and see whether any criminal offence
246.Cri.Apl.612.2018.jud.+1.odt 29 has been made out or not. Learned Senior Advocate pointed out that, if the Court comes to the conclusion that the dispute between the parties was of civil nature but with embellishment it was given a colour of criminal offence, then failure to grant him an opportunity in the revision applications would not go to the root of the matter. Learned Senior Advocate submitted that the prosecution was ably conducted by the in-charge Prosecutor.
26 It is necessary to state at the cost of repetition that while considering the factual matrix and the materials placed on record, I have concluded that the evidence on record is sufficient to accept the contention of accused Nos.1 and 2 that it was a pure civil dispute. The dispute was with regard to the breach of contract. On account of breach of contract, the complainant had taken a recourse to the remedy for recovery of money by filing a substantive suit. The complainant lodged the
246.Cri.Apl.612.2018.jud.+1.odt 30 report after about two years and nine months. In my view, all these facts and the observations cannot be brushed aside while considering the applicability of the law.
27 In the case of J.K. International Vs. State (Govt. of NCT of Delhi) and Ors. (supra), three Judge Bench of the Hon'ble Apex Court has held that the scheme envisaged in the Code of Criminal Procedure indicates that a person who is aggrieved by the offence committed is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was laid by them. Even the fact that the Court had taken cognizance of the offence is not sufficient to debar him from reaching the Court for ventilating his grievance. Even in the Sessions Court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 of the Cr.P.C., a private person who is aggrieved by the offence involved in the
246.Cri.Apl.612.2018.jud.+1.odt 31 case is not altogether debarred from participating in the trial. It is observed that it can be discerned from Section 301(2) of the Cr.P.C. Further, when the trial is before a Magistrate's Court, the scope of any other private person intending to participate in the conduct of the prosecution is still wider. The genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them. It is held that the private person who is permitted to conduct prosecution in the Magistrate's Court can engage a counsel to do the needful in the court on his behalf. Further, if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested, he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the Court thinks that the cause of justice would be served better by granting such permission, the Court would generally grant such permission. It is observed that, of course,
246.Cri.Apl.612.2018.jud.+1.odt 32 this wider amplitude is limited to Magistrates' Courts as the right of such private individual to participate in the conduct of the prosecution in the Sessions Court is very much restricted and is made subject to the control of Public Prosecutor. 28 It is to be noted that this law has been consistently followed in the other decisions relied upon by the learned Advocate for the complainant cited supra. The right of the complainant or the informant to participate in the revision applications has not been diluted in any manner. He is required to be heard in the revision applications where the order is prejudicial to his interest.
29 In my view, in the backdrop of the facts of the case on hand, I am of the view that the complaint or the prosecution initiated at the behest of the complainant was itself a misuse of the process of the Court. The complainant, as can be seen from
246.Cri.Apl.612.2018.jud.+1.odt 33 the record, at the first opportunity, did not make any grievance that accused Nos.1 and 2 had committed any offence of cheating or criminal breach of trust. Perusal of the record would show that no offence either of criminal breach of trust or cheating, is made out on the basis of the averments. Perusal of the record would show that there was a concluded contract between the complainant and accused No.1. The contract was not reduced into writing. The complainant and accused No.1 continued with the contract as per the oral understanding. The civil suit filed by the complainant for recovery of the amount on account of breach of contract by accused No.1 is a testimony to the fact that it was a simple dispute of civil nature. It needs to be stated that offence of criminal breach of trust and offence of cheating are antithesis of each other. These two offences cannot go hand-in-hand. These offences can be invoked together in rare and exceptional case. In this case, I am satisfied that the allegations made in the complaint do not have even the
246.Cri.Apl.612.2018.jud.+1.odt 34 traces of criminal offences. After about three years, the wisdom dawned upon the complainant to take recourse to the remedy of lodging the report.
30 It is evident that the complainant misused the process of law. The police filed the charge-sheet after the order passed by the learned Magistrate to register the FIR as per the order under Section 156(3) of the Cr.PC. It is evident, on the plain reading of the complaint and the pleadings in the plaint, that it was a simple civil dispute with regard to the breach of contract and as such for recovery of the money. The complainant, with the passage of time, painted it with the brush of the criminal offence. In my view, it was a misuse of the process of law. Any attempt made by a litigant to misuse the process of law is required to be thwarted. If the litigant is found guilty of misuse of process of law, then the Court has to take a very strict view of the matter. In such a case, the grievance of
246.Cri.Apl.612.2018.jud.+1.odt 35 prejudice of the kind made in the application cannot be entertained. In this proceeding, the complainant has not been able to satisfy this Court that accused Nos. 1 and 2 have committed the alleged offences. In this background, the grievance of prejudice needs appreciation. In my view, in the teeth of the peculiar facts of the case, grant of an opportunity of hearing before the Sessions Court would not have changed the course of litigation in his favour.
31 In my view, in the facts and circumstances, the law laid down above is of no help and assistance to advance the case of the complainant further. Accordingly, I conclude that the learned Additional Sessions Judge was right in allowing the revision applications. The learned Judge, as can be seen from the reasoned order, has taken the entire material into consideration. I do not see any substance in the applications. In my view, the remand of matter on this technical ground in the
246.Cri.Apl.612.2018.jud.+1.odt 36 backdrop of the finding of fact arrived at on the basis of the material would not change the fate of the litigation. As such, I conclude that there is no substance in the applications. The applications are, accordingly, dismissed.
(G. A. SANAP, J.) Namrata /Vijay Kumar Signed by: Miss Namrata Suryawanshi Designation: PA To Honourable Judge Date: 27/09/2024 17:56:19