Punjab-Haryana High Court
Criminal Misc. No. 20134-M Of 2003 (O&M) vs State Of Punjab And Another on 19 April, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 1
In the High Court of Punjab and Haryana, at Chandigarh.
1. Criminal Misc. No. 20134-M of 2003 (O&M)
Faqir Chand Bansal
...Petitioners
Versus
State of Punjab and Another
...Respondents
AND
2. Criminal Misc. No.24351-M of 2003(O&M)
Vipan Bansal
...Petitioner
Versus
State of Punjab and Another
...Respondents
Date of Decision: 19.4.2010
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. K.K.Goel, Advocate
for the petitioner (In Criminal Misc. No.
20134-M of 2003)
Mr. Hitinder Singh Lalli, Advocate
for the petitioner (In Criminal Misc. No.
24351-M of 2003).
Mr. J.S. Bhullar, Assistant Advocate
General, Punjab, for respondent No.1
(In Criminal Misc. Nos. 20134-M and 24351-M
of 2003)
None for respondent No.2 (In Criminal Misc.
Nos. 20134-M and 24351-M of 2003)
Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 2
Kanwaljit Singh Ahluwalia, J. (Oral)
Criminal Misc. No. 19345 of 2010 In Criminal Misc. No. 20134-M of 2003 Criminal Misc. Application is allowed.
Exemption from filing of certified copies of Annexures P6 to P8 is granted.
Criminal Misc. No. 19344 of 2010 In Criminal Misc. No. 20134-M of 2003 Criminal Misc. Application is allowed.
The documents (Annexure P6 to P8) are taken on record. Criminal Misc. No. 19366 of 2010 In Criminal Misc. No. 24351-M of 2003 Criminal Misc. Application is allowed.
Exemption from filing of certified copies of Annexures P8 to P10 is granted.
Criminal Misc. No. 19365 of 2010 In Criminal Misc. No. 24351-M of 2003 Criminal Misc. Application is allowed.
The documents (Annexure P6 to P8) are taken on record. Criminal Misc. Nos. 20134-M and 24351-M of 2003 By this common order, Criminal Misc. Nos. 20134-M and 24351-M of 2003 shall be disposed of together.
Criminal Misc. No. 20134-M of 2003 has been preferred by Faqir Chand Bansal, whereas Criminal Misc. No. 24351-M of 2003 has been preferred by Vipan Bansal. Both of them seek quashing of FIR No. 17 dated 3.2.2003 registered at Police Station City Mansa, under Sections 420, 467, 468, 471, 471-A, 424, 506 and 120-B IPC. Both the petitioners are accused in the said FIR. For facility of reference, the facts Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 3 are gathered from the petition preferred by Faqir Chand Bansal. Smt.Sushila Devi, respondent No.2, preferred the complaint in the Court of Chief Judicial Magistrate, Mansa, wherein it was stated that she was a Sole Proprietor of M/s Kimat Rai Harcharan Dass, Mansa, which was engaged in the sale and purchase of cotton seeds and was operating from Grain Market, Mansa. She became absolute owner after the death of her husband Kimat Rai. It was stated that accused Faqir Chand Bansal, Des Raj, Surinder Kumar and Rajinder Kumar came to the shop of complainant at Grain Market, Mansa, on 2.10.1998. They had purchased the cotton seeds for their firm M/s Vipan Cotton Private Limited, Abohar. In the nutshell, the case is that on various dates, the accused had purchased cotton seeds, details of which were given in the complaint and various bills were issued commencing from 4.10.1998 to 21.10.1998. It was further stated that the principal amount of Rs.15,48,564/- was due which the accused had not paid and thus, they had committed an offence of cheating. It was further averred in the complaint that the accused had forged the account books and thus, they committed various offences. It was also stated that the accused were selling their properties to deprive of the complainant from recovering the amount. Thus, the complaint was presented before the Court of Chief Judicial Magistrate, Mansa, who had passed an order dated 29.1.2003 (Annexure P3) under Section 156(3) Cr.P.C. directing the police to register the case and investigate the matter. During the pendency of this petition, the police had submitted a report under Section 173 Cr.P.C., which has been placed on record as Annexure P6. The Court of Chief Judicial Magistrate, Mansa, had passed the order dated Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 4 20.4.2005 (Annexure P7) in pursuance whereof, the charge sheet was drawn against the accused. The accused have been charge sheeted for the offence under Sections 420, 467, 468, 471, 477-A, 424 IPC and also with the aid of Section 120-B IPC. They have also been substantively charged for the offence under Section 506 IPC.
During the subsistence of the present petition, Civil Suit No. 24 dated 22.1.2004, filed by the husband of the complainant, has also been decreed by the Court of Civil Judge (Senior Division), Mansa, vide judgment dated 17.11.2007 (Annexure P8) and M/s Vipan Cottons (Private) Limited was held liable to pay a sum of Rs.24,88,905/-.
From the tenor of the FIR and the challan, it is apparent that it is a case where the goods were received by the accused from the complainant in the course of business transaction and the amount has not been paid. Therefore, this Court, prima facie, will have no hesitation to state that this matter is purely of a civil nature and no criminal offence is made out.
Reliance can be placed upon the judgments rendered in Hotline Teletubes and Components Ltd. and Others v. State of Bihar and Another (2005) 10 Supreme Court Cases 261, Veer Parkash Sharma v. Anil Kumar Agarwal and Another 2007(3) Recent Criminal Reports 960, Inder Mohan Goswami and Another v. State of Uttaranchal and Others 2007(4) Recent Criminal Reports 548, Sharon Michael and Others v. State of Tamil Nadu and Another 2009(1) Recent Criminal Reports 759 and V.Y. Jose and Another v. State of Gujarat and Another 2009(1) Recent Criminal Reports 869.
Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 5 However, in the challan i.e. report under Section 173 Cr.P.C., it has been specifically stated in paragraph 10 as under:-
"10. That now we have come to know that with intention to embezzle our cotton seed, the accused have made false entries in their ledgers regarding making of payments and have prepared fake and forged ledgers so that the price of these goods can be usurped. All the accused, in connivance with each other, have prepared the forged and fake papers and while tempting the applicant and his father with their false assurances, they have caused loss to us and the applicant and his father have suffered huge harassment and the accused have openly admitted that they have knowingly committed all this and they are habitual cheaters. From the above noted circumstances, it becomes clear that from very beginning the intention of the accused was to commit cheating and to receive cotton seed in fraudulent manner. In this way, the accused have wrongfully caused loss to us and earned their profits".
Furthermore, the Court of Chief Judicial Magistrate, Mansa, has framed charges against the petitioners under Sections 420, 467, 468, 471, 477-A, 424, 506 and 120-B IPC. The charges thirdly, fourthly, fifthly and sixthly, read as under:-
"Thirdly, on same date, time and place, Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 6 you forged certain documents i.e. account books purporting to be valuable security and thereby you all have committed offence Punishable u/s 467 IPC and within my cognizance.
Fourthly, on same date, time and place, you forged certain documents i.e. accounts books intending that these shall be used for purpose of cheating and thereby you all have committed an offence u/s 468 IPC and within my cognizance.
Fifthly, on same date, time and place, you fraudulently used as genuine certain documents i.e. account books which you knew at the time when you used the same to be forged documents and thereby you all committed offence u/s 471 IPC and within my cognizance.
Sixthly, on same date, time and place you all Director/Partner/Shareholder of M/s Vipin Cotton Pvt. Ltd. Abohar willfully and with intend to defraud complainant party falsified the account books of said company and thereby you all committed offence u/s 477A IPC and within my cognizance".
The petitioners have not preferred a revision against the framing of the charge. The statements of the witnesses recorded under Section 161 Cr.P.C. are not before this Court. Therefore, this Court cannot go through the record and determine as to whether prima facie the offence under Sections 420, 467, 468, 471, 477-A, 424, 506 and Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 7 120-B IPC is made out or not. There is no doubt that in case the material is laid before this Court and from prima facie perusal of the evidence, gathered by the Investigating Agency, this Court can formulate an opinion as to whether offence, for which the accused have been charged, is made out or not and if necessary, can quash the charge sheet. But to arrive at this conclusion, this Court should have some material before it from which it can find as to whether any such charge is made out or not. In these circumstances, this Court cannot undertake exercise to arrive at a conclusion as to whether the alleged offences are prima facie made out or not.
Accordingly, both these petitions are disposed of with the following observations:-
a) The petitioners, if so advised, may file a revision petition before the Court of Sessions Judge, Mansa, within 30 days from today. In case, such a revision petition is filed, no objection shall be available that the same is barred by limited. This is so observed because both these petitions have been filed in the year 2003 and during the pendency thereof, the charges were framed in the year 2005.
b) The revisional Court shall requisition the record and find out as to whether there is any sufficient material to frame charges under Sections 420, 467, 468, 471, 477-A, 424, 506 IPC. The revisional Court will also find out as to whether these charges with the aid of Section 120-B IPC are made out or not.
Criminal Misc. Nos. 20134-M and 24351-M of 2003 (O&M) 8 Regarding the framing of charge, for the offence of cheating, the revisional Court may take into consideration the judgment of Hon'ble the Apex Court cited above.
c) Taking into consideration long pendency of these petitions, the revisional Court is directed to decide the matter within three months from the date of receipt of a certified copy of this order.
d) Since the FIR pertains to year 2003, the petitioners are granted exemption from personal appearance before the trial Court subject to filing of an undertaking that they shall cause appearance as and when required and the evidence recorded in their absence but in the presence of their counsel shall be binding upon them. The trial Court may also specify any other condition in the undertaking to be furnished by the petitioners.
e) The petitioners will also be at a liberty to pray before the revisional Court to stay the further proceedings, before the trial Court, relying upon the order passed by this Court on 24.8.2006.
(Kanwaljit Singh Ahluwalia) Judge April 19, 2010 "DK"