Punjab-Haryana High Court
G.V.Bhaskar Rao And Others vs State Of Punjab And Another on 10 January, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.22416 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JANUARY 10, 2013
G.V.Bhaskar Rao and others
.....Petitioners
VERSUS
State of Punjab and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. R. K. Girdhar, Advocate,
for the petitioners.
Mr. Kirat Singh Sidhu, DAG, Punjab,
for the State.
Mr. M. S. Brar, Advocate,
for respondent No.2.
*****
RANJIT SINGH, J.
Interference in the exercise of police to act independently to register crime and investigation thereof is one of the issues raised in the present petition. As per the petitioners, the present FIR has been registered against them though it does not reveal any criminal offence and is a simple business transaction, but still has been given the colour of criminality and the process of criminal law set in motion on the intervention of the local MLA. Is it fair for an elected representative to interfere in the independent functioning of the police CRIMINAL MISC. M NO.22416 OF 2012 :{ 2 }:
which is to perform statutory duty regulated by various provisions made in the Code of Criminal Procedure? The petitioners would seriously complain that the local MLA has intervened to direct registration of the present FIR and, thus, the process is nothing but an abuse of the Court.
The petitioners would refer to the factual position when this application for registration of a case reached the SHO with recommendation endorsed thereon by the MLA and so registration of the present FIR resulted.
The complainant instead of approaching the police for registration of a case first approached the local MLA, namely, Prem Mittal, MLA, Mansa, who made the following endorsement on the application:-
"Kaveri Seed Company Limited, Secunderabad Virudh Thagi Maran Sambandhi FIR Darj Karan Di Sifarish Kiti Jandi Hai" (recommendation is made for registering FIR against Kaveri Seed Company Limited, Secunderabad for fraud)".
This endorsement was made on 2.4.2012. Promptly thereafter Superintendent of Police endorsed the same to the SHO for enquiry and report on 5.4.2012. The FIR No.75 dated 19.4.2012 followed against the petitioners under Sections 420 and 120-B IPC at Police Station, City Mansa.
Can this be termed as an independent action of the police to register a crime or it is because of the influence of MLA that a civil dispute is converted to criminal action and process of court set in CRIMINAL MISC. M NO.22416 OF 2012 :{ 3 }:
motion? Petitioners would loudly call it to be a foul and would term it an interference in the exercise of independence of police by the political masters. The perusal of the allegations made in the FIR would tend to lend support to the allegations and the complaint of the petitioners that at the most a civil liability of a business transaction has been moulded to criminality just because of political influence. The command of political masters was too much to bear by even the Head of Police of the District. The SHO was prompt in obeying the command by setting the criminal law in motion. The petitioners accordingly have approached this court for quashing of this FIR on the ground that the reading of the complaint does not reveal any criminal offence and this abuse of process of court set in motion by the respondents under the influence of political masters ought to be set right by judicial intervention.
Let us have a look at the allegations made in the complaint.
Petitioner G.V.Bhaskar Rao, Managing Director of Kaveri Seed Company Limited, R.Venu Manohar Rao of the Company alongwith Harbhajan Singh of Mansa are accused of committing fraud with the complainant of sum of `7,24,000/- . As stated in the application, complainant is running a seeds shop at Mansa, named, Vishal Trading Company. Harbhajans Singh is a Sales Officer of Kaveri Seeds Company at Mansa. In November, 2009 Harbhajan Singh statedly came to the complainant with intention to commit fraud and allured the complainant to purchase cotton seeds for making other investment. The complainant agreed to pay `5.00 lacs CRIMINAL MISC. M NO.22416 OF 2012 :{ 4 }:
as advance to Harbhajan Singh for purchase of 2500 packets of seeds. A bank draft dated 19.11.2009 was handed over to Harbhajan Singh, who assured that the said packets of seeds would be supplied before Sauni, 2010. The supply, however, did not materialize and rather Harbhajan Singh petitioner started demanding more money. In order to recover the amount already paid, petitioners allegedly paid another sum of `2,24,000/- through bank draft, but still neither any seed was supplied nor this amount was returned. As per the complainant, Harbhajan Singh initially used to say that he would return the amount, but his failure has led to the filing of the present complaint and consequent registration of the FIR.
The petitioners, on the other hand, have entirely different story to tell. They would term the allegations to be totally false and baseless and would also urge that at best this would give rise to a civil dispute for recovery of the amount for which no action appears to have been initiated by the complainant.
The petitioners would admit that they are dealing in the sale of seeds and are in dealing with the complainant since 2008. On 9.11.2009, the complainant firm paid sum of `5.00 lacs to petitioner Kaveri Seed Company and in lieu of this, seeds valued at `5,55,000/- were supplied by the petitioners to the complainant. In this regard, reference is made to the invoices dated 30.3.2010, 7.4.2010 and two invoices dated 10.4.2010. Accordingly, a sum of `55,000/- was payable by the complainant, who demanded supply of some more seeds and sent a cheque dated 5.5.2010 for `2,24,000/-.
The petitioners claim to have supplied seeds valued at `2,59,000/-
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through two invoices dated 6.5.2010. The complainant, however, on 11.5.2010 returned 80 packets of cotton seeds valued at `74,000/- to petitioner No.3. The petitioners further concede that the complainant was entitled to sale incentive, interest etc. and an amount of `1,22,696/- was offered, but the complainant refused to receive the same. These entries are duly reflected in the ledger account. On this basis, the story set up by the complainant is termed as false and otherwise such that it does not reveal any criminal culpability. The petitioners would urge that accepting the allegations at a face value, no offence under Section 420 IPC would be made out and was simple business dispute which is given criminal colour due to the intervention of the MLA. FIR, at the most, would only show a dispute, if any, of civil nature.
The reply on behalf of the State is filed. Reference is made to the facts as alleged in the complaint and it is then stated that in this way Kaveri Seed has committed a fraud of `7,24,000/- with respondent No.2. Investigation in this case has been completed and the challan under Section 173 Cr.P.C. has been submitted on 27.8.2012. Respondent No.2 has also filed reply to state that disputed questions of fact are involved and so this court cannot exercise inherent jurisdiction. As per the respondent No.2, there is an overwhelming evidence, which clearly establishes the guilt of the petitioners. It is further stated that the civil and criminal proceedings can run simultaneously. Respondent No.2 has also filed a civil suit for rendering accounts. Accordingly, both official and private respondent have opposed the prayer for quashing the FIR.
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It is on the basis of these pleadings, one would have to see if any offence under Section 420 and 120-B IPC would be made out against the petitioners or not. Concededly, this is a case of business transaction between the petitioners and the complainant- respondent No.2. The petitioners have not shied away to say that there was an agreement between the parties to supply seeds. The petitioners rather state that the petitioner-company had supplied the seeds as per the requirement for which the payment was made. The petitioners have even conceded that some incentive and interest is payable to the complainant, which he has not accepted. Whether these facts even if admitted would reveal any criminal liability and an offence under Section 420 IPC, thus, is a question which would require consideration.
Section 420 punishes the offence of cheating which is defined under Section 415 IPC. The agreement between the parties being conceded, it is to be seen if the petitioners had any intention to cheat the complainant or indeed have cheated the complainant at all or not as per the pleaded facts. The offence of cheating as defined in Section 415 is made out if:-
"(i) there is fraudulent or dishonest inducement of a person by deceiving him;
(ii) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property or the person so deceived should be intentionally induced to do or omit to do any thing which he would not do or omit if he was not CRIMINAL MISC. M NO.22416 OF 2012 :{ 7 }:
so deceived;
(iii) the act of omission (as noticed above) should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or fraud".
It has been consistently held that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when inducement was made. It is necessary to show that a person had a fraudulent or a dishonest intention at the time of making a promise and a mere failure to keep up a compromise subsequently cannot be presumed as an act leading to cheating. In this regard, reference can be made to S.W.Palanitkar vs. State of Bihar, 2001(4) RCR (Criminal) 572, Bisham Dev vs. State of Haryana (Pb.& Hy.), 1991(3) RCR (Crl.) 555 and Hakam Singh vs. State and Ors., 1984(2) R.C.R.(Criminal) 372.
In Hridaya Ranjan Prasad Verma and others Versus State of Bihar and another, 2002 (2) RCR (Crl.) 484, the Hon'ble Supreme Court observed as under:-
"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 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 CRIMINAL MISC. M NO.22416 OF 2012 :{ 8 }:
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".
Reliance has also been placed in the case of Bisham Dev Versus State of Haryana, 1991(3) Recent Criminal Reports
555. It was held by this court in this case that where an agreement to sell land had been entered into but was not executed, apparently due to hike in prices and land was sold to some other person, then the offence of cheating was not made out. It was further held in this case that there was no indication in the FIR that the landlord had the intention to cheat the complainant at the outset when he executed this agreement.
Applying this legal position to the facts of the present case, it would be noticed that taking the allegations at their face value, the petitioners had any intention not to supply the seeds or not when parties entered into this agreement. Rather plea here is that the seed has been supplied and in this regard, even reference is made to various invoices. The parties have already approached the civil court. That being the position, the present case would definitely be on a better pedestal compared to those cases where allegations of dishonest intention somehow may be discernible from the CRIMINAL MISC. M NO.22416 OF 2012 :{ 9 }:
allegations as made in the complaint.
The reading of the FIR does not reveal any cheating on the part of the petitioners. The primary role otherwise also appears to be that of petitioner No.3, who was the representative of the company. There are no specific or general allegations against petitioner nos.1 and 2. There is no allegation of fraudulent or dishonest inducement by petitioner Nos.1 and 2. There is also no allegation that they had in any manner deceived or induced the complainant to deliver any property. Reference here may also be made to the case of Punjab National Bank Versus S.P.Sinha, 1993 (Supp.) (1) SCC 449, where it is observed that judicial process should not be an instrument of oppression or needless harassment. Even if the uncontroverted allegations made in the complaint are taken at their face value, these would not prima facie go to establish that the petitioners had committed any offence of cheating. It can at the most be said to be a case where there is a failure of agreement between the parties.
The allegations also pertained to the year 2009 and the complainant has waited for too long for over three years before he has made the present approach for registering an FIR. Normally it is noticed that the police generally does not oblige such a late complainant and otherwise also it is not very easy to set the process of criminal law in motion unless it is put on some wheels. The police in this case has rather acted with promptness may be because the application was put on wheels of speed by the local MLA. I would restrain myself to make any further comment on the conduct of the CRIMINAL MISC. M NO.22416 OF 2012 :{ 10 }:
MLA in interfering in the process of law in this manner, but would wish to draw his attention to the fact that such interference is un- called for and un-acceptable.
I would also wish to emphasis here that setting a criminal law in motion against a person and making him to face the criminal proceedings is not something which is comfortable for an innocent person. Mere registration of a case leads to lot of harassment requiring a person to secure his liberty, besides facing harassment of defending himself at this far off place. I do not think if the elected representative of the area has realised the implication of his action. Even if it be so, the consequences are quite serious. He is seen encroaching the legal powers of police and may be of the Courts. Such a course otherwise is open under Section 156(3) Cr.P.C. or under Section 482 Cr.P.C., which the MLA has easily invoked.
Since the parties have already approached the court for rendition of accounts, it would obviously show that the parties were having a business dealing, which would further indicate that it is a case of civil liability alone and would be adjudicated by civil court. The process of criminal law has been set in motion in this manner only because of the intervention of the elected representative and so would call for correction through judicial intervention. Reference here can be made to State of Haryana Versus Bhajan Lal, 1992 Suppl. (1) SCC 335, wherein it is observed that the allegations made in FIR or a complaint when taken at their face value and accepted in their entirety, if do not prima facie constitute any offence or make out a case against the accused, then such proceedings can be quashed.
CRIMINAL MISC. M NO.22416 OF 2012 :{ 11 }:
Finding that the allegations made in the FIR do not reveal any offence even if accepted at face value, the FIR and all subsequent proceedings taken thereon deserve to be quashed.
Ordered accordingly.
Any observation made in this case would have not any affect on the right of the parties in the civil proceedings that are in progress.
January 10, 2013 (RANJIT SINGH ) ramesh JUDGE