Gauhati High Court
Page No.# 1/ vs Mahesh Kalowar on 21 June, 2024
Page No.# 1/10
GAHC010072822022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./343/2022
RENU KALOWAR AND ANR.
W/O SRI MAHESH KALOWAR
D/O LATE JAYNATH GUPTA
R/O C/O SRI AVINASH CHOUDHURY
PAGLASTAN, NEAR GURU DUWARA, P.O., P.S. AND DIST. BONGAIGAON,
ASSAM, PIN-783380
2: SMTI. RAJKUMARI DEVI
W/O LATE JAYNATH GUPTA
R/O C/O SRI AVINASH CHOUDHURY
PAGLASTAN
NEAR GURU DUWARA
P.O. P.S. AND DIST. BONGAIGAON
ASSAM
PIN-78338
VERSUS
MAHESH KALOWAR
S/O LATE HIRALAL KALOWAR
R/O SALBARI, WARD NO. 12,
P.O., P.S. AND DIST. BONGAIGAON, ASSAM, PIN-783380
Advocate for the Petitioner : MR. B J MUKHERJEE
Advocate for the Respondent : MR. S C BISWAS
Page No.# 2/10 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA Date of Hearing : 07.03.2024 Date of Judgment : 21.06.2024 Judgment & Order(CAV) Heard Mr. B. J. Mukherjee, learned counsel for the petitioner. And also heard Mr. S. C. Biswas, learned counsel for the respondent.
2. This is an application under Section 482 of Cr.P.C for quashing the Complaint Case No. 19 of 2021 pending before the Court of the learned Judicial Magistrate First Class, Bongaigaon.
3. The case of the petitioner is that the opposite party herein i.e., the husband of the petitioner No. 1, expressed that he was in urgent need of money for his business purpose and then he proposed to sell his plot of land to the petitioner No. 2, i.e., his mother-in-law. Accordingly, the petitioner No. 2 purchased the plot of land measuring 1(one) Katha 5 Lecha covered by Dag No. 11 (Pt.) of Patta No. 633 situated in village Salbari, Bongaigaon for a total consideration of Rs. 7,50,000/- (Rupees Seven lakh fifty thousand) and a sale deed is also executed on 19.02.2018.
4. Even after receiving the money against the sale of the plot of land, the respondent had approached the petitioner No. 2 asking for some more financial help for his business. The petitioner No. 2 being the mother-in-law of the opposite party/complainant, arranged an amount of Rs. 20,00,000/- (Rupees Twenty lakh) by accumulating all her sources and mortgaging the property, the said 20,00,000/- (Rupees Twenty lakh) was given to the respondent for a period of 2(two) years and the respondent accordingly issued 2(two) cheques, one Page No.# 3/10 bearing No. 197245 dated 22.05.2021 and another bearing No. 197246 wherein dated 28.05.2021. The 2(two) cheques were issued of Rs. 10,00,000/- (Ten lakh) each.
6. Thereafter, the opposite party again approached the petitioner No. 2 for further financial help and then the petitioner No. 2 refused to pay any further money and asked him to refund the money already taken by him. On which the respondent became furious and started torturing the petitioner No. 1 and asked her to bring money from her mother. When the torture on the petitioner No. 1 became unbearable, she lodged an FIR against the respondent on 25.04.2021 under Sections 498A 294 447 354(B) 307 323 IPC and the respondent was also arrested in connection with the same case.
7. But the respondent in spite of lapse of 2(two) years did not pay any single penny to the petitioner No. 2 and the cheques which were given by the respondent is also dishonored by the bank on 05.08.2021 on presentation of the cheques and thereafter, the petitioner No. 2 also served legal notice to the respondent on 23.08.2021 which was duly delivered to him on 26.08.2021. After receiving the said notice under the N.I Act, the respondent lodged a complaint on 03.09.2021 against the petitioners under Section 406/294/420/506 IPC alleging inter-alia that the petitioner No. 1 had taken 5(five) Nos. of blank signed cheques from his cheque book and those were presented before the bank for encashment. The said complaint was accordingly registered as Complaint Case No. 19/2021 which is pending before the Court of learned Judicial Magistrate First Class, Bongaigaon.
8. The petitioner No. 2 thereafter filed a case under Section 138 of N.I Act against the present respondent on 20.09.2021 after expiry of the mandatory Page No.# 4/10 period which is registered as N.I Case No. 79/2021. It is further stated that the respondent on the other hand, filed a Money Suit being Money Suit No. 36/2021 against the petitioner No. 2 for the alleged amount of Rs 8,50,000/- (Rupees Eight lakh fifty thousand) which has also been pleaded in his complaint case.
9. It is further submitted by the learned counsel for the petitioners that the respondent filed the complaint case only with an intention to harass the petitioners and he is trying to escape from his liability to pay the loan amount to protect himself from the case filed under N.I Act. And as such, the complaint filed by the respondent is false and concocted one which was filed only after receiving the demand notice after dishonor of cheques. The respondent did not take any steps to stop the payment from his lost cheques nor he filed any FIR, rather he filed a complaint case just to save himself from the case filed by the petitioners under Section 138 of N.I Act.
10. On being highly aggrieved by the filing of the Complaint Case No. 19/2021 by the respondent with an ulterior motive, the petitioner had to prefer the present petition under Section 482 of Cr.P.C for quashing of the complaint case filed against the petitioners.
11. The learned counsel for the petitioners further submitted that the complaint case has been filed by the respondent only with an attempt to pre- empt the filing of the criminal complaint against the respondent under Section 138 of N.I Act. And as such, the same is an abuse of the judicial process and needs to be quashed and set aside. He further submitted that the cheques were dishonored on 05.08.2021 and thereafter, the demand notice was issued on 23.08.2021 which was duly served on the respondent on 26.08.2021 and thereafter only the complaint was filed by the respondent before the learned Chief Judicial Magistrate, Bongaigaon on 03.09.2021 with a mala fide intension Page No.# 5/10 and hence, the entire criminal proceeding is liable to be set aside and quashed.
12. That apart, the respondent has also filed a Money Suit for recovery of money/consideration of the sale amount, which is also mentioned in his complaint petition and thus, he already filed the case before the civil forum to get the proper relief and hence, the criminal case on the same subject is not maintainable and is liable to be set aside and quashed.
13. The learned counsel has further submitted that if the complaint case is allowed to be continued which has been filed with a mala fide intension, the same will not only cause prejudice to the petitioner but also cause miscarriage of justice. Accordingly, it is submitted by the learned counsel for the petitioner that this is a fit case wherein, the power under Section 482 of Cr.P.C can be exercise to set aside and quashthe complaint case being Complaint Case No. 19/2021 pending before the learned Judicial Magistrate First Class, Bongaigaon.
14. The learned counsel for the petitioner further relied on the decision of Apex Court reported vide Mahindra & Mahindra Financial services limited & Anr. Vs. Rajiv Dubey, wherein, the Apex Court expressed the view relying on the case of Bhajan Lal (supra) that where a criminal proceeding is manifestly attended with an ulterior motive for wreaking vengeance on the accused and with an ulterior to spite him due to private and personal grudge, the same is liable to be set aside and quashed.
15. In this context, the petitioner also relied another decision of the Apex Court passed in case of Sunil Kumar vs. Escorts Yamaha Motors Ltd. & Ors. which was reported in 1999 8 SCC 468 and emphasized on paragraph 5 of the said judgment which read as under:
"5. Bearing in mind the law laid down by this Court in the cases referred to earlier and the contentions raised by the learned Counsel appearing for the parties and on examining the Page No.# 6/10 allegations made in the FIR, we are persuaded to accept the submission of Mr. H.N. Salve and Mr. Arun Jaitley, appearing for the respondents that necessary ingredients of the offence of cheating or criminal breach of trust have not been made out and on the other hand the attendant circumstances indicate that the FIR was lodged to pre-empt the filing of the criminal complaint against the informant under Section 138 of the Negotiable Instruments Act. The High Court, therefore, was well within its power in quashing the FIR as otherwise it would tantamount to an abuse of process of Court. We, therefore, see no justification for our interference with the impugned decision of the High Court in exercise of power under Article136 of the Constitution."
16. Accordingly, it is submitted that in the instant case also it is evident that the complaint has been lodged by the respondent only with a mala fide intension to harass the petitioners and to save himself from the case filed by the petitioners under Section 138 of N.I Act and also to avoid himself from returning the money to the petitioner No. 2. And it is also evident that the complaint was lodged to pre-empt filing of the complaint under Section 138 of N.I Act against the present respondent and hence, the complaint case being Complaint Case No. 19/2021 is liable to be set aside and quashed.
17. On the other hand, Mr. S. C. Biswas, the learned counsel for the respondent has submitted that the respondent had toinstitute a complaint case against the present petitioners when he came to know about the loss of 5 Nos. of signed cheques from his possession which were taken by the petitioners in his absence by illegally trespassing into his house and also replaced the lock and key of his house. He came to know about the same on enquiry made by him from the neighbors and accordingly, he immediately lodged an FIR before the North Bongaigaon P.P. On which, the police enquired and during the enquiry they have admitted to have entered into the house of the complainant and changed the lock and key during his absence. However, the matter was amicably settled and the police handed over the possession to the respondent and hence, no case was registered on the basis of the said FIR. But when he Page No.# 7/10 came to know about missing of 5 Nos. of signed cheques,he initially approached the petitioners with a request to return his 5 Nos. of signed cheques and the land documents but they refused to do so and hence, he also instituted a Money Suit for recovery of 8,50,000/- (Rupees Eight lakh fifty thousand) against the petitioners which is also pending before the Court of the learned Munsiff, Bongaigaon and instituted the complaint case against the petitioners.
18. Mr. Biswas, learned counsel further submitted that in the said complaint case, the learned Court below already took cognizance of the offence and process has been issued and thus, on the face of the records itself it cannot be held that there is no prima facie case to take cognizance against the petitioners and accordingly, Mr. Biswas has submitted that it is not at all a fit case to set aside and quash the proceedings applying the power under Section 482 of Cr.P.C. He further submitted that the respondent is also facing the trial in N.I Case No. 79/2021 registered under Section 138 of N.I Act.
19. Mr. Biswas, the learned counsel for the respondent has further submitted that the quashing may be permissible when no offence is disclosed prima facie in the FIR of the complaint and if there is no prima facie case is made out on the face of the record. But here in the instant case, the learned Court below had already taken cognizance by applying his judicial mind and process has already been issued and hence, it is not at all permissible for quashing of the criminal proceeding pending against the present petitioners. He also placed reliance on the decision of the Apex Court which is reported in (2022) 2 SCC 129 in the case of Mahendra K. C vs. State of Karnataka & Anr.
20. I have considered the submissions made by the learned counsel for both sides and I have also perused the case record and other relevant documents annexed along with the petition.
Page No.# 8/10
21. It is admitted fact that the agreement for sale was executed between the petitioner No. 2 and the respondent,as the respondent proposed to sale a plot of land to the petitioner No. 2 for his urgent need of money. As per the petitioners, the respondent had lodged the complaint only after receipt of the notice issued by the petitioners under Section 138 of N.I Act after dishonor of 2(two) Nos. of cheques issued by the respondent. But it also cannot be denied that the respondent was also arrested in connection with the FIR lodged by the petitioner No. 1 on 25.04.2021 which was registered under Sections 498A 294 447 354(B) 307 323 IPC and hence, the plea of the respondent that the cheques were found missing from his house in his absence also cannot be denied outrightly as it is a fact that he was behind the bar or arrested in connection with the case lodged by the petitioner No. 1. Thus, it cannot be held that there is no prima facie case is made out against the petitioners in the complaint filed by the respondent.
22. The Apex Court in the case of Bhajan Lal had laid down the principles for the exercise of the jurisdiction under Section 482 of Cr.P.C in paragraph 102 which reads as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence Page No.# 9/10 or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Cr.P.C.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Cr.P.C.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
23. In the instant case also, it is seen that there is some enmity or personal grudge between the parties but only on the basis of that it cannot be stated that there is no prima facie case is made out against the present petitioners in the complaint filed by the respondent. Further, the allegations brought in the complaint also cannot be considered as absurd and inherently improbable to quash the proceeding. More so, the learned trial Court has already taken cognizance after applying his judicial mind and process is issued accordingly against the present petitioners and thus, the petitioners will get the ample opportunity to disproved the case of the respondent and to rebut the evidence Page No.# 10/10 of the respondent by adducing rebuttal evidence. It is also seen that the respondent is also facing the trial in the case of N.I act filed against him by the petitioner No. 2.
24. In view of above and also considering all aspects of the case, I am of the view that this is not a fit case to exercise the inherent power under Section 482 Cr.P.C. to quash the criminal proceeding pending against the present petitioner and accordingly, the same stands dismissed.
In terms of above, this criminal petition stands disposed of.
JUDGE Comparing Assistant