Bombay High Court
Mr.Jitendra Nathmal Joshi @ Sharma vs The State Of Maharashtra. on 9 June, 2011
Author: A.M.Thipsay
Bench: B.H.Marlapalle, A.M.Thipsay
1 wp.1054.11.judgment.sxw
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1054 OF 2011
Mr.Jitendra Nathmal Joshi @ Sharma )
Aged 40 years, Occupation : Business, )
Aspen 303/304, B-Wing, Adhiraj )
Gardens, Plot No.32, Sector-5, )
Kharghar, Navi Mumbai-410210. ) ..Petitioner/Accused
-Versus-
1 The State of Maharashtra. )
Through Senior Inspector of Police,)
C.B.D. Belapur, Navi Mumbai. )
2 Mrs.Seema w/o Vishnu Joshi, )
R/o Room No.202, A-Wing, )
Lakhani Sanakosta, Plot No.27, )
Sector-15, CBD Belapur, )
Navi Mumbai. ) ..Respondents
...........
Mr.P.C.N.Agarwal, for the Petitioner.
Mrs.A.S.Pai, Additional Public Prosecutor, for the Respondent No.1/
State.
Mr.Navin S. Joshi, for the Respondent No.2.
..........
CORAM : B.H.MARLAPALLE &
A.M.THIPSAY, JJ.
Reserved on : 29th April, 2011.
Pronounced on : 09th June, 2011.
JUDGMENT (Per A.M.Thipsay, J):
1 By this petition, the Petitioner prays that the First Information Report bearing No.7/2011 dated 07.01.2011 registered at ::: Downloaded on - 09/06/2013 17:19:42 ::: 2 wp.1054.11.judgment.sxw the CBD Belapur Police Station against the Petitioner in respect of the offences punishable under Sections 406 and 420 of the Indian Penal Code be quashed. The Petition was originally filed only against the Respondent No.1 i.e. the State of Maharashtra, but pursuant to the order passed by us, the first informant viz. Mrs.Seema Vishnu Joshi has been added as a party to the petition as Respondent No.2.
2 Only a brief reference to the contentions of the Petitioner on facts would suffice. According to him, he is carrying on the business of import & export in the name and style of "Path International". The Petitioner knows one Vishnu Joshi, a Chartered Accountant, who is husband of the first informant Mrs.Seema Joshi- Respondent No.2 herein. That the said Vishnu Joshi approached the Petitioner in the month of December, 2009 and put before him a business proposal. That, in connection with the said business proposal, there were some financial dealings between the parties, details of which, the petition purports to give, but we think it is totally unnecessary to refer to the same. In substance, what the Petitioner states is, that the said Vishnu Joshi, for some disputes that arose, started threatening and demanding an amount of Rs.15 lacs, which according to him was payable by the Petitioner to him. That, with the help of a Police Officer-- one Mr.Nitin Patil,-- the signatures of the Petitioner were obtained on some papers without allowing him to read the same, and further, two cheques in the sum of Rs.7,50,000/- each were obtained from the Petitioner making the same ::: Downloaded on - 09/06/2013 17:19:42 ::: 3 wp.1054.11.judgment.sxw payable to the Respondent No.2- Mrs.Seema Joshi. The Petitioner stopped the payment of the said cheques and thereafter, the said Vishnu Joshi and his wife Mrs.Seema Joshi, with the help of the said Police Officer-- Mr.Nitin Patil-- registered a case vide the aforesaid C.R. against the Petitioner on 07.01.2011. According to the Petitioner, the said First Information Report is totally false and bogus, and that the same has been based on a concocted story.
3 We have heard Mr.Agarwal, the learned counsel for the Petitioner, Mr.Joshi, the learned counsel for the Respondent No.2 and also Mrs.Pai, the learned Additional Public Prosecutor for the Respondent No.1/State. We have gone through the affidavit in reply filed by the Respondent No.2, opposing the petition, together with the annexures thereto.
4 In our opinion, the factual aspects as presented by the parties are not very material in deciding as to whether, the said First Information Report and the investigation that has commenced on its basis, should be quashed. Obviously, there is no question of accepting or even attempting to evaluate the version of the Petitioner for the purpose of contradicting the version in the First Information Report. Merely because the person named as an accused challenges the averments made in the First Information Report, and advances his own version with respect to the allegations, it would not be possible to quash the First ::: Downloaded on - 09/06/2013 17:19:42 ::: 4 wp.1054.11.judgment.sxw Information Report and to prevent the Police from investigating into the matter as per the powers conferred upon them by the Law.
This Court, undoubtedly, possesses the jurisdiction to quash the First Information Report in a given case, but certainly the First Information Report cannot be quashed by evaluating the contentions of the Petitioner and that of the first informant as reflected in the First Information Report, and by judging as to what is likely to be the truth.
Such an exercise would be patently illegal, improper and hazardous. The criminal proceedings instituted against an accused person must, ordinarily, be dealt with in accordance with the provisions of the Code of Criminal Procedure.
A reference to some decided cases would be useful to understand the nature and scope of the jurisdiction which this Court possesses to interfere with the investigation that has already commenced, by quashing the First Information Report.
5 In the case of R.P.Kapur v/s State of Punjab, AIR 1960 SC 868, the Supreme Court of India was dealing with the aspect of quashing the First Information Report. Their Lordships considered the nature and scope of the inherent powers of the High Court under Section 561A of the old Code of Criminal Procedure which corresponds to Section 482 of the present Code of Criminal Procedure. While discussing the ::: Downloaded on - 09/06/2013 17:19:42 ::: 5 wp.1054.11.judgment.sxw jurisdiction available to the High Court in that regard, Their Lordships were pleased to observe as under:-
"6. ............. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground.
Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence ::: Downloaded on - 09/06/2013 17:19:42 ::: 6 wp.1054.11.judgment.sxw adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar, AIR 1928 Bom. 184, Jagat Ohandra Mozumdar v. Queen Empress, ILR 26 Cal.
786, Dr.Shanker Singh v. The State of Punjab, 26 Pun. LR 54 : (AIR 1954 Punj. 193), Nripendra Bhusan Ray v. Govind Bandhu Majumdar, AIR 1924 Cal. 1018 and Ramanathan Chettiyar v. Sivarama Subramania, ILR 47 Mad.722 : (AIR 1925 Mad.
39).)"
(emphasis supplied) 6 In the case of State of West Bengal and others v/s Swapan Kumar Guha and others, AIR 1982 SC 949, the Supreme Court of India had an occasion to consider as to whether and in what cases, the High Court under Article 226 of the Constitution of India would be justified in interfering with an investigation by quashing the First Information Report. After noticing the decision in the case of R.P.Kapur (supra) and considering the various authorities cited at the bar on the question as to ::: Downloaded on - 09/06/2013 17:19:42 ::: 7 wp.1054.11.judgment.sxw the powers of the Courts to quash an investigation, it was concluded, inter-alia, that an investigation can be quashed if no cognizable offence is disclosed by the First Information Report. In his separate but concurring judgment, Y.V. Chandrachud, C.J. made a reference to the decision of the Privy Council in the case of King Emperor v. Khwaja Nazir Ahmed, (AIR 1945 PC 18), observing that the said decision was often being cited for saying that no investigation can ever be quashed. After quoting a passage from the opinion of the Judicial Committee, suggesting that the judiciary should not interfere with the Police in the matters which are within their province and into which the law imposes on them a duty of inquiry, and that there is a statutory right on the part of the Police to investigate into an alleged cognizable crime, Chandrachud, C.J., pointed out that the Privy Council has qualified the said statement by saying, "no doubt, if no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the police would have no authority to undertake an investigation". Chandrachud, C.J., then, observed that the judgment of the Privy Council in the aforesaid case shows that an investigation can be quashed, if no cognizable offence is disclosed by the First Information Report. In order to emphasize that the said decision of the Privy Council cannot be construed as laying down the wide proposition that an investigation by the Police can never be interfered with by the Court, it was observed in the said separate concurring judgment as follows:-::: Downloaded on - 09/06/2013 17:19:42 :::
8 wp.1054.11.judgment.sxw "20. ............ It shall also have been noticed, which is sometimes overlooked, that the Privy Council took care to qualify its statement of the law by saying that the judiciary should not interfere with the police in matters which are within their province. It is surely not within the province of the police to investigate into a Report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases."
(emphasis in original) In the main judgment, the legal proposition was laid as follows:-
".......the legal position is well-settled. The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. .............. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing...."
(emphasis supplied) 7 Again, in the case of the State of Haryana and others v/s Ch. Bhajan Lal and others, AIR 1992 SC 604, the Supreme Court of India had an occasion to examine, whether, the powers of the Police Officers in the field of investigation are wholly immune from judicial reviewability. Their Lordships, after referring to various previous pronouncements including the decision in the case of State of W.B. v/s ::: Downloaded on - 09/06/2013 17:19:42 ::: 9 wp.1054.11.judgment.sxw Swapan Kumar (supra), observed it to be well-settled that the investigation can be quashed, if no cognizable offence is disclosed in the First Information Report.
8 It is in the aforesaid legal background that the First Information Report in this case needs to be examined. We have gone through the First Information Report carefully. Paragraph No.1 thereof is about the preliminary information and states that the first informant and her husband know the Petitioner. The second paragraph of the First Information Report states that the husband of the first informant learnt from one Manoj Sharma that the Petitioner wanted to dispose of his office situated at C-201, CBD Belapur Railway Station complex. Since the first informant and her husband wanted to purchase the said office, her husband-Vishnu Joshi contacted the Petitioner on his mobile phone.
At that time, the Petitioner confirmed the fact that he wanted to dispose of the said office. Thereafter, the husband of the first informant informed the Petitioner that he wanted to purchase the said office and thereafter, the first informant, her husband, Petitioner and the said Manoj Sharma on 16.01.2010 held a meeting in Udapi Shrikrishna Hotel at 05:00 p.m..
The negotiations took place. The area of the office was ascertained. The office was inspected, after which, all the said persons returned back to Udapi Shrikrishna Hotel. At that time, the Petitioner quoted the price of the office as Rs.30 lacs and showed a copy of an agreement indicating that the said office was in his name. The deal was finalized immediately, ::: Downloaded on - 09/06/2013 17:19:42 ::: 10 wp.1054.11.judgment.sxw and on the spot, a cheque in the sum of Rs.5 lacs bearing No.1000439 drawn on an account maintained by the husband of the first informant with Bank of Baroda, was handed over to the Petitioner. The parties went to an advocate's office and asked him to prepare the necessary documents in connection with the said transaction. That, the MoU was prepared, but the Petitioner avoided to complete the transaction, inspite of reminding him, in that regard, again and again on telephone. The Petitioner, thereafter, stated that he was in some financial difficulty and asked to pay some amount to the person in his office. On that basis, an amount of Rs.1,90,000/- and Rs.3,10,000/-, in cash, was paid on 20.02.2010 and 25.02.2010 respectively to one Rohit Nandwa who is working in the office of the Petitioner, by calling the said Nandwa in the office of the first informant. Though Rs.10 lacs were given to the Petitioner, he again requested for further amount of Rs.5 lacs and therefore, on 15.03.2010, a cheque in the sum of Rs.5 lacs bearing No. 107853 drawn on an account maintained by the first informant with the Bank of Baroda, was issued in favour of the Petitioner. Thus, out of the agreed amount, the Petitioner has been paid Rs.15 lacs, but inspite of repeated demands, he has been avoiding signing on the MoU. On making enquiries, the first informant learnt that the Petitioner had taken a loan from Axis Bank, Khargar Branch, against the said office. The first informant and her husband had not been given any idea in that regard.
Thus, the Petitioner has cheated the first informant by taking Rs.15 lacs from her and her husband in connection with the sale ::: Downloaded on - 09/06/2013 17:19:42 ::: 11 wp.1054.11.judgment.sxw of his office and by not completing the transaction; and also by suppressing that the loan had been taken from Axis Bank for the said office.
9 A bare reading of the First Information Report shows that it discloses no offence, much less any cognizable offence. Mention of the offence punishable under Section 406 of the Indian Penal Code is rather absurd, as there is no mention or assertion as regards the "entrustment"
of any property by the first informant or her husband to the Petitioner.
The amount of Rs.15 lacs, allegedly paid as and by way of part payment of the purchase price, can, by no stretch of imagination, be construed as "property entrusted to the Petitioner".
10 Even as regards the offence punishable under Section 420 of the Indian Penal Code, the ingredients thereof are totally absent in the First Information Report. The element of fraudulent or dishonest inducement caused by the Petitioner to the first informant or her husband, or the deception allegedly practiced by the Petitioner, without which, the first informant or her husband would not have taken the steps towards purchasing the said office, cannot be spelt out from the First Information Report. Though there is a reference to the loan taken by the Petitioner from Axis Bank in connection with the said office, it is not even suggested that the transaction between the Petitioner and the first informant/her husband, therefore, cannot be entered into. Apart ::: Downloaded on - 09/06/2013 17:19:42 ::: 12 wp.1054.11.judgment.sxw from the fact that the First Information Report is silent as to what was orally agreed between the parties with respect to completion of the transaction, schedule of payment and as to when and how the possession of the office was to be given to the first informant and/or her husband, a reading of the First Information Report shows that the dispute raised therein is clearly of a civil nature. If the Petitioner is not completing the transaction of sale, it would be open for the first informant to compel him to do so by invoking the process of civil law.
Thus, even if the allegations in the First Information Report are taken at face value, all that it indicates is that, the Petitioner has accepted a part of the consideration fixed for the sale of his office to the first informant and her husband, but thereafter, is not completing the transaction.
11 In our opinion, these facts do not disclose the commission of any offence, much less a cognizable offence.
12 Mr.Navin Joshi, the learned counsel for the Respondent No. 2 argued that the Petitioner has not come to the Court with clean hands and, therefore, he is not entitled to get any relief from this Court. He submitted that an amount of Rs.15 lacs has already been taken by the Petitioner from the Respondent No.2 and that the Petitioner is dishonestly avoiding to return the same. He submitted that the parties had executed a MoU for cancellation of the said transaction and that the said MoU was duly signed on 21.06.2010, pursuant to which, the ::: Downloaded on - 09/06/2013 17:19:42 ::: 13 wp.1054.11.judgment.sxw Petitioner had issued two postdated cheques, each in the sum of Rs.
7,50,000/- only, with an assurance that the same would be honoured.
The date put on the said cheques was 20.12.2010, but the payment of the said cheques was stopped by the Petitioner. Mr.Navin Joshi also submitted that the Petitioner has also cheated some other persons and that one more criminal case is pending against him. Indeed, Mr.Navin Joshi's arguments are supported by the averments made in the affidavit-
in-reply filed by the Respondent No.2.
13However, in our opinion, these averments and contentions are not relevant. The legal position that if the First Information Report does not disclose the commission of any cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as led or received, admits of no doubt. We have already held, that in this case, the First Information Report does not disclose the commission of any offence -- much less a cognizable offence and there is simply a civil dispute between the parties. The investigation on the basis of the so called First Information Report, would not be permissible. However, since the aspect of the Petitioner not having come before this Court with clean hands, has been raised, it may be observed that even the Respondent No.2 does not appear to be having clean hands. First of all, the First Information Report suppresses the MoU executed between the parties on 21.06.2010 cancelling the previous agreement in respect of the purchase of the said office premises. It is suppressed by the ::: Downloaded on - 09/06/2013 17:19:42 ::: 14 wp.1054.11.judgment.sxw Respondent No.2 that she was not interested in purchase of the said office and that as a matter of fact, it was decided between the parties that the Petitioner should refund the amount of Rs.15 lacs to the Respondent No.2. It is also suppressed in the First Information Report that two postdated cheques each in the sum of Rs.7,50,000/- were given by the Petitioner to the Respondent No.2. The Respondent No.2 suppressed, that it is only after the said cheques were dishonoured, she filed the First Information Report, suppressing the facts about cancellation of the agreement, the postdated cheques issued by the Petitioner to the Respondent No.2 and the dishonour of the said cheques.
On this, we may only say that if the Petitioner has committed some offence or offences in connection with the subsequent developments such as issuance of the postdated cheques and dishonour of the cheques, the Respondent No.2 would be free to prosecute the Petitioner for such offence or offences, but the present First Information Report, certainly does not relate to those happenings.
14 We repeat that it is clear from a bare reading of the First Information Report and even after taking the averments therein at face value, that the same does not constitute or disclose the commission of any cognizable offence. When such is the position, the Police were certainly not entitled to investigate into the matter. The investigation machinery cannot be allowed to be used for the recovery of money, for which, remedy lies in filing a civil suit for appropriate relief. The ::: Downloaded on - 09/06/2013 17:19:42 ::: 15 wp.1054.11.judgment.sxw legal position as discussed above on the basis of the authoritative pronouncements of the Supreme Court of India, leaves no manner of doubt that where the First Information Report does not disclose the commission of any cognizable offence, the Court would be justified in quashing such First Information Report and the investigation, if any, commenced on the basis of such First Information Report.
15 The petition, therefore, succeeds. The First Information Report bearing C.R. No.7/2011 dated 07.01.2011 registered at the CBD Belapur Police Station against the Petitioner in respect of the offences punishable under Sections 406 and 420 of the Indian Penal Code and the investigation that has commenced on the basis thereof, is hereby quashed.
16 The petition is allowed in the above terms.
(A.M.THIPSAY, J.) (B.H.MARLAPALLE, J.)
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16 wp.1054.11.judgment.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1054 OF 2011
Mr.Jitendra Nathmal Joshi @ Sharma )
Aged 40 years, Occupation : Business, )
Aspen 303/304, B-Wing, Adhiraj )
Gardens, Plot No.32, Sector-5, )
Kharghar, Navi Mumbai-410210. ) ..Petitioner/Accused
-Versus-
1 The State of Maharashtra. )
Through Senior Inspector of Police,)
C.B.D. Belapur, Navi Mumbai. )
2 Mrs.Seema w/o Vishnu Joshi, )
R/o Room No.202, A-Wing,
ig )
Lakhani Sanakosta, Plot No.27, )
Sector-15, CBD Belapur, )
Navi Mumbai. ) ..Respondents
...........
Mr.P.C.N.Agarwal, for the Petitioner.
Mrs.A.S.Pai, Additional Public Prosecutor, for the Respondent No.1/ State.
Mr.Navin S. Joshi, for the Respondent No.2.
..........
CORAM : B.H.MARLAPALLE & A.M.THIPSAY, JJ.
Reserved on : 29th April, 2011.
Pronounced on : 09th June, 2011.
P.C.:
For the reasons separately recorded in the judgment, the Court passes the following order:-
"The petition, therefore, succeeds. The First Information Report bearing C.R. No.7/2011 dated 07.01.2011 registered at the CBD Belapur Police Station against the Petitioner ::: Downloaded on - 09/06/2013 17:19:42 :::
17 wp.1054.11.judgment.sxw in respect of the offences punishable under Sections 406 and 420 of the Indian Penal Code and the investigation that has commenced on the basis thereof, is hereby quashed.
The petition is allowed in the above terms."
(A.M.THIPSAY, J.) (B.H.MARLAPALLE, J.)
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