Rajasthan High Court - Jaipur
Mohan Lal Yadav vs State Of Raj Asthan And Anr on 14 February, 2018
-1-
jktLFkku mPp U;k;ky; t;iqj ihB] t;iqj
vkns'k
,dyihB QkStnkjh fofo/k ;kfpdk la[;k 2353@2010
eksguyky ;kno iq= ?kklhjke ;kno] mez 42 lky] tkfr&;kno] fuoklh
133, uSehuxj] oS'kkyhuxj] t;iqj iqfyl Fkkuk oS'kkyhuxj] t;iqj 'kgjA
---------izkFkhZ&;kph
cuke
1- jktLFkku ljdkj tfj;s jktdh; vf/koDrkA
2- izsepUn eh.kk iq= eksrhjke eh.kk mez 36 lky] tkfr&eh.kk]
fuoklh&txUukFkiqjh] [kkrhiqjk jksM] iqfyl Fkkuk oS'kkyhuxj] t;iqj 'kgjA
----vizkFkhZx.k
vkns'k fnukad % 14-02-2018
ekuuh; U;k;kf/kifr Jh cuokjhyky 'kekZ
Jh eksgEen vuhl] vf/koDrk& ;kph dh vksj lsA
Jh vyknhu [kku] yksd vfHk;kstdA
;kph vfHk;qDr eksguyky ;kno us ;g ;kfpdk /kkjk 482 n.M izfdz;k
lafgrk ds rgr izLrqr dj vkyksP; vkns'k fnukad 16-07-2010 dks pqukSrh nh
gS ftlds }kjk fd U;k;ky; vij ls'ku U;k;k/kh'k ¼QkLV Vªsd½ dze&6]
t;iqj 'kgj }kjk QkStnkjh fuxjkuh la[;k 14@09 ¼eksguyky cuke
jktLFkku ljdkj½ esa ikfjr djrs gq, U;k;ky; U;kf;d eftLVªsV dze&11]
t;iqj uxj }kjk izFke lwpuk fjiksVZ la[;k 329@2006 iqfyl Fkkuk
oS'kkyhuxj esa izLrqr izksVsLV fiVh'ku dks vLohdkj fd;s tkus ds vkns'k
fnukad 17-04-2009 dh iqf"V dh gS] dks ;Fkkor j[kk gSA
izdj.k ds laf{kIr rF; bl izdkj gSa fd ;kph ifjoknh us fo}ku
U;kf;d eftLVªsV dze&11 t;iqj 'kgj ds le{k ,d ifjokn bl vk'k; dk
is'k fd;k fd ifjoknh ,oa vfHk;qDr nksuksa la;qDr O;kikj djrs Fks] bl dkj.k
nksuksa ds e/; :i;ksa dk ysu&nsu pyrk jgrk FkkA ifjoknh us vfHk;qDr ls
3]40]000@& :i;s m/kkj isVs ysdj crkSj vekur ,d pSd uEcj 266846
fn;k FkkA ckn esa ifjoknh us vfHk;qDr dks mDr jkf'k ykSVk nh] ijUrq
-2-
vfHk;qDr us mDr pSd ugha ykSVk;k vkSj ;g cgkuk cukdj pSd ugha ykSVk;k
fd <wa<dj okil ns nsaxsA ckn esa vfHk;qDr us mDr pSd cSad esa yxkdj
vuknfjr djok fy;k vkSj fnukad 24-04-06 dks ;kph ifjoknh dks uksfVl
HkstkA rRi'pkr ifjokn is'k fd;k] vkfnA
mDr ifjokn dks fo}ku v/khuLFk U;k;ky; U;kf;d eftLVªsV]
dze&11] t;iqj us tkap gsrq Fkkukf/kdkjh iqfyl Fkkuk oS'kkyhuxj] dks Hkstk]
tgka izFke lwpuk fjiksVZ la[;k 329@2006 vijk/k vUrxZr /kkjk 420] 406
Hkk-na-la- esa vuqla/kku izkjEHk fd;k x;k vkSj iqfyl us ckn vuqla/kku vne
odw crkrs gq, ,Q-vkj- 158@2006 v/khuLFk U;k;ky; ds le{k izn'kZ&2
is'k dj fn;k] ftlds fo:) ;kph ifjoknh us izksVsLV fiVh'ku is'k dh] tks
vkns'k fnukad 17-04-2009 ds vkns'k }kjk vLohdkj dj nh x;hA ml vkns'k
ds fo:) ;kph us fuxjkuh ;kfpdk is'k dh tks ,usDlj&4 vkns'k fnukad
16-07-2010 ds }kjk vLohdkj dj nh x;hA vr% ;g ;kfpdk /kkjk 482 n.M
izfdz;k lafgrk ds izko/kkuksa ds rgr is'k dh x;h gSA
fo}ku vf/koDrk ;kph us fuosnu fd;k gS fd pSd vekurh rkSj ij
fn;k FkkA mlds ckn pSd jkf'k ykSVkus ds ckctwn pSd ugha ykSVkdj
vuknfjr djok fy;k rFkk /kkjk 138 ,uvkbZ,DV ds izko/kkuksa ds rgr
ifjokn is'k dj fn;kA rnuqlkj vfHk;qDr us /kks[kk/kMh dh gS] ftl ij
fopkj u dj gj nksuksa U;k;ky;ksa us izksVsLV fiVh'ku rFkk fuxjkuh ;kfpdk
[kkfjt fd;s tkus esa =qfV dh gSA vr% vkyksP; vkns'k vikLr fd;k tkdj
vfHk;qDr ds fo:) izlaKku vkns'k ikfjr fd;k tkosA
mDr rdksaZ dk fojks/k djrs gq, fo}ku yksd vfHk;kstd us fuosnu
fd;k gS fd ;kph tc ;g Lohdkj djrk gS fd mlus LosPNk ls pSd fn;k
Fkk rFkk og pSd vuknfjr gqvk FkkA vuknj.k ds ckn /kkjk 138 ,uvkbZ,DV
ds rgr bLrxklk is'k fd;k x;kA ml ifjfLFkfr esa ftl U;k;ky; ds
le{k ifjokn is'k fd;k x;k gS rFkk tgka /kkjk 138 ,uvkbZ,DV dk izdj.k
fopkjk/khu gS] ml U;k;ky; ds le{k Lo;a ;kph ifjoknh viuh izfrj{kk ys
ldrk gSA ml U;k;ky; ds lekukUrj iqfyl tkap dj /kkjk 138
,uvkbZ,DV dh vkijkf/kd dk;Zokgh dks izHkkfor ugha dj ldrs gSaA mUgksaus
gj nksuksa U;k;ky;ksa }kjk ikfjr vkyksP; vkns'k dks lgh crkrs gq, ;kfpdk
vLohdkj fd;s tkus dk fuosnu fd;kA
lquk x;k] mHk; i{k ds rdksaZ ij fopkj fd;k x;kA
fnYyh mPp U;k;ky; dh [k.MihB us ,LdksVZ ;kekg eksVlZ fyfeVsM
-3-
cuke LVsV o vU; 1999¼1½ dzkbZEl 640 ds izdj.k esa vfufu/kkZfjr fd;k gS
fd&
"13. The case of the petitioners is that 50
cheques were handed over by respondent No. 2
by way of security for advance payment suggesting to encash the cheques in case of delay or default in payment due or as promised. M/s. S.K. Automobiles had undertaken to keep the said money in trust for and on behalf of the petitioner. On one hand M/s. S.K. Automobiles continued to take delivery of vehicles, sold to them in the market and earned profit while on the other hand it failed and neglected to pay the petitioner. Though no notice was required to be served, a letter dated 16.3.1998 was addressed to M/s. S.K. Automobiles cautioning it that two cheques for Rs. 75,00,000/- each were being presented to their banker for encashment and that on presentment M/s. S.K. Automobiles should ensure that the same are honoured. Thus it was incumbent and obligatory on the part of M/s. S.K. Automobiles to make arrangement for payment of the cheques.
14. The case of respondent No. 2 is that cheques were given to the petitioner for future supply of goods under a covering letter dated 19.1.1998. Instead of utilising the same for the said purpose, the same were misutilised and misappropriated by filling in an amount of Rs. 75,00,000/- on each of cheques. The petitioner had no right or authority to fill the said cheques and utilise them for some other purpose. Therefore, on the same day i.e. 16.3.1998 respondent No. 2 informed the petitioner that the cheques be not presented and simultaneously informed the Bank that the cheques be not honoured.
15. It is the admitted case that the cheques were presented and the same were not honoured. It is not in dispute that in March, 1998, a petition under the Arbitration and Reconciliation Act, 1996 praying for appointment of Arbitrator and referring disputes and differences, mentioned in the said petition, for adjudication by the Arbitrator and also seeking direction against the petitioner Company to resume supply of motor cycles immediately on cash basis was filed in this Court by respondent No. 2. One of the disputes on which reference has been sought by respondent No. 2 is :
"Whether the respondents have any right to misappropriate and convert the blank signed cheques given by the petitioner to the respondents towards the supply of future lot of motor bicycles/motor cycles had a right to -4- forge the said cheques and misappropriate the said amounts for any other purposes or towards the alleged dues, whereas the petitioner has been regularly clearing the payments in accordance with the agreement settlement/arrangements already arrived in between the parties and the respondents had also never objected to the said arrangements and as to how much amount of loss/ damages the petitioner is entitled from the respondents?"
In the said petition by M/s. S.K. Automobiles seeking appointment of Arbitrator, it is alleged that the petitioner through its letter dated 16.3.1998 has threatened to deposit two cheques in the amount of Rs. 75,00,000/- each. The same formed part of 50 blank signed cheques, handed over to the petitioner towards future supply of goods, under a covering letter dated 19.1.1998. The deposit/encashment of the two cheques of Rs. 75,00,000/- each is illegal and mala fide and the petitioner cannot be allowed to misappropriate the said amount, when no such amount is due and payable to the petitioner by M/s. S.K. Automobiles. The petitioner further states that through their letter dated 16.3.1998 the petitioner was informed not to present the cheques and also informed the Bank not to honour the same on presentation. Thus it is a case where the complainant allege breach of an agreement under which blank cheques are stated to have been handed over to the petitioner. Contrary to the alleged terms of agreement (not in writing), the cheques are alleged to have been drawn by filling in the blanks and thereby an effort is alleged to have been made to get them encashed. Much prior to lodging the of complaint, respondent No. 2 approached Civil Court for appointment of an Arbitrator to adjudicate upon the question, which squarely is the subject matter of F.I.R.
16. In Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others, , appellant therein intending to start business gave in full faith a large amount to respondents for the said purpose. Instead of starting business, as agreed, respondents started business in their own name and refused to render accounts or return the money. It was held that the respondent could not be held criminally liable under Section 420, I.P.C. as there was nothing in the complaint to suggest that the respondent had dishonest or fraudulent intention at the time the appellant parted with the amount and there was nothing to indicate that the respondent induced the appellant fraudulently to pay them the amount. There was also nothing in the complaint -5- that representation was made by the respondent to the appellant or before the time money was paid that respondent knew the same to be false. It was held that non-utilizing of the amount might create civil liability but not criminal one.
In Trilok Singh and Others Vs. Satya Deo Tripathi, , it was held that seizure of truck by a financier on default of the purchaser in making default would at the most give rise to a civil dispute and not a dispute of criminal nature. Launching the criminal proceedings under Section 395/468/465/471/412/120B/34, I.P.C. was held to be an abuse of the process of Court and liable to be quashed. The Supreme Court ultimately quashed criminal proceeding observing :
"The question as to what were the terms of the settlement and whether they were duly incorporated in the printed agreement or not were all questions were could be properly and adequately decided in a civil Court. Obtaining signature of a person on blank sheet of paper by itself is not an offence of forgery or the like. It becomes an offence when the paper is fabricated into a document of the kind which attracts the relevant provisions of the Penal Code making it an offence or when such a document is used as a genuine document. Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on 30.7.1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondent's failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck."
In Smt. Manju Gupta Vs. Lt. Col, M.S. Paintal, , on the basis of a complaint by landlord alleging that some forged rent receipts were filed in rent control proceedings pending before the Rent Controller, a complaint was filed in which process was issued by Magistrate. This order was quashed holding that criminal process had been resorted to even when civil proceedings are pending and even before the issue whether disputed receipts were forged or genuine was finally decided by the Rent Controller.
In Madhavrao Jiwaji Rao Scindia and Another Vs. Sambhajirao Chandroji-rao Angre and Others, , the Apex Court held that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a -6- civil wrong and may or may not amount to a criminal offence.
17. applying the ratio of the aforementioned decisions, without going into the correctness or otherwise of the allegations made in the FIR and the stand taken by the petitioner or giving any finding on the merits of the case, we are of the view that in the facts and circumstances, the alleged breach of trust and misappropriation as alleged in the complaint at the most is predominantly a civil wrong. It may or may not amount to a criminal offence. Moreover much prior to lodging of the complaint, respondent No. 2 had already resorted to civil remedy on the same allegation seeking reference for adjudication by Arbitrator. Without waiting for the decision of the Arbitrator or adjudication on the points, the very act of lodging the complaint with the sole object to get initiated proceedings for criminal action on same and similar allegations will definitely bring the case within the category of abuse of the process of law, namely, initiation of the proceedings maliciously with ulterior motives. The question whether or not blank cheques were given to be utilized only towards future supply of motor cycles and for no other purpose or whether the same were given, as alleged by the petitioner, is a question, which will have to be gone into and decided in arbitration proceedings on the basis of the evidence to be adduced by the parties. For this reason alone, we are of the view that the proceedings initiated on the basis of the complaint of respondent No. 2, the FIR is liable to quashed and set aside.
ftls ekuuh; loksZPp U;k;ky; us ;Fkkor j[kk gSA gLrxr izdj.k esa Hkh ;kph ifjoknh }kjk izLrqr ifjokn dks tkap gsrq iqfyl Fkkuk oS'kkyhuxj Hkstk] tgka iqfyl us ckn vuqla/kku izdj.k esa vne odw >waB esa udkjkRed vafre izfrosnu is'k fd;k gSA fo}ku U;kf;d eftLVªsV us Hkh izksVsLV fiVh'ku dks blh vk/kkj ij vLohdkj fd;k gS fd ifjoknh }kjk m/kkj yh x;h jkf'k ds isVs@tkjh'kqnk pSd ckcr xSjlk;y }kjk mlds fo:) izLrqr fd;k x;k ifjokn dh dk;Zokgh ls cpus ds fy, xSjlk;y ij ncko cukus ds fy, gLrxr ifjokn is'k fd;k x;k gSA vr% fnYyh mPp U;k;ky; dh [k.MihB }kjk fn;s x;s U;kf;d n`"VkUr ds ifjizs{; esa pSd ds ckjs esa iwoZ ls gh ;kph ds fo:) /kkjk 138 ,uvkbZ,DV dk vkijkf/kd izdj.k lafLFkr gksus ds ckn mlds lekukUrj :i -7- ls mlh pSd ds ckjs esa /kks[kk/kMh ds vkijkf/kd U;kl Hkax ds vijk/k esa izdj.k lafLFkr djus dk dksbZ vk/kkj izdV ugha gksrk gSA rnuqlkj ;kph }kjk izLrqr bl ;kfpdk essa dksbZ lkj ugha ik;k tkrk gS vkSj ;g ;kfpdk lkjghu gksus ds vk/kkj ij vLohdkj dh tkrh gSA ¼cuokjh yky 'kekZ½ U;k;kf/kifr feRry@58