Rajasthan High Court - Jaipur
Mohammed Ashraf vs State Of Rajasthan And Anr on 21 December, 2016
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 1266 / 2010
Mohammed Ashraf S/o Shri Mohammed Sharief, By caste
Musalman, R/o Bazar No. 2, Ramganj Mandi, Kota, Distt. Kota
(Raj.).
----Accused-Petitioner
Versus
1. State of Rajasthan through the Govt. Advocate.
----Respondent
2. Shri Shri Ram Pratap S/o Badri Narayan, R/o Subhash Colony Ramganj Mandi, Kota , Distt. Kota (Raj.).
----Complainant/Respondent __________________________________________________ Counsel For Petitioner(s) : Mr. Piyush Sharma Public Prosecutor : Mr. Anil Yadav __________________________________________________ HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment / Order 21/12/2016 Matter came up on IA No. 5462/2016 for permission of filing charge sheet against accused petitioner in light of order dated 19.07.2010 but with the consent of learned counsel for the petitioner and learned PP, the matter is heard finally at this stage.
Petitioner- accused Mohammed Ashraf has preferred this misc. petition under Section 482 Cr.P.C. for quashing FIR No. 150/2010 registered at Police Station Ramganj Mandi, District Kota and all further investigation and proceedings therein against the petitioner for alleged offences under Sections 420 and 384 of (2 of 13) [CRLMP-1266/2010] IPC (Section 467, 468 and 471 IPC added by Police during investigation).
The brief facts of the case are that respondent no. 2- complainant victim submitted a written report addressing to Deputy Superintendent of Police, Ramganj Mandi Kota stating therein that :-
" ;g fd izkFkhZ lqHkk"k dksyksuh jkexateaMh dk jgus okyk gS izkFkhZ us dLck lqdsr esa vCnqy jtkd oYn vCnqy 'kdqj fuoklh lqdsr ds ;gka 10&12 o"kZ rd ukSdjh dh FkhA budh nks QesaZ Fkh ,d QeZ vkj-ds LVksu b.MLVªht lqdsr ftlds izksijkbZVj vCnqy jtkd Fks ,oa ,d QeZ vkj- ds LVksu lIyk;lZ ftldk izks0 vCnqy [kkfyd oYn vCnqy jtkd fuoklh lqdsr FksA 2- ;g fd mDr nksuksa QeksaZ ij izkFkhZ ukSdjh djrk Fkk blfy, mDr nksuksa QeksaZ ds isilZ pSd cqd ysVj isM vkfn izkFkhZ ds ikl gh jgrs FksA D;ksafd cSadksa dk ,oa lsy VSDl bude VSDl foHkkx dk lkjk dk;Z izkFkhZ gh djrk FkkA 3- ;g fd izkFkhZ us djhc 3 o"kZ igys mDr QeksaZ ds ;gka ls ukSdjh NksM nh o vU; txg d`f"k miteaMh esa ukSdjh dj yh mlds ckn ogka ls Hkh izkFkhZ us ukSdjh NksM nh ,oa djhc 2&3 eghuksa ls fnYyh okds xxZ lkgc dh QSDVªh ij dk;Z dj jgk gSA ;g QSDVªh fnYyh okys lsB us eksgEen v'kjQ oYn eksgEen 'kjhQ tkfr eqlyeku fuoklh cktkj ua-
2 jkexateaMh ls fdjk;s ij ys j[kh gSA ogka QSDVªh ij eksgEen v'kjQ dk vkuk tkuk gS ,oa ikl esa ,d vU; QSDVªh eksgEen v'kjQ dh fLFkr gS ogka Hkh eksgEen v'kjQ vkrk tkrk jgrk gSA izkFkhZ dh eksgEen v'kjQ dh vPNh tku igpku gks x;h bl nkSjku izkFkhZ ds ikl ,d iqjkuh QkbZy tks lsy VSDl ,oa bude VSDl ds odhy lkgc inepUn th tSu ds ogka ls izkFkhZ ysdj vk;k FkkA mlesa vU; isij ds lkFk QeZ ds ysVj isM ,oa [kkyh pSd la[;k 485249 cSad vkWQ cMkSnk 'kk[kk jkexateaMh dk pSd Hkh izkFkhZ ds ikl vk;k Fkk ftl ij vCnqy [kkfyd ds gLrk{kj ek= FksA tks izkFkhZ us mDr QkbZy o i=koyh ds lkFk gh vius ikl gh j[k j[kk FkkA 4- ;g fd djhc 15 fnu igys izkFkhZ ls eks0 v'kjQ us iwNk fd igys rqe vCnqy jtkd ,oa vCnqy [kkfyd ds ;gka ukSdjh djrs FksA mDr QeksaZ ds lHkh dk;Z rqEgh djrs FksA bl ij izkFkhZ us eksgEen v'kjQ dks lkjh ckrsa crk nha ,oa izkFkhZ ds ikl lsy VSDl ds odhy lkgc ds ikl ls vkbZ QkbZy ,oa pSd dk Hkh gokyk fn;k o izkFkhZ us dgk fd eSaus ogka ls ukSdjh NksM nh ijUrq esjs ikl vkj- ds Lvksu lIyk;lZ dk ,d pSd la[;k 485249 j[kk gqvk gSA bl ij eksgEen v'kjQ us dgk fd (3 of 13) [CRLMP-1266/2010] mDr pSd rqe eq>s ns nks bl ij izkFkhZ us mDr pSd eks0 v'kjQ dks nsus ls budkj dj fn;k blds ckn eks0 v'kjQ us eq> izkFkhZ dks /kksal nsdj Mjk /kedk dj tku ls ekjus dh /kedh nsdj mDr pSd esjs ls ys fy;kA 5- ;g fd mlds ckn eksgEen v'kjQ us mDr pSd ftl ij dsoy vCnqy [kkfyd ds gLrk{kj FksA mDr [kkyh pSd esa 3]50]000@& :i;s ek= jkf'k Hkjdj mDr pSd iatkc us'kuy cSad 'kk[kk jkexateaMh esa yxk fn;k tks [kkrk can gksus dh otg ls fMl vkWuj gks x;kA bl ckr dh tkudkjh cMkSnk cSad jkexateaMh us VsyhQksu ij vCnqy [kkfyd dks nh rc vCnqy [kfkyd us izkFkhZ ls Nkuchu dh rks lkjh ckr lkeus vk;hA 6- ;g fd mDr pSd lu 2000 dh pSd cqd dk Fkk mDr [kkrk fnukad 07-04-2005 dks gh can gks pqdk FkkA mlds ckn rks dbZ pSd cqd mDr cSad ls tkjh gks pqdh FkhA ijUrq ;g iqjkuk pSd ,d iznw"k.k dh QkbZy tks lsy VSDl o badeVSDl odhy lkgc ds ;gka ls vk;h FkhA mldks izkFkhZ us vius ikl j[k j[kk FkkA ftls izkFkhZ dks /kksal nsdj mldk nq:i;ksx djus ,oa QthZ nLrkost rS;kj dj mlesa 3]50]000@& :i;s dh jkf'k Hkjdj pSd dh jde gkfly djus dh uh;r ls eksgEen v'kjQ us mDr QthZ nLrkost rS;kj djds cSad esa yxk;k gSA 7- ;g fd bl izdkj eksgEen v'kjQ us tku cw>dj ;g tkurs gq, fd esjh dksbZ jde vCn qy [kkfyd ls ugha ysuh gS ,oa mDr pSd vCqny [kkfyd us esjs gd esa tkjh ugha fd;k gS fQj Hkh eksgEen v'kjQ us 3]50]000@& :i;s dh uktk;t jkf'k izkIr djus ds fy, ,oa Ny djus dh uh;r ls pSd dks xSjdkuwuh rjhds ls gkfly djds bl nLrkost dh dwVjpuk dh gSA vr% eqyfte dk mDr d`R;
vUrxZr /kkjk 467] 468] 420] 471] 384 Hkk-na-la- ds rgr n.Muh; vijk/k gSA vr% fjiksVZ is'k dj fuosnu gS fd mDr ekeys esa eqdnek ntZ dj eqyfte ds fo:) dk;Zokgh djus dh d`ik djsaA "
The said report was sent to SHO Police Station Ramganj Mandi, Kota under Section 154 (3) Cr.P.C. by the concerned Dy. S.P. on which FIR No. 150/2010 under Section 420 and 384 IPC was registered and investigation commenced, matter is under investigation.
Learned counsel for the petitioner submits that one Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier of District Kota had borrowed an amount of Rs. 3,50,000/- from the (4 of 13) [CRLMP-1266/2010] petitioner for business purpose, to repay the aforesaid amount he gave disputed cheque dated 15.04.2010 to petitioner. The cheque in question was presented by the petitioner on even date but the same was received unpaid due to account closed on 17.05.2007. Thereafter, the petitioner served a legal notice upon aforesaid Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier of District Kota but despite receipt of the notice, he failed to pay the cheque amount. Thereafter, petitioner filed a criminal complaint u/s 138 of Negotiable Instrument Act 1881 before the Court of learned Additional Chief Judicial Magistrate, Ramganj Mandi, Kota. After receiving the legal notice dated 22.04.2010 aforesaid Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier of District Kota, cooked up a false and fabricated story, with the intention to create defense for the complaint filed by the petitioner u/s 138 of N.I. Act, 1881 with convenience of one Ram Pratap who was the accountant of Mr. Abdul Khalik @ Pappu and in pursuance of the aforesaid false defense Ram Pratap submitted a written report before the Dy. Superintendent of Police, Ramganj Mandi, Kota on which aforesaid FIR was registered. He submits that from the perusal of FIR itself no offence is made out against the present petitioner under Section 420 and 384 IPC. He also submits that the allegation against the present petitioner is only that he issued notice and filed criminal complaint before the court of law, therefore, initiation of criminal proceedings before the Court cannot be treated as cheating as defined in Section 415 of IPC and the ingredient of Section 384 IPC are also not available in the present case, therefore, the impugned FIR may be quashed.
(5 of 13) [CRLMP-1266/2010] Learned PP Mr. Anil Yadav submitted factual report of the matter which is taken on record. He submits that after investigation offence under Section 420 and 384 IPC is made out against the present petitioner and charge sheet No. 186/2016 has already been registered, therefore, this misc. petition may be dismissed.
Respondent No. 2- complainant was duly served but no one appeared on behalf of him.
I have considered the submissions made by learned counsel for the petitioner and learned PP.
The allegation against the present petitioner is that after taking signed cheque, he issued notice to one Abdul Khalik @ Pappu and thereafter filed criminal complaint before the court of law under Section 138 N.I. Act for constitute of offence under Section 420 IPC.
Cheating is defined in Section 415 of IPC which reads as under :-
" Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". "
In the case in hand, there is no allegation against the (6 of 13) [CRLMP-1266/2010] present petitioner in regard to deliver the cheque fraudulently or dishonestly rather complainant clearly stated that he himself told petitioner that he is having signed cheque of Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier of District Kota which was taken forcibly, therefore, the basic ingredients of Section 415 Cr.P.C. i.e. fraudulently or dishonestly are missing in this matter.
"Extortion" is defined in Section 383 of the Indian Penal Code, which reads as under :-
" Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
As per allegation in FIR, on one hand respondent- complainant admits that he was good known of Mohd. Ashraf and he himself told him that he is having a old file of sales tax, income tax, wherein an old signed cheque of Abdul khalik is also there in his possession and thereafter he demanded the cheque when he refused " eks0 v'kjQ us eq> izkFkhZ dks /kksal nsdj Mjk /kedk dj tku ls ekjus dh /kedh nsdj mDr pSd esjs ls ys fy;kA " He didn't disclose the date when the cheque was taken by petitioner, even he didn't report the incident to any one. The complaint was lodged after service of notice of Abdul Khalik @ Pappu, therefore, prima facie this act of petitioner is alleged by complainant does not disclose the offence of extortion in light of the arguments advanced by learned counsel (7 of 13) [CRLMP-1266/2010] for the petitioner that since respondent- complainant was/ is working with aforesaid Abdul Khalik @ Pappu, therefore, he lodged false report with connnivance of aforesaid Abdul Khalik @ Pappu.
Division Bench of Delhi High Court in the matter of Escorts Yamaha Motors Limited vs. State And Ors. reported in 1999 (1) Crimes 640 in similar facts observed that :-
" 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 (8 of 13) [CRLMP-1266/2010] 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 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 (9 of 13) [CRLMP-1266/2010] 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 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 (10 of 13) [CRLMP-1266/2010] 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 (11 of 13) [CRLMP-1266/2010] 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 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 (12 of 13) [CRLMP-1266/2010] 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.
Aforesaid judgment of Division Bench of Delhi High Court was upheld by Hon'ble Supreme Court in the matter of Sunil Kumar vs. Escorts Yamaha Motors Limited And Ors reported in 1999 (8) Crimes 325.
Here, in the case in hand it is not disputed that cheque was signed by the Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier and petitioner issued notice after dishonoring the cheque to aforesaid Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier and even after notice he failed to make payment of the cheque amount and criminal complaint was filed prior to impugned FIR. Petitioner in his notice and complainant clearly stated that cheque was given by Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier against the loan amount, therefore, the cheque in question is a subject matter of criminal complaint filed by petitioner against Mr. Abdul Khalik @ Pappu Proprietor of R.K. Stone Supplier. Pending proceeding under Section 138 N.I. Act before the Court, Police cannot be permitted to investigate the matter parallel to criminal proceedings pending before the Court to undone the criminal proceedings in any issue. IF there is any issue or allegation in regard to the aforesaid (13 of 13) [CRLMP-1266/2010] cheque, the same can be considered and decided by the Court where the criminal complaint is pending only.
In view of it, this misc. petition is allowed and the impugned FIR and subsequent investigation and proceedings are quashed and set aside.
IA No. 5462/2016 and stay application also stand dismissed.
(BANWARI LAL SHARMA)J. Simple/4