Madhya Pradesh High Court
Harimohan Pawaiya vs State Of M.P on 23 January, 2017
1
M.Cr.C.No.2001/2013
(Harimohan Pawaiya v. State of M.P. & Ano.)
23/01/2017
Shri R.K. Sharma, counsel for the applicant.
Shri R.D. Agrawal, Panel Lawyer for the
respondent No.1/State.
Shri R.K. Dubey, counsel for the respondent No.2.
This petition under Section 482 of CrPC has been filed against the order dated 24.01.2013 passed by IV Additional Sessions Judge, Gwalior in Criminal Revision No.481/2012 by which the order dated 08.05.2012 passed by Chief Judicial Magistrate, Gwalior in Criminal Case No. 4043/2012 was affirmed.
2. The necessary facts for the disposal of this application are that a FIR was lodged by the complainant/respondent No.2 on 28.02.2010 alleging therein that the applicant is engaged in the business of sale of second hand vehicles. The complainant had agreed to purchase two old Maruti 800 cars and, therefore, he had given Rs.1,50,000/- to the applicant. The applicant had given the original papers of the said cars but the delivery of the vehicles was not given on the ground that some repairing works are still required to be done. However, even after passing of about 2 years neither the applicant has refunded the amount nor has given the delivery of 2 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) two old Maruti 800 cars.
3. On the application of the applicant, the matter was also inquired into by the CSP Jhansi Road, District Gwalior. The CSP by its report dated 15.06.2010 held that although the complainant has stated that he had paid an amount of Rs.1,50,000/- to the applicant but he has not produced any documents in support of that contention. On the contrary, a receipt of Rs.50,000/- has been issued by the applicant. It was further opined that on the basis of the documents available on record, it is not proved that the applicant has been given an amount of Rs.1,50,000/-.
In the light of the inquiry report submitted by the CSP, Jhansi Road, Gwalior, it appears that the police filed the closure report. The respondent after coming to know about filing of the closure report filed an application under Section 156 (3) of CrPC and objected to the closure report filed by the police. The Magistrate by considering the complaint as well as the documents furnished with the closure report rejected the closure report filed by the police and took cognizance of offences punishable under Sections 420 & 406 of IPC.
4. Being aggrieved by the order dated 08.05.2012, the applicant filed a criminal revision 3 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) which too has suffered dismissal by order dated 24.01.2013. Hence, this petition has been filed by the applicant under Section 482 of CrPC.
5. It is contended by the counsel for the applicant that even if the entire allegations are accepted then it would be clear that it is a case of civil dispute as there is a breach of contract and the applicant and the complainant in order to give a colour of criminal nature has falsely lodged the FIR. It was further contended by the applicant that in fact the CSP had also found that the complainant has failed to produce any documents to show that an amount of Rs.1,50,000/- was given by him to the applicant. The counsel for the applicant to buttress his contention has relied upon the judgments passed by the Supreme Court in the cases of All Cargo Movers (I) Pvt. Ltd., v. Dhanesh Badarmal Jain & Anr., AIR 2008 SC 247, Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., AIR 2008 SC 251, Uma Shankar Gopalika v. State of Bihar & Ano., (2006) 2 SCC (Cri.) 49, V.Y. Jose and Ano. v. State of Gujarat & Ano., (2009) 1 SCC (Cri) 996, Sharon Michael & Ors., v. State of Tamil Nadu & Ano., (2009) 2 SCC (Cri) 103, U. Dhar and Ano. v. State of Jharkhand and Ors., AIR 2003 SC 974.
4 M.Cr.C.No.2001/2013(Harimohan Pawaiya v. State of M.P. & Ano.)
6. Per contra, the counsel for the respondents submitted that the applicant by making the misrepresentation has deceived the complainant and induced him to pay an amount of Rs.1,50,000/- whereas his intention from the very inception was not to give the delivery of two old Maruti 800 cars. It was further submitted that if the applicant was bonafidely not in a position to give the delivery of the cars then he could have returned the amount. Failure on the part of the applicant to return the amount of Rs.1,50,000/- in spite of repeated request by the respondent No.2 clearly shows that right from day one, the applicant had dishonest intention to cheat the respondent No.2. It was further submitted that as the applicant had not given the delivery of two old Maruti 800 cars then he was holding an amount of Rs.1,50,000/- in the capacity of a trustee and, therefore, an offence under Section 409 of IPC is also made out.
7. Before adverting to the facts of the case, it would be appropriate to consider the legal position.
8. The Supreme Court in the case of Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460 has held as under:-
"25. Having examined the interrelationship of these two very significant provisions of 5 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) the Code, let us now examine the scope of interference under any of these provisions in relation to quashing the charge. We have already indicated above that framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under these two provisions.
26. This further raises a question as to the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the 6 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. In Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736], this Court took the similar view and upheld the order of the High Court declining to quash the criminal proceedings because a civil contract between the parties was pending.
27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the 7 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge.
Even in such cases, the court would not 8 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers 9 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
9. Thus, it is clear that if the facts merely discloses the breach of contract or civil dispute then the complainant cannot be permitted to give a colour of criminal offence but where the allegations involve the civil as well as the criminal dispute then the criminal proceedings cannot be quashed merely on the ground that the case is of civil in nature. If the allegations as made in the FIR are considered on their face value then it would be clear that an amount of Rs.1,50,000/- was given to the applicant and the original papers of two old Maruti 800 cars were also handed over 10 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) to the respondent No.2 by the applicant. It is specifically mentioned in the FIR that the delivery of the vehicles could not be given because of some technical snag. It is further mentioned that the applicant is neither giving the delivery of the vehicle nor is returning the money.
10. Whether, it is a mere breach of contract or whether there was a mere failure on the part of the applicant to keep his promise is a question, which is to be decided at the Trial. If for one reason or another the applicant was not in a position to give the delivery of two old Maruti 800 cars to the respondent No.2 then he could have refunded the amount so collected by him from the respondent No.2.
11. So far as the report of the CSP as well as the closure report filed by the police are concerned, suffice it to say that the same are not binding upon the Magistrate.
12. It is well established principle of law that when a closure report is filed then after issuing notices to the complainant and after hearing him, the Magistrate can either accept the closure report or direct for further investigation or can take cognizance of the offence by rejecting the closure report.
13. In the present case, after considering the 11 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) statements of the witnesses which were recorded by the police as well as the report given by the CSP, the Magistrate has came to the conclusion that the report given by the CSP does not appear to be correct as he has merely given a finding that in absence of any documentary evidence it cannot be said that the respondent No.2 had paid an amount of Rs.1,50,000/- to the applicant. It is further held by the Magistrate that while giving such a finding, the CSP had ignored the statements of the witnesses before whom the amount of Rs.1,50,000/- was given.
14. Under these circumstances, at this stage, it is not possible to come to a conclusion that it is a case which can be said to be predominantly of a civil in nature. In order to appreciate the intention of the parties their subsequent conduct is material. If the intention of the applicant was not to deceive the applicant at the very first instance, then he could have offered for refund of the amount of Rs.1,50,000/-.
15. Looking to the subsequent conduct of the applicant as well as the statements of the witnesses, this Court is of the opinion that it is a case where the criminal ingredients are also involved. Thus, in the light of the judgment passed by the Supreme Court in the case of Amit 12 M.Cr.C.No.2001/2013 (Harimohan Pawaiya v. State of M.P. & Ano.) Kapoor (supra), the proceedings pending before the Magistrate cannot be quashed.
16. Accordingly, this petition fails and is hereby dismissed.
(G.S.Ahluwalia)
(ra) Judge