Rajeev Jagdishchandra Khandelwal & vs State Of Gujarat & on 24 March, 2017

[Cites 31, Cited by 2]

Gujarat High Court

Rajeev Jagdishchandra Khandelwal & vs State Of Gujarat & on 24 March, 2017

HC-NIC Page 1 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT 1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants, original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the First Information Report being IC.R. No.1 of 2010 registered with the Gandhinagar Zone Police Station, Gandhinagar for the offence punishable under Sections 406, 420 and 120B of the Indian Penal Code.

2 The case of the first informant may be summarised as under:

2.1 The first informant is a businessman and is engaged in the business of trading of Cotton. He is carrying on business in the name of 'Kirti Corporation and S. Arpan Enterprise'. He is engaged in the business of trading of cotton past twenty nine years. The first informant has good relations with one Rajgopalan, a former employee of the G.P.I.L. After resigning from the G.P.I.L., Shri Rajgopalan took up employment as a 'Manager' in the company of the accused persons. The accused persons are carrying on business in the name of 'Euro Cotspin'. It is the case of the first informant that a meeting was arranged by Shri Rajgopalan with the applicant No.1 namely, Rajeev Khandelwal, some time in the year 1998 1999. The first informant and the applicants herein decided to enter into a business agreement. According to the first informant, he started supplying cotton to the applicants and he used to receive the payment regularly. The business continued smoothly upto 2001. Thereafter, the first informant noticed that the applicants were not regular in making the payment of the goods supplied. However, the applicants herein are said to have persuaded the first informant to continue with the supply of the goods. Acting on the promise given by the applicants, the first informant continued to supply the goods. In the F.I.R., it has been stated that out of the outstanding dues of Rs.3,16,47,194=00, the applicants herein made payment of Rs.1,98,97,024=00. The amount of Page 2 of 18 HC-NIC Page 2 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT Rs.1,17,50,230=00 is still due and payable. It is alleged that the applicants herein cheated the first informant by not making the full payment towards the goods supplied. It is also stated in the F.I.R. that as on date, the amount of Rs.4,12,43,777=00 is due and payable by the applicants. For a particular amount, the cheques were also issued by the applicants, but the same came to be dishonoured.

3 In such circumstances, the F.I.R. had to be lodged by the first informant.

4 Mr. Bhadrish Raju, the learned counsel appearing for the applicants vehemently submitted that even if the entire case of the first informant is believed or accepted to be true, none of the ingredients to constitute the offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code or cheating punishable under Section 420 of the Indian Penal Code are spelt out. He submits that the F.I.R. in question is for the offence alleged to have been committed between 1998 - 2003. He submits that after a period of almost seven years, the F.I.R. came to be lodged. Mr. Raju vehemently submitted that if the first informant is very much concerned about the recovery of the amount and if his case is genuine, then, by now, he should have filed a civil suit for the recovery of the requisite amount. However, till this date, no civil suit is also filed for recovery of the amount due and payable. Mr. Raju submits that on the contrary, some of the goods supplied by the first informant had to be rejected, because the same were of inferior quality, and it is his clients, who had to institute a civil suit in the Court of the Civil Judge (Senior Division), Rajpura. Such civil suit was filed way back in the year 2003. Mr. Raju invited my attention to Annexure:

"C", i.e. the plaint of the civil suit filed by the applicants herein.





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         5       Mr.   Raju   further   submitted   that   in   fact,   his   clients   have   been

cheated, and therefore, his clients had to file a complaint dated 24th August 2006 addressed to the police officer of the Gandhinagar Police Station for the offence punishable under Sections 420, 464, 467 and 472 of the Indian Penal Code. In the complaint, it has been alleged as under:

"That complainant is a registered company doing the business of manufacturing of yard situated at (illegible). The company issued cheques no.706411 dated 11.8.2001, for Rs.4,44,580/ cheque no.706422 dted 12.8.2001 for Rs.4,88,835/ cheque no.706423 dated 12.8.01 for Rs.5,68,519/ cheque no.706424 dated 16.6.2001 Rs.3,17,153/ cheque no.706425 dated 18.8.2001 for Rs.4,91,545/ cheque no.706426 dtd.17.8.2001 for Rs.5,82,821/ cheque no.706427 dated 17.8.2001 for Rs.8,90,286/ cheque no.706428 dated 17.8.2001 for Rs.5,08,266/ drawn on Punjab and Sind Bank, Chandigarh as security agreement to cotton supplied to the company. The accused did not return those cheques in spite of our reposted request. But, an order to gain themselves they uttered the date of the year from 2001 to 2004 in the above noted cheqeu and presented the same in Punjab and Sind Bank Chandigarh for clearance. But, cheque were returned back "uncleared" due to the alternation of dates vide their memo dated 8.10.2004 photo state copy of the same is attached herewith.

In this way, accused company has prepared a false documents u/s. 464 of IPC and they have forged a valuable security, punishable u/s. 467 of I.P.C. Further they have forged the document for the purpose of cheating u/s. 468 of IPC and further they prepared false document, punishable u/s. 470 of IPC. They further presented the same to the Bank claiming the documents to be genuine one and they committed offence u/s. 471 of IPC. Further accused company has not committed offence u/s. 464/467/468/471 but have also played a fraud with the complainant. Thus offence punishable u/s. 420/464/467/468/471 of IPC.




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It is requested that kindly register a case against the above named company through his partner Sh. Umesh Bhai Kotia."

6 Mr. Raju submits that the two applicants herein, at one point of time, were the 'Directors' of the company. They seized to be the 'Directors' long time back. In fact, there are no allegations directly or indirectly against the applicant No.2, aged about 80 years, and, who happens to be the father of the applicant No.1. Mr. Raju submits that to hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. Assuming for the moment that his clients failed to keep up the promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. The dispute is one relating to the commercial transactions, and there is no element of any criminal offence. Mr. Raju, in support of his submissions, has placed reliance on a recent pronouncement of the Supreme Court in the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCT) and others vs. Nimra Cerglass Technics Private Limited and another [(2016) 1 SCC 348]. In the said decision, the Court has explained what would constitute cheating within the meaning of Section 420 of the Indian Penal Code. I may quote the relevant observations as under:

"15. The essential ingredients to attract Section 420 IPC are: (i) cheating;

(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the Page 5 of 18 HC-NIC Page 5 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT complainant.

16. Distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating.

On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S.W. Palanitkar & Ors. vs. State of Bihar & Anr. (2002) 1 SCC 241, this Court held as under:

21 ....In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.

The above view in Palanitkars case was referred to and followed in Rashmi Jain vs. State of Uttar Pradesh & Anr. (2014) 13 SCC 553.

22.By analysis of terms and conditions of the agreement between the parties, the dispute between the parties appears to be purely of civil nature. It is settled legal proposition that criminal liability should not be imposed in disputes of civil nature. In Anil Mahajan vs. Bhor Industries Ltd. & Anr. (2005) 10 SCC 228, this Court held as under;

"6. ....A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.

7. ....

8. The substance of the complaint is to be seen. Mere use of the expression cheating in the complaint is of no consequence. Except mention of the words deceive and cheat in the complaint filed before the Magistrate and cheating in the Page 6 of 18 HC-NIC Page 6 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay&. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainants own case is that over rupees three crores was paid and for balance, the accused was giving reasons as abovenoticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question."

25.The above decisions reiterate the wellsettled principles that while exercising inherent jurisdiction under Section 482 Cr.P.C., it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court. High Courts inherent powers, be it, civil or criminal matters, is designed to achieve a salutary public purpose and that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If the averments in the complaint do not constitute an offence, the court would be justified in quashing the proceedings in the interest of justice."

7 In such circumstances referred to above, Mr. Raju prays that there being merit in this application, the same be allowed and the F.I.R. be quashed.

8 On the other hand, this application has been vehemently opposed by Mr. R.J. Goswamy, the learned counsel appearing for the first informant. Mr. Goswamy submits that the F.I.R. is of the year 2010. After a period of five years, the applicants thought fit to come before this Court. He submits that both the applicants are absconding and warrants of arrest under Section 70 of the Cr.P.C. have been issued. It is only when the warrants of arrest came to be issued, that the applicants thought fit to come before this Court with this application. Mr. Goswamy submits that more than a prima facie case could be said to have been made out for the police investigation. A huge amount is due and payable Page 7 of 18 HC-NIC Page 7 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT to his client for the goods supplied, according to the contract. Mr. Goswamy, however, very fairly conceded that his client has not thought fit to file any civil suit till this date for recovery of the amount due and payable. He also very fairly conceded that perhaps, his client has lost the limitation for filing such suit. Mr. Goswamy also very fairly conceded that for the dishonour of the cheques, his client did not deem fit to file any complaint under Section 138 of the Negotiable Instruments Act. According to him, the F.I.R. discloses commission of a cognizable offence, and therefore, this Court may not go into the question whether the intention of the applicants was to cheat the first informant from the inception or not. He, therefore, prays that there being no merit in this application, the same be rejected.

9 The learned A.P.P. appearing for the State submits that there is no merit in this application, the same be rejected.

10 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the F.I.R. should be quashed.

11 In my view, the plain reading of the First Information Report fails to spell out any of the ingredients to constitute the offence of cheating. I may only say with a view to clear a serious misconception of law in the mind of the police as well as the courts below that if it is a case of the complainant that the offence of criminal breach of trust as defined under Section 405 of Indian Penal Code punishable under Section 406 of IPC, is committed by the accused, then in the same breath it could not be said that the accused has also committed the offence of cheating as defined and explained in Section 415 of the IPC punishable under Section 420 of the IPC.



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         12    Every act of breach of trust may not be resulted in a penal offence

of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but any breach of trust with a mens rea gives rise to a criminal prosecution as well. It has been held in Hart Prasad Chamaria v. B.K. Surekha and others, reported in 1973(2) SCC 823 as under :

"We have heard Mr. Maheshwarit on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does riot disclose the commission of any offence on the part of the respondents under Section 420 Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35.000/ There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35.000/ by deceiving him. It is further not the case of the appellant that a representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability on the respondents for the offence of cheating."

13 To put it in other words, the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of the movable property receives it legally, but illegally retains it or converts it to his own use against the terms of the contract. Then the question is, in a case like this, whether the retention is with dishonest intention or not. Whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case.





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         14     The distinction between mere breach of contract and the offence

of criminal breach of trust and cheating are fine one. In case of cheating, it depends upon the intention of the accused at the time of inducement, which may be judged by a subsequent conduct but for this the subsequent conduct is not the sole test but mere breach of contract which cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is his intention, which is the gist of the offence. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence after breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership of it must be of some other person. The accused must hold that property on trust of such other person. But the offence, i.e. the offence of breach of trust and cheating involve dishonest intention but they are mutually exclusive and different in basic concept. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of entrustment. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender practices fraudulent or dishonest to induce with another person to deliver the property. In such situation, both the offences cannot coexist simultaneously.

15 I may quote with profit a decision of the Supreme Court in the case of Nageshwar Prasad Singh alias Sinha vs. Narayan Singh, AIR 1999 SC 1480. In the said case, the allegation of the prosecution was that an agreement was signed between the complainant respondent and Page 10 of 18 HC-NIC Page 10 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT the appellant whereby some land was agreed to be sold by the appellant to the complainants on a consideration, and allegedly a part thereof was paid as earnest money, the balance being payable in the manner indicated in the deed. The most important term in the deed was that possession of the plot would stand transferred to the complainants and possession in fact was delivered to the complainants over which they made certain constructions. The complaint was laid on the basis that the appellant had cheated the complainants of the sum of money they had paid as earnest money as his subsequent conduct reflected that he was not willing to complete the bargain for which the complainants had to file a suit for specific performance which was pending in the civil court. Held, that latter part of illustration (g) to Section 415, I.P.C. illustrates that at the time when agreement for sell was executed, it could have, in no event, been termed dishonestly so as to hold that the complainants were cheated of the earnest money, which they passed to the appellant as part consideration and possession of the total amount involved in the bargain was passed over to the complainant/respondent and which remained in their possession. Now it is left to imagine who would be interested for dealing the matter for completing the bargain when admittedly the complainants have not performed their part in making full payment. The matter was, therefore, before the civil court in this respect. The liability, if any, arising out by breaching thereof was civil in nature and not criminal. Accordingly, the appeal was allowed and complaint proceedings were quashed.

16 It was further held by the Supreme Court in the case of Hridaya Ranjan Prasad Verma v. State of Bihar, AIR 2000 SC 2341 at Pp. 234546 of para 16) as below :

"15. In determining the question it has to be kept in mind that the Page 11 of 18 HC-NIC Page 11 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT distinction between, mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention, which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

17 In All Cargo Movers (I) Pvt. Ltd. & others v. Dhanesh Badarmal Jain & another, JT 2007 (12) SC 345, the Apex Court quashed a criminal proceeding on the premise that the allegations contained in complaint were wholly inconsistent with the pleadings in a collateral civil proceeding. It held as follows :

"17. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiffrespondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice."

18 In K.L.E. Society & others vs. Siddalingesh, (2008) 4 SCC 541, Page 12 of 18 HC-NIC Page 12 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT on a similar issue, the Supreme Court quashed a criminal proceeding labeling it to be an abuse of process of Court as the allegations contained in the complaint ran contrary to the averments made in the petition filed under the Industrial Disputes Act. The Apex Court held as follows :

"7. One thing is clear on reading of High Court's reasoning that the High Court came to the conclusion that deductions were made without any rhyme and reason and without any basis. That was not the case of the complainant. On the other hand, it tried to make out a case that the deduction was made with an object. That obviously, was the foundation to substantiate claim of entrustment. On a close reading of the complaint it is clear that the ingredients of Sections 403, 405 and 415 do not exist. The statement made in the complaint runs contrary to the averments made in the petition in terms of Section 33(C) (2)."

19 In State of Orissa vs. Debendra Nath Padhi, (2005) SCC (Cri.) 415, the Supreme Court held that the High Court could take into account materials of "unimpeachable character of sterling quality" while exercising its inherent powers to quash a criminal proceeding and observed as follows : "29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lals case.

20 In Vijaya Rao v. State of Rajasthan & another (2005) SCC (Cri.) 1600, the Supreme Court held that merely using expressions like "fraudulent representation" and "malafide intention" does not give rise to an inference that the complaint discloses the ingredients of the offence Page 13 of 18 HC-NIC Page 13 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT of cheating.

21 In Hridaya Ranjan Prasad Verma & others vs. State of Bihar & another (2000) SCC (Cri.) 786, the Supreme Court succinctly laid down the distinction between breach of contract in one hand and the offence of cheating in the other.

"15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

22 In Anil Kumar Bose vs. State of Bihar, (1974) SCC (Cri.) 652, the Supreme Court held that mere failure to perform a duty or observe rules of procedure may be an administrative lapse or any error of judgement but cannot be equated with dishonest intention or cheating.

23 Criticizing the institution of malicious and frivolous criminal proceeding against individuals, the Supreme Court in PEPSI Foods Ltd. & another v. Special Judicial Magistrate & Ors., (1998) SCC (Cri.) 1400, held as follows :

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his Page 14 of 18 HC-NIC Page 14 of 18 Created On Sun Aug 13 17:28:28 IST 2017 R/CR.MA/12622/2015 JUDGMENT mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

24 In B. Suresh Yadav vs. Sharifa Bee & another, JT (2007) 12 SC 341, the Supreme Court again highlighted the distinction between a mere breach of contract and the offence of cheating.

25 In Inder Mohan Goswami & another vs. State of Uttaranchal & others, (2007)12 SCC 1, the Supreme Court analysed inherent powers of the High Court under Section 482 as follows :

"23. This court in a number of cases has laid down the scope and ambit of courts' powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."




         26     The  delay in lodging  the  First Information  Report also assumes 



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         significance in the facts of the present case.


         27     Prompt  and  early  reporting   of   the   occurrence  by  the   informant

with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].

28 In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases, the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before a civil court may initiate criminal proceedings just to harass the other side with a malafide intention or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].



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         29     There   is   one   additional   feature   attached   to   this   matter.   It   is

incomprehensible why if a fraud has been practiced and the complainant has been cheated, he would fail to initiate appropriate civil proceedings for the recovery of his legitimate dues. It is not possible to believe that when the complainant claims that have been duped of lacs of rupees, he would rest content with lodging an F.I.R. without doing anything more in order to protect his interest so far as the recovery of the amount is concerned. The point deserves to be underscored (and its importance cannot be overemphasised). The complainant could not have, therefore, been oblivious of the need to protect his interest by recourse to the Civil Court. The criminal prosecution could at best have resulted in the persons responsible for the fraud being punished. The same could not have protected his civil rights in regard to the recovery of the amount due and payable. Again, how could the complainant be sure that the prosecution was bound to succeed and that the Courts were, ultimately, bound to hold that a fraud or cheating has been practiced upon him. It is, therefore, not possible to believe that he would have remained indifferent and waited for long time without instituting any civil suit for recovery of the amount.

30 In the overall view of the matter, I am convinced that the F.I.R. fails to disclose any cognizance offence. The gross delay of seven years in filing the F.I.R., failure to file any civil suit for recovery of the amount, civil suit filed by the applicants herein way back in the year 2003 against the first informant and a criminal complaint lodged at the concerned police station by the applicants herein against the first informant in the year 2006 is sufficient to reach to the conclusion that there is no element of criminal offence as such, as alleged by the first informant.




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                      R/CR.MA/12622/2015                                                 JUDGMENT




         31      In   the   result,   this   application   is   allowed.   The   First   Information

Report bearing IC.R. No.1 of 2010 registered with the Gandhinagar Zone Police Station, Gandhinagar is hereby quashed. Rule is made absolute. Direct service is permitted.

32 If it is permissible for the first informant having regard to the period of limitation, then he may initiate appropriate civil proceedings for recovery of the requisite amount.

(J.B.PARDIWALA, J.) chandresh Page 18 of 18 HC-NIC Page 18 of 18 Created On Sun Aug 13 17:28:28 IST 2017

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