Punjab-Haryana High Court
Basant Misra And Another vs State Of Haryana And Others on 3 October, 2008
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.43667 OF 2003 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: OCTOBER 03, 2008
Basant Misra and another
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. J. K. Sibal, Sr.Advocate with
Mr. Sapan Dhir, Advocate,
for the petitioner.
Mr. Yashwinder Singh, AAG, Haryana.
Mr. Mohan Jain, Sr.Advocate with
Mr. Binderjit Singh, Advocate,
for respondent No.4.
****
RANJIT SINGH, J.
Alleging that respondent No.4 has filed this FIR with a view to humiliate and harass the petitioners and, therefore, it is an abuse of process of Court, the petitioners have filed this petition, seeking quashing of the said FIR and the subsequent proceedings.
CRIMINAL MISC. M NO.43667 OF 2003 :{ 2 }:
Petitioners claim that respondent No.4 rather owes 2.95 crores to the petitioners but has filed this complaint under Sections 406 and 420 IPC. Prayer made before the Judicial Magistrate was to refer the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. The FIR No.127 dated 22.8.2003 has accordingly been registered against the petitioners at police Station Murthal, District Sonepat.
The facts, in brief, are that petitioner No.1 was introduced to Amit Katyal, who is one of the Directors of respondent No.4 Company. Amit Katyal claims himself to be owner of M/s Frost Falcon Distilleries Limited and M/s Iceberg Company Limited. He allegedly induced petitioner No.1 to provide financial assistance for a brief period to the companies and consequently petitioner No.1 gave cheque bearing No.416660 dated 8.8.2003 drawn from his NRE Account with Deutsche Bank, Bombay, for a sum of Rs.one crore and one lac to M/s Iceberg Industries Limited. Similar amount was given to M/s Frost Falcon Industries, vide cheque No.416662 dated 10.11.2002 drawn on the same bank. Sum of Rs.93 lacs was statedly paid in cash in various instalments by petitioner No.1 by withdrawing from his NRI account. The statements of account showing withdrawal of these amounts have been annexed with the petition. Mr.Amit Katyal had issued four cheques in favour of petitioner No.1 in all amounting to Rs.three crores towards the repayment of the loan given by the petitioners. Cheque No.193545 dated 25.1.2003 for a sum of Rs.one crore was drawn on Standard Chartered Bank, Parliament Street, New Delhi. This cheque, when CRIMINAL MISC. M NO.43667 OF 2003 :{ 3 }:
presented, in the account of the petitioners at Bangalore, was returned with intimation that cheque not cleared due to insufficient funds. Petitioner No.1 accordingly issued notice on 8.8.2003 to Sh.Amit Katyal under Section 138 of the Negotiable Instruments Act (for short, "the Act"). Another cheque No.561897 dated 9.5.2003 drawn on Standard Chartered Bank, Parliament Street, New Delhi in the sum of Rs.50 lacs issued by Amit Katyal and when presented at Bangalore was returned with the intimation "account closed". In this regard also, notice was issued to Amit Katyal for making payment within 15 days as required under the law. Mr.Katyal, as a Director of M/s Frost Falcon Distilleries Limited, issued cheque No.087914 dated 17.5.2003 drawn on Punjab National Bank, Connaught Place, New Delhi, in the sum of Rs.one crore. This cheque again, when presented at New Delhi, was dishonoured with the remarks "payment stopped by the drawer." In this regard also notice was issued to Amit Katyal. Another cheque in the sum of Rs.50 lacs was issued by Amit Katyal on behalf of M/s Iceberg Industries, which was returned with the remarks "account closed". In this regard also, notice was issued, intimating that action under Section 138 of the Act shall follow.
It is alleged that on 26.8.2003, 15 Haryana police officials came to Delhi and raided the houses of the petitioners and took them to Police Station Mandir Marg, New Delhi. There the petitioners learnt that a case has been registered under Sections 406 and 420 IPC at Police Station Murthal, District Sonepat. The petitioners were taken to Murthal and were detained and informed that they were arrested in FIR No.127 dated 22.8.2003. Copy of the FIR has been CRIMINAL MISC. M NO.43667 OF 2003 :{ 4 }:
annexed with the petition as Annexure P-7. The petitioners have filed this petition to seek quashing of this FIR on the ground that it is nothing but an abuse of the process of the Court. No offence against the petitioners under Sections 406, 420 IPC is made out. This FIR, according to the petitioners, has been lodged only as a counter blast to the notice, which the petitioners have served upon Amit Katyal for filing case under Section 138 of the Act and as such, nothing else but an abuse of the process of the Court.
Learned counsel for the petitioners would primarily submit that respondent No.4 and others rather owe money to the petitioners and have filed this petition just as counter-blast to the action initiated against him and is nothing but a concoction.
The case set up in the FIR is that the petitioners represented to Mr.Amit Katyal that they are C and F Agents/Sale Promoters of M/s Shaw Wallace Distilleries Limited, Bombay. Petitioners have allegedly further told that sum of Rs.8 crores was required to commence business and, thus, induced him to start business in partnership with him. The draft deed of partnership was also allegedly prepared and in the last week of January 2002, Mr.Mishra and Ms.Namarata Mishra contacted Mr.Katyal at 50 Miles Stones, G.T. Karnal Road at Murthal, Sonepat and represented that letter had been issued by M/s Shaw Wallace Distilleries Limited and financial status of the company was to be shown and they demanded and accepted the cheque of Rs.one crore. In this manner, the other cheques were also allegedly handed over. Ultimately, the petitioners were not able to do anything as per their promise and so the CRIMINAL MISC. M NO.43667 OF 2003 :{ 5 }:
complainant decided to rescind the proposed partnership. Ultimately, the deal was also cancelled. In this background, intimation was also given to the Bank to stop payment. The petitioners were required to return the cheques and with this allegation, it is alleged that both the petitioners are liable for criminal breach of trust as the cheque/cash and other facilities have been availed by them by inducing the Company with a promise to fetch lucrative returns. Accordingly, it is pleaded that no case for quashing of the FIR or the proceedings would be made out in this case.
Learned counsel appearing for the parties have made submissions in detail. Counsel for the petitioners has maintained that no offence of cheating or criminal breach of trust is revealed and this complaint and the subsequent proceedings are just an abuse of the process of the Court. On the other hand, learned counsel for the respondents would submit that challan in this case has already been presented and hence, this will not be appropriate stage for this Court to interfere and quash the FIR or the subsequent proceedings and matter necessarily should receive attention of the Trial Court. Number of judgments were cited before me in regard to the scope of interference in exercise of jurisdiction under Section 482 Cr.P.C. to urge that FIR and the subsequent proceedings in the present case can not and should not be quashed.
During the course of arguments on 8.9.2008, question arose if the allegation of cheating would stand if the cheques had not been encashed. It was contended by the counsel for the complainant that cheque amounting to Rs.three crores have been encashed, but CRIMINAL MISC. M NO.43667 OF 2003 :{ 6 }:
this fact was disputed by the counsel for the petitioners with equal vehemence. Counsel for the respondent sought time to file affidavit that these cheques were encashed by the petitioners. The submissions made became a matter of dispute. There was, however, not much difference between the counsel that in the absence of encashment of the cheques allegation of cheating may not be made out. Accordingly, the counsel representing the petitioners sought time to file an affidavit that these cheques were encashed. It may not be fair to record what the counsel further undertook in this regard. Subsequently, counsel for the complainant filed an affidavit but had to concede that these four cheques amounting to Rs.three crores had indeed not been encashed. There is also not much dispute between the parties that the petitioners have filed complaints under Section 138 of the Act against the respondents as these cheques, when presented had been dishonoured. Counsel for the complainant would still wish to make submission on merits, though he had taken time only to see if the cheques were encashed or not. It may require a notice that in an offence of cheating, delivery of any property due to dishonest deceiving is an essential ingredient. Offences under Sections 420 and 406 IPC have also been held to be anti thesis of each other. Obviously, entrustment and deceiving can not go together.
Having heard the rival contentions raised before me, I am of the view that the Court need not confine itself to further enquire if the case of cheating or criminal breach of trust would be made out in this case or not as pleaded on the ground that cheques had not been CRIMINAL MISC. M NO.43667 OF 2003 :{ 7 }:
encashed. It is noticed that the Courts at Sonepat, where the complaint has been filed, would not have any territorial jurisdiction to deal with this complaint and to try the same. Apparently, no cause of action has arisen under the territorial jurisdiction of the Courts at Sonepat. Only ground on which, the cause of action has been alleged in the complaint is that in the month of May, the parties had entered into intimacy and thereafter on 7.12.2002 agreement took place and finally on 12.6.2003, the final refusal came to be made. It is not even mentioned where this happened. The question of criminal breach of trust depends upon the entrustment of property and breach committed. The cheating would primarily be at a place where the cheques were either issued or encashed. The cause as projected in the complaint to invoke the jurisdiction of the Courts at Sonepat apparently has been stretched to create jurisdiction and would not be a cause in the bundle on the basis of which the respondents can maintain these proceedings against the petitioners in a Court at Sonepat. Cause of action has been held to mean every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved. (See Read Vs. Brown, (1989) 22 Q.B.D. 128, which is followed in Navinchandra N. Majitha Vs. State of Maharashtra and others, JT 2000 (10) S.C. 61.
Definition as given by Mulla's Code of Civil Procedure regarding cause of action was relied upon by Hon'ble Supreme Court in the case of State of Rajasthan and others Vs. Swaika Properties CRIMINAL MISC. M NO.43667 OF 2003 :{ 8 }:
and another, 1985 (3) S.C.C. 217. As per this, the term means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment of the Court.
Thus, it is well settled that the expression `cause of action' means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. It means a bundle of facts which would be required to be proved. In the light of this, it is to be seen if the Court at Sonepat would have jurisdiction to entertain the present suit.
Entering into intimacy in May 2002 can not be said to be a part in the cause to entitle the respondents to prosecute the petitioners for cheating or criminal breach of trust. Even the agreement, which took place on 7.12.2002, would not give any cause to the respondent and so also the refusal to honour the agreement, if any. These aspects are not bundle in the cause. As per the own showing of the respondent-complainant, the petitioners had cheated the company to the tune of Rs.50,58,520/-, which is calculated on the basis of some expenses incurred on the petitioners by providing facilities like travel at company expenses, use of car and mobile and taking money in cash. None of these parts of cause of action has arisen under the territorial jurisdiction of the court at Sonepat. I am, thus, of the considered view that the Court at Sonepat would lack in territorial jurisdiction to try this complaint.
The present petition is accordingly allowed on this short ground. The FIR and the proceedings initiated thereon cannot be continued by court at Sonepat and are hereby quashed. The CRIMINAL MISC. M NO.43667 OF 2003 :{ 9 }:
respondents, however, will be at liberty to file any complaint against the petitioners for the same allegations in a Court of competent jurisdiction, where the cause of action in this case has really accrued to him.
October 03 ,2008 ( RANJIT SINGH ) khurmi JUDGE