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Criminal Cases Having Overwhelmingly & Pre-dominatingly A Civil Flavour Stands On Different Footing For Purpose Of Quashing: SC

 

While quashing a criminal proceeding, the Apex Court in a learned, laudable, landmark and latest judgment titled Jaswant Singh Vs State of Punjab & Anr in Criminal Appeal No. 1233 of 2021 (Arising out of SLP (Cri) No. 7072 of 2021) that was delivered recently on October 20, 2021 remarked that, “The allegations made in the FIR had an overwhelmingly and pre-dominatingly a civil flavour.” The Apex Court gave adequate reasons for quashing the criminal proceedings which shall be discussed later. It must be apprised here that the Bench of Apex Court comprising of Justice Dinesh Maheshwari and Justice Vikram Nath observed in no uncertain terms that the inherent powers should be exercised in a given and deserving case where the Court is satisfied that exercise of such power would either prevent abuse of such power or such exercise would result in securing the ends of justice. Very rightly so!

To start with, the ball is set rolling in this commendable, cogent, composed and creditworthy judgment authored by Justice Vikram Nath for himself and Justice Dinesh Maheshwari by first and foremost observing in para 1 that, “By means of this appeal, the appellant Jaswant Singh has prayed for quashing of the order dated 06.02.2020 passed by the learned Single Judge of the Punjab and Haryana High Court in CRM-M-32011 of 2018 (O&M) whereby the High Court declined to exercise its powers under Section 482 of the Criminal Procedure Code (Cr.P.C.) to quash the criminal proceedings arising out of FIR No. 179 dated 29.10.2009 under Section 406/420 of the Indian Penal Code (I.P.C.), Police Station Fatehgarh Sahib, District Fatehgarh Sahib. However, the High Court granted bail to the appellant subject to certain conditions contained in the said order. The factual matrix giving rise to the present appeal is narrated hereunder:.”

To put things in perspective, the Bench then envisages in para 2 that, “Respondent no.2 Nasib Singh (the Complainant) moved an application dated 18.08.2009 addressed to the Senior Superintendent of Police, District Fatehgarh Sahib stating therein that he was known to one Gurmeet Singh, who was in the business of sending people abroad. Gurmeet Singh had assured the Complainant that his two acquaintances Jaswant Singh and Gurpreet Singh who were already settled in Italy, would help his son to get a job and settle in Italy. For the aforesaid arrangement, Gurmeet Singh demanded a total amount of Rs 7 lacs. Further, according to the Complainant, Rs 4 lacs was paid in cash on 10.12.2008 and thereafter Rs. 2 lacs were paid by way of a cheque dated 18.02.2009 of the Punjab National Bank, Branch AS College, Khanna in favour of Gurmeet Singh which amount has since been credited in the account of Gurmeet Singh. Soon thereafter Sarpreet Singh, son of the Complainant, was put on a flight to Italy on 19.02.2009. Further allegation is that Jaswant Singh and Gurpreet Singh did not honour their promise and harassed his son. They did not arrange for a job as per their promise. The documents were misplaced by them and ultimately his son had to return after three/four months. The complaint further alleges that the named accused further demanded Rs. 3 lacs and also threatened of dire consequences in case the money was not paid. That his son was mentally upset and he has also spent huge amount in travelling and treatment of his son. It is thus prayed that appropriate action be taken and justice be done to the Complainant.”

Furthermore, the Bench then observes in para 3 that, “The said complaint was inquired into by the ASI Manjit Singh of the Economic Offences Wing, Fatehgarh Sahib. In the inquiry, the statements of the Complainant, his son and Gurmeet Singh were recorded. Further Jaswant Singh and Gurpreet Singh, who were settled abroad and named in the complaint, were also called upon to submit their statements which they have forwarded through e-mail. The Inquiry Officer did not find the case so as to make out any offence of cheating or breach of trust and, accordingly, recommended that the application be consigned by order dated 04.09.2009.”

While elaborating further, the Bench then enunciates in para 4 that, “The in-charge, Economic Offences Wing, Shri Gurdeep Singh, also examined the material and the evidence on record and concurred with the recommendation made by the ASI on 04.09.2009. The Deputy Superintendent of Police, Bassi Pathana, Shri Rajwinder Singh also recommended that there is no need of any action on the application and the same may be consigned. However, the Senior Superintendent of Police Shri Kostav Sharma, directed the Station House Officer to register a first information report and accordingly an FIR was registered on 29.10.2009. The matter was further investigated and a police report under Section 173(2) of the Cr.P.C. was submitted with the finding that a triable case was made out only against Gurmeet Singh, and as against the other two named accused Jaswant Singh and Gurpreet Singh, as there was no evidence of any offence, they were exonerated.”

Simply put, the Bench then states in para 5 that, “In the meantime, an additional statement of the complainant Nasib Singh was recorded on 20.05.2010 in which also he clearly stated that he had paid the amount to Gurmeet Singh, Rs. 4 lacs in cash and Rs. 2 lacs by cheque.”

Furthermore, the Bench then observes in para 6 that, “Based on the police report and the material enclosed with it, the Magistrate First Class at Fatehgarh Sahib took cognizance and registered the Case No CHI/0600029/2010. During the trial the prosecution moved an application on 11.06.2013 purported to be under Section 319 Cr.P.C. praying for summoning the appellant and the other co-accused Gurpreet Singh to face trial under Section 420 I.P.C. On the same day the Trial Court summoned both the accused under Section 420 I.P.C. As the appellant was in Italy, he did not appear and accordingly was declared as a proclaimed offender on 28.04.2014. The appellant filed a petition under Section 482 Cr.P.C. before the High Court in September, 2018 for quashing of the order dated 28.04.2014 declaring him as a proclaimed offender.”

Going ahead, the Bench then points out in para 7 that, “In the meantime, the complainant Nasib Singh entered into a compromise with the main accused Gurmeet Singh and they jointly applied before the Trial Court. The Trial Court, vide order dated 26.09.2014 allowed the parties to amicably resolve their issue being of economic import and accordingly compounded the offence. Proceedings were eliminated against the accused Gurmeet Singh.”

In hindsight, the Bench then recalls in para 8 that, “The High Court, vide interim order dated 10.09.2018, stayed the order of the Trial Court dated 28.04.2014 and further directed the appellant to surrender before the Trial Court within two weeks and on his doing so the Trial Court was directed to release him on interim bail subject to its satisfaction. The appellant thereafter appeared before the Trial Court on 27.10.2018 whereafter the Trial Court admitted him to interim bail on his furnishing bail bonds and surety bonds and in the sum of Rs.1 lac.”

As we see, the Bench then envisages in para 9 that, “In the pending 482 Cr.P.C. petition before the High Court, the appellant filed another application registered as CRM No 4655/2020 wherein he prayed for quashing of the proceedings on various grounds and in particular that the complainant had already settled his score with the main accused Gurmeet Singh and on their joint request the Trial Court had already eliminated/ acquitted Gurmeet Singh of the offence.”

Truth be told, the Bench then lays bare in para 10 that, “The High Court vide order dated 10.01.2020 permitted to place on record the order granting interim bail and also the order of compounding/acquittal of the co-accused and any other material which the appellant may wish to file. All the relevant material was filed by the appellant before the High Court by way of an application dated 04.02.2020.”

It would be worthwhile to mention that the Bench then observes in para 11 that, “The High Court, vide the impugned judgment, declined to quash the proceedings on the ground that a perusal of the FIR goes to show that the name of the appellant is specifically mentioned in the FIR and criminal acts have been attributed to him. However, the High Court with respect to the order dated 28.04.2014 declared the appellant to be a proclaimed offender and directed him to surrender before the Trial Court within two weeks and to move an application for a regular bail, which was to be decided within two weeks subject to three conditions. It would be worthwhile to reproduce the order of the High Court, which reads as follows:

“By way of filing the present petition, petitioner Jaswant Singh, a non resident Indian seeks quashing of F.I.R.No.179 dated 29.10.2009 under Sections 406/420 IPC registered at Police Station Fatehgarh Sahib, District Fatehgarh Sahib. I have gone through the F.I.R. A perusal thereof goes to show that name of petitioner is specifically mentioned in the F.I.R. and criminal acts have been attributed to him. Therefore, no ground is there to quash the F.I.R., as such request in that regard is declined. With regard to order dated 28.4.2014 vide which he has been declared a proclaimed offender, he is directed to surrender in the trial Court within two weeks. On his doing so and moving application for regular bail, the same be decided within two weeks. Till then he may not be arrested. This order is subject to the following conditions:-

i)  The petitioner shall surrender his Passport in the trial Court.

ii)    The petitioner shall appear in the trial Court on each and every date of hearing.

iii)  The petitioner shall not give any threat or intimidation to the prosecution witnesses.

The petition is disposed of.”

It is worth noting that the Bench then succinctly points out in para 14 that, “In our view, the present one is amongst those fittest cases where the High Court ought to have exercised its powers under Section 482 Cr.P.C. and ought to have secured the ends of justice by closing the proceedings against the appellants. It is also surprising as to how and in what circumstances after moving an application under Section 319 Cr.P.C., the prosecution continued to contest the case even after 26.09.2014 when the matter had already been compromised and compounded as against the main accused Gurmeet Singh. Apparently, the parties were not able to correctly place the facts and material before the Trial Court or the High Court, which could have closed this matter then and there without proceeding any further.”

Far most significantly, the Bench then hastens to add in para 19 what forms the cornerstone and icing on the cake of this notable judgment that, “From the above discussion on the settled legal principles, it is clear from the facts of the present case that there was a clear abuse of the process of the Court and further that the Court had a duty to secure the ends of justice. We say so for the following reasons:

a) The allegations made in the FIR had an overwhelmingly and pre-dominatingly a civil flavour inasmuch as the complainant alleged that he had paid money to Gurmeet Singh, the main accused to get employment for his son abroad. If Gurmeet Singh failed the complainant could have filed a suit for recovery of the amount paid for not fulfilling the promise.

b) Initially, the investigating officer and two superior officers of the economic wing has found that there is no substance in the complaint making out even a prima facie triable case and had therefore, recommended for closure. However, on the orders of the Senior Superintendent of Police, the FIR was registered and the matter was investigated. No criminal breach of trust was found and the charge sheet was submitted only against Gurmeet Singh under section 420 I.P.C.

c) The complainant Nasib Singh had clearly deposed that he had paid Rs 4 lacs cash to Gurmeet Singh and had also given a cheque of Rs 2 lacs favouring Gurmeet Singh which he had encashed.

d) During trial the present appellant as also the other co-accused Gurpreet Singh were summoned in April 2014 invoking powers of Section 319 Cr.P.C., for being tried under Section 420 I.P.C. It may be noted that no specific allegations of cheating are made against these two accused as they were both settled abroad in Italy.

e) The complainant Nasib Singh entered into a compromise with the main accused Gurmeet Singh which was filed before the learned Magistrate and the same was accepted vide order dated 26.09.2014 and the alleged offence being of financial transaction stood compounded. Proceedings against Gurmeet Singh were closed.

f) Right from 2014, the present appellant and other co-accused Gurpreet Singh who were in Italy were being summoned by the Court. The appellant was declared proclaimed offender. The appellant applied before the High Court challenging the order declaring him proclaimed offender and also filed a 482 Cr.P.C. petition for quashing of the proceedings wherein, he also filed the compounding order of 26.09.2014.

g) The High Court merely perused the FIR and noting the fact that the name of the appellant was mentioned in the FIR, declined to exercise the inherent power under Section 482 Cr.P.C.”

Quite forthrightly, the Bench then also makes it abundantly clear in para 20 that, “In our considered view, the High Court erred in firstly not considering the entire material on record and further in not appreciating the fact that the dispute, if any, was civil in nature and that the complainant had already settled his score with the main accused Gurmeet Singh against whom the proceedings have been closed as far back as 26.09.2014. In this scenario, there remains no justification to continue with the proceedings against the appellant.”

Finally, the Bench then holds in para 21 that, “For all the reasons recorded above on facts and on law both the present appeals deserve to be allowed. The impugned proceedings arising out of FIR No.179 dated 29.10.2009, PS Fatehgarh Sahib and all consequential proceedings stand quashed qua the appellant.”

In a nutshell, we thus see that the Apex Court makes it amply clear that criminal cases having overwhelmingly and pre-dominatingly a civil flavour stands on different footing for purpose of quashing. The Bench  very rightly points out in para 17 that, “A three-Judge Bench of this Court in Gian Singh vs State of Punjab (2012) 10 SCC 303 again summarized the legal position which emerged regarding powers of the High Court in quashing criminal proceedings in exercise of power under Section 482 Cr.P.C. It observed that criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on a different footing for the purpose of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry etc or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. Similarly, briefly stated, while referring to another relevant case law, it is then specified in para 18 that, “A three-Judge Bench of this Court in Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur and others v. State Gujarat and others (2017) 9 SCC 641 laid down the broad principles for exercising the inherent powers of the High Court under section 482 Cr.P.C.” What the Apex Court has held must be complied with accordingly by all the courts!

Sanjeev Sirohi

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