ORDER
K.L. Shrivastava, J.
1. This is an application under section 482 of the Criminal Procedure Code, 1973 (for short ‘the Code’) for quashing the proceedings in Criminal Case No. 375 of 1987 pending in the Court of Judicial Magistrate, First Class, Maheshwar.
2. Circumstances giving rise to the application are these : On the basis of a written report lodged at P.S. Maheshwar by Govind Tiwari, Advocate, Maheshwar, the police on 24-7-1987 filed a challan under section 420, Indian Penal Code against the petitioner.
3. According to the report the petitioner on 13-1-1987 borrowed Rs. 3000/- from the said Advocate and executed a document assuring him that he would repay the loan on receipt of money from Mandleshwar Court. However, despite haying received a cheque from the Court on 9-3-1987 and having withdrawn the amount, the petitioner despite persistent demands, has been evading payment and ultimately on 29-4-1987 when the petitioner had come to the office of the non-applicant he on being told that he should not cheat, he filthily abused him and threatened him with life in case demand for the money is made in future.
4. According to the petitioner, the non-applicant Govind Tiwari was his counsel in the claim case No. 49/86 (old Number being 114/84) pending before the Motor Accidents Claims Tribunal, Mandleshwar. The said claim case was disposed of in the Lok Adalat and compensation in the sum of Rs. 6,000/- was awarded. It was agreed that the non-applicant would be paid 71/2% of the actual claim allowed. He, however, insisted on 50% of the claim being paid to him and on refusal has prepared the document in question on one of the blank papers which he had got signed by the petitioner earlier in connection with the said claim case.
5. The learned Magistrate after complying with the requirements of section 240 of the Code framed charges against the petitioner not only in respect of offence under section 420 but also under section 506, Part II of the Indian Penal Code.
6. The petitioner preferred a revision petition in the Court of Session, West Nimar, Mandleshwar against the framing of charges, against him. His contention that the dispute is essentially of civil nature and no offence is constituted has been negatived and the revision petition has been dismissed (vide order dated 1-2-1988 passed by the Sessions Judge in Criminal Revision No. 4/88).
7. The petitioner, by the present petition seeks quashing of the proceedings on the ground that no offence is constituted and at any rate the dispute being of civil nature, continuance of the proceedings constitutes abuse of the process of the Court.
8. The point for determination is whether the application deserves to be allowed.
9. The contention of the learned counsel for the petitioner is that the dispute as to loan is of civil nature and the non-applicant in obtaining the document of loan has misused his position as an advocate. According to him neither the written report lodged by the latter nor the material collected during investigation reveals the mens rea for the offence under section 420, Indian Penal Code. It is further urged that in the circumstances, the allegations do not constitute any offence under section 506, Part II, Indian Penal Code.
10. The contention of the learned counsel for the State is that the material on record is sufficient to sustain the charges and at any rate no exceptional case for interference in exercise of the powers under section 482 of the Code having been made out the application deserves the fate of dismissal.
11. Civil liability must be distinguished from criminal liability. As for the offence under section 420, Indian Penal Code actus reus and mens rea both must concur and in the absence of requisite mens rea, no criminal liability thereunder can be fastened.
12. It may be pointed out that section 415, Indian Penal Code defining ‘cheating’ is in two parts. The first part relates to property and the second part relates to act or omission as a consequence of deception (vide Manger M’s case, AIR 1951 Nag. 315).
13. A breach of contract, depending on the facts and circumstances of a given case, may give rise only to civil liability or it may give rise to civil as well as criminal liability. Where contract to purchase some property is broken by the intending vendee due to subsequent rise in prices, it constitutes a case purely of civil nature. For the offence of cheating punishable under section 420, Indian Penal Code mens rea or guilty mind must exist at the very inception. Vide Tahabingh’s case, 1982 M.P.W.N. 8.
14. Where the machinery of criminal law is set in motion with the motive of securing speedy remedy in respect of civil liability or for wreaking private vengeance, it amounts to abuse of the process of the Court and the provision in section 482 of the Code may be invoked. In this connection the decision in Shy am Sunder Banka’s case, 1983 MPLJ 869 = 1984 JLJ 284 is pertinent.
15. It may be pointed out that in the absence of proper material the forum of criminal Court must not be permitted to be availed of. At different stages of a criminal proceeding the material on record has to be differently tested. Care has to be taken even at the initial stages of complaint and intelligent interest must be taken so that the interest of the absentee accused is not totally ignored. Though the material at the initial stage is not to be critically examined, it must be such as to furnish to the Magistrate the basis for opinion that there is sufficient ground for proceeding (vide section 204 of the Code). In this connection reference may usefully be made to the decisions in Onkar Prasad’s case, (1981) (I) MPWN 118 and Dabendra Nath’s case, AIR 1972 SC 1607. It may be pointed out that even at this stage on the material on record a Magistrate can accept the plea of self-defence and dismiss the complaint (vide Vadilal’s case, AIR 1960 SC 1113.) However, it may be stated that any prejudging the case resulting in placing the prosecution out of Court without hearing according to law has also to be avoided.
16. It the stage of charge the material has to be such as to furnish a foundation for strong suspicion against the accused (vide Ramesh Singh’s case, AIR 1977 SC 2018). As pointed out in paragraph 43 of the decision in R.S. Nayak v. A. R. Antulay and Ors., 1986 C.CrJ. (SC) 313 in spite of the difference in the language of the three sections 227, 239 and 245 of the Code providing for discharging an accused in different cases, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. The decision in Stree Atyachar Virodhi Parishad’s case, 1989 MPLJ (S. C.)366 is also pertinent.
17. For the ultimate verdict or finding of guilt, the law requires proof beyond reasonable doubt and the strongest suspicion can be no substitute for such proof. Therefore, despite the fact that the accused has not been discharged under section 245 of the Code and the Magistrate is of the view that it could not be said that no case against the accused has been made out, which, if unrebutted, would warrant his conviction or the Sessions Judge not acquitting the accused under section 232 of the Code has required him to enter upon his defence, he is, even in the absence of any further material, free to reassess the material and hold that it does not constitute the proof required. It may be remembered that if the material on record furnishes room for reasonable doubt as to whether the defence version may be true, the prosecution cannot be said to have proved its case beyond reasonable doubt and the accused is, in law, entitled to the benefit and to an acquittal, despite section 105 of the Evidence Act.
18. It is true that the discretion under section 482 of the Code though very wide is not unlimited. Regarding the powers under the provision the decision in Punam Chand’s case, 1987 MPLJ 87 and the Full Bench decision in Sher Singh’s case, 1989 MPLJ (KB.) 116 = 1989 MPJR 22 wherein several Supreme Court decisions have been noted, make an illuminating reading. It is well-settled that once it is found that the facts and circumstances of the case place it in the category of exceptional case coming within the coverage of section 482 of the Code, no impediment can be urged as imsurmountable. The decision in Rameshwar’s case, 1987 C.CrJ. (M.P.) 19 may also be usefully perused.
19. In the decision in State of Bihar v. Muradali Khan, AIR 1989 SC 1 pointing out that section 210(1) of the Code would not be attracted where cognizance of the offence can only be taken on the complaint of the officer mentioned in section 55 of the Wild Life Protection Act, 1972 with reference to section 482 of the Code it has been observed thus in paragraph 6 :-
“It is trite that jurisdiction under section 482, Criminal Procedure Code which saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon any enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rule to regulate that jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort of criminal proceedings would, in the circumstances, amount to an abuse of the process of the Court or not.”
Extremes have to be avoided. The provision in section 482 of the Code should not be too widely construed so as to subplant the normal procedure. But it has also to be remembered that it is not to be so narrowly construed as to defeat the very object with which it has been brought on the Statute Book.
20. Reference at this stage may be made to the Apex Court’s decision in Madhav Rao Jiwaji Rao Scindia’s case, 1988 (I) MPWN 225. Therein pointing out that breach of trust need not always amount to a criminal offence, in the context of the dispute between the mother and the son, it has been observed as under :-
“The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”
21. In the instant case there is nothing to hold that there was mens rea at the inception. A perusal of the statement of Govind Tiwari, Advocate recorded under section 161 of the Code does not show that the petitioner has the requisite mens rea when the alleged loan was taken by him from the former and the document in respect of the transaction was executed. He has expressly stated that it was subsequently at the time of withdrawal of the money from the Bank that dishonesty crept in the mind of the petitioner and he stated that he would pay the amount on the following day.
22. The material collected during investigation further reveales that it was only when the non-applicant threatened the petitioner with report against him in respect of an offence under section 420, Indian Penal Code that the petitioner threatened him with life. Apart from the fact as to whether the non-applicant was legally entitled to demand Rs. 3000/- from the petitioner at the threat of action under section 420, Indian Penal Code against him, the threat by the petitioner in the context was a mere word and there is no offence under section 506, Part II of the Indian Penal Code.
23. It may be noted that ‘Criminal Intimidation’ is defined in section 503, Indian Penal Code and is made punishable under section 506 ibid which is in two parts. The second part relates to threat to cause death or grievous hurt.
24. In the decision in Nobal Mohandas’s case, 1989 CH.L.J. 669 it has been pointed out that for the offence under section 506, Part II, Indian Penal Code the threat should be real one and not just a mere word and the person uttering it does not mean what he says and also when the person at whom the threat is launched does not feel threatened actually. In the decision in Habibullah’s case, 1961 MPLJ 1190, it has been pointed out that the most important ingredient of the offence of criminal intimidation is that there should be an intention to cause alarm or to cause the person threatened to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do and in the words used there should be a clear indication as to what the accused was going to do and the complainant must feel as a reasonable man that the accused was going to convert his words into action. The person allegedly threatened was Tahsildar. The decision in Baboo Khan’s case, 1987 Manisa-70 (M.P.) may also be usefully perused.
25. In the instant case according to the non-applicant, who is an Advocate, he had advanced Rs. 3000/- to the petitioner. Whether the non-applicant should have entered into a transaction of the sort with his client is altogether a different matter. However, it is common ground that the sum in question bears some relation to the claim case. The case set up by the petitioner, when viewed in this background, does tilt the balance in his favour.
26. On a cumulative consideration of the facts and circumstances of the case it has to be held that the dispute is essentially of civil nature and in the light of the observations of the Apex Court in the decision in State of Bihar vs. Muradali Khan (supra). I am clearly of the view that continuance of the criminal proceedings would amount to abuse of the process of the Court.
27. In the result, the application is allowed. The charges framed against the petitioner are quashed and the criminal proceedings in the connected criminal case against him are dropped.