HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. 561-A Cr P C No. 38 OF 2007 Smt. Anju Vohra Petitioners Ritin Nagpal Respondent !Mr. Virender Bhat, Advocate ^Mr. P. S. Chandel, Advocate Honble Mr. Justice Virender Singh, Judge Date: 02.01.2009 :J U D G M E N T:
Through the instant petition, petitioner- Smt. Anju Vohra is
seeking quashing of a complaint (Annexure-A) filed by the
respondent/ complainant, Ritin Nagpal, under Sections 405, 406,
420, 504 & 506 Ranbir Penal Code, the order (Annexure-D) vide
which a process has been issued against her to face the trial for the
offences punishable under Sections 420, 504 & 506 RPC and all
the consequential proceedings arisen therefrom.
Pursuant to notice, Mr. P. S. Chandel, Advocate, has
appeared for the respondent. Trial Court record has also been
received. However, Mr. Chandel does not intend to file any reply/
objections to the main petition.
I have heard learned counsel for both the sides and perused
the record.
Mr. Bhat submits that if one goes by the allegations as
contained in the complaint (Annexure-A) no offence of Section 420
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RPC is prima facie attracted as it is a case of pure and simple civil
transaction between the parties. According to learned counsel, it is
alleged in the complaint that the petitioner was short of funds in
completing the construction of her Banquet Hall and for which she
approached the respondent for financial help with a proposal that
Khana Khazana a firm being run by respondent would enjoy
exclusive catering of the functions to be held in the said Hall after
its completion and in this regard a settlement was arrived at
between the parties in which the respondent had to pay an amount
of Rs.7 lacs to the petitioner as refundable security. The learned
counsel then contends that the respondent had paid an amount of
Rs.7 lacs to the petitioner through a cheque. His grievance is that
the petitioner did not allow him to do the catering exclusively for
the functions and also did not give any share in the profits of the
Banquet Hall operations as per the settled terms.
Mr. Bhat contends that all these facts reflect that the
respondent had become the partner with the petitioner and, if at
all, some dispute has arisen between them, it could be determined
by the civil Court and not by the criminal Court. The extent of
share of either side can be taken care of by the civil Court only.
Therefore, prima facie, there cannot be any element of cheating at
all in the present transaction. At the same time, even if the
respondent was not given the right of catering exclusively as per
terms and conditions, it again would attract a civil dispute and
there is no tinge of criminality in it. On the basis of the aforesaid
submissions, Mr. Bhat submits that issuance of process against
the petitioner for the offence punishable under Section 420 RPC is,
thus a sheer abuse of process of the Court.
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With regard to Sections 504 & 506 RPC, the other two
offences for which the process is also issued against the petitioner,
contention of Mr. Bhat is that bare perusal of compliant does not
make out a case falling within the mischief of these offences. What
are the derogatory remarks are missing in the complaint and,
therefore, nothing is insulting. Even otherwise, the complainant in
his preliminary evidence does not say a word attracting these two
Sections. Therefore, summoning order for these offences is again
bad to that extent also.
Mr. Bhat lastly submits that no doubt the present complaint
is filed for Sections 405 & 406 RPC also alongwith the aforesaid
three offences and the petitioner can be summoned for the said
offences, if prima facie, the present case attracts those offences,
but from the complainant itself or from the preliminary evidence
produced by the respondent, even these two offences are also not
made out and, therefore, even by stretching the present complaint
vis-`-vis these two offences, no process can be issued. Otherwise
also, the learned trial Court itself did not find any material
available for the same.
Mr. Bhat, thus, prays for quashing of the complaint, the
summoning order and all other proceedings arisen therefrom by
invoking the inherent jurisdiction of this Court.
Mr. Chandel, while refuting the submissions advanced by
Mr. Bhat, submits that the respondent had not become the partner
of the firm as yet and, therefore, there cannot be any question of
civil dispute in this case. According to him, the petitioner had the
bad intention in her bosom right from the very outset when she
had asked for the money from the complainant for the purpose of
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construction of Banquet Hall to which the respondent agreed, but
on its completion she backed out. This all, prima facie, brings the
present case within the mischief of cheating. Handing over of Rs.7
lacs by the respondent to the petitioner is an off shoot of that act
only and therefore simply that the said amount was handed over to
the petitioner by a cheque by the respondent does not go to say
that the firm was established and a civil dispute has arisen
between the parties. Therefore, the element of cheating, prima
facie, is made out on record and the process has been rightly
issued against her to face trial for the offence punishable under
Section 420 RPC.
So far as the other two offences viz., 504 & 506 RPC are
concerned, Mr. Chandel has half heartedly argued that these
offences are, prima facie, attracted atleast for the purpose of
issuing of process as it is not the stage to deeply appreciate the
case of the complainant which he has yet to prove to the hilt by
producing the entire evidence.
Mr. Chandel lastly submits that assuming for the sake of
argument although not admitted, if this Court finds that the
summoning order impugned herein is bad with regard to Sections
420, 505 & 506 RPC, the ingredients of Sections 405 & 406 RPC
are, prima facie, complete and, therefore, the petitioner may be
ordered to be summoned for these two offences atleast. To
strengthen his arguments on this aspect, he relies upon two
judgment of Apex Court rendered in case Velji Raghavbji Patel v.
The State of Maharashtra AIR 1965 Supreme Court 1433 (V 52
C 235).
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After giving my thoughtful consideration to the rival
contentions advanced by learned counsel for either side and going
through the entire record minutely, I am of the view that the
petitioner has a cause to pray for the relief sought herein.
There is no doubt that at this stage meticulous examination
of evidence of the complainant is not legally required, but at the
same time, if the complaint and the preliminary evidence led by the
complainant in support of his case, no offence as alleged is prima
facie made out, the Court is left with no option but to quash the
proceedings. After all issuance of process curtails the liberty of a
person and this right is not to be infringed just in a casual manner.
Facing a trial as an accused has its far reaching effect.
Entirety of the present case leaves no room of doubt in my
mind to observe that prima facie no offence whatsoever as
projected or alleged in the main complaint or even in the
preliminary evidence is made out qua the petitioner. The grievance
of the respondent is that he is not getting his due share after
entering into an agreement with the petitioner even after investing
a good amount from his side for the construction of the
Banquet Hall. It is his categoric case that after the completion of
the construction, the operation of the Banquet Hall was to be run
by the respondent for the purpose of catering in that some share
had to go to the petitioner. What was the share is not known to
the Court. The said contract has not been acted upon by the
petitioner. This simplicitor attracts a civil dispute and it appears
that under the garb of present complaint, the respondent wants to
settle his score, which cannot be legally allowed. Partnership can
be oral or in writing and, therefore, I am not in agreement with Mr.
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Chandel that the firm was yet to be formed. In the present case, as
per the settlement arrived at, the domain was to be transferred for
the purpose of running the business. It does not attract the
offence of Section 420 RPC at all for which the petitioner stands
summoned.
I have examined the present case vis-`-vis Sections 405 &
406 RPC also. It had become a joint property as is clear from the
averments and in such a situation there could be any entrustment
in this case so as to bring it even remotely for the purpose of
attracting Sections 405 & 406 RPC. As stated above, it is,
otherwise, a case of sharing of profit simply and this is the bone of
contention. This controversy can be settled by way of filing a civil
suit before the competent Court, if the respondent so chooses, but
not through the medium of the instant criminal complaint.
Therefore, in my considered view, neither Section 420 RPC nor
Sections 405 & 406 RPC are, prima facie, attracted in this case.
So far as other offences viz., 504 & 506 are concerned, even
Mr. Chandel has joined issue on this aspect half heartedly. I am
also of the view that these offences are neither attracted from the
allegations as contained in the complaint nor from the preliminary
evidence led by the complainant.
To be fair to Mr. Chandel, I may observe here that the
judgment cited and relied upon by him is entirely distinguishable
on facts and does not advance his case at all. Rather the present
case squarely falls within the fore corners of celebrated judgment of
Apex Court rendered in case State of Haryana and others v. Ch.
Bhajan Lal and others AIR 1992 SC 604, in which their
Lordships have enumerated seven illustrations, in which the
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complaint/ F.I.R., can be quashed. The present case falls within
one of the illustrations, which reads thus:-
1) Where the allegations made in the First
Information Report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
As a sequel to the aforesaid discussion, the net result is that
the present case calls for invoking the inherent jurisdiction of this
Court under Section 561-A of the Code of Criminal Procedure for
the purpose of quashing of complaint (Annexure-A), summoning
order (Annexure-D) and the consequential proceedings arisen
therefrom. Ordered accordingly.
( Virender Singh )
02.01.2009 Judge
Jammu
Narinder