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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
JUDGMENT
DINESH KUMAR ACHARYA vs. STATE OF RAJASTHAN &
ANR.
1. S.B.CriminaL Misc. Petition No.186/2010
PAWAN ACHARYA & ANR. vs. STATE OF
RAJASTHAN & ANR.
2. S.B.CriminaL Misc. Petition No.250/2010
under section 482 Cr.P.C. For quashing of
FIR No.150/2009 of Police Station
Nagaur, for offences under section 406 and
420 IPC.
Date of Judgment: 9 November, 2010
PRESENT
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr.P.N.Mohnani for the petitioners.
Mr.A.R.Nikub, Public Prosecutor.
Mr.Ashok Chhangani for respondent No.2.
BY THE COURT :
The petitioners Dinesh Kumar Acharya s/o Parasram r/o
Nakas Gate, Behind Traffic Police Station, Nagaur and Pawan
Acharya s/o Narayan and Harish Acharya s/o Parasram have
challenged the registration of a criminal case by way of FIR No.
150/2009 of Police station Nagaur and further investigation
which is under way, for the offences under section 406 and 420
IPC, by way of quashing the above FIR and further
investigation.
The facts leading to the present petition are as under:
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That the first information report aforesaid has been
registered on a complaint made by the Assistant Engineer,
Ajmer, Vidhyut Vitran Nigam Ltd., Nagaur (hereinafter referred
to as ‘the Nigam’) stating that a contract for collection of
electricity bills was executed on 07.10.2005 in favour of the
agency as Jai Maa Electric Labour & Contractor Sahkari
Samiti, Nagaur (hereinafter referred to as ‘the Samiti’), of which
the petitioner No.1 Pawan Acharya being its president and
Harish Acharya as being treasurer and Dinesh Acharya as being
its Secretary, who had furnished the requisite undertaking
that in terms of the work order it was incumbent for the said
Samiti to have deposited the collected amount of each day in
the Bank account of the complainant Nigam on the very day
and to produce the receipts the next day in the Nigam Office and
also to furnish the details of the payment received every day.
The complainant has alleged that even while collecting
the payments the Samiti started retaining the counter foils
and stopped furnishing the details of the deposited amount to
the Nigam according to the complainant by 23.03.09 the said
collecting agency retained an amount of Rs. 26.77 lacs as
received from 2502 consumers . It was submitted by the
complainant that the contract with the Samiti has been
discontinued but proceedings are required to be taken against
the Samiti for embezzlement of money collected from the
consumers and for cheating.
On the basis of above first information report, criminal
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case No.150/ 09.04.09 was registered at Police Station Nagaur
and the investigation is pending.
The learned counsel for the petitioners contended that as
a matter of fact the membership of the petitioners in the said
Samiti had been terminated way back in the months of April and
May 2007 and the facts had also been recorded in the
concerned register of the Registered Cooperative Societies to
the effect that there had been handing over and taking over of
charges of the newly constituted Samiti on 20.05.07 and,
therefore, the present petitioners have no concern with the said
collection agency. It is also submitted that the amount referred
in the first information report relates to the months of December
2008 to March 2009 i.e. which is of after the termination of the
membership of the petitioners with the said Samiti and hence
the investigation in the above criminal case cannot be continued
and is liable to be quashed.
Per contra, the learned counsel for the respondents
contended that the investigation in the above matter is pending
and the necessary documents are required to be produced by
the petitioners.
During the course of arguments it has also been
contended by the learned counsel for the petitioners that later on
Assistant Engineer of the Nigam filed a civil suit for the recovery
of the said amount in the competent court, that further weakens
the investigation process in the criminal case. A copy of the
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plaint has been submitted for perusal.
The learned counsel for the petitioners, while arguing his
case, relied on the following decisions :-
1. B.Suresh Yadav vs. Sharifa Bee [2005 Cr.L.J. 431]
2. Vir Prakash Sharma vs. Anil Kumar Agarwal [( 2007) 7
SCC 373] and3. All Cargo Movers (I) Pvt.Ltd. vs. Dhanesh Badarmal Jain &
Anr.[2007 AIR SCW 6667]Learned counsel for the respondent on the other hand ,
while advancing his argument relied on the following
judgments :-
1. Mohd. Ibrahim vs. State of Bihar [(2009)8 SCC 751]
2. Jimmy Sudarshan Purohit vs. Sudarshan Sharad Purohit
[(2005) 13 SCC 410]3. Sunita Jain vs. Pawan Kumar Jain [(2008) 2 SCC 705]
4. State of Maharashtra vs. Sayed Mohammed Masood
[(2009) 8 SCC 787]5. Central Bureau of Investigation vs. K.M. Sharan [ (2008)
4 SCC 471] and6. Pratibha vs. Rameshwari Devi [( 2007) 12 SCC 369]
I have gone through the judgments cited by the learned
counsel for both the parties and also perused the copy of the
plaint filed by the learned counsel for the petitioners.
The contours of the power under section 482 Cr.P.C. have
been explained in a series of decisions by the Hon’ble Supreme
Court. In State of Haryana vs. Bhajan Lal [1992 Supp (1)
5SCC 335] a question came up for consideration as to whether
the quashing of the FIR filed against the respondent Bhajan Lal
for the offence under section 161 and 165 IPC and section 5 (2)
of the Prevention of Corruption Act was proper and legal ?
Reversing the order passed by the High Court the Hon’ble
Supreme Court explained the circumstances under which such
power could be exercised. Apart from reiterating the earlier
norms laid down by the Hon’ble Supreme Court, it was further
explained that such power could be exercised where allegation
made in the FIR or complaint are so absurd and innocently
improbable, on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for
proceeding against the accused. No doubt at the state of
quashing the FIR or complaint the High Court is not justified in
embarking upon an enquiry as to the probability, reliability or
genuineness of the allegation made therein.
It is not unusual / unbecoming that an incident may give
rise to a cause of action for the civil as well as criminal
proceedings at a time. Institution of civil proceedings in such a
case does not distract or take away remedy of criminal side.
The fact that accused petitioners were authorised to collect
payment against the bills only up to certain period, cannot be
disbelieved at this stage. Even if it is assumed that there was
some express or implied consent for extension of the term of
contract, still withholding the collection for unduly long period
in violation of the conditions of the contract and further without
satisfactory explanation may lead to an inference of dishonesty
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and the result of the investigation only will establish the true
nature of the dispute i.e. whether it is pure civil dispute or some
criminal intent was there behind it.
Quashing of first information report at investigation stage
is possible only in a rarest of the rare cases where it suffers from
some inherent improbability or even if accepted on its face
value , will not constitute any offence or whether investigation
itself is patently barred by law. The case in hand is not of such a
nature so as to call for interference at this stage, in view of the
provisions enunciated by the Hon’ble Supreme Court in the case
of State Haryana vs. Bhajan Lal (supra).
In B.Suresh Yadav ‘s case (supra) the Hon’ble apex court
found no dishonest concealment of facts and two contrary and
inconsistent stand were taken by the complainant.
In Vir Prakash Sharma’s case (supra) the Hon’ble
Supreme Court held that non payment or unpayment of price
of goods by itself does not amount to cheating or breach of trust
and it had to be essentially a civil dispute.
In All Cargo Movers (I) Pvt. Ltd.’s case (supra) the
Hon’ble Supreme Court held that breach of contract simplicitor
does not constitute an offence and the criminal complaint was
filed after one year of filing the civil suit. The Hon’ble Supreme
Court quashed the criminal proceedings.
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The facts of the present case are different. In the present
case, the amount was collected by the Samiti on behalf of the
Nigam from the consumers and they were not entitled to retain
or keep the amount collected on behalf of the Nigam with
them for such a long period. Therefore,in view of the principles
enunciated by the Supreme Court in State of Haryana’s case
(supra) the present case is not of such a nature so as to call
for interference at this stage under section 482 Cr.P.C.
SB Cri.Misc. Petition No.186/2010 filed by Dinesh Kumar
Acharya and SB Cri.Misc. Petition No.250/2010 filed by Pawan
Acharya and Harish Acharya are devoid of any force and are
liable to be dismissed.
Accordingly, both the petitions are hereby dismissed.
(KAILASH CHANDRA JOSHI),J.
L.george