{"id":39893,"date":"2010-08-19T00:00:00","date_gmt":"2010-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajeswar-tiwari-ors-vs-nanda-kishore-roy-on-19-august-2010"},"modified":"2016-07-06T08:57:27","modified_gmt":"2016-07-06T03:27:27","slug":"rajeswar-tiwari-ors-vs-nanda-kishore-roy-on-19-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajeswar-tiwari-ors-vs-nanda-kishore-roy-on-19-august-2010","title":{"rendered":"Rajeswar Tiwari & Ors vs Nanda Kishore Roy on 19 August, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rajeswar Tiwari & Ors vs Nanda Kishore Roy on 19 August, 2010<\/div>\n
Bench: P. Sathasivam, B.S. Chauhan<\/div>\n
                                                                                             REPORTABLE\n                         IN THE SUPREME COURT OF INDIA\n\n                        CRIMINAL APPELLATE JURISDICTION\n\n                        CRIMINAL APPEAL NO. 779              OF 2007\n\n\nRajeswar Tiwari & Ors.                                             .... Appellant (s)\n\n                    Versus\n\nNanda Kishore Roy                                                      .... Respondent(s)\n\n\n\n                                          J U D G M E N T\n<\/pre>\n
P. Sathasivam, J.\n<\/p>\n
1)      This    appeal       is     directed       against   the    final       order    dated<\/p>\n
31.01.2007 passed by the High Court of Calcutta in C.R.R. No. 2774<\/p>\n
of   2005   with     C.R.R.       No.    2772   of    2005   whereby      the    High    Court<\/p>\n
dismissed the applications filed under Section 482 of the Criminal<\/p>\n
Procedure    Code     (hereinafter         referred     to   as    `the    Code’)       by   the<\/p>\n
appellants     to   quash     the       criminal     proceedings    pending      before      the<\/p>\n
Judicial Magistrate, 2nd Court, Asansol, being Case No. C\/438 of 2003<\/p>\n
under Section 406\/120B of IPC corresponding to T.R. No. 167 of 2003.<\/p>\n
2)      The facts leading to the present appeal are as under:<\/p>\n
a)      In 1973, the respondent joined the Indian Iron and Steel<\/p>\n
Company Ltd., (renamed IISCO Steel Plant), a unit of Steel Authority<\/p>\n
of India Ltd., at Burnpur, near Asansol in West Bengal.                         In 1989, he<\/p>\n
was appointed as Assistant Foreman. In 1991 he filed a writ petition<\/p>\n
being C.O. No. 9954(W) of 1991 before the High Court of Calcutta<\/p>\n
                                                                                              1<\/span>
\nseeking direction for considering his claim for promotion to the<\/p>\n
post of Senior            Mechanic      alleging        that    he   was     superseded      by his<\/p>\n
juniors.        On 19.01.1995, the respondent filed another writ petition<\/p>\n
praying for interim order restraining the appellants from filling up<\/p>\n
the post of Assistant Foreman.                     The High Court, in the said writ<\/p>\n
petition, directed for maintaining status quo.                               In June 1996, the<\/p>\n
respondent filed a contempt petition on the ground of violating the<\/p>\n
said    status      quo    order      by    the   appellants         herein.       In    the       said<\/p>\n
contempt petition, the High Court directed for personal appearance<\/p>\n
of   the      concerned        officers     of    the    Company       and     ultimately         after<\/p>\n
hearing them, dismissed the contempt petition.<\/p>\n
b)           On 06.12.2003, the respondent filed a private complaint being<\/p>\n
C\/438    of     2003   before         the   Additional         Chief    Judicial       Magistrate,<\/p>\n
Asansol under Sections 461\/468\/406 read with Section 120B of IPC<\/p>\n
against       the   appellants         herein     alleging       discrimination         by    unduly<\/p>\n
deducting Rs.1,640\/- p.m. from the monthly salary as Income Tax.                                    It<\/p>\n
was also stated in the complaint that the amount so deducted was not<\/p>\n
deposited with the Income Tax Authority and should be refunded back.<\/p>\n
It was also mentioned in the complaint about the wrongful deduction<\/p>\n
of     the    amount      on     account     of    cooperative          loan    issued       by     the<\/p>\n
appellants\/Company.              On examination of the witnesses under Section<\/p>\n
200 of the Code of Criminal Procedure, the Magistrate directed the<\/p>\n
Officer-in-Charge              P.S.    Hirapur     to     cause        an    inquiry    into        the<\/p>\n
allegations made in the complaint.                        On 30.04.2004, the appellants<\/p>\n
                                                                                                     2<\/span>
\ninformed that the amount of income tax deducted in consonance with<\/p>\n
Section 192 of the Income Tax Act being deposited in due course as<\/p>\n
tax to the credit of employee\/respondent in terms of Section 199 of<\/p>\n
the Income Tax Act as uniformly done in respect of every employee<\/p>\n
and also produced Form No-16 of the respondent for the period from<\/p>\n
01.04.2003 to 31.03.2004.                On 15.07.2004 & 30.01.2005, the police<\/p>\n
submitted     two    inquiry        reports,     inter     alia,    stating    the    previous<\/p>\n
conduct of the respondent and also stated that the complaint in<\/p>\n
issue   is    civil       in    nature.         On   31.01.2005,      after     taking       into<\/p>\n
consideration        the       inquiry    reports     of    the    police,     the    Judicial<\/p>\n
Magistrate,       Asansol        directed       issuance     of    summons     against        the<\/p>\n
appellants for an offence under Section 406\/120B of the Indian Penal<\/p>\n
Code.        In   response          to   the    summons,     the     appellants       made     an<\/p>\n
application       under     Section      205    of   the    Code    before     the    Judicial<\/p>\n
Magistrate and the same was rejected by an order dated 26.07.2005.<\/p>\n
Subsequently, vide order dated 12.09.2005, the Judicial Magistrate<\/p>\n
issued warrant of arrest against the appellants.                             The appellants<\/p>\n
filed application being C.R.R. No. 2774 of 2005 before the High<\/p>\n
Court of Calcutta under Section 482 of the Code for quashing of the<\/p>\n
complaint and prayed for staying of proceedings in the complaint<\/p>\n
bearing   No.       C\/438      of    2003.     The   appellants      also     filed    another<\/p>\n
application under Section 482 being C.R.R. No. 2772 of 2005 seeking<\/p>\n
quashing of the order dated 12.09.2005.                      The High Court, by order<\/p>\n
dated   31.01.2007,         rejected      the    prayer    for     quashing    the    criminal<\/p>\n
                                                                                               3<\/span>
\nproceedings and disposed of both the applications with a direction<\/p>\n
to the trial Court to dispose of the matter within a period of six<\/p>\n
months.     Aggrieved by the same, the appellants have preferred this<\/p>\n
appeal by special leave before this Court.\n<\/p>\n
3)       Heard   Mr.   Ranjit   Kumar,   learned   senior   counsel   for   the<\/p>\n
appellants and Mr. Yashank Adhyaru, learned senior counsel for the<\/p>\n
respondent.\n<\/p>\n
4)   In order to test the claim of both the parties as well as the<\/p>\n
correctness of the impugned order of the High Court, it is useful to<\/p>\n
refer the details of the complaint dated 06.12.2003 filed by the<\/p>\n
respondent.      He described himself as an employee of ME Steel, IISCO,<\/p>\n
Burnpur and he made the following officers as accused persons:<\/p>\n
1. A.K. Jaiswas EDI\/C.Cum M.D. IISCO Ltd. Burnpur Works<\/p>\n
2. Rajeswar Tiwari GM [P&A]<\/p>\n
3. Robin Roy DGM (MM) SMS Deptt.\n<\/p>\n
4. P. Karmakar, AGM [MM] SMS Deptt.\n<\/p>\n
5. Sukumar Mukherjee, Manager Finance<\/p>\n
6. Shivaji Roy DGM [PL]<\/p>\n
7. Tarit Pal GM [IS]<\/p>\n
All are of IISCO Burnpur PS Hirapur Distt. Burdwan<\/p>\n
In the complaint, he mentioned about the filing of writ petition in<\/p>\n
1991 before the High Court of Calcutta and the order passed therein<\/p>\n
in 2003.     He also referred to his contempt petition before the High<\/p>\n
Court.     He alleged that due to the direction of the High Court,<\/p>\n
                                                                             4<\/span>
\nwhich was issued at his instance, the abovesaid officers entered<\/p>\n
into a criminal conspiracy and with a view to pressurize him for<\/p>\n
withdrawing the said contempt, starting giving threats to him in<\/p>\n
various manners.      According to him, due to such attitude towards<\/p>\n
him, the accused persons with a view to get their object fulfilled,<\/p>\n
started illegal deduction of Rs. 1640\/- per month from his monthly<\/p>\n
salary as income tax w.e.f. May 2003. In this way, the accused<\/p>\n
persons had deducted an amount of Rs. 13,120\/- from his salary on<\/p>\n
account of income tax and the said amount had not been deposited<\/p>\n
with the income tax authority.       The appellant also stated that he<\/p>\n
does not fall within the category of taxable income, and in any<\/p>\n
event, not to the tune of Rs. 1640\/. He also claimed that he sent a<\/p>\n
notice under registered post with acknowledgement due on 17.11.2003<\/p>\n
to accused Nos. 1 to 5 requesting them to return the money so<\/p>\n
deducted illegally from his salary.        On receipt of the notice, the<\/p>\n
accused persons abused him in the presence of witnesses and others<\/p>\n
and also threatened him with dire consequences.       He also pointed out<\/p>\n
that a sum of Rs. 3050\/- had been deducted from his salary illegally<\/p>\n
on account of cooperative loan although, on the previous month,<\/p>\n
deduction was only to the extent of Rs. 50.        With these allegations,<\/p>\n
he   claimed   that   accused   persons   have   committed   offence   under<\/p>\n
Sections 467, 468, 403 and 406 read with Section 120B IPC and prayed<\/p>\n
for issuance of summons.\n<\/p>\n
                                                                          5<\/span>\n<\/p>\n
5)   We have adverted to almost all the averments\/allegations made by<\/p>\n
the respondent herein in respect of accused nos. 1 to 5 who are<\/p>\n
appellants before us.      From this, we are able to understand that the<\/p>\n
respondent has grievance against the management in respect of his<\/p>\n
non promotion at the relevant time, moving to the High Court of<\/p>\n
Calcutta, obtaining certain orders, filing of contempt petition etc.<\/p>\n
It is also alleged that the appellants have deducted income tax to<\/p>\n
the extent of Rs. 1,640\/- per month from his monthly salary as<\/p>\n
income tax but according to the respondent, he was not liable to pay<\/p>\n
income tax.\n<\/p>\n
6)   Mr. Ranjit Kumar, learned senior counsel for the appellants has<\/p>\n
pointed out that there is no lapse on their part in respect of the<\/p>\n
allegation relating to non promotion of the respondent.                   In fact,<\/p>\n
according to him, the respondent had been held guilty by the CBI in<\/p>\n
a case for using fabricating documents for the purpose of promotion.<\/p>\n
He also pointed out that though the High Court has permitted to take<\/p>\n
action against him according to law, the management did not take any<\/p>\n
action against him.       He also pointed out that in view of statutory<\/p>\n
provisions of the Income Tax Act, particularly, Sections 192, 200,<\/p>\n
206, 271C and 276B-BB, like other employees, the respondent was<\/p>\n
liable   to    pay    income   tax    and   the    appellant    as   an    employer<\/p>\n
statutorily bound to deduct an amount from his salary as per the<\/p>\n
above provisions.        Whatever may be, inasmuch as appellants have<\/p>\n
performed     their   statutory      obligation,    it   is    not   a    case   for<\/p>\n
                                                                                  6<\/span>
\nadjudication    by    the    Magistrate      on    criminal       side.     He    further<\/p>\n
contended    that     the    High    Court     also      failed     to    exercise       its<\/p>\n
jurisdiction under Section 482 for quashing the summoning order.                          On<\/p>\n
the other    hand,    Mr.    Yashank   Adhyaru      supported      the    order    of the<\/p>\n
Magistrate    based    on    the    complaint      of    the   respondent       and   also<\/p>\n
submitted    that    the    High    Court    has   not    committed       any    wrong    in<\/p>\n
rejecting the petition under Section 482 of the Code.<\/p>\n
7)   At the relevant time, i.e on 06.12.2003, when the respondent<\/p>\n
made a complaint to the Magistrate, he was an employee of IISCO,<\/p>\n
Burnpur.    There is no dispute about the same.\n<\/p>\n
8)   Chapter XVII of the Income Tax Act deals with Collection and<\/p>\n
Recovery of Tax.       Section 192 speaks about deduction at source from<\/p>\n
Salary.\n<\/p>\n
     “192. (1) Any person responsible for paying any income
\n     chargeable under the head “Salaries” shall, at the time of
\n     payment, deduct income-tax [***] on the amount payable at
\n     the average rate of income-tax [***] computed on the basis
\n     of the [rates in force] for the financial year in which
\n     the payment is made, on the estimated income of the
\n     assessee under this head for that financial year.”<\/p>\n
Section 200 relates to duty of person deducting tax.<\/p>\n
 “200. (1) Any person deducting any sum in accordance with [the
\n foregoing provisions of this Chapter shall pay within the
\n prescribed time, the sum so deducted to the credit of the
\n Central Government or as the Board directs.\n<\/p>\n
 (2) Any person being an employer, referred to in sub-section
\n (1A) of section 192 shall pay, within the prescribed time, the
\n tax to the credit of the Central Government or as the Board
\n directs.\n<\/p>\n
 (3) Any person deducting any sum on or after the 1st day of
\n April, 2005 in accordance with the foregoing provisions of<\/p>\n
                                                                                          7<\/span>
\n this Chapter or, as the case may be, any person being an
\n employer referred to in sub-section (1A) of section 192 shall,
\n after paying the tax deducted to the credit of the Central
\n Government   within  the   prescribed   time,  [prepare   such
\n statements for such period as may be prescribed] and deliver
\n or cause to be delivered to the prescribed income-tax
\n authority or the person authorised by such authority such
\n statement in such form and verified in such manner and setting
\n forth such particulars and within such time as may be
\n prescribed.”\n<\/p>\n
\nSection 206 mandates persons deducting tax to furnish prescribed<\/p>\n
returns.\n<\/p>\n
    “206. (1) The prescribed person in the case of every
\n    office of Government, the principal officer in the case of
\n    every company, the prescribed person in the case of every
\n    local authority or other public body or association, every
\n    private employer and every other person responsible for
\n    deducting tax [before the 1st day of April, 2005] under
\n    the foregoing provisions of this Chapter [shall, within
\n    the prescribed time after the end of each financial year,
\n    prepare and deliver or cause to be delivered] to the
\n    prescribed income-tax authority [or such other authority
\n    or agency as may be prescribed, such returns in such form
\n    and verified in such manner and setting forth such
\n    particulars as may be prescribed:”\n<\/p><\/blockquote>\n
Section    271   C   deals   with   penalty   for   failure   to   deduct   tax   at<\/p>\n
source.\n<\/p>\n
    ” 271C. [(1) If any person fails to–\n<\/p><\/blockquote>\n
      (a)deduct the whole or any part of the tax as required
\n      by or under the provisions of Chapter XVII-B; or\n<\/p><\/blockquote>\n
      (b)pay the whole or any part of the tax as required by
\n      or under–<\/p><\/blockquote>\n
         (i)sub-section (2) of section 115-O; or\n<\/p>\n
           (ii)the second proviso to section 194B,<\/p>\n
                                                                                  8<\/span>
\n       then, such person shall be liable to pay, by way of
\n       penalty, a        sum    equal to the amount of tax which
\n       such person failed to deduct or pay as aforesaid.”<\/p>\n
Section 276 B and 276 BB speaks about failure to pay tax to the<\/p>\n
credit of Central Government and failure to pay the tax collected at<\/p>\n
source.\n<\/p>\n
       “276B. If a person fails to pay to the credit of the
\n     Central Government,–\n<\/p><\/blockquote>\n
         (a)the tax deducted at source by him as required by or
\n         under the provisions of Chapter XVII-B; or\n<\/p><\/blockquote>\n
         (b)the tax payable by him, as required by or under–<\/p><\/blockquote>\n<\/blockquote>\n
            (i)sub-section (2) of section 115-O; or\n<\/p><\/blockquote>\n
            (ii)the second proviso to section 194B,
\n     he shall be punishable with rigorous imprisonment for a term
\n     which shall not be less than three months but which may
\n     extend to seven years and with fine.\n<\/p><\/blockquote>\n
     276BB. If a person fails to pay to the credit of the Central
\n     Government, the tax collected by him as required under the
\n     provisions of section 206C, he shall be punishable with
\n     rigorous imprisonment for a term which shall not be less than
\n     three months but which may extend to seven years and with
\n     fine.”\n<\/p><\/blockquote>\n
9)     A glance of these provisions make it clear that it is obligatory<\/p>\n
on    the   part   of   the   persons   responsible   for   paying   any   income<\/p>\n
chargeable under the head “salaries”, at the time of payment, deduct<\/p>\n
income tax computed on the basis of the rates in force for the<\/p>\n
financial year on the estimated income of the assessee and pay the<\/p>\n
same to the authority concerned.          It also make clear that failure to<\/p>\n
deduct tax at source shall be liable to pay, by way of penalty, a<\/p>\n
sum equal to the amount of tax which such person failed to deduct or<\/p>\n
pay.    It also shows that failure to pay tax to the credit of Central<\/p>\n
                                                                               9<\/span>
\nGovernment in certain cases or pay the tax collected at source under<\/p>\n
Section 276 BB shall be punishable with imprisonment.<\/p>\n
10)   In   the    case   on   hand,   it    is     the   categorical   stand     of the<\/p>\n
appellants-management that the amount of tax that has been deducted<\/p>\n
from the respondent’s salary as TDS under the head “Salaries” in<\/p>\n
terms of Section 192 is uniformly done in respect of each and every<\/p>\n
employee of the company.        It is also asserted that the amount of tax<\/p>\n
so deducted, deposited to the credit of the employees including the<\/p>\n
respondent in terms of Section 199.                 They also produced a copy of<\/p>\n
Form No-16 being the certificate under Section 203 of the Income Tax<\/p>\n
Act, 1961 for the tax deducted at source from the income chargeable<\/p>\n
under the head “salaries” in respect of the respondent relating to<\/p>\n
period from April 1st, 2003 to March 31st, 2004.<\/p>\n
11)   In the light of the factual scenario, let us see the initial<\/p>\n
direction of the Judicial Magistrate, Asansol to the IO concerned,<\/p>\n
the report of the police officer as well as ultimate order dated<\/p>\n
31.01.2005   by    the   Additional        Chief    Judicial    Magistrate       issuing<\/p>\n
summons    upon   the    appellants\/accused          persons   for     offence     under<\/p>\n
Section 406 read with 120B IPC in terms of Section 204 of the Code.<\/p>\n
When the complaint was forwarded to the SI Hirapur, Police Station,<\/p>\n
he conducted an inquiry, recorded statements of IISCO officials,<\/p>\n
perused the documents concerned and also noted that the tax was<\/p>\n
deducted as per their company norms.               After making such a note, the<\/p>\n
SI Hirapur has concluded that “the matter is civil in nature” and<\/p>\n
                                                                                      10<\/span>
\nforwarded the same to Additional CJM with a request to clarify the<\/p>\n
same.    On the basis of the said report, by order dated 31.01.2005,<\/p>\n
the Additional CJM, after recording the stand of the complainant<\/p>\n
about illegal deduction of Rs. 1640\/- per month from his salary as<\/p>\n
income   tax    and    the    same    had    not    been   deposited     by   the   accused<\/p>\n
persons to the income tax authority month by month, has concluded<\/p>\n
“on perusal of the same, it appears to me that there is sufficient<\/p>\n
ground   for    proceeding      against       the   accused    persons    under     Section<\/p>\n
406\/120 B IPC.”         First of all, it is not clear how the Additional<\/p>\n
CJM has concluded that “there is sufficient ground for proceeding<\/p>\n
against the accused under Section 406\/120 B IPC”, more particularly,<\/p>\n
when the inquiry report by the SI Hirapur shows that the issue<\/p>\n
raised in the complaint is civil in nature.\n<\/p>\n
12)     We have already adverted to the relevant provisions from the<\/p>\n
Income Tax Act, particularly, duty of the employer in deducting tax<\/p>\n
at source and forwarding the same to the authority concerned i.e. to<\/p>\n
the credit of Central Government as well as failure to do so results<\/p>\n
in    prosecution.       From        the    materials      placed,   particularly,       the<\/p>\n
contents   of    the    complaint,         relevant   statutory      provisions     of   the<\/p>\n
Income Tax Act, report of the SI Hirapur, we are of the view that<\/p>\n
the complaint does not disclose any case to proceed against the<\/p>\n
accused persons as arrived by the Additional CJM.                             Even if the<\/p>\n
respondent      had    some    grievance       with     the   appellants       about     non-<\/p>\n
promotion, direction of the High Court, pendency of contempt etc. it<\/p>\n
                                                                                           11<\/span>
\nis    not   a    case      for        criminal       prosecution.           If    he    is    very    much<\/p>\n
interested to vindicate his grievance, the respondent could have<\/p>\n
very well approached the officer concerned of the IISCO or to the IT<\/p>\n
authority concerned.                  Though in the complaint, it is stated that the<\/p>\n
respondent           had        sent       a      notice      under       registered         post     with<\/p>\n
acknowledgment due on 17.11.2003, admittedly, no such proof had been<\/p>\n
placed before the Court.                       In fact, the appellants stoutly denied the<\/p>\n
receipt of such a notice.\n<\/p>\n
13)    Inspite of all the details and materials since the Additional<\/p>\n
CJM issued summons, the appellants approached the High Court under<\/p>\n
Section 482 of the Code for quashing the same.                                   The High Court, by<\/p>\n
the impugned order, without adverting to any of the above mentioned<\/p>\n
relevant materials passed a cryptic order in one line “I am not<\/p>\n
inclined        to     quash      the          criminal      proceeding      pending         before    the<\/p>\n
Additional CJM, Asansol”.                        No doubt, after dismissing the petition<\/p>\n
issued      certain        directions             for     protection       relating      to     personal<\/p>\n
appearance of the appellants before the Magistrate.<\/p>\n
14)      This        Court,      in    a       series   of    decisions,     has       emphasized      the<\/p>\n
inherent power             of    the       High    Court     to    pass    appropriate        orders    to<\/p>\n
prevent the abuse of process of court or to secure the ends of<\/p>\n
justice.        Though, inherent jurisdiction under Section 482 has to be<\/p>\n
exercised        sparingly,            carefully        and       with    caution      when     adequate<\/p>\n
materials are available which clearly shows that the proceeding is<\/p>\n
either of civil nature, cannot be adjudicated by the criminal court<\/p>\n
                                                                                                        12<\/span>
\nor if it is an abuse of process of court, the High Court is well<\/p>\n
within its power to exercise its inherent jurisdiction and quash the<\/p>\n
same.\n<\/p>\n
15)      Contours    of   the   power   under     Section     482    CrPC   have    been<\/p>\n
explained in a series of decisions by this Court. In Nagawwa v.<\/p>\n
Veeranna Shivalingappa Konjalgi,<\/a> (1976) 3 SCC 736, it was held that<\/p>\n
the   Magistrate    while   issuing     process    against     the    accused    should<\/p>\n
satisfy himself as to whether the allegations in the complaint, if<\/p>\n
proved, would ultimately end in the conviction of the accused. It<\/p>\n
was held that the order of Magistrate issuing process against the<\/p>\n
accused could be quashed under the following circumstances:<\/p>\n
      “(1) Where the allegations made in the complaint or the
\n      statements of the witnesses recorded in support of the
\n      same taken at their face value make out absolutely no case
\n      against the accused or the complaint does not disclose the
\n      essential ingredients of an offence which is alleged
\n      against the accused;\n<\/p><\/blockquote>\n
      (2) Where the allegations made in the complaint are
\n      patently absurd and inherently improbable so that no
\n      prudent person can ever reach a conclusion that there is
\n      sufficient ground for proceeding against the accused;
\n      (3) Where the discretion exercised by the Magistrate in
\n      issuing process is capricious and arbitrary having been
\n      based either on no evidence or on materials which are
\n      wholly irrelevant or inadmissible; and
\n      (4) Where the complaint suffers from fundamental legal
\n      defects, such as, want of sanction, or absence of a
\n      complaint by legally competent authority and the like.”\n<\/p><\/blockquote>\n
16)     In State of Haryana vs. Bhajan Lal,<\/a> 1992 Supp. (1) SCC 335, a<\/p>\n
question came up for consideration as to whether quashing of the FIR<\/p>\n
filed    against    the   respondent    Bhajan    Lal   for    the    offences     under<\/p>\n
                                                                                      13<\/span>
\nSections 161 and 165 IPC and Section 5(2) of the Prevention of<\/p>\n
Corruption Act was proper and legal.            Reversing the order passed by<\/p>\n
the High Court, this Court explained the circumstances under which<\/p>\n
such power could be exercised.             Apart from reiterating the earlier<\/p>\n
norms laid down by this Court, it was further explained that such<\/p>\n
power    could    be   exercised   where    allegation     made    in   the   FIR   or<\/p>\n
complaint are so absurd and inherently improbable on the basis of<\/p>\n
which no prudent person can ever reach a just conclusion that there<\/p>\n
is sufficient ground for proceeding against the accused.                  No doubt,<\/p>\n
at the stage of quashing an FIR or complaint the High Court is not<\/p>\n
justified    in   embarking   upon   an     inquiry   as   to     the   probability,<\/p>\n
reliability or genuineness of the allegation made therein.<\/p>\n
17)     In Sardar Trilok Singh and others vs. Satya Deo Tripathi<\/a> (1979)<\/p>\n
4 SCC 396, when the financer seized the truck in question due to<\/p>\n
default in payment of instalment, buyer of the vehicle launched<\/p>\n
criminal prosecution, this Court held it as an abuse of process of<\/p>\n
the court since the dispute was essentially of a civil nature and<\/p>\n
quashed the entire proceedings.\n<\/p>\n
18)     In G. Sagar Suri and another vs. State of U.P. and others,<\/p>\n
(2000) 2 SCC 636, this Court has held:-\n<\/p>\n
\n  “8. Jurisdiction under Section 482 of the Code has to be
\n  exercised with great care. In exercise of its jurisdiction
\n  the High Court is not to examine the matter superficially. It
\n  is to be seen if a matter, which is essentially of a civil
\n  nature, has been given a cloak of criminal offence. Criminal
\n  proceedings are not a short cut of other remedies available
\n  in law. Before issuing process a criminal court has to
\n  exercise a great deal of caution. For the accused it is a<\/p>\n
                                                                                    14<\/span>
\n  serious matter. This Court has laid certain principles on the
\n  basis of which the High Court is to exercise its jurisdiction
\n  under Section 482 of the Code. Jurisdiction under this
\n  section has to be exercised to prevent abuse of the process
\n  of any court or otherwise to secure the ends of justice.”<\/p>\n
19)    In Alpic Finance Ltd. vs. P. Sadasivan and<\/a> another (2001) 3 SCC<\/p>\n
513,    this   court   reiterated   that   the    complaint   must   disclose<\/p>\n
essential ingredients of the offence.            After adverting to Nagawwa<\/p>\n
(supra), and State of Haryana vs. Bhajan Lal<\/a> (supra), and after<\/p>\n
finding that in the complaint there is no allegation that there was<\/p>\n
fraud or dishonest inducement on the part of the respondents and<\/p>\n
thereby the respondents parted with the property, it is trite law<\/p>\n
and common sense that an honest man entering into a contract is<\/p>\n
deemed to represent that he has the present intention of carrying it<\/p>\n
out but if, having accepted the pecuniary advantage involved in the<\/p>\n
transaction, he fails to pay his debt, he does not necessarily evade<\/p>\n
the debt by deception, upheld the order of the High Court quashed<\/p>\n
the proceedings and dismissed the appeal.\n<\/p>\n
20)     In Indian Oil Corporation vs. NEPC India Ltd. and Others,<\/a><\/p>\n
(2006) 6 SCC 736, the following paragraphs are relevant:-<\/p>\n
  “13. While on this issue, it is necessary to take notice of a
\n  growing tendency in business circles to convert purely civil
\n  disputes into criminal cases. This is obviously on account of
\n  a prevalent impression that civil law remedies are time
\n  consuming and do not adequately protect the interests of
\n  lenders\/creditors. Such a tendency is seen in several family
\n  disputes   also,  leading   to  irretrievable   breakdown  of
\n  marriages\/families. There is also an impression that if a
\n  person could somehow be entangled in a criminal prosecution,
\n  there is a likelihood of imminent settlement. Any effort to<\/p>\n
                                                                           15<\/span>
\n  settle civil disputes and claims, which do not involve any
\n  criminal offence, by applying pressure through criminal
\n  prosecution should be deprecated and discouraged.
\n    “It is to be seen if a matter, which is essentially of a
\n  civil nature, has been given a cloak of criminal offence.
\n  Criminal proceedings are not a short cut of other remedies
\n  available in law. Before issuing process a criminal court has
\n  to exercise a great deal of caution. For the accused it is a
\n  serious matter. This Court has laid certain principles on the
\n  basis of which the High Court is to exercise its jurisdiction
\n  under Section 482 of the Code. Jurisdiction under this
\n  section has to be exercised to prevent abuse of the process
\n  of any court or otherwise to secure the ends of justice.”\n<\/p>\n
  14. While no one with a legitimate cause or grievance should
\n  be prevented from seeking remedies available in criminal law,
\n  a complainant who initiates or persists with a prosecution,
\n  being fully aware that the criminal proceedings are
\n  unwarranted and his remedy lies only in civil law, should
\n  himself be made accountable, at the end of such misconceived
\n  criminal proceedings, in accordance with law. One positive
\n  step that can be taken by the courts, to curb unnecessary
\n  prosecutions and harassment of innocent parties, is to
\n  exercise their power under Section 250 CrPC more frequently,
\n  where they discern malice or frivolousness or ulterior
\n  motives on the part of the complainant.”\n<\/p>\n<\/p>\n
21)     In    the   light   of   the      above   mentioned    well   established<\/p>\n
principles, we are of the view that the High Court has committed an<\/p>\n
error, firstly, in not assigning any reason and passing a cryptic<\/p>\n
order   and   secondly,     failed   to    exercise   its     jurisdiction   under<\/p>\n
Section 482 when the complaint does not disclose any offence of<\/p>\n
criminal nature.      For the sake of repetition, we reiterate, though<\/p>\n
the respondent had some grievance about his non promotion, certain<\/p>\n
orders passed by the High Court including filing of contempt etc.,<\/p>\n
in view of the statutory provisions of the Income Tax Act, the<\/p>\n
assertion of the appellants that deductions were being made for all<\/p>\n
                                                                                16<\/span>
\nthe persons who are liable to pay tax in terms of the Income Tax<\/p>\n
Act,    the   proper   remedy    for    the   respondent            is        to       approach           the<\/p>\n
authority\/officer concerned and not by filing complaint as mentioned<\/p>\n
above.     We have already adverted to the report of SI Hirapur holding<\/p>\n
that the matter in issue is civil in nature.\n<\/p>\n
22)     Considering all these materials and in the light of the various<\/p>\n
principles enunciated, we hold that the High Court committed an<\/p>\n
error in not exercising its jurisdiction and dismissing the petition<\/p>\n
filed    under   Section   482.        Consequently,         we       quash            the        criminal<\/p>\n
proceedings pending before the trial Court being Case No. C\/438 of<\/p>\n
2003    initiated   against     the    appellants.         The         criminal                  appeal   is<\/p>\n
allowed.\n<\/p>\n<\/p>\n
                                                 ……………………………………J.
\n                                                 (P. SATHASIVAM)<\/p>\n
                                                  ……………………………………J.
\n                                                   (DR. B.S.CHAUHAN)
\nNEW DELHI;\n<\/p>\n
AUGUST 19, 2010.\n<\/p>\n
                                                                                                           17<\/span>\n<\/p>\n
ITEM NO. 1-A              COURT No.9              SECTION II\n( For Judgment )\n\n\n\n               S U P R E M E   C O U R T   O F   I N D I A\n                           RECORD OF PROCEEDINGS\n\nCRIMINAL APPEAL NO.779 OF 2007\n\nRAJESWAR TIWARI & ORS.                     ..      Appellant(s)\n\n                          Versus\n\nNANDA KISHORE ROY                          ..      Respondent(s)\n\n\n\n\nDATE : 19\/08\/2010    This APPEAL was called\n                     on for pronouncement of judgment today.\n\n\nFor Appellant(s)     Mr. Sunil Kumar Jain, Adv.\n\n\nFor Respondent(s)    Ms. Sarla Chandra, Adv.\n\n                     Mr.Rajesh Srivastava, Adv.\n\n\n                               ---\n\n<\/pre>\n
              Hon’ble Mr. Justice P. Sathasivam pronounced the
\n       judgment of the Bench comprising Self and Hon’ble Dr.
\n       Justice B.S. Chauhan.\n<\/p>\n
              The appeal is allowed.\n<\/p>\n<\/p>\n
           [ Usha Bhardwaj ]              [ Savita Sainani ]\n              Court Master                   Court Master\n\n\n<\/pre>\n
        [ Signed reportable judgment is placed on the file ]<\/p>\n
                                                                   18<\/span>
\n19<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rajeswar Tiwari & Ors vs Nanda Kishore Roy on 19 August, 2010 Bench: P. Sathasivam, B.S. Chauhan REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 779 OF 2007 Rajeswar Tiwari & Ors. …. Appellant (s) Versus Nanda Kishore Roy …. Respondent(s) J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-39893","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRajeswar Tiwari & Ors vs Nanda Kishore Roy on 19 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajeswar-tiwari-ors-vs-nanda-kishore-roy-on-19-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajeswar Tiwari & Ors vs Nanda Kishore Roy on 19 August, 2010 - 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