Available civil remedy cannot be a ground to quash criminal proceedings. : Jharkhand High Court
A civil wrong is also a criminal offence, and the mere availability of a civil remedy for the complainant cannot be used to quash a criminal proceeding. The real test is whether or not the allegations in the complaint reveal a criminal offence of cheating, which was used by Justice Anubha Rawat Choudhary of the Jharkhand High Court in the matter of Shasank Gupta versus State of Jharkhand [ Cr. M. P. No. 1097 of 2008] This order was passed in the matter where the petition was filed for the instant criminal miscellaneous application, the petitioners seek to quash the entire criminal proceeding in connection with C.P. Case No. 1484/2007, including the order taking cognisance dated 13.2.2008 passed by learned Pawan Kumar, Judicial Magistrate, Dhanbad, whereby and whereunder cognisance was taken against the petitioners and summons were issued against them. According to the complaint petition, there were three accused: one Shiv Prasad Singh, son of late Gopi Nath Singh, and the current two petitioners. Cognisance has been granted to all three defendants. Learned senior counsel for the petitioners submits that the accused No.-1 died on June 26, 2011, and he had filed Criminal Miscellaneous Petition No. 753 of 2008, which was withdrawn due to his death by order dated August 1, 2012. The learned senior counsel has filed the complaint petition and has submitted that upon review of the entire complaint case, it appears that the case arises out of a civil dispute between the parties and it is alleged that there were certain monetary transactions pursuant to an agreement dated 13.11.2006 and, according to the complainant, he was placed in possession of the property along with witness No. The complainant’s complaint is that, despite the fact that the accused persons took a large sum of money, the sale deed was never carried out. He claims that after reviewing the complaint case, no criminal case can be established, and thus the entire criminal proceeding should be quashed and set aside in accordance with Section 482 of the Cr.P.C. The learned senior counsel relied heavily on the Hon’ble Supreme Court’s decision reported in (2015) 8 SCC 293. This Court also finds that the petitioners have not annexed a copy of any of the four witnesses who were examined before the learned court below prior to the learned court below taking cognisance by the impugned order. The complaint, examination of the complainant on solemn affirmation, examination of four witnesses in support of the complaint, and the documents produced before the learned court below were all considered by the learned court below. In the absence of the four witnesses’ depositions and other materials on the record of the learned court below, this Court is unable to examine their statements.
Shasank Gupta vs State Of Jharkhand on 15 March 2021 Jharkhand High Court Shasank Gupta vs State Of Jharkhand on 15 March 2021 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 10908 1. Shasank Gupta S o Sri Ashok Kr Gupta resident of Mithu Road Bank More PO PS & District Dhanbad 2. Jagjot Singh S o Inder Singh resident of B.M. Agarwala Colony Dhansar PO & PS Dhansar District Dhanbad ... ... ... Petitioners Versus 1. State of Jharkhand 2. Kaushar Alam son of Md. Hadees Resident of Ratanji Road Purana Bazar P.O. Dhanbad PS & District Dhanbad ... ... ... Opp. Parties CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioners : Mr. Anil Kumar Sinha Senior Advocate Mr. Pankaj Kumar Advocate For the State : Mr. Jitendra Pandey Advocate For the O.P. No. 2 : Mr. Sharabil Ahmed Advocate Through Video Conferencing 18 15.03.2021 1. Heard Mr. Anil Kumar Sinha learned senior counsel appearing on behalf of the petitioners 2. Heard Mr. Sharabil Ahmed learned counsel appearing on behalf of the opposite party No. 2 3. Heard Mr. Jitendra Pandey learned counsel appearing on behalf of opposite party State 4. This petition has been filed for the following reliefs: That in the instant criminal miscellaneous application the petitioners pray for quashing the entire criminal proceeding in connection with C.P. Case No. 1484 2007 including the order taking cognizance dated 13.2.2008 passed by learned Pawan Kumar Judicial Magistrate Dhanbad whereby and whereunder cognizance under section 420 406 120B of I.P.C. against the petitioners was taken and summons were issued against the petitioners 5. The complaint petition indicates that there were three accused namely one Shiv Prasad Singh Son of Late Gopi Nath Singh and the present two petitioners. Cognizance has been taken against all the three accused Indian Kanoon Arguments on behalf of the petitioners Shasank Gupta vs State Of Jharkhand on 15 March 2021 6. Learned senior counsel for the petitioners submits that so far as the accused No. 1 is concerned he has expired on 26.06.2011 and he had filed Criminal Miscellaneous Petition No. 7508 and on account of his death the same was withdrawn vide order dated 01.08.2012 7. The learned senior counsel has placed the complaint petition and has submitted that upon perusal of the entire complaint case it appears that the case arises out of civil dispute between the parties and it is alleged that there were certain transaction of money pursuant to agreement dated 13.11.2006 and as per the complainant himself he was put in possession of the property alongwith witness No. 1. The grievance of the complainant is that ultimately the sale deed was not executed in spite of the fact that huge amount was taken by the accused persons. He submits that no criminal case is made out upon perusal of the complaint case and therefore the entire criminal proceeding is fit to be quashed and set aside in exercise of the powers under section 482 of Cr.P.C. The learned senior counsel has heavily relied upon the judgment passed by the Hon ble Supreme Court reported in8 SCC 293 Arguments on behalf of the opposite party No. 2 8. Learned counsel appearing on behalf of opposite party No. 2 has referred to the impugned order taking cognizance. He submits that the order taking cognizance is an elaborate order dealing with every aspect of the matter and a well speaking order indicating the criminality of Shiv Prasad Singh as well as the petitioners involved in the present case 9. He also submits that altogether 4 witnesses were also examined from the side of the prosecution and a number of documents were placed and the learned court below upon recording of satisfaction took cognizance of offence 10. Learned counsel submits that merely because there is an element of civil dispute between the parties that by itself does not exclude criminal liability as the basic ingredients of offence under Sections 420 406 read with Section 120B of IPC are made out in the present case. He has referred to the judgment passed by the Hon ble Supreme Court reported in8 SCC 751 paragraph 8 and also the judgment reported in9 SCC 677 paragraphs 8 9 and 10 to submit that it has been held by the Hon ble Supreme Court that there could be situations where civil as well as criminal liability are involved 11. Learned counsel has referred to the impugned order taking cognizance to indicate that the learned court below has found the criminal intent of the petitioners right from inception. He also submits that not only the complaint petition and solemn affirmation of the complainant but also the deposition of the witnesses and the materials produced before the learned court below are required to be considered and deposition of the witnesses have not been filed by the petitioners and the learned counsel for the petitioners has only placed the complaint petition. He also submits that otherwise also upon perusal of the complaint petition there is enough allegations to proceed against the accused persons Indian Kanoon Rejoinder arguments of the petitioners Shasank Gupta vs State Of Jharkhand on 15 March 2021 12. In response learned senior counsel appearing on behalf of the petitioners has submitted that the fact remains that apart from money transaction the factory premises was handed over to the complainant and witness No. 1. This itself indicates that there was no criminal intent right from the beginning of the transaction and the judgments which have been cited by the learned counsel for the opposite party No. 2 only indicate exception to the general rule that when there is civil dispute it cannot be given a colour of a criminal case. He has referred to the judgment passed by the Hon ble Supreme Court reported in10 SCC 336 paragraph 7 as well as judgment reported in8 SCC 293 paragraphs 9 to 12 which arose out of petitions filed under Section 482 of Cr.P.C. for quashing of the F.I.R. and he submits that in these judgments it has been held that if at the initial stage there is no criminal intent subsequent change of intention will not give rise of a criminal case However during the course of argument it has not been disputed by the learned senior counsel for the petitioners that statement of the four witnesses who have deposed before the learned court below prior to taking cognizance have not been filed in this case for consideration by this Court Findings of this Court 13. This Court finds that the learned senior counsel for the petitioners has submitted that the accused No. 1 namely Shiv Prasad Singh had expired on 26.06.2011 and accordingly the separate criminal miscellaneous petition filed by him being Criminal Misc. Petition No. 753 2008 was withdrawn vide order dated 01.08.2012. This Court has called for the records of Criminal Misc Petition No. 753 2008 and only order sheet of the said case is available. There is nothing in the order sheet to indicate that the case was withdrawn on 01.08.2012 on account of death of Shiv Prasad Singh. This Court also finds that there is nothing on record either in the present case or in Cr.M.P. No. 753 2008 that Shiv Prasad Singh has expired and even the death certificate is not on record. From perusal of status report received from the learned court below it appears that there is no indication regarding death of Shiv Prasad Singh. The status report from the learned court below indicates that the process under Section 82 of Cr.P.C. was issued on 22.05.2017 and the process under Section 83 was issued on 19.06.2018 against both the present petitioners. It further appears that on 26.10.2018 accused person namely Shasank Gupta has taken bail on surrender and the petitioner namely Jagjot Singh is still absent and the next date which was fixed by the learned court below as per the status report dated 21.10.2020 was 20.01.2021 for appearance of the present petitioner namely Jagjot Singh 14. This Court finds that the present case was filed on 01.08.2008 and thereafter it was listed for the first time before the Bench only on 24.01.2011 wherein a prayer for adjournment was made and the case was directed to be listed on 07.02.2011. Thereafter on 07.02.2011 nobody appeared on behalf of the petitioners and the matter was adjourned to be listed after one week under the same heading. Thereafter again the matter was listed on 09.07.2015 and on that day also nobody appeared on behalf of the petitioners. However this Court was pleased to direct the petitioners to take steps for service of notice against Opposite Party No. 2 but no steps were taken and thereafter vide order dated 06.01.2016 by way of last chance time till 12.01.2016 was granted to comply with the order dated 09.07.2015 and it was indicated that failing which this application shall stand rejected without further reference to a Bench. Thereafter the opposite party No. 2 appeared Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 through Advocate and when the matter was taken up on 04.07.2017 the case was dismissed for non prosecution. Subsequently the case was restored vide order dated 28.09.2019 passed in Cr.M.P. No. 2627 2018 15. As per the prosecution case the complainant as well as the accused persons are involved in coal business. The accused No. 1 was a major share holder of Mahakali Hard Coke. In the last week of October 2006 the accused persons with a fraudulent and malafide intention in conspiracy with each other approached the complainant and witness No. 1and stated that accused No. 1 along with his other two partners Mr. Manmohan Grover and Mr. Vijay Grover were intending to sell their Mahakali Hard Coke Plant and were looking for a prospective buyer. The accused Nos. 2 and 3 stated that they had decided to purchase the Mahakali Hard Coke Plant but since they do not have enough cash they were looking for some other viable partners who could invest money The accused deceitfully proposed the complainant and witness No. 1 to invest money and purchase the plant from accused No. 1 by becoming their partners. Accordingly the complainant and witness No. 1 arranged money upon fraudulent inducement by the accused persons. On 13.11.2006 an agreement for sale was executed between accused No. 1 and other two partners. i.e. Manmohan Grover and Vijay Grover on one side and the complainant witness No. It is alleged that the complainant and witness No. 1 became partners of accused Nos. 2 and 3 on their fraudulent misrepresentation and entered into an agreement dated 13.11.2006 with the accused No. 1 and other two personsis concerned the same does not apply to the facts and circumstances of this case. The said case arose out of a petition filed under Section 482 of the Code of Criminal Procedure for quashing the First Information Report when the case was registered under sections 420 120B of IPC and the same was dismissed by the High Court Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 In the said case it has been recorded by the Hon ble Supreme Court that the only allegation in the complaint petition against the accused persons was that they assured the complainant that when they receive the insurance claim amounting to Rs. 4 20 000 they would pay a sum of Rs 2 60 000 to the complainant out of that but the same has never been paid. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused may take steps for moving the Consumer Forum in relation to claim of Rs. 4 20 000 The Hon ble Supreme Court held that it is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on the same cannot amount to cheating and in the said case nowhere it was stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence under Section 420 of the Indian Penal Code In this background the Hon ble Supreme Court was of the view that the allegation disclosed in the complaint did not disclose any criminal offence at all much less any offence either under Section 420 or 120 B of IPC and the said case was also found to be a case of purely civil dispute between the parties and accordingly the entire criminal proceedings including the F.I.R. was quashed In the present case as discussed above the allegations of fraudulent intention since beginning have been made and there are also allegations of criminal misappropriation. Consequently the cognizance has been taken under section 420 IPC as well as section 406 read with section 120 B of 20. Similarly the judgment passed by the Hon ble Supreme Court reported in8 SCC 293 Vesa Holdings P. Ltd. and Ors. Vs. State of Kerala and Ors.) also does not apply to the facts and circumstances of this case. In that case also the petition under Section 482 of Cr.P.C. seeking quashing of F.I.R. registered under sections 120 B 417 418 and 420 IPC was dismissed by the High Court which was subject matter of consideration by the Hon ble Supreme Court In the said case there was a letter containing the offer of the appellants of the case and the acceptance of the offer by the respondent in connection with settlement of certain dues of the bank In the said case no allegation whatsoever was made against the appellants in the correspondence between the parties and it was only mentioned that the consultation fee remained unpaid and the company was delaying the payment on the one pretext or the other .The Hon ble Supreme Court was of the considered view that the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. It was also held that if the intention to cheat has developed later on the same cannot amount to cheating The Hon ble Supreme Court also held that it is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 21. In the present case if the complaint is taken on its face value also there are sufficient materials to constitute a prima facie case under sections 420 406 120 B of IPC and there are allegations of fraudulent intent even at the time of entering into the agreement dated 13.11.2006. This Court is of the prima facie view at this stage that merely because the plant in question was handed over to the complainant and witness No.1 the same by itself cannot be conclusive of absence of criminal intent at the time of entering into agreement. Moreover there are further allegations of misappropriation of hard coke from the plant against the present two petitioners when they were given access to the plant in question 22. In view of the aforesaid facts and circumstances this court is of the considered view that the arguments of the learned senior counsel for the petitioners that no criminal case is made out against the petitioners on the face of the allegations in complaint petition is devoid of any merits 23. This Court further finds that the petitioners have not annexed the copy of the examination of any of the four witnesses who were examined before the learned court below prior to taking cognizance by the learned court below by the impugned order. The learned court below has considered the complaint examination of the complainant on solemn affirmation as well as examination of four witnesses in support of the complaint and also the documents produced before the learned court below. In absence of deposition of the four witnesses and other materials on record of learned court below this Court is not in a position to examine their statements. No endeavour has been made to file the aforesaid materials before this Court from the side of the petitioners and the entire arguments have been advanced only on the allegations made in the complaint petition. This Court finds that the learned court below has passed a detailed order taking cognizance taking into consideration all the materials which were brought on record before the learned court below including the examination of the four witnesses 24. In the judgement passed by the Hon ble Supreme Court reported in 1992 Suppl.SCC 335 State of Haryana and Ors. Vs. Bhajan Lal and Ors.) it has been held in Para 102 and 103 as follows 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised 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 Indian Kanoon Shasank Gupta vs State Of Jharkhand on 15 March 2021 2) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the 5) Where the allegations made in the FIR or complaint are so absurd and inherently 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 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Actto the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice 25. In view of the aforesaid circumstances and considering the law laid down by the Hon ble Supreme Court in the case reported in 1992 Suppl.SCC 335this Court is not inclined to interfere with the order taking cognizance and quash the criminal proceedings against the petitioners. Accordingly the present petition is 26. However it is observed that dismissal of this petition will not prejudice the case of the petitioners before the learned court below in any manner whatsoever and it will be open to the Indian Kanoon petitioners to take all points as available under law Shasank Gupta vs State Of Jharkhand on 15 March 2021 27. Interim order if any stands vacated 28. Pending interlocutory applications if any is dismissed as not pressed 29. Let a copy of this order be communicated to the learned court below through e mail FAX Anubha Rawat Choudhary J.) Mukul Indian Kanoon 