- (1.) THIS criminal misc. petition has been filed by the petitioner Vijay Krishna Mehta, who is Chairman cum Managing Director of M/s. Clutch Auto Ltd. under section 482 Cr.P.C. for quashing of the FIR No. 116 of 2012 dated 23.3.2012 registered at Police Station Murlipura, Jaipur for offence under sections 420, 406 and 120 B IPC.
(2.) THE brief facts of the case are that M/s. Garima Overseas Ltd. through its Director Mr. Dinesh Paras Rampuria ( in short complainant respondent company), having its office on Sikar Road, Jaipur filed a complaint before the Metropolitan Magistrate No. 31, Jaipur Metropolitan,Jaipur and the Metropolitan Magistrate No.31 Jaipur forwarded the complaint to the Police Station Murlipura Jaipur under section 156 (3) Cr.P.C. and the said Police Station registered the same as FIR No. 116/2012 dated 23.3.2012. As per the complaint it is borne out that from the period April 2008 till July 2008 whatever goods were sent to M/s. Clutch Auto Ltd. New Delhi ( accused petitioner's company) by the complaint company M/s. Garima Overseas Ltd. all the payments were made in time and it was only on 22.7.2008 that the payment of supplied material was not made and at some point of time part payment was made. In paras No.6 and 7 of the complaint/ FIR it has been stated thus : "6...... " Paras 17 and 18 of the said FIR/complaint read as under : "17. " Mr. Manish Kumar Shukla, the learned counsel for the petitioner has contended that initially there was no quality related issue, the relation between the petitioner and the Director of complainant respondent No.2 were cordial and from time to time upon receipt of the goods, payments were made by the petitioner through his company, which was duly received by the complainant respondent. However, as the quality with passing of time was not meeting and desired standard of petitioner's company, the petitioner time and again registered this fact with the representative of the complainant - respondent requesting not to compromise with the quality and standard as was agreed initially between the parties. As the goods so supplied by the complaint -respondent which were rejected by the customer of petitioner's company, this fact was also brought to the notice of the complainant -respondent and accordingly, some of the payments were claimed to be due and payable by the complainant -respondent and same were withheld for the aforesaid quality reasons as the petitioner's company had not received the payments from its end from the customers on account of such rejection. The complainant respondent concealing the fact about the rejection caused to send a legal notice dated 8.11.2011 to the petitioner's company through its lawyer under section 433 and 434 of the Companies Act, 1956, which was received by the petitioner's company on 9.12.2011 and the same was duly replied by the petitioner's company vide letter dated 9.1.2012. It has also been submitted by the petitioner's counsel that the petitioner through its representative tried to amicably resolve the matter and accordingly vide letter dated 7.12.2010 offered to make payment towards settlement as was agreed between the parties vide letter dated 24.12.2011 and 3.1.2012 offering to amicably settle the dispute by reconciling the account and agreed on the terms of the settlement, which was acknowldged by the complainant respondent No.2 in its letter dated 20.1.2012. Despite acknowledging the fact that the petitioner through its company had offered to settle the matter and had in discharge thereof made payment to the complainant respondent No.2. The complainant respondent while disputing the terms of settlement once again alleged about the outstanding liability which the petitioner's company had time and again denied on account of quality related issue. It has been further stated by the learned counsel that in the meantime as the petitioner's company on account of its expansion had applied for demerger by presenting the scheme pursuant to which Hon'ble High Court had appointed the Chairman/ Acting Chairman to look into the modalities of the demerger and the same was presented to this Court. Accordingly, a meeting was called upon by the Chairman appointed by this Court in terms of the order dated 27.2.2012 and 14.2.2012. In the said meeting the representative of complainant respondent Mr. Dinesh Parasrampuria, Mr. Ram Kisan and Vineet N. Jain had not only caused threat to the petitioner but also the other staff members of the petitioner company, these persons also did not allow the proceeding to be held in lawful manner. This fact was duly registered by the petitioner with the SHO PS Haus Khas New Delhi on 17.4.2012. The learned counsel has further contended that the FIR has been registered by the complainant respondent through its representative alleging criminal breach of trust and cheating. The nature of the dispute is purely civil, which was wrongly a colour of criminal offence, wherein the petitioner has been falsely implicated. The complaint as lodged has culminated in the FIR is not only misuse and gross abuse of process of law, but is an arm twist exercise to cause undue pressure on the petitioner by the complainant respondent and its representative so that the petitioner succumbs to the unlawful demand of the complainant respondent whereas the fact remains that no such demand is legally tenable. The fact that the complainant respondent has caused to send legal notice on 8.12.2011 under section 433 and 434 of the Companies Act and no proceeding having initiated thereafter, talks of volumes about the fact that the amount claimed in the legal notice is far from truth and is legally untenable. The learned counsel has further argued that the lodging of the FIR on the basis of complaint moved in the court is nothing but the abuse of the process of law and a purely civil dispute have been given colour of criminal offence. Lastly the learned counsel has argued that in response to the notice dated 8.12.2011 the petitioner wrote a letter dated 9.1.2012 in which a detail of each and every aspect was given particularly attention has been made to para 2 at page 2 that "Huge rejected material lying at company premises for want of VAT 4 forms which even after repeated requests are yet to be supplied by your client without which we cannot dispatch rejected materials to your client". On these grounds the learned counsel for the petitioner prays that the FIR may be quashed and set aside. In support of his contention the learned counsel for the petitioner has placed reliance on Thermax ltd. and others vs. K.M. Johny and others . On the other hand Mr. Peeyush Kumar, Public Prosecutor appearing for the State has argued that it is not the stage of quashing the FIR registered at the Police Station Murlipura on the complaint sent by the concerned court under section 156 (3) Cr.P.C. for investigation. The nature of the dispute whether it is civil or criminal can only be decided during investigation by the police and it is an admitted fact that the petitioner's company has not paid large sum to the complainant respondent for the last so many years and wanted to grab the complainant - respondent's assets by way of not paying large sum of more than 3 crore and fifty lacs, on the pretext that the VAT form was not forwarded by the complainant respondent and on account of which the rejected material lying with the petitioner's company could not be sent. The petitioner's company requested the complainant respondent for extension of time for making due payments, this shows that the accused petitioner and accused petitioner's company was ready to make payment and for that purpose they have asked the complainant respondent for extension of time for making payment but the same was not made. He has further contended that earlier time limit was for 45 days but it was extended to 90 days. He has drawn attention of this court that it is a criminal liability and not a civil liability as the petitioner and the petitioner's company inspite of extending time for payment has not made the payment to the complainant respondent and it is a criminal breach of trust and prima facie offence under sections 420, 406 and 120 B IPC is made out. He has further drawn attention of this court towards section 120 B IPC because it is a criminal conspiracy in which directors Managing Directors and officers of the company are involved in a scam of crores of rupees. Prima facie it is a criminal breach of trust and investigation is going on in the matter and it is not the stage of quashing FIR and criminal proceedings against the accused petitioner and petitioner's compnay's directors and officers responsible for this criminal activities played with the complainant respondent. The Public Prosecutor undertakes that the State Police officers in the Rajasthan are very fair and without any favour investigating the matters fairly and impartially and once the investigation is started this court should not interfere in the investigation. There is no abuse of the process of the court. The police is investigating the matter as per the directions of the court under section 156(3) Cr.P.C. He has further contended that if the case is of the civil nature and not criminal, the police will submit final report, otherwise the police will file charge sheet, hence the court should not interfere in the investigation. He has further contended that such type of criminal offences related to sections 420, and 406 are increasing day by day specifically in the State of Rajasthan. The people are making money. By way of filing criminal misc. petitions under section 482 Cr.P.C. such a request for quashing the FIR calling it be a civil nature which is otherwise in the nature of criminal breach of trust and cheating, hence the petition filed by the accused petitioner should be rejected and there is no question of quashing of the FIR at the stage of investigation in the case. He has further argued that the case cited by the learned counsel for the petitioner in this case is not applicable to the facts of this case. He has placed reliance on various decisions of the Apex Court in Ram Chandra and another vs. State of U.P. (AIR 1957 SC 381) The State ( Delhi Administration vs. Pall Ram ( AIR 1979 SC 14 ), Ishwari Prasad Misra vs. Mohammad Isa ( AIR 1963 SC 1728), the State of Gujrat vs. Vinaya Chandra Chhota Lal Pathi (AIR 1967 SC 778) on the points of Hand writing Expert. On the point of forgery questioning FIR G. Sagar Suri and another vs. State of U.P. ( AIR 2000 SC 754 Zandu Pharmaceutical Works Ltd. and ors. vs. Md. Sharaful Haque and others (2005) 1 SCC 122, Inder Mohan Goswami and anr., vs. State of Uttaranchal and others (JT 2007 (11) SC 499 (AIR 2008 SC 251), Joseph Salvaraj A. vs. State of Gujrat and others (2011 ) 7 SCC 59, M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd. and others (AIR 2006 SC 2780 (1), and State of Haryana and others vs. Ch. Bhajan Lal and others (AIR 1992 SC 604, and on the unimpeachable document reliance has been placed on State of Orissa vs. Devendra Nath Padhi (2005) 1 SCC 568, Suryalakshmi Cotton Mills Ltd. vs. Rajvir Industries Ltd. and others (AIR 2008 SC 1683), Anita Malhotra vs. Apparel Export Promotion Council and anr. (2012) 1 SCC 520, Pashaura Singh vs. State of Punjab and another (2009 AIR SCW 7226). He has also placed reliance on Narender G. Goel vs. State of Maharashtra and another (2009 ) 6 SCC 65. I have heard the learned counsel for the parties. Before proceeding further it would be necessary to have a look at the provisions of sections 405, 406, 420, and 120 B IPC, which read as under: "405. Criminal breach of trust.Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust". 406. Punishment for criminal breach of trust.Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 420. Cheating and dishonestly inducing delivery of property.Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." Section 120B. Punishment of criminal conspiracy.(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. It would also be necessary to have a look at the various decisions of the Apex Court on which reliance was made by the Public Prosecutor and the counsel for the petitioner.
(3.) THE Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, held as under : 21. It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under Section 482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction under Section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge. 29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case 1992 Supp (1) SCC 335. The Apex Court in Bhajan Lal's case (AIR 1992 SC 604) enunciated the following principles, which are as under : " (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. (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 Code. (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 Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, 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 grudge." The Apex Court in Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited, (2008) 13 SCC 678, held as under : "20. We may also place on record that criminal proceedings should not be encouraged when it is found to be mala fide or otherwise abuse of process of court. 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.";