PRASHANT KUMAR AGARWAL, J. - (1.) HEARD learned counsel for the parties.
(2.) THE accused -petitioner has filed this criminal misc. petition under Section 482 Cr.P.C. with a prayer to quash the FIR No.309/2012 registered at Police Station Gandhi Nagar, Jaipur City (East) for the offences under Sections 420, 406, 409 readwith Section 120 -B IPC mainly on the ground that the dispute between the parties is essentially of civil nature.
(3.) BRIEF relevant facts for the disposal of this petition are that the complainant -respondent filed a written complaint before the Court of Additional Chief Metropolitan Magistrate No.2, Jaipur Metropolitan, Jaipur with the averment that the petitioner and co -accused being partners of M/s Sunnar situated at Delhi came to the showroom of the complainant -company situated at Jaipur on 14.6.2011 and purchased gold and diamond jewelery of Rs.11,17,674/ - through Bill No.208 dated 14.6.2011 and in lieu of payment of the sale price of the aforesaid goods issued four postdated cheques with a promise that when the cheques would be presented for payment, they would be honoured by the bank of the petitioner and the co -accused. It was further averred in the complaint that the cheque dated 14.9.2011 for the amount of Rs.1,28,850/ - when presented for encashment on the due date, payment was made to the complainant -company and taking advantage of the same, the petitioner and co -accused further purchased gold and diamond jewelery of Rs.26,55,099/ - from the complainant -company on 15.9.2011 through Bill No.266 and also on 14.10.2011 of Rs.13,14,639/ - through Bill No.235 without making any cash payment or giving cheques against the sale price with the promise that payment of sale price of these items will be made within a period of 120 days. It was further averred that when the remaining above three cheques were presented for encashment, the same were dishonoured by the reason that sufficient fund was not available in the bank account of the petitioner and co -accused. It was also averred that on the direction of the petitioner and co -accused the aforesaid cheques were again presented in the bank concerned for payment, but again payment could not be made. It was averred that when their efforts to get the payment of the remaining amount could not succeed, on enquiry being made by the complainant -company it was found that the petitioner and co -accused have closed their business and by selling all the goods available with them they have misappropriated the sale proceeds for their own use. It was also averred that the aforesaid act of the petitioner and co -accused is an offence punishable under Sections 420, 406, 409 readwith Section 120 -B IPC. The written complaint so filed by the complainant -company was sent for investigation under Section 156(3) Cr.P.C. to Police Station Gandhi Nagar, Jaipur where the aforesaid FIR was registered and investigation commenced. In these circumstances, one of the accused is before this Court by way of this petition. In support of the petition, learned counsel for the petitioner raised following grounds : (i) Even if the facts averred in the complaint are taken up at their face value and treated to be true in entirety even then it is manifest that the dispute between the parties is purely of civil nature, as it relates to a business transaction allegedly taken place between the parties and at the most it is a case of non -payment of sale price of certain goods which were allegedly sold by the complainant -company to the petitioner and co -accused and, therefore, no offence of any kind can be said to be committed by the petitioner and/or by the co -accused. (ii) The appropriate remedy available to the complainant -company was to file a recovery suit against the petitioner and the co -accused, but taking advantage of the fact that the complainant -company is situated at Jaipur, it with connivance with the police got registered the aforesaid FIR with a sole purpose of harass, pressurize and humiliate the petitioner and co -accused so that its illegal demand of money can be fulfilled. (iii) It is well settled legal position that for an offence to be made out under Section 420 IPC, it is essential to show that from the very beginning i.e. when the offence of cheating was committed, the accused had a fraudulent or dishonest intention to cheat the complainant, but in the present case even prima facie no facts/allegations have been shown by the complainant that the petitioner and co -accused had such intention on 14.6.2011 when they allegedly purchased gold and diamond jewelery from the complainant and issued four cheques towards payment of the sale price. (iv) Although, subsequent conduct of an accused is not a relevant factor to infer his fraudulent or dishonest intention at the time of commission of offence of cheating, but even if for the sake of arguments, it is admitted that subsequent conduct of accused is also relevant to determine his initial intention but in the present case there is no such conduct of the petitioner and co -accused even prima facie showing that they had fraudulent or dishonest intention at the time when offence under Section 420 IPC was allegedly committed. Merely because the entire sale price was paid through postdated cheques, three of the cheques were dishonoured by the reason that sufficient fund was not available in the bank account and the petitioner and co -accused closed their business without any reasonable cause after selling all goods available with them cannot be said to be such a conduct by which it can be inferred that he and co -accused had the aforesaid intention from the very beginning. From the averments made in the complaint, it is clear that the complainant was fully satisfied with the financial and business condition of the petitioner and co -accused and without any hesitation agreed to sale jewelery items against postdated cheques. If the petitioner and the co -accused would be having any fraudulent or dishonest intention from the very beginning there was no question of payment of the first cheque dated 14.9.2011. (v) Even the essential ingredients for commission of offence under Section 406 IPC are not available in the present case. For such an offence, apart from others, it is necessary to show that the accused was "entrusted" with some property or had dominion over it, whereas in the present case no such entrustment or dominion over the jewelery can be said to be disclosed from the complaint as it is the case of complainant itself that the goods were sold to them against payment of sale price. It cannot also be said that the goods so handed over to the accused were misappropriated by them or they dishonestly converted the same for their own use or disposed of it in violation of any legal contract entered between them, as it is clear from the averments made in the complaint that the goods were handed over to the petitioner and co -accused as a result of sale transaction against price and they were entitled to use it according to their free will. (vi) So far as offence under Section 409 IPC is concerned, it is not at all made out, as offence under this provision can be committed only when the accused is either a public servant or a banker or a merchant or a factor or a broker or an attorney or an agent. It is not even the case of complainant itself that the goods in question were entrusted to the petitioner and co -accused in any of the aforesaid capacity. (vii) Similarly, offence under Section 120 -B IPC is also not disclosed because the essential ingredients as enumerated in Section 120 -A IPC are not available. It has not been averred in the complaint itself that the petitioner and co -accused entered into an agreement to cheat the complainant. (viii) Although, it is well settled legal position that High Court while exercising its discretionary jurisdiction under Section 482 Cr.P.C. or Article 226 of the Constitution of India can quash an FIR only when it is found by it that even if the facts stated or allegation levelled in it are taken up entirely true, even then no offence is made out, but at the same time it is also well settled legal position that if by way of registration of FIR an attempt has been made to give criminal colour to a dispute, which is essentially civil in nature, the Court is empowered to exercise its discretion and to quash such FIR to prevent the abuse of process of law. (ix) It is well settled legal position that essential averments are required to be made in the complaint/FIR regarding fraudulent and dishonest intention of the accused at the time of commission of the offence i.e. at the very beginning of the transaction, but in the present case such essential averments have not been made. Similarly, in the notice dated 16.5.2012 sent by the complainant -company through his counsel essential averments regarding commission of aforesaid offences or any of them were not made. A close look at the notice shows that only a demand of remaining sale price alongwith interest @ 18% per annum as damages and expenses of notice was made, which fact further shows that at that time the complainant was of the view that the dispute between the parties is only for non -payment of the sale price, but subsequently without any foundation the criminal complaint was filed before the Court. (x) The letter dated 25.5.2012, which has been filed alongwith the petition, shows that Sales Executive (Mr. Hemendra) of the complainant -company submitted this letter before SHO, Subhash Palace Thana, Delhi with the averment that gold jewelery of Rs.11 lac was delivered by him to the showroom of the petitioner and co -accused against which the petitioner handed over signed cheques to him in favour of the complainant -company. This letter clearly shows that the business transaction between the parties actually took place at Delhi and not at Jaipur as alleged in the complaint and that is why the Sales Executive Mr. Hemendra submitted the aforesaid letter before a police station at Delhi. This fact shows that even if an offence was committed by the petitioner and/or the co -accused, it was committed at Delhi and not at Jaipur and it has wrongly been registered at Jaipur by concealing essential and relevant facts. (xi) The copy of the plaint filed alongwith the petition shows that the dispute regarding payment of Rs.1,48,000/ - arose between the parties and recovery suit was filed on behalf of the partnership firm of the petitioner and co -accused against the complainant -company at a Delhi Court on 12.2.2013. Thus, when there is already a civil suit pending between the parties regarding payment/repayment of money, the complainant -company has a right to make its submission regarding non -payment of the sale price by the petitioner and co -accused in the aforesaid suit. (xii) In view of the legal position that undisputed documents filed by the accused can also be seen while considering the issue of quashing of an FIR, in the present case the letter dated 25.5.2012 and copy of the plaint dated 12.2.2013 can be taken into consideration by this Court while arriving at a conclusion whether the FIR is liable to be quashed or not in the present case. (xiii) The appropriate criminal remedy available with complainant was to file complaint for offence under Section 138 of N.I. Act but the same was not pursued and when the period of limitation expired, present complaint was filed without any foundation for any of the offence alleged therein. ;