TMI Blog2021 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C. - merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments - However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C. As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibute the products manufactured by the company. That in the year 2014, the company terminated the contract of distributorship, which according to the appellants was due to non-payment of dues by respondent no.1 herein original complainant. According to the appellants, thereafter on reconciliation of accounts and as per the statement of accounts maintained by the company, after adjusting of all claims and security deposit, a sum of ₹ 9,46,280/- was found to be outstanding upon the complainant, towards the material supplied to him. The complainant issued a cheque dated 15.09.2014 in favour of the company VBL. The said cheque was presented for encashment on 22.09.2014. The same was dishonoured and returned unpaid by the banker of the complainant due to insufficient funds . That thereafter, due to non-payment after the issuance of the statutory legal notices, appellants herein filed a criminal complaint under Section 138 of the Negotiable Instruments Act on 07.11.2014 against R1 and his company Thakur Trading, in the Court of Chief Judicial Magistrate, Ghaziabad being Complaint Case No. 7652/2014. R1 has been summoned to face the trial. The said complaint is presently pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56(3) Cr.P.C., which is pending consideration before the learned Magistrate since 2015. At this stage, it is required to be noted that the said FIR is filed against Kapil Agarwal, appellant No.1 Director, Sharad Garg, appellant No.2 Multi Unit Manager and Deepak Sharma, appellant No.3 Sales Head. That thereafter the appellants approached the High Court under Article 226 of the Constitution of India being Criminal Miscellaneous Writ Petition No. 18308 of 2017 for quashing the aforesaid FIR being Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border, District Ghaziabad. By the impugned judgment and order, the High Court has refused to quash the FIR observing that the impugned FIR, prima facie, discloses commission of cognizable offence. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court refusing to quash the FIR being Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border, District Ghaziabad, the original accused have preferred the present appeal. 3. Shri K.V. Vishwanathan, learned Senior Advocate appearing on behalf of the appellants has vehemently submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed certain monies to the company which the company did not pay to him at his request. It is submitted that the company VBL is not even made an accused and the appellants are joined as an accused in their individual capacity as Director, Multi Unit Manager and Sales Head. It is submitted that in order to make out a case under Section 406 IPC against the appellants, there must be an allegation that R1 entrusted the appellants in their personal capacities, not as VBL officers, with the relevant commissions/benefits. 3.8 It is further submitted that even from the bare perusal of the contents of the impugned FIR, the essential ingredients of offence of cheating under Section 420 IPC are completely missing. It is submitted that there is no allegation that the appellants either, (a) deceived R1 by making any false or misleading representation; or dishonestly concealed some matter from R1; or by any other act or omission; (b) fraudulently or dishonestly induced R1 to deliver the cheques allegedly handed over as security, or to agree to entrust the claimed commissions/benefits to VBL; or to do or omit to do anything which R1 would not have done or omitted to have done if he were not de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a complaint case under Section 200 Cr.P.C. Aggrieved, the complainant preferred criminal revision before the learned Sessions Court, which on 8.7.2015 set aside order dated 23.03.2015 and remanded the case back to the learned Magistrate to consider the material on record and decide the complainant s application under Section 156(3) afresh by a reasoned order. It is submitted that once again a closure report was submitted by the very same investigating officer who earlier submitted the closure report. It is submitted that as the learned Magistrate did not pass any order on the closure report and kept the application under Section 156(3) under consideration for long, much to the agony of the complainant craving justice, the complainant was constrained to file the impugned FIR, making serious allegations against the company and its officers appellants herein. It is submitted that, however, the police arrayed the appellants as an accused for the offences under Sections 420/406 IPC, although the facts therein disclosed commission of offences under Sections 467, 468, 471 IPC for forging complainant s blank cheque No. 038611, out of five blank cheques lying with the company as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 156(3) Cr.P.C. does not prejudice the appellants in any manner. It is submitted that even otherwise as per Section 210 Cr.P.C., the proceedings before the Magistrate during pendency of the investigation by the police in the FIR are required to be stayed by the learned Magistrate. It is submitted that the subsequent registration of FIR on the very same set of allegations, as in the pending complaint, does not confront any law. 4.7 Now so far as the submission on behalf of the appellants that the company is not joined as an accused in the FIR is concerned, it is submitted that, as such, police ought to have included the company as an accused with the appellants in the FIR. It is submitted that the appellants named in the FIR have not disputed that they are principal functionaries of the company and had been responsible for the operations of complainant s dealership in all respects. It is submitted that the appellants cannot draw any benefit for absence of company as their co-accused. Company can be arrayed as an accused by the police in the chargesheet after collecting evidence. It is submitted that even if by any chance the police omit to do so, the trial Court has pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. At this stage, Section 210 Cr.P.C. is required to be referred to, which reads as under: 210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into weapon of harassment. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed. 6.2 As held by this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641 , Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice. Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution. 7. Applying the law laid down by this Court, referred to hereinabove, to the facts of the case on hand, subsequent FIR filed by the respondent original complainant can be said to be an abuse of process of law and the same to be bringing pressure on the accused, which can be demonstrated from the following facts: i) cheque no. 038611 was presented for encashment and the same came to be dishonoured by the banker of the complainant due to insufficient funds ; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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