TMI Blog2024 (3) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... RSUS NEPC INDIA LTD ORS [ 2006 (7) TMI 575 - SUPREME COURT] has held that A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. From the foregoing enunciation of the law on the subject, it is clear that a commercial transaction or a contractual dispute apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. It is also clear that the scope of a civil proceeding is different from a criminal proceeding and the mere fact that the allegations relate to a commercial transaction or breach of contract for which a civil remedy is available, is not by itself a ground to quash the criminal proceedings. In the present case, the petitioner-Mohd Afzal Bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence set up by the petitioners particularly the petitioners-Abdul Rashid and Fehmida Kouser can be looked into by the Investigating Agency during the investigation of the case and not by this Court in their proceedings by holding a mini trial. Having regard to the fact that allegations made in the impugned FIR disclose commission of cognizable offences, therefore, exercise of jurisdiction under Section 482 Cr.P.C. to quash the proceedings in the instant case would amount to stifling a legitimate prosecution, which is not permissible in law. There are no merit in the instant petitions. The same are dismissed. - HON BLE MR. JUSTICE SANJAY DHAR, JUDGE For the Petitioner : Mr. Gagan Basotra, Sr. Advocate with Mr. M. Nadeem Bhat, Advocate For the Respondent : Ms. Monika Kohli, Sr. AAG Mr. Sumir Pandita, Advocate Investigating Officer-Bhagwan Dass Dandia, Dy. SP, Crime Branch, Jammu present in person. For the Petitioner : Mr. Bodh Raj Sharma, Advocate For the Respondent : Ms. Monika Kohli, Sr. AAG Mr. Sumir Pandita, Advocate JUDGMENT 1. By this common judgment two petitions, one filed by the petitioners Fahmida Kouser and Mohd. Afzal Beigh (CRM(M) No. 855/2023) and the other filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by petitioner-Mohd Afzal Beigh wherein he admitted having received an amount of Rs. 1.80 crores as also issuance of five cheques for an amount of Rs. 1.80 crores. He also agreed to refund the amount along with the penalty. 4. According to the complainant, the petitioner-Mohd Afzal Beigh had fraudulent intention from the very inception as he represented himself to be owner of the land in question though he was not. It is also alleged in the impugned FIR that an affidavit dated 27.03.2023 was forged by the above-named petitioner to show that the complainant had received back the whole amount though she had not received any amount. Thus, according to the complainant, the petitioners have defrauded her thereby causing wrongful loss to her and wrongful gain to themselves. 5. On the basis of the aforesaid complaint, the impugned FIR came to be registered and the investigation of the case was set into motion. During investigation of the case, it appears from the perusal of the Case Diary, the Investigating Agency has recorded the statements of witnesses acquainted with the facts of the case, the affidavits and the agreement to sell, reference whereof is made in the impugned FIR, have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apt to deal with the preliminary objection raised by the learned Counsels appearing for the petitioners about the jurisdiction of the respondent-Crime Branch to investigate the impugned FIR. In this regard, learned Counsels appearing for the petitioners have submitted that if at all the contents of the impugned FIR are taken to be true, it would be a case of cheating simplicitor having no inter-district ramifications therefore, respondent-Crime Branch did not have jurisdiction to investigate the said FIR. In this regard, the learned Counsels have placed reliance upon the ratio laid down by this Court in the case of Kamlesh Devi and others vs State of J K and others CRMC No. 144/2013, decided on 29.11.2022. 11. In the aforesaid case, a coordinate Bench of this Court has, after relying upon the judgment of the Division Bench passed in State vs Muneer Ahmed and others, Cr. Rev. No. 78/1998, decided on 28.08.2002, held that the Crime Branch was competent to register and investigate the cases specified in notification SRO 202 dated 03.06.1999 only. As per the said SRO, cases of fraud, theft or cheating of a peculiar nature which affect more than one district can be investigated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in exercise of its jurisdiction under Section 482 Cr.P.C. can quash impugned proceedings. This issue has been discussed and deliberated upon by the Supreme Court in the case of M/s Indian Oil Corporation v. M/s NEPC India Limited and others, (2006) 6 SCC 736. The Court after noticing its earlier judgments on the issue went on to observe as under: 12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Pharmaceuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C., more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may. 16. From the foregoing enunciation of the law on the subject, it is clear that a commercial transaction or a contractual dispute apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. It is also clear that the scope of a civil proceeding is different from a criminal proceeding and the mere fact that the allegations relate to a commercial transaction or breach of contract for which a civil remedy is available, is not by itself a ground to quash the criminal proceedings. 17. Adverting to the facts of the instant case, it is alleged that petitioner-Mohd Afzal Beigh has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted. 20. In the instant case, as already stated, petitioner-Mohd Afzal Beigh knowing/fully well that he was not owner of the property in question, represented to respondent No. 2 that he is the owner of the property and agreed to sell the property in question to her for a sale consideration of Rs. 2.25 crores. This false representation induced respondent No. 2 to pay an amount of Rs. 1.80 crores as is being alleged in the impugned FIR. Thus, the fraudulent intention on the part of petitioner Mohd Afzal Beigh was existing there from the very inception of the transaction between the parties. It is not a case where petitioner-Mohd Afzal Beigh was owner of the property and he had agreed to sell the said property to respondent No. 2 and for any reason, he could not execute the sale deed, but it is a case, where he falsely represented to respondent No. 2 that he is owner of the property in question, which he was not. So from the very beginning, he was knowing that it was not within his power and competence to execute the sale deed in respect of the land in question in favour of respondent No. 2, but despite this, he entered into agreement to sell with respondent No. 2 and made her to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas an offence under Section 420 IPC is constituted, the moment the transaction is entered into by the accused with the complainant with a fraudulent intention. So the gist of offence under Section 420 IPC is the fraudulent intention at the inception of the transaction, whereas the gist of offence under Section 138 of Negotiable Instruments Act is failure to pay the cheque amount within 15 days of the receipt of the demand notice. These are entirely two different offences and as such, it cannot be stated that just because petitioner-Fehmida Kouser has been prosecuted by complainant party for offence under Section 138 of Negotiable Instruments Act, she cannot be investigated for offence under Section 420 IPC. 24. Even otherwise the question whether the petitioner-Fehmid Kouser and Abdul Rashid Beigh are involved in the conspiracy, is a matter of investigation and at this stage, when the investigation is still in progress, it would not be open to this Court to render any opinion about the role of the above-named petitioners. However, one thing is clear from the analysis of the statement on record that the allegations made in the impugned FIR and the material collected by the Inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted within the aforesaid parameters, the High Court must clarify what does it mean by no coercive steps to be adopted as the term no coercive steps to be adopted can be said to be too vague and/or broad which can be misunderstood and/or misapplied. 26. From the foregoing enunciation of the law on the subject, it is clear that the power under Section 482 Cr.P.C. to quash the criminal proceedings has to be exercised sparingly only in deserving cases in the circumstances illustrated in the aforesaid judgment. Even allegations of mala fides against the informant by itself is not a ground for quashing the criminal proceedings. The defence set up by the petitioners particularly the petitioners-Abdul Rashid and Fehmida Kouser can be looked into by the Investigating Agency during the investigation of the case and not by this Court in their proceedings by holding a mini trial. Having regard to the fact that allegations made in the impugned FIR disclose commission of cognizable offences, therefore, exercise of jurisdiction under Section 482 Cr.P.C. to quash the proceedings in the instant case would amount to stifling a legitimate prosecution, which is not permissible in law. 27. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
