HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED CR. MISC. APPLICATION U/S 482 NO. 43996 OF 2014 [ENTITY] s/o Late Sri J. P. Aggarwal, r/o 4, Shankracharya Marg, Civil Lines, Delhi -110054 Applicant Versus
1. [ENTITY],
2. [ENTITY], Director, Progressive Shelters Private Ltd., O-92, Sector-12, NOIDA, District Gautam Budh Nagar Opp. Parties Counsel for the applicant : Sri [ENTITY], Counsel for O. P. No. : AGA Counsel for [ACT] : Sri [ENTITY] CORAM :
HON'BLE ANIL KUMAR SHARMA, J The applicant has invoked the inherent jurisdiction of the Court u/[SECTION] [ACT] for quashing the order dated 9.6.2014 passed by the 1st Addl. Chief Judicial Magistrate, Gautam Budh Nagar in [CASE NUMBER] [ENTITY] Vs. [ENTITY] arising out of case crime no. 182 of 2014 u/[SECTION] and [SECTION] [ACT] [CASE NUMBER], District Gautam Budh Nagar as also to quash the entire proceedings of the case.
2. It appears that the [ACT], as Director of Progressive Shelters Pvt. Ltd (PSPL) filed an application u/[SECTION] [ACT] against the applicant, who is admittedly one of the directors of BLS Infrastructure Ltd., and 19-others for commission of offence punishable u/[SECTION] and [SECTION] [ACT] in the Court of Chief Judicial Magistrate, whereupon an FIR was registered under the orders of the Magistrate on 18.3.2013 in [CASE NUMBER]. However, after investigation, the police filed final report, which was objected to by opposite party through protest petition dated 30.4.2014 and the learned 1st Addl. Chief Judicial Magistrate, Gautam Budh Nagar vide order dated 9.6.2014 allowing the protest petition had rejected the final report and has taken cognizance u/[SECTION] [ACT] against the applicant, his brothers [ENTITY] and [ENTITY], son [ENTITY] and 4 others for commission of offence punishable u/[SECTION] and [SECTION] [ACT]. Only the applicant has come up to challenge the aforesaid impugned order as also the entire proceedings of the criminal case arising out of [CASE NUMBER].
3. Indisputably after registration of the FIR aforesaid at the instance of opposite party no. 2, the applicant, [ENTITY], [ENTITY], [ENTITY] and [ENTITY] filed Cr. Misc. Writ Petition no. 5925 of 2013 for the following reliefs :
I. Issue a writ, order or direction in the nature of certiorari quashing the first information report registered vide [CASE NUMBER], under section[SECTION], [SECTION], 467, 468, 471, 120-B, 506/34 I.P.C. dated 18.3.2013 lodged by respondent no. 3.
II. Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 and his subordinate officials not to arrest or harass the petitioners in pursuance of the order directing the further investigation in the case.
III. Issue any other writ, direction or order or grant such other and further relief as may be deemed fit and proper in the circumstances of the case.
IV. Award costs of the petition to the petitioners.
4. A division bench of the Court vide order 24.4.2013 refused to quash the impugned FIR as prima facie commission of cognizable offence was found and there was no legal bar in lodging of the FIR. However, considering the argument of the counsel for the petitioners that on account of contractual dispute, the impugned FIR had been lodged, the petition was disposed of with the directions that the petitioners will not be arrested in the above mentioned case till the credible evidence is not collected by the I. O. during investigation in view of the law laid down by the Apex Court in the case of Joginder Kumar Versus [ENTITY] 1994 Cr. L. J. 1981.
5. It is not disputed that tender for improvement and up gradation of 28 Govt. school buildings in Delhi was awarded by the DSIIDC, Delhi Govt. to accused company i. e. BLS Sumer JV, who in turn engaged the complainant's (O.P. No. 2) company to execute the work and for this purpose MOU was signed. It was alleged in the FIR that JV Company approached OP no. 2 at his NOIDA office through its authorised signatory intimating about the grant of aforesaid contract through letter of acceptance dated 1.10.2009 accepting their tender dated 4.9.2009. Subsequently one of the Directors of the JV Company namely Sri [ENTITY] met OP no. 2 at his NOIDA office as representative of his company and giving details of the contract expressed desire to sublet the contract by intimating that the money received from DSIIDC would be transferred to the contractor executing the work. The OP no. 2 agreed to execute the work as per terms of the MOU and JVC made him to deposit a cheque of Rs. 25.0 lacs and other for Rs. 225 lacs before execution of MOU. It was mentioned in the MOU that the entire work would be executed by PSPL at its own cost and the cheques were given on the assurance that they would be kept as security and would not be misused. The two cheques aforesaid drawn on UCO Bank, NOIDA Complex were given by OP no. 2 to JVC and thereafter MOU was signed on 3.11.2009, but despite several requests, the agreement between DSIIDC and the accused was not shown. The work order was given to first informant, who put his entire resources for the execution of the work and mortgaged his two properties located at O-92, Sector-12 NOIDA and two storied house in 1000 sq. yards situated at Bisrakh Road, Ghaziabad. It was further alleged in the report that OP no. 2 was deceived into accepting the work and the cheques allegedly taken as security were encashed by the accused only two days thereafter on 5.11.2009, as they were scared that OP no. 2 may leave execution of work on knowing the correct and true facts. During the course of time, the complainant came to know that the assurances given to him by the applicant and his associates were fake and based on fabricated documents. He further came to know that DSIIDC has not authorized the accused company (JVC) to sub-let the work and OP no. 2 was deceived by the accused persons in execution of the MOU and the accused had colluded to defraud the complainant for crores of rupees. It was specifically averred in the FIR that the accused did not deliberately disclose the terms of contract/agreement between the JVC and the DSIIDC, which was running into 1500 pages on the premise that the same was still under signature of the officials of DSIIDC. The report concluded that a sum of Rs. 4,32,83,482.00 were still outstanding against the accused company.
6. The applicant and opposite party no. 2 have exchanged affidavits, their learned counsel have been heard at length and record has been perused.
7. Learned counsel for the applicant castigating the impugned summoning order dated 9.6.2014 has vehemently argued that the dispute between the parties is purely of contractual and civil nature, therefore, resorting to criminal case is whollly unwarranted and illegal; that the Court at Gautam Budh Nagar has no jurisdiction to entertain the complaint and the police has also filed final report on these lines. Lastly it has been contended that the civil and arbitration cases relating to the contract in question are pending in Delhi Courts and the real dispute is regarding share of money under the contract.
8. Refuting the above arguments, learned counsel for OP no. 2 has submitted that the instant application u/[SECTION] [ACT] is not maintainable as the impugned order being a final order is revisable u/[SECTION] [ACT], so when statutory remedy is available to the accused he or they cannot resort to the inherent jurisdiction of the Court. In the criminal writ petition filed by the applicant and four others for quashing the FIR similar pleas were taken and after hearing the counsel for the petitioners and considering all the pleas, a Division Bench of the Hon'ble Court has prima facie found commission of cognizable offence and thus declined to quash the FIR, so the applicant who was one of the petitioner cannot reagitate the same in this application, argued the learned counsel for the OP no. 2 and as such the instant application is misuse of the process of the Court. Lastly it has been contended that there are many serious disputed facts between the parties touching the jurisdiction of the Court as well, which cannot be adjudicated in these proceedings and the applicant may raise these pleas at appropriate stage of the criminal proceedings before the trial Court. He has placed reliance on the cases of [ENTITY] Vs. [ENTITY] (2013) 7 SCC 789 and [PRECEDENT] and another Vs. [ENTITY] And another (2012) 10 SCC 741.
9. Learned counsel for the applicant has referred to the following cases to contend that as per the averments made in the complaint no offence u[SECTION] or [SECTION] [ACT] is made out against the applicant.
i) [PRECEDENT];
ii) [PRECEDENT].
10. I have perused these reports carefully, but in the facts of this case, since division bench of the Court in [CASE NUMBER] has already found that the allegations made in the complaint do prima facie show commission of cognizable offence u/[SECTION] and [SECTION] [ACT], the proceedings cannot be quashed simply on the ground that they are commercial or business transactions. In the case of [PRECEDENT], the Hon'ble Apex Court has observed as under:
"12. The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a calendar of finest gauzes for testing the ingredients under [SECTION], [ACT]. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved."
It was further observed by the Hon'ble Court that -
"It may be It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions".
" The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not."
11. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test.
12. In a recent case of Arun Bhandari Vs. [ENTITY] and others (2013) 2 SCC 801, the Apex Court has observed as under:
24. At this stage, we may usefully note that some times a case may apparently look to be of civil nature or may involve a commercial transaction but such civil disputes or commercial disputes in certain circumstances may also contain ingredients of criminal offences and such disputes have to be entertained notwithstanding they are also civil disputes. In this context, we may reproduce a passage from [PRECEDENT] :
"8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes (See G. Sagar Suri Vs. [ENTITY] (2000) 2 SCC 636 and [PRECEDENT]."
13. For considering the arguments advanced by the learned counsel for the applicant on disputed factual questions between the parties, evidence would be required, so they cannot be decided by the Court in these proceedings. However, the complaint filed by O. P. no. 2 clearly makes out prima facie case against the applicant for trial along with other accused. At this stage, the defence of the applicant on disputed questions of fact cannot be considered.
14. In the case of [PRECEDENT] (supra), the Apex Court has observed that the question of territorial jurisdiction could be decided by the trial Court itself. The parties have made allegations and counter allegations about the venue where the deal in question was finalized. The [ACT] has spelled out facts conferring jurisdiction on Court situated in district Gautam Budh Nagar in the FIR itself. However, ultimate decision on this issue would be taken by the trial Court, as observed by the Apex Court in the above noted case.
15. Now as regards inherent powers of the High Court u/[SECTION] [ACT] to quash the proceedings of criminal case pending before the Magistrate at initial state, it is trite that exercise of such jurisdiction to have the complaint or the charge sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. The complaint or the First information report sets the ball to roll and then the law takes its own course and the investigation ensues in accordance with the provisions of the Code. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. However, if on perusal of the complaint or the charge sheet the Court is able to conclude that the allegations contained therein on the face of it does not constitute or disclose any offence, there ought not to be any hesitation to deal with the situation as is required under the law. Generally criminal proceedings in the normal course of event ought not to be scuttled at the initial stage unless the same amount to an abuse of the process of law.
16. Learned counsel for the applicant in support of his argument has referred to the following cases:
I) [ENTITY] and Ors. Vs. State and Ors. (1980) 1 SCC 43;
II) [PRECEDENT];
III) [ENTITY] Vs. [ENTITY] 1985 (1) Crimes 129;
IV) [ENTITY] Vs. 1st Addl. Chief Judicial Magistrate (1996) 33 ACC 879;
V) [PRECEDENT];
VI) [PRECEDENT];
VII) [PRECEDENT].
17. In the case of [PRECEDENT] (supra), the Apex Court has considered the cases of [ENTITY] and [PRECEDENT] (supra) relied upon by the counsel for the complainant. In the cases of [ENTITY], [ENTITY] and [PRECEDENT] (supra) the Magistrate has taken cognizance u/[SECTION] [ACT] on private complaint, but in the instant case, the learned Magistrate has passed the order u/[SECTION] [ACT] on the basis of evidence collected by the investigating officer and contained in the case diary and he has not taken recourse to enquiry under [SECTION] [ACT] on protest petition of the [ACT]. The case of [PRECEDENT] (supra) pertained to the territorial jurisdiction of the Court. It was a case in which cognizance had been taken by the Magistrate for commission of offence punishable u/[SECTION] [ACT]. No doubt in the case of [PRECEDENT] (supra), the Apex Court has observed that availability of alternative remedy of filing revision u/[SECTION] [ACT] could not be a ground to dismiss application u/[SECTION] [ACT] In this case also cognizance against the appellants was taken by the court of Magistrate u/[SECTION] [ACT] on complaint filed for commission of offences under [ACT]. In this case, it has also been held by the Hon'ble Court that order of issuing summons is not an interlocutory order within the meaning of [SECTION] [ACT]
18. In [PRECEDENT] after referring to the decisions in [PRECEDENT] and [PRECEDENT] the Apex Court culled out the following propositions with respect to the powers of the High Court u/[SECTION] [ACT]: -
"15. Propositions of law which emerge from the said decisions are:
a. The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
b. For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
c. Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
d. If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
Thus, applying the above tests to the facts of the instant case, it is clearly borne out that the instant complaint of respondent no. 2 is not in any manner abuse of process of the Court.
19. It is pertinent to note that the impugned order is revisable under [SECTION] [ACT], but the applicants without availing the statutory remedy have invoked the inherent jurisdiction of the Court u/[SECTION] [ACT], which in the facts and circumstances of the case cannot be exercised in favour of the applicants as there is no abuse of process of the Court. In the case of [ENTITY] (supra), the Apex Court has observed as under:
"So far as the inherent power of the High Court as contained in [SECTION] of the [ACT] is concerned, the law in this regard is sete at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisions jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the [ACT] for redressal of the grievance. It is well settled that inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged."
20. On the law of precedents, it is well settled that a judgment of a Court is only an authority for what it actually decides and not what logically follows from it and judgment of the Court is not to be read mechanically as a Euclid's Theorem nor as if it was a statute. The Hon'ble Apex Court has held in [PRECEDENT] that it is well settled that a judgment of a Court is not to be read mechanically as a Euclid's Theorem nor as if it was a statute. In [PRECEDENT] (vide paragraph 59, the Hon'ble Apex Court observed:-
"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision".
The same view was taken by the Hon'ble Apex Court in [PRECEDENT] and in [PRECEDENT]. Thus, the facts of the later view expressed by the Apex Court in the case of [ENTITY] is quite similar to the facts of the instant case, because in both the cases, the Magistrate has passed impugned orders in case arising out of police report exercising statutory powers. In the former case, order was passed u/[SECTION] [ACT] while in the case in hand, the order dated 9.6.2014 has been passed by the learned Magistrate by exercising powers u/[SECTION] [ACT]
21. As noticed above, it is trite to state that power under [SECTION] of the [ACT] should be exercised sparingly and with the circumspection only when on the basis of material on record, the Court is convinced, that allowing the proceedings to continue would be an abuse of process of Court or that the ends of justice require that the proceedings be quashed. In the facts and and circumstances of this case, it is found that the applicant has failed to make out any case for interference by this Court either to quash the impugned order or the criminal proceedings pending before the trial Court. The application is accordingly dismissed.
January 15, 2015 ([ENTITY], J) Imroz/-