Criminal Misc. No. M-1666 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-1666 of 2008 Date of Decision: 26.02.2010 1. Mipandeep Singh Oberoi s/o Gurmeet Pal Singh Oberoi; 2. Gurmeet Pal Singh Oberoi son of Hardev Singh Oberoi; both residents of H. No. 1768, Brahamputra Apartment, Sector 29, Noida (UP). ... Petitioners Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. J.S. Bhatia, Advocate, for the petitioners. Mr. Raghbir Chaudhary, Sr. Deputy Advocate General, Punjab, for the respondent – State. Mr. J.S. Gill, Advocate, for the complainant. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 203, dated 22.09.04, under Sections 120-B 406, 409 and 420 IPC, P.S. Shimlapuri, Ludhiana (Annexure P3), and all the consequential proceedings, arising out of the same, has been filed by the petitioners. 2. The facts, in brief, are that, on 02.05.03, Amandeep Singh, Criminal Misc. No. M-1666 of 2008 2 complainant, started a business with the petitioners, as a partner, under the name and style of M/s Gem International Traders, 235, Street No. 3, Dashmesh Nagar, Link Road, Ludhiana. It was stated that the bank accounts of the aforesaid firm, were to be looked after and managed by petitioner No. 2, being a retired bank officer. It was further stated that, in the month of December, 2003, the aforesaid partnership firm, opened a new account with the State Bank of India, Civil Lines, Ludhiana, and got sanctioned a limit of Rs. 10 lacs, for running its affairs. It was further stated that, after some days, it came to the knowledge of the complainant, that the petitioners, in connivance with each other, defrauded him, and, as such, embezzled the funds, to the tune of Rs. 1.28 crores of the firm through a current account, being operated in the name and style of Gem International, Ludhiana, showing himself the proprietor thereof. Ultimately, the aforesaid FIR, was got registered. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioners, submitted that somewhere, in May, 2003, the complainant, showed his willingness, to join petitioner No. 1, as one of the partners, in the firm M/s Gem International Traders. He further submitted that, petitioner No. 1, and the complainant/respondent No. 2, entered into a partnership, on 02.05.03, under the name and style of Gem International Traders, 325, Street No. 3, Dashmesh Nagar, Link Road, Ludhiana. He further submitted that the said partnership firm took over the Criminal Misc. No. M-1666 of 2008 3 business of the proprietorship concern, earlier owned by petitioner No. 1, namely Mipandeep Singh Oberoi, which was already under the name and style of M/s Gem International Traders. He further submitted that petitioner No. 2 Gurmeet Pal Singh, who is the father of petitioner No. 1, was looking after the accounts of the firm. He further submitted that the bank accounts, were to be operated upon, by both the partners. He further submitted that disputes, arose between the partners, as a result whereof, the statement of account of the partnership firm M/s Gem International Traders, was prepared, on the basis of books of account, from 02.05.03 to 31.03.04, by the Chartered Accountant. He further submitted that the Chartered Accountant, did not find that any embezzlement, having been made, by the petitioners, by opening a separate account, as a proprietor and siphoning of the funds of the partnership firm. He further submitted that, even two enquries, were held,by two higher Police Officers, who did not find, that there was any embezzlement, on the part of the petitioners. He further submitted that the father of the complainant, being retired as higher Police Officer, exercised influence and, ultimately, got a false FIR registered, against the petitioners. He further submitted that, at the most, it was a case of rendition of accounts. He further submitted that a civil dispute, was turned into a criminal case, just with a view, to harass the petitioners. He further submitted that the petitioners, never cheated the complainant. He further submitted that, even the matter, was referred, to the Arbitrator, and the proceedings, are pending, before him. He further Criminal Misc. No. M-1666 of 2008 4 submitted that, since the FIR, is attended with malafides, the same alongwith the subsequent proceedings, is liable to be quashed. 5. On the other hand, the Counsel for respondent No. 1, as also the complainant, submitted that the FIR, was registered, after due enquiry. They further submitted that the petitioners, defrauded the complainant of crores of rupees, in active connivance with each other. They further submitted that, though, petitioner No. 1, entered into partnership with the complainant, he did not inform the concerned bank, in which, they already had a bank account, for the change of the status of the concern, from proprietorship to partnership firm. They further submitted that the petitioners, opened a new account, in the State Bank of India, in the name of proprietorship concern and got sanctioned limit of 10 lacs, for running the affairs of the firm. They further submitted that the petitioners, used to withdraw the money, for the purchase of goods and thereafter, used to deposit the money, in the account of the proprietorship concern, maintained in the State Bank of India. They further submitted that, in this manner, the petitioners, cheated the complainant. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process Criminal Misc. No. M-1666 of 2008 5 of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1)Where the allegations made in the First Information Report or the complaint, even if Criminal Misc. No. M-1666 of 2008 6 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 Criminal Misc. No. M-1666 of 2008 7 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 concerned Act (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 concerned Act, 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. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. Criminal Misc. No. M-1666 of 2008 8 7. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. Though, the dispute, is between the partners of a firm, and in the normal course, in such like cases, rendition of accounts, is the efficacious remedy, yet, the bare perusal of the allegations, contained in the FIR and the documents, attached therewith, clearly reveals, that the petitioners, allegedly systematically defrauded the complainant and embezzled money of M/s Gem International Traders, a partnership firm. M/s Gem International was earlier the proprietorship concern of the petitioners, which was merged with the partnership firm, which was constituted between the petitioners and respondent No. 2. Despite that, the petitioners, concealed this fact, from the bank, and opened a separate account, in the name of the proprietorship concern and the sale/proceeds of the goods of the partnership firm, used to be allegedly deposited by them, in the account of the proprietorship concern. The total sum, which the petitioners, allegedly embezzled was approximately, to the tune of Rs. 1.28 crores. The same gamut of facts may give rise to civil as well as criminal proceedings. It could not be said that, if a particular set of facts, gives rise to civil dispute, then criminal offence, is not constituted. In the instant case, the facts, gave rise to civil as well criminal dispute. Even otherwise, the disputed questions of fact and law, cannot be determined, in the proceedings, under Section 482 Cr.P.C., as the same are summary in nature. The FIR and the documents, connected therewith, constitute Criminal Misc. No. M-1666 of 2008 9 the commission of cognizable offences. It cannot be said that the FIR, is attended with malafides. The same, therefore, cannot be said to be an abuse of the process of the Court. The same are not liable to be quashed. 8. For the reasons recorded above, Criminal Misc. No. M-1666 of 2008, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 9. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned. 26.02.2010 (SHAM SUNDER) Amodh JUDGE