1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT DINESH KUMAR ACHARYA vs. STATE OF RAJASTHAN & ANR. 1. S.B.CriminaL Misc. Petition No.186/2010 PAWAN ACHARYA & ANR. vs. STATE OF RAJASTHAN & ANR. 2. S.B.CriminaL Misc. Petition No.250/2010 under section 482 Cr.P.C. For quashing of FIR No.150/2009 of Police Station Nagaur, for offences under section 406 and 420 IPC. Date of Judgment: 9 November, 2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.P.N.Mohnani for the petitioners. Mr.A.R.Nikub, Public Prosecutor. Mr.Ashok Chhangani for respondent No.2. BY THE COURT : The petitioners Dinesh Kumar Acharya s/o Parasram r/o Nakas Gate, Behind Traffic Police Station, Nagaur and Pawan Acharya s/o Narayan and Harish Acharya s/o Parasram have challenged the registration of a criminal case by way of FIR No. 150/2009 of Police station Nagaur and further investigation which is under way, for the offences under section 406 and 420 IPC, by way of quashing the above FIR and further investigation. The facts leading to the present petition are as under: 2 That the first information report aforesaid has been registered on a complaint made by the Assistant Engineer, Ajmer, Vidhyut Vitran Nigam Ltd., Nagaur (hereinafter referred to as 'the Nigam') stating that a contract for collection of electricity bills was executed on 07.10.2005 in favour of the agency as Jai Maa Electric Labour & Contractor Sahkari Samiti, Nagaur (hereinafter referred to as 'the Samiti'), of which the petitioner No.1 Pawan Acharya being its president and Harish Acharya as being treasurer and Dinesh Acharya as being its Secretary, who had furnished the requisite undertaking that in terms of the work order it was incumbent for the said Samiti to have deposited the collected amount of each day in the Bank account of the complainant Nigam on the very day and to produce the receipts the next day in the Nigam Office and also to furnish the details of the payment received every day. The complainant has alleged that even while collecting the payments the Samiti started retaining the counter foils and stopped furnishing the details of the deposited amount to the Nigam according to the complainant by 23.03.09 the said collecting agency retained an amount of Rs. 26.77 lacs as received from 2502 consumers . It was submitted by the complainant that the contract with the Samiti has been discontinued but proceedings are required to be taken against the Samiti for embezzlement of money collected from the consumers and for cheating. On the basis of above first information report, criminal 3 case No.150/ 09.04.09 was registered at Police Station Nagaur and the investigation is pending. The learned counsel for the petitioners contended that as a matter of fact the membership of the petitioners in the said Samiti had been terminated way back in the months of April and May 2007 and the facts had also been recorded in the concerned register of the Registered Cooperative Societies to the effect that there had been handing over and taking over of charges of the newly constituted Samiti on 20.05.07 and, therefore, the present petitioners have no concern with the said collection agency. It is also submitted that the amount referred in the first information report relates to the months of December 2008 to March 2009 i.e. which is of after the termination of the membership of the petitioners with the said Samiti and hence the investigation in the above criminal case cannot be continued and is liable to be quashed. Per contra, the learned counsel for the respondents contended that the investigation in the above matter is pending and the necessary documents are required to be produced by the petitioners. During the course of arguments it has also been contended by the learned counsel for the petitioners that later on Assistant Engineer of the Nigam filed a civil suit for the recovery of the said amount in the competent court, that further weakens the investigation process in the criminal case. A copy of the 4 plaint has been submitted for perusal. The learned counsel for the petitioners, while arguing his case, relied on the following decisions :- 1. B.Suresh Yadav vs. Sharifa Bee [2005 Cr.L.J. 431] 2. Vir Prakash Sharma vs. Anil Kumar Agarwal [( 2007) 7 SCC 373] and 3. All Cargo Movers (I) Pvt.Ltd. vs. Dhanesh Badarmal Jain & Anr.[2007 AIR SCW 6667] Learned counsel for the respondent on the other hand , while advancing his argument relied on the following judgments :- 1. Mohd. Ibrahim vs. State of Bihar [(2009)8 SCC 751] 2. Jimmy Sudarshan Purohit vs. Sudarshan Sharad Purohit [(2005) 13 SCC 410] 3. Sunita Jain vs. Pawan Kumar Jain [(2008) 2 SCC 705] 4. State of Maharashtra vs. Sayed Mohammed Masood [(2009) 8 SCC 787] 5. Central Bureau of Investigation vs. K.M. Sharan [ (2008) 4 SCC 471] and 6. Pratibha vs. Rameshwari Devi [( 2007) 12 SCC 369] I have gone through the judgments cited by the learned counsel for both the parties and also perused the copy of the plaint filed by the learned counsel for the petitioners. The contours of the power under section 482 Cr.P.C. have been explained in a series of decisions by the Hon'ble Supreme Court. In State of Haryana vs. Bhajan Lal [1992 Supp (1) 5 SCC 335] a question came up for consideration as to whether the quashing of the FIR filed against the respondent Bhajan Lal for the offence under section 161 and 165 IPC and section 5 (2) of the Prevention of Corruption Act was proper and legal ? Reversing the order passed by the High Court the Hon'ble Supreme Court explained the circumstances under which such power could be exercised. Apart from reiterating the earlier norms laid down by the Hon'ble Supreme Court, it was further explained that such power could be exercised where allegation made in the FIR or complaint are so absurd and innocently 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. No doubt at the state of quashing the FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegation made therein. It is not unusual / unbecoming that an incident may give rise to a cause of action for the civil as well as criminal proceedings at a time. Institution of civil proceedings in such a case does not distract or take away remedy of criminal side. The fact that accused petitioners were authorised to collect payment against the bills only up to certain period, cannot be disbelieved at this stage. Even if it is assumed that there was some express or implied consent for extension of the term of contract, still withholding the collection for unduly long period in violation of the conditions of the contract and further without satisfactory explanation may lead to an inference of dishonesty 6 and the result of the investigation only will establish the true nature of the dispute i.e. whether it is pure civil dispute or some criminal intent was there behind it. Quashing of first information report at investigation stage is possible only in a rarest of the rare cases where it suffers from some inherent improbability or even if accepted on its face value , will not constitute any offence or whether investigation itself is patently barred by law. The case in hand is not of such a nature so as to call for interference at this stage, in view of the provisions enunciated by the Hon'ble Supreme Court in the case of State Haryana vs. Bhajan Lal (supra). In B.Suresh Yadav 's case (supra) the Hon'ble apex court found no dishonest concealment of facts and two contrary and inconsistent stand were taken by the complainant. In Vir Prakash Sharma's case (supra) the Hon'ble Supreme Court held that non payment or unpayment of price of goods by itself does not amount to cheating or breach of trust and it had to be essentially a civil dispute. In All Cargo Movers (I) Pvt. Ltd.'s case (supra) the Hon'ble Supreme Court held that breach of contract simplicitor does not constitute an offence and the criminal complaint was filed after one year of filing the civil suit. The Hon'ble Supreme Court quashed the criminal proceedings. 7 The facts of the present case are different. In the present case, the amount was collected by the Samiti on behalf of the Nigam from the consumers and they were not entitled to retain or keep the amount collected on behalf of the Nigam with them for such a long period. Therefore,in view of the principles enunciated by the Supreme Court in State of Haryana's case (supra) the present case is not of such a nature so as to call for interference at this stage under section 482 Cr.P.C. SB Cri.Misc. Petition No.186/2010 filed by Dinesh Kumar Acharya and SB Cri.Misc. Petition No.250/2010 filed by Pawan Acharya and Harish Acharya are devoid of any force and are liable to be dismissed. Accordingly, both the petitions are hereby dismissed. (KAILASH CHANDRA JOSHI),J. L.george