Inherent powers of High Court meant for rarest of cases where justice cannot be secured in normal course of law: High Court of Jammu and Kashmir

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) no.77 2021 CrlM no.220 2021 Rajeev Malhotra Mohammad Ishaq Chowdhary Reserved on: 04.08.2021 Pronounced on: 25.08.2021 Through: Mr Arjun Sharma Advocate Through: Mr Showkat Ali Khan Advocate HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE CORAM: 1. Quashment and setting aside of complaint bearing Registration no.5 of 2021 filed under Section 406 409 418 420 506 IPC before the court of Chief Judicial Magistrate Srinagar as also Order dated 31st December 2020 passed by learned Judicial Magistrate 1st Class Srinagar summoning petitioner and all other proceeding arising therefrom 2. As is discernible from the file a complaint under Section 406 409 418 420 506 IPC has been filed by respondent herein before the Trial Court in which he alleges that he intended to put up a CA cold storage at industrial estate Zainakote under the name and style of Chowdhary Cold Storage after approval was given by the Government. It is also alleged that complainant respondent entrusted the said work to accused 2 CRM(M) no.77 2021 CrlM no.220 2021 person petitioner herein and purchase PEB Pre Engineered Building from one ATS buildings and for this purpose certain amount was sent to petitioner but he did not make full payment to the seller thereby committing offences punishable under Section 409 and 106 IPC. Accordingly a complaint was filed in which Judicial Magistrate 1st Class Srinagar issued an Order dated 31st December 2020 taking cognizance of the matter and issuing process against accused petitioner to appear before the Trial Court and answer the allegation. It is this order of which petitioner is aggrieved and has come up before this Court with instant petition. 3. I have heard learned counsel for parties and considered the matter. 4. Learned counsel for petitioner while dilating the factual backdrop contained in petition on hand has stated that complaint filed by respondent is bereft of even basic facts which are necessary for making out any of offences as alleged against petitioner. According to him petitioner is an independent director of the company functioning at the highest ethical standards and has been implicated in criminal complaint only to create fear of loss of reputation of business in the mind of petitioner and to exploit the situation with mala fide intentions to coerce the company yielding to its illegal and unjustified demands. It is contended that petitioner only dealt with respondent in the capacity of a representative of the company and setting up of the cold store was a turnkey project undertaken by company on behalf of respondent and therefore question of entrusting the said project to petitioner as an 3 CRM(M) no.77 2021 CrlM no.220 2021 agent does not arise. Learned counsel also states that impugned order does not reflect that while passing the said order Trial Court has applied his mind to the facts of the case and the law applicable inasmuch as Trial Court was not only to examine the nature of allegations made in the complaint and evidence both oral and documentary in support thereof but was to carefully scrutinize the evidence brought on record and put questions to the complainant and his witness to elicit answers to find out truthfulness of allegations and pass a detailed order. In support of his submissions learned counsel for petitioner has placed reliance on M s Pepsi Foods Ltd & anr v. Special Judicial Magistrate5 SCC 475 Medmeme LLC and others v. M s Ihorse BPO Solutions Pvt. Ltd 2017 AIR3656 International Advanced Research Centre for Powder Metallurgy and New Materials ARC) and ors v. Nirma Cerglass TechnicsLtd and another 2015 4) PCR883 Satishchandra Ratanlal Shah v. State of Gujarat and another 2019RCR145 Vindod Natesan v. State of Kerala and ors 2019(1) RCR348. 5. It is pertinent to mention here that law is now settled. Existence of civil remedies per se is not a ground to quash criminal proceedings. A person litigating over a civil matter can file a criminal complaint also and in such matters High Courts should be extremely cautious in quashing such complaint. Civil proceedings as distinguished from criminal action has to be adjudicated and concluded by adopting separate yardsticks. The onus of proving allegations beyond reasonable 4 CRM(M) no.77 2021 CrlM no.220 2021 doubt in a criminal case is not applicable in civil proceedings which can be decided merely on the basis of probabilities with respect of the acts complained of. Where factual foundation for the offence has been laid down in a complaint the High Court should not hasten to quash criminal proceedings merely on the premises that one or two ingredients have not been stated with the details or that facts narrated reveal the existence of civil dispute between parties. After observing and saying this the Supreme Court in M. Krishnan v. Vijay Singh and another 2001SCC 645 concluded that it could not be said that complaint filed by complainant did not disclose commission of an offence or there existed any other circumstance which could be made basis for quashing proceedings and in fact allegations made in the complaint required adjudication and complaint could not have been aborted in the manner it had been done by the High Court and accordingly held judgement of the High Court contrary to settled position of law and set aside the same by upholding the order of the Trial Magistrate. 6. The above has also been reiterated by the Supreme Court in Priti Saraf anr v. State of NCT of Delhi & anr 2021 SCC Online SC 206 and it has been said that inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinize a complaint FIR charge sheet in deciding whether the case is the rarest of rare cases to scuttle the prosecution at its inception. It is settled that whether the 5 CRM(M) no.77 2021 CrlM no.220 2021 allegations in the complaint were true is to be decided on the basis of evidence to be at the trial. In the matter of exercise of inherent power by the High Court the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. See: R.P. Kapur v. State of Punjab 1960SCR 388 State of Haryana & ors v. Bhajan Lal and others 1992 SupplSCC 335 Trisuns Chemical Industry v. Rajesh Agarwal & ors 1999SCC 686 Joseph Salvaraj A v. State of Gujarat and ors 2011SCC 59 Arun Bhandari v. State of Uttar Pradesh and ors 2013SCC 801 Anand Kumar Mohatta and anr v. StateDepartment of Home and anr. 2019(11) SCC 706]. Judgements relied upon by learned counsel for petitioner in view of above discourse do not render any aid or assistance to the case of petitioner. 7. In the above backdrop it may be added here that Section 482 of the Code of Criminal Procedure preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. The High Court while forming an opinion whether a criminal proceeding or complaint or FIR should be quashed in exercise of its jurisdiction under Section 482 Cr.P.C. must evaluate whether the ends of justice would justify the exercise of the inherent power. While inherent power of the High Court has a wide ambit and plenitude it has to be exercised to secure ends of justice or to prevent an abuse of the process of any 6 CRM(M) no.77 2021 CrlM no.220 2021 court. Petition on hand when looked from all angles requires and demands meticulous analyzation of facts by this Court as if it is in appeal and acting as an appellate court and to draw its own conclusion vis à vis impugned order complaint and proceedings emanating therefrom. This is not the aim and objective of provisions of Section 482 Cr. P.C. more particularly when petition on hand does not unveil any ground muchless cogent or material one to portray that inherent powers are to be exercised to prevent abuse of process of court and to secure ends of justice. In that view of matter petition on hand is liable to be dismissed. 8. For the reasons discussed above the instant petition is without any merit and is accordingly dismissed along with connected CM(s). 9. Interim direction if any shall stand vacated. Judge Ajaz Ahmad PS Whether the order is reportable: Yes No. 

Summary: High Courts in India have the inherent power to quash pending FIRs, criminal proceedings or investigations. However inherent powers are meant to be used only in the rarest cases where the normal course of law is not sufficient to secure the ends of justice or to prevent the abuse of power by a lower court. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of Rajeev Malhotra v Mohammad Ishaq Chowdhary [CRM(M) no.77/2021] pronounced on 25th August 2021. The respondent, Mohammad Ishq Chowdhury attempted to put up a CA cold storage at industrial estate Zainakote, upon getting approval from the government. The respondent entrusted the said work to the petitioner, Rajeev Malhotra. The money to purchase a Pre Engineered Building was sent to the petitioner for this purpose and it is alleged by the respondent that the petitioner did not make the full payment to the seller but instead took a part of the money for himself. As a result of this, the respondent filed a criminal case against the petitioner for cheating, criminal breach of trust and criminal intimidation before the Trial Court under Sections 406, 409, 418, 420, 506 of the Indian Penal Code. The Trial Court took cognizance of the matter and issued process against the petitioner to appear before the Court to answer the allegations. Aggrieved by this, the petitioner filed the instant petition before the High Court requesting them to use inherent power to quash the proceedings against him. It was further submitted by the petitioner that the complaint filed by the respondent lacked content and was frivolous. The High Court observed that where the factual foundation for the alleged offence had been laid down in a complaint, the Court should not hasten to quash the proceedings just because one or two ingredients have not been stated in the complaint and that the complaint did possess the basic structure required for it to be considered. The case of Priti Saraf &amp; Another v State of NCT of Delhi &amp; Another [2021 SCC Online SC 206], where the Supreme Court of India declared that “inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinize a complaint/ FIR /charge-sheet in deciding whether the case is the rarest of rare cases, to scuttle the prosecution at its inception”.