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           REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1251    OF 2011 [Arising out of S.L.P. (Crl.) No.2409 of 2007]

Joseph Salvaraj A. ....Appellant   Versus  

State of Gujarat & Ors.       ...Respondents   

J U D G M E N T  Deepak Verma, J.   1.    Leave granted.

2.   Respondent No. 4 - complainant, Living Water  Finney, lodged an FIR on 05.09.2006 at 22.15 hrs with  Odhav  Police  Station,  Ahmedabad  City,  complaining  therein  that  the  Appellant  has  committed  offences  under Section 406, 420 and 506(1)  of the Indian  Penal  Code  (hereinafter  shall  be  referred  to  as  ‘IPC’).

3.   Respondent  No.4  was  working  as  Administrative  Officer  in  “Amaaru  Family  Education  Trust”  at  Ahmedabad  and  claimed  that  he  has  been  residing

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there, leading life peacefully. He also stated that  Shri  Dharmendra  P.  Rami  @  Laläbhai  was  running  business  of  Siti  Cable  in  Bapi  Nagar  area  at  Ahmedabad, was known to him for many years and both  of them enjoyed good relations with each other.   

4.Sometime in the year 2005, complainant had gone to  Hyderabad  at  his  wife’s  place  where  he  had  the  occasion to watch “God TV” which influenced him  deeply  and  profoundly  touching  his  holy  spirit.  He  wanted  to  share  his  experience  with  the  Christian community of Ahmedabad so that they may  also be blessed through this religious channel. On  his  return  to  Ahmedabad,  he  approached  cable  operator   Mr.  Lalabhai,  owner  of  Siti  Cable  as  mentioned above  and requested him to have this  channel also in the bouquet  of channels offered by  him.  He  also  contacted  the  Appellant's  Company  directly, requesting it to allow broadcasting of  “God TV” in  certain areas of Ahmedabad through  Siti Cables, Ahmedabad.

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5.Eventually,  with  the  aid  and  enterprise  of  Mr.  Lalabhai, they were able to commence broadcasting  of “GOD TV” in the eastern zone of Ahmedabad.    

6. Initially,  Mr. Lalabhai quoted Rs. 30 lacs for  persuading all the three operators to commence  the  telecast of “GOD TV” in their respective areas in  Ahmedabad but the same was settled for Rs. 10 lacs.  Thus, according to  the complainant, Mr. Lalabhai  (and  2  other  cable  operators)  had  agreed  to  broadcast, religious channel “God TV” at Ahmedabad,  after the Appellant had agreed to pay a sum of Rs. 10  lacs to Mr. Lalabhai.   

7. However, it appears that there was no Agreement  in  writing  executed  and  entered  into  between  Mr.  Lalabhai and the Appellant.  Furthermore, there has  not been any Agreement between complainant and either  of the aforesaid two parties.  According to him, on  his own, he had acted only as a mediator.

8. From  time  to  time,  the  Complainant  kept  reminding the appellant about payment of the amount

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of Rs. 10 lacs to Mr. Lalabhai.  But according to the  Complainant, the appellant deliberately avoided his  communications. In the meanwhile, the cable operators  who  had  started  telecasting  “God  TV”  were  also  pressurizing the Complainant for the said amount.  

9. As mentioned hereinabove for about five months,  they enjoyed watching “God TV” without any disruption  but thereafter the  reception signals of the said  channel developed some technical snag.  Thus, from  October  2005,  on  account  of  poor  quality  of  receivers, the reception was also not clear and was  blurred. He once again contacted the Appellant who  agreed to send receiver to the Complainant.  After  having received the said receiver, it was delivered  to Mr. Lalabhai but as per the Complainant's version,  by that time the amount of Rs. 10 lacs as agreed to  between Mr. Lalabhai and the present Appellant was  still  not  paid.  Having  failed  to  elicit  a  verbal  response, the Complainant thereafter wrote a series  of  letters  and  sent  e-mails  to  the  Appellant,

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ultimately culminating in a notice dated 21.06.2006,  to which the Appellant replied on 18.07.2006, denying  all  accusations  and  liabilities.  Then  the  problem  started and Respondent No. 4 lodged the FIR against  the Appellant as mentioned hereinabove.

10.After completion of the investigation, as per the  FIR lodged by the Complainant on 05.09.2006, the  Appellant was arrested at Chennai for commission  of the said offences on 17.11.2006. He was thus  constrained to file an application under Section  437  of  the  Code  of  Criminal  Procedure,  1973  (hereinafter shall be referred to as the ‘Code’)  for grant of bail to him. The same was granted to  him on the conditions mentioned in the order dated  22.11.2006.

11.The Appellant, thereafter, was constrained to file  the petition under Section 482 of the Code in the  High Court of Gujarat at Ahmedabad, with a prayer  for quashing of the FIR bearing C.R. No. I-371/2006  registered with Odhav Police Station and  to stay

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further  investigation  in  the  case.  The  said  application  came  to  be  considered  before  the  learned Single Judge on 11.1.2007.  By that time,  charge sheet was already filed before the Competent  Criminal Court.  Thus, learned Single Judge, was of  the  opinion  that  it  was  not  a  fit  case  to  be  entertained  and  refused  to  hear  the  petition  on  merits, even though the appellant was given liberty  to file an application for his discharge before the  Trial Court.   It may be noted that even in its  impugned  order  the  learned  Single  Judge  has  emphasized that he had not considered the case on  merits. Thus the Appellant’s petition was dismissed  and  interim  order  granted  in   his  favour  was  vacated.

12. Now  the  Order  dated  11.01.2007  passed  by  the  learned Single Judge of the High Court in Appellant’s  Criminal  Application  No.  1977  of  2006,  is  subject  matter of challenge in this Appeal.

13. We have accordingly heard Mr. Huzefa Ahmedi with

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Mr. Shamik Sanjanwala for the Appellants Ms. Jesel,  for respondent No 1,2 and  3 and Ms. Aparna Bhat for  respondent No.4 - Complainant at length.  Perused  the record.

14. Learned counsel for the Appellant contended that  even  after  going  through  the  FIR,  no  case  under  Section 406 or 420 of the Penal Code was made out.  The FIR was filed by a person who is indisputably not  a contracting party and at best by his own admission,  had acted only as a mediator, and had no cause of  action to file the complaint.   He has failed to  produce any evidence worth the name in support of his  allegation and legally acceptable that the contract  was concluded, where under the Appellant was obliged  to pay a sum of Rs. 10 lacs to Mr. Lalabhai.   

15. The allegations in the F.I.R. clearly discloses a  civil dispute between the parties and the FIR seems  to have been filed only with an intention to harass  and humiliate the Appellant.  This was a pre-emptive  move by the Complainant.

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16. A summary Civil Suit under Order 37 Rule II of  Code of Civil Procedure (hereinafter to be referred  as 'CPC') has already been filed by Dharmendra P.  Rami  @  Laläbhai  against  the  Appellant  and  the  Respondent No.4, Complainant herein, before the City  Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs  together with interest thereon.  In the said suit an  unconditional  leave  to  defend  has  already  been  granted  to  the  Appellant  and  the  matter  is  still  pending. In the light of the aforesaid submissions,  it was contended that it is a fit case where the FIR  deserves  to  be  quashed  otherwise  the  same  would  amount to abuse of the process of law.

17. On  the  other  hand,  the  learned  counsel  for  Respondents  especially  Respondent  No.  4,  contended  that intention to cheat the complainant was clearly  made   out   by   the   action   of   the  Appellant,  ultimately resulting in lodging of F.I.R.  against Appellant and Respondent No.4 both.  Learned  Single Judge was fully justified in rejecting the

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Appellant’s Petition as it was not a fit case to  invoke the jurisdiction conferred on the court under  Section 482 of the CrPC. Thus, a prayer was made that  no case for interference was made out and the Appeal  be dismissed.  

18. In the light of the rival contentions we have to  examine whether cognizance of the offences could have  been taken by the Competent Criminal Court in the  light of the averments made by the complainant in the  FIR.

19. Even though the learned counsel appearing  for  contesting parties  have cited numerous authorities  in support of their respective contentions, but in  view of the well settled legal position of law, by  long  catena  of  cases  of  this  Court,  on  this  and  related points, we are not dealing with each one of  them  separately  and  independently.   However,  the  ratio and gist of these would be reflected in our  order.

20. In the instant case, we have to first examine

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whether any of the ingredients under Section 406, 420  or 506 (1) of the IPC have been made out to enable  the  Court  to  take  cognizance  thereof  against  the  appellant or not.  Bare perusal of the FIR lodged by  the complainant, would indicate that he had got in  touch with the appellant so as to extend the benefit  of Appellant's Channel “GOD TV” to his other brethren  residing at Ahmedabad.  For the said purposes, he had  met the owner of Siti Cable, Bapi Nagar in Ahmedabad  and negotiated a settlement for a sum  of Rs. 10 lacs  on behalf of the Appellant's Company as the fee to be  paid  to  Siti  cable  by  Appellant  for  telecast  of  channel “God TV” in Ahmedabad. Further grievance of  the Complainant was that despite the telecast of “GOD  TV”,  the Appellant, as promised, failed to pay a sum  of Rs. 10 lacs to the owners of Siti cables.  This is  what  has  been  mentioned  in  nutshell  in  the  complainant's FIR. We have grave doubt, in our mind  whether on such averments and allegations, even a  prima facie case of the aforesaid offences could be

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made out against the present appellant.

21. Criminal  breach  of  trust  is  defined  under  Section 405 of the IPC and 406 thereof deals with  punishment to be awarded to the accused, if found  guilty for commission of the said offence i.e. with  imprisonment   for a term which may extend to three  years, or with fine, or with both.

22. Section 420 of the IPC deals with cheating and  dishonestly inducing delivery of property. Cheating  has  been  defined  under  Section  415  of  the  IPC  to  constitute an offence. Under the aforesaid section,  it  is  inbuilt  that  there  has  to  be  a  dishonest  intention from the very beginning, which is sine qua  non to hold the accused guilty for commission of the  said offence. Categorical and microscopic examination  of  the  FIR  certainly  does  not  reflect  any  such  dishonest  intention  ab  initio on  the  part  of  the  appellant.   

23. Section  506 of the IPC deals with punishment for  criminal intimidation. Criminal intimidation, insult

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and annoyance have been defined  in Section 503 of  the IPC but the FIR lodged by complainant does not  show or reflect that any such threat to cause injury  to  person  or  of  property   was  ever  given  by  the  Appellant to the Complainant.

24. Thus, from the general conspectus of the various  sections under which the Appellant is being charged  and is to be prosecuted would show that the same are  not made out even prima facie from the Complainant's  FIR.  Even if the charge sheet had been filed, the  learned  Single  Judge  could  have  still  examined  whether the offences alleged to have been committed  by the Appellant were  prima facie made out from the  complainant's  FIR,  charge  sheet,  documents  etc.  or  not.   

25. In our opinion, the matter appears to be purely  civil in nature. There appears to be no cheating or  a dishonest inducement for the delivery of property  or breach of trust by the Appellant.  The present  FIR is an abuse of process of law. The purely civil

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dispute,  is  sought  to  be  given  a  colour  of  a  criminal  offence  to  wreak  vengeance  against  the  Appellant. It does not meet the strict standard of  proof required to sustain a criminal accusation.

26. In such type of cases, it is necessary to draw a  distinction between civil wrong and criminal wrong  as  has  been  succinctly  held  by  this  Court  in  Devendra  Vs.  State  of  U.P.,  2009  (7)  SCC  495,  relevant part thereof is reproduced hereinbelow:

“A  distinction  must  be  made  between  a  civil wrong and a criminal wrong.  When  dispute  between  the  parties  constitute  only  a  civil  wrong  and  not  a  criminal  wrong,  the  courts  would  not  permit  a  person  to  be  harassed  although  no  case  for taking cognizance of the offence has  been made out.”

27. In fact, all these questions have been elaborately  discussed  by  this  Court  in  the  most  oft  quoted  judgment reported in 1992 (Suppl) 1 SCC 335 State of  Haryana  Vs.  Bhajan  Lal,  where  seven  cardinal  principles have been carved out before cognizance of  offences, said to have been committed, by the accused

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is taken. The case in hand unfortunately does not fall  in that category where cognizance of the offence could  have been taken by the court, at least after having  gone through the F.I.R., which discloses only a civil  dispute. 28.  The Appellant cannot be allowed to go through the  rigmarole of a criminal prosecution for long number of  years, even when admittedly a civil suit has already  been  filed  against  the  Appellant  and  Complainant- Respondent No. 4, and is still subjudice. In the said  suit, the Appellant is at liberty to contest the same  on grounds available to him in accordance with law as  per the leave granted by Trial Court. It may also be  pertinent to mention here that the complainant has not  been able to show that at any material point of time  there  was  any  contract,  much  less  any  privity  of  contract between the Appellant and Respondent No. 4 -  the Complainant. There was no cause of action to even  lodge  an  FIR  against  the  Appellant  as  neither  the  Complainant had to receive the money nor he was in any

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way instrumental to telecast “GOD TV” in the central  areas  of  Ahmedabad.  He  appears  to  be  totally  a  stranger to the same. Appellant's prosecution would  only lead to his harassment and humiliation, which  cannot be permitted in accordance with the principles  of law. 29.  Thus, looking to the matter from all angles, we  are of the considered opinion that the prosecution of  the Appellant for commission of the alleged offences  would be clear abuse of the process of law.  30. The FIR under the circumstances deserves to be  quashed at the threshold. We accordingly do so. The  Appeal is, therefore, allowed. The order of learned  Single Judge is set aside. The FIR dated 05.09.2006  lodged by Respondent No. 4 - Complainant with Odhav  Police  Station,  Ahmedabad  stands  quashed  and  all  criminal  proceedings  emanating  therefrom  also  stand  quashed. The parties to bear their respective costs.

  ......................J.    [DALVEER BHANDARI]

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     ......................J.    [DEEPAK VERMA]

New Delhi July 4, 2011