VIJAYANDER KUMAR Vs STATE OF RAJASTHAN
Bench: P SATHASIVAM,RANJAN GOGOI,SHIVA KIRTI SINGH
Case number: Crl.A. No.-001297-001297 / 2004
Diary number: 12012 / 2004
Advocates: RAJESH SRIVASTAVA Vs
NARESH BAKSHI
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1297 OF 2004
VIJAYANDER KUMAR & ORS. ... APPELLANTS
VS.
STATE OF RAJASTHAN & ANR. ... RESPONDENTS
J U D G M E N T
SHIVA KIRTI SINGH, J.
The appellants have preferred this appeal
against the dismissal of their petition under
Section 482 of the Criminal Procedure Code (for
brevity `Cr.P.C.’) by the High Court of judicature
for Rajasthan at Jodhpur. The High Court declined
to interfere with the order of learned Chief
Judicial Magistrate, Sriganganagar, dated
22.05.2000 in Case No. 63/2000, taking cognizance
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of offence under Section 420 read with Section 120-
B of the Indian Penal Code.
2. Respondent No.2, Surendra Singhla, lodged a police case against the appellants as well as one
Satish Singhla on 28.04.1998. According to the
averments and allegations in the written report,
the informant is a partner of the Firm M/s.
Rajshree Cotton Corporation, Sriganganagar, working
as broker as well as dealer in the sale and
purchase of cotton. The appellants are Directors
of M/s. R.P. Taxfab Limited, Modi Nagar, who
purchased cotton through informant firm from time
to time. As per the accounts, the informant firm
was to receive a sum of Rs.47,28,115.80/-. The
accused persons without taking the informant into
confidence, entered into an agreement for transfer
of management, assets and liabilities of M/s. R.P.
Taxfab Limited in favour of accused Satish Singhla
and two others who became the new Directors. The
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management of the Company was transferred on
24.02.1998 and on 27.02.1998 the informant was
called by the appellants and told that the
outstanding amount payable by the appellants shall
be paid by the new Directors. The informant did
not agree to this. On next date, the appellants
through a demand draft for Rs.10,00,000/- (rupees
ten lacs) and returned cotton yarn worth
Rs.13,26,560/- settled the dues in part and for the
remaining dues they persuaded the informant to
accept four post-dated cheques issued by the new
Director Satish Singhla. The informant accepted
the cheques on being assured by the accused persons
that when presented on due dates the cheques shall
be honoured. On such persuasion and trust, the
informant signed some typed papers showing that he
had agreed to receive the balance amount from the
new Directors of the Company and had received draft
and goods from the appellants.
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3. Besides the aforesaid allegations and averments in the written information, the informant has also
alleged that he would not have signed the said
papers nor received the post-dated cheques but for
the assurances given by the accused persons in
presence of two witnesses. It is further alleged
that when the informant presented cheque dated
25.03.1998 for a sum of Rs.5,00,000/- (rupees five
lacs) through his bank, the said cheque was
dishonoured because accused Satish Singhla had got
the payment of the cheque stopped and that all the
accused by mutual consent (conspiracy) have played
a fraud and cheated him by making false statement
and holding false assurances whereby they induced
him to sign some papers. Allegedly, the accused
had full knowledge even before issuing the cheques
that these shall not be honoured and they had such
dishonest intention from the beginning.
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4. It is not in dispute that when the cheque bounced, the respondent no.2 gave a legal notice
and initiated a separate complaint under Section
138 of the Negotiable Instruments Act, 1881,
besides lodging of the present FIR on 28.4.1998.
The complaint filed against the appellants under
the Negotiable Instruments Act stands quashed by
the High Court on the basis that they had not
issued the cheques in question. The appellants’
earlier petition under Section 482 of the Cr.P.C.
for quashing of FIR vide Criminal Miscellaneous
Petition No. 466 of 1998 was dismissed by the High
Court by order dated 12.02.1999 which is reported
in 1999 Criminal law Journal 1849 (Vijayander Kumar and Ors. Vs. State of Rajasthan and Another). A perusal of that judgment discloses that the High
Court considered in detail the averments and
allegations in the FIR and came to the conclusion
that in view of allegations and attending
circumstances, at that stage it was not possible to
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hold that the appellants cannot be liable for
commission of any offence. The High Court held
that there was a case worth investigation.
5. Subsequently, the police concluded investigation and submitted final report to the
effect that the case is of civil nature. The
learned Chief Judicial Magistrate, Sriganganagar,
rejected the final report and after hearing the
parties took cognizance of the offence under
Section 420 read with Section 120-B of the IPC
against all the five accused vide his order dated
22.05.2000.
6. The challenge to that order through a petition under Section 482 of the Cr.P.C. has been rejected
by the High Court by the order under Appeal.
7. Learned senior counsel for the appellants drew our attention to some letters and communications
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such as annexure P.1 and P.2 both dated 27.02.1998
and annexure P.10 dated 24.02.1998 to support his
contention that on 24.02.1998 itself the change in
the management was brought to the notice of the
informant with an intimation that a liability of
Rs.23,00,000/- (rupees twenty three lacs) has been
transferred to the new management which they shall
pay and thereafter, on 27.02.1998 the informant
received payment from the appellants as well as
accepted the post-dated cheques on 27.02.1998
itself. On that basis it has been contended that
wrong averments and allegations have been made in
the FIR. It is further case of the appellants that
the allegations and averments do not make out any
criminal offence.
8. On behalf of the appellants reliance has been placed upon judgments of this Court in the case of
Thermax Limited and Others Vs. K.M.Johny and Others 1 and in case of Dalip Kaur and Others vs. 1 (2011) 13 SCC 412
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Jagnar Singh and another 2 . There can be no dispute with the legal proposition laid down in the case of
Anil Mahajan vs. Bhor Industries Limited 3 which has been discussed in paragraph 31 in the case of
Thermox Limited (supra) that if the complaint discloses only a simple case of civil dispute
between the parties and there is an absolute
absence of requisite averment to make out a case of
cheating, the criminal proceeding can be quashed.
Similar is the law noticed in the case of Dalip Kaur (supra). In this case the matter was remanded back to the High Court because of non-consideration
of relevant issues as noticed in paragraph 10, but
the law was further clarified in paragraph 11 by
placing reliance upon judgment of this Court in
R.Kalyani vs. Janak C.Mehta 4 . It is relevant to extract paragraph 11 of the judgment which runs as
follows:
“11.There cannot furthermore be any doubt that the High Court would exercise its
2 (2009) 14 SCC 696 3 (2005) 10 SCC 228 4 (2009) 1 SCC 516
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inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta is attracted, which are as under:
“(1) 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.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) 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.
(4) If the allegation discloses a civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to continue.”
9. Learned senior counsel for the appellants also placed reliance upon judgment of this Court in the
case of Devendra and Others vs. State of Uttar
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Pradesh and Another 5 , only to highlight that a second petition under Section 482 of the Cr.P.C.
can be entertained because order of Magistrate
taking cognizance gives rise to a new cause of
action. This issue does not require any
deliberation because learned senior counsel for the
respondent no.2, the informant, has not raised any
objection to the maintainability of petition under
Section 482 of the Cr.P.C.
10. Contra the submission advanced on behalf of the appellants, learned counsel for the respondent
no.2 has submitted that there is no merit in the
contention advanced on behalf of the appellants
that the FIR discloses only a civil case or that
there is no allegation or averment making out a
criminal offence. For that purpose he relied upon
judgment of the High Court rendered in the facts of
this very case reported in 1999 Criminal Law
Journal, 1849, already noted earlier. 5 (2009) 7 SCC 495
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11. No doubt, the views of the High Court in respect of averments and allegations in the FIR
were in the context of a prayer to quash the FIR
itself but in the facts of this case those findings
and observations are still relevant and they do not
support the contentions on behalf of the
appellants. At the present stage when the
informant and witnesses have supported the
allegations made in the FIR, it would not be proper
for this Court to evaluate the merit of the
allegations on the basis of documents annexed with
the memo of appeal. Such materials can be produced
by the appellants in their defence in accordance
with law for due consideration at appropriate
stage.
12. Learned counsel for the respondents is correct in contending that a given set of facts may make
out a civil wrong as also a criminal offence and
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only because a civil remedy may also be available
to the informant/complainant that itself cannot be
a ground to quash a criminal proceeding. The real
test is whether the allegations in the complaint
discloses a criminal offence or not. This
proposition is supported by several judgments of
this Court as noted in paragraph 16 of judgment in
the case of Ravindra Kumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited 6
13. On considering the facts of the present case it is found that the facts were properly noticed by
the High Court on earlier occasion while examining
the petition preferred by the appellants for
quashing of FIR of this case. The same view has
been reiterated by the High Court in the order
under appeal for not interfering with the order of
cognizance by the learned Magistrate. Hence, we do
not find any good ground to interfere with the 6 (2009) 11 SCC 529
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criminal proceedings against the appellants at this
stage. The appeal is, therefore, dismissed. No
costs.
14. It is, however, made clear that observations in this order or in the order under appeal are only
for deciding the issues raised at the present stage
and shall not affect the defence of the appellants
at a subsequent stage of the proceeding.
……………………………………………C.J.I. (P. SATHASIVAM)
……………………………………………………J. (RANJAN GOGOI)
……………………………………………………J. (SHIVA KIRTI SINGH)
New Delhi; February 11, 2014.
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