Abhay Chandra Jha v. The State Of Bihar & Anr

suit was filed by the complainant vide Eviction Suit No.38 of 1998 and the court below passed the order of eviction on 26th September 2 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012

2002. Against that order accused petitioner filed Civil Revision, vide C.R.No. 1747 of 2002 before this Court and this Court vide order dated 5th January 2004 affirmed the order of the court below. The aforesaid order was challenged before the Hon’ble Supreme Court and that was also dismissed.

5. Thereafter the petitioner vacated the house in question on 12th October 2005 and did not pay the rent for the period March 2004 to 12th October 2005 i.e. till he vacated the house. In the complaint petition it has been alleged that petitioner was/is liable to pay Rs.63,000/- as house rent and electric bill, as the house was given on rent at Rs.1,900/- per month. It has further been alleged that in order to liquidate the said amount, a cheque bearing No. 98501 dated 10th June 2003 for Rs.6,500/- as part payment was handed over to the O.P.No.2 and there was always assurance for payment of rest amount. It has been alleged that the cheque was placed before the Bank for encashment but it was returned on the ground of insufficient fund. When the petitioner did not pay cheque amount and rest amount, the complainant filed the present case. The court below took cognizance and proceeded with the matter. Petitioner filed his discharge petition which has been rejected by the impugned order.

6. Counsel for the petitioner has submitted that 3 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 necessary ingredients of Section 138 of N.I.Act are completely lacking in the complaint petition as in the complaint petition, the complainant has not given the details which are required for constituting the offence, such as, date of presentation of cheque, date of return of the cheque, date of notice given by the complainant to the petitioner. In support of his contention, he has relied on a judgment reported in 2006(1) PLJR 455 (Ram Naresh Thakur v. State of Bihar).

7. Next point, the counsel for the petitioner has raised is that narration of facts in complaint petition completely show that it is primarily a civil dispute and the court below has wrongly rejected the discharge petition treating criminal offence is made out against the petitioner. In support of his contention, he has relied on the judgments are as follows:- 2003(2) Cr.L.J. 1980 (Isaac Jaise v. Jasmit Singh Saluja) 2003(2)Cr.L.J 1304 ( Rita Agencies v. Enforcement Officer, EPF Organization) AIR 1988 SC 707(Para-7) (Madhavrao v. Sambhajirao) On the strength of these judgments, petitioner submits that narration of facts mentioned in the complaint does not constitute criminal offence but primarily a dispute of civil, nature of 4 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 allegation is pertaining to non-payment of money and the impugned order is completely illegal, as continuation of criminal proceeding on the facts alleged is an abuse of the process of the court and the order passed by the court below is liable to be set aside.

8. Counsel for the O.P.No. 2 has vehemently opposed the argument but fairly accepted that the essential ingredients constituting offence under Section 138 of N.I.Act are not available but submitted that even thereafter the entire proceeding cannot be quashed, as the offences under the Indian Penal Code are made out from the facts mentioned in complaint petition. So far payment of money arising from rent, the petitioner always kept complainant in dark giving false assurance for payment.

9. Having considered the rival contention of the parties, it appears from the complaint petition, necessary ingredients constituting offence under Section 138 of N.I.Act are missing and the petitioner has rightly relied on the judgment reported in 2006(1) PLJR 455 (supra) and to that extent submission of the petitioner is accepted but complainant case will not come to an end without examine as to whether any case under the Penal Code is made out or not.

10. Counsel for the petitioner has submitted that it is 5 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 predominantly a civil dispute no case under the Indian Penal Code is made out and as such, it is liable to be quashed.

11. From the narration of fact made in the complaint petition it is clear that he was liable to pay the substantial amount of rent and in part payment petitioner handed over the cheque for Rs.6,500/- and according to the complaint petition, he had always given assurance for the payment of the rest amount. But he dishonestly fled away from the house without making the payment.

12. It is well known principle of law the court may quash the criminal proceeding where on reading of FIR or Complaint petition, if they are taken at their face value and accepted in their entirety do not constitute any offence or make out the case alleged against the accused persons but power should not be used to stifle or scuttle a legitimate prosecution and the power should be used very sparingly and with abundant caution. But in case, on reading of FIR or Complaint petition does constitute civil and criminal wrong, for which civil remedy is available or has been availed, will not be itself a ground to quash the criminal proceeding. The Supreme Court in the case reported in (2006)6 SCC 736 (Indian Oil Corporation v. NEPC India Ltd.) has considered this issue and the Hon’ble Supreme Court held that a 6 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 case where the issue arising from breach of contract, civil remedy is available but if the allegations contained in the complaint petition taken on its face value constitute an offence under the Penal Code then in that circumstance the court may refuse to exercise power u/s 482 Cr.P.C. It will be apt to quote Para 12 of the judgment: “Para 12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre1, State of Haryana v. Bhajan Lal2, Rupan Deol Bajaj v. Kanwar Pal Singh Gill3, Central Bureau of Investigation v. Duncans Agro Industries Ltd.4, State of Bihar v. Rajendra Agrawalla5, Rajesh Bajaj v. State NCT of Delhi6, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.7, Hridaya Ranjan Prasad Verma v. State of Bihar8, M. Krishnan v. Vijay Singh9 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque10. The principles, relevant to our purpose are: (i) A complaint can be quashed where the 7 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim 8 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 9 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 Para 20. Section 403 deals with the offence of dishonest misappropriation of property. It provides ―whoever dishonestly misappropriates or converts to his own use any movable property‖, shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both. The basic requirements for attracting the section are: (i) the movable property in question should belong to a person other than the accused; (ii) the accused should wrongly appropriate or convert such property to his own use; and (iii) there should be dishonest intention on the part of the accused. Here again the basic requirement is that the subject-matter of dishonest misappropriation or conversion should be someone else's movable property. When NEPC India owns/possesses the aircraft, it obviously cannot ―misappropriate or convert to its own use‖ such aircraft or parts thereof. Therefore Section 403 is also not attracted.‖

13. This Court finds, of course it would have primarily been a complete civil dispute, had he not given cheque with full knowledge that there was no sufficient fund in the Bank 10 Patna High Court Cr.Misc. No.9019 of 2011 (4) dt.07-09-2012 and would not have assured payment of rest amount, always kept the complainant in dark and one day slipped away without payment.

14. As this Court is not giving any opinion on the merit of the case, it will be decided at the trial stage.

15. Any observation made hereinabove should not be taken as finding on merit and merit of case would be seen at the trial stage.

16. With this observation, the petition is dismissed. Jay/- (Shivaji Pandey, J)