Atul Dwivedi vs State Of Chhattisgarh

Petitioner has filed this petition invoking jurisdiction of this Court under Section 482 of CrPC seeking relief of quashment of F.I.R. registered in crime No. 0231/2020 police station Pipariya, District Kabeerdham, C.G. for offence under Section 420, 468 and 471 of IPC.

Facts relevant for disposal of this petition are that respondent no. 2 lodged report to the concerned police station making allegation against petitioner stating that petitioner, respondent no. 2 and one Yogeshwar Raj Singh established a partnership firm in the name and style as “Samriddhi Sugar Mills”. As per the written deed of partnership the bank account or any other account related to the firm has to be operated under joint signature of any two parties to the deed but the petitioner himself by signing a cheque at two places withdrawn the money and thereby misappropriated the amount of partnership firm. There is further allegation that petitioner issued cheque under his own signature for purchase of sugarcane which was dishonored. F.I.R. was registered on 31.07.2020 for the aforementioned offences.

Learned counsel for petitioner would submit that petitioner has not committed any offence as alleged against him in the F.I.R. Earlier one Mr. Deepak Sharma was carrying out the business of manufacturing and sale of Jaggery (Gur), Raab and Husk along with the present parties under written deed of partnership, later on due to some personal reasons Deepak Sharma quit the partnership firm and new partnership deed was executed on 20.11.2014. Petitioner and Respondent No. 2 were having share to the extent of 42.5% each and remaining 15% share was held by Yogeshwar Raj Singh. Partnership continued for about two years and during this period several cheques were issued for the purchase of raw material and disbursement of payments to the farmers against the sugarcane purchased by the firm. The business of mill was closed in between 2016-18 because Respondent No. 2 failed to perform his part. From perusal of the contents of complaint it is apparent that earlier transactions were taken place on 04.12.2015, 05.01.2016 and 06.01.2016 was six years ago. The cheques issued by petitioner were in representative capacity with the consent of other partners. Several other transactions have taken place in the like manner earlier also but none of the other two partners of the firm raised any objection or allegations as they were aware about all the transactions. The cheques were issued in the representative capacity being one of the partners authorised by the Firm and other partners. There are no ingredients of cheating. For attracting the alleged offence, there must be fraudulently, dishonestly inducement of any person so deceived or likely to cause any damage or harm to that person, body, mind, reputation or property. No such material is available. The alleged cheques were issued two years back in favour of farmers from whom sugarcane was purchased, none of the farmers have made any complaint against petitioner or their firm regarding issuance of cheque whereas said cheques were not deposited for encashment by farmers in their bank account and therefore no criminal offence would be attracted. Petitioner signed the cheque being one of the partners and therefore offence under Section 468 and 471 would not be attracted. He lastly contended that prima facie no material is available against petitioner in the F.I.R. so as to connect him in the aforementioned crime and therefore the F.I.R. registered against petitioner bearing crime no. 0231/2020 dated 31.07.2020 registered at police station Pipariya District Kabirdham be quashed. In support of his contention he placed reliance upon the decision of Hon’ble Supreme Court in Vir Prakash Sharma vs. Anil Kumar Agarwal [(2007) 7 SCC 373], Inder Mohan Goswami vs. State of Uttranchal [(2007) 12 SCC 1], Indian Oil Corporation vs. NEPC India Ltd., and others), [(2009) 8 SCC 751], Robert John D’souza vs. Stephen V. Gomes [(2015) 9 SCC 96] and Vijay Kumar Ghai vs. State of West Bengal [(2022) 7 SCC 124].

Mr. Arvind Shrivastava, learned counsel for Respondent no. 2 vehemently opposed the submission of learned counsel for petitioner and would submit that there are specific allegations against the petitioner of issuance of cheque under his own signature at two places. According to the deed of partnership dated 20.11.2014, in clause 11 it is clearly mentioned that the bank account shall continue to be operated under joint signature of any two parties to the partnership deed but the petitioner has withdrawn money by signing the cheque of his own only and similar cheques were issued in the name of firm under the signature of petitioner at two places. He also pointed out that the Station House Officer of police station Pipariya also wrote letter to the State Bank of India putting query with regard to withdrawal of amount by only one partner putting his sole signature which was replied by the Bank on 15.10.2019 mentioning that petitioner submitted cheque signing it twice. There are prima facie allegations in the F.I.R. against petitioner.

Learned State counsel would submit that in the F.I.R. there are allegations that petitioner has withdrawn the amount under his own signature cheating the other partners of the firm in violation of clause 11 of the partnership deed. As there is prima facie allegations available in the F.I.R. petitioner may not be entitled for the relief as prayed for in this petition.

I have heard learned counsel for the parties on both sides and also perused the documents placed on record.

In the pleadings made in the petition petitioner has not disputed with regard to execution of partnership deed amongst petitioner, respondent no. 2 and one Yogeshwar Raj Singh. Issuance of cheque of the firm for withdrawal of the amount under signature of petitioner at two places is also not in dispute. The submission made by learned counsel for petitioner that he quit the firm and therefore no offence could be made out against him is having no importance in the facts of the case. As per allegations, offence committed by petitioner is of the year 2015-16 and petitioner quit the firm in the year 2019 much after the alleged commission of offence. Respondents have also filed letter written by police station Pipariya to the SBI, Branch Kawardha dated 16.10.2019 wherein the SHO has put certain queries to the bank. SBI, Kawardha branch replied to letter of SHO and informed that prima facie from perusal of the cheque would show that both the signature on the cheque is of petitioner which prima facie is not proper and the account of M/s Samriddhi Sugar Mill is inoperative since 2017. Hon’ble Supreme Court in the case of State of Haryana vs. Bhajanlal reported in (1992) Suppl. (1) SCC 335 while dealing with the issue of exercise of inherent powers under Section 482 CrPC for quashment of criminal proceedings has observed thus:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or 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 a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently 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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

In the case of Amish Devgan vs. Union of India reported in (2021) 1 SCC 1, Hon'ble Supreme Court has held that quashing of F.I.R. can only be in exceptional circumstances and some of the exceptional circumstances are held to be where manifestly there is some legal bar against institution or continuation of prosecution; where allegations made even if taken at face value do not  constitute any offence; allegations made do not constitute cognizable  offence  and  allegations  made  are  so  absurd  and improbable that any prudent person can ever reach to a conclusion that there is sufficient ground for proceeding against accused.

Recently Hon’ble Supreme Court in the case of Central Bureau of Investigation vs. Aryan Singh etc. reported in 2023 SCC OnLine SC 379 observed that High Court cannot conduct mini trial at the stage of discharge and/or quashing of criminal proceedings and observed thus:

“10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.

Reverting back to the facts of present case, Respondent no. 2 lodged the report alleging that the partnership deed was executed between petitioner, Respondent no. 2 and one Yogeshwar Raj Singh. As per clause 11 of the deed amount can be withdrawn from the bank account of the Firm under signature of two parties. It is allegation that petitioner withdrew the amount by making his signature twice on the cheque, cheating the other partners. F.I.R. was registered on 31.07.2020, petition was filed on 31.08.2021. Copy of final report if filed is not placed before this Court.

The decision relied upon by the petitioner in the case of Vir Prakash Sharma (supra) is entirety on different facts. Another case relied by counsel for petitioner in Vijay Kumar Ghai (supra) may not be applicable at this stage where the petitioner has filed the petition seeking only relief of quashment of F.I.R. None of the parties have produced copy of charge-sheet and therefore it is only the contents of F.I.R. to be looked into to appreciate the submission of learned counsel for petitioner. The case of Robert John D’souza (supra) is also on different facts. The grounds raised in this petition is the subject matter of evidence, and can be appreciated at appropriate stage.

In view of the aforementioned facts of the case, considering the decisions of Hon’ble Supreme Court in the case of Bhajanlal (supra), Amish Devgan (supra) and Aryan Singh (supra) and contents of F.I.R., I do not find any merit in this case at this stage.

Accordingly, this Criminal Miscellaneous Petition stands dismissed.