Dial Singh vs State of Punjab

K.S. Kumaran, J.—The petitioner, Dial Singh, has approached this court u/s 482, Criminal Procedure Code, for quashing F.I.R. No. 58 of 1990 registered under Sections 406 and 420, Indian Penal Code, by the police station, City Jallalabad, and the consequential proceedings thereof.

In the said FIR (annexure "P-1"), it has been alleged, among other things, as follows :

Balwinder Singh Aulakh and Dial Singh formed a finance company, that is, Asiad General Finance and Investment Company. Balwinder Singh was the managing director and Dial Singh was its director. The complainants were appointed as Sub-Divisional Manager, Jallalabad Division and branches located in Pipli, Dharamkot, and other places. The branches used to collect money from the villagers and used to deposit the same with the complainants, and the complainants used to hand over those amounts to Balwinder Singh Aulakh and Dial Singh. (The amount deposited on various dates have been detailed i-n the complaint). These amounts were entrusted to Balwinder Singh and Dial Singh. The complainants came to know that Balwinder Singh and Dial Singh in order to usurp the amounts collected from the public by the branch managers and handed over by the complainants, have closed the company and misappropriated the amount deposited with them.

Balwinder Singh issued a cheque dated June 16, 1990, for Rs. 2 lakhs in the name of the applicant, Sahib Singh, for disbursing the pay of the employees from March, 1990, to June, 1990, but, the cheque was not honoured and was returned with the remarks that there was no amount lying in the bank, namely, Union Bank of India, Batala. On further enquiries, it is learnt that Balwinder Singh and Dial Singh are making efforts to run abroad. They have committed criminal breach of trust of the amount to the extent of about Rs. 34 lakhs. They have cheated the applicants and dishonestly induced them to deliver the amounts and converted the same for their personal use. They have purchased the Asiad Hotel and Restaurant at Batala, Sheller and other properties. They have committed offences under Sections 406, 420, IPC.

The petitioner, Dial Singh, has filed this application alleging that he is innocent and has nothing to do with the Asiad General Finance and Investment Company. He claims that he is not the director. According to him, the case is of a civil nature and no case is made out against him under Sections 406 and 420, IPC. The petitioner contends that Sections 406 and 420 are antithesis of each other, The petitioner further contends that the case is of the year 1990, but till date the same has not been decided, in spite of the guarantee for speedy trial provided by Article 21 of the Constitution of India. The petitioner claims that till date only about two witnesses have been examined and they have also not deposed anything against him. The petitioner, therefore, claims that the FIR is an abuse of the process of the court and has to be quashed.

Deputy Superintendent of Police (SD), Jallalabad, filed the reply on behalf of the respondent-State alleging that the petitioner was managing the affairs of the company and is equally liable along with the other accused. He has also alleged that the petitioners and others cheated the innocent public. So far as the delay is concerned he has alleged that the case remained under investigation since the offence was of technical nature requiring deeper probe and link evidence. The important objection taken by the respondent is that the charge-sheet has been filed against the petitioner and others, &nd the case is pending trial before the Judicial Magistrate, 1st Class, Fazilkha. He has further alleged that the charges have been framed against the accused and the evidence of some of the witnesses have been recorded, and that the trial is likely to conclude shortly. According to the respondent, there is no intentional or deliberate delay. He has denied that this FIR is an abuse of the process of court.

I have heard counsel for both the sides.

The main objection taken by the respondent is that the charge-sheet has already been filed into the court, charges have been framed against the accused and some of the witnesses have also been examined and, therefore, this court should not in the exercise of its power u/s 482, Criminal Procedure Code, quash the F.I.R. and the consequential proceedings. In view of this objection, this court will not normally go into the question whether a reading of the F.I.R. discloses grounds for proceeding against the petitioner for the offences alleged and then to proceed to quash the F.I.R. and the proceedings arising therefrom. Therefore, I have to see whether there are compelling circumstances to quash the proceedings.

The contention of the petitioner is that though the F.I.R. was registered in the year 1990, the case is pending till date violating the right to speedy trial guaranteed by Article 21 of the Constitution of India.

Learned counsel for the petitioner relied upon a Full Bench decision of the Patna High Court in State v. Maksudan Singh [1985] 2 RCR 552 in support of this contention wherein it was held that the accused has a constitutional right of speedy trial and delay would be per se prejudicial to the accused. He relied upon another Full Bench decision of the Patna High Court in Surya Narayan Singh v. State of Bihar [1988] 1 RCR 79, wherein the Full Bench considered that five years would be reasonable for investigation and trial. In the said case, the delay was of 14 years and the prosecution had secured 30 adjournments within 21 months for the examination of the investigating officer which caused unbearable financial and mental strain as also irretrievable damage to the accused. It was held that this delay violated the constitutional right of speedy trial. Learned counsel for the petitioner also relied upon a decision of this court in N. K. Sharma v. S. P. E./C. B. I [1988] 1 RCR 110, wherein it was held that the trial proceedings can certainly be quashed if it has been callously and inordinately prolonged and if the delay is not attributable to the accused.

But we have to take note of the fact that this is a case where several persons had allegedly deposited the money, So investigation would necessarily involve the examination of several witnesses and this consumes time. A reading of the complaint shows that the petitioner herein and another person had started an investment company of which the complainants were appointed as sub-divisional manager/managers of branches. The company had branches at various places like Pipli, Dharam-kot, Fazilka, Ghanga Khurd, Rorawala and other places, which were controlled by the respective branch managers. The branches collected the money from persons who wanted to become members of the company and deposited the same with the complainants. The complainants then deposited the money with the petitioner and the other accused. The petitioner and another are alleged to have cheated the depositors to the extent of Rs. 34 lakhs. Therefore, as rightly contended by learned counsel for the State, the investigating agency had to investigate the case by examining several persons. In such circumstances, I am of the view that the investigating agency and the prosecuting agency cannot be held to be guilty of inordinate and callous delay. Therefore, the decisions relied upon by learned counsel for the petitioner will not be applicable to the facts of this case. Therefore, I find that the delay in this case is not so much as to compel this court to quash the proceedings.

Another ground taken by the petitioner is that even, according to the prosecution, certain persons are stated to have deposited money with the petitioner and another and that the petitioner and the other accused are alleged to have closed the investment company formed by them and thereby to have cheated the complainants, and, therefore, this will be purely a civil liability. He also contends that sections 4G(i) and 420 of the IPC are the antithesis of each other and there cannot be a simultaneous trial of both these offences, He also relied upon a decision of this court in Chhote Lal Aggarwal v. State of Punjab [1987] 2 RCR 263 to buttress his contention. That was a case where the complainant had supplied goods to the accused on several occasions. Subsequently, in order to discharge the pre-existing liability, the accused issued cheques to the complainant which were dishonoured. This court held that the cheques were issued by the accused to discharge his pre-existing liability and not against the delivery of goods and, therefore, there is no question of cheating but only a breach of promise and hence a civil liability. But, in the present case, the depositors have been made to deposit the money into the company formed by the petitioner, and the company has been closed without paying the amounts due to the depositors. Therefore, this decision will not be of any help to the petitioner. Learned counsel for the petitioner also relied upon another decision of this court in Daramvir v. State of Punjab [1986] 2 RCR 559. What happened in that case was that the police received a secret information that the petitioners before the High Court, in the garb of running a double money saving scheme, collected a large amount of money from the public with the intention to misappropriate the same. On the basis of this, the police registered the first information report. None of the persons from whom the money was said to have been collected had made a complaint against the petitioners before the High Court, and there was no allegation in the FIR that anyone had ever approached the petitioners for the refund of the money deposited by him or that the petitioners refused to pay the same. Therefore, on the allegations in the FIR concerning that case, this court held that no criminal offence is made out. There is also an observation in this judgment that even if the petitioners refused to refund the money to the depositors, it would at the most amount to breach of contract which would be a civil liability.

The other contention put forward by learned counsel for the petitioner is that sections 406 and 420, IPC, are antithesis of each other and, therefore, both the offences cannot he tried simultaneously. He also relied upon a decision of this court in Jalpa Parshad Aggarwal v. State of Haryana [1987] 2 RCR 427. Of course, this court held, in the said case, that the accused cannot be tried for these two offences simultaneously. But, this court on the facts found that the complainant had supplied goods to the petitioner, before the High Court, on various occasions, and to discharge the existing liability, the petitioner before the High Court had issued cheques to the complainant, which were dishonoured. This court observed that the cheques were not issued against the delivery of goods but were drawn in order to discharge the pre-existing liability and, therefore, the dishonouring of the cheques amounted to breach of promise which is a civil liability, and no criminal offence is made out either u/s 406 or Section 420, IPC. It was in this view that the FIR and the consequential proceedings were quashed. But, as pointed out already, the facts of the present case are quite different from the facts of that case, I am also of the view that the contention that the liability is only a civil liability and no criminal liability is attached, cannot now be entertained after the filing of the charge-sheet and after the framing of the charges. Similarly, the contention that these offences cannot be tried simultaneously, is also a matter which, the petitioner should have agitated by way of filing a revision petition, since charges have been framed. Therefore, I do not consider that these are compelling circumstances which would enable this court to quash the proceedings after the filing of the charge-sheet and the framing of the charges. But, it will be open to the petitioner to take all the defences that are open to him in law, and the same shall be considered by the trial court in accordance with law.

In view of my above findings, this petition has to fail, and is accordingly dismissed.