Dr. Rouf Jeelani Parray vs Sajad Ahmad Beigh & Anr

1) This petition by the petitioner filed under Section 482 of the Code of Criminal Procedure is directed against the order dated 26th of February, 2021, passed by learned Additional District & Sessions Judge, Srinagar (the revisional court) and order dated 28th of December, 2020, passed by learned Chief Judicial Magistrate, Srinagar.

2) Briefly stated, the facts leading to the filing of this petition are that the petitioner filed a complaint before the trial court against the respondents for commission of offences under Section 406 and 420 IPC on the ground that the petitioner, who was working as doctor in Moscow Russia, had entrusted his money to the respondent No.1 for purchase of 02 kanals of land. The money was transferred by the petitioner from time to time to his NRI account maintained in State Bank of India, whose cheque book duly signed by the petitioner was kept with the respondent No.1. It is alleged that the respondent No.1 breached the trust and misappropriated the money and purchased 01 kanal of land in the name of his wife, the respondent No.2, and had only purchased 01 kanal of land in the name of wife of the petitioner.

3) With these allegations and more, the complaint was filed before the trial court, purportedly, under Section 156(3) of the Code of Criminal Procedure. The complaint was forwarded by the learned trial court to the SHO concerned to take necessary action as warranted under law. The police enquired into the matter and submitted a report to the trial court. The trial court, after taking note of the averments made in the complaint and the enquiry report submitted by the police, came to the conclusion that no criminal offence, as alleged, was made out and the dispute between the petitioner and the respondents was purely of civil nature. The trial court, thus, refused to take cognizance and issue process to the respondents. Feeling aggrieved, the petitioner filed a revision petition before the revisional court. The revisional court also concurred with the view of the trial court and, accordingly, dismissed the revision on the same ground.

4) Being dissatisfied with the order of the revisional court, petitioner has invoked inherent jurisdiction of this Court for quashing both the orders i.e. the order passed by the trial court and the order passed by the revisional court upholding the order of the trial court.

5) The challenge to the orders impugned is predicated on the ground that the trial court has failed to appreciate that the averments made in the complaint did disclose the commission of cognizable offences under Section 406 and 420 IPC and, therefore, declined to issue the process. It is the argument of learned counsel for the petitioner that in many a civil transactions, there is an element of criminality and if ingredients of criminal offences are made out, the Courts cannot refuse to take cognizance merely on the ground that the dispute between the parties is civil in nature.

6) Having heard learned counsel for the parties and perused the record, I am of the view that both the impugned orders are well-reasoned and in consonance with law. The trial court as well as the revisional court have vividly noticed that the ingredients of the offences alleged are completely missing and there is not an iota of material to substantiate the allegations. It is pointed out by Mr. Qadiri, learned senior counsel appearing for the respondents, that a civil suit with regard to the immovable property is already subjudice before the civil court.

7) Needless to state that many a times the complainants opt to file criminal complaint and set criminal proceedings into motion in a case which is purely civil in nature. This is a blatant misuse of criminal machinery and utter abuse of process of law. The Courts have been given power to quash such criminal proceedings at the initiate stage so that the accused should not suffer at the hands of law for such wrong which he has never committed. The nature and scope of civil and criminal proceedings are different due to difference in the nature of the rights involved.

8) The concern with regard to abuse of criminal process was highlighted by the Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd. and others, (2006) 6 SCC 736, where the Supreme Court observed that there is a growing tendency in business circles to convert purely civil disputes into criminal cases because civil law remedies take time and do not sufficiently protect the interests of lenders/creditors. It is also believed that there is a possibility of imminent settlement if a person is threatened through pressure by initiation of criminal proceedings. The Supreme Court condemned this practice and recommended that this practice of misleading the courts should be forbidden by the Courts. However, it has also been clarified that a dispute in which remedy is available in civil law may also include criminal offence.

9) In the case of Lalmuni Devi vs. State of Bihar and others, (2001) 2 SCC 17, the Apex Court reiterated that the facts may give rise to a civil claim and a criminal offence. Merely because civil claim is maintainable does not mean that a criminal complaint cannot be maintained.

10) It is in this backdrop when the case in hand is examined, it is seen that the dispute raised by the petitioner is purely civil in nature and does not give rise to the commission of any criminal offence. The ingredients of Section 406 and 420 IPC are missing. Both the courts below have evaluated the contents of the complaint in the light of enquiry report submitted by the police and have come to a concurrent conclusion that no criminal offence is made out and that the dispute raised by the petitioner is purely of civil nature. This Court sees no reason to take a view different from the one taken by the courts below.

11) For the foregoing reasons, this petition is found to be without any merit and is, accordingly, dismissed along with connected application.