Gangadhar vs Satinderjit Kaur and ors.

S. D. Bajaj, J.

Criminal Misc. No. 10441M of 1989 and Criminal Misc. 1263M of 1990 have both been filed for quashing FIR No. 171 got registered by Smt. Satinderjit Kaur against the two petitioners in their separate individual petitions aforesaid and one Gurmeet Singh Walia, in Police Station, Civil Lines, Ludhiana under Sections 408, 409. 411/34 and 120B of Indian Penal Code and the proceedings taken on its basis by the learned Additional Chief Judicial Magistrate, Ludhiana against the petitioners on the grounds that there is total lack of jurisdiction in Ludhiana Criminal Courts, that from a reading of the FIR no offence is made out against either one of the two petitioners and that the entire dealing between the author of the FIR and Gurmeet Singh Walia is of civil nature.

In order to appreciate the stand of the petitioners before this Court, it is necessary to reproduce FIR No. 171 dated 26.8.1988 which reads :

"(1) That the applicant is the Proprietor of GEOCO Engineers (Regd), near Preet Palace, Ludhiana, which falls within the jurisdiction of PS Division No. 5 Ludhiana. The applicant deals in sale and purchase, and. manufacturing of agricultural machinery, spraypumps etc.

(ii) That the accused No. 1 was the agent of the applicant who was deputed to book order for the sale of goods of the firm, to purchase machinery for the firm from outside, to hand over the dues of the firm to the applicant after recovering the same in Ludhiana and after coming to Ludhiana to render the accounts.

(iii) That accused No. 2 is the fatherinlaw of the accused No. 1 and he had brought the accused No. 1 to the applicant for his appointment as an agent with her, and he had stood surety verbally for the accused No. 1 before the applicant to the effect that in case the firm suffers any loss due to the negligence on part of the accused No. 1, and that if the firm suffers any loss the accused No. 2 in person alongwith his properties shall be liable for the same, in all respects. This surety was given by the accused No. 2, for the appointment of accused No. 1 as an agent for the firm of the applicant, in the presence of Sh. Manjit Singh Sekhon S/o. Sh. Bakhtawar Singh, r/o Atam Nagar, Ludhiana on 16.1.1988.

(iv) That accused No. 1 assured the applicant that he will purchase good quality and cheap material from Bombay and is also able to get creditbasis material because the friend of the accused No. 1 also does this type of work.

(v) That the accused No. 1 was handed over by the applicant a sum of Rs. 50,000/ (Fifty thousand only) in cash, while be was going on tour, on 22.1.1988 for the purchase of brass sheets, brass pipes and plastic tanks, as trust money, and also sent to him three blank payees'' account, nor accused No. 3 was having any instructions for making/not making any payment. Following are the details of the amounts and demand drafts which the accused No. 1 receive from Karnataka Agro Industries Corporation:

Sr. No. Draft No. Amount Date

662351 4140/ 22.288

675360 7038/ 8.388

675538 6900/ 4.4.88

675576 23460/ 16.4.88

675643 53820/ 30.4.88

675693 74760/ 9.5.88

675728 4600/ 17.5.88

DD No. 436386 11477/ 26.3.88

" 163592 1220/ 27.4.88

and amount of Rs. 1,90,335/ which the accused No. 1 received from the following parties :

a. Rs. 4500/ Spare Well Industries, Delhi.

b. Rs. 2018175 Engg. Company, Sikandarabad.

c. Rs. 5000/ Ram Agro, Baroda.

(viii) that the accused persons have gulpedup, abovesaid sum of Rs. 50,000/ (fifty thousand only), and did not send any material to the appellant, rather kept on sending telegrams that goods are being sent from Bombay, to make the applicant believe. There is no firm by the name of Jain Metal Store, Sidani Building, Ahmed Udyog Bhavan, New (E) Bombay, from whom the accused No. 1 is purported to have sent the goods.

(ix) That applicant accompanied by Paramjit Singh s/o Santokh Singh r/o Village Lakhowal, Tehsil Distt. Ludhiana went to accused No. 2 and enquired about the accused No. 1 on which accused No. 2 told that he is in possession of the money of applicant which he will hand over to her after coming of the accused No. 1, but now accused No. 2 has refused to pay her money.

(x) That collectively and hatching a conspiracy, the above accusedpersons have committed criminal offence and duped the applicant of Rs. 3,09,853/75, besides abovesaid Rs. 40,000/and have committed breach of trust and have taken illegal possession thereof and kept with them. Accused have committed offences punishable u/ss 409/411/34/120B IPC, for police action the concerned police is requested that caseregistration orders be passed to SHO, PS Divn. No. 5, Ludhiana, for registering case against the above accused and they be arrested and above amounts be got recovered from them and they be punished in accordance with law.

Note : Under Section 18 1(4) and 186 Cr.P.C. the police of PS Divn. No. 5. Ludhiana has authority to investigate this case as the concerned firm falls within its ambit, and there is no other branch thereof in whole of India.

Applicant

SD/

Satinderjit Kaur,

date 28.6.88"

The test for quashing the FIR as obtaining in State of West Bengal and others v. Swapan Kumar Guha and others, AIR 1982 Supreme Court 949 is: "A First Information Report which does not allege or disclose that the essential requirements of the penal provision are primafacie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. An investigation can be quashed if no cognizable offence is disclosed by the FIR. It is surely not within the province of the police to investigate into a Report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases. The condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, primafacie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably. have reason so to suspect unless the FIR, primafacie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation. for to do so would be to trench upon the lawful power of the police. to investigate into cognizable offences. On the other hand if the FIR does not diclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. The power to investigate into cognizable offences must, therefore, be exercised strictly on the ondition on which it is granted by the Code. If an offence is disclosed, the High Court under Article 226 of the Constitution will not normally interfere with an ivestigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. But it cannot be said that an investigation must necessarily be permitted to continue and will not be prevented by the Court at the stage of investigation. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind or uncalled for and unnecessary harassment to an individual."

Applying these tests to the recitals in the complaint reproduced above it would appear that the commission of a criminal offence is disclosed against Sardar Singh and Ganga Dhar, the two petitioners in their individual quashing petitions aforesaid. Relevant assertions made therein against Sardar Singh read, "That accused No. 2 is the fatherinlaw of the accused No. 1 & be had brought the accused No. 1 to the applicant for his appointment as an agent with her, and he had stood surety verbally for the accused No. 1 before the applicant to the effect that in case the firm suffers any loss due to the negligence on part of the accused No. 1 the accused and that if the firm suffers any loss the accused No. 2 in person alongwith his properties shall be liable for the appointment of accused No. 1 as an agent for the firm of the applicant, in the presence of Sh. Manjit Singh Sekhon S/o Sh. Bakhtawar Singh, r/o Atam Nagar, Ludhiana, on 16.1.1988." That applicant accompanied by Paramjit Singh s/o Santokh Singh, r/o Village Lakhowal, Tehsil Distt. Ludhiana went to accused No.2 and enquired about the accused No. 1 on which accused No. 2 told that he is in possession of the money of applicant which he will handover to her after coming of the accused No. 1, but now accused No. 2 has refused to pay her money."

Relevant assertions against Ganga Dhar are, "That feeling suspicious, the applicant sent her relative Navdeep Singh to Delhi, Bangalore for searching the accused No. 1 and he learnt that accused No. 1 has taken along the following amounts and drafts from the parties and opened a current account in the name of the firm of the applicant posing himself as its sole proprietor, with Andhra Bank, Gandhi Nagar, Bangalore and his witness was made by the accused No. 3 knowing fully well that accused No. 1 is not the sole proprietor of the firm of the applicant, in which account the accused No. 1 deposited the cheque and drafts in the said account and later on withdrew whole of the amount therefrom. The accused No. 3 has got prepared receipts worth Rs. 40,000/ (Forty thousand only) from the accused No. 1 without giving any amount/money to him, nor accused No. 3 was having any instructions for making/not making any payment." "That collectively and hatching a conspiracy, the above accused persons have committed criminal offence and duped the applicant of Rs. 3,09,853/75 besides above said Rs. 40,000/ and has committed breach of trust and have taken illegal possession thereof and kept with them. Accused have committed offences punishable u/ss 409/411/34/120B IPC, for police action the concerned police is requested that case registration orders be passed to SHO, PS Divn. No. 5, Ludhiana, for registering case against the above accused and they be arrested and above amounts be got recovered from them, and they be punished in accordance with law."

Disputes between the author of the FIR and the petitioners cannot be termed to be of civil nature because the allegations levelled against Ganga Dhar petitioner are of wrongly identifying Gurmeet Singh Walia as proprietor of GECO Engineers knowing fully well that he was not so and sharing the booty of misappropriated money half and half with Gurmeet Singh Walia through conspiracy hatched by all the three accused. Similarly accused Sardara Singh is also attributed to have retained the amount of Rs. 50,000/ entrusted by author of the FIR to his soninlaw Gurmeet Singh Walia and is described in the complaint as conspirator with the remaining two accused.

Relevant Sections 179 and 181 of the Code of Criminal Procedure, 1976, read :

"179. Offence triable where act is done or consequence ensues When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."

"181. Place of trial in case of certain offences :

(1) Any offence of being a thug, or murder committed by a thug, of dacoity, with murder, of belonging to a gang of decoits, or of escaping from custody. may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.

(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.

(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it, or by any person who received or retained such property knowing or having reason to believe it to be stolen property.

(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retained, or was required to be returned or accounted for, by the accused person.

(5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property."

In terms of subsection (4) of Section 181 since the amounts entrusted by the author of the FIR to Gurmeet Singh Walia and the other amounts mentioned in para No. 7 of the quashing petition recovered by Gurmeet Singh Walia from out station parties were to be accounted for by him at Ludhiana the head office of GECO Industries, Criminal Courts at Ludhiana have the jurisdiction to entertain and adjudicate upon the claim in criminal proceedings pending with them.

There is, thus, no merit in either of the two criminal miscellaneous quashing petitions aforesaid. The same are, therefore, dismissed.