Harbans Lal vs State of Punjab and Another

Nirmaljit Kaur, J.—This is a petition u/s 482 Code of Criminal Procedure for quashing of FIR No. 295 dated 23.09.2005 u/s 408 of the Indian Penal Code, registered at Police Station City Batala.

As per allegations in the FIR, the Petitioner was working as a salesman on the petrol pump i.e. M/s. Dhanpat Rai Ropal Dass, Jalandhar Road, Batala and was also looking after the financial transactions of the pump. As per the allegations, the employer/complainant fell ill. Taking advantage of his absence, the Petitioner committed fraud with the sale proceeds of agricultural produce. The fraud was detected after 2 1/2 years i.e. in the year 2004. FIR was registered on 23.09.2005

Learned Counsel for the Petitioner, while praying for quashing of the said FIR, contended that the said FIR has been registered by the complainant/Respondent as a counter blast to the proceedings initiated by the Petitioner/workman against his employer before the Labour Court authorities regarding his illegal termination and non payment of wages. Further, the complainant/Respondent duly appeared through their representative and filed reply before the Labour Inspector on 20.05.2005. The stand taken on behalf of Respondent No. 2 before the Labour Inspector was totally contradictory in itself. The reply was silent qua any fraud whatsoever. While making statement before the Labour Inspector no allegation qua fraud detected was made. As such, the present complaint is an after thought.

Learned Counsel for the Respondent-complainant, on the other hand, submitted that the statement before the Labour Inspector does not mean that the Petitioner has been given a clean chit in the FIR. It was further contended that as per the FIR, a fraud of Rs. 3,82,946.12 was detected in October, 2004. The Petitioner had embezzled the aforesaid amount when the complainant was not well. Further, the challan has been filed, charges have been framed and therefore, there is no occasion to quash the FIR at this stage.

Heard.

It is not disputed that the Petitioner moved an application before the Labour Inspector Grade I, Batala on 01.02.2005, demanding his reinstatement along with salary for the period from 01.10.1992 to 31.03.2002. Reply was filed on behalf of the Respondent-employers on 20.05.2005 and the same reads as under:

The representative of the owners Shri Nagpal has stated that workman has to return the amount which he has made with his own hands out of which the owners has recovered Rs. 10,000/- on 18.10.2004 from the house of the workman which he has deducted with his own hands from the sale and balance amount is Rs. 30,525.54 still outstanding. Workman should make payment of this amount. Besides this, workman has also taken advance of Rs. 6500/- from the firm against his salary which he should return. The owners are ready to keep the workman on work without giving him pay of the period on which he has not come to the work. Therefore, the workman should be sent on duty. Owners have never even refused to keep the workman on work. The date on which workman joined the work is wrong. Actual date is 01.10.1989. The detail regarding the sale upon which the owners have signed is attached along with.

FIR was registered on 23.09.2005. As per the FIR, fraud was detected in the month of October, 2004, which is much prior to the reply before the Labour Inspector, Grade I, Batala. It is evident from the said reply that only a sum of Rs. 30,525.57 was due from the Petitioner. It is not understood as to why the said fact about the Petitioner being guilty of defrauding the employer of Rs. 3,82,946.12 was not mentioned nor in the statement or the reply filed before the Labour Court.

Thus, it is evident from the above that the said FIR was got registered by the employer as a counter blast and with an ulterior motive to twist the arm of the Petitioner and pressurize him to withdraw his case. As such, the same is nothing but a misuse of the process of law.

The Coordinating Bench of this Court, while granting bail to the Petitioner on 31.10.2006 in CRM M 12237 of 2006, made somewhat similar observations as under:

The dispute, in the present case appears to be one between a workman and his employer. The employer, alleging that a sum of Rs. 3,82,946.12 was embezzled by the workman lodged the present FIR and terminated his services. The workman namely the Petitioner in the meanwhile, approached the Labour Court for reinstatement. Before the Labour Court, a representative of the complainant firm made a positive statement that only a sum of Rs. 30525.54 was due from the Petitioner. It is, thus, prima facie, apparent that the allegation, in the FIR, that the Petitioner embezzled Rs. 3,82,946.12 is exaggerated. The matter is pending before the Labour Court.

In view of what has been noticed herein above, but without expressing any final opinion as to the respective stand taken by the parties, the order of this Court dated 28.02.2006 is made absolute subject to the provisions of Section 438 Code of Criminal Procedure The present petition stands disposed of accordingly.

Hon''ble the Supreme Court in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. while warning and directing the Courts to exercise power u/s 482 Code of Criminal Procedure sparingly and with circumspection and that too in the rarest of rare cases, laid down a list of such cases, where the Court can exercise its inherent jurisdiction for quashing of the FIR which are as under:

(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 u/s 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 u/s 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 concerned Act (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 concerned Act, 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.

The present case fall under Clause 7 of the aforesaid list i.e. 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.

The Petitioner who is a labour is pitted against his employer. It is admitted case of the Respondent/complainant that he came to know about the defraud, if at all, in the month of October, 2004, whereas, the FIR was lodged for the first time on 23.09.2005 i.e. after almost one year and that also after the Petitioner had filed application before the Labour Inspector, Grade I, Batala, claiming his reinstatement and challenging his illegal termination and non-payment of his wages. In the reply filed on behalf of the employer in the case before the Labour Court, it was their positive stand that the Petitioner owed only a sum of Rs. 30,525.54 to the Respondent.

Thus, the story put forward in the FIR that the Petitioner defrauded Rs. 3,82,946.12 is an after thought and apparently incorrect on the face of it and has been made only as a counter blast to the Industrial Disputes raised by the Petitioner before the Labour Court in order to twist his arm and also to compromise the matter. The complaint is an outcome of undue and personal grudge with an ulterior motive. As such, the present case is totally covered under ground 7 of the judgment rendered by Hon''ble Supreme Court in the case of Bhajan Lal''s case (Supra), where the High Court can exercise its inherent power u/s 482 Code of Criminal Procedure for quashing the FIR.

Accordingly, the present petition is allowed and FIR No. 295 dated 23.09.2005 u/s 408 of the Indian Penal Code, registered at Police Station City Batala and al the subsequent proceedings arising out of the same are hereby quashed.