Harminder Singh vs Pishora Singh

P. K. Jain, J.

This petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') for quashing the complaint (Annexure P.1) and the summoning orders (Annexures P.2, P.3 and P.4). The facts giving rise to this petition are that Pishora Singh (respondent No. 1 herein) has filed a complaint under Sections 420/467/468/471/209 of the Indian Penal Code in the Court of the Sub Divisional Judicial Magistrate, Samana, against the petitioners and one Des Raj. According to the allegations in the complaint, Pishora Singh (complainant) purchased a tractor by raising loan from the Samana Primary Cooperative Agricultural Development Bank Ltd., Samana, in the month of April 1988. Petitioners Nos. 1 to 5 are the Proprietors/Partners/Sales Manager/Employees of M/s. Bansal Automobiles, a firm dealing in tractors ''Eicher''. M/s. Anand Casting and Engineering Works deals in manufacturing of tractor trolleys and other agricultural implements and Des Raj is the Proprietor/Partner of that firm. According to the allegations contained in the complaint, M/s. Bansal Automobiles supplied an old tractor instead of new one and the other concern did not supply tractor trolley to the complainant and all the petitioners including Des Raj got the signatures of the complainant on blank papers including the pronote and receipt dated 18.4.1988 in order to cheat and play fraud upon the complainant. Petitioner No. 1 filed a suit for the recovery of Rs. 11,950/ on account of principal and interest on the basis of the forged and fabricated pronote and receipt dated 18.4.1988 which was dismissed by Sub Judge, I Class, Samana, on 5.5.1989, whereby it was held that the pronote and the receipt were the result of fraud. Accordingly, the said complaint was filed.

After recording preliminary evidence, Sub Divisional Magistrate, Samana, summoned the petitioners as well Des Raj to face trial under Sections 420/467, I.P.C. On the appearance of the petitioners, it was alleged that no offence was made out against any of the petitioners and the complaint was liable to be dismissed. After hearing the counsel for the parties, the Sub Divisional Magistrate by a detailed order dated 3.2.1995 came to the conclusion that a prima facie case under Section 467 read with Section 120B, Indian Penal Code, was made out against the petitioners, but discharged Des Raj. Accordingly, charge was framed against all the petitioners. The petitioners had also moved a separate application for the dismissal of the complaint on the ground that a compromise had been effected between the parties in the civil appeal filed by them against the judgment and decree of the Subordinate Judge and the complainant had undertaken to withdraw the complaint and as such the complaint was liable to be dismissed. These averments were denied by the complainant and it was stated in reply that no such compromise was ever effected nor any such undertaking was given by the complainant. After hearing the counsel for the parties, Sub Divisional Judicial Magistrate rejected the application by order dated May 3, 1994.

In the aforesaid circumstances, the present petition has been filed repeating the averments mentioned above regarding a compromise alleged to have been entered into between the parties whereby the respondent Pishora Singh had undertaken to withdraw his complaint pending before the Sub Divisional Judicial Magistrate and on the basis of the said undertaking the complaint and the further orders passed in pursuance thereof are liable to be quashed.

In reply, respondent No. 1 has again denied having entered into any such compromise. He has further explained that the alleged application for the withdrawal of the appeal was filed by the petitioners not on the date of hearing but on an earlier date, that the complainant was never present before the appellate Court nor made any statement and the plea of the petitioners that any such undertaking was given by him is absolutely false.

I have heard the learned counsel for the parties.

Shri G. C. Dhuriwala, Advocate, learned counsel for the petitioner has argued that against the judgment and decree dated 6.8.1990 civil appeal was filed in the Court of the District Judge, Patiala; that during the pendency of the appeal the matter was compromised between the parties and an application (Annexure P.5) for the withdrawal of the appeal was filed wherein the respondent had given an undertaking to withdraw the criminal complaint also. It has been further argued by the learned counsel that on the basis of the application the civil appeal was dismissed as withdrawn, but the respondent backed out of his undertaking and did not withdraw the criminal complaint with mala fide intention. Thus, it is urged that the complaint and the subsequent proceedings are liable to be quashed.

On the other hand Shri V. K. Kataria, learned counsel for the respondent, has argued that this very plea was taken by the petitioners before the Sub Divisional Judicial Magistrate twice and on both the occasions no such undertaking alleged to have been given by the respondent (complainant) was produced before that Court. It has been further argued that still if any such undertaking had been given by the respondent, the same can be pleaded by way of defence at the trial and this Court in the exercise of its inherent jurisdiction would not quash the criminal proceedings. Reliance has been placed upon a judgment of the Bombay High Court rendered in Rakesh Nemkumar Porwal v. Narayan Dhondu Joglekar and another, 1993(2) Recent C.R. 210 .

I have considered the respective arguments advanced at the Bar.

The question of quashing an FIR or a complaint by the High Court in exercise of its inherent jurisdiction conferred by Section 482 of the Code or in exercise of its extraordinary jurisdiction conferred by Articles 226/227 of the Constitution of India has been considered by the apex Court in several judgments including the Janata Dal v. H.S. Chaudhari and others, AIR 1993 SC 892; State of Haryana and others v. Ch. Bhajan Lal & others, AIR 1992 SC 604 and State of Bihar v. P.P. Sharma and another, AIR 1991 SC 1260 and Mrs. Rupan Deol Bajaj and another v. Kanwal Pal Singh Gill, 1995(3) Recent Criminal Reports 700 : JT 1995(7) SC 299 . What emerges from a perusal of these judgments can be summed up as that the commission of offence cannot be decided on affidavit evidence, nor the High Court can take short course annihilating a still born prosecution by going into the merits on the plea of proof of prima facie case and advert to those facts and give findings on merits. It was clarified by their Lordships that grossest error of law would be committed by the High Court in making a pretrial of criminal case in exercise of its inherent powers conferred by Section 482 of the Code or in its extraordinary jurisdiction under Articles 226/227 of the Constitution. It also emerges from these judgments that in proceedings under Section 482 of the Code, no new material can be introduced by either party in support of their contentions before the High Court.

From a perusal of the order dated 3.2.1995 (Annexure P. 3), the Sub Divisional Judicial Magistrate has categorically considered this plea of the petitioners in para 9 of its order. It has been observed that this plea can be considered when the accused entered their defence and it is established that the said compromise was entered into and the complainant had undertaken to withdraw his complaint. Similar are the observations made by the said Sub Divisional Judicial Magistrate in his subsequent order dated May 3, 1994. This order also goes to show that the alleged statement of the complainant and his counsel, certified copy of which was placed on the record of the trial Court, did not bear signatures of the complainant Pishora Singh or his counsel. In these circumstances, if the petitioners still insist that on the reverse side of the application for withdrawal of the appeal, there is an undertaking given and signed by the complainant or his counsel for the withdrawal of the complaint, the same is to be established by the complainant at the trial. No judicial notice of such a disputed question of fact can be taken under any provision of law.

For the reasons mentioned above, I do not find any merit in this petition and the same is hereby dismissed. The parties through their counsel have been directed to appear before the trial Magistrate on 20.3.1996.