Iqbal Nath and another vs Sant Ram

This is an application by the accused under S. 561A of the Criminal P. C. for quashing of certain criminal proceedings against them in the court of

the SubDivisional Magistrate Reasi.

The respondent Sant Ram, brought a com. plaint under Ss. 420/403 R. P. C. against the accused in the court of the SDM Reasi with the following

allegations. The complainant was running a cobbler's shop at Reasi and had the machine and some other instruments of a cobbler. About three

years ago the accused induced him to take them as partners. The accused further represented that they would invest sufficient capita1 into the

business from which the complainant would make huge profit The complainant alleged that the accused never fulfilled their promise of investing

money j on the other hand they got a pronote of Rs. 600 executed from the complainant in order to ensure that he would stick to the business

alongwith the accused. On 19763 the accused took into their exclusive possession a number of instruments belonging to the complainant. The

complainant produced two witnesses in support of his case, and the accused petitioners were summoned under S. 420 of the R. P. C.

Though this case is very simple, yet I allowed the learned counsel for the parties to argue the case at length which they did. The learned counsel for

the respondent complainant invited my attention to three authorities: A. I. R 1963 Raj. 104, A. I. R. I960 All. 33 and A. I. R. I960 S. C. 866. The

learned counsel for the petitioners on the other hand referred to some case decided by Ali JGhulam Ahmad v, Ghularo Mohdbut he did not

produce a certified copy of the judgment.

So far as the Rajasthan authority is concerned, it is not directly to the point. All that it lays down is that inherent powers of the High Court given to

it under S. 561A of the Criminal P. C should be exercised very sparingly.

The Allahabad authority also enjoins upon the High Court to exercise its powers under S. 561A of the Criminal P. C. carefully and only in

extraordinary cases, more so when the case is at an interlocutory stage.

The Supreme Court authority (Supra) lays down certain principles for the guidance of courts in India According to the Supreme Court the High

Court can interfere in the following cases :

1) where it manifestly appears that there is legal bar against the institution or continuance of the criminal proceedings.

2) Where the allegations in the F. I. R. or the complaint even if they are taken at their face value and accepted as correct in their entirety do not

constitute the alleged offence. In such cases their Lordships have held that there is no question of appreciating evidence and

3) Where even if the allegations made do constitute an 'offence there is no legal evidence in support of the case.

These principles as Laid down by the Supreme Court have been applied from time to time by courts in India as well as by this court while

considering the question of quashing a criminal proceeding. The present case, if it is covered by this authority, would only come in criterion No. 2

enunciated above. If I am of the opinion that the contents of the complaint read along with the statements of the complainant and his two witnesses

do not per se or on their face value disclose a criminal offence, I shall be justified in quashing the proceedings, otherwise not.

Just before this case another case came up before me today Prithvi Nath v. Prem Nath Tikuwherein I made certain observations regarding bringing

of criminal complaints. As I remarked in that case, there is a tendency on the part of the litigants to clothe a civil liablity with a criminal garb. In this

way the criminal court is moved instead of the civil court.

In the instant case I am afraid the test Laid down in criterion 2 fully applies, and even if I take the complainant's statement and the statements of the

two witnesses as correct, it does not disclose a criminal offence at all. The complainant's grievance is that he was made to take the accused as

partners three years back. They promised to advance him some money which they did not. According to the complainant they took charge of the

machine and the tools by use of which he was carrying his business In order to constitute an offence under S. 420 of the R. P. C. it is obligatory for

the prosecution or the complainant to show that when the first inducement was made it was fraudulent and the intention was to deceive or cheat the

complainant. I have carefully gone through the statements made by the complainant and his two witnesses but in these statements I fined this

important ingredient absent. It is just possible that the accused might have asked the compliant to take them as partners is good faith, but

subsequently they changed their mind or could not afford to pay the money which they had promised him. That by itself would not make a

transaction which was honest to start with, an offence under S. 420 of the R. P. C. Moreover the continued course of transaction between the

complainant and the accused for the last three years wherein he accepted the accused as partners, carried on business with them and gave them a

share or rather an undue share in the management of the business would all indicate absence of any such fraudulent intention in the mind of the

accused. Further, even if it be accepted that the complainant's tools have been taken possession of by the accused, that also would not constitute

an offence under S. 420 of the R. P. C.

Taking the most liberal and charitable view of the complaint and the statements adduced so for in the trial court, it comes to this that the parties

entered into a partnership One or two of the partners promised to do a certain thing which they did not and on the contrary took complete control

of the goods and other stockintrade of the partnership. That is a civil dispute and not a criminal case. In these circumstances I am afraid the trial

court has without applying its mind to the facts of the case issued process against the accused under Sec. 420 R. P. C. Repeated directions in this

behalf are ignored by courts below either due to their carelessness or inattention which results in unnecessary multiplication of proceedings,

harassment and incurring of expenses by the parties

In view of the above observations, the criminal proceedings pending against the accused petitioners are quashed. The complainant can seek

remedy in a civil court, if he is so advised.