Kabal Singh vs State of Punjab

S.C. Malte, J.

The petitioner seeks quashing of the FIR on the ground that since the decree for money had been passed in the arbitration proceedings, criminal prosecution would not be now tenable on the allegations of embezzlement of the same amount which was the subject matter of the arbitration proceedings. It was submitted that the proceedings in this case have been initiated on the basis of report dated 10.2.1988 in respect of occurrence dated 9.12.1987, and since then no progress had taken place in the matter. On this premises it is contended that keeping in view the spirit of Article 21 of the Constitution, the FIR deserves to be quashed.

In support of the argument, the counsel for the petitioner invited my attention to a single Bench ruling of this Court in the case of Harbhagwan Dass v. State of Punjab, 1983(2) RCR 156. In that case his Lordship was of the view that since there was an award in respect of the amount in question, the matter has assumed the characteristics of civil nature and the taking of the criminal proceedings against the defaulter regarding the same matter was abuse of process of the Court. In continuation of the same observations, his Lordship also observed that the jurisdiction of the criminal Court to initiate such proceedings, however, cannot be disputed. Thus, the tenor of the judgment indicated that in case where the matter assumes civil nature, criminal proceedings need not be resorted to.

It may be noted that thereafter in another case Vishvanath v. State of J.K., AIR 1983 Supreme Court 174, Their Lordships of the Supreme Court were considering a similar case in which the government money had been embezzled by the accused by putting that amount to his personal use. The said amount had, however, been refunded on discovery of the embezzlement. In the set of these facts, Their Lordships expressed the view that since the act of the accused was in complete violation of the direction of law, he has failed to send the amount to the treasury, and with criminal intention had not made entry of the money in the register and thus misappropriated the amount. He thereby committed criminal breach of trust and was liable for prosecution. In other words, the view expressed by the Supreme Court was clear enough to indicate that despite making good the refund of the amount in question, the liability under the Penal Code deserves to be considered by applying the ingredients of the Section. Obviously, therefore, mere passing of an award by the arbitration Court under the Cooperative Societies Act, does not clothe the accused with an immunity from the Criminal prosecution by putting forth the argument that the matter was of civil nature. Where particular act amounted to only civil remedy and did not spell out any ingredient of criminal offence is a matter of fact to be considered and decided in a set of facts of each case. It cannot be a straitjacket formula that whenever there is a civil decree that criminal prosecution was unjustified. It may be noted that in the aforesaid case of Harbhagwan Dass (supra) his Lordship has not disputed the jurisdiction of the criminal Court to initiate the proceedings. However, on facts His Lordship seems to have arrived at a conclusion that the passing of the decree changed the character of the alleged use of the money by the accused. The case of Harbhagwan Dass (supra) was followed by a single Bench of this Court in a case of Gurcharan v. State of Punjab, 1989(2) CLR 35. In that case his Lordship referred to the case of Vishvanath v. State of J&K (supra), but preferred to follow the observations by his Lordship in the case of Harbhagwan Dass (supra). I, however, feel bound by the principle laid down by his Lordship of the Supreme Court in case of Vishvanath (supra).

In this case it may be noted that the arbitration award was for a sum of Rs. 1,41,709.31. The payment notice Annexure P3 shows that on 6.10.1993 the amount swelled to Rs. 1,83,942. It is further stated by the counsel that a revision petition in respect of that award is still pending. But there is nothing to indicate the pendency of such revision petition. Moreover, I would say that the pendency of such revision petition would not be a bar for the criminal proceedings which have been initiated long back in 1988. The civil decree at the best makes it obligatory on the person to pay the amount, failing which the recovery of the amount would be by adopting any of the coercive methods available under civil law. That is altogether for a different measure in respect of the recovery of the amount involved. The act of misappropriation of the said amount gives rise to altogether a different position covered by the Penal Code. Section 403 of the Indian Penal Code spells out what dishonest misappropriation of property would amount to. Section 405 of the Indian Penal Code defines the criminal breach of trust. In other words, criminal liability is distinct and in a given case it is in addition to recovery of the amount. There is no provision whatsoever to indicate that one is exclusive remedy to the other, or if one remedy is resorted to, other remedy was barred.

The second plank of argument was that accused was entitled to speedy trial. The FIR was registered on 10.2.1988 in respect of the offence dated 9.12.1987. It, however, clearly appears that pursuant to the said F.I.R. dated 10.2.1988, further steps had not been taken by the police. However, by filing the present petition on 18.10.1993, the quashing of the FIR was sought. When the matter came up before this Court on 4.11.1993, notice of motion was issued and proceedings in the trial Court were stayed meanwhile. That is how it appears that the proceedings had been initiated in the Court. The stay thus obtained was being enjoyed by the petitioner till it was so noted by this Court on 27.2.1986. Thereafter on 26.3.1996, the petition was dismissed for want of prosecution. That order is withdrawn today on petition and the main petition has been taken up. It would be, therefore, clear that accused has also contributed to the protection protraction of this litigation. Nothing is placed on record to ascertain the progress of the matter till stay was obtained in this Court. The right of speedy trial is not only unilateral act, but depends on the desire of the accused also for the speedy trial and his own cooperation for that. I, therefore, find no substance in the contention that delay in progress of the matter would justify quashing of the proceedings in the trial Court.

In the result, I find no substance in this petition, and it is dismissed.