Krishan Kumar Bharadia vs State of Haryana

K.S. Bhalla J.

Petitioner Krishan Kumar Bharadia, resident of Cuttack in Orissa has filed this petition under section 482 of the Code of Criminal Procedure, 1973, for quashing the FIR No. 254 dated 1951987, registered at Police Station City Sonepat, when the case is still at investigation stage. The case was registered at the instance of Arun Aggarwal, Manager, Aggarwal Oil Mills, Sonepat, who sought prosecution of the petitioner under sections 406, 409, 420 and 120B of the Indian Penal Code. Copy of the first information report sought to be quashed is annexure `A'' on the file and the same can be perused for proper assessment of the allegations made against the petitioner with regard to commission of the alleged offenses.

The main objection raised on behalf of the respondent relates to the stage of the case, It is said that investigation of a case cannot possibly be thwarted. No doubt, ordinarily inherent powers are not exercised to interfere at the stage of investigation but there is no blanket bar in so doing and the High Court can interfere in exceptionally hard eases in order to prevent the harassment of a party by an illegal prosecution. Section 482 confers power on the High Court to pass orders exdebo to judicial in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. In an appropriate case it may, rather, is, permissible to protect a person from illegal and vexatious prosecutions in exercise of inherent powers of the High Court. A full Bench ruling of this Court Vinod Kumar Sethi and others v. State of Punjab and another, AIR 1982 Punjab & Haryana 372 has made things clear in this respect. It has been held therein that there is no blanket bar against the quashing of an FIR and the consequent investigation, before a chargesheet is filed in Court. No doubt such powers are to be exercised sparingly. The requisite preconditions for the exercise of the powers must be satisfied and one of those requisite conditions is that the first information report even if accepted as true discloses no reasonable suspicion of the commission of a cognizable offence. This was also held in the basic, ruling of R.P. Kapur v. State of Punjab, AIR 1960 Supreme Court 866 that inherent, jurisdiction to quash proceedings should be exercised where the allegations in the first information report or the complaint even if they are taken at their face value and accepted in their entirely do not constitute the offence alleged. The instant case squarely falls within that category and to permit prosecution therein would amount to giving of a licence for harassment of the petitioner. The apex Court held in State of West Bengal and others v. Swapan Kumar Guah and others, AIR 1982 Supreme Court 949 that it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual. As for said reason noninterference would result in miscarriage of justice, it is a fit cam in which exercise of inherent powers at the stage of investigation is permissible.

The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear, in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak, and, therefore no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. Application of said tests to the facts and circumstances of the present case makes it crystal clear that prosecution of the petitioner for alleged offences is not called for. The facts disclosed in the case merely show that it is a case of breach of contract which can be redressed in a Civil Court and no reasonable suspicion of the commission of a cognizable offence is disclosed. Admittedly, it was a case of sale of goods, different consignments of oil were sent and goods were delivered against Hundis some of which as per allegations in the first information report were honoured and the others were dishonoured. It is also cleat from the affidavit of complainant Arun Aggarwal that business transactions between the parties were going on since 1984 and the same has been alleged in the first information report annexure `A'' stating that petitioner was purchasing oil from complainant''s Mills for the last many years. Thus clearly it is a case of civil nature, arising out of branch of promise and if at all recovery of amount, may be huge, is, required to be made, it is not proper to pressurize or harass the petitioner through criminal prosecution for the same. It admittedly being a case of sale transactions question of entrustment of property belonging to the complainant with the petitioner did not arise so as to make it a case of alleged offences of breach of trust.

Facts alleged do not either make out alleged offence of cheating as necessary ingredient of dishonestly inducing delivery of property is badly missing. It is nowhere mentioned in the first information report if, when and in what manner the inducement was made by the petitioner. On the other hand, it is obvious from the affidavit of the complainant that petitioner perhaps never met him. It has been solemnly affirmed in para No. 2 of his affidavit that Shri Krishan Kumar Bharadia had approached the concern, of the deponent through a broker, although the name of the broker has not been disclosed therein. It is further added that then he appeared to have gone back of the commitment made with the deponent''s concern through the said broker. Thus clearly business dealings between two patties were arranged through a broker and as such question of any inducement did not arise. The fact whether M/s Kohinoor Enterprises with whom complainant''s concern admittedly had dealings are owned by the petitioner and ShamasUdDin Khan is only a Benamidar, too, is predominantly a question of civil nature to be determined by the Civil Court for fixing the liability for payment of the goods supplied. Thus clearly the allegations made in the first information report taken at their face value do not constitute any of the alleged offences.

The learned counsel for the complainant has also stressed with regard to materials subsequently collected in the course of investigation. To my. mind, that too further does not disclose any cognizable offence at all. With, regard to Contention concerning `criminal intimidation'' an offence punishable under section 506 of the Indian Penal Code. I am convinced that the power of investigation has been exercised mala fide. It is clear from the reply filed on behalf of the respondents that petitioner never visited Sonepat and had all along been avoiding to do so irrespective of the directions of the police, Sessions Judge, Cuttack and Chief Judicial Magistrate, Sonepat.

For the aforesaid reasons, particularly when the facts disclosed merely show it to be a case of civil wrong, it is a fit case in which High Court should exercise its inherent powers to stop the investigation, which should never have been commenced, in order to prevent abuse of the process of the Court, resulting in harassment of the petitioner by an illegal prosecution. The first information report (annexure A) accordingly is quashed and further investigation is ordered to be stopped.

JUDGMENT accordingly