Neerja Goswami vs Harbans Lal

Gh. Hasnain Massodi, J.—The Petitioner is aggrieved with order of Learned Special Excise Mobile Magistrate, Jammu dated 22nd

December, 2008, whereby Learned Magistrate has taken cognizance of offences punishable u/s 420, 120 B RPC, upon a complaint filed by the

Respondent herein and issued process against the Petitioner. The Petitioner invoking inherent powers of this Court u/s 561-A Code of Criminal

Procedure seeks quashment of the order of Trial Magistrate dated 22nd December, 2008, on the grounds that the Petitioner has been wrongly

shown in the complaint as Chief Executive Officer of the RAN AIR SERVICES accused No. 1 (for short Company), whereas the Petitioner was

only an employee of the Company. It is pleaded that the Respondent/complainant probably having interacted with the Chief Executive Officer of

the Company has filed complaint against the Petitioner under the mistaken belief that the Petitioner was Chief Executive Officer of the Company;

that the Petitioner has been arrayed as an accused only to harass the Petitioner and drag the Petitioner - a resident of Delhi to Jammu. It is averred

that the Respondent/complainant having on his own showing made a payment to the Company after he made a settlement with the accused No. 3,

had no reason to array the Petitioner as accused in the complaint. It is urged that the complaint does not reveal commission of any offence and that

mere mention of words ""inducement/deception"" in the complaint ought not to have led the Learned Trial Magistrate to take cognizance of offences

punishable u/s 420, 120B RPC. It is insisted that the dispute raised in the complaint is of pure civil nature and that the Respondent/complainant

cannot be permitted to set in motion ""criminal machinery"" to see his grievances set right. The order impugned, according to the Petitioner, amounts

to the abuse of process of Court.

Heard and considered.

In order to understand the case set up by the Petitioner in right perspective, it would be appropriate to take an overview of allegations set out in

the complaint.

The Respondent's/complainant's case before the Learned Trial Magistrate is that the Respondent/complainant, desperate to arrange adequate

medical treatment for his critically ailing brother Shri Bharat Bhushan admitted in Acharya Shri Chander Medical Science & Hospital Sidhra,

Jammu and to airlift him to Delhi to be admitted in Apollo Hospital was induced by the Petitioner and one Dr. Pradeep Gupta (accused No. 3) to

deposit an amount of Rs. 3.50 lacs in the account of Company i.e. M/s RANA IR SERVICES on the promise of providing air service to shift

Respondent/complainant's ailing brother from Jammu to Delhi. The Respondent/complainant alleges that on the inducement so made he on 15th

October, 2008 making use of account No. 01411000130603 of one of his friend's namely Suhal Sharma transferred the requisite amount to the

account No. 00030340026423 HDFC of the Company. The Petitioner and other accused, the Respondent/complainant alleges, did not provide

the promised air service ? air ambulance, exposing the Respondent/complainant and his ailing brother to immense inconvenience and hardship. The

Respondent/complainant alleged that the Petitioner and other accused entered into criminal conspiracy to cheat and defraud the

Respondent/complainant and an intention to cheat and defraud the Respondent/complainant was there from the very beginning. The

Respondent/complainant claims to have reported the matter to Police Station, Trikuta Nagar and due to inaction of the police was constrained to

file the complaint.

Learned Trial Magistrate on receipt of the complaint recorded statement of the complainant and on going through and giving a ""thoughtful

consideration"" to the complaint and the statement found it to prima-facie disclosed commission of offences punishable u/s 420, 120 B RPC by the

Petitioner and other accused and issued process against the accused.

The Petitioner's case that the Respondent/complainant under mistaken belief that the Petitioner was Chief Executive Officer of the Company

(accused No. 1) arrayed the Petitioner as an accused and that on this ground alone the order taking cognizance of offences punishable u/s 420,

120 B RPC against Petitioner and other accused on the complaint filed by the Respondent/complainant, was liable to be quashed, is bereft of any

merit and belied by the record. The Respondent/complainant in the complaint as also his statement recorded on 22nd December, 2008,

immediately after the complaint was filed insisted that he was fraudulently induced by both the Petitioner as well as accused No. 3 to deposit Rs.

3.50 lacs in the account of the Company. The allegation set out in the complaint as also in the statement is not that the Chief Executive Officer of

the Company had in connivance with the accused No. 3 fraudulently induced the Respondent/complainant to part with and pay Rs. 3.50 lacs to the

Company. Had it been so, the Petitioner could be heard saying that it was the Chief Executive Officer of the Company who might possibly have

interacted with the Respondent/complainant and was to be arrayed as an accused and not the Petitioner. The Respondent/complainant, however,

levelled allegations against the Petitioner, who on her own showing was Company's Manager Commercial and Coordination, of criminal

conspiracy, fraudulent inducement and cheating.

So viewed, mere mis-description of the name of the office held by the Petitioner in the Company does not change complexion of the matter

rendering complaint non maintainable, so as to label the order impugned as one amounting to abuse of process of the Court. The

Respondent/complainant in his complaint as also his statement recorded in support of the complaint specifically and in unambiguous words alleges

that inducement made by the Petitioner and accused No. 3 to deposit an amount of Rs. 3.50 lacs in the account of Company was outcome of a

criminal conspiracy hatched by the Petitioner and accused No. 3, and that the inducement was made in execution of criminal conspiracy, so

hatched. In the circumstances, Learned Trial Magistrate was right in taking a prima facie view that the complaint and the statement of the

complainant prima-facie disclosed commission of offences punishable u/s 420,120 B RPC. The ground urged in the petition that the dispute raised

in the complaint was a pure civil nature, is because of contents of complaint and statement of Respondent/complainant of no avail to the Petitioner

at the present age. Merely, because allegations levelled in the complaint have a civil dimension as well, is not to persuade the court to exercise

inherent powers u/s 561-A Code of Criminal Procedure and quash the order as one amounting to abuse of process of the Court. A closer look at

the impugned order makes it abundantly clear that the Learned Trial Magistrate has applied his mind to the material before him in a dispassionate

manner and on objective appraisal of the material as required u/s 204 Code of Criminal Procedure taken a prima-facie view, that such material

disclosed commission of offences punishable u/s 420,120 B RPC and that there was thus ""sufficient ground"" for proceeding in the matter"". It needs

no emphasis that the Magistrate at the initial stage has to confine himself to the material before him and not to foresee the probable defences that

may be available to the accused.

It is well settled law that inherent powers u/s 561-A Code of Criminal Procedure are to be exercised sparingly and only to prevent abuse of

process of the Court or give effect to an order under the court or otherwise, to secure ends of justice. In the name of exercise of inherent powers,

the Trial Court proceedings can not be hijacked and the Trial Court prevented from proceeding with trial of criminal case, when no interference is

called for. It would be apt to extract hereunder, observations made by the Supreme Court in case Som Mittal Vs. Govt. of Karnataka, :

In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers u/s 482. It has been

consistently held that the power u/s 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power

u/s 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the

Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if

the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent

power of the Court u/s 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court

or otherwise to secure the ends of justice.

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We may observe that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised

according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the

High Court exercising the inherent power u/s 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught

the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power

of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised

sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power u/s 482 is not

intended to scuttle justice at the threshold.

The Petitioner cannot be allowed to seek exercise of inherent powers on the grounds that are required to be urged before the Trial Court to see

that the complaint is dismissed and the Petitioner exonerated of the allegations levelled in the complaint. Whether, the Petitioner, as a matter of fact

entered into criminal conspiracy with the accused No. 3 to defraud the Respondent/complainant and whether the Petitioner and the accused No. 3

were motivated by fraudulent or dis-honest intention, when they induced the Respondent/complainant to deposit an amount of Rs. 3.50 lacs in the

account of accused No. 1, is for the Trial Court to determine of course after the parties are afforded opportunity to adduce evidence and the

complaint dealt with in accordance with procedure laid down under law. So viewed, the petition is without merit and is accordingly dismissed.