Om Parkash vs Sardar Kulbir Singh

Jaswant Singh, J.—This is an application u/s 561-A Cr. P.C. praying that criminal proceedings u/s 420 R. P.C. pending against the

petitioners in the court of the Munsiff Magistrate 1st Class, Nowshera be quashed or in the alternative be transferred to some other court of

competent jurisdiction at Jammu.

The facts giving rise to this application are:-

The respondent Kulbir Singh lodged a complaint u/s 420 R. P.C. in the court of Munsiff Magistrate 1st Class, Nowshera, on 1-9-1966 with the

allegations that he was a retail dealer of cloth at Nowshera, that for carrying on his business he has to import cloth from outside, that on 23-7-1966

petitioner No. 3 herein, who is an agent of the firm M/s. Progressive Handloom Industries, Gaziabad, came to his shop and showed him certain

samples of cloth, that acting on the representation of the said petitioner that supplies would be made according to the samples he placed an order

for supply of some cloth, that the representation made by the petitioner No. 3 was fradulent that on receipt of intimation about the arrival of the

consignment note he got the same i.e., the consignment note released from the post office Nowshera on payment of Rs. 353.42 plus the

consignment charges amounting to Rs. 30.75, that on taking delivery of the consignment and seeing its small size he got suspicious as before the

arrival of the consignment M/s. Des Rai Munshi Ram had also received some goods from the aforesaid firm which did not correspond to the

samples shown and exhibited to them, that he accordingly had the consignment opened before the Tehsildar Magistrate Nowshera, that on opening

the consignment before the Tehsildar Magistrate, it was discovered that the goods despatched by the petitioners were not in accordance with the

samples shown to him and were inferior in make and quality and did not exceed Rs. 90/- in value, that he had the consignment sealed in presence

of the Tehsildar Magistrate, that as the accused i.e., the petitioner herein had not supplied the goods and had acted fraudulently they were liable to

be dealt with u/s 420 R. P.C.

After recording the statement of the complainant and his witness Munshi Ram and being of the opinion that a prima facie case u/s 420 R. P.C.

has been disclosed against the petitioners 'herein, the Munsiff Magistrate issued bailable warrants to secure their attendance. Thereafter several

attempts were made to procure the attendance of the accused but all of them proved abortive.

The accused instead of putting in appearance before the trial magistrate have approached this Court by means of an application u/s 561-A Cr.

P.C. as stated above.

Mr. J. L. Sehgal appearing in support of the application has urged that even assuming the allegations made in the complaint to be correct, no

offence appears to have been made out against the accused, that the complaint does not either allege that the accused had no intention of executing

the order from the very commencement or had no intention of executing the order in the manner they were expected to do, that subsequent

dishonest intention as alleged in the complaint would not bring the matter within the mischief of Section 420 R. P.C. and that in any case, the case

is of a civil nature.

Mr. Sharma appearing for the respondent has on the other hand urged that the complaint does prima facie disclose the commission of offence

u/s 420, R. P.C. by the accused, that the criminal proceedings had been appropriately taken against the petitioners and that is not a case in which

the High Court should interfere in exercise of its extraordinary jurisdiction.

It cannot be gainsaid that the High Court is invested with plenary powers to quash criminal proceedings pending in a subordinate Court, but

those powers, it is also well settled, have to be exercised with great care and circumspection, and the High Court does not ordinarily interfere at an

interlocutory stage of criminal proceedings in a subordinate court.

The Supreme Court has in R.P. Kapur Vs. The State of Punjab, , laid clown certain guide lines for exercise of the inherent power u/s 561-A of

the Criminal Procedure Code, According to the observations of their Lordships of the Supreme Court, the inherent power is to be exercised in the

following category of cases.

i. Where is manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence

alleged. Absence of the requisite sanction may for instance furnish cases under this category.

ii. Where the allegations in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not

constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first

information report to decide whether the offence alleged is disclosed or not.

iii. Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced clearly or

manifestly fail to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no

legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal

evidence which on its appreciation may or may not support the accusation, in question. In exercising its jurisdiction u/s 561-A Cr. P.C. the High.

Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and

ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of

evidence the accusation made against the accused would not be sustained.

Again in K.C. Sonrexa Vs. State of Uttar Pradesh and Others, , it has been held:

The inherent powers of the High Court u/s 561-A of the Cr. P.C. are very wide but on account of this very reason they are to be applied in a very

careful manner and should be used only in extraordinary cases. Section 561-A is not an instrument handed over to an accused person to short-

circuit a prosecution and bring about its sudden death, whenever his counsel feels that the prosecution is not likely to succeed. The High Court

should normally refrain from giving a premature decision in a case whose picture is extremely incomplete and hazy as the evidence has not been

produced and the issues involved whether factual or legal cannot be seen in their true perspective. It is only where the High Court is satisfied that it

amounts to an abuse of a process of law or that it amounts to a persecution of an accused person or that there is no reasonable possibility of the

prosecution succeeding in the case or some similar reason that relief is granted u/s 561-A Cr. P.C.

I have carefully perused the allegations made in the complaint and I am of the opinion that the present case does not fall within the categories

enumerated in the above rulings.

The contention of the learned Counsel for the petitioners that since the complainant has a civil remedy open to him, he should not be permitted to

resort to criminal proceedings cannot also be allowed to prevail for it is also well settled that the existence of civil remedy does not exclude trial by

a criminal court of an offence and the fact that a complainant is entitled to both civil and criminal remedies does not disentitle him to take recourse

to the criminal remedy.

As the instant case is still at an interlocutory stage and no evidence has so far been recorded in the presence of the accused. It is difficult to get a

clear picture of the true state of affairs. Bearing in mind therefore, the principles enunciated in the above-mentioned rulings, I am unable to accede

to the submission of the learned Counsel for the petitioners to quash the proceedings.

Let me now advert to the prayer of the petitioners for transfer of the proceedings from the court of the Munsiff magistrate Nowshera to some

court at Jammu. This prayer also cannot be granted because the main ground for transfer that the Tehsildar Magistrate Nowshera in whose

presence the consignment received from the petitioners is alleged to have been opened is likely to influence the Munsiff magistrate, apart from

being imaginary and fanciful has ceased to exist as the learned Counsel for the petitioners himself admits that the said gentleman has already been

transferred from Nowshera.

No other good ground for transfer of the case has been made out.

For the foregoing reasons, there is no substance in this application which is dismissed.