Prakash Chandra Ostwal vs State of Rajasthan

Vijay Bishnoi, J.—This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioners with the prayer for quashing FIR No. 450/2014 dated 17.10.2014 pertaining to Police Station Nathdwara, District Rajsamand.

Learned counsel for the petitioners has submitted that the petitioner No. 4 is a Proprietor of M/s. Sai Sales, Rajsamand which is dealing in the trading of Scrap Mix Lot. It is contended that the firm of the petitioner No. 4 entered into an agreement with M/s. Elite Ores and Metals Pvt. Ltd. situated at Hyderabad wherein M/s. Elite Ores and Metals Pvt. Ltd. agreed to purchase 3,05,000 items from the firm of petitioner No. 4. It is contended that as per the conditions of agreement, the firm of the petitioner No. 4 delivered certain Scrap Mix Lot to the firm of M/s. Elite Ores and Metals Pvt. Ltd. and when the said firm failed to furnish C-Form and transportation charges, a legal notice was sent to it on 20.5.2014. After receiving the said legal notice, the Vice President of M/s. Elite Ores and Metals Pvt. Ltd. has filed the impugned FIR against the petitioners levelling false allegations. It is also contended by learned counsel for the petitioners that even if the allegations levelled in the FIR are taken on its face value, the only case is made out against the petitioners is that they have failed to keep the promise as agreed in the written agreement. It is contended that failure to keep promise cannot be treated as cheating. It is further contended that the dispute between the firm of petitioner No. 4 and firm of complainant is purely of civil nature and, therefore, the impugned FIR is liable to be quashed.

Learned counsel for the petitioner has placed reliance upon the decision of Hon''ble Supreme Court rendered in Anil Mahajan Vs. Bhor Industries Ltd. and Anr. reported in (2005) 10 SCC 228.

Per contra, learned Public Prosecutor as well as the learned counsel for the complainant has argued that a bare reading of the contents of FIR constitutes prima facie offence against the petitioners and, therefore, no case for quashing of FIR is made out.

Learned counsel for the complainant has argued that the factum of execution of agreement between the firm of petitioner No. 4 and firm of complainant is not in dispute, however, the accused persons have committed the offence of cheating by delivering half of the items as agreed between the parties and out of the said items, some items are of bad quality and are also not in good condition. It is also argued that the complainant firm has got recorded videography of the trucks in which the items were delivered by the firm of the petitioner No. 4 and from those recordings, it is clear that the petitioners have committed offence of cheating. Learned counsel for the complainant has also argued that when the complainant approached the petitioners while claiming the refund of the amount already paid, the petitioners have threatened him and also committed the offence of extortion.

Learned Public Prosecutor has argued that the investigation in the matter is going on and the police has collected evidence and on the basis of which, it can be concluded that prima facie offence against the petitioners is made out for the offence punishable under Sections 406, 420 and 384 I.P.C. It is also informed by the learned Public Prosecutor that the investigation is still going on and is likely to be completed within a short period. The factual report submitted by the learned Public Prosecutor dated 11.1.2015 be taken on record.

Heard learned counsel for the parties and perused the impugned FIR as well as the material placed on record.

It is not in dispute that an agreement has been executed between the firm of the petitioner No. 4 and firm of complainant in relation to some trading pertaining to scrap items. The complainant has alleged in the FIR that the petitioners have failed to deliver the goods as agreed in the agreement. It is also alleged that the goods delivered to the complainant firm are not of the specification as agreed by them and some of the goods are also in broken condition. It is also alleged in the FIR that when the complainant has approached the petitioners, they threatened him with dire consequences and have also extorted money from him.

The Hon''ble Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, has examined the powers of the High Court of quashing an First Information Report lodged in any police station while exercising the power under Article 226 of Constitution of India or under Section 482 Cr.P.C. and has held as under:-

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

In a later decision the Hon''ble Supreme Court in Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, has reiterated the above principle.

From bare reading of the contents of impugned FIR, it cannot be said that prima facie no offence is made out against the petitioners. The proposition of law laid down by the Hon''ble Supreme Court in Anil Mohan''s case (supra) is not in dispute, however, it is a matter of investigation whether the petitioners have failed to keep the promise as agreed by them in the agreement or they have committed cheating or other offences with the complainant. Hence, at this stage, it cannot be said that the petitioners have falsely been implicated in this case.

In view of above discussions, this Court does not find any merit in this criminal misc. petition. The same is, therefore, dismissed. The stay petition is also dismissed.