Raj Kumar Sharma vs Jagdish Parshad

M.L. Singhal, J.

Jagdish Parshad son of Hardwari Lal, instituted complaint against Raj Kumar Sharma Prop. of M/s. Asha Industrial Corporation, 362, Industrial AreaA, Ludhiana and Dharam Chand son of Shri Lachhman Dass, 236/4, Industrial AreaA, Vijay Nagar, Ludhiana, under Sections 464, 465, 467, 461, 471 and 120B Indian Penal Code on the allegations, that he had been working as workman in the factory of Raj Kumar Sharma known as M/s Asha Industrial Corporation, 362, Industrial AreaA, Ludhiana for the last many years. His services were terminated illegally, without any notice/chargesheet etc. He challenged the said order of termination of services in the Labour Court, Ludhiana. Shri Pawan Kumar Garg, the then Presiding Officer, Labour Court, Ludhiana passed an award on 7th April, 1992 reinstating him into service with full back wages. The award was published in the Punjab Government gazette. It was directed by the Labour Court that he shall report for duty within 15 days for the enforcement of the award. When he went to join duty with Raj Kumar Sharma in his factory, he refused to permit him to join duty. He filed an application for the recovery of Rs. 33,207/ before the Labourcum Conciliation Officer, Circle I through Dalit Mazdoor Union, Sherpur Kalan, Ludhiana. So far Raj Kumar accused has not paid him anything. Labourcum Conciliation Officer, Circle I issued notice to Raj Kumar Sharma accused. Shri Bansal appeared on behalf of the accused and produced photostat copy of receipt dated 16.3.1993 showing the full and final settlement of his dues. On the said receipt Dharam Chand accused figures. It is further alleged that the complainant never received any amount from Raj Kumar Sharma and never signed any receipt in token of receipt of any amount. Raj Kumar Sharma accused never produced original of that receipt before LabourcumConciliation Officer despite several requests made by the complainant. The said receipt is forged as the complainant always signs as Jagdish Parshad and not as Jagdish. The said receipt was forged with the intention to defeat his claim and cause him damage. LabourcumConciliation Officer could not initiate action against the accused as he is not a court. Under the Code of Criminal Procedure only that forum which is a court where the forged receipt is used can institute the complaint. Accused No. 2 knew that accused No. 1 had never made any payment to the complainant and accused No. 4 is thus a party to the act of forging that receipt and using it before the LabourcumConciliation Officer.

After holding preliminary enquiry into the allegations of the complaint Shri S.K. Sachdeva, Judicial Magistrate I Class, Ludhiana vide order dated 11.7.1995 found that there were sufficient grounds to proceed against both the accused under Sections 464, 467, 468 and 471 of the Indian Penal Code and as such the accused were ordered to be summoned for trial for these offences.

Raj Kumar Sharma petitioner has approached this Court through this Crl. Misc. petition instituted under Section 482 of the Code of Criminal Procedure whereby he has requested for quashing of the complaint Annexure P.1 and the order summoning him Annexure P.2 passed by the magistrate. It has been urged by him in support of his petition that he is Junior Engineer Grade I with the Punjab State Electricity Board in the office of Sr. Executive Engineer, West Division, Civil Lines, Ludhiana. He has no connection with the factory known as M/s. Asha Industrial Corporation, 362, Industrial Area, Ludhiana. In fact Kamal Sharma who is his son is proprietor of M/s Asha Industrial Corporation, 362, Industrial Area A, Ludhiana. Mr. Kamal Sharma has nothing to do with him on account of family dispute. He separated from him and is running his own business. The complainant Jagdish Parshad has intentionally not arraigned Kamal Sharma and has arraigned him (the petitioner) as an accused though he is not a proprietor of the said factory. The Judicial Magistrate I Class, Ludhiana has illegally summoned him and Dharam Chand on 11.7.1995. The complaint is liable to be quashed so far as he is concerned on the ground that he is in the service of the Punjab State Electricity Board and has nothing to do with this factory. He was never a proprietor or partner in that factory.

I have heard the learned counsel for the parties and have gone through the records.

It has been submitted by the learned counsel for the petitioner that M/s. Asha Industrial Corporation is a firm registered under the Indian Partnership Act, 1932. As per Form ''A'' of the Register of Firms maintained under Section 59 of the Indian Partnership Act, 1932, there are two partners constituting M/s. Asha Industrial Corporation, 235, Industrial Area A, Ludhiana named Kamal Sharma and Mrs. Sudesh Sharma. They joined this firm on 21.9.1985.

It has been submitted by the learned counsel for the petitioner that the petitioner is a Junior EngineerI in the Punjab State Electricity Board. He cannot be a partner in any business without the permission of the Punjab State Electricity Board. It is for the complainant to prove that he is the sole proprietor of M/s. Asha Industrial Corporation, 362, Industrial Area A, Ludhiana. In State of Haryana v. Ch. Bhajan Lal, AIR 1992 Supreme Court 604, the Supreme Court has enumerated the following categories of cases where this Court may in exercise of powers under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure interfere and quash the proceedings with a view to prevent the abuse of process of the court or otherwise to secure the ends of justice:

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.

Where the allegations in the First Information Report and other materials, if any, accompanying the FIR 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.

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.

Where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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.

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.

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.

The Hon''ble Supreme Court has laid down that this power should be exercised sparingly and that, too, in the rarest of rare cases.

Now the question to be seen is whether this is a rarest of rare cases where the complaint should be quashed against Raj Kumar Sharma accused (petitioner herein). The magistrate has merely summoned Raj Kumar Sharma and Dharam Chand accused for trial after being prima facie satisfied on the recording of preliminary evidence that there were sufficient grounds to proceed against both of them and that the complaint requires further probe. At the trial it would be the duty of the complainant to prove as to who is the proprietor of M/s. Asha Industrial Corporation, 362, Industrial Area A, Ludhiana, and if it is a firm, who is partner thereof. Even before the frame of charge, Raj Kumar Sharma petitioner can urge before the magistrate that there is no case against him and as such he be discharged. The complaint should not be scuttled at the threshold. It should be allowed to be given trial before the magistrate.

As per Raj Kumar Sharma petitioner, M/s. Asha Industrial Corporation, Industrial Area A, Ludhiana is a firm floated on 21.9.1995 by partners Kamal Sharma and Mrs Sudesh Sharma. It will be seen at the trial of the complaint whether there was any change in the constitution of the firm after 21.9.1985 i.e. whether Raj Kumar Sharma joined this firm as partner or not. On the face of it, the complaint does not seem to be false or frivolous and the allegations made in the complaint do not seem to be so absurd and inherently improbable that on the basis thereof the concluson can be reached right now that there is no sufficient ground for proceeding against the petitioner. On the face of it, the complaint does not seem to be tainted with malafides or is the result of malice, instituted with ulterior motive for wreaking vengeance on the accused. In my opinion the complaint is not liable to be quashed at the threshold against Raj Kumar Sharma accused. Raj Kumar Sharma petitioner can appear before the magistrate. He can convince the magistrate even before the frame of the charge that he should be discharged and that there is no case against him. So this crl. misc. is dismissed.