Ramesh Kumar vs Parmod Kumar

V.K. Jhanji, J.

In this petition under Section 482, Cr.P.C., prayer has been made for quashing complaint dated 31.8.1988 under Sections 420/406/467/34, IPC and order dated 12.2.1993 passed by the Sub Divisional Judicial Magistrate whereby petitioners were ordered to be chargesheeted, as also charge dated 12.2.193 against the petitioners under Section 420, IPC.

In brief, the facts as disclosed in the complaint filed by Parmod Kumar, partner of M/s. Bakunth Nath Goyal & Sons, Amloh Road, Mandi Gobindgarh, are that the petitioners were partner of firm, M/s. Jagat Ram Tilak Raj, Jwalaji District Kangra and they came to the shop of the complainant on 11.4.1987 and purchased steel rounds worth Rs. 62,892/ and promised to make the payment of the price within 10 days. Petitioners failed to make the said payment within the stipulated period. On 16.5.1987, two drafts of Rs. 20,000/ each were received by the complainant. The drafts could not be got encashed as they were not correctly prepared. The complainant pursued the matter with the petitioners who assured him that they would come to his shop within 2 or 3 days and would bring the bill amount. On 19.5.1987, petitioners came to the shop of the complainant with truck No. HPG 3287 and represented that Tilak Raj was following along with the bank drafts and that the outstanding payment would be cleared. They further purchased material weighing 147 quintal 98 kgs of different types worth Rs. 80,076.60 and had it loaded in the truck. The complainant took the petitioners on their word. The complainant went away from the shop for a short while and in his absence, petitioner went away with the truck and the material loaded in it without making any payment. Ultimately, notice was served on the petitioners but finding no response, complainant filed both the civil suit and the criminal complaint.

The learned Magistrate passed on the complaint to the SHO, P.S. Mandi Gobindgarh for investigation and report. On receipt of the report and after recording evidence, petitioners and one Tilak Raj were ordered to be summoned by the Judicial Magistrate, vide orders dated 3.6.1989. Against the order of summoning and for quashing of the complaint, Criminal Misc. No. 5475M of 1989 was preferred in this Court which was dismissed by A.P. Chowdhury, J. (as his Lordship then was) on 4.3.1991. Against this order of this Court, petitioners filed SLP (Criminal) No. 1500 of 1991 in the Supreme Court of India, which after notice, was dismissed on 24.8.1992.

The learned Magistrate, after recording precharge evidence and hearing the arguments of the complainant and the accused, found that there were sufficient around for framing charge against Ramesh Kumar, Sham Kumar (petitioners herein) under Section 420 IPC and thus petitioners were ordered to be chargesheeted. Pursuant to this order, charge under Section 420 IPC was framed against the petitioners on 12.2.1993. Petitioners have filed the present petition for quashing of the complaint, order chargesheet the petitioners and the charge framed against the petitioners under Section 420 IPC.

Learned counsel for the petitioners has contended that the dispute raised in the complaint in essentially of civil nature and the criminal proceedings is an abuse of the process of Court. Counsel also contended that the charge against the petitioners has been framed solely on the basis of order of this Court passed in Criminal Misc. No. 5475M of 1989 and the learned Magistrate has not applied his mind to the facts of the present case.

In answer to these submissions, learned counsel for the respondent has submitted that the present petition is nothing but another device to delay the proceedings as on the same ground earlier petition under Section 482 Cr.P.C. was dismissed by this Court.

After hearing the learned counsel for the parties and on going through the order carefully, I am of the view that the petition has no merit and the same deserves to be dismissed. The very contention that the dispute is essentially of civil nature, was raised earlier as well but this Court, on the basis of averments made in para 7 of the complaint, held that "the nature of the offence will not be changed only because the complainant wrote letters Annexure P3 and P.4 asking for the payment of the money. As rightly pointed out by the learned counsel for the complainant, the complainant could not be expected to rest content with filing a criminal complaint because in addition to the punishment which he seeks against the petitioners, he has to take steps in time to recover the amount which is not considerable."

Counsel is also not correct in contending that the charge has been framed only because the Magistrate was influenced by order of this court passed in Criminal Misc. No. 5475M of 1989. Complaint was filed against the petitioners and Tilak Raj under Section 420/406/467/34, IPC, but the Judicial Magistrate, on appreciation of the complaint and the precharge evidence not only discharged Tilak Raj, but also did not find any evidence to charge the petitioners for the offences under Section 406/467, IPC and the only charge framed against the petitioners was under Section 420 IPC. In this regard, he took into consideration the evidence of P.W. 1 Parmod Kumar who had stated that on the relevant date, Sham Kumar and Ramesh Kumar had come to Mandi Gobindgarh along with Truck No. HPG3287 and told the complainant that they were in need of iron material, whereupon the complainant asked them to make payment of the previous transaction and both of them told him that Tilak Raj was following with the payment in respect of earlier as well as present transaction. They further assured the complainant that he should get the truck loaded with the material and it was on their assurance that he (complainant) got the truck loaded with materials worth Rs. 80,076.60. The complainant came to the shop from the godown to attend some job but when he went back, he found that the loaded truck had been taken away by the petitioners. The trial Magistrate also took into consideration the delay factor in filing of the complaint. The charge thus has been framed on finding prima facie case against the petitioners. This court would not be justified in invoking its inherent jurisdiction under Section 482, Cr.P.C. to quash the charge as that can be done only in exceptional cases where the precharge evidence does not disclose any ground to presume that the accused had committed any offence for which he is to be charged. More so, at the stage of framing charge, the Court cannot usurp the functions of trial Court to delve into and decide upon the respective merits of the case. In this regard, reference may be made to the case of R.S. Nayak v. A.R. Antulay, AIR 1986 Supreme Court 2045 wherein has been held that the stage at which the Magistrate is required to consider the question of charge under Section 245(1) is a preliminary one and the test of ''prima facie'' case has to be applied. The Apex Court noticed the observation in Superintendent and Ramembrancer of Legal Affairs, West Bengal v. Anil Kumar, AIR 1980 Supreme Court 52 that "At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR (sic) SC 2018 the truth, veracity and the effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion founded upon materials, before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting offence alleged may justify the framing of charge."

Thus, in view of the settled law what the trial court is required to do at the initial stage, is not to scrutinize truth and veracity of the evidence which the prosecution may propose to adduce in order to weigh and balance all probabilities but merely to determine whether the material placed before it, if taken on the face value, constitute the ingredients of any offence. In this case, the trial court after taking into consideration the material on record has framed the charge against the petitioners which order, to my mind, calls for no interference.

The judgment in Dhanvir Singh v. State of Punjab, 1985(1) All India Criminal Law Reporter 316, cited by the learned counsel for the petitioner, has no application to the facts of the present case as the same was decided on its own merits.

Consequently, this petition shall stand dismissed being devoid of any merit.