Shivkoti Baba Patibandla vs State Of Chhattisgarh

Petitioner has invoked jurisdiction of this Court under Section 482 of Cr.P.C. and sought following reliefs:

“ (1) Till final disposal of the petition the respondent No.1 be restrained to take any coercive action against the petitioner.

(2) Annexure P-1 FIR registered against the petitioner kindly be quashed.

(3) Call for the case diary for proper adjudication of the case.

(4) If any other relief which may be deemed fit in favour of the petitioner kindly be passed by this Hon'ble Court, in the interest of justice.”

Mr. Manoj Dubey, learned counsel appearing for the petitioner submits that there was business relationship between the petitioner and respondent No.2 since 2019. Respondent No.2/complainant (as per allegation) was transporting goods to the firm of petitioner in the name of Jai Berry Enterprises at Visakhapatnam. There was no business agreement between petitioner and complainant and the alleged two deals as mentioned in FIR/complaint dated 22.05.2019 and 07.07.2019 is false and fabricated . He also contended that even if the allegation made in the complaint is taken on its face value, dispute is of civil nature and only to exert pressure, an attempt is being made to give it colour of criminal act. If the complainant is aggrieved for non-payment of any amount, then he is having the civil remedy available in law. FIR is registered on 19.01.2022. Police, considering the nature of allegation, has not taken any action. However, suddenly, notice under Section 41 (A) of Cr.P.C. was issued. He pointed out that registration of FIR itself is contrary to law. Registration of FIR is misuse of process of law and, therefore, it be quashed.

Mr. Himanshu Sharma, learned Panel Lawyer appearing for the State/respondent No.1 opposes submission of learned counsel for the petitioner and would submit that based on report lodged offence under Section 420 of IPC is registered against the petitioner and, therefore, the petitioner is not entitled for any relief as prayed for.

Mr. Anup Majumdar, learned counsel appearing for respondent No.2 would submit that the petitioner has fraudulently cheated the complainant. He contended that as per allegation, out of total transportation charges, only part payment has been made and caused loss for remaining amount by playing fraud and as per allegation available in the report and forming part of FIR, no relief as prayed for can be granted to the petitioner. It is contended that due to criminal conspiracy by petitioner along with others, the offence registered against petitioner is attracted. In support of his contention, he also referred to his reply and the documents enclosed therewith.

I have heard learned counsel for the parties and also perused the documents annexed along with this petition.

Perusal of document (Annexure P1) which is the FIR registered on the complaint of respondent No.2 would show that the offence was registered under Section 420 of IPC. Offence is stated to be committed in between 07.07.2019 till 19.01.2022. Perusal of report would show that in the complaint, it is mentioned that the firm of respondent No.2 is engaged in business of transportation. Jai Berry Enterprises at Visakhapatnam and Vriddhi Traders Raipur have engaged the firm of respondent No.2 for transporting iron and fines from Raipur and Raigarh. Goods which are to be transported from Raigarh and Raipur are to be vacant at the yard of Jai Berry Enterprises at Visakhapatnam. After transporting, they have submitted bill of Rs.38,19,280/- and Rs.4,47,884/- on 22.05.2019. Out of it, Rs.15 lakhs was paid on 07.07.2019 and balance amount of Rs.27,67,164/- was not paid and it was informed that balance transportation charge will be paid after export of goods and the amount received therefrom. Petitioner has assured time and again but not paid the balance amount. After some time, they came to know that the goods transported through the complainant has already been exported long back and the amount was also received from the foreign dealer. Copy of written report to the police station is also placed on record as Annexure R-2/01 by respondent No.2 in which also similar allegation is mentioned.

Law with regard to considering the prayer for quashing of FIR is well settled as of now. Hon’ble Supreme Court in the case of State of Haryana & Ors. vs. Bhajanlal & Ors. reported in (1992) Suppl. (1) SCC 335, held as under:-

“102.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 extraordinary 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 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.

(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 FIR 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 Act concerned (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 Act concerned, 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."

Recently in case of Amish Devgan vs. Union of India & Ors. reported in (2021) 1 SCC 1, Hon'ble Supreme Court has held that quashing of FIR can only be in exceptional circumstances and some of the exceptional circumstances are held to be where manifestly there is some legal bar against institution or continuation of prosecution; where allegations made even if taken at face value do not constitute any offence; allegations made do not constitute cognizable offence and allegations made are so absurd and improbable that any prudent person can ever reach to a conclusion that there is sufficient ground for proceeding against accused.

Hon’ble Supreme Court in the case of Inder Mohan Goswami and Anr. Vs. State of Uttaranchal and Ors. (2007) 12 SCC 1 has held as under :

“42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.”

In the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Ors. Vs. Nimra Cerglass Technics Pvt. Ltd. & Anr. (2016) 1 SCC 348, it was observed thus:

“15. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

Distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. In S.W. Palanitkar & Ors. vs. State of Bihar & Anr. (2002) 1 SCC 241, this Court held as under:

“21 ……In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.”

The above view in Palanitkar’s case was referred to and followed in Rashmi Jain vs. State of Uttar Pradesh & Anr. (2014) 13 SCC 553.

x x x

The above decisions reiterate the well-settled principles that while exercising inherent jurisdiction under Section 482 Cr.P.C., it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court. High Court’s inherent powers, be it, civil or criminal matters, is designed to achieve a salutary public purpose and that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If the averments in the complaint do not constitute an offence, the court would be justified in quashing the proceedings in the interest of justice.”

Hon’ble Supreme Court in the case of Indian Oil Corpn. Vs. NEPC India Ltd. And Ors. (2006) 6 SCC 736 observed that any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. Recently, Hon’ble Supreme Court in the case of Kunti and Anr. Vs. State of Uttar Pradesh and Anr. 2023 SCC Online SC 554 has observed thus:-

“11. A two-judge bench of this Court in ARCI v. Nimra Cerglass Technics (P) Ltd.2, while deliberating upon the difference between mere breach of contract and the offence of cheating, observed that the distinction depends upon the intention of the accused at the time of the alleged incident. If dishonest intention on part of the accused can be established at the of time of entering into the transaction with the complainant, then criminal liability would be attached.

In Vijay Kumar Ghai v. State of W.B (2022) 7 SCC 124, one of us, (Krishna Murari J.,) observed in reference to earlier decisions as under:

“24. This Court in G. Sagar Suri v. State of U.P. [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 : 2000 SCC (Cri) 513] observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature.

This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corpn. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that : (Indian Oil Corpn. Case [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188], SCC p. 749, para 13)

“13. … Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.”

Having regard to the above well-established principles and also noting that the present dispute is entirely with respect to property and more particularly buying and selling thereof, it cannot be doubted that a criminal hue has been unjustifiably lent to a civil natured issue.”

Reverting back to the facts of case, the allegation is that as per agreement, the complainant transported the goods from Raipur and Raigarh to Vishakhapattnam. Out of total transportation charges, part payment has been made by the petitioner and for balance amount, he assured that it will be paid later after export of goods and receipt of payment therefrom. In the written report, there is no pleading mentioning that from beginning, the petitioner was having any fraudulent or dishonest intention to cheat the complainant. The allegation if taken on its face value would show that report is lodged making allegation of non-payment of transportation charges by the petitioner as agreed between them. No proceedings can be permitted to misuse the process of law by generating a weapon of harassment or prosecution. From the contents of complaint itself it is reflecting that there is dispute of money towards transportation charges. There is no allegation levelled of fraudulent or dishonest intention at the time of entering into the contract of transportation. Respondent No.2 will not be permitted to abuse the process of law by converting a civil dispute into a criminal case to pressurize the petitioner for making payment.

In the aforementioned discussion and in the light of the aforementioned decisions of Hon'ble Supreme Court, the petition is allowed. FIR bearing Crime No.0016/22 registered in Police Station Mana Camp, District- Raipur as also further proceedings in continuation of FIR are hereby quashed.