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Judgment
This application under Section 482 of Cr.P.C. has been filed challenging the criminal proceedings in Criminal case No.174/2011 pending in the Court
of J.M.F.C., Ujjain for offence under Sections 420, 467, 468, 471, 120B and 34 of I.P.C.
The necessary facts for the disposal of the present application in short are that the applicant No.1 is the finance Company, which provides financial
assistance to its customers for purchase of vehicles. It is submitted by the Counsel for the applicants that the respondent had taken a loan of Rs.1 lac
from the applicant-Company for purchase of a vehicle bearing registration No. M.P.06 E 1279 and accordingly, hypothecation agreement was also
executed between the applicants and the respondent. It is further submitted that as the respondent committed various defaults in payment of
installments and accordingly, the applicants started recovery proceedings and by way of counterblast, the respondent started making false police
complaints against the applicants. The respondent ultimately filed a criminal complaint against the applicants for offence punishable under Sections
420, 467, 468, 471, 120B and 34 of I.P.C.
It was alleged by the respondent in the complaint that the respondent had taken a loan of Rs.1 lacs from the applicants for purchasing the vehicle
bearing registration No. M.P.06 E 1279. As the respondent had purchased the second hand vehicle, which was already financed by Padam Finance
Company, accordingly, the respondent paid an amount of Rs.1 lacs directly to Padam Finance Company, through cheque. Thereafter, on 10-4-2006,
the complainant/respondent got the said truck financed from Shriram Finance Company and took a loan Rs.1 lacs. The entire loan amount was
payable in 24 easy installments, out of which, 1st 12 monthly installments were of Rs.6,700/-, whereas the remaining 12 monthly installments were of
Rs.3,950/-. All the original documents of the vehicle were kept by the applicants with them and still they are in possession of the applicants. In
absence of the original documents, the complainant could not ply his vehicle. At the time of hypothecation, the applicants had obtained the signatures
of the respondent on various blank papers. In the month of February 2008, the last and final installment was paid and thereafter, the respondent
demanded no dues certificate from the applicants, but they avoided in issuing the said certificate. In the month of October, 2008, when the
respondent went to the office of the applicant no.3, then he was informed that a total amount of Rs.73,953/- is still outstanding against the respondent,
whereas the respondent had already repaid the entire loan amount. A notice was sent through his counsel, but the applicant no.1 refused to accept
the same. It was further alleged that in fact the applicants have already recovered Rs.11,700/- in excess of what was outstanding against him.Â
Since, the police did not take any action in the matter, therefore, the respondent filed a criminal complaint against the applicants. The respondent
examined himself under Section 200 of Cr.P.C. and Gopal Singh under Section 202 of Cr.P.C.
The Trial Magistrate by impugned order dated 6-1-2011, took cognizance of offence under Sections 420, 467, 468, 471 and 120-B of I.P.C.Â
Challenging the criminal proceedings, it is submitted by the Counsel for the applicants that the criminal prosecution of the applicants is unwarranted, as
undisputedly, the respondent had taken a loan of Rs.1 lacs for purchasing a vehicle and in case of a dispute, the matter should have been referred to
the arbitration. It is further submitted that in case of non-payment of loan amount, the finance company can also take possession of the vehicle and the
present complaint has been lodged by way of counterblast to the recovery proceedings, which have been initiated by the applicants, against the
respondent. To buttress his contentions, the Counsel for the applicants has relied upon the judgment passed by the Supreme Court in the case of
Mahindra & Mahindra Financial Services Limited and another Vs. Rajiv Dubey reported in (2009) 1 SCC 706 and a judgment passed by the Court in
the case of Santosh Gaharwar Vs. State and others reported in 2012 (4) MPLJ 615.Â
None for the respondent, though served.
The moot question for determination is that:-
 “Whether the criminal proceedings, which have been initiated against the applicants, are liable to be quashed or not?â€
Before considering the submissions made by the Counsel for the parties, it would be appropriate to consider the scope of powers under Section 482 of
Cr.P.C.
The Supreme Court in the case of K.M.Sharan reported in (2008) 2 SCC (Cri) 430 has held as under:-
''24. In Bhajan Lal case (supra), this court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. 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 of the
Constitution of India or the inherent powers under Section 482 of CrPCÂ gave the following categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. This court in the said judgment
made it clear that 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 to myriad kinds of cases wherein such power should be exercised. According to this judgment, the High Court would be
justified in exercising its power in cases of following categories:""102. (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.Â
(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 theCodeor 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.
This court in Janata Dal v. H. S.Chowdhary & Ors. (1992) 4 SCC 305 observed thus:
The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though
unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real
and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under section 482 of the Code
are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of
this power is based on sound principles.
This court in Roy V.D. v. State of Kerala (2000) 8 SCC 590 observed thus:-
It is well settled that the power under Section 482Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any
court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which
are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go
on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of
the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under section482Cr.P.C.to quash proceedings in a
case like the one on hand, would indeed secure the ends of justice.
This court in Zandu Pharmaceutical Works Ltd. & Ors. v. Mohd. Sharaful Haque & Anr. (2005) 1 SCC 122 observed thus:-
''8.......it would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of
the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the
question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and
whether any offence is made out even if the allegations are accepted in toto.
In Indian Oil Corporation v. NEPC India Ltd. & Ors. (2006) 6 SCC 736, this court again cautioned about a growing tendency in business circles to
convert purely civil disputes into criminal cases. The court 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 ""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.
This Court in the case of Central Bureauof Investigation v. Ravi Shankar Srivastava,IAS & Anr. (2006) 7 SCC 188 has reiterated the legal
position. The Court observed that the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the
power requires great caution in its exercise. The Court must be careful to see that the decision in exercise of this power is based on sound principles.
The inherent power should not be exercised to stifle a legitimate prosecution.
Now, the crucial question which arises for our adjudication is whether the case of the respondent falls under any of the categories as enumerated
in the celebrated case of Bhajan Lal (supra). On the basis of the material available on record and the allegations levelled against the respondent in the
FIR and the charge-sheet, it cannot be concluded that no ingredients of offence under section 120B read with section 193 IPC are present in the
instant case.
At this stage, the High Court in its jurisdiction under section 482 Cr.P.C. was not called upon to embark upon the enquiry whether the allegations
in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These
are matters which can be examined only by the concerned court after the entire material is produced before it on a thorough investigation and
evidence is led.
In the impugned judgment, according to the settled legal position, the High Court ought to have critically examined whether the allegations made in
the First Information Report and the charge-sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for
making out a case against the accused
(respondent herein).''
The Supreme Court in the case of Padal Venkata Rama Reddy Vs. Koveuri Satyanarayana Reddy reported in (2011) 12 SCC 437 has held as under:
“8. Section 482 of the Code deals with inherent power of the High Court. It is under Chapter 37 of the Code titled “Miscellaneous†which
reads as under:
“482.Saving of inherent powers of High Court.â€"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to
secure the ends of justice.â€
This section* was added by the Code of Criminal Procedure (Amendment) Act of 1923 as the High Courts were unable to render complete justice
even if in a given case the illegality was palpable and apparent. This section envisages three circumstances in which the inherent jurisdiction may be
exercised, namely:
to give effect to any order under CrPC,
to prevent abuse of the process of any court,
to secure the ends of justice.
In R.P. Kapur v. State of Punjab AIR 1960 SC 866 this Court laid down the following principles:
(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing
of the impugned proceedings would secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;
(iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the
offence alleged; and
(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to
prove the charge.
In State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 this Court has held as under: (SCC p. 703, para 7)
“7. … In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The
saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court
proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame
prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to
laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of
the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to
appreciate the width and contours of that salient jurisdiction.â€
Though the High Court has inherent power and its scope is very wide, it is a rule of practice that it will only be exercised in exceptional cases.
Section 482 is a sort of reminder to the High Courts that they are not merely courts of law, but also courts of justice and possess inherent powers to
remove injustice. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it.
These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and
for securing the ends of justice. The jurisdiction under Section 482 is discretionary, therefore the High Court may refuse to exercise the discretion if a
party has not approached it with clean hands.
In a proceeding under Section 482, the High Court will not enter into any finding of facts, particularly, when the matter has been concluded by
concurrent finding of facts of the two courts below. Inherent powers under Section 482 include powers to quash FIR, investigation or any criminal
proceedings pending before the High Court or any court subordinate to it and are of wide magnitude and ramification. Such powers can be exercised
to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under
this Code, depending upon the facts of a given case. The Court can always take note of any miscarriage of justice and prevent the same by exercising
its powers under Section 482 of the Code. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent
powers are to be exercised sparingly, carefully and with caution.
It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a
situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code
(vide Kavita v. State 2000 Cri LJ 315 and B.S. Joshi v. State of Haryana (2003) 4 SCC 675). If an effective alternative remedy is available, the High
Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.
The inherent power is to be exercisedex debito justitiae, to do real and substantial justice, for administration of which alone courts exist. Wherever
any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at
this stage there should be a meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. (Vide
Dhanalakshmi v. R. Prasanna Kumar 1990 Supp SCC 686; Ganesh Narayan Hegde v. S. Bangarappa (1995) 4 SCC 41 and Zandu Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122.)
It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code
should be exercised. But some attempts have been made in that behalf in some of the decisions of this Court vide State of Haryana v. Bhajan Lal
1992 Supp (1) SCC 335, Janata
Dal v. H.S. Chowdhary (1992) 4 SCC 305, Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194 and Indian Oil Corpn. v. NEPC India Ltd.
(2006) 6 SCC 736.
* * * * * *
In State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 it has been held that probabilities of the prosecution version cannot be analysed at
this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCC p. 550, para
11) “11. … It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine
whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous
to assess the material before it and conclude that the complaint cannot be proceeded with.â€
In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 this Court held as under: (SCC p. 695, para 7)
“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to
whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features
which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the
basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and,
therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the
special facts of a case also quash the proceeding even though it may be at a preliminary stage.â€
This Court, while reconsidering the judgment in Madhavrao Jiwajirao Scindia (1988) 1 SCC 692, has consistently observed that where matters are
also of civil nature i.e. matrimonial, family disputes, etc., the Court may consider “special factsâ€, “special features†and quash the criminal
proceedings to encourage genuine settlement of disputes between the parties.
The said judgment in Madhavrao case (1988) 1 SCC 692 was reconsidered and explained by this Court in State of Bihar v. P.P. Sharma 1992
Supp (1) SCC 222 which reads as under: (SCC p. 271, para 70) “70. Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1
SCC 692 also does not help the respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of trust property to
favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120-B IPC which the High
Court refused to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions
in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offence were made out. On those facts and also
due to the relation of the settler, the mother, the appellant and his wife, as the son and daughterin-law, this Court interfered and allowed the appeal. …
Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in
every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and
exercise of the power under Section 482 or Article 226 to quash the proceedings or the chargesheet.â€
Thus, the judgment in Madhavrao Jiwajirao Scindia (1988) 1 SCC 692 does not lay down a law of universal application. Even as per the law laid
down therein, the Court cannot examine the facts/evidence, etc. in every case to find out as to whether there is sufficient material on the basis of
which the case would end in conviction. The ratio of Madhavrao Jiwajirao Scindia (1988) 1 SCC 692 is applicable in cases where the Court finds that
the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial,
property and family disputes, etc. etc. The superior courts have been given inherent powers to prevent the abuse of the process of court; where the
Court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher
than the end of merely following the law. It is not necessary for the Court to hold a full-fledged inquiry or to appreciate the evidence, collected by the
investigating agency to find out whether the case would end in conviction or acquittalâ€.
The Supreme Court in the case of State of Orissa v. Ujjal KumarBurdhan reported in (2012) 4 SCC 547 has held as under :
“8. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide. Nevertheless, inherent powers do not
confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with
circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value
and accepted in their entirety do not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out
against those in charge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.
In State of W.B. v. Swapan Kumar Guha, emphasising that the Court will not normally interfere with an investigation and will permit the inquiry into
the alleged offence, to be completed, this Court highlighted the necessity of a proper investigation observing thus: (SCC pp. 597-98, paras 65-66)
“65. … An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed.
When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and
for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in
escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires
that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper
investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and
the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an
offence has been disclosed. …
Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. … If on a
consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into
the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence.â€
(emphasis supplied)
On a similar issue under consideration, in Jeffrey J. Diermeier v. State of W.B.4, while explaining the scope and ambit of the inherent powers of
the High Court under Section 482 of the Code, one of us (D.K. Jain, J.) speaking for the Bench, has observed as follows: (SCC p. 251, para 20)
“20. … The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an
order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible
nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed
by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito
justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an
arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.â€
The Supreme Court in the case of Vinod Raghuvanshi Vs. Ajay Arora, reported in (2013) 10 SCC 581 has held as under :
“30. It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not “kill a stillborn
childâ€, and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at
the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is
whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry,
whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of
the allegations made therein.â€
It is not the case of the complainant/respondent that although the loan amount is outstanding, still the finance company has taken possession of the
vehicle forcibly. It is the case of the complainant that the vehicle was financed for the loan amount of Rs.1 lacs and all the original documents were
kept by the applicants. However, in spite of the fact that the entire loan amount has been repaid, but the applicants have not returned the original
documents, as a result of which the respondent could not ply his vehicle and even the no dues certificate has not been issued and now the applicants
are claiming that a further amount of Rs.73,953/- is still outstanding against the complainant/respondent. It is the claim of the respondent that he has
repaid the entire loan amount and to substantiate his claim, the respondent has filed copies of the receipts issued by the applicants towards the
repayment of the loan amount. However, in the present case, the applicants have not filed the copy of the account statement of the loan account of
the respondent to show that entire loan amount has not been paid and the applicants are still having first charge over the vehicle and are entitled to
retain the original documents of the vehicle. Although the applicants have relied upon the judgment passed by this Court in the case of Santosh
Gaharwar (Supra), but the present case is not that of repossession of vehicle by the applicants. Even otherwise, the Supreme Court in the case of
ICICI Bank Ltd. Vs. Prakash Kaur, reported in (2007) 2 SCC 711 has deprecated the procedure resorted by the lending financial institution for
recovering possession on the ground of default in payment of installments, but in the present case, the allegations are that although the entire loan
amount has been repaid, but still the applicants are neither issuing the No Dues Certificate nor are returning the original documents of the vehicle.
Therefore, the crux of the matter is that “whether the entire loan amount has been repaid by the respondent or not?â€
As already held, the applicants have not filed the copy of the statement of the loan account to dispute the claim of the respondent that the entire loan
amount has been repaid. If the loan amount has been repaid, then the applicants have no authority in retaining the original documents of the vehicle
and are also under an obligation to issue the N.O.C. and thus, while challenging the criminal proceedings, which have been initiated against the
applicants, the applicants should have come forward by stating clearly that the loan amount is still outstanding against the respondent and the
respondent has not repaid the entire loan amount. However, the applicants have not filed the copy of the statement of the bank account although the
applicants are in possession of the same. Thus, the applicants have suppressed the important piece of evidence, which is in their possession, and
therefore, at this stage, an adverse inference can be drawn against the applicants in view of Section 114 illustration (g) of Evidence Act.
It is next contended by the Counsel for the applicants, that the present complaint has been filed by way of counterblast to the recovery proceedings
and to buttress his contentions, the Counsel of the applicants has relied upon the judgment passed by the Supreme Court in the case of Mahindra &
Mahindra (Supra). Although the argument advanced by the Counsel for the applicants appeared to be very impressive, but on a deeper scrutiny of the
same, it is found that the applicants have not laid down any foundation for the same. The applicants have not filed any document to show that any
recovery proceeding has been initiated against the respondent for recovery of the outstanding amount. There is nothing on record to suggest that
whether any arbitration proceedings have been initiated or whether any recovery suit has been filed. The applicants have even not placed any
document on record to show that at any point of time, the applicants had raised a demand of the outstanding amount by issuing any notice to the
respondent. Thus, in absence of any foundation with regard to initiation of recovery proceedings, this Court is of the considered opinion that it cannot
be said that the criminal complaint has been filed by the respondent by way of counterblast.Â
However, the applicants have approached this Court at the very initial stage and the allegations and counter allegations are yet to be decided by the
Trial Court. Even otherwise, where a disputed question of fact is involved, then this Court, in exercise of power under Section 482 of Cr.P.C.
cannot adjudicate the disputed question of fact.Â
Thus, considering the allegations as made in the complaint as well as the fact that no document has been placed on record by the applicants to
primafacie dispute the allegations made by the respondent and in the light of the limited scope of interference at the stage of exercise of power under
Section 482 of Cr.P.C., this Court is of the considered opinion that the complaint filed by the respondent discloses commission of cognizable offence
warranting prosecution of the applicants.Â
Resultantly, the proceedings in criminal case No.174/2011 pending in the Court of J.M.F.C., Ujjaijn for offence under Sections 420, 467, 468, 471,
120B and 34 of I.P.C. cannot be quashed.Â
Accordingly this application fails and is hereby dismissed.
This Court by order dated 8-9-2016 had requisitioned the record of the Trial Court, which has been received, as a result of which, the further
proceedings before the Trial Court remained stayed, without there being any order of stay. Under these circumstances, the office is directed to
immediately return the record to the Trial Court and the Trial Court is directed to finally decide the Trial within a period of nine months from the date
of receipt of the copy of this Order.Â
The office is directed to immediately send the copy of this order and the record to the Trial Court without any delay and latest by a period of 10 days
from today.