Smt. Chhaya Sharma vs State Of Madhya Pradesh

It is submitted by Shri Tomar that he had filed caveat.

However, he submitted that since he has not been impleaded as a party and as he came to know about the listing of the case today itself therefore, he could not file an application seeking permission to intervene.

Heard on the question of admission.

This petition under Article 226 of the Constitution of India has been filed seeking following relief:-

"(I) That, the impugned FIR (Annexure P/1) at Crime No.34/2020 of P.S. Ashwar, District Bhind (M.P.) under Section 420, 409, 467, 468, 471 and 477A of IPC be directed to be quashed.

(II) That, other relief which is just and proper in the facts and circumstances of the case may also be granted."

It is submitted by the counsel for the petitioner that the petitioner is the Sarpanch of Gram Panchayat Ashwar, Janpad Panchayat Lahar, District Bhind. The impugned F.I.R. has been lodged against the petitioner for offence under Sections 420, 409, 467, 468, 471, 477-A in Crime No.34/2020 by Police Station Ashwar, District Bhind. It is submitted that the petitioner has filed a copy of the muster roll from which it is clear that the muster roll was never signed by the petitioner. It is further submitted that it is clear from the policy, which has been placed as Annexure P/2, the joint signature of the petitioner along with the Sarpanch, Secretary and Gram Rojgar Sahayak are necessary.

It is further submitted that on the complaint of the complainant, a fact finding enquiry committee was constituted, whose report has been placed on record as Annexure P/7, according to which the petitioner as well as the then Secretary, Gram Rojgar Sahayak, Additional Project Officer, Sub-Engineer, Assistant Engineer, Janpad Panchayat Lahar were also found to be negligible and responsible for forged or illegal payments but the F.I.R. has been lodged against the petitioner only. It is further submitted that subsequent to the registration of the F.I.R. a new fact finding committee has been constituted by order dated 27/05/2020, which has been placed on record as Annexure P/5 and accordingly, this F.I.R. in crime No. 34/2020 registered by Police Station Ashwar, District Bhind on 23/05/2020 is bad and is liable to be quashed.

It is further submitted that the Supreme Court in the case of State of Haryana and Others vs. Bhajan Lal and Others reported in 1992 Supp (1) SCC 335 and in the case of Lalita Kumari vs. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1 has held that if the prosecution of a person is the outcome of the mala fides of the complainants, then the F.I.R. can be quashed.

It is further submitted that the preliminary inquiry was warranted and in view of the subsequent constitution of the committee by order dated 27/10/2020, the F.I.R. should be quashed.

Per contra, the petition is vehemently opposed by the counsel for the State as well as the counsel for the complainant.

Heard the learned counsel for the parties.

So far as, the contention of the petitioner is that the muster roll does not bear the signature of the petitioner, therefore, she is innocent is concerned, the same cannot be considered at this initial stage. The allegations are that an amount of Rs. 4,20,816/- was fraudulently misappropriated. The payments are always made under the joint signature of Sarpanch as well as other authorities i.e., Secretary of Gram Panchayat etc. Being the Sarpanch of the Gram Panchayat, it was the duty of the petitioner to ensure that there is no misappropriation. Even otherwise, from the muster roll, it is clear that there is no space for the signature of the Sarpanch. So far as the requirement of preliminary enquiry before registration of F.I.R. is concerned, the submission of the petitioner is contrary to record. Vide Annexure P/7, a five member committee had submitted a report dated 15/05/2020, according to which the petitioner was also found to be responsible and negligent. According to the said report a total amount of Rs. 4,20,816/- was misappropriated. Even otherwise the preliminary enquiry is not mandatory before registration of F.I.R. and it is merely discretionary.

The Supreme Court in the case of P. Sirajuddin, ETC. vs. State of Madras, ETC. reported in 1970 (1) SCC 595 as well as the case of Lalita Kumari (Supra) has not held that non-holding of preliminary enquiry would make the F.I.R. illegal.

It is clear from the judgment passed by the Supreme Court in the case of Lalita Kumari (Supra), that if the allegations made in a complaint discloses the commission of cognizable offence, then an F.I.R. has to be registered. It is not the case of the petitioner that even if the entire allegations are accepted, still no cognizable offence would be made out. The only contention of the petitioner is that she is not responsible for the embezzlement. The defence of the petitioner at the earliest stage cannot be considered by this Court. The petitioner would be entitled to raise all her defence at the appropriate stage as held by the Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 568.

It is submitted by the Counsel for the petitioner, that since, the fact finding committee had found that various persons were negligent and responsible, but still the F.I.R. has not been lodged against all the persons.

Considered the submission made by the Counsel for the Petitioner.

Merely because the F.I.R. has not been lodged against some of the persons, would not make the F.I.R. vulnerable and is not liable to be quashed. If the police, during investigating finds that some more persons are also guilty, then they can always be made accused. Even otherwise, the Trial Court would have a jurisdiction to exercise its power under Section 190,193 or 319 of Cr.P.C. at the appropriate stage.

So far as, the question of the quashment of FIR is concerned the law is very settled.

The Supreme Court in the case of State v. N.S. Gnaneswaran, reported in (2013) 3 SCC 594 has held as under :

The High Court has not recorded the finding that if the contents of the FIR registered against the respondent are taken on its face value, they do not disclose the cognizable offence and thus, the FIR was liable to be quashed. Rather it has been quashed merely on technical ground that the copy of the said FIR after being lodged had not been given to the informant. The judgment impugned herein is required to be examined as to whether giving the copy of the FIR to the informant is mandatory and if not what is the prejudice caused to the respondent-accused as the informant has not raised the grievance of non-supply of the copy of the FIR nor has it been the case of the respondent that he sought the copy of the FIR and was not given.

The issue also requires to be examined on the touchstone of doctrine of prejudice. Thus, unless in a given situation, the aggrieved makes out a case of prejudice or injustice, some infraction of law would not vitiate the order/enquiry/result. In judging a question of prejudice, the court must act with a broad vision and look to the substance and not to technicalities. (Vide: Jankinath Sarangi v. State of Orissa , State of U.P. v. Shatrughan Lal, State of A.P. v. Thakkidiram Reddy and Debotosh Pal Choudhury v. Punjab National Bank.)

The Supreme Court in the case of Shakson Belthissor v. State of Kerala, reported in (2009) 14 SCC 466 has held as under :

The scope and power of quashing a first information report and charge-sheet under Section 482 CrPC is well settled. The said power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge-sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive. A number of decisions have been rendered by this Court on the aforesaid issue wherein the law relating to quashing of a complaint has been succinctly laid down.

"5. ... In Nagawwa v. Veeranna Shivalingappa Konjalgi it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations [made] in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of the Magistrate for issuing process against the accused could be quashed under the following circumstances: (SCC p. 741, para 5)

'(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.'

In Drugs Inspector v. Dr. B.K. Krishnaiah it was held by this Court that: (SCC p. 455, para 5)

"5. In a quashing proceeding, the High Court has to see whether the allegations made in the complaint petition, if proved, make out a prima facie offence and that the accused has prima facie committed the offence."

In the said decision this Court refused the prayer for quashing of the complaint on the ground that there were sufficient allegations in the complaint to make out a case that the accused persons were responsible for the management and conduct of the firm and, therefore, the extent of their liability could be and should be established during trial.

In MCD v. Ram Kishan Rohtagi it was held that when on the allegation made in the complaint, a clear case was made out against all the respondents (the accused persons), the High Court ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence.

In MCD this Court observed as follows in para 8: (SCC p. 5)

"8. Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Section 482 should exercise the inherent power insofar as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Nagawwa v. Veeranna Shivalingappa Konjalgi where the scope of Sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: [SCC p. 741, para 5 : SCC (Cri) pp. 511-12]

'5. ... Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.' "

The Supreme Court in the case of V. Ravi Kumar v. State, reported in (2019) 14 SCC 568 has held as under :

Exercise of the inherent power of the High Court under Section 482 of the Criminal Procedure Code would depend on the facts and circumstances of each case. It is neither proper nor permissible for the Court to lay down any straitjacket formula for regulating the inherent power of the High Court under Section 482 CrPC.

Power under Section 482 CrPC might be exercised to prevent abuse of the process of law, but only when, the allegations, even if true, would not constitute an offence and/or were frivolous and vexatious on their face.

Where the accused seeks quashing of the FIR, invoking inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. Reference may be made to the decision of this Court, inter alia, in State of Punjab v. Subhash Kumar and Janata Dal v. H.S. Chowdhary.

The Supreme Court in the case of CBI v. Arvind Khanna, reported in (2019) 10 SCC 686, has held as under :

After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.

The Supreme Court in the case of State of Punjab v. Dharam Singh, reported in 1987 Supp SCC 89, has held as under :

The High Court has, however, not confined its scrutiny to the averments contained in the first information report but has traversed beyond and examined the case in the light of the contentions put forth by the respondents in their petition under Section 482 CrPC. By indulgence in such exercise the High Court has come to the conclusion that the second respondent Cooperative Society cannot be termed a dealer of the alleged adulterated fertilizer distributed to its members because there was no sale involved in the transaction, that for the same reason the second respondent Society was not bound to obtain a Registration Certificate for selling fertilizer and furthermore the alleged sale of adulterated fertilizer was itself open to serious doubt because of conflicting analysis reports issued by the Chemical Analyst regarding the fertilizer and hence the emergent position is that the first information report does not disclose the commission of cognizable offences. Thus what the High Court has done is to go far beyond the contents of the first information report and enter into a discussion on the merits of the case before the investigating agency had conducted investigation and collected evidence.

The Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd., reported in (2006) 6 SCC 736, held as under :

"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [(1995) 6 SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [(1996) 5 SCC 591], State of Bihar vs. Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v. State NCT of Delhi, [(1999) 3 SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168], M. Krishnan vs Vijay Singh [(2001) 8 SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122]. The principles, relevant to our purpose are :

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. 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. In G. Sagar Suri vs. State of UP [(2000) 2 SCC 636], this Court observed :

"It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

The Supreme Court in the case of Vijayander Kumar v. State of Rajasthan, reported in (2014) 3 SCC 389 has held as under :

No doubt, the views of the High Court in respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in accordance with law for due consideration at appropriate stage.

The learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/ complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd.

So,  far  the  question  of  malafides  of  the  informant  is concerned, it is suffice to mention here that when an information is lodged at the police station and an offence is registered, then the malafides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings as has been held in the case of Dhanalakshmi v. R. Prasanna Kumar reported in (1990 Supp SCC 686), State of Bihar v. P.P. Sharma reported in (1992 Supp (1) SCC 222), Rupan Deol Bajaj v. Kanwar Pal Singh Gill reported in (1995(6) SCC 194) , State of Kerala v. O.C. Kuttan reported in (1999(2) SCC 651), State of U.P. v. O.P. Sharma reported in (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada reported in (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) reported in (1999 (8) SCC 728) and Rajesh Bajaj v. State NCT of Delhi reported in (1999 (3) SCC 259). The above position was again reiterated in State of Karnataka v. M.Devendrappa reported in (2002(3) SCC 89), State of M.P. v. Awadh Kishore Gupta reported in (2004(2) SCC 691), Renu Kumari Vs. Sanjay Kumar reported in (2008) 12 SCC 346 and State of Orissa v. Saroj Kr. Sahoo reported in (2005(13) SCC 540).

Thus, it is clear that the malafides of the informant has no relevance if the allegations made against the accused persons prima facie make out an offence.

Since, the entire argument of the Counsel for the petitioner is based on the defence of the petitioner, therefore, this Court is of the considered opinion that no case is made out warranting interference in the F.I.R. registered in Crime No.34/2020 by Police Station Ashwar District Bhind.

Accordingly, this petition fails and is hereby dismissed.