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Judgment
N.K. Agarwal, J.—The instant petition is directed under Article 226 of the Constitution of India inter alia claiming following reliefs:
(i) to call for the entire records of the complaint case pending in the Court of Magistrate Class I, Korba (Chhattisgarh) for perusal as also documents in possession of the Respondent Station House Officer, Police Station, Balco Nagar, Korba.
(ii) to issue an appropriate writ in the nature of certiorari quashing and setting aside the order dated 4-7-2009 passed and other proceedings drawn by the Magistrate Class I, Korba in the matter of complaint by the complainant Company.
(iii) to issue a writ of prohibition prohibiting all further proceedings pending in the Court of Magistrate Class I, Korba in connection with complaint lodged by the complainant Company M/s SEPCO Electric Power Construction Corporation.
(iv) to issue an appropriate writ in the nature of certiorari quashing communication dated 3-7-2009 of the Respondent Bank relating to freezing of Petitioners Company''s account and issue command through a writ of mandamus to allow the Petitioners Company to operate its account as referred in the petition.
(v) Any other relief, which this Court thinks fit and proper.
Brief facts as per record necessary for disposal of this petition are as under:
(i) Pursuant to an international tender, the Respondent No. 1 has been awarded an EPC Block (Engineering, Procurement and Construction) by M/s Wardha Power Ltd. for supply, construction, erection and commissioning of 3600 MW coal based Power Plant at Nariara, Akaltara, Distt. Janjgir Champa.
(ii) In pursuance of the meeting held on 8-6-2009, a work order was issued by the Respondent No. 1 to the Petitioners for work of site clearing and grading for main Power House and CHP area, cutting and filling of earth material to achieve required grading, providing temporary storm water drainage and other construction works vide letter dated 16th June, 2009. The value of the work was Rs. 42,92,19,800/-. Period for completion was fixed as two months. As per the said work order, 50% of the contract value was payable as advance. One of the other conditions of the work order was that the work was awarded on assurance given by the Petitioner to complete the work as per the time schedule.
(iii) Vide letter dated 25th June, 2009, the Respondent No. 1 issued a cheque No. 664051 dated 25th June, 2009 drawn on ICICI Bank, Korba for Rs. 20,97,46,840/- after deducting TDS of Rs. 48,63,060/- towards advance payment as envisaged under the work order. It was also written in the said letter that the work has to be commenced not later than 29th June, 2009, failing which the contract shall be terminated and demand of refund of advance payment shall be raised.
(iv) As per the Petitioner, the Petitioner vide letter dated 28-6-2009, requested the officer of Respondent No. 1 to hand over the site covered under the work order (this letter is neither part of the complaint nor is admitted by the Respondent No. 1).
(v) Vide letter dated 29th June, 2009, the Respondent No. 1 wrote a letter to the Petitioner for refund of the advance as according to them, the Petitioner failed to mobilize the man power and equipment by 29th June, 2009.
(vi) On the basis of the complaint of Respondent No. 1 dated 2 July, 2009, a letter/communication was issued by the Police Station, Balco Nagar, Korba to the Union Bank of India, Somajiguda Branch, Hyderabad to freeze the operation of Petitioner company''s account.
(vii) On 4-7-2009, the Respondent No. 1 filed a complaint u/s 200 of Code of Criminal Procedure, 1973 (briefly, the Code) against the Petitioners alleging charge of cognizable offence along with an application under Sub-section 3 of Section 156 of Code for sending the complaint for investigating in terms of Section 156(3) of the Code to the jurisdictional police station.
(viii) The trial Court after perusing the complaint filed by the Respondent No. 1, sent the original complaint along with annexures to the Station House Officer, Police Station, Balco Nagar, Korba directing to register F.I.R. after due enquiry and to file charge sheet after completing the investigation.
(ix) Vide order dated 8-8-2009 passed in M.Cr.C. No. 1634/2009, learned Single Bench of this Court granted bail to the Petitioner No. 2 on the conditions that she shall appear before the trial Court on each and every date given by the said Court; she shall cooperate with the investigation and make herself available for interrogation before the investigating Officer, as and when summoned; she shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer and she shall not leave the country without prior permission of the trial Court.
The Respondent No. 1 and 4 filed their returns. The Petitioners filed their rejoinder.
The matter was heard on 13 -8-2009 and to facilitate the parties to submit their written submission, the matter was fixed for 17-8-2009 as part heard. On 17-8-2009, the Petitioners moved an application seeking amendment to add in the reliefs clause para 10.2 which reads thus:
as also the complaint in its entirety including complaint, FIR registered on 16-7-2009 pursuant to impugned order dated 4-7-2009.
Shri Manindra Shrivastava, learned Sr. Advocate, for the Petitioners would submit that the Magistrate is empowered either to proceed u/s 156(3) of Code or to proceed under the provisions contained in Chapter XV and has discretion to direct investigation but only in accordance with the procedure and upon fulfillment of conditions enumerated in Section 202 of Code.
He would further submit that even otherwise, the order is not sustainable as the Magistrate''s jurisdiction u/s 156(3) of Code is confined only to direct investigation to be made by registering a case and not to dictate the police to necessarily file a charge sheet. Police carrying investigation may either file a charge sheet or a final report. Use of word "Abhiyog Patra" in the order by the Magistrate clearly shows that the Magistrate has commanded the police to file a charge sheet and thereby has commanded the police to hold investigation with a particular result only which is beyond the scope of Section 156(3) of Code.
He would further submit that the complaint filed by the Respondents does not disclose any cognizable offence as alleged to have been committed u/s 406 and 420 of I.P.C. The complaint does not satisfy the requirement and test laid down by the Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, and therefore, the complaint as well as the investigation carried in furtherance of the said complaint is wholly without jurisdiction. He would also submit that in view of the above complaint, the order impugned and the F.I.R. registered in pursuance of the order impugned are liable to be quashed. It was further argued that in the facts and circumstances of the case, the amendment sought is clarifactory in nature and deserves to be allowed.
Per contra, Shri Ravi Shankar Prasad, learned Sr. Counsel, appearing for the Respondent No. 1 would submit that Section 156(3) of Code empowers the learned Magistrate to direct the police to investigate commission of offence under Chapter XII of the Code. The order impugned passed by learned Magistrate is correct in law; learned Magistrate has power to direct investigation in cognizable cases u/s 156(3) read with Section 190 of the Code; Magistrate is fully empowered by Section 156(3) of Code to send a complaint to the appropriate police station for investigation. Once such a direction is given under Sub-section (3) of Section 156 of the Code, police is required to investigate into that complaint under Sub-section (1) thereof and on completion of investigation to submit a ''police report'' in accordance with Section 173(2), thereafter the Magistrate may take cognizance u/s 190(1)(b) [but not u/s 190(1)(a)]. For this reliance has been placed upon the judgment of Supreme Court in case of Mohd. Yousuf Vs. Smt. Afaq Jahan and Another, . He would submit that Chapter XII of the Code contains provision relating to ''information to police and their powers to investigate'', whereas Chapter XV which contains Section 202 deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. The provisions of the above two chapters deal with two different facets altogether, though there could be a common factor i.e. complaint filed by a person. Section 156, falling within Chapter XII deals with powers of the police officers to investigate cognizable offences. True, Section 202, which falls under Chapter XV, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 of the Code. Therefore, the submissions made by the Petitioners in this context are clearly opposed to the law laid down by the Apex Court. Placing reliance in the matter of Sakiri Vasu Vs. State of U.P. and Others, Shri Prasad would submit that if an application u/s 156 of the Code is filed before the Magistrate, the Magistrate can direct FIR to be registered and also can direct proper investigation to be made in a case where according to the aggrieved person no proper investigation was made. The Magistrate can also under the same provision, monitor the investigation to ensure a proper investigation. He would also submit that the scope of Section 200-202 of the Code is different and does not in any manner affect or infringe the right of the Magistrate to direct investigation in exercise of powers u/s 156(3) of the Code. He would further submit that inherent power/jurisdiction of the High Court to quash investigation at the initial stage has to be used sparingly only in the "rarest of rare" cases.
Shri Prashant Mishra, learned Advocate General, appearing for the Respondent No. 4 would submit that the instant petition appears to be premature and is not maintainable as the proceedings pending in the Court of law cannot be challenged under Article 226 of the Constitution of India by ignoring and bypassing the prescribed procedure of law provided by other laws in force. He would further submit that the complainant is always at liberty to make allegations directly before the police officer or by submitting a complaint to the Magistrate concerned against commission of any cognizable offence. The Magistrate directing investigation u/s 156(3) does not have option to enquire into the correctness of the allegation, and therefore, initiation of criminal proceedings cannot be held illegal or arbitrary and therefore is not at all an abuse of process of law.
Before considering the rival submissions of the learned Counsel for the parties, I consider it necessary to advert to the relevant provisions of the Code of Criminal Procedure, 1973 which read thus:
156 Police officer''s power to investigate cognizable case.--(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.
Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody u/s 170;
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed u/s 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report--
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
Examination of complainant.--A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192:
Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Procedure by Magistrate not competent to take cognizance of the case.--If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,--
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court; unless the complainant and the witnesses present (if any) have been examined on oath u/s 200.
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
A bare reading of the provisions contained in Section 156(3) and Section 200-202 of Code of Criminal Procedure would reveal that chapter XII of the Code deals with information to the police and their powers to investigation whereas Chapter XV which contains Section 202 deals with provisions relating to steps which a Magistrate has to adopt while and after taking cognizance of an offence on a complaint and therefore, the provisions of the above two chapters deal with two different facets together.
The Supreme Court in the case of Tula Ram and Others Vs. Kishore Singh, , laid down the Following legal proposition in this regard in para 14 that:
That a Magistrate can order investigation u/s 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation u/s 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
Where a Magistrate orders investigation by the police before taking cognizance u/s 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 as described above.
Supreme Court in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, , in para 13 to 18 observed as under:
It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable, offence and the forwarding of the complaint to the police for investigation u/s 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
This raises the incidental question: What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken cognizance of the offence within the meaning to Section 190(1)(a). It, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police u/s 156(3), he cannot be said to have taken cognizance of any offence.
This position of law has been explained in several cases by this Court, the latest being Nirmaljit Singh Hoon v. State of West Bengal.
The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a complaint disclosing a cognizable offence -- whether or not triable exclusively by the Court of Session--to the police for investigation u/s 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered u/s 156(3) and the one directed u/s 202, has also been maintained under the new Code; but a rider has been clamped by the first proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation.
Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation u/s 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or charge-sheet u/s 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered u/s 202 to direct, within the limits circumscribed by that section an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation u/s 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation u/s 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses u/s 200 Code of Criminal Procedure, which is the first step in the procedure prescribed under that chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police u/s 156.
By applying the above legal proposition of law as laid down by the Supreme Court in the above referred cases, in the facts and circumstances of the present case, it is crystal clear that the Magistrate did not apply his mind to the complaint for deciding whether or not, there is sufficient ground for proceeding, but only ordered the investigation u/s 156(3) of the Code. As per the order impugned, the Magistrate perused the complaint, and directed police officials for investigation u/s 156(3) of the Code. He did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses u/s 200 of the Code, which is the first step in the procedure prescribed under that Chapter. The question of taking next step of the procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has allowed the application filed by the complainant/Respondent No. 1 u/s 156(3) of the Code and sent the complaint along with its annexures for investigation by police officers u/s 156 of the Code.
So far as the submission raised by Shri Manindra Shrivastava, learned Counsel appearing for the Petitioners that the complaint did not disclose a cognizable offence, is concerned, I have carefully gone through the typed copy of the complaint which has been filed by the Petitioners. By perusing the complaint, it cannot be said that it did not disclose any cognizable offence. To proceed u/s 156(3) of the Code, what is required is that a bare reading of the complaint if it discloses a cognizable offence then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct to the police for investigation u/s 156(3) of the Code. In the instant case, it is found that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, the Magistrate has not committed any illegality in directing the police for investigation.
So far as submission of Shri Manindra Shrivastava, learned Sr. Counsel with regard to order of Magistrate for registering F.I.R. is concerned, the Supreme Court in case of Sakiri Vasu v. State of U.P. (supra) in para 11 observed as under:
In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR u/s 154 Code of Criminal Procedure, then he can approach the Superintendent of Police u/s 154(3) Code of Criminal Procedure by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application u/s 156(3) Code of Criminal Procedure before the learned Magistrate concerned. If such an application u/s 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
By applying the aforesaid proposition of law as laid down in the above referred case, it cannot be said that while directing the police to register F.I.R. the Magistrate has committed any illegality.
The next contention put forth by Shri Manindra Shrivastava with regard to direction of the Magistrate to file charge sheet has also no merit. The Magistrate can take cognizance upon the police report on such fact. As per Section 173 of the Code, every Investigating Officer shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating the names of the parties; the nature of the persons who appear to be acquainted with the circumstances of the case; whether any offence appears to have been committed and, if so, by whom;...On receipt of such report, the Magistrate u/s 190(1)(b) may take cognizance or may not take cognizance of offence. He is not bound to take cognizance upon submission of the police report by the Investigating Officer and, therefore, to say that by directing the police to file charge sheet (Abhiyog Patra) or final report, the Magistrate has commanded the police to hold investigation with a particular result only is not correct. Charge sheet, Abhiyog Patra or final report have not been defined in the Code. The charge sheet, Abhiyog Patra or final report whatever may be the nomenclature, it only means a report u/s 173 of Code of Criminal Procedure which has to be filed by the Police officer after completing its investigation. In view of the above, the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference in exercise of powers conferred under Article 226 of the Constitution of India.
The Supreme Court in the matter of Indian Oil Corporation Vs. NEPC India Ltd. and Others, has enunciated the following principles that had to be applied while exercising inherent jurisdiction:
12...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 mala fides/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 proceeding 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.
It was further observed by the Supreme court in para 15 and 16 as under:
Coming to the facts of this case, it is no doubt true that IOC has initiated several civil proceedings to safeguard its interests and recover the amounts due. It has filed CS No. 425 of 1997 in the Madras High Court and OS No. 3327 of 1998 in the City Civil Court, Chennai seeking injunctive reliefs to restrain NEPC India from removing its aircrafts so that it can exercise its right to possess the aircrafts. It has also filed two more suits for recovery of the amounts due to it for the supplies made, that is, CS No. 998 of 1999 against NEPC India (for recovery of Rs. 5,28,23,501.90) and CS No. 11 of 2000 against Skyline (for recovery of Rs. 13,12,76,421.25) in the Madras High Court. IOC has also initiated proceedings for winding up NEPC India and filed a petition seeking initiation of proceedings for contempt for alleged disobedience of the orders of temporary injunction. These acts show that civil remedies were and are available in law and IOC has taken recourse to such remedies. But it does not follow there from that criminal law remedy is barred or IOC is estopped from seeking such remedy.
The Respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. They have taken pains to point out that the aircrafts are continued to be stationed at Chennai and Coimbatore Airports; that the two engines of VT-NEK though removed from the aircraft, are still lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted into another aircraft (VT-NEH) which had been taken on lease from M/s Aircraft Financing and Trading BV and that the said aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted into VT-NEJ (in places of the removed engines), when sent for overhauling to M/s Hunting Aeromotive, UK, were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control, no dishonest intent could be attributed to them. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not.
In view of the above, in the considered opinion of this Court, the Magistrate has passed the order u/s 156(3) of the Code in accordance with law after perusing the complaint which discloses cognizable offence and in furtherance thereto, the police authorities after registering the F.I.R. are investigating into the matter and final report is yet to be filed. Challenge at this stage by the Petitioner is premature. The petition filed deserves to be and is hereby dismissed.
In view of the above, the application for amendment preferred by the Petitioners at the stage when almost all the arguments were advanced by the parties also deserves to be dismissed.