Crl. A. @ S.L.P. (Crl.) No.2409 of 2007
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2011
[Arising out of S.L.P. (Crl.) No.2409 of 2007]
Joseph Salvaraj A. ....Appellant
Versus
State of Gujarat & Ors. ...Respondents
J U D G M E N T
Deepak Verma, J.
1. Leave granted.
2. Respondent No. 4 - complainant, Living Water
Finney, lodged an FIR on 05.09.2006 at 22.15 hrs with
Odhav Police Station, Ahmedabad City, complaining
therein that the Appellant has committed offences
under Section 406, 420 and 506(1) of the Indian
Penal Code (hereinafter shall be referred to as
`IPC').
3. Respondent No.4 was working as Administrative
Officer in "Amaaru Family Education Trust" at
Ahmedabad and claimed that he has been residing
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there, leading life peacefully. He also stated that
Shri Dharmendra P. Rami @ Laldbhai was running
business of Siti Cable in Bapi Nagar area at
Ahmedabad, was known to him for many years and both
of them enjoyed good relations with each other.
4. Sometime in the year 2005, complainant had gone to
Hyderabad at his wife's place where he had the
occasion to watch "God TV" which influenced him
deeply and profoundly touching his holy spirit.
He wanted to share his experience with the
Christian community of Ahmedabad so that they may
also be blessed through this religious channel. On
his return to Ahmedabad, he approached cable
operator Mr. Lalabhai, owner of Siti Cable as
mentioned above and requested him to have this
channel also in the bouquet of channels offered by
him. He also contacted the Appellant's Company
directly, requesting it to allow broadcasting of
"God TV" in certain areas of Ahmedabad through
Siti Cables, Ahmedabad.
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5. Eventually, with the aid and enterprise of Mr.
Lalabhai, they were able to commence broadcasting
of "GOD TV" in the eastern zone of Ahmedabad.
6. Initially, Mr. Lalabhai quoted Rs. 30 lacs for
persuading all the three operators to commence the
telecast of "GOD TV" in their respective areas in
Ahmedabad but the same was settled for Rs. 10 lacs.
Thus, according to the complainant, Mr. Lalabhai
(and 2 other cable operators) had agreed to
broadcast, religious channel "God TV" at Ahmedabad,
after the Appellant had agreed to pay a sum of Rs. 10
lacs to Mr. Lalabhai.
7. However, it appears that there was no Agreement
in writing executed and entered into between Mr.
Lalabhai and the Appellant. Furthermore, there has
not been any Agreement between complainant and either
of the aforesaid two parties. According to him, on
his own, he had acted only as a mediator.
8. From time to time, the Complainant kept
reminding the appellant about payment of the amount
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of Rs. 10 lacs to Mr. Lalabhai. But according to the
Complainant, the appellant deliberately avoided his
communications. In the meanwhile, the cable operators
who had started telecasting "God TV" were also
pressurizing the Complainant for the said amount.
9. As mentioned hereinabove for about five months,
they enjoyed watching "God TV" without any disruption
but thereafter the reception signals of the said
channel developed some technical snag. Thus, from
October 2005, on account of poor quality of
receivers, the reception was also not clear and was
blurred. He once again contacted the Appellant who
agreed to send receiver to the Complainant. After
having received the said receiver, it was delivered
to Mr. Lalabhai but as per the Complainant's version,
by that time the amount of Rs. 10 lacs as agreed to
between Mr. Lalabhai and the present Appellant was
still not paid. Having failed to elicit a verbal
response, the Complainant thereafter wrote a series
of letters and sent e-mails to the Appellant,
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ultimately culminating in a notice dated 21.06.2006,
to which the Appellant replied on 18.07.2006, denying
all accusations and liabilities. Then the problem
started and Respondent No. 4 lodged the FIR against
the Appellant as mentioned hereinabove.
10.After completion of the investigation, as per the
FIR lodged by the Complainant on 05.09.2006, the
Appellant was arrested at Chennai for commission
of the said offences on 17.11.2006. He was thus
constrained to file an application under Section
437 of the Code of Criminal Procedure, 1973
(hereinafter shall be referred to as the `Code')
for grant of bail to him. The same was granted to
him on the conditions mentioned in the order dated
22.11.2006.
11.The Appellant, thereafter, was constrained to file
the petition under Section 482 of the Code in the
High Court of Gujarat at Ahmedabad, with a prayer
for quashing of the FIR bearing C.R. No. I-371/2006
registered with Odhav Police Station and to stay
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further investigation in the case. The said
application came to be considered before the
learned Single Judge on 11.1.2007. By that time,
charge sheet was already filed before the Competent
Criminal Court. Thus, learned Single Judge, was of
the opinion that it was not a fit case to be
entertained and refused to hear the petition on
merits, even though the appellant was given liberty
to file an application for his discharge before the
Trial Court. It may be noted that even in its
impugned order the learned Single Judge has
emphasized that he had not considered the case on
merits. Thus the Appellant's petition was dismissed
and interim order granted in his favour was
vacated.
12. Now the Order dated 11.01.2007 passed by the
learned Single Judge of the High Court in Appellant's
Criminal Application No. 1977 of 2006, is subject
matter of challenge in this Appeal.
13. We have accordingly heard Mr. Huzefa Ahmedi with
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Mr. Shamik Sanjanwala for the Appellants Ms. Jesel,
for respondent No 1,2 and 3 and Ms. Aparna Bhat for
respondent No.4 - Complainant at length. Perused
the record.
14. Learned counsel for the Appellant contended that
even after going through the FIR, no case under
Section 406 or 420 of the Penal Code was made out.
The FIR was filed by a person who is indisputably not
a contracting party and at best by his own admission,
had acted only as a mediator, and had no cause of
action to file the complaint. He has failed to
produce any evidence worth the name in support of his
allegation and legally acceptable that the contract
was concluded, where under the Appellant was obliged
to pay a sum of Rs. 10 lacs to Mr. Lalabhai.
15. The allegations in the F.I.R. clearly discloses a
civil dispute between the parties and the FIR seems
to have been filed only with an intention to harass
and humiliate the Appellant. This was a pre-emptive
move by the Complainant.
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16. A summary Civil Suit under Order 37 Rule II of
Code of Civil Procedure (hereinafter to be referred
as 'CPC') has already been filed by Dharmendra P.
Rami @ Laldbhai against the Appellant and the
Respondent No.4, Complainant herein, before the City
Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs
together with interest thereon. In the said suit an
unconditional leave to defend has already been
granted to the Appellant and the matter is still
pending. In the light of the aforesaid submissions,
it was contended that it is a fit case where the FIR
deserves to be quashed otherwise the same would
amount to abuse of the process of law.
17. On the other hand, the learned counsel for
Respondents especially Respondent No. 4, contended
that intention to cheat the complainant was clearly
made out by the action of the
Appellant, ultimately resulting in lodging of F.I.R.
against Appellant and Respondent No.4 both. Learned
Single Judge was fully justified in rejecting the
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Appellant's Petition as it was not a fit case to
invoke the jurisdiction conferred on the court under
Section 482 of the CrPC. Thus, a prayer was made that
no case for interference was made out and the Appeal
be dismissed.
18. In the light of the rival contentions we have to
examine whether cognizance of the offences could have
been taken by the Competent Criminal Court in the
light of the averments made by the complainant in the
FIR.
19. Even though the learned counsel appearing for
contesting parties have cited numerous authorities
in support of their respective contentions, but in
view of the well settled legal position of law, by
long catena of cases of this Court, on this and
related points, we are not dealing with each one of
them separately and independently. However, the
ratio and gist of these would be reflected in our
order.
20. In the instant case, we have to first examine
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whether any of the ingredients under Section 406, 420
or 506 (1) of the IPC have been made out to enable
the Court to take cognizance thereof against the
appellant or not. Bare perusal of the FIR lodged by
the complainant, would indicate that he had got in
touch with the appellant so as to extend the benefit
of Appellant's Channel "GOD TV" to his other brethren
residing at Ahmedabad. For the said purposes, he had
met the owner of Siti Cable, Bapi Nagar in Ahmedabad
and negotiated a settlement for a sum of Rs. 10 lacs
on behalf of the Appellant's Company as the fee to be
paid to Siti cable by Appellant for telecast of
channel "God TV" in Ahmedabad. Further grievance of
the Complainant was that despite the telecast of "GOD
TV", the Appellant, as promised, failed to pay a sum
of Rs. 10 lacs to the owners of Siti cables. This is
what has been mentioned in nutshell in the
complainant's FIR. We have grave doubt, in our mind
whether on such averments and allegations, even a
prima facie case of the aforesaid offences could be
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made out against the present appellant.
21. Criminal breach of trust is defined under
Section 405 of the IPC and 406 thereof deals with
punishment to be awarded to the accused, if found
guilty for commission of the said offence i.e. with
imprisonment for a term which may extend to three
years, or with fine, or with both.
22. Section 420 of the IPC deals with cheating and
dishonestly inducing delivery of property. Cheating
has been defined under Section 415 of the IPC to
constitute an offence. Under the aforesaid section,
it is inbuilt that there has to be a dishonest
intention from the very beginning, which is sine qua
non to hold the accused guilty for commission of the
said offence. Categorical and microscopic examination
of the FIR certainly does not reflect any such
dishonest intention ab initio on the part of the
appellant.
23. Section 506 of the IPC deals with punishment for
criminal intimidation. Criminal intimidation, insult
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and annoyance have been defined in Section 503 of
the IPC but the FIR lodged by complainant does not
show or reflect that any such threat to cause injury
to person or of property was ever given by the
Appellant to the Complainant.
24. Thus, from the general conspectus of the various
sections under which the Appellant is being charged
and is to be prosecuted would show that the same are
not made out even prima facie from the Complainant's
FIR. Even if the charge sheet had been filed, the
learned Single Judge could have still examined
whether the offences alleged to have been committed
by the Appellant were prima facie made out from the
complainant's FIR, charge sheet, documents etc. or
not.
25. In our opinion, the matter appears to be purely
civil in nature. There appears to be no cheating or
a dishonest inducement for the delivery of property
or breach of trust by the Appellant. The present
FIR is an abuse of process of law. The purely civil
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dispute, is sought to be given a colour of a
criminal offence to wreak vengeance against the
Appellant. It does not meet the strict standard of
proof required to sustain a criminal accusation.
26. In such type of cases, it is necessary to draw a
distinction between civil wrong and criminal wrong
as has been succinctly held by this Court in
Devendra Vs. State of U.P., 2009 (7) SCC 495,
relevant part thereof is reproduced hereinbelow:
"A distinction must be made between a
civil wrong and a criminal wrong. When
dispute between the parties constitute
only a civil wrong and not a criminal
wrong, the courts would not permit a
person to be harassed although no case
for taking cognizance of the offence has
been made out."
27. In fact, all these questions have been elaborately
discussed by this Court in the most oft quoted
judgment reported in 1992 (Suppl) 1 SCC 335 State of
Haryana Vs. Bhajan Lal, where seven cardinal
principles have been carved out before cognizance of
offences, said to have been committed, by the accused
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is taken. The case in hand unfortunately does not fall
in that category where cognizance of the offence could
have been taken by the court, at least after having
gone through the F.I.R., which discloses only a civil
dispute.
28. The Appellant cannot be allowed to go through the
rigmarole of a criminal prosecution for long number of
years, even when admittedly a civil suit has already
been filed against the Appellant and Complainant-
Respondent No. 4, and is still subjudice. In the said
suit, the Appellant is at liberty to contest the same
on grounds available to him in accordance with law as
per the leave granted by Trial Court. It may also be
pertinent to mention here that the complainant has not
been able to show that at any material point of time
there was any contract, much less any privity of
contract between the Appellant and Respondent No. 4 -
the Complainant. There was no cause of action to even
lodge an FIR against the Appellant as neither the
Complainant had to receive the money nor he was in any
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way instrumental to telecast "GOD TV" in the central
areas of Ahmedabad. He appears to be totally a
stranger to the same. Appellant's prosecution would
only lead to his harassment and humiliation, which
cannot be permitted in accordance with the principles
of law.
29. Thus, looking to the matter from all angles, we
are of the considered opinion that the prosecution of
the Appellant for commission of the alleged offences
would be clear abuse of the process of law.
30. The FIR under the circumstances deserves to be
quashed at the threshold. We accordingly do so. The
Appeal is, therefore, allowed. The order of learned
Single Judge is set aside. The FIR dated 05.09.2006
lodged by Respondent No. 4 - Complainant with Odhav
Police Station, Ahmedabad stands quashed and all
criminal proceedings emanating therefrom also stand
quashed. The parties to bear their respective costs.
......................J.
[DALVEER BHANDARI]
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......................J.
[DEEPAK VERMA]
New Delhi
July 4, 2011
