Quashing of private complaint under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC. - stop the payment of cheques as those are stolen- but Bank Manger received the cheque without intimation - the complainant received cheque bounce notices - High court dismissed the petition under sec.482 - Apex court held that It is no doubt true that the Courts have to be very careful while exercising the power under Section 482 Cr.P.C. At the same time we should not allow a litigant to file vexatious complaints to otherwise settle their scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold. A clear reading of the complaint does not make out any offence against the appellant/Branch Manager, much less the offences alleged under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. We are of the view that even assuming that the Branch Manager has violated the instructions in the complaint in letter and spirit. It all amounts to negligence in discharging official work at the maximum it can be said that it is dereliction of duty.In view of our above discussion, we have come to an irresistible conclusion that continuation of the criminal proceedings against the appellant for commission of the alleged offence under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse of process of law and the complaint case deserves to be quashed in the interest of justice.We accordingly allow this appeal setting aside the impugned judgment of the High Court by quashing the criminal proceedings pending against the appellant in C.C. No. 2397 of 2012 under Sections 34, 379, 411, 418, 420, 467, 458 and 477 I.P.C. on the file of Additional Chief Judicial Magistrate, Ghaziabad, Uttar Pradesh.=
The facts relevant for the disposal of this appeal, in a nutshell,
are that on 21st March, 2005, respondent No.2 herein filed a private
complaint (Annexure P/2) in the Court of Judicial Magistrate, Ghaziabad,
Uttar Pradesh under Section 156(3) Cr.P.C. against the appellant herein and
three other accused who are not parties before us, invoking Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 IPC. =
The main allegation levelled against the appellant was that when a
written information had already been given on 17th May, 2004 to the
appellant who was the Branch Manager of the Bank not to honour the lost
cheques and cancel them, he should have performed his duties with utmost
responsibility and when the stolen/lost cheque was presented, he should
have given the information of its presentation to the police as well as to
the complainant. On the contrary, the appellant neither handed over the
person who presented the cheque, to the police, nor brought to the notice
of the complainant about its presentation. It is because of the
involvement of the appellant in the conspiracy he has not discharged his
duties as Branch Manager with responsibility and acted against the
instructions in the letter dated 17th May, 2004 only to harass the
complainant and his family financially and mentally. Thus the appellant
played a role in the conspiracy, and therefore, the complainant lodged the
complaint under the aforesaid sections of IPC against the appellant as well
as other accused.=
The facts of the case which are not in dispute, for better
appreciation of the facts and arguments advanced on behalf of the
appellant, it is necessary for us to have a thorough look at the letter
dated 17th May, 2004 addressed to the appellant/Branch Manager by
respondent No.2.
“Sir,
It is requested that the Applicant has issued Cheque Book in which from
Cheque No. 083691 to 083700 were 10 cheques in Account No. 1132, out of
which, payment up to Cheque No. 083696 has been received and on rest of the
cheques are signature of the applicant/account holder. The above cheque
book and other necessary payers were in my hand bag and I by Bus from
Pikhuwa was coming to Ghaziabad then in the bust itself by mistake that bag
was left and even on making to much search could not found. Its
information immediately I have given at the police station, Sihani Gate.
Therefore, it is requested that you may treat the above cheques as
cancelled and on that may not kindly make payment to any person.
It will be very kind of you”.
A reading of the above letter makes it very clear that the
complainant has instructed the appellant/Branch Manager not to pass cheques
bearing Nos. 083697 to 083700, the four cheques which were already signed.
There is no dispute that after submitting the above letter to the
appellant, when Cheque No. 083697 was presented in the Bank on 2ndf August,
2004, the same was not cleared by the appellant/Branch Manager in view of
the letter of the complainant. Subsequently, the appellant was transferred
from that Branch to Dhaulana Branch on 21st August, 2004, there was any
instruction to the Bank to inform the account holder or police when the
cheque is presented. It appears from the letter that only a request was
made to the Bank that the said four cheques shall not be honoured.
15. If we look at the complaint and letter addressed by the complainant
to the Branch Manager, the entire grievance of the complaint appears to be
that basing on the written information which had been given to the
appellant on 17th May, 2004, when the stolen cheque was presented, he
should have given a complaint to the police. As the appellant has not
chosen to give the complaint to the police, according to the complainant
the other accused hatched a conspiracy with the appellant – Branch Manager
and accordingly cheated him.
16. It is no doubt true that the Courts have to be very careful while
exercising the power under Section 482 Cr.P.C. At the same time we should
not allow a litigant to file vexatious complaints to otherwise settle their
scores by setting the criminal law into motion, which is a pure abuse of
process of law and it has to be interdicted at the threshold. A clear
reading of the complaint does not make out any offence against the
appellant/Branch Manager, much less the offences alleged under Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. We are of the view that
even assuming that the Branch Manager has violated the instructions in the
complaint in letter and spirit. It all amounts to negligence in
discharging official work at the maximum it can be said that it is
dereliction of duty.
17. In view of our above discussion, we have come to an irresistible
conclusion that continuation of the criminal proceedings against the
appellant for commission of the alleged offence under Sections 34, 379,
411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse of process of
law and the complaint case deserves to be quashed in the interest of
justice.
18. We accordingly allow this appeal setting aside the impugned judgment
of the High Court by quashing the criminal proceedings pending against the
appellant in C.C. No. 2397 of 2012 under Sections 34, 379, 411, 418, 420,
467, 458 and 477 I.P.C. on the file of Additional Chief Judicial
Magistrate, Ghaziabad, Uttar Pradesh.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1300 OF 2014
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL) NO. 2447 OF 2013
RISHIPAL SINGH … APPELLANT
VERSUS
STATE OF U.P. & ANR. … RESPONDENTS
JUDGMENT
N.V. RAMANA. J.
Leave granted.
2. This appeal arises out of order dated 6th November, 2012 of the High
Court of Judicature at Allahabad refusing the prayer of the appellant for
quashing the proceedings in Complaint Case No. 2397 of 2012 under Sections
34, 379, 411, 417, 418, 420, 457, 458 and 477 IPC pending on the file of
Additional Chief Judicial Magistrate, Ghaziabad.
3. The facts relevant for the disposal of this appeal, in a nutshell,
are that on 21st March, 2005, respondent No.2 herein filed a private
complaint (Annexure P/2) in the Court of Judicial Magistrate, Ghaziabad,
Uttar Pradesh under Section 156(3) Cr.P.C. against the appellant herein and
three other accused who are not parties before us, invoking Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 IPC. According to the said
complaint, the complainant was holding a Bank Account in the Ghaziabad
District Co-operative Bank, Maliwada, Ghaziabad where the appellant was the
Branch Manager. It was alleged in the complaint that taking advantage of
the innocence of the complainant and his brother, the accused,
mischievously obtained their signatures on blank cheques and committed
theft of their hand bag in which the signed cheque book was kept. When
they came to know that their bag containing signed cheques and other papers
was missing, not knowing the misdeed of the accused, a search has been
undertaken for the lost bag containing signed cheques and also lodged a
written report on 17th May, 2004 at Sihani Gate Police Station to that
effect. The Bank was also informed in writing on 17th May, 2004 itself
that duly signed cheque book of Account No. 1132 has been lost, hence no
payment on the lost cheques be made to any person and all those cheques may
be cancelled (Annexure P/1). It was further stated by the complainant that
when he received a notice dated 6th October, 2004 under Section 138 of the
Negotiable Instruments Act from Neelam Rani (co-accused, not party before
us) stating that Cheque No.083697 (one of the lose cheques) for
Rs.5,00,067/- as if issued by him towards the purchase of Kachi bricks and
coal from “Neelam Brick Field”, then he realized that there was some
planned conspiracy and the cheque book was not actually lost but was stolen
and being misused by the accused for drawing various amounts from his bank
account. In the said complaint, the complainant – respondent No.2, has
totally denied any such transaction with “Neelam Brick Field” and alleged
that the accused cooked up that transaction, hatched a conspiracy with the
bank employees for cheating him, and accordingly all the amounts of the
complainant and his family have been “looted”.
4. The main allegation levelled against the appellant was that when a
written information had already been given on 17th May, 2004 to the
appellant who was the Branch Manager of the Bank not to honour the lost
cheques and cancel them, he should have performed his duties with utmost
responsibility and when the stolen/lost cheque was presented, he should
have given the information of its presentation to the police as well as to
the complainant. On the contrary, the appellant neither handed over the
person who presented the cheque, to the police, nor brought to the notice
of the complainant about its presentation. It is because of the
involvement of the appellant in the conspiracy he has not discharged his
duties as Branch Manager with responsibility and acted against the
instructions in the letter dated 17th May, 2004 only to harass the
complainant and his family financially and mentally. Thus the appellant
played a role in the conspiracy, and therefore, the complainant lodged the
complaint under the aforesaid sections of IPC against the appellant as well
as other accused.
5. After registering the Complaint Case, the learned Magistrate recorded
statements under Sections 200 and 202 Cr.P.C. and issued summons against
the accused under Section 204 Cr.P.C. Two other co-accused challenged the
summoning order before the High Court in a Criminal Miscellaneous
Application No. 6334 of 2006 and the Allahabad High Court has stayed
further proceedings in the Complaint Case. Subsequently, the High Court
dismissed the Criminal Miscellaneous Application, and hence, non-bailable
warrant has been issued against the appellant on 3rd October, 2012.
6. Then the appellant moved the High Court under Section 482 Cr.P.C. to
quash the proceedings against him. It was the case of the appellant that
he came to know about the criminal complaint only when the non-bailable
warrant has been issued against him because from August 2004 to January
2007, during which period the proceedings in the criminal complaint were
going on, he was posted at Dhaulana Branch, therefore, the summons were
never served upon him. But, by the impugned order dated 6th November, 2012
the High Court refused to quash the criminal proceedings against the
appellant.
7. Before us, the main contention of the learned senior counsel for the
appellant is that the appellant has nothing to do with the alleged offence
and his name was unnecessarily dragged into the criminal complaint. When
Cheque No. 083697 was presented in the Bank on 2nd August, 2004, it was not
cleared by the Bank in view of the written instruction given by the
complainant and no loss was caused to the complainant at the hands of the
appellant. Afterwards, the appellant was transferred from Maliwara Branch
to Dhaulana Branch on 21st August, 2004 and he was again transferred to
Maliwara Branch in January 2007 where he remained till August 2011. He
further contended that the complainant in his letter dated 17th May, 2004
(Annexure P/1) addressed to the appellant has nowhere asked him to inform
to the police or to give communication to him when the cheque is presented.
The entire reading of the said letter does not disclose any case against
the appellant and his name was included into the criminal complaint only to
malign and defame him because the complainant has received some notices
under Section 138 of the Negotiable Instruments Act from the other accused.
Only to create a defence against those cases under the Negotiable
Instruments Act, the complaint has been filed by the complainant with mala
fide intention. Hence, the complaint filed by respondent No.2 is
misconceived and it does not attract any of the offences alleged against
the appellant as it was filed only with vexatious and oblique motive. But
the High Court, without going into the merits and facts of the case, merely
relying on the provisions of Section 245 Cr.P.C. directed the appellant to
file application for his discharge before the trial Court. This approach
of the High Court is erroneous and contrary to the law laid down by this
Court. The High Court ought to have allowed the application of the
appellant under Section 482 Cr.P.C. as the complaint does not attract the
ingredients of Sections 34, 379, 411, 417, 418, 467, 468, 471 and 477 IPC.
He, therefore, prayed to set aside the impugned order passed by the High
Court and quash the proceedings in the Complaint Case qua the appellant.
8. On the other hand, the learned counsel for respondent
No.2/complainant while supporting the order passed by the High Court
submitted that the appellant has not properly discharged his
responsibilities as Branch Manager and acted in a casual manner due to
which respondent No.2 had to suffer financial loss as well as put to lot of
hardship. Particularly, he contended that in the light of the letter dated
17th May, 2004 when a lost/stolen cheque was presented for clearance, it is
expected from a responsible officer of the Bank that instead of passing the
cheque for payment, he should inform the account holder about its
presentation and also to bring to the notice of police such mala fide
presentation of cheque by the presenter, but the appellant has totally
failed in performing his duties. So, therefore is no reason for this Court
to interfere with the order of the High Court.
9. Having heard the learned counsel for the parties and after perusing
the entire material available on record, including the complaint, now the
issue for consideration before us is whether in the light of the letter
dated 17th May, 2004 (Annexure P/1), the appellant has made out any case to
quash the proceedings in Complaint Case No. 2397/2002 under Sections 34,
379, 411, 417, 418, 467, 468, 471 and 477 IPC on the file of the Additional
Chief Judicial Magistrate, Ghaziabad.
10. Before we deal with the respective contentions advanced on either
side, we deem it appropriate to have thorough look at Section 482 Cr.P.C.,
which reads:
“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 orders of this Code or to prevent abuse of process of
any Court or otherwise to secure the ends of justice”.
A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the
object of exercise of power under this section is to prevent abuse of
process of Court and to secure ends of justice. There are no hard and fast
rules that can be laid down for the exercise of the extraordinary
jurisdiction, but exercising the same is an exception, but not a rule of
law. It is no doubt true that there can be no straight jacket formula nor
defined parameters to enable a Court to invoke or exercise its inherent
powers. It will always depend upon the facts and circumstances of each
case. The Courts have to be very circumspect while exercising jurisdiction
under Section 482 Cr.P.C.
11. This Court in Medchl Chemicals & Pharma (P) Ltd. v Biological E. Ltd
and Others 2000 (3) SCC 269, has discussed at length about the scope and
ambit while exercising power under Section 482 Cr.P.C. and how cautious and
careful the approach of the Courts should be. We deem it apt to extract
the relevant portion from that judgement, which reads:
“Exercise of jurisdiction under inherent power as envisaged in
Section 482 of the Code to have the complaint or the charge sheet quashed
is an exception rather than rule and the case for quashing at the initial
stage must have to be treated as rarest of rare so as not to scuttle the
prosecution with the lodgement of First Information Report. The ball is
set to roll and thenceforth the law takes it’s own course and the
investigation ensures in accordance with the provisions of law. The
jurisdiction as such is rather limited and restricted and it’s undue
expansion is neither practicable nor warranted. In the event, however, the
Court on a perusal of the complaint comes to a conclusion that the
allegations levelled in the complaint or charge sheet on the fact of it
does not constitute or disclose any offence alleged, there ought not to be
any hesitation to rise up to the expectation of the people and deal with
the situations as is required under the law. Frustrated litigants ought
not to be indulged to give vent to their vindictiveness through a legal
process and such an investigation ought not to be allowed to be continued
since the same is opposed to the concept of justice, which is paramount”.
12. This Court in plethora of judgments has laid down the guidelines with
regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C.
In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335, this Court has
listed the categories of cases when the power under Section 482 can be
exercised by the Court. These principles or the guidelines were reiterated
by this Court in (1) Central Bureau of Investigation v. Duncans Agro
Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v. State NCT of Delhi
1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. v. Mohd.
Sharaful Haque & Anr (2005) 1 SCC 122. This Court in Zandu Pharmaceuticals
Ltd., observed that:
“The power under Section 482 of the Code should be used
sparingly and with to prevent abuse of process of Court, but not to stifle
legitimate prosecution. There can be no two opinions on this, but if it
appears to the trained judicial mind that continuation of a prosecution
would lead to abuse of process of Court, the power under Section 482 of the
Code must be exercised and proceedings must be quashed”. Also see Om
Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72.
What emerges from the above judgments is that when a prosecution at the
initial stage is asked to be quashed, the tests to be applied by the Court
is as to whether the uncontroverted allegations as made in the complaint
prima facie establish the case. The Courts have to see whether the
continuation of the complaint amounts to abuse of process of law and
whether continuation of the criminal proceeding results in miscarriage of
justice or when the Court comes to a conclusion that quashing these
proceedings would otherwise serve the ends of justice, then the Court can
exercise the power under Section 482 Cr.P.C. While exercising the power
under the provision, the Courts have to only look at the uncontroverted
allegation in the complaint whether prima facie discloses an offence or
not, but it should not convert itself to that of a trial Court and dwell
into the disputed questions of fact.
13. In the backdrop of the legal position, well settled by this Court
through catena of judgements, we would like to deal with the facts of the
present case which lead to filing of the present complaint against the
appellant under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477
I.P.C. on the file of the Additional Chief Judicial Magistrate, Ghaziabad.
14. The facts of the case which are not in dispute, for better
appreciation of the facts and arguments advanced on behalf of the
appellant, it is necessary for us to have a thorough look at the letter
dated 17th May, 2004 addressed to the appellant/Branch Manager by
respondent No.2.
“Sir,
It is requested that the Applicant has issued Cheque Book in which from
Cheque No. 083691 to 083700 were 10 cheques in Account No. 1132, out of
which, payment up to Cheque No. 083696 has been received and on rest of the
cheques are signature of the applicant/account holder. The above cheque
book and other necessary payers were in my hand bag and I by Bus from
Pikhuwa was coming to Ghaziabad then in the bust itself by mistake that bag
was left and even on making to much search could not found. Its
information immediately I have given at the police station, Sihani Gate.
Therefore, it is requested that you may treat the above cheques as
cancelled and on that may not kindly make payment to any person.
It will be very kind of you”.
A reading of the above letter makes it very clear that the
complainant has instructed the appellant/Branch Manager not to pass cheques
bearing Nos. 083697 to 083700, the four cheques which were already signed.
There is no dispute that after submitting the above letter to the
appellant, when Cheque No. 083697 was presented in the Bank on 2ndf August,
2004, the same was not cleared by the appellant/Branch Manager in view of
the letter of the complainant. Subsequently, the appellant was transferred
from that Branch to Dhaulana Branch on 21st August, 2004, there was any
instruction to the Bank to inform the account holder or police when the
cheque is presented. It appears from the letter that only a request was
made to the Bank that the said four cheques shall not be honoured.
15. If we look at the complaint and letter addressed by the complainant
to the Branch Manager, the entire grievance of the complaint appears to be
that basing on the written information which had been given to the
appellant on 17th May, 2004, when the stolen cheque was presented, he
should have given a complaint to the police. As the appellant has not
chosen to give the complaint to the police, according to the complainant
the other accused hatched a conspiracy with the appellant – Branch Manager
and accordingly cheated him.
16. It is no doubt true that the Courts have to be very careful while
exercising the power under Section 482 Cr.P.C. At the same time we should
not allow a litigant to file vexatious complaints to otherwise settle their
scores by setting the criminal law into motion, which is a pure abuse of
process of law and it has to be interdicted at the threshold. A clear
reading of the complaint does not make out any offence against the
appellant/Branch Manager, much less the offences alleged under Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. We are of the view that
even assuming that the Branch Manager has violated the instructions in the
complaint in letter and spirit. It all amounts to negligence in
discharging official work at the maximum it can be said that it is
dereliction of duty.
17. In view of our above discussion, we have come to an irresistible
conclusion that continuation of the criminal proceedings against the
appellant for commission of the alleged offence under Sections 34, 379,
411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse of process of
law and the complaint case deserves to be quashed in the interest of
justice.
18. We accordingly allow this appeal setting aside the impugned judgment
of the High Court by quashing the criminal proceedings pending against the
appellant in C.C. No. 2397 of 2012 under Sections 34, 379, 411, 418, 420,
467, 458 and 477 I.P.C. on the file of Additional Chief Judicial
Magistrate, Ghaziabad, Uttar Pradesh.
….……………………………….J.
(RANJANA PRAKASH DESAI)
.....………………………………J.
(N.V. RAMANA)
NEW DELHI
JULY 2 , 2014
The facts relevant for the disposal of this appeal, in a nutshell,
are that on 21st March, 2005, respondent No.2 herein filed a private
complaint (Annexure P/2) in the Court of Judicial Magistrate, Ghaziabad,
Uttar Pradesh under Section 156(3) Cr.P.C. against the appellant herein and
three other accused who are not parties before us, invoking Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 IPC. =
The main allegation levelled against the appellant was that when a
written information had already been given on 17th May, 2004 to the
appellant who was the Branch Manager of the Bank not to honour the lost
cheques and cancel them, he should have performed his duties with utmost
responsibility and when the stolen/lost cheque was presented, he should
have given the information of its presentation to the police as well as to
the complainant. On the contrary, the appellant neither handed over the
person who presented the cheque, to the police, nor brought to the notice
of the complainant about its presentation. It is because of the
involvement of the appellant in the conspiracy he has not discharged his
duties as Branch Manager with responsibility and acted against the
instructions in the letter dated 17th May, 2004 only to harass the
complainant and his family financially and mentally. Thus the appellant
played a role in the conspiracy, and therefore, the complainant lodged the
complaint under the aforesaid sections of IPC against the appellant as well
as other accused.=
The facts of the case which are not in dispute, for better
appreciation of the facts and arguments advanced on behalf of the
appellant, it is necessary for us to have a thorough look at the letter
dated 17th May, 2004 addressed to the appellant/Branch Manager by
respondent No.2.
“Sir,
It is requested that the Applicant has issued Cheque Book in which from
Cheque No. 083691 to 083700 were 10 cheques in Account No. 1132, out of
which, payment up to Cheque No. 083696 has been received and on rest of the
cheques are signature of the applicant/account holder. The above cheque
book and other necessary payers were in my hand bag and I by Bus from
Pikhuwa was coming to Ghaziabad then in the bust itself by mistake that bag
was left and even on making to much search could not found. Its
information immediately I have given at the police station, Sihani Gate.
Therefore, it is requested that you may treat the above cheques as
cancelled and on that may not kindly make payment to any person.
It will be very kind of you”.
A reading of the above letter makes it very clear that the
complainant has instructed the appellant/Branch Manager not to pass cheques
bearing Nos. 083697 to 083700, the four cheques which were already signed.
There is no dispute that after submitting the above letter to the
appellant, when Cheque No. 083697 was presented in the Bank on 2ndf August,
2004, the same was not cleared by the appellant/Branch Manager in view of
the letter of the complainant. Subsequently, the appellant was transferred
from that Branch to Dhaulana Branch on 21st August, 2004, there was any
instruction to the Bank to inform the account holder or police when the
cheque is presented. It appears from the letter that only a request was
made to the Bank that the said four cheques shall not be honoured.
15. If we look at the complaint and letter addressed by the complainant
to the Branch Manager, the entire grievance of the complaint appears to be
that basing on the written information which had been given to the
appellant on 17th May, 2004, when the stolen cheque was presented, he
should have given a complaint to the police. As the appellant has not
chosen to give the complaint to the police, according to the complainant
the other accused hatched a conspiracy with the appellant – Branch Manager
and accordingly cheated him.
16. It is no doubt true that the Courts have to be very careful while
exercising the power under Section 482 Cr.P.C. At the same time we should
not allow a litigant to file vexatious complaints to otherwise settle their
scores by setting the criminal law into motion, which is a pure abuse of
process of law and it has to be interdicted at the threshold. A clear
reading of the complaint does not make out any offence against the
appellant/Branch Manager, much less the offences alleged under Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. We are of the view that
even assuming that the Branch Manager has violated the instructions in the
complaint in letter and spirit. It all amounts to negligence in
discharging official work at the maximum it can be said that it is
dereliction of duty.
17. In view of our above discussion, we have come to an irresistible
conclusion that continuation of the criminal proceedings against the
appellant for commission of the alleged offence under Sections 34, 379,
411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse of process of
law and the complaint case deserves to be quashed in the interest of
justice.
18. We accordingly allow this appeal setting aside the impugned judgment
of the High Court by quashing the criminal proceedings pending against the
appellant in C.C. No. 2397 of 2012 under Sections 34, 379, 411, 418, 420,
467, 458 and 477 I.P.C. on the file of Additional Chief Judicial
Magistrate, Ghaziabad, Uttar Pradesh.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41732
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1300 OF 2014
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL) NO. 2447 OF 2013
RISHIPAL SINGH … APPELLANT
VERSUS
STATE OF U.P. & ANR. … RESPONDENTS
JUDGMENT
N.V. RAMANA. J.
Leave granted.
2. This appeal arises out of order dated 6th November, 2012 of the High
Court of Judicature at Allahabad refusing the prayer of the appellant for
quashing the proceedings in Complaint Case No. 2397 of 2012 under Sections
34, 379, 411, 417, 418, 420, 457, 458 and 477 IPC pending on the file of
Additional Chief Judicial Magistrate, Ghaziabad.
3. The facts relevant for the disposal of this appeal, in a nutshell,
are that on 21st March, 2005, respondent No.2 herein filed a private
complaint (Annexure P/2) in the Court of Judicial Magistrate, Ghaziabad,
Uttar Pradesh under Section 156(3) Cr.P.C. against the appellant herein and
three other accused who are not parties before us, invoking Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 IPC. According to the said
complaint, the complainant was holding a Bank Account in the Ghaziabad
District Co-operative Bank, Maliwada, Ghaziabad where the appellant was the
Branch Manager. It was alleged in the complaint that taking advantage of
the innocence of the complainant and his brother, the accused,
mischievously obtained their signatures on blank cheques and committed
theft of their hand bag in which the signed cheque book was kept. When
they came to know that their bag containing signed cheques and other papers
was missing, not knowing the misdeed of the accused, a search has been
undertaken for the lost bag containing signed cheques and also lodged a
written report on 17th May, 2004 at Sihani Gate Police Station to that
effect. The Bank was also informed in writing on 17th May, 2004 itself
that duly signed cheque book of Account No. 1132 has been lost, hence no
payment on the lost cheques be made to any person and all those cheques may
be cancelled (Annexure P/1). It was further stated by the complainant that
when he received a notice dated 6th October, 2004 under Section 138 of the
Negotiable Instruments Act from Neelam Rani (co-accused, not party before
us) stating that Cheque No.083697 (one of the lose cheques) for
Rs.5,00,067/- as if issued by him towards the purchase of Kachi bricks and
coal from “Neelam Brick Field”, then he realized that there was some
planned conspiracy and the cheque book was not actually lost but was stolen
and being misused by the accused for drawing various amounts from his bank
account. In the said complaint, the complainant – respondent No.2, has
totally denied any such transaction with “Neelam Brick Field” and alleged
that the accused cooked up that transaction, hatched a conspiracy with the
bank employees for cheating him, and accordingly all the amounts of the
complainant and his family have been “looted”.
4. The main allegation levelled against the appellant was that when a
written information had already been given on 17th May, 2004 to the
appellant who was the Branch Manager of the Bank not to honour the lost
cheques and cancel them, he should have performed his duties with utmost
responsibility and when the stolen/lost cheque was presented, he should
have given the information of its presentation to the police as well as to
the complainant. On the contrary, the appellant neither handed over the
person who presented the cheque, to the police, nor brought to the notice
of the complainant about its presentation. It is because of the
involvement of the appellant in the conspiracy he has not discharged his
duties as Branch Manager with responsibility and acted against the
instructions in the letter dated 17th May, 2004 only to harass the
complainant and his family financially and mentally. Thus the appellant
played a role in the conspiracy, and therefore, the complainant lodged the
complaint under the aforesaid sections of IPC against the appellant as well
as other accused.
5. After registering the Complaint Case, the learned Magistrate recorded
statements under Sections 200 and 202 Cr.P.C. and issued summons against
the accused under Section 204 Cr.P.C. Two other co-accused challenged the
summoning order before the High Court in a Criminal Miscellaneous
Application No. 6334 of 2006 and the Allahabad High Court has stayed
further proceedings in the Complaint Case. Subsequently, the High Court
dismissed the Criminal Miscellaneous Application, and hence, non-bailable
warrant has been issued against the appellant on 3rd October, 2012.
6. Then the appellant moved the High Court under Section 482 Cr.P.C. to
quash the proceedings against him. It was the case of the appellant that
he came to know about the criminal complaint only when the non-bailable
warrant has been issued against him because from August 2004 to January
2007, during which period the proceedings in the criminal complaint were
going on, he was posted at Dhaulana Branch, therefore, the summons were
never served upon him. But, by the impugned order dated 6th November, 2012
the High Court refused to quash the criminal proceedings against the
appellant.
7. Before us, the main contention of the learned senior counsel for the
appellant is that the appellant has nothing to do with the alleged offence
and his name was unnecessarily dragged into the criminal complaint. When
Cheque No. 083697 was presented in the Bank on 2nd August, 2004, it was not
cleared by the Bank in view of the written instruction given by the
complainant and no loss was caused to the complainant at the hands of the
appellant. Afterwards, the appellant was transferred from Maliwara Branch
to Dhaulana Branch on 21st August, 2004 and he was again transferred to
Maliwara Branch in January 2007 where he remained till August 2011. He
further contended that the complainant in his letter dated 17th May, 2004
(Annexure P/1) addressed to the appellant has nowhere asked him to inform
to the police or to give communication to him when the cheque is presented.
The entire reading of the said letter does not disclose any case against
the appellant and his name was included into the criminal complaint only to
malign and defame him because the complainant has received some notices
under Section 138 of the Negotiable Instruments Act from the other accused.
Only to create a defence against those cases under the Negotiable
Instruments Act, the complaint has been filed by the complainant with mala
fide intention. Hence, the complaint filed by respondent No.2 is
misconceived and it does not attract any of the offences alleged against
the appellant as it was filed only with vexatious and oblique motive. But
the High Court, without going into the merits and facts of the case, merely
relying on the provisions of Section 245 Cr.P.C. directed the appellant to
file application for his discharge before the trial Court. This approach
of the High Court is erroneous and contrary to the law laid down by this
Court. The High Court ought to have allowed the application of the
appellant under Section 482 Cr.P.C. as the complaint does not attract the
ingredients of Sections 34, 379, 411, 417, 418, 467, 468, 471 and 477 IPC.
He, therefore, prayed to set aside the impugned order passed by the High
Court and quash the proceedings in the Complaint Case qua the appellant.
8. On the other hand, the learned counsel for respondent
No.2/complainant while supporting the order passed by the High Court
submitted that the appellant has not properly discharged his
responsibilities as Branch Manager and acted in a casual manner due to
which respondent No.2 had to suffer financial loss as well as put to lot of
hardship. Particularly, he contended that in the light of the letter dated
17th May, 2004 when a lost/stolen cheque was presented for clearance, it is
expected from a responsible officer of the Bank that instead of passing the
cheque for payment, he should inform the account holder about its
presentation and also to bring to the notice of police such mala fide
presentation of cheque by the presenter, but the appellant has totally
failed in performing his duties. So, therefore is no reason for this Court
to interfere with the order of the High Court.
9. Having heard the learned counsel for the parties and after perusing
the entire material available on record, including the complaint, now the
issue for consideration before us is whether in the light of the letter
dated 17th May, 2004 (Annexure P/1), the appellant has made out any case to
quash the proceedings in Complaint Case No. 2397/2002 under Sections 34,
379, 411, 417, 418, 467, 468, 471 and 477 IPC on the file of the Additional
Chief Judicial Magistrate, Ghaziabad.
10. Before we deal with the respective contentions advanced on either
side, we deem it appropriate to have thorough look at Section 482 Cr.P.C.,
which reads:
“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 orders of this Code or to prevent abuse of process of
any Court or otherwise to secure the ends of justice”.
A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the
object of exercise of power under this section is to prevent abuse of
process of Court and to secure ends of justice. There are no hard and fast
rules that can be laid down for the exercise of the extraordinary
jurisdiction, but exercising the same is an exception, but not a rule of
law. It is no doubt true that there can be no straight jacket formula nor
defined parameters to enable a Court to invoke or exercise its inherent
powers. It will always depend upon the facts and circumstances of each
case. The Courts have to be very circumspect while exercising jurisdiction
under Section 482 Cr.P.C.
11. This Court in Medchl Chemicals & Pharma (P) Ltd. v Biological E. Ltd
and Others 2000 (3) SCC 269, has discussed at length about the scope and
ambit while exercising power under Section 482 Cr.P.C. and how cautious and
careful the approach of the Courts should be. We deem it apt to extract
the relevant portion from that judgement, which reads:
“Exercise of jurisdiction under inherent power as envisaged in
Section 482 of the Code to have the complaint or the charge sheet quashed
is an exception rather than rule and the case for quashing at the initial
stage must have to be treated as rarest of rare so as not to scuttle the
prosecution with the lodgement of First Information Report. The ball is
set to roll and thenceforth the law takes it’s own course and the
investigation ensures in accordance with the provisions of law. The
jurisdiction as such is rather limited and restricted and it’s undue
expansion is neither practicable nor warranted. In the event, however, the
Court on a perusal of the complaint comes to a conclusion that the
allegations levelled in the complaint or charge sheet on the fact of it
does not constitute or disclose any offence alleged, there ought not to be
any hesitation to rise up to the expectation of the people and deal with
the situations as is required under the law. Frustrated litigants ought
not to be indulged to give vent to their vindictiveness through a legal
process and such an investigation ought not to be allowed to be continued
since the same is opposed to the concept of justice, which is paramount”.
12. This Court in plethora of judgments has laid down the guidelines with
regard to exercise of jurisdiction by the Courts under Section 482 Cr.P.C.
In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335, this Court has
listed the categories of cases when the power under Section 482 can be
exercised by the Court. These principles or the guidelines were reiterated
by this Court in (1) Central Bureau of Investigation v. Duncans Agro
Industries Ltd. 1996 (5) SCC 592; (2) Rajesh Bajaj v. State NCT of Delhi
1999 (3) SCC 259 and; (3) Zandu Pharmaceuticals Works Ltd. v. Mohd.
Sharaful Haque & Anr (2005) 1 SCC 122. This Court in Zandu Pharmaceuticals
Ltd., observed that:
“The power under Section 482 of the Code should be used
sparingly and with to prevent abuse of process of Court, but not to stifle
legitimate prosecution. There can be no two opinions on this, but if it
appears to the trained judicial mind that continuation of a prosecution
would lead to abuse of process of Court, the power under Section 482 of the
Code must be exercised and proceedings must be quashed”. Also see Om
Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72.
What emerges from the above judgments is that when a prosecution at the
initial stage is asked to be quashed, the tests to be applied by the Court
is as to whether the uncontroverted allegations as made in the complaint
prima facie establish the case. The Courts have to see whether the
continuation of the complaint amounts to abuse of process of law and
whether continuation of the criminal proceeding results in miscarriage of
justice or when the Court comes to a conclusion that quashing these
proceedings would otherwise serve the ends of justice, then the Court can
exercise the power under Section 482 Cr.P.C. While exercising the power
under the provision, the Courts have to only look at the uncontroverted
allegation in the complaint whether prima facie discloses an offence or
not, but it should not convert itself to that of a trial Court and dwell
into the disputed questions of fact.
13. In the backdrop of the legal position, well settled by this Court
through catena of judgements, we would like to deal with the facts of the
present case which lead to filing of the present complaint against the
appellant under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477
I.P.C. on the file of the Additional Chief Judicial Magistrate, Ghaziabad.
14. The facts of the case which are not in dispute, for better
appreciation of the facts and arguments advanced on behalf of the
appellant, it is necessary for us to have a thorough look at the letter
dated 17th May, 2004 addressed to the appellant/Branch Manager by
respondent No.2.
“Sir,
It is requested that the Applicant has issued Cheque Book in which from
Cheque No. 083691 to 083700 were 10 cheques in Account No. 1132, out of
which, payment up to Cheque No. 083696 has been received and on rest of the
cheques are signature of the applicant/account holder. The above cheque
book and other necessary payers were in my hand bag and I by Bus from
Pikhuwa was coming to Ghaziabad then in the bust itself by mistake that bag
was left and even on making to much search could not found. Its
information immediately I have given at the police station, Sihani Gate.
Therefore, it is requested that you may treat the above cheques as
cancelled and on that may not kindly make payment to any person.
It will be very kind of you”.
A reading of the above letter makes it very clear that the
complainant has instructed the appellant/Branch Manager not to pass cheques
bearing Nos. 083697 to 083700, the four cheques which were already signed.
There is no dispute that after submitting the above letter to the
appellant, when Cheque No. 083697 was presented in the Bank on 2ndf August,
2004, the same was not cleared by the appellant/Branch Manager in view of
the letter of the complainant. Subsequently, the appellant was transferred
from that Branch to Dhaulana Branch on 21st August, 2004, there was any
instruction to the Bank to inform the account holder or police when the
cheque is presented. It appears from the letter that only a request was
made to the Bank that the said four cheques shall not be honoured.
15. If we look at the complaint and letter addressed by the complainant
to the Branch Manager, the entire grievance of the complaint appears to be
that basing on the written information which had been given to the
appellant on 17th May, 2004, when the stolen cheque was presented, he
should have given a complaint to the police. As the appellant has not
chosen to give the complaint to the police, according to the complainant
the other accused hatched a conspiracy with the appellant – Branch Manager
and accordingly cheated him.
16. It is no doubt true that the Courts have to be very careful while
exercising the power under Section 482 Cr.P.C. At the same time we should
not allow a litigant to file vexatious complaints to otherwise settle their
scores by setting the criminal law into motion, which is a pure abuse of
process of law and it has to be interdicted at the threshold. A clear
reading of the complaint does not make out any offence against the
appellant/Branch Manager, much less the offences alleged under Sections 34,
379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. We are of the view that
even assuming that the Branch Manager has violated the instructions in the
complaint in letter and spirit. It all amounts to negligence in
discharging official work at the maximum it can be said that it is
dereliction of duty.
17. In view of our above discussion, we have come to an irresistible
conclusion that continuation of the criminal proceedings against the
appellant for commission of the alleged offence under Sections 34, 379,
411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse of process of
law and the complaint case deserves to be quashed in the interest of
justice.
18. We accordingly allow this appeal setting aside the impugned judgment
of the High Court by quashing the criminal proceedings pending against the
appellant in C.C. No. 2397 of 2012 under Sections 34, 379, 411, 418, 420,
467, 458 and 477 I.P.C. on the file of Additional Chief Judicial
Magistrate, Ghaziabad, Uttar Pradesh.
….……………………………….J.
(RANJANA PRAKASH DESAI)
.....………………………………J.
(N.V. RAMANA)
NEW DELHI
JULY 2 , 2014
