Probir Ghosh and ors. Vs. State of Gujarat and anr. - Court Judgment

Excerpt:
- - simple because the transactions may also partake the character of both civil dispute as well as that of criminal offence, it cannot be said that the court should exercise its power under section 482 of the criminal procedure code and quash the proceedings of criminal case. - the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. the apprehension of the petitioners-accused that they will be put to harassment is not well founded.ordera.p. ravani, j.1. the petitioners are the original accused of criminal case no. 769/90 of the court of metropolitan magistrate, ahmedabad. respondent no. 2 original complainant filed complaint against the petitioners accused on march 21, 1990. the complainant alleged that he was carrying on business as sole proprietor in the name of tapama (india) laboratories at ahmedabad; that he was dealing in sales and purchase of different chemical materials; that accused were also dealing in the same articles; that accused were in charge of the affairs of the company called ortho pharma private limited; that the accused had placed orders of different chemical materials by representing and making and giving an explicit undertaking, promise and assurance to the complainant that they would first give a trust and promise in writing of having accepted the hundi for the value of the invoice of goods to be delivered to them and a promise and acknowledgment that they would deposit in their bank within a period of 90 days i.e. period of maturity of the hundi instrument the amount of value of the price and amount of the invoice. it is further alleged that as the accused made representations as above, the complainant was induced to deliver goods of the value of rs. 2,83,718.40 ps. as mentioned in para 4 of the complaint. it is further alleged that the accused received the delivery of the goods, but did not honour the hundies. in para 5 of the complaint, it is specifically averred as follows:'if the accused had not given in writing as above that they are accepting the above hundies and had not given the promises, trusts assurances, undertakings and representations that they would deposit and make the payments of the above 13 hundies within 90 days of the value of the goods purchased by them from the complainant they would not have been given to delivery challans of our goods and they would not have been given deliveries of our goods purchased by them.'2. on the basis of these allegations, it was alleged that the accused had committed offence under section 430 read with sections 34 and 114 of ipc. when the complaint was filed, the learned magistrate examined the complainant on the same day. the complainant stated in his examination that the accused had given assurance and promise that the hundies of 13 bills will be honoured and that on the basis of such assurances, he was induced to deliver the goods, but when the hundies were presented before the bank, the same were not honoured. even till the date of the filing of the complaint and the examination of the complainant, the amount was not paid. it was further stated by the complainant that the accused has committed offence of cheating. the learned magistrate ordered to issue bailable warrant for the sum of rs. 1000/- for the offence under section 420 read with sections 34 and 114 of the ipc.3. the petitioners original accused have filed this application under section 482 of the code of criminal procedure praying that the process issued by the learned magistrate in criminal case no. 769/ 90 be quashed and set aside.4. in proceedings under section 482 of the criminal procedure code, what is required to be seen by the court is as to whether the complaint, prima facie, discloses an offence or not. in the instant case, it cannot be said that the complaint does not disclose an offence of cheating. it is true that the same transaction may also amount to civil dispute or civil wrong. but that does not mean that the averments made in the complaint and the deposition of the complainant would cease to partake the character of criminal offence. simple because the transactions may also partake the character of both civil dispute as well as that of criminal offence, it cannot be said that the court should exercise its power under section 482 of the criminal procedure code and quash the proceedings of criminal case. reference may be made to decision of the hon'ble supreme court in the case of madhu limaye v. state of maharashtra, reported in : 1978crilj165 of the reported decision, the hon'ble supreme court has observed as follows:'at the outset the following principles may be noticed in relation to the exercise of the inherent power of the high court which have been followed ordinarily and generally, almost invariably bearing a few exceptions:-(1) that the power is not to be resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party;(2) that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;(3) that it should not be exercised as against the express bar of law engrafted in any other provision of the code.'in the instant case, prima facie, the complaint discloses an offence. therefore, the principle laid down by the hon'ble supreme court would be attracted.5. the learned counsel for the petitioners relied upon a decision of the supreme court in the case of madhavrao v. sambhajirao, reported in : 1988crilj853 . reliance is placed on the observations made by the hon'ble supreme court in para 7 of the reported decision which reads as follows:-'the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. it is also for the court to take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. this is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.'relying on the observation that the court can take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue, the learned counsel for the petitioners submitted that this court may look into other evidence produced in this application before this court. 1 am afraid, the observations made by the hon'ble supreme court permitting the court to take into consideration any special features of the case cannot be construed to mean that the high court may look into other evidence which was not before the trial court. on the contrary, at this stage, the first part of the principle expressed by the hon'ble supreme court would be applicable. the test to be applied by the high court is as to whether the allegations as made prima facie establish an offence. as indicated hereinabove, the allegations as made in the complaint prima facie disclose an offence. it is not permissible to the high court to look into other evidence at this stage. the course suggested by the learned counsel for the petitioners may be adopted if the evidence is such that the court should take judicial notice of it or the other side admits the evidence and does not object to looking at the evidence. in the instant case, no judicial notice of the evidence could be taken sought to be referred to by the petitioners. the learned counsel appearing for opponent no. 2, original complainant, objects to looking at the evidence sought to be referred to by the learned counsel for the petitioners. in his submissions, if and when evidence is produced before the trial court, the same may be exhibited by the trial court and the same would be tested by the trial court on the basis of the depositions of the witnesses. in view of this position, i am not referring to the correspondence between the parties which has been made part of the record of this application.6. the learned counsel for the petitioners submitted that the accused are residing at calcutta and one of the accused, namely, p. c. ghosh is aged about 85 years. therefore it is submitted that the process issued against him be quashed. however, it would be difficult to accept this submission in view of the fact that the allegations made in the complaint are against all the accused. but, in this connection reference may be made to a decision of this court in the case of jayantilal chhaganlal panchal v. shirish shantilal pandya, reported in (1986) 27 (1) guj lr 287. it was also a case for quashing the proceedings of criminal case under section 482 of the criminal procedure code. therein, submission was made that the petitioner will be put to harassment as they will have to remain present on every date of hearing of the case. in this connection, it is observed as follows:'the apprehension of the petitioners-accused that they will be put to harassment is not well founded. the presence of the accused is not to be insisted for by the trial court on each and every occasion of the hearing. the trial before a criminal court is required to be conducted within the presence and hearing of the accused. this is the right of an accused conferred by the legislature. this right of the accused cannot be turned into in his obligation and it cannot be made an instrument of harassment and oppression. an accused may choose to remain absent at the time of trial and if the presence of the accused is not necessary for the further conduct of the trial, there is no reason why the court should not grant him exemption from remaining personally present in court.'i am told that the aforesaid decision rendered by this court way back in the year 1985 is being followed by the lower courts. i hope and trust that if and when on behalf of the accused an application is submitted seeking exemption from remaining personally present in court the trial court will not insist upon the presence of the accused on each and every occasion. it is hoped that the presence of the accused may not be insisted upon unless it is absolutely necessary for proceeding further with the trial. in view of this settled legal position, the apprehension of the learned counsel for the petitioners that the accused will be put to harassment cannot be accepted.7. the accused can certainly submit an application before the learned magistrate and pray that all of them or any one of them may be discharged. as and when such application is submitted, the learned magistrate will certainly be guided by the principles laid down by this court and will decide the same in accordance with law.8. for the aforesaid reasons, the application is rejected. rule discharged. interim relief granted earlier stands vacated.

Judgment:
ORDER

A.P. Ravani, J.

1. The petitioners are the original accused of Criminal Case No. 769/90 of the Court of Metropolitan Magistrate, Ahmedabad. Respondent No. 2 original complainant filed complaint against the petitioners accused on March 21, 1990. The complainant alleged that he was carrying on business as sole proprietor in the name of Tapama (India) Laboratories at Ahmedabad; that he was dealing in sales and purchase of different chemical materials; that accused were also dealing in the same articles; that accused were in charge of the affairs of the company called Ortho Pharma Private Limited; that the accused had placed orders of different chemical materials by representing and making and giving an explicit undertaking, promise and assurance to the complainant that they would first give a trust and promise in writing of having accepted the Hundi for the value of the invoice of goods to be delivered to them and a promise and acknowledgment that they would deposit in their Bank within a period of 90 days i.e. period of maturity of the Hundi instrument the amount of value of the price and amount of the invoice. It is further alleged that as the accused made representations as above, the complainant was induced to deliver goods of the value of Rs. 2,83,718.40 ps. as mentioned in para 4 of the complaint. It is further alleged that the accused received the delivery of the goods, but did not honour the hundies. In para 5 of the complaint, it is specifically averred as follows:

'If the accused had not given in writing as above that they are accepting the above Hundies and had not given the promises, trusts assurances, undertakings and representations that they would deposit and make the payments of the above 13 hundies within 90 days of the value of the goods purchased by them from the complainant they would not have been given to Delivery Challans of our goods and they would not have been given deliveries of our goods purchased by them.'

2. On the basis of these allegations, it was alleged that the accused had committed offence under Section 430 read with Sections 34 and 114 of IPC. When the complaint was filed, the learned Magistrate examined the complainant on the same day. The complainant stated in his examination that the accused had given assurance and promise that the hundies of 13 bills will be honoured and that on the basis of such assurances, he was induced to deliver the goods, but when the hundies were presented before the Bank, the same were not honoured. Even till the date of the filing of the complaint and the examination of the complainant, the amount was not paid. It was further stated by the complainant that the accused has committed offence of cheating. The learned Magistrate ordered to issue bailable warrant for the sum of Rs. 1000/- for the offence under Section 420 read with Sections 34 and 114 of the IPC.

3. The petitioners original accused have filed this application under Section 482 of the Code of Criminal Procedure praying that the process issued by the learned Magistrate in Criminal Case No. 769/ 90 be quashed and set aside.

4. In proceedings under Section 482 of the Criminal Procedure Code, what is required to be seen by the Court is as to whether the complaint, prima facie, discloses an offence or not. In the instant case, it cannot be said that the complaint does not disclose an offence of cheating. It is true that the same transaction may also amount to civil dispute or civil wrong. But that does not mean that the averments made in the complaint and the deposition of the complainant would cease to partake the character of criminal offence. Simple because the transactions may also partake the character of both civil dispute as well as that of criminal offence, it cannot be said that the Court should exercise its power under Section 482 of the Criminal Procedure Code and quash the proceedings of Criminal case. Reference may be made to decision of the Hon'ble Supreme Court in the case of Madhu Limaye v. State of Maharashtra, reported in : 1978CriLJ165 of the reported decision, the Hon'ble Supreme Court has observed as follows:

'At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably bearing a few exceptions:-

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.'

In the instant case, prima facie, the complaint discloses an offence. Therefore, the principle laid down by the Hon'ble Supreme Court would be attracted.

5. The learned counsel for the petitioners relied upon a decision of the Supreme Court in the case of Madhavrao v. Sambhajirao, reported in : 1988CriLJ853 . Reliance is placed on the observations made by the Hon'ble Supreme Court in para 7 of the reported decision which reads as follows:-

'The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.'

Relying on the observation that the Court can take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue, the learned counsel for the petitioners submitted that this Court may look into other evidence produced in this application before this Court. 1 am afraid, the observations made by the Hon'ble Supreme Court permitting the Court to take into consideration any special features of the case cannot be construed to mean that the High Court may look into other evidence which was not before the trial Court. On the contrary, at this stage, the first part of the principle expressed by the Hon'ble Supreme Court would be applicable. The test to be applied by the High Court is as to whether the allegations as made prima facie establish an offence. As indicated hereinabove, the allegations as made in the complaint prima facie disclose an offence. It is not permissible to the High Court to look into other evidence at this stage. The course suggested by the learned counsel for the petitioners may be adopted if the evidence is such that the Court should take judicial notice of it or the other side admits the evidence and does not object to looking at the evidence. In the instant case, no judicial notice of the evidence could be taken sought to be referred to by the petitioners. The learned counsel appearing for opponent No. 2, original complainant, objects to looking at the evidence sought to be referred to by the learned counsel for the petitioners. In his submissions, if and when evidence is produced before the Trial Court, the same may be exhibited by the trial Court and the same would be tested by the Trial Court on the basis of the depositions of the witnesses. In view of this position, I am not referring to the correspondence between the parties which has been made part of the record of this application.

6. The learned counsel for the petitioners submitted that the accused are residing at Calcutta and one of the accused, namely, P. C. Ghosh is aged about 85 years. Therefore it is submitted that the process issued against him be quashed. However, it would be difficult to accept this submission in view of the fact that the allegations made in the complaint are against all the accused. But, in this connection reference may be made to a decision of this Court in the case of Jayantilal Chhaganlal Panchal v. Shirish Shantilal Pandya, reported in (1986) 27 (1) Guj LR 287. It was also a case for quashing the proceedings of criminal case under Section 482 of the Criminal Procedure Code. Therein, submission was made that the petitioner will be put to harassment as they will have to remain present on every date of hearing of the case. In this connection, it is observed as follows:

'The apprehension of the petitioners-accused that they will be put to harassment is not well founded. The presence of the accused is not to be insisted for by the trial Court on each and every occasion of the hearing. The trial before a criminal Court is required to be conducted within the presence and hearing of the accused. This is the right of an accused conferred by the Legislature. This right of the accused cannot be turned into in his obligation and it cannot be made an instrument of harassment and oppression. An accused may choose to remain absent at the time of trial and if the presence of the accused is not necessary for the further conduct of the trial, there is no reason why the Court should not grant him exemption from remaining personally present in Court.'

I am told that the aforesaid decision rendered by this Court way back in the year 1985 is being followed by the lower Courts. I hope and trust that if and when on behalf of the accused an application is submitted seeking exemption from remaining personally present in Court the trial Court will not insist upon the presence of the accused on each and every occasion. It is hoped that the presence of the accused may not be insisted upon unless it is absolutely necessary for proceeding further with the trial. In view of this settled legal position, the apprehension of the learned counsel for the petitioners that the accused will be put to harassment cannot be accepted.

7. The accused can certainly submit an application before the learned Magistrate and pray that all of them or any one of them may be discharged. As and when such application is submitted, the learned Magistrate will certainly be guided by the principles laid down by this Court and will decide the same in accordance with law.

8. For the aforesaid reasons, the application is rejected. Rule discharged. Interim relief granted earlier stands vacated.