Criminal proceedings are not a short cut of other remedies available in law: Supreme Court 2000

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

 

CASE NO.:
Appeal (crl.) 91 of 2000

PETITIONER:
G. SAGAR SURI AND ANR.

RESPONDENT:
STATE OF UP. AND ORS.

DATE OF JUDGMENT: 28/01/2000

BENCH:
S. SAGHIR AHMAD & D. P. WADHWA

JUDGMENT:
JUDGMENT

2000 (1) SCR 417

 

The Judgment of the Court was delivered by D.P. WADHWA, J. Leave granted.

This appeal is directed against the judgment dated May 6, 1999 of Allahabad
High Court dismissing the application of the appellants filed under Section
482 of the Code of Criminal Procedure (for short, the ‘Code’). By this
application the appellants had sought quashing of the criminal proceedings
pending against them under Section 406/420″ of the Indian Penal Code (for
short the TPC) in the Court of Chief Judicial Magistrate, Ghaziabad and
arising out of Case No. 674 of 1997 of Police Station Noida, District
Gautam Budh Nagar.

The First Information Report (FIR No. 517 dated August 17, 1997) was filed
against seven persons including the two appellants by Mr. P.K. Sen Gupta
(respondent No. 2), General Manager, M/s. Phoenix Interna-tional Finance
Ltd., NOIDA (for short, the ‘Finance Company’). He al-leged that Ashwani
Suri, G. Sagar Suri (the first appellant) and Sukhvinder Singh contacted
his company on telephone in the first week of June, 1996 with intention to
cheat and commit fraud on him. They had stated that they along with Shalini
Suri, Shama Suri (the second appellant), Charaujit Singh and M.L. Kampani
were the Directors of M/s. Ganga Automobiles Ltd. and that they would come
later for a meeting personally. They had also told that their company Ganga
Automobiles Ltd. was doing good business and that if complainant’s company
could give a loan of Rs. 50,00,000 (Rupees fifty lakh only) to M/s. Ganga
Automobiles Ltd. the loan would be repaid with interest by September 13,
1996. The complainant then alleged that the “above said accused persons
turn by turn continued visiting the applicant’s office” for making request
for grant of loan. Relying on their persuasion but without realising their
malafide and fraudulent intentions, the Finance Company gave Rs. 50,00,000
by means of cheque No. 375453 dated June 19, 1996 drawn on the Punjab &
Siad Bank, New Delhi. Complainant then said “the -accused persons issued
two cheques to the applicant company for repayment of above said money
bearing No. 08-4049 and 84450 both dated 13.9.96 for rupees fifty lakhs
towards payment of principal sum and Rs. 86625 towards payment of interest
respectively and drawn on Corporation Bank”, When these cheques were
presented for payment, these were returned dishonoured with the remarks
that sufficient funds were not available. The Finance Company again
contacted the accused persons many times on telephone as well as by writing
letters and asked them to make payment but they failed to do so and even
started avoiding the complainant. However, the accused persons again came
to the office of the Finance Company on January 2, 1997 and asked the
Finance Company six months further time for the payment of the amount as
they said “a mishappening took place with them as a result of which they
are suffering financial constraint”. The complainant said he believed their
wordings and the accused again issued two cheques on July 2,1997 for Rs.
5o,86,625 towards principal and Rs. 9,40,008 towards interest. This time
these cheques were drawn on the Grindleys Bank, Connaught Place, New Delhi
and again when presented for payment were returned dishonoured with the
endorsement “insufficient funds”. Complainant thus said in his report that
the aforesaid acts of the accused persons were fraudulent and committed
with the common object to cheat the Finance Company. They did not want to
refund the money in any way. He, therefore, requested for legal action
against the accused persons, On the basis of the First informa-tion Report,
the Police registered the case against seven persons, namely, Ashwani Suri,
G. Sagar Suri (the first Appellant), Sukhvinder Singh, Shalini Suri, Shama
Suri (the second appellant), Charanjit Singh and M.L. Kam-pani. After the
investigation, the Police submitted charge sheet dated June 4,1998 in the
court of the Chief Judicial Magistrate against four persons, namely, G.
Sagar Suri (the first petitioner) Shama Suri (the second petitioner),
Ashwani Suri and Shalini Suri describing all of them as Direc-tors of M/s.
Ganga Automobiles Ltd. It was stated in the charge sheet that investigation
was still pending against charanjit Singh, M.L. Kampani and Mukender Singh.

During the course of investigation, statement of the complainant was again
recorded on march 25,1998 by the Investigating Officer. Now his version was
different. He said that in the first week of June 1996 Ashwani Kumar Suri
and Mukender Singh contacted his company with the intention to cheat and
play fraud. They told him that they and Shalini Suri, Shama Suri, Charanjit
Singh and M.L. Kampani were the Directors and arranged conversation with
them over the telephone. Ashwani Suri and Mukender Singh then said that
they would come later. Complainant said they stated that they would refund
the entire amount with interest by September 13, 1996 and thereafter they
kept on visiting the Finance Company turn by turn and kept on requesting
for the loan for their company M/s. Ganga Automobile Ltd. which they said
was running a good business and that their company would earn more profit
if a loan of Rs. 50,00,000 was given to their company. Relying on these
fraudulent promises and without knowing their malafide intention, an amount
of Rs. 50,00,000 by means of cheque was given to them after completing
necessary formalities. For repayment of the loan, the ac-cused issued two
cheques towards principal and interest. These cheques When presented for
payment were returned dishonoured. The Finance Company then contacted the
accused persons of the Ganga Automobiles Ltd., telephoned them and also
wrote letters asking to refund the money. The accused, however, failed to
refund the money and started “hiding” themselves and avoided any contact.
Again the accused came to the office of the Finance Company on January 2,
1997 and wanted six months further time for them to make repayment.
Complainant then said .that the money of the Finance Company had been
blocked and since there were financial constraints he was again compelled
to believe the accused who gave two cheques dated July 2, 1997. These
cheques were also returned dishonoured when presented for payment. The
complainant then stated that the accused persons had committed this
fraudulent act with common consent with the intent to cheat and grab the
money of the Finance Company. Again he confirmed the contents of the First
information Report lodged by him.

Before lodging of the First Information Report for offences under Section
406/420 IPC, the complainant, P.K. Sengupta, had already in-stituted a
complaint under Section 138 of the Negotiable Instruments Act in the Court
of the Additional Chief Judicial Magistrate, Ghaziabad. He had named eight
accused, namely, (1) M/s. Ganga Automobiles Ltd., (2) Ashwani Suri,
Managing Director, (3) Shalini Suri, w/o Ashwani Suri, (4) G. Sagar Suri,
Director, (5) Shama Suri w/o G. Sagar Suri, (6) Mukender Singh, (7)
Charanjit Singh and (8) M.L. Kampani, the accused 4 to 8 also being shown
as Directors of M/s. Ganga Automobiles Ltd. In this com-plaint the case set
out is that accused 2 to 8 came to the office of the Finance Company in the
month of June 1996 and wanted loan for M/s, Ganga Automobiles Ltd. for Rs,
50,00,000 which they promised to repay with interest. On their
representations the Finance Company gave them a loan of Rs. 50,00,000 by
means of a cheque after the accused executed promissory note and agreement
to repay the principal amount with interest by September 13, 1996. By
getting this loan M/s. Ganga Automobiles Ltd. started earning profits after
investing the amount in its business. The accused issued two cheques for
repayment of the principal amount and the interest. Both these cheques when
presented for payment were returned dishonoured. After the return of the
cheques unpaid, the Finance Com-pany contacted the accused by telephone and
also sent letters and wanted repayment of its money but the accused failed
to pay the same and in fact

138. Dishonour of cheque for insufficiency, etc, of funds in the account –
Where any cheque drawn, by a person on an account maintained by him with a
banker for payment of any amount of money to another person from out of
that account for the discharge, in whole or in part, of any debt or other
liability, is retorned by the bank unpaid either because of the amount of
money standing to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall without prejudice to any other provision of
thus Act, be punished with imprisonment for a term which may extend to one
year, or with fine which may extend to twice the amount of the cheque, or
with both.

Provided that nothing contained in this section shall apply unless —

(a) the cheque has been presented to the bank within a period of six months
from the date on which it is drawn or within the period of its validity,
whichever is earlier:

(b) the payee of the holder in due course of the cheque, as the case may
be, makes a demand for the payment of the said amount of money by giving a
notice. in writing, to the drawer of the cheque, within fifteen days of the
receipt of information by him from the bank regarding the return of the
cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount
of money to the payee or, as the ease may be, to the holder in due course
of the cheque, within fifteen days of the receipt of the said notice.
started avoiding themselves. On January 2, 1997 the accused again came to
the office of the Finance Company and said that some mishappening had
occurred with them and six months more time might be given to them. The
Finance Company was compelled to believe their statement and after mutual
consideration, the accused gave two cheques dated July 2, 1997 for the
principal amount and the interest. Again the cheques were returned
dishonoured when presented for payment. The Finance Company sent a notice
to the accused on July 17, 1997 for repayment of the amount within 15 days
and in spite of that no payment was made. It was, thus, alleged that the
accused committed an offence under Section 138 of the Negotiable
instruments Act. While describing the accused 2 to 8 as Managing Director
and Directors of M/s Ganga Automobiles Ltd., the complainant stated that
they were “directly responsible and liable for all the activities and
affairs of the company and carry out and execute all the affairs in normal
course of business with mutual consultation and participate in each and
every work of the company”. Obviously, it was necessary to state to make
all the accused 2 to 8 liable for offence under Section 138 of the
Negotiable Instruments Act. After examining the complainant, learned
Additional Chief Judicial Magistrate was of the opinion that there was
prima facie case made out against the accused persons for an offence under
Section 138 of the Negotiable Instruments Act and by his order dated August
27, 1997 ordered summoning them all.

In the Investigation of FIR No. 517 of 1997 it was found that both G. Sagar
Suri and his wife Shama Suri were not the Directors of M/s. Ganga
Automobiles Ltd. in the counter affidavit filed by L.V. Singh styling
himself as authorised signatory on behalf of the second respondent P.K.
Sengupta, the complainant, it is admitted that the appellants are not the
Directors of Ganga Automobiles Ltd. It is, however, stated that G. Sagar
Suri is not only the authorised signatory on behalf of Ganga Automobiles
Ltd. but he is also authorised to sign cheques on behalf of that company
and further that G. Sagar Suri is the major shareholder of the company. It
was submitted that the cheques which bounced were signed by G. Sagar Suri
as authorised signatory of Ganga Automobiles Ltd. in the counter affidavit
filed by B.S. Chandel, Sub-inspector on behalf of the first respon-dent it
is stated that both G. Sagar Suri and his wife Shama Suri are the parents
of Ashwani Kumar Suri, Managing Director of Ganga Automobiles Ltd. and
“they have full control over the day to day affairs of the company”. As to
how the later part of this statement has been made, nothing has been said.
This counter-affidavit is also silent as to why charge sheet was filed only
against 5 persons, namely, Ashwani Kumar Suri, Managing Director, his wife
Shalini Suri and his partner G. Sagar Suri and Shama Suri and why other
Directors were left out and why investigation against the left out
Directors is still pending and at what stage and particularly when common
role is assigned to all of them. From this it would appear that four
persons have been roped in, in order to coerce on them to refund the money
to the Finance Company. Charge Sheet also does not show if the
investigating agency looked into the complaint filed under Section 138 of
the Negotiable instruments Act.

It was submitted by Mr. Lalit, learned counsel for the second respon-dent,
that the appellants have already filed an application in the Court of
Additional Judicial Magistrate for their discharge and that this Court
should not interfere in the criminal proceedings which are at the
threshold. We do not think that on filing of any application for discharge,
High Court Cannot exercise its jurisdiction under Section 482 of the Code.
In this connection, reference may be made to two decisions of this Court in
Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., [1998] 5 SCC
749 and Ashok Chaturvedi & Ors. v. Shitul H. Chanchani & Anr., [1998] 7 SCC
698, wherein it has been specifically held that though the Magistrate
trying a case has jurisdiction to discharge the accused at any stage of the
trial if he considers the charge to be groundless but that does not mean
that the accused cannot approach the High Court under Section 482 of the
Code or Article 227 of the Constitution to have the proceeding quashed
against them when no offence has been made out against them and still why
must they undergo the agony of a criminal trial.

Jurisdiction under Section 482 of the Code has to be exercised with a great
care. In exercise of its jurisdiction High Court is not to examine the
matter superficially. It is to be seen if a matter, which is essentially of
civil nature, has been given a cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies available in law. Before
issuing process a criminal court has to exercise a great deal of caution.
For the accused it is a serious matter. This Court has laid certain
principles on the basis of which High Court is to exercise its jurisdiction
under Section 482 of the Code, Jurisdiction- under this Section has to be
exercised to prevent abuse of the process of any court or otherwise to
secure the ends of justice. In State of Karnataka v. L. Muniswamy and
Others, AIR (1977) SC 1489 = [1977] 3 SCR 113, this Court said that in the
exercise of the wholesome power under Section 482 of the Code High Court is
entitled to quash a proceeding if it comes to the conclusion that allowing
the proceed-ing to continue would be an abuse of the process of the Court
or that the ends of justice require that the proceedings are to be quashed.

In Kurukshatra University and Another v. State of Haryana, AIR (1977) SC
2229 = [1977] 4 SCC 451 High Court in exercise of its powers under Section
482 of the Code quashed the First information Report when police had not
even commenced investigation into the complaint. This Court said that
inherent powers do not confer an arbitrary jurisdiction on the High Court
to act according to whim or caprice and that statutory power has to be
exercised sparingly, with circumspection and in the rarest of rare cases.
In the case First Information Report was lodged by Warden, Kurukshatra
University. Acting on that report the police registered a case under
Sections 443 and 452, IPC against one Vinay Kumar, who filed a petition in
the High Court praying that FIR be quashed. High Court without issuing
notice to the University quashed the FIR. Not only that High Court directed
the State of Haryana to pay a sum of Rs. 300 by way of cost to Vinay Kumar.
High Court even made observations concerning the University’s power to
enforce discipline in the Campus. This Court observed that the High Court
seemed to fail that outsiders can with impunity flout the University rule
that no outsider shall stay in a university hostel. It said that such a
view is plainly calculated to subvert discipline in a sphere where it is
most needed. This Court said that High Court ought not to have made these
observations without, at least, giving a hearing to the University. This
Court set aside the judgment of the High Court and allowed investigation to
proceed.

In Chandrapal Singh and Others v. Maharaj Singh and Another, AIR (1982) SC
1238, the judgment started as under ;-

“A frustrated landlord after having met his Waterloo in the hierarchy of
civil courts, has further enmeshed the tenant in a frivolous criminal
prosecution which prima facie appears to be an abuse of the process of law.
The facts when stated are so, telling that the further discussion may
appear to be superfluous.

This Court said :-

“We see some force in the submission but it is equally true that chargrined
and frustrated litigants should not be permitted to give’ vent to their
frustration by cheaply invoking jurisdiction of the criminal court.
Complainant herein is an Advocate. He lost in both courts in the rest
control proceedings and has now rushed to the criminal court. This itself
speaks volumes. Add to this the fact that another suit between the parties
was pending from 1975. The conclusion is inescapable that invoking the
jurisdiction of the criminal court in this background is an abuse of the
process of law and the High Court rather glossed over this important fact
while declining to exercise its power under Section 482 Cr. P.C.”

This Court said that the Chief Judicial Magistrate, Secunderabad ought not
to have taken cognizance of the proceedings. It said it considered it to be
a fit case to involve jurisdiction under Section 482 of the Code.

In the circumstances of the case in hand conclusion is inescapable that
invoking the jurisdiction of criminal court for allegedly having com-mitted
offences under Sections 406/420 IPC by the appellants is certainly an abuse
of the process of law. In the counter affidavit filed on behalf of the
complainant it is now admitted that none of the two appellants is a
Director of Ganga Automobiles Ltd. Only in respect of the first appellant
it is stated that he is the authorised signatory of that company and that
in fact he had signed the cheques which were returned dishonoured. Apart
from making the omnibus statement that the first appellant with dishonest
intentions and misrepresentations got loan of Rs. 50,00,000 from the com-
plainant company for Ganga Automobiles Ltd. there is nothing said as to
what were those misrepresentations and how the complainant company was
duped. The only part attributed to the second appellant is that the first
appellant along with Ashwani Suri, Managing Director and Mukender Singh,
Director approached the complainant in June, 19% and had repre-sented that
they and Shalini Suri, Shama Suri (Appellant No. 2), Charanjit Singh and
M.L. Kampani were the Directors of Ganga Automobiles Ltd. There is nothing
stated in the counter affidavit about the role, if any, played by the
second appellant. A complaint under Section 138 of the Negotiable
Instruments Act has already been filed by the complainant. There is no
allegation of any corrupt practice by any of the accused as if they duped
the Finance Company in parting with the amount of Rs. 50,00,000, As
normally understood business of a finance company is to invite deposits,
pay interest on that and also to give loans and earn interest. A finance
company also advances short term loans. In that case it is essentially a
commercial transaction. After first two cheques were dishonoured two
cheques were again issued, which again were dishonoured resulting in filing
of complaint under Section 138 of the Negotiable Instruments Act. None of
the respondents has been able to explain as to why offences under Sections
406/420 IPC were not added in the complaint filed under Section 138 of the
Negotiable Instruments Act and why resort was had to filing of a separate
First Information Report. Certain motive has been attributed to the
investigating officer but we think we need not go into that. There is also
no answer as to why investigation against three other directors was still
stated to be pending when same role is assigned to all the accused. In the
FIR it is Sukhvender Singh, who first approached the complainant, but later
it is Mukender Singh. There is no answer as to why there are two different
names. as to who are the Directors of Ganga Automobiles Ltd. could have
been easily found by the complainant after going through the records of
Registrar of Companies and also about its status. As noted above, in the
subsequent statement by the complainant he does not assign any role to the
first appellant. The allegation that in the first instance three persons
contacted the complainant company, who told the complainant of other
Directors with whom the complainant conversed on telephone ap-pears to be
rather improbable.

We agree with the submission of the appellants that the whole attempt of
the complainant is evidently to rope in all the members of the family
particularly who are the parents of the Managing Director or Ganga
Automobile Ltd. in the instant criminal case without regard to their role
or participation in the alleged offences with a sole purpose of getting the
loan due to the Finance Company by browbeating and tyrannizing the
appellants of criminal prosecution. A criminal complaint under Section 138
of the Negotiable instruments Act is already pending against the appellants
and other accused. They would suffer the consequences if offence under
Section 138 is proved against them. In any case there is no occasion for
the complainant to prosecute the appellants under Sections 406/420 IPC and
in his doing so it is clearly an abuse of the process of law and
prosecution against the appellants for those offences is liable to be
quashed, which we do.

The appeal is allowed and judgment of the High Court dated May 6, 1999 is
set aside and prosecution of the appellants under Sections 406/420 IPC in
Criminal Case No. 674/97 (now Criminal Case No. 6054/98) and pending the
Court of Chief Judicial Magistrate, Ghaziabad is quashed.