@JUDGMENTTAG-ORDER
Satish K. Agnihotri, J.@mdashBoth the petitions involve common facts and question of law, thus they are being disposed of by this common order. The petitioners seek a writ to quash the FIR No. 179/2012 registered in Civil Lines Police Station, Raipur, Chhattisgarh, and the consequent investigation by the Special Investigation Cell, Raipur, in respect of the petitioners and also a direction restraining the respondents State from interfering with the personal liberty of the petitioners.
2. The facts, in brief, as projected by the petitioners are that one Mr. Arun Poddar, Power of Attorney Holder on behalf of M/s. Hira Steel Limited (for short, "HSL") filed an F.I.R. which was registered as F.I.R. No. 179/2012 for allegedly having committed offences under Sections 420, 467, 468, 471 & 120B read with Section 34 of the Indian Penal Code (for short "the IPC") by the petitioners along with other persons named therein, in the Civil Lines Police Satiation, Raipur.
3. Shri Choudhary, learned senior counsel, appearing for the petitioners submits that the petitioner in W.P. (Cr.) No. 54 of 2013 (hereinafter referred as "the first petitioner") is a Mechanical Engineer working as a Consultant in self employment. The petitioner in W.P. (Cr.) No. 55 of 2013 (hereinafter referred as "the second petitioner") was Executive Officer of HSL. The Coastal Mines & Minerals (for short "CMM"), a registered partnership firm, entered into a contract, bearing No. CMM/HG/002/2011-2012, with HSL for sale and purchase of Iron Ore, on 07.05.2011. The petitioners were neither a party nor a witness to the said contract. In pursuance of the contract, CMM loaded Cargo (containing iron ore fines) on MV Ever bright Vessel at Goa. At the time of loading of Cargo, the HSL was being updated by the Intertec India Pvt. Ltd. (for short "IIPL") about sampling and testing of the grade of the Cargo. It was informed by IIPL to HSL that the Cargo was of low grade quality.
4. One Mr. Prasanna V. Ghotge (for short "Ghotge") of CMM sent a mail to Mr. Jaganath Rao of Geochem and a copy endorsed to HSL in which he requested to issue a composite certificate as per draft annexed by him for quality of the Cargo loaded on MV Ever bright. Mr. Ghotge took up all the responsibilities of consequences, if any. HSL availed the services of the petitioners for the said Cargo as consultant authorizing him for the purpose. The petitioner along with complainant Mr. Arun Poddar has also gone to Hong Kong. The Cargo loaded on MV Ever bright Vessel was unloaded at Lanshan Port in China on 28.06.2011. The China investigation quality inspected the Cargo and found that the Cargo was of inferior quality to that as projected in the certificate. A dispute in respect of the quality arose between CMM through its partner Mr. Ghotge and HSL. Before loading the Cargo, HSL knew about the quality of Cargo, as is evident from the e-mail sent by HSL to Mr. Ghotge on 25.05.2011, 28.05.2011 & 31.05.2011. It is further submitted that HSL engaged one Mr. Neeraj Shrivastav of N R I. Resources Pvt. Ltd. as an agent to sell the Cargo to the Chinese buyer. The HSL has also lodged an F.I.R. against the said Neeraj Shrivastav. The F.I.R. was lodged against Neeraj Shrivastav wherein interim protection was granted to him. On the same set of facts, the instant F.I.R. was lodged which are contradictory to each other on facts and allegations.
5. Shri Choudhary, submits that there is an arbitration clause in the contract, if there is a dispute in respect of quality which may lead to loss to one party. The case ought to have been referred to the Arbitrator, as per the arbitration clause. Thus, the entire dispute is of civil nature and no F.I.R. alleging criminal offences, is maintainable. It is further contended that the role of first petitioner was an agent or consultant and, as such, the petitioner cannot be held as liable or guilty of criminal breach of trust, invoking certain provisions like Sections 420, 467, 468, 471 & 120B read with Section 34 of the IPC in filing F.I.R.
6. Shri Choudhary, further submits that, the petitioner filed a writ petition impugning the instant F.I.R. No. 179/2012 being W.P. No. 64368-64375 of 2012 in the High Court of Karnataka, Circuit Bench at Dharwad. The High Court of Karnataka after having observed in favour of the petitioner, on 23.08.2012, dismissed the petition on the doctrine of forum conveniens. Against the order dated 23.08.2012 passed by the High Court of Karnataka in W.P. No. 64368-64375 of 2012, an appeal was preferred before the Division Bench which was dismissed as withdrawn. In the entire allegations, there is no allegation against the petitioner. Shri Choudhary further questions the legality of creation of respondent No. 2 and also its jurisdiction. The respondent No. 2 was created for the purpose of harassment and without having any competence and jurisdiction, is seized of the matter as no challan has been filed against the petitioners till date.
7. The petitioner has no jurisdiction over a dispute which had taken place at Goa, as the HSL continued to be owner of Iron Ore till it was loaded on the MV Ever bright Vessel. The e-mail address dated 01.07.2011 was addressed to the first petitioner deliberately before HSL signed a contract with Neeraj Shrivastav in relation of the same Cargo for a High Seas Sale, loaded on the Vessel MV Ever bright. Mr. Alok Agarwal of HSL was well aware that the Fe content of the Iron Ore was less than 42% which is much less than the certified Iron Ore, that was 52%.
8. The second respondent had put a poster of the first petitioner in Raipur under style of "WANTED" to defame him with the sole purpose to harass him and put him behind the bar. It is next contended that in view of the provisions of Section 156 read with Section 177 of the Criminal Procedure Code, 1973 (for short "the Cr. P.C.") the respondent No. 2 has no jurisdiction beyond the local area. In the case on hand, the alleged jurisdiction between the parties was concluded in the State of Goa, as the Iron Ore was loaded for export from the Marma Goa port in the State of Goa. In such a situation the registration of F.I.R. is without jurisdiction.
9. In support of his contention, learned counsel relies on the decision of the Supreme Court in case of
10. It is lastly contended that this Court has jurisdiction to protect the petitioners from malicious prosecution and to secure right to life and personal liberty under Article 21 of the Constitution of India. The allegations are extremely vague in general, which is not sufficient even for initiation of investigation on the basis of F.I.R. No challan has been filed till date, after registration of the F.I.R. Thus, it appears that the Police has no material against the petitioners. On that account also the F.I.R. in respect of the petitioners deserves to be quashed.
11. On the other hand, Shri Bhatia, learned Dy. Govt. Advocate, would submit that the crime No. 179/2012 was registered on the basis of a complaint filed by Arun Poddar of HSL with the Police Station Civil Lines, Raipur on 2.5.2012. The FIR was registered against 7 persons including the petitioners. There are specific allegations against the petitioners. The charge sheets against K. Jagannath Rao & Ghotge have already been filed before the Court of CJM, Raipur, after completing the investigation and collecting the evidence against them. Sufficient evidence during investigation has been collected against the petitioners; however, the investigation against the petitioners could not be complete on account of non-cooperation on their part. They have neither appeared before the police nor had come forward to put forward their respective cases against the allegations made in the FIR.
12. Learned counsel for the State further submits that this Court may not go into the allegations, as this is at the stage of investigation. The petitioners submit to conduct trial of the allegations in the case before this Court, which may not be possible and it is well settled that no FIR be quashed if on investigation it is found that the case against the petitioners may not stand in the trial.
13. Shri Bhatia also submits that in respect of jurisdiction of the Special Investigation Cell, the State Government by order dated 14-2-2012, passed in the name of the Governor, has created Special Investigation Cell in exercise of power u/s 32(1) of the Chhattisgarh Police Act, 2007, at Raipur, Bilaspur, Sarguja, Durg & Jagdalpur. In the present cases since the crime has far reaching effect, the investigation was handed over to the Special Investigation Cell, which was duly constituted within the power of the State Government. Thus, the contention of the petitioners that the Special Investigation Cell has no jurisdiction may be rejected.
14. Shri Bhatia next submits that under the provisions of Section 181(4) of the Cr.P.C. if there is any offence of criminal misappropriation or of criminal breach of trust, the investigation may be conducted in any part even beyond the local jurisdiction if any part of the property, which is the subject of the offence, was located elsewhere. The payment was made to the accused persons by the complainant through Real Time Gross Settlement (for short "RTGS") from Raipur. Transactions were to be accounted at Raipur. Thus, even if the loading was done in Goa, as submitted by the petitioners, the Special Investigation Cell at Raipur, has full jurisdiction to investigate the matter, beyond the territorial jurisdiction of Raipur. The trial is already going on against other accused persons who were named in the FIR. The petitioners may participate in the investigation and if it is found that there is nothing against them they may get a clean chit during the investigation itself.
15. The allegation of the petitioners that the poster of the first petitioner has been put to defame him, is misplaced. The first petitioner was an accused in crime No. 283/2011 wherein he was arrested from the State of Goa. The High Court of Bombay bench at Goa granted the transit bail for production before the Court of learned CJM, Raipur. The first petitioner appeared before the trial Court on 27.2.2012 along with his counsel and moved an application for grant of bail. The matter was fixed for the next date i.e. 28.2.2012. The first petitioner failed to appear before the Court and, as such, a warrant of arrest was issued against him. Thereafter, since the first petitioner is absconding in the pending trial, the poster was put up to submit information regarding him and, therefore, the poster under the title ''WANTED" has nothing to do with this matter.
16. In case of Neeraj Shrivastava the writ petition, being WP (Cr.) No. 33 of 2012 was dismissed by this Court by order dated 29.8.2012. There against, an appeal, being W.A. No. 1079/2012, was preferred by Neeraj Shrivastava, which was also dismissed by the Division Bench of this Court by order dated 22.11.2012.
17. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
Jurisdiction of the Police Station at Raipur:
18. Shri Choudhary on behalf of the petitioners relying on the provisions of Section 177 of the Cr.P.C. contends that the Police Inspector has gone beyond the jurisdiction to investigate the matter, wherein the cause of action had arisen in the State of Goa.
19. In the final report, prepared by the Police, documents have been annexed, at S. No. 18 of the report. The police had collected the statements of accounts of Ghotge from different banks and it was found that there are several notices issued by the petitioners and entries are made, which create doubt against the petitioners. Even in the final report prepared u/s 173(8) some documents have been obtained wherein involvement of the first petitioner was evident. The second petitioner was a party to the criminal act of fraud and forgery. It was also recorded that the guarantee in respect of Fe. content was given by both the petitioners along with other persons. It was further found that the cheques were given to the first petitioner. Payment was made at Raipur and all the persons named in the FIR have been involved in causing fraud by giving a certificate indicating less Fe. content. On the basis of the same, a contract was entered between HSL & CMM.
20. Section 178 of the Cr.P.C. provides that when it is uncertain in which of several local areas an offence was committed, or where an offence is committed, partly in one local area and partly in another, or where an offence, is a continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
21. The petitioners have approached this Court stating that the High Court of Chhattisgarh has jurisdiction. In the case, on reading of the entire FIR, it is clear that the alleged commission of offence had partly taken place at Raipur and has spread in other areas e.g. Goa, Karnataka & Mumbai.
22. u/s 156(3) of the Cr.P.C. wherein it is provided that any Magistrate empowered u/s 190 may order such an investigation as above-mentioned. If a part of cause of action has arisen in Raipur, the Police Station at Raipur, has full competence to investigate the matter and take appropriate steps, as advised under the provisions of law. He further relies on Section 181(4) of the Cr.P.C. wherein it is provided that any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
23. In Navinchandra N. Majithia (supra), large number of events had taken place at Bombay in respect of the allegations contained in the FIR registered at Shillong, therefore, it was held that Shillong had no jurisdiction, but in the cases on hand, the alleged commission of offences started from Raipur (Chhattisgarh) where the money was paid, received, etc. In Goa only the cargo was loaded.
24. It is a settled law that even if a part of the cause of action arose within the jurisdiction of the Court concerned, it is the place where the offence was committed and u/s 177 the police has jurisdiction to register the complaint and take action.
25. Shri Choudhary has further raised a question as the entire facts do not constitute a criminal breach of trust as prescribed u/s 181(4) of the Cr.P.C. Even the petitioners have not involved in the entire transaction and secondly it was a civil matter, as the dispute arose from the contract between HSL & CMM.
26. It is a trite law that the criminal proceedings cannot be taken recourse to for enforcing a civil right. However, the nature of dispute may be known only after the investigation is complete. If on investigation it is found that the entire transaction was of civil nature, the criminal proceedings may not proceed. (See:
27. Be that as it may, I do not propose to decide the case on merit, as even if it is a civil dispute some ingredients of criminal offence is also involved, which led to entering into contract that may be a certificate granted by some persons giving wrong facts of Fe. content.
About Special Investigation Cell:
28. I have examined the facts in respect of creation of the Special Investigation Cell, as submitted by the learned counsel for the State. The State Government by order dated 14-2-2012, passed in the name of the Governor, has legally created the Special Investigation Cell in exercise of power u/s 32(1) of the Chhattisgarh Police Act, 2007, at Raipur, Bilaspur, Sarguja, Durg & Jagdalpur. The Special Investigation Cell has full jurisdiction to investigate any matter, which is serious in nature and handed over for investigation.
On merit:
29. As aforestated, the names of the petitioners had come at several places indicating their involvement in giving the certificate of more Fe. content, which was required by China. When, in fact, on inspection by the Chinese authority in China, it was found that the Fe. content was much less. How the certificates were issued, whether it was in the knowledge of the complainant; or whether the involvement of the petitioners was there or not, it is the subject matter of the investigation.
30. It is worthwhile to state that the petitioners have not participated in the investigation. According to the petitioners, the petitioners had appeared before the Mumbai police as is evident from the letters Annexure-P/18 & P/20, in respect of the first petitioner & second petitioner, respectively. The same are in respect of MECR No. 8/2012.
31. On perusal, it is found that this is not a participation in the investigation, but this was a simple letter addressed to the Police Station. The first petitioner after having appeared before the Court in respect of crime No. 283/2011 remained absent through out and has been declared as absconder. In such a case the petitioners may make a position clear in the investigation and, as such, it was necessary to cooperate with the investigation, pursuant to the complaint.
32. The contention of the State counsel that the petitioners may participate in the investigation and if it is found that there is nothing against them they may get a clean chit during the investigation itself clearly indicates that there is no malice. If during investigation, it is found that some of the alleged accused had no role, the investigating authority can take a proper decision in respect of filing challan (charge sheet). The alleged offences recorded in FIR can be altered after investigation.
33. The law is well settled in this regard that if FIR is taken at their face value and accepted in their entirety and do not prima facie constitute any offence or make out a case against the accused, the FIR may be quashed. In the case on hand, the allegations made in the FIR make out a case for investigation. This is also not a case where after conclusion of evidence, the entire facts do not disclose the commission of any offence and make out a case against the accused.
34. It is further well settled principle of law that the High Court while considering the petition for quashing of FIR should not embark upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. The allegations and the counter allegations can be examined only by the investigating authority before filing of challan/charge sheet and in the trial, thereafter.
35. In the case on hand, no challan could be filed against the petitioners as they failed to cooperate with the investigation and avoided it. However, the challan has been filed in respect of other alleged accused persons.
36. Shri Choudhary urged that the High Court of Karnataka, Circuit Bench at Dharwad in W.P. No. 64368-64375 of 2012 had made an observation in respect of the Raipur Police. The said contention of Shri Choudhary is not correct, as the observation was made by the learned Single Bench on assumption, not on factual aspects.
37. In
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.
38. In
39. In
24. The position of law, in this regard, has been very succinctly stated in the abovesaid case that at the stage of quashing a first information report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein....
40. The Supreme Court in
22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.
31. However, a case for proceeding against the respondents u/s 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case u/s 406 may be found to have been made out. It may be true that even in a proceeding u/s 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed.
32. We cannot also lose sight of the fact that the respondents were keeping watch over the matter. As soon as a first information report was lodged, a notice was immediately sent. A quashing application was filed within a few days for the lodging of the first information report. The investigation was not allowed to take place at all. Whereas it would have been the duty of the Court to uphold and/or to protect the personal liberty of an accused in a case, but where the first information report prima facie discloses commission of a cognizable offence, the High Court, ordinarily, shall not have interfered with investigation thereof by the statutory authority. We, therefore, allow the appeal in part.
41. In
18. In G. Sagar Suri v. State of U.P. this Court had opined as follows: (SCC p.643, para 8)
8. Jurisdiction u/s 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a 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 down certain principles on the basis of which the High Court is to exercise its jurisdiction u/s 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.
42. The Supreme Court in
16. Before examining the merits of the rival submissions, it would be appropriate to briefly notice the scope and ambit of the jurisdiction of the High Court u/s 482 of the Code. It needs little emphasis that although the jurisdiction of the High Court under the said provision is very wide but it is not unbridled. The High Court is required to exercise its inherent powers u/s 482 of the Code sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice and to prevent abuse of the process of court. One of the situations when the High Court would be justified in invoking its powers is where the allegations in the first information report or the complaint, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged. (See R.P. Kapur v. State of Punjab and Rupan Deol Bajaj v. Kanwar Pal Singh Gill.)
43. This Court in M/s. Matoshri Developers & Another v. State of Chhattisgarh & Others WP (Cr.) No. 812 of 2011 (decided on 11.8.2011) observed as under:
27. Thus, prima facie offences have been made out for prosecuting the petitioners. This is not for this Court to examine the veracity or genuineness of the documents produced by the petitioners in support of the contentions advanced by Shri Tamaskar that they had not committed any offence. This is for the trial Court to consider the evidence of the petitioner No. 1 and its partners along with others after proper trial and come to a particular conclusion.
44. For the reasons mentioned hereinabove and applying the well settled principles of law to the facts of the present cases, there is no merit in the petitions and, as such, both the writ petitions are liable to be and are hereby dismissed. There shall be no order as to costs.
