Anil Menon vs State of H.P. and Others

Kuldip Singh, J.—This petition under Article 226 of the Constitution of India has been filed for quashing FIR No. 157/09 dated 30.6.2010 registered at Police Station, Solan u/s 420 IPC, with further prayer that a thorough inquiry be got conducted into the matter to find out the alleged misuse of power by the Judicial Officer, if any.

The case of the petitioner as emerges from the petition is that he is working as Manager Incharge, Stores and dispatch of Tele Brands ( India) Private Limited Company ( for short Company). The company sells various products and for selling such products, the company advertises through various TV channels. The company has more than 100 franchisees throughout India and the company has its own show rooms in almost all big cities of the country.

The company has its toll free numbers for placing orders of various products as are advertised and after getting the orders, the company sends such products to its customers. In June, 2009, one Mrs. Mukta Sharma, through credit card, placed an order for one Nicer Dicer (vegetable cutter) worth Rs. 2,000/- plus postal charges. On receiving such order, the company on 25.6.2009 had despatched the Nicer Dicer through post. On 30.6.2009 the customer gave a call which was attended by Customer Support Executive Mrs. Pushpa. It was informed that parcel received by Mrs. Mukta Sharma contained some magazines and books instead of the product. The customer was immediately told to send back the parcel and it was further promised that the company would be sending a new parcel alongwith the product.

The company was waiting for the return of the parcel from Mrs. Mukta Sharma but, till 30.8.2009 the company did not receive any material from the customer. While so, on 30.8.2009 Sub Inspector Mr. Lajja Ram from Police Station, Solan alongwith two police constables came to the office of the company and it was told that the customer had filed a complaint and the police had registered a criminal case. The police party was explained the whole process and the procedure and they were convinced that there was no dishonest intention for the company and the pilferage had taken place in the transit only. In order to solve the problem, the company handed over one Nicer Dicer to Sub Inspector Mr. Lajja Ram. The company had also sent another Nicer Dicer which was delivered to Mrs. Mukta Sharma on 15.9.2009. As per information of the petitioner, the police had prepared a cancellation report with regard to the FIR lodged at Police Station, Solan.

On 29.6.2010 Sub Inspector Mr. Lajja Ram again came alongwith two police constables in the office of the company and informed that some further investigation was required to be done in the case and requested the petitioner to accompany him to Police Station, Solan. Accordingly, petitioner accompanied the police party headed by Sub Inspector Mr. Lajja Ram and reached Solan in the intervening night of 1-2 July, 2010. The petitioner was produced before Chief Judicial Magistrate, Solan on 6.7.2010 after keeping him under illegal detention for about six days. An application u/s 437 Cr.P.C. for grant of bail was moved on behalf of the petitioner. The learned Chief Judicial Magistrate remanded the petitioner to judicial custody till 17.7.2010. On 14.7.2010 the prosecution had filed another application for police remand which was dismissed on the same day by the learned Chief Judicial Magistrate. The prosecution was given time to file reply to the bail application and the bail was granted to the petitioner on 20.7.2010.

It is the case of the petitioner that FIR No. 157/09 and other material collected by the police do not disclose commission of any offence much less u/s 420 IPC by the petitioner or the company. The petitioner has reasons to believe that everything has been done at the behest of the then learned Addl. District and Sessions Judge who happens to be the father of the complainant, the 4th respondent herein. The petitioner remained in illegal detention for a period of six days for the sake of about Rs. 2000/-, he had to spend around 15 days in judicial custody. The FIR would show that one witness in the FIR is the Judicial Magistrate and second witness is District Attorney, Solan. The petitioner and his company have been implicated for an offence which they have never committed.

The respondent No. 4 has filed reply and has taken the preliminary objection of maintainability in view of alternative remedy available to the petitioner. It has also been alleged that the disputed questions of facts are involved in the petition and therefore, petition cannot be decided. On merits, it has been denied that order for Nicer Dicer was placed by Mrs. Mukta Sharma. He has asserted that order for Nicer Dicer was placed by him. The respondent No. 4 has however, stated that Mrs. Mukta Sharma is his mother. At the time of placing of the order bank account number of credit card was disclosed to the person attending the call. The respondent No. 4 was told that firstly the product would be despatched and on its receipt the respondent No. 4 would provide the password of the credit account number. However, an amount of Rs. 2094/- was deducted from the credit account much prior to the sending of the product i.e. on 20.6.2009 by accessing the Pin Number of the Account Number without any authority of respondent No. 4, who did not disclose the same to the petitioner or his company. The parcel which was received by respondent No. 4 did not contain Nicer Dicer, but some old magazines were placed in the parcel. On the complaint made to the petitioner and his company, instead of sending the product, they misbehaved with respondent No. 4 on telephone. In these circumstances, the complaint was lodged with the police. The petitioner or his company never took any sincere steps to send the parcel. It is only after four months after the intervention of the police that the petitioner and his company had sent the parcel. The respondent No. 4 has alleged that petitioner and his company had won over the Investigation Officer, who did not take sincere steps to arrest the real culprits, the main accused owner or Director of the company have not been arrested till date.

Once the FIR has been registered it can be cancelled as per procedure prescribed in the Code of Criminal Procedure. The police has prepared the cancellation report without any basis. It has been denied that no case u/s 420 IPC is made out against the petitioner. It has been alleged that false and baseless allegations have been levelled against respondent No. 4 just because his father is a Judicial Officer, merely to sensationalize the issue. The respondent No. 4 by lodging an FIR merely asserted his legal rights. The petitioner and his company have illegally withdrawn the amount from the account; hence prima facie case u/s 420 IPC is made out against the petitioner and his company. The respondent No. 4 has prayed for dismissal of the petition.

We have heard learned Counsel for the parties. The learned Counsel for the petitioner has reiterated the stand taken by the petitioner in the petition whereas learned Counsel for respondent No. 4 has submitted that FIR No. 157/09 and other material collected on record disclose commission of offence committed by the petitioner and his company and as such FIR No. 157/09 cannot be quashed at this stage. The petitioner has got alternative remedy at appropriate stage. The learned Counsel for respondent No. 4 has prayed for dismissal of the petition

We have called for the record of the investigation. It transpires that the police had prepared an untraced report on 13.5.2010 in FIR No. 157/09. On 2.6.2010 complainant-respondent No. 4 had written letter to respondent No. 2 requesting him that intimation may be given as to what action, if any, has been taken in FIR No. 157/09 and if no action so far has been taken, the matter be proceeded further as the Investigating Officer might have connived with the accused. The respondent No. 2 had asked the explanation of Mr. Lajja Ram Sub Inspector vide letter dated 2.6.2010. In the letter dated 2.6.2010 it has been stated that after perusal of zimnies pertaining to FIR No. 157/09 dated 30.6.2009, it was found that investigation was conducted by Mr. Lajja Ram and he had gone to Bombay on 29.8.2009 for investigation but nothing was done at Bombay. No action was taken against owner/employees of the company which has put question mark on the working of the police. The explanation of Mr. Lajja Ram was called for this purpose within three days. He was directed to appear in person alongwith file on 4.6.2010 before respondent No. 2.

The Rapat roznamcha dated 4.6.2010, Police Post, Kuthar, Police Station; Kasauli indicates that Mr. Lajja Ram reported at about 8 p.m. at Police Post after meeting the Superintendent of Police, Solan. He was directed by Superintendent of Police to go to Mumbai for investigation in FIR No. 157/09 after 25/26.6.2010. The order dated 8.9.2010, in the petition indicates that Mr. Lajja Ram was initially entrusted with the investigation. He was transferred from Solan in September, 2009. He had gone to Bombay in June, 2010 as per notice served upon him by Mr. V.K. Dhawan, Superintendent of Police.

The FIR No. 157/09 is registered u/s 420 IPC. The Section 420 IPC reads as under:

Cheating and dishonestly inducing delivery of property-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The Section 415 IPC reads as follows:

Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat

Ordinarily the superior courts do not interfere in the process of investigation and trial. Such interventions are exception only. What and which are those exceptional situations, we may examine.

In one of the early decisions, in Sunder Singh and Ors. v. King-Emperor of India 1904 (40) PR 25, it has been held as follows:

...The offence of cheating, as defined in Section 415, Indian Penal Code, however requires that the person made to deliver property, &c, or to do or omit to do anything which causes or is likely to cause him damage in body, mind, reputation or property, and which he would not otherwise have done, should be the person who has been deceived. The offence is not committed if a third party, on whom no deception has been practised, sustains pecuniary loss in consequence of the accused''s act....

In Haridaya Ranjan Prasad Verma and Ors. v.State of Bihar and Anr. (2000) 4 SCC 168 it has been held as follows:

In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.

In V.Y. Jose and Another Vs. State of Gujarat and Another, it has been held as follows:

There exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction u/s 482 of the Code of Criminal Procedure

It is in that sense, a distinction between a mere breach of contract and the offence of cheating should be borne in mind. We, having regard to the facts and circumstances of the case, are of the opinion that no case has been made out against the appellant so as to hold that he should face the criminal trial.

In Md. Ibrahim and Others Vs. State of Bihar and Another, in paragraphs 21, 22 it has been held as follows:

It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.

As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.

In paragraph-23 the Supreme Court has clarified as follows:

When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.

In Dalip Kaur and Others Vs. Jagnar Singh and Another, it has been held as follows:

The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in ` 405 of the Penal Code. (See Ajay Mitra v. State of M.P.).

In S.P. Gupta v. Ashutosh Gupta (2010) 6 SCC 562 it has been held as follows:

It is true, as pointed out by Mr. Lekhi, that Section 415 IPC, which defines the offence of cheating, provides in Illustration(g) as follows:

415.(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery, A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

However, the aforesaid provision clearly indicates that if at the very initiation of the negotiations it was evident that there was no intention to cheat, the dispute would be of a civil nature. But such a conclusion would depend on the evidence to be led at the time of trial.

Inherent power of High Court for quashing proceedings has been dealt with by the Supreme Court in R.P. Kapur Vs. The State of Punjab, which reads as follows:

It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction u/s 561A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court''s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court u/s 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point.

In State of Haryana and others Vs. Ch. Bhajan Lal and others, in paragarh 102 of the judgment it has been held as follows:

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 noncognizable 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 malafide 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.

The learned Counsel for respondent No. 4 has relied State of H.P. and Ors. v. Gujrat Ambuja Cement Ltd. and Anr. (2005) 6 SCC 499 on the point of alternative remedy wherein it has been held that the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. In U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, the same principle has been reiterated by the Supreme Court.

In Devender Kumar Singla Vs. Baldev Krishan Singla, the Supreme Court has held as follows:

As was observed by this Court in Shivanarayan Kabra v. State of madras it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things, it is not always possible to prove dishonest intention by any direct evidence. It can be proved by a number of circumstances from which a reasonable inference can be drawn.

In Indian Oil Corporation Vs. NEPC India Ltd. and Others, the Supreme Court has held as follows:

The essential ingredients of the offence of "cheating" are (i) deception of a person either by making a false or misleading representation or by other action or omission, (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

The Supreme Court has further observed as follows:

In Hridaya Ranjan Prasad Verma this Court held: SCC pp.176-77 paras 14-15)

On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is, the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.

The Supreme Court in R. Kalyani Vs. Janak C. Mehta and Others, has observed as follows:

However, Monica Kumar (Dr.) v. State of U.P. held: (SCC p. 798, para 36 )

36.... The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage.

The Supreme Court has further held:

It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.

The learned Counsel for respondent No. 4 has also relied Haridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr. (2000) 4 SCC 168 and State of Haryana and others Vs. Ch. Bhajan Lal and others, noticed above.

In K. Ashoka Vs. N.L. Chandrashekar and Others, the Supreme Court has held as follows:

Whether the allegations made in the complaint petition are correct or not have to be considered during trial. The High Court in its impugned judgment proceeded inter alia on the premise that the appellant has no locus standi. It may be true that Gopal and Hanumanthe Gowda had not been impleaded as accused but that by itself may be a ground for quashing the order of cognizance taken against the respondents. If the role played by them in regard to that part of the conspiracy is only to make Gopal a member and got the land allotted in his name by way of camouflage, the appellant as a member of the Society had a locus standi to file a complaint.

The Supreme Court further held as follows:

The opinion of the High Court that the averments made in the complaint petition are imaginary is not based on any material. Even assuming that the complainant had a score to settle against the accused, the same by itself may not be a ground to quash the entire criminal proceedings particularly in view of the fact that at least a prima facie case has been established in view of the report of the Registrar.

Now coming to facts of the case. The statement u/s 154 Cr.P.C. of Mr. Abhinay Sharma, respondent No. 4 was recorded on 30.6.2009 at 7.15 p.m. He has stated that on 17th/18th June, 2009 he had seen on television an advertisement of Nicer Dicer of Tele Brands Company. He from his residence rang up toll free number and placed an order of Nicer Dicer. On asking of the person who attended the call, he gave credit card number of Bank of India of his father. He told that he was not aware of password. He was told that Nicer Dicer would be delivered to him by post. On this he gave address of his mother Mrs. Mukta Sharma for delivering Nicer Dicer. He was assured that Nicer Dicer would be delivered within a few days. He would be contacted on telephone before delivery. The receipt of Nicer Dicer and password of credit card will have to be given, the company would withdraw the amount from the bank. On 30.6.2009 one parcel was received. The parcel was opened at about 1.45 p.m. at the residence of his father in presence of Mr. C.B. Acharya District Attorney, Solan and Mr. Nitin Mittal, Sub Judge, who had been invited by his father for lunch. On opening the parcel instead of Nicer Dicer three old magazines, one book of financial highlight and a bill of company amounting to Rs. 2094/- were found. There was no Nicer Dicer in the parcel. The company was immediately contacted on telephone but no satisfactory reply was received. It appears the company instead of Nicer dicer had sent waste papers and from bank account without password an amount of Rs. 2094/- was withdrawn. Later on, his father contacted customer service of bank at Bombay and it was found that amount was withdrawn on 20.6.2009. It was stated that the company has cheated by advertising on television and by withdrawing amount and not sending Nicer Dicer.

On the basis of statement u/s 154 Cr.P.C. of respondent No. 4, FIR No. 157/09 was registered at Police Station, Solan u/s 420 IPC. The statement of Mr. C.B. Acharya u/s 161 Cr.P.C. was recorded. He has stated that he and Sub Judge Mr. Nitin Mittal were invited for lunch by Addl. District Judge at about 1.45 p.m. Mr. Abhinay Sharma opened the parcel and three old magazines were found in the parcel alongwith bill of Rs. 2094/-. The police took into possession the open parcel.

Mr. Nitin Mittal has stated that he and District Attorney Mr. C.B. Acharya were invited by Mr. L.R. Sharma, Addl. District Judge at his residence for lunch. A sealed parcel was received there. It was opened and three old magazines were found in the parcel alongwith bill amounting to Rs. 2094/-. The open parcel was taken into possession by the police.

Mr. L.R. Sharma, in his statement u/s 161 Cr.P.C. while supporting the statement of his son Mr. Abhinay Sharma has stated that on 30.6.2009 one parcel was received. At the time of opening of the parcel at his residence Mr. Nitin Mittal and Mr. C.B. Acharya were present at about 1.45 p.m. who were called at his official residence. On opening the parcel three old magazines, a bill amounting to Rs. 2094/- were found. He talked on telephone but no satisfactory answer was given. The Tele Brands Company without password had withdrawn an amount of Rs. 2094/from his account and instead of Nicer Dicer the company had sent old magazines and thus cheated his son.

Bhajan Singh in his statement u/s 161 Cr.P.C. recorded on 15.7.2010 has stated that on 30.6.2009 he had delivered a parcel of Tele Brands India Private Limited Company addressed to Mrs. Mukta Sharma at her address in sealed condition. He did not tamper with the parcel when it remained with him.

It is significant to note that as per investigating agency the parcel was delivered to the addressee and was opened at about 1.45 p.m. on 30.6.2009. The zimni No. 1 starts at 6.15 p.m. on 30.6.2009 with serial No. 0042252. In zimni No. 1 it has been stated that the facts must be clear from the FIR. It also states that statement of Mr. Abhinay Sharma u/s 154 Cr.P.C. has been recorded by Mr. Lajja Ram author of zimni No. 1. In fact in zimni No. 1 statement of Mr. Abhinay Sharma u/s 154 Cr.P.C. has been reproduced. The zimni No. 1 refers to recording of statements u/s 161 Cr.P.C. of Mr. C.B. Acharya, District Attorney, Mr. Nitin Mittal and Mr. L.R. Sharma. It is significant to note that statement of Mr. Abhinay Sharma u/s 154 Cr.P.C. was recorded; thereafter Mr. Lajja Ram put his endorsement on the statement u/s 154 Cr.P.C. and the said statement was sent through Mr. Surinder Kumar constable No. 40 for registration of case as Mr. Lajja Ram was busy on the spot for investigation. Mr. Lajja Ram ASI signed the statement u/s 154 Cr.P.C. of Mr. Abhinay Sharma at 7.15 p.m. The FIR was recorded at 7.30 p.m. on 30.6.2009.

The zimnies No. 1 to 29 were written on zimni papers as follows:

Zimni Sr. No. of Zimni. Sr. No. of Zimni Sr. No. of No. Zimni paper No. Zimni paper No. Zimni paper

0042252 11. 0307936 21. 0307944 2. 0042261 12. 0307937 22. 0141774 3. 0307999 13. 0307938 23. 0307946 4. 0307995 14. 0307939 24. 0141775 5. 15960 15. 0307941 24-A 0307947 6. 0430092 16. 0307940 25. 0141776 7. 0430093 17. 0307942 25-A 0307948 8. 0430095 18. 0141771 26. 0307945 9. 0307959 19. 0141772 27. 0307949 10. 0307935 20. 0307943 28. 0307950 29. 0307951

The apprehension of petitioner regarding fairness of investigation is not wholly baseless or unfounded. The FIR was registered on the basis of statement of complainant u/s 154 Cr.P.C. recorded at 7.15 p.m. on 30.6.2009. The zimni No. 1 which was written at 6.15 p.m. on 30.6.2009 indicates that at that time of statement u/s 154 Cr.P.C., FIR and statements u/s 161 Cr.P.C. of Mr. C.B. Acharya, Mr. Nitin Mittal and Mr. L.R. Sharma had already been recorded. It is un-explainable how, when statement u/s 154 Cr.P.C. was recorded at 7.15 p.m. and FIR was recorded on 7.30 p.m. on 30.6.2009, how statements u/s 161 Cr.P.C. of Mr. C.B. Acharya, Mr. Nitin Mittal and Mr. L.R. Sharma could be recorded at 6.15 p.m. on 30.6.2009. The Investigating Officer had visited Mumbai on 30.8.2009 for purposes of investigation in the case. The police prepared untraced report on 13.5.2010. On 2.6.2010 complainant in writing requested respondent No. 2 to give him intimation regarding the investigation and alleged that the Investigating Officer might have connived with the accused. The respondent No. 2 thereafter asked the explanation of Investigating Officer Mr. Lajja Ram and asked him to go to Mumbai for further investigation. Mr. Lajja Ram as directed went to Mumbai alongwith two constables and brought petitioner to Solan. The allegation of petitioner is that he was brought to Solan in the intervening night of 1/2.7.2010. The petitioner was produced before Chief Judicial Magistrate, Solan on 6.7.2010, he was remanded to judicial custody. A bail application was filed on behalf of petitioner. On 6.7.2010 the petitioner was remanded to judicial custody till 17.7.2010 and his application for bail was fixed on 13.7.2010. The matter was then posted to 17th , then to 19th and only on 20th order was passed. The police on 14.7.2010 had requested for police remand of petitioner which was rejected on 14.7.2010 itself. The petitioner was released on bail on 20.7.2010. The bail application of petitioner filed before Chief Judicial Magistrate could have been decided much earlier instead of on 20.7.2010 keeping in view that the matter pertains to local Police Station, Solan and since even according to the police there was no recovery to be effected from the petitioner and since the investigation had also been completed except for the result of a seal from FSL Junga. There is strange coincidence that on a working day on 30.6.2009 when parcel was allegedly delivered at about 1.45 p.m. at the residence of Mr. L.R. Sharma, Mr. C.B. Acharya, District Attorney and Mr. Nitin Mittal, Sub Judge, Solan were at the residence of Mr. L.R. Sharma for lunch on the invitation of Mr. L.R. Sharma. The order dated 8.9.2010 in the petition reveals that as per Mr. Lajja Ram on 30.6.2009 Mr. C.B. Acharya and Mr. Nitin Mittal were present at the residence of Mr. L.R. Sharma on 30.6.2009 between 5 p.m. and 6 p.m. when Mr. Lajja Ram had gone to the residence of Mr. L.R. Sharma as called by him. It is also stated that it is Mr. Sharma who handed over the parcel to him. There is also a reference by the I.O. that the further investigation is on the basis of the direction also of the Distt. Attorney. The zimnies papers used in the case are not in ascending or descending order in sequence. The investigation again started after 2.6.2010 even though untraced report in the case was earlier prepared on 13.5.2010. This creates serious dent in the prosecution case.

There is no inflexible rule or formula for quashing of FIR. The Supreme Court in ''R.P. Kapur'' and ''Bhajan Lal'' supra has laid down that power u/s 482 Cr.P.C. or extraordinary power under Article 226 can be exercised for quashing FIR. In these circumstances material collected by Investigating Agency during investigation of FIR No. 157/09 becomes relevant in order to appreciate rival submissions made from either side. The respondent No. 4 complainant in his statement u/s 154 Cr.P.C. has not stated that he gave the credit card number of his father to petitioner or Tele Brands (India) Private Limited Company with the consent, approval, authority of his father nor Mr. L.R. Sharma has stated in his statement u/s 161 Cr.P.C. that the order for Nicer Dicer was placed by his son respondent No. 4 with his consent, approval. He has also not stated that he agreed to pay from his account for the product ordered by his son. Mr. L.R. Sharma has stated that his son has been cheated. Mr. L.R. Sharma has not stated that he was cheated. Therefore, taking the material collected by the Investigating Agency at its face value no case u/s 420 IPC is made out against the petitioner or his company. In fact the product Nicer Dicer was addressed to Mrs. Mukta Sharma the mother of respondent No. 4. Mrs. Mukta Sharma has raised no grievance against alleged defective delivery and there is nothing on evidence that the 4th respondent had placed the order.

There is ring of truth in the stand of petitioner that when grievance was raised regarding non-supply of Nicer Dicer from the complainant side on telephone, request was made on behalf of the company to complainant side to send back the defective parcel so that product can be replaced. It is admitted case of the parties that another piece of Nicer Dicer was supplied to the complainant party around 15.9.2009 despatched through courier This indicates that the petitioner or the company had no intention right from very beginning not to supply Nicer Dicer and in its place to supply old magazines etc. The subsequent conduct in a given situation becomes relevant in order to ascertain initial intention. In the present case the conduct of the petitioner and company to send another Nicer Dicer to complainant party and the acceptance of the Nicer Dicer by the complainant party has established that there was no intention of petitioner and his company right from very beginning to cheat complainant party. The acceptance of Nicer Dicer by complainant party sent by petitioner and his company later on indicates that complainant party was satisfied with the conduct of petitioner and his company, otherwise complainant party would not have accepted another piece of Nicer dicer which was sent by the company. Apparently the power of investigation and the process of Court is misused for a veiled object. The innocent in the process is subject to persecution and humiliation in a wholly untenable prosecution. Hence, ends of justice requires the intervention of this Court. Thus, on the basis of material on record, no case u/s 420 IPC is made out against the petitioner or his company on the basis of FIR No. 157/09. No purpose will be served by filing report u/s 173 IPC on the basis of investigation conducted in FIR No. 157/09. There is no material at all to establish that the petitioner or for that matter the company had sent the old magazines in the place of Nicer Dicer. Hence, FIR No. 157/09 registered at Police Station, Solan u/s 420 IPC is liable to be quashed.

The petitioner has raised grievance that he has been harassed by the police under the shelter of FIR No. 157/09. It is the case of the petitioner that FIR No. 157/09 registered on the complaint of Mr. Abhinay Sharma who is son of Senior Judicial Officer and therefore, he has reasons to suspect that at the instance of said Senior Judicial Officer the petitioner was harassed. He had to remain in jail for about 15 days for offence which he had not committed.

We have already held that apprehension of petitioner regarding fairness of investigation is not wholly unfounded. The case is fit to be enquired on administrative side regarding the involvement and conduct of Judicial Officers. The Home Secretary to the State shall conduct an enquiry on the conduct of the District Attorney and the police officers concerned.

In view of above, the petition is allowed, FIR No. 157/09 registered at Police Station, Solan u/s 420 IPC is quashed.