Harwinder Sethi vs State of Punjab and another

Manisha Batra, J. (Oral).

The present petition has been filed by the petitioner under Section 482 of Code of Criminal Procedure (for short 'Cr.P.C.') seeking quashing of FIR No.39 dated 21.04.2023, registered under Section 420 of IPC (offence under Section 201 of IPC was added lateron), at Police Station D-Division, Amritsar, District Amritsar along with all the subsequent proceedings emanating therefrom.

Brief facts of the case relevant for the disposal of the present petition are that the aforementioned FIR was registered on the basis of a written complaint submitted by complainant Gaurav Handa, alleging therein that he had been doing the business of sale of gold ornaments. The petitioner used to get prepared gold ornaments from him from the last several years. During the Covid period, he had purchased gold ornaments weighing 833 grams from him. However, he had neither made payment of the same nor returned his gold, thereby causing wrongful loss of money and with intent to cheat him. As such, he prayed for taking action against the petitioner.

After registration of the FIR, investigation proceedings were initiated. The petitioner was joined into investigation, which now stands completed. Challan stands presented against him.

It is argued by learned counsel for the petitioner that he has been implicated in this case totally on false and baseless allegations. He is a close relative of the complainant. There is delay of about 05 years in lodging of the FIR which has not at all been explained. The story narrated by the respondent/complainant is totally improbable and untrustworthy. There is no documentary evidence on record to connect the petitioner with the allegations. The case rests only on oral allegations of the respondent/complainant. The ingredients for commission of offences punishable under Sections 420 and 201 of IPC have not at all been made out as against him. The dispute between the parties is of civil nature which has been given a criminal colour. Infact, the complainant himself is a man of criminal antecedents and has involved him in this case as a counter-blast to an FIR No.308, dated 28.07.2019, registered at Police Station Ambala City on a complaint of brother in law of the petitioner and on account of the fact that in a compromise which was arrived at in the aforementioned FIR, the petitioner was a witness to his brother-in-law i.e. the complainant of that case. The allegations in the FIR even if taken at there face value do not constitute any case as against the petitioner. The prosecution of the petitioner would be nothing but misuse of process of law. Therefore, it is urged that the FIR in question and the subsequent proceedings arising therefrom are liable to be quashed qua him.

Status report has been filed by the respondent-State and reply on behalf of respondent No.2/complainant has been filed. Learned State counsel assisted by learned counsel for the complainant has argued that after conducting a thorough and proper investigation in the matter, challan has been filed against the petitioner. The allegations against him are specific , which do not make out any case for quashing of FIR. The complicity of the petitioner in the commission of subject offence has been duly established during the course of investigation and it is, therefore, stressed that the petition merits outright dismissal as the veracity of the allegations as levelled against the petitioner can be tested in the trial which has to take place before the trial Court.

This Court has heard the rival submissions.

At the outset, it will be profitable to look into the scope and ambit of the Court's power under Section 482 Cr.P.C. (which corresponds to Section 528 of BNSS, 2023) as spelt out in several judicial pronouncements of Hon'ble Supreme Court as well as different High Courts. The well settled proposition of law is that in exercise of inherent powers under Section 482 Cr.P.C., the High Court is not expected to analyze all the facts, which are to be placed before the High Court. The power conferred under this section is very specific and to secure the ends of justice or to prevent the abuse of process of Court or to make any such orders as may be necessary to give effect to any order under the Code, such power can be exercised to prevent abuse of process of Court. Hon'ble Supreme Court has drawn up some guidelines in some categories of cases by way of illustration to circumscribe the exercise of inherent power under Section 482 of Cr.P.C. to prevent abuse of process of any Court or to secure the ends of the justice or to give effect to an order of the Court. A celebrated pronouncement on this point is the case cited as State of Haryana vs. Bhajan Lal : (1992) SUPP 1 SCC 335, wherein several guidelines have been laid down. Some of them, which are relevant for the purpose of disposal of the present petition, are reproduced as under:

Reference can further be made to Gian Singh vs. State of Punjab : (2012) 10 SCC 303, wherein Hon'ble Supreme Court has observed that the power of the High Court in quashing a criminal complaint or an FIR, in exercise of its inherent jurisdiction, is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accordance with the guidelines engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. Reference can also be made to Padal Venkata Rama Reddy @ Ramu vs. Kovvuri Satyanarayana Reddy & Ors. : (2011) 12 SCC 437, wherein it was observed that the inherent power under Section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. Reliance can further be placed upon State of Andhra Pradesh vs. Gourishetty Mahesh and others : 2010 Criminal Law Journal 3844, wherein the Apex Court has propounded that while exercising jurisdiction under Section 482 Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained as that is the function of the trial Court.

It is also well settled proposition of law that the exercise of powers under Section 482 Cr.P.C. to quash proceedings is an exception and not a rule. In Monika Kumar vs. State of U.P. : (2006) 8 SCC 781, the Apex Court has propounded that the inherent jurisdiction under Section 482 Cr.P.C., though wide, is to be exercised sparingly, carefully and with caution, only when such exercise is justified by the test specifically laid down in the section itself and appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of this power. The inherent powers do not confer an arbitrary jurisdiction upon the High Court to act according to whims and caprice.

Reference can also be made to the authority cited as M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others : 2021 SCC OnLine SC 315, wherein Hon'ble Apex Court, after analyzing and examining several judicial precedents, had observed that the Courts should not thwart any investigation into the cognizable offences; criminal proceedings ought not to be scuttled at the initial stage; the power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases' and while examining the FIR/complaint, quashing which is sought, the Court should not embark upon inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. It was also observed that in cases where no cognizable offence or offence of any kind is disclosed in the first information report, the Court should not permit an investigation to go on.

Reference can also be made to CBI v. Aryan Singh : 2023 SCC OnLine SC 379, wherein Hon'ble Apex Court observed that while exercising powers under Section 482 of Cr.P.C., the Courts have a very limited jurisdiction and are only required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not". In Kaptan Singh vs. State of U.P. and others, 2021 SCC Online SC 580 and Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2020) 3 SCC (Criminal) 672, it was observed that the appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 of Cr.P.C. as this power is an exception and not a rule. Inherent jurisdiction under Section 482 of Cr.P.C. though wide is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is also well settled proposition of law that the Court is not required to go into the merits of the allegations and/or entering into the merits of the case as if it is exercising the appellate jurisdiction and/or conducting the trial, at the stage of exercising powers under Section 482 of Cr.P.C. In order to examine as to whether the factual contents of the FIR disclose any cognizable offence or not, the High Court cannot act like investigating agency nor can exercise the powers like an appellate court. The said question is required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring any proof.

On applying the above discussed position of law to the facts of the present case, it is revealed that the allegations levelled in the FIR, when taken at their face value, prima facie disclose the commission of cognizable offences and cannot be said to be so absurd or inherently improbable as to warrant interference by this Court in exercise of its inherent jurisdiction. The FIR specifically alleges that the petitioner had obtained gold ornaments weighing 833 grams from the complainant and neither returned the same nor paid the consideration thereof. After registration of the FIR, the matter was duly investigated and, finding sufficient material against the petitioner, the investigating agency has already presented the challan before the competent Court. At this stage, therefore, it cannot be said that the prosecution is without any factual foundation or is an abuse of the process of law.

The submissions advanced on behalf of the petitioner regarding delay in registration of the FIR, absence of documentary evidence, previous enmity between the parties, the civil nature of the dispute and false implication essentially constitute his defence. These are disputed questions of fact which require appreciation of evidence and examination of witnesses, an exercise which lies exclusively within the domain of the trial Court. While exercising jurisdiction under Section 482 Cr.P.C., this Court cannot undertake a meticulous examination of the evidentiary value of the material collected during investigation or adjudicate upon the correctness of the rival versions.

The contention that the dispute is purely civil in nature also does not persuade this Court to exercise its inherent jurisdiction. Merely because a transaction may give rise to civil consequences does not by itself exclude criminal liability if the allegations, on their plain reading, disclose the ingredients of the offences alleged. Whether the prosecution ultimately succeeds is a matter to be determined after the parties lead evidence before the trial Court and cannot be pre-judged in proceedings under Section 482 Cr.P.C. None of the parameters laid down by the Hon'ble Supreme Court in Bhajan Lal's case (supra) for quashing of criminal proceedings are attracted to the facts of the present case. Rather, the petitioner seeks an appreciation of disputed facts and an evaluation of his defence, which is wholly impermissible at this stage. This Court, therefore, finds no illegality, perversity or abuse of the process of law warranting interference. Consequently, the present petition, being devoid of merit, is hereby dismissed.