Ngangom And Others vs Gosaimayum Bubu Sharma

MV Muralidaran, J

[1] This Criminal Petition has been filed by the petitioners under Section 482 of Cr.P.C. seeking to quash the proceedings in Criminal(C) Case No. 157 of 2014 pending on the file of the learned Chief Judicial Magistrate, Imphal East.

[2] The respondent has filed Criminal (C) Case No. 157 of 2014 before the Learned Chief Judicial Magistrate, Imphal East under Section 190(1) of Cr.P.C. praying for cognizance of the offence against the petitioners under Section 420,406, 506 and 34 IPC alleging that, on 09.03.2002, the complainant along with one Thokchom Nandakumar Singh and the first petitioner had executed a Money Bond Agreement. As per the agreed terms and conditions of the Money Bond Agreement, the first petitioner agreed to pay a sum of Rs. 1,04,800/- to the complainant within 15.05.2002. On 15.03.2002, when the complainant went to the house of the petitioners and demanded money, they directed the complainant to come later. At that time, the complainant informed the petitioners that possible date may be fixed for payment without fail and in turn, the petitioners directed the complainant to come on 15.04.2002 at evening. On 15.04.2002 evening the complainant along with one of his friends went to the residence of the petitioners, but the petitioners were not found at their residence and the complainant waited for some time and came back without meeting the petitioners. Even thereafter, the complainant went to the house of the petitioners and demanded money on several dates but the petitioners have failed to repay even a singly rupee. Again on 10.08.2004 at about 7.00 A.M, the complainant along with one Khangjarekpam Shyam Kumar Singh went to the house of the petitioners and at that time the petitioners jointly said to the complainant by holding stick that they will not pay any amount at all and also directed the complainant to go away from the place or else the complainant will have to face dire consequences. Fearing over the threat, the complainant and his associate returned back. Thus, the complainant lodged a complaint before the learned Chief Judicial Magistrate, Imphal East stating that petitioners have committed the offence of cheating and dishonestly inducing delivery of property or alteration or destruction of a valuable security, criminal breach of trust in furtherance of the common intention which are punishable under Section 420, 406, 506 and 34 IPC.

[3] The learned Chief Judicial Magistrate, Imphal East, by an order dated 26.09.2014, took cognizance of the offence under Section 420, 406, 506 and 34 IPC and issued warrant of arrest fixing the date of further proceeding on 13.10.2014. Challenging the same, the petitioners have filed the present petition seeking to quash the criminal proceedings in Criminal (C) No. 157 of 2014.

[4] I heard Mr. S. Samarjeet, learned counsel for the petitioners and none appears for the respondent/complainant.

[5] Assailing the order of the learned Chief Judicial Magistrate, Imphal East dated 26.09.2014 in taking cognizance of the complainant, the learned counsel for the petitioners submitted that even the allegations are taken at their face value and accepted in their entirety do not constitute the offence punishable under Section 420,406, 506 and 34 IPC or make out a case against the petitioners. He would submit that the liability, if any, arose by breach of Money Bond Agreement is civil in nature and not criminal and as such the entire proceedings is liable to be quashed. The learned counsel further submitted that assuming, but not admitting, that the offence punishable under Section 406 and 506 IPC has been made out against the petitioners, cognizance cannot be taken up as the same is barred by Section 468 of Cr.P.C. Finally, the learned counsel argued that the order of the learned Chief Judicial Magistrate impugned in the present petition is contrary to the letter and spirit of the intention for which the Legislature had enacted the Indian Penal Code and prayed for quashing the entire proceedings in Criminal (C) Case No. 157 of 2014.

[6] On the other hand, by relying upon the averments set out in the complaint, the learned counsel for the respondent submitted that the act of the petitioners clearly establishes that they have done criminal prosecution. He would submit that the learned Chief Judicial Magistrate, after satisfying the grounds, has taken the cognizance against the petitioners and therefore, there is no necessity to interfere with the impugned order and prayed for dismissal of the petition.

[7] I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

[8] The petitioners are husband and wife. According to the respondent/complainant on 10.08.2004 at about 7.A.M, he and one Khangjarekpam Shyam Singh went to the house of the petitioners to collect the amount due under the Money Bond Agreement and at that time the petitioners threatened the respondent with dire consequences. In the complaint itself, the respondent stated the date of occurrence as 10.08.2004. There was no satisfactory explanation for the inordinate delay in lodging the complaint during 2014 for the occurrence dated 10.08.2004 and also there is no whisper about the date of occurrence mentioned by the learned Chief Judicial Magistrate in the order impugned in the present petition.

[9] On a perusal of the complaint, it is seen that before the date of occurrence, the respondent and his associate visited the residence of the petitioners twice and demanded to repay the alleged due and the two dates mentioned are 15.03.2002 and 15.04.2002. In paragraph 6 of the complaint, the respondent stated as under:

"That on 10.08.2004 at about 7.00 a.m. complainant along with one Khangjarekpam Shyam Kumar Singh went to the house of accused persons No.1 at the gate of accused, then the accused persons were came out towards their gate and said to complainant why you are shouted No. 1 for bringing stick or a dao soon."

Thus, it is clear that the date of occurrence, according to the respondent is on 10.08.2004. As stated supra, for the occurrence dated 10.08.2004, the respondent lodged a private complaint after 10 years and the learned Chief Judicial Magistrate without looking into the said factual aspect has taken cognizance without proper explanation.

[10] Cases where there is abnormal delay/laches in initiating criminal prosecution, preliminary enquiry is to be conducted. In the case on hand, admittedly, no preliminary enquiry was conducted. Therefore, due to long delay, the instant criminal proceedings initiated against the petitioners is liable to be quashed.

[11] Secondly, before taking cognizance the learned Chief Judicial Magistrate has failed to take note of the subject matter of dispute, which is purely civil in nature arising out of breach of the alleged contract executed between the respondent and the petitioners. Mere breach of the terms and conditions stated in the Money Bond Agreement cannot give rise to a criminal prosecution.

[12] It is to be pointed out that the learned Chief Judicial Magistrate should have confirmed that whether the subject matter is of civil nature arising out of breach of contract or the complainant has informed the police regarding the criminal intimidation and the police in turn has failed to take up the case or the complainant simply without any basis made the allegation against the petitioners. Thus, on the face of the allegations set out in the complaint, it is clear that the complaint made by the respondent/complainant is only with the motive to harass and torture the petitioners.

[13] It is settled that criminal proceedings should not be encouraged, when it is found to be malafide or otherwise an abuse of the process of the Court. This is a fit case to hold that continuation of the criminal proceedings initiated against the petitioners is clearly abuse of the process of the Court.

[14] It is also settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 Cr.P.C. to quash the order passed by the Learned Magistrate taking cognizance of the offence. I am of the view that the petitioners have established the case that a civil dispute has been converted into criminal prosecution. Moreover, without looking into the averments of the complaint and/or analyzing the veracity of the complaint, the learned Chief Judicial Magistrate has taken cognizance and issued warrant of arrest to the petitioners and the same is liable to be interfered with.

[15] In the result, the Criminal Petition filed by the petitioner is allowed and the entire criminal proceedings in Criminal (C) Case No. 157 of 2014 pending on the file of the learned Chief Judicial Magistrate, Imphal East is quashed as far as the petitioners are concerned.