Nina Nagpal vs Judicial Magistrate-I and Another

R.K. Dash, J.—The Counter Exchange of India (hereinafter referred to as ''the O.T.C.E.I.''), New Delhi, a company incorporated under the Companies Act, 1956, is a recognised Stock Exchange within the meaning of Section 4 of the Security Contracts (Regulation) Act. It has been promoted by premier Government financial institutions like Unit Trust of India, Industrial Development Bank of India, Life Insurance Corporation of India and Ors. The O.T.C.E.I. through advertisement invited applications for selection of dealers with stipulation that the applicant shall meet the requirement as laid down in Clause (8) of the Securities Contracts (Regulation) Rules, 1957. It was further stated that the applicant should be required to pay application fee of rupees one lakh adjustable against one time non-refundable admission fee of rupee six lakhs for the successful applicant. In case of an unsuccessful applicant, application fee would be refunded to him after deduction of rupees five thousand towards processing fee, etc. Accordingly, Respondent No. 2 applied for the dealership and paid application fee of rupees one lac and appeared for computer based examination and on the basis of his performance in the examination, he was requested to appear for interview vide letter dated 12th June, 1995. Thereafter, the O.T.C.E.I. informed him of his being selected as a dealer and requested him to comply with the formalities as mentioned in the letter dated 24th August, 1995. The case of the Petitioner is that Respondent No. 2 agreeing to have dealership deposited one time non-refundable admission fee in addition to rupees one lac which was deposited along with the application. He also submitted an undertaking to comply with the O.T.C.E.I.''s rules and regulations. On acceptance of his dealership, the O.T.C.E.I. processed the documents and forwarded the same to the Securities and Exchange Board of India (in short ''the S.E.B.I.'') to register him as a dealer. The latter, however, returned the same asking the O.T.C.E.I. to resubmit along with the documents with regard to age and qualification of Respondent No. 2. The O.T.C.E.I. in turn vide its letter dated 11th March, 1996, sought the documents from Respondent No. 2 in support of his age and experience as required by the S.E.B.I. While the application of Respondent No. 2 was under consideration of the S.E.B.I., Respondent No. 2 addressed a letter dated 22nd August, 1996, to the O.T.C.E.I. stating therein that he had come to know from reliable source that he was not entitled to dealership on account of his having crossed the age of sixty five years and, therefore, the admission fee deposited by him be refunded to him. In response thereto, the O.T.C.E.I. informed him that upon acceptance of the dealership, it processed his documents and forwarded to the S.E.B.I. for registration of his name as a dealer. But upon review of the documents, S.E.B.I. sought for certain additional information with regard to his age and experience and in the meanwhile, he asked for refund of admission fee and, therefore, the fee being non-refundable, the O.T.C.E.I. cannot refund the same. In the above backdrop, Respondent No. 2, it is alleged, moved the Delhi High Court by filing a writ petition being Civil Misc. Writ Petition No. 1970 of 1997 seeking issuance of a writ of mandamus for release of the fees deposited with the O.T.C.E.I. together with compensation. While the said writ petition was pending adjudication, Respondent No. 2 moved a criminal complaint before the Judicial Magistrate, Ist Class, Meerut arraying the Petitioner and another as accused.

In short, the allegation of Respondent No. 2 is that in response to the advertisement for appointment of dealership, he made an application fulfilling all the conditions. Both Petitioner and the co-accused had assured him that within three months, he would get the letter of appointment of dealership. On their assurance, he deposited huge amount but in fact, they had no power of appointment of dealership on behalf of the S.E.B.I. It is further alleged that both Petitioner and co-accused hatched a conspiracy to cheat Respondent No. 2 by making a false promise that he would be appointed as a dealer and consequently, defrauded him of lacs of rupees.

Upon such complaint, the learned Magistrate examined Respondent No. 2 u/s 200, Cr. P.C. and recorded his statement. Thereafter, by order dated 16th March, 1998, he took cognizance of the offence under Sections 406 and 420, I.P.C. and issued summons to the Petitioner and the co-accused for their appearance. Aggrieved thereby, the Petitioner by filing this petition has prayed for quashing of the complaint as well as the summoning order.

Shri G. S. Chaturvedi, learned senior counsel appearing for the Petitioner contended that on the basis of the advertisement by the O.T.C.E.I. published in the newspapers inviting applications for dealership in different cities, Respondent No. 2 desirous to have dealership, made an application along with the deposit and there was no privy between the Petitioner and Respondent No. 2 and, therefore, the former cannot be attributed with any criminal liability as alleged by Respondent No. 2. He further urged that the prosecution allegation in entirety, even if taken on its face value as alleged in the complaint, does not make out any offence u/s 406/420, I.P.C. and in that view of the matter, the Court, in order to secure ends of justice, should interfere with the said order and quash the same in exercise of inherent power.

On facts, Sri Chaturvedi contended that the O.T.C.E.I. accepted dealership application of Respondent No. 2, processed all the documents and forwarded to the S.E.B.I. for registration, who in turn asked for the details regarding age and experience of Respondent No. 2 and accordingly, communication was made with Respondent No. 2 by letter dated 11.3.1996 and he was asked for supply of necessary documents in support thereof. Instead of complying the requirement, he informed the O.T.C.E.I. to return back the deposit. In the circumstances, therefore, no motive can be attributed either to the O.T.C.E.I. or the Petitioner and other officials in not registering him as a dealer on the O.T.C.E.I. Rather, from the conduct of Respondent No. 2 it appears that initially he intended to have a dealership, but subsequently he changed his mind and asked for return of his deposit. The plea taken by him that he having crossed the age of 65 years was not entitled to dealership according to the Rules framed by the S.E.B.I. and that is the reason why he asked for refund of the deposit is quite false and baseless and, therefore, cannot be accepted. Since the dealership fee paid by him was non-refundable, he was intimated accordingly and it was only thereafter that he moved the Delhi High Court by filing Writ Petition No. 1970 of 1997 and concealing this fact, he filed the criminal complaint in order to coerce the Petitioner and the O.T.C.E.I. to return the non-refundable fee. The dispute regarding return of the deposit being a civil dispute and the Delhi High Court having taken cognizance thereof, the present criminal proceeding is not entertainable in law.

Shri Ravi Kiran Jain, learned senior counsel assisted by Sri Ajay Rajendra would urge that affidavit sworn to by Sheo Kumar on behalf of the Petitioner in support of the writ petition being not in terms of the High Court Rules, should be rejected and consequently, the writ petition being not maintainable should be dismissed. It was further contended that inherent power can be sought to be exercised if there is no specific provision in the Cr. P.C. to challenge a criminal proceeding. But in the present case, the Petitioner could have raised the questions as are being raised here before the learned Magistrate in seisin of the case in view of the law laid down by this Court in Bhopal Sugar Industries Limited v. State of U. P., 2002 (1) ACrR 566: 2002 (44) ACC 520 and it was for the Magistrate to decide whether the criminal proceeding should be allowed to continue or not. Lastly, it was submitted that none of the illustrations given in the celebrated judgment in the case of State of Haryana v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, apply to the case on hand and, therefore, the criminal complaint filed by Respondent No. 2 should be allowed to be decided on merit by the trial court.

It is well neigh settled that the High Court in exercise of inherent power conferred by Section 482 of the Code of Criminal Procedure (for short ''Cr. P.C.'') or extraordinary writ jurisdiction under Article 226 of the Constitution of India can quash a criminal complaint/F.I.R. if the allegations taken in entirety do not prima facie constitute any offence, or where the allegations are absurd and inherently improbable or the proceeding is manifestly attended with mala fide or it is instituted to wreak vengeance on the accused. There is, however, a note of caution that such power should be exercised sparingly and in rarest of rare cases. It needs no emphasis that Section 482, Cr. P.C. does not confer new power upon the Court. It only saves the power which the Court inherently possessed. As the section goes, inherent power can be exercised in three circumstances ; namely (i) to give effect to any order under the Code ; (ii) to prevent abuse of the process of the Court or (iii) otherwise to secure the ends of justice.

The Legislature in its wisdom has invested inherent power with the High Court, since it being superior Court will exercise the same with caution where circumstance of the case so warrants. The Apex Court in R.P. Kapur Vs. The State of Punjab, , laid down the following circumstances when the Court in exercise of inherent power can quash a criminal proceeding:

(i) where it manifestly appears that there is legal bar against the institution or continuance of a criminal proceeding for want of sanction ;

(ii) 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 ; and (iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

Further reference may be made also to the observation made in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , where the Apex Court held that a criminal proceeding can be quashed in the following circumstances:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

In Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, , the Apex Court observed thus:

The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

The scope and ambit of exercise of inherent power by the Court came to be further decided in the celebrated judgment in the case of State of Haryana v. Bhajan Lal, 1992 Cri LJ 527, and the guidelines laid down therein and relevant for the purpose are extracted hereunder:

(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) to (4) ....

(5) Where the allegations made in the F.I.R. or complaints 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) ....

(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 or personal grudge."

Keeping in mind the law enunciated by the Apex Court as discussed above, it is desirable to scrutinise the allegations made in the complaint in order to find whether the same constitute offence of ''criminal breach of trust'' and ''cheating'' punishable under Sections 406 and 420, I.P.C. In order to constitute the offence of ''criminal breach of trust'' the prosecution must prove that the accused was entrusted with some property or with dominion or power over it. It is also to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion, use or disposal in violation of legal contract by the accused himself or by someone else which he willingly suffered to do.

In the case on hand, in view of the allegations made in the complaint none of the ingredients are satisfied, inasmuch as, it is not alleged by the complainant, Respondent No. 2 that he had entrusted the amount in question with the Petitioner or the Petitioner having dominion over the said amount dishonestly misappropriated it. The learned Magistrate without looking to the accusation and the statutory provision mechanically took cognizance of the offence of criminal breach of trust which in my considered opinion is not legally sustainable.

As regards the offence of ''cheating'', at the outset, it may be stated that the prosecution allegation taken as a whole does not make out such offence. The requirement of the offence of cheating, defined in Section 415, I.P.C. are:

(i) there should be fraudulent or dishonest inducement of a person by deceiving him ;

(ii) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property ; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he was not so deceived ;

(iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

It is not the case of Respondent No. 2, the complainant that the Petitioner deceived or fraudulently or dishonestly induced him to deposit any amount with the O.T.C.E.I. From the facts narrated, it appears that whatever the Petitioner did was in her official capacity as General Manager of O.T.C.E.I. and her personal interest was not involved. Why should she induce Respondent No. 2 to deposit the amount with the O.T.C.E.I. which would not benefit her personally? The grievance of Respondent No. 2 that the Petitioner and other co-accused had assured him that after deposit was made, they would handover the appointment letter of dealership within three months is too big a pill to be swallowed. Respondent No. 2 is not an illiterate person having no experience in contractual transaction. He being a retired officer of the Life Insurance Corporation of India knew quite well that registration of his dealership on the O.T.C.E.I. would be done by the S.E.B.I. and so far the Petitioner is concerned, she, in due discharge of her official duty as General Manager of the O.T.C.E.I., was required to send all the papers and documents to the S.E.B.I. for taking a decision. In view of such background facts, I am of the opinion that the case is squarely covered by illustrations (1) and (5) as laid down by the Apex Court in Bhajan Lal (supra). Had the learned Magistrate looked to all these aspects of the case, he would have been slow to pass the impugned order taking cognizance of the offence either u/s 406 or 420, I.P.C.

Added to what has been stated above, the case may be viewed from another angle. For realisation of the amount deposited with the O.T.C.E.I., Respondent No. 2 filed a writ petition in the Delhi High Court arraying Petitioner as one of the Respondents and admittedly, the said writ petition is pending for decision. He concealed this fact while filing the present case. True it is, law is well-settled that even if the facts give rise to a civil claim, yet a criminal proceeding is maintainable and both the proceedings can simultaneously continue. But so far the present case is concerned, as stated earlier, the allegations taken in entirety do not make out any offence, more so, offence under Sections 406 and 420, I.P.C. If on a reading of the complaint, ingredients of those two offences would have been spelt out, this Court would have been slow to interfere with the impugned orders of the learned Magistrate taking cognizance of the offence in exercise of inherent power. Rather what appears is that since the writ petition is pending in the Delhi High Court and no early decision could be obtained, Respondent No. 2 adopted this device in initiating the criminal proceeding in order to force the Petitioner to refund back the amount.

Regard being had to the facts and circumstances of the case as discussed above, I would hold that impugned order passed by the Magistrate taking cognizance of the offence being unsustainable in law should be set at naught. It is, accordingly, so ordered.

In the result, criminal misc. application succeeds and is allowed and consequently, the impugned order as well as the proceedings in Complaint Case No. 127/9 of 1998 pending in the Court of Judicial Magistrate-I, Meerut, are quashed.