Parkash Chand vs State

In order to invoke the powers of this court as envisaged under Section 561 A Cr. P.C. of 1989, this petition for quashing the proceedings

pending disposal in the Court of learned SubJudge (Judicial Magistrate First Class), Jammu, titled: State V/S Parkash Chand bearing FIR No:42

of 1985, has been moved by the petitioner Parkash Chand ""hereinafter referred to as the accused"" on the ground that he was the sole proprietor of

a finance company known as Uppal Finance Corporation, anehbad some dealings with the customers including the complainant in the challan. He

started his finance business in the year 197980 which flourished initially, but, later on, some people did not repay the money to him, and his finance

company came to a closure. He made his best efforts as a businessman to clear the arrears of different customers, but, unfortunately, some of the

customers became impatient and they even tried to kill him. He left Jammu, leaving behind all his assets and became a hermit and started roaming

country wide and was unconcerned with the wordly affairs. He was afterwards traced out by his family members after a great search and he

returned to Jammu, and, on his arrival in Jammu, a complaint was lodged U/S 420 and 406 RFC against him, which is pending disposal in the

court of learned Sub Judge Judicial Magistrate, Jammu. According to him, the complaint is misconceived, merely for the reason that it was filed

after three years of the cause of action. If any cause of action accrued to the complaint that was in the year, 198283. But the complainant that was

filed in the year, 1985. The complaint has been filed only to cause mental torture and induce him to make the payments, as claimed for. According

to him, he does not want to comment on the merits of the case, for the complainant has already filed various suits in the court, which are being

contested.

That the FIR consists of many complaints, and, at a time, one complaint can be filed, and in the series of acts so connected, only three offences

can be bracketed together for joint trial of an accused. As the civil remedy has already been availed of by the complainant, therefore, no criminal

action would He against the accused. It is further contended that the offence U/S 420 and 406 RFC are different in nature, and cannot he tried

together, ft was, therefore, appropriate that the above mentioned complaint is quashed.

Heard learned counsel Mr. P. Kohli for the petitioner and Mr. R.C. Gandhi, AAG on behalf of the respondent/State; also best owed my

thoughtful consideration over the record on the file,

On the perusal of the trial court file, it is apparent, that a challan, under Section 420/406 RFC has been filed against the accused and the

accused caused his appearance before the trail court and sought various adjournments before st he trial court for arguments, when the case was

fixed for charge and discharge of the accused, it indicates that a criminal challan has been filed by the police against the accused after conduction of

proper investigation, and they have came to the conclusion that an offence within the purview of Sections 420/406 RFC was made out against the

accused. It is for the trail Magistrate to see whether, prima facie, any case is made out against the accused or not, and that can be done by him

only after the arguments for the purposes of charge and discharge of the accused are heard by him. At this stage, when the trial court has to take

the cognizance of the matter for the purposes of charge and discharge and has to see whether, prima facie, evidence is there to proceed with the

case, the accused is at liberty to raise his defence and to show that it is a civil liability and no penal law comes into play in the matter, ff, on the

perusal of the FIR and the other evidence as collected by the police in the matter, the accused proves his innocence, the trial Magistrate in that

situation of the case, in all probabilities, has to discharge the accused.

The accused can raise any defence before the trial court and the proceedings taken before this Court on the simple assertion that no offence is

made out against the accused, and that chances of his conviction are bleak from the defence point of view, is no ground, for exercise of inherent

powers by this court, to decide the matter on the merits of the case, which would amount to denial of justice to the parties, for such things are to be

judged and looked into in the light of the evidence that may be forth coming, or the material brought by the parties before the trial court.

The other point raised by the learned counsel for the petitioner is that a civil suit is pending between the parties, therefore, the criminal

proceedings cannot be proceeded with, is of no consequence, for it is a well settled principle of law that the mere pendency of a civil proceeding

concerning the matter involved, is no bar to the initiation of criminal proceedings, provided the action complained of amounts to the commission of

the criminal offence. Of course, if the dispute between the parties is purely of a civil nature, the Courts cannot allow the parties to get the dispute

settled in a criminal court by a camouflage of the civil disputes as a criminal matter. It is for the trial court to see as to whether the allegation levelled

in the complaint read with other evidence collected in the case, discloses commission of a criminal offence, as contemplated under Section

420/406 of the RFC, and, in case they are found true, the petitioner cannot escape his liability under the criminal law, merely because a civil suit

has been pending against him in respect of the same matter. However, if the trial Magistrate comes to the conclusion that no criminal offence has

been committed by the accused, for the matter is covered by a civil Proceeding, then, in that case, the Magistrate is left with no option, but to

discharge the accused.

If there is anything in the complaint to show that the accused had no dishonest and fraudulent intentions at the time the complainant went for chit

fund business with him, and also there is nothing to indicate that the accused induced the complainant to deposit the money in chit fund business by

deceiving him, then, in that case, the Magistrate has no option except to see as whether the case stands or not? Once the challan has been filed

before a competent Court of Law, and the matter is under adjudication before him for the purposes of charge and discharge, the present

proceedings invoked under the provisions of Section 561A Cr. P.C. do not come into play, and the same being without jurisdiction, are dismissed.

The file be returned to the trial Magistrate immediately for trial of the case, in accordance with law. The file be consigned to records along with the

connected C.M.P.