Prem Chand-Peitioner. vs State of Haryana and anr..

S.D. Bajaj, J.

M/s Kidar Nath & sons is a partnership concern functioning in Saddar Bazar, Ambala Cantt., from May 22, 1979 in terms of partnership deed Annexure P. 1. Along with Kishan Sarup, Joginder Singh, Ramesh Chand, Suresh Chand, Raj Kumar and Babu Lal, petitioner Prem Chand and respondent No. 2 Mahesh Chand are all its partners. In respect of assessment year 197071, the firm was imposed a penalty of Rs. 57,005.00 paise by the Income Tax Department which was duly deposited. Appellate Commissioner, IncomeTax waived the penalty and the petitioner obtained from the Income Tax Department a refund voucher and withdrew the refunded amount from the Bank on September 10,1986.

After deducting expenses etc. etc. and paying Rs. 15,000/ as their share of the refunded amount to Babu Lal, Joginder Singh and Kishan Sarup, the petitioner claims to have tried to give their share of it to the remaining four petitioners besides himself named Mahesh Chand respondent No. 2, Ramesh Chand, Suresh Chand and Raj Kumar who did not accept it. Instead respondent No.2 Mahesh Chand lodged First Information Report Annexure P. 3 No. 156 against the petitioner in Police Station Saddar, Ambala Cantt on May 29, 1987 under section 406 of the Indian Penal Code.

First Information Report Annexure P. 3 is sought to be quashed by the petitioner on the grounds that the dispute interparties is of the year 1973 and criminal law cannot be set in motion to rake up stale money claim after the expiry of 15 years, that the dispute between the parties is of civil nature and respondent No., 2, has invoked criminal, process for settling it to pressurise the petitioner and that civil suit No. 79 filed by Ramesh Chand one of the petitioners, for dissolution of the firm and for rendition of its account against the remaining partners on February 20. 1973 was held by the civil Court of competent jurisdiction to be not maintainable because the disputed claim was required to be referred to Arbitrator in,, terms of Clause 15 of the partnership deed dated May 22, 1969.

Regarding the grounds urged for quashing the complaint, there is no factual dispute. Assertion made by the learned counsel for complainantrespondent No. 2 is that the petitioner having obtained the refund voucher and deposited it in his individual account of M/s Prem Chard and others, contradistinguished from the account of firm, there was clear dishonest intention imputable to the petitioners for the commission of criminal breach of trust in respect of the amount of refund and, therefore, accepting the allegations in the First Information Report perse there was absolutely no ground for quashing it/observations made in Kurukshetra University and another v. State of Haryana and another, AIR 1977 Supreme Court 2229, The Kerala State Electricity Board v. Harisubramainian and others, AIR 1979 Supreme. Court 1488, Karnail Singh and another v. State of Punjab, 1983(1) Chandigarh Law Reporter 199, Manjit Singh v. Union Territory, Chandigarh and another, 1985(2) Recent Criminal Reports 282 and Harbinder Singh and another v. The State of Punjab, 1985(2) Recent Criminal Reports 466 have been pressed into service to assert that inherent powers of the High Court cannot be exercised to quash investigation into a cognizable offence.

A mere reading of D.D.R. No. 20 dated 29.5.1987, forming the basis of the First Information Report Annexure P. 3 makes it abundantly clear that the dispute is of a civil nature because the partnership concern is stated in para 2 of the report to have been rendered defunct after finalisation of the incometax assessment for the year 197071 and civiI suit No. 79 was filed by Ramesh Chandera one of its partners, for its dissolution and rendition of the account of the firm against the remaining petitioners on February 20, 1973 vide plaint annexure. P.2. In case the petitioner had obtained refund voucher from the Incometax authorities, the only way out was to disburse the amount pro rata between estwhile partners. As alleged in para 3 of the petition, Babu Lal, Joginder Singh Sethi and Kishan Sarup have already been paid their share of the refund amount and the petitioner has expressed in para No. 4 of the petition his willingness to make over the amount of their share to the remaining four petitioner including himself. Efforts made by him to make over the amount of their share to them have also been narrated therein. This completely negatives the assertion of respondent No. 2 that the petitioner had any dishonest intention to misappropriate the refund amount of his share.

In a situation like this it. was observed by the Supreme Court in State of West Bengal and others v. Swapan Kumar Guha and Others, AIR 1982 Supreme Court 949 :

"A First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation.

As Investigation can be quashed if no cognizable offence is disclosed by the FIR. It is surely not within the province of the police to investigate into a report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry insuch cases.

The condition precedent to the commencement of investigation under Sec. 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to support that the police have an unfettered discretion to commence investigation under S. 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offence. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. The power to, investigate into cognizable offence must, therefore, be exercised strictly on the condition on which it is granted by Code."

In this view of the matter Cr. Misc. No. 1461M of 1988 is allowed and First Information Report No. 156 dated May 29, 1987 registered against the petitioner in Police Station, Ambala Cantt under section. 406 of the Indian Penal Code is quashed.