Ram Krishen Modi vs Autar Krishen and Another

J.N. Wazir, C.J.—This is an application u/s 561-A, Cr. P. C., filed by Ram Krishen Modi for quashing the proceedings u/s 408 read with

Section 109 R. P C. pending against the petitioner in the Court of Additional District Magistrate, Udhampur.

The facts which gave rise to this application, briefly are these. Autar Krishen complainant is running the business of Devi Das Gopal Krishan at

Jammu dealing in edible of oils and cotton Dharam Pal accused No I was entrusted with the edible of l tins to be sold at Udhampur at the shop of

the firm. The complainant alleged that Dharam Pal accused No. 1 and Ram Krishen accused No. 2 entered into a criminal conspiracy to embezzle

the sale proceeds of the goods of the complainant which were entrusted to accused No I in the course of his employment as a servant of the firm.

It was further alleged, that the accused made false entries in the account books of the firm and appropriated to his own use the sale-proceeds of

the goods sold by him on behalf of the firm. The complainant examined himself and another witness and the Additional District Magistrate,

Udhampur, issued process against the accused persons. Ram Krishen has filed the present application.

It is argued on behalf of the petitioner that the allegations in the complaint disclose no offence against him and therefore, the proceedings should

be quashed. I have gone through the complaint and also the statements made by the complainant and another witness produced by him In the

complaint it is stated that accused No. 1 was carrying on business on behalf of the complainant firm at Udhampur and in violation of the agreement

of service engaged himself with accused No. 2 for carrying on some other business without the knowledge and permission of the firm and accused

No. 2 gave bogus cheques to accused No. 1.

It appears that accused No, 1 was employed by the complainant and it is alleged that he had been utilizing the proceeds of the sale of goods at the

shop of the complainant in some other business which he was carrying on with the present petitioner. There is nothing alleged in the complaint or in

the statements of the complainant and his witness which discloses the offence of conspiracy against the petitioner. The mere use of the word

'conspiracy ' would not be sufficient to start proceedings against the petitioner. There must have been some allegation made in the complaint or in

their statements by the complainant and his witness to show what actually was done by the petitioner which constituted an offence. '

The allegations made in the complaint do not constitute the offence alleged. The allegation is that the employee accused No. 1 had been carrying

on partnership business with the petitioner and utilizing monies of the firm. There is nothing to show that the petitioner had in any way helped

accused No. 1 in taking out monies from the shop of the complainant. In R.P. Kapur Vs. The State of Punjab, the following tests have been laid

down where the inherent jurisdiction of the High Court to quash proceedings can and should be exercised and these are:

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence

alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(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, in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the

First Information Report to decide whether the offence alleged is disclosed or not.

(iii) where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support

of the case or the evidence adduced clearly or manifestly fails to prove the charge.

In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is

evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on. its appreciation

may or may not support the accusation in question. In exercising its jurisdiction under S 561-A the High Court would not embark upon an enquiry

as to whether the evidence in question is reliable or not That is the function of the trial magistrate, and ordinarily it would not be open to any party

to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the

accused would not be sustained.

In fact in the instant case no act is alleged on the part of the petitioner which constitutes the offence of which he is charged. Under the

circumstances I allow this application u/s 561-A, Cr. P. C., and quash the proceedings against the petitioner-accused No. 2. The proceedings shall

continue against accused No. 1.