Ramaswami and Another vs The State and Another

Suryamurthy, J.—This is a petition to send for the records in C.C. No. 204 of 1976 on the file of the Sub Divisional Judical Magistrate, Nagapattinam and quash the charge under S. 420, read with S. 34 of the Indian Penal Code, framed against accused 2 and 3 alone. Accused 2 and 3 in C.C. No. 204 of 1976 on the file of the Sub Divisional Judical Magistrate, Nagapattinam, are the only petitioners now. They are partners of a firm which is carrying on business in hardware, paints, cements, etc., at No. 30, V.R.M. Road, Vijayapuram, Tiruvarur, under the name and style of M/s. Annamalai Chettiar and Sons. Govindaswami, the first accused and Ramalingam, the fourth accused are two of the four partners of the firm. Govindaswami is the Managing Partner of the firm.

On 5th July 1975, the complainant before the police, viz,. Abdul Hameed, who had a permit in his favour for purchasing 160 bags of Dalmia Cement, approached the Managing Partner Govindaswami for supply of the cement for which the permit had been issued. The Managing Partner sent his clerk with Abdul Hameed to take delivery, of 160 bags of Dilmia Cement which were sold by Govindaswami to the said Abdul Hameed. Delivery was taken of 160 bags of what were represented to be Dalmia Cement bags on 5th July 1975. The bill for the sale of the 160 bags were prepared by the fourth accused and issued to the purchaser. After about 29 days, when the work of construction had commenced, the mason who was in over-all charge of the construction work is said to have drawn the attention of Abdul Hameed to the contents of a bag which was represented to be a bag of Dalmia Cement but was not. On examination it was found to contain an inferior variety of stuff called Ramco Cement. On further examination 14 more bags were found to contain an inferior variety of what is called Ramco Cement. According to the complainant Abdul Hameed, he met Govindaswami at his place of business in the aforesaid shop and complained that 15 out of the 160 bags supplied to him contained an inferior variety of cement called Ramco Cement. Govindaswami is alleged to have stated that some mistake might have been committed and agreed to replace the bags of Ramco Cement with Dalmia Cement. It is further alleged by the complainant that he wanted the expenses of the transport to be borne by Govindaswami, that he refused to do so and that when he threatened to file a complaint before the police, Govindaswami defied him to do his worst. There upon he has filed the complaint which has been registered as a case in Crime No. 522175 of Tiruvarur Town Police Station. However the charge-sheet has been laid not only against the first accused who sold the 160 bags and the fourth accused who made out the bill, but also against accused 2 and 3. It is not alleged in the complaint that accused 2 and 3 were present at any time when the transaction was entered into. Even during the course of the investigation, no witness has made any statement implicating accused 2 and 3. In the circumstances, accused 2 and 3 have come forward with this petition for quashing the proceedings as against them only.

The circumstances in which the High Court can exercise the inherent power under S. 561-A of the Old Criminal Procedure Code corresponding to S. 482 of the Criminal Procedure Code now in force, have been considered by their Lordships of our Supreme Court in R.P. Kapur Vs. The State of Punjab, . Gajendragadkar, J., as he then was, in considering the nature and scope of the inherent power of the High Court, has laid down that--

The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under S. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the Proceedings is not at the present state covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said Proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise 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. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category 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 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 no evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which en its appreciation may or may not support the accusation question. (sic) 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. Broadly stated, that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings and that is the effect of the judicial decisions on the point vide: In Re: Shripad G. Chandavarkar, Jagat Chandra Mazumdar v. Queen Empress ILR 26 Cal. 796, Dr. Shankar Singh Ganda Singh Vs. State of Punjab, , Nripendra Bhusan Ray Vs. Gobinda Bandhu Majumdar, and Ramanathan Chettiar Vs. K. Sivarama Subramania Aiyar, .

Again, in the Union of India (UOI) Vs. Lt.Col. G.K. Apte, the Supreme Court has affirmed the principles laid down in the decision scited above and Grover, J., has observed that the Supreme Court has laid down in B.N. Elias and Co., Ltd., Employees'' Union and Others Vs. B.N. Elias and Co., Ltd., and Others, , that the inherent power of the High Court saved by S. 561-A of the Criminal Procedure Code could be exercised to quash proceedings in a proper case either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice, that the following were some of the illustrations given where the proceedings could and should be quashed; (a) Where the allegations in the first information report or the complaint did not make out the offence alleged; (b) where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge and that it has been emphasised that the High Court cannot embark upon an inquiry as to whether the evidence in the case is reliable or not to justify the framing of the charge.

Again, their Lordships of our Supreme Court have confirmed the aforesaid principles in Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., and have observed that the Supreme Court.

has laid down the principles in B.N. Elias and Co., Ltd., Employees'' Union and Others Vs. B.N. Elias and Co., Ltd., and Others, , which have to be borne in mind by the High Court when its inherent jurisdiction under 561-A is invoked for quashing the proceedings pending before a subordinate court. It has been emphasised that the inherent jurisdiction could be exercised to quash proceedings in a proper case'' either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. This Court has also indicated some of the categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings.

In the instant case, neither the complaint given to the Police by Abdul Hameed, nor the statements of the witnesses examined under S.161 of the Crl. P. C. in the course of the investigation, disclosed any offence alleged to have been committed by accused 2 and 3. Neither of them is said to have been present either at the time of the sale or at the time the bags, alleged to be Dalmia Cement bags, were taken delivery of, or at the time when Govindaswami, the first accused, agreed to replace the 15 bags of Ramco Cement with bags of Dalmina Cement. Even if the entire averment in the complaint given by Abdul Hameed to the Police and all the statements recorded by the investigating officer under S. 161 of the Crl. P. C. are assumed to be true, no offence can be deemed to have been committed by the second accused or the third accused. Even though they are partners of the firm, they cannot be made vicariously liable for any criminal offence, No common intention can be presumed to have existed between the petitioners and the other two accused for cheating the complainant.

In State of Madras Vs. C.V. Parekh and Another, their lordships of our Supreme Court have considered a case where there was no evidence from which it could be inferred that a manager or director had any knowledge of the sale manoeuvred by a clerk and another conspirator and have laid down that the mere circumstance that they were in de facto management of the affairs of he company and were aware of the arrival of the goods which were subsequently sold by the clerk would only create suspicion, but would not amount to proof against them. Their Lordships have held that.

The circumstance that the two respondents were in management of the affairs of the Company and the Firm and were aware of the arrival of the goods could create suspition against the respondents, but that suspicion could not take the place of proof, in order to justify conviction of the respondent, evidence was needed to show that they knew of the sale or were parties to it. No such evidence was available. On this ground, the High Court set aside the conviction of the two respondents. The order of the High Court is obviously correct. No evidence on the record has been pointed out from which it could be inferred that the two respondents had any knowledge of the sale which was manoeuvred by Kamder and Vallabhahadas Thackers, nor is there evidence to show that they took any part in the negotiations for sale, or in the sale itself, consequently, it is clear that their conviction was not justified.

In the instant case, there is no allegation in the complaint given by Abdul Hameed to the police or in the charge-sheet filed against the accused that accused 2 and 3 took any part in the negotiations for sale or in the sale itself or were even present at the time of the sale. No evidence can be adduced by the prosecution against accused 2 and 3, in the absence by any statement by any of the witnesses examined during the course of the investigation, to fasten any guilt on accused 2 and 3. The prosecution against accused 2 and 3 cannot be proceeded with merely because they are partners of the firm known as M/s. Annamalai Chettiar and Sons. In the circumstances, the proceeding against accused 2 and 3 in C.C. No. 204 of 1976 on the file of the Sub-Divisional Judicial Magistrate, Nagapattinam, are quashed. The case as against accused 1 and 4 shall be proceeded with and disposed of expeditiously by the learned trial Magistrate.