Sushil Dhar and Another vs State

S.K. Gupta, J.—This petition, u/s 561-A Cr.P.C, has been preferred seeking quashment of the order dated 8.12.2003, formulated by

Judicial Magistrate 1st Class (Sub Judge) Jammu, whereby he has held the accused prima facie liable for commission of offences under Sections

406, 420, 120B RPC and has charged them for the aforesaid offences.

Complainant, Gurdev Singh, retired Colonel from Army, filed a written complaint with the Crime Branch, Jammu, alleging therein that he was

induced and instigated to invest money for becoming a Carry Forward Agent for the Pharmaceutical Company of the accused, M/S

SAMARITAN PHARMA (INDIA) LTD. at the initial stage. The complainant trusted the accused and invested Rs. 2.75 Lacs and got C and F.

Subsequently, the complainant, having been further allured by the accused to invest more money for getting distributorship, again arranged Rs. 4

Lacs from UCO Bank Digiana, by mortgaging his house and paid the same to the accused for sending more medicines for distribution. The

accused, however, after receipt of the entire amount from the complainant, delayed the dispatch of medicines and later on, when persisted by the

complainant, sent expired medicines. It was further alleged in the complaint that the entire amount was invested by the complainant on the dishonest inducement of the accused right from the beginning to defraud him and thereby duped the complainant of the amount invested by him and have committed offence of criminal breach of trust and cheating. A case under Sections 420, 406, 120B RPC, 138/141 Negotiable Instruments Act stood registered with the Crime Branch and on the conclusion of investigation, challan was presented before the trial court. The trial court, after hearing the parties and examining the record, including the FIR, statements of witnesses recorded u/s 161 Cr. P.C and other documents, found that the allegations enumerated in the First Information Report and further supported by evidence collected during investigation, disclosed the commission of offence by the accused persons under Sections 420, 406 and 120B RPC, for which the accused are required to be charge sheeted,

however, discharged the accused for offences under Sections 138/141 Negotiable Instruments Act, vide order dated 8.12.2003.

Mr. Abhinav Sharma, learned Counsel for the petitioners, vehemently urged that in view of Notification dated 3rd June, 1999, the offences, for

which the petitioners have been charged, are not covered within the category of cases required to be investigated by the Crime Branch and on this count alone, order dated 8.12.2003 deserves to be quashed. His further submission is that offences, if at all said to have been committed by the

petitioners, are of civil nature. He further submitted that allegations contained in the complaint against the accused do not disclose the commission of offences under Sections 406, 420 RPC, for want of essential ingredients.

As regards the first submission made by Mr. Abhinav Sharma, learned Counsel for the petitioners, regarding the Crime Branch having

transgressed its jurisdiction, it is pertinent to point out that the category of cases specified in the annexure to notification clearly includes the cases of cheating, therefore, the submission is without any substance and does not merit acceptance.

Another limb of argument put across by Mr. Abhinav Sharma is that, the allegations contained in the FIR are more of civil nature and, as such,

criminal prosecution is not tenable against the petitioners. This contention is also without any legal force. Accepting such a general proposition would be against the provisions to law inasmuch as in all cases of cheating, fraud and criminal breach of trust, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were that the complainant was induced by dishonest belief and he invested money with the accused initially to become Carry Forward Agent and subsequently as distributor. Further allegation in the complaint is

that, after the entire amount was paid by the complainant, the accused became slow in dispatch of medicines and, when insisted upon by the

complainant, sent a consignment of expired medicines and thereby committed breach of trust. Assuming that one or two ingredients of offences are not found in the allegations contained in the complaint, that would not render it to be quashed. If the contention of Mr. Sharma is accepted that the allegations are of civil nature and no criminal proceedings are warranted, the unscrupulous litigants, apprehending criminal action against them,

would be encouraged to frustrate the course of justice and law by filing suits with respect to such matters of criminal breach of trust and cheating.

Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to acts complained of. Where the factual foundations of the offence have been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the

parties.

I do not find any infirmity in the well reasoned order propounded by the trial court, which could be said to have resulted in abuse of process of

the court, warranting interference by this Court in exercise of its jurisdiction u/s 561-A Cr. P.C.

In the above view of the matter, the petition, in my opinion, does not possess any merit and is, accordingly, dismissed. Record be remitted back

forthwith.