Ashok Kumar Shrivastava Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No.435 of 2018

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Ashok Kumar Shrivastava, S/o Late Balbhadra Shrivastava, Aged About 65 Years, R/o Shiv Mandir Ward, Mahadev Ghat Para, Jagdalpur, District Bastar, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through The Station House Officer, Police Station- City Kotwali, Jagdalpur, District- Bastar, Chhattisgarh

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Jyoti Mahanti, W/o Sitaram Mahanti, Aged About 45 Years, R/o Maa Durga Chowk, Sadar Ward No.10 Jagdalpur, District Bastar, Chhattisgarh

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---- Respondents

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For Petitioner Mr. A. K. Shukla, Advocate For Respondent-State Mr. Hariom Rai, PL For Respondent No.2 Mr. Dinesh Tiwari, Advocate

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Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Smt. Justice Rajani Dubey

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Judgment on Board

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Per Ramesh Sinha, Chief Justice 03.05.2024

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Heard Mr. A. K. Shukla, learned counsel for the petitioner, Mr. Hariom Rai, learned Panel Lawyer for the State and Mr. Dinesh Tiwari, learned counsel for the respondent No.2.

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The petitioner has preferred the instant petition under Section 482 of Cr.P.C. for quashment of FIR dated 13.05.2017 bearing Crime No.193/2017 for the offence punishable under Sections 376 & 420 of IPC registered at Police Station City Kotwali,

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Jagdalpur, District Bastar (C.G.) as well as charge sheet and the consequential proceedings arising therefrom.

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Brief facts of the case are that the respondent No.2 had lodged a report against the petitioner before the concerned police station alleging that the on the pretext of marry has been sexually exploiting her for a long time and during their intimacy, the petitioner has also obtained certain bank cheques signed by the respondent No.2 to the tune of Rs.9 Lakhs, upon which a case was registered against the petitioner for the offence punishable under Sections 376 & 420 of IPC. Hence, this petition has been filed by the petitioner.

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Learned counsel for the petitioner submits that the false and frivolous case has been registered against the petitioner. The respondent No.2 is a married lady and having two children, as such the allegation levelled by her is vague. Infact the respondent No.2 had taken money from the petitioner worth Rs.9 Lakhs, against which she had given two cheques to the petitioner, which were presented before the Bank, but the same got dishonored due to insufficient fund in the account, upon which a legal notice was sent to the respondent No.2, but the same went in vain and thereafter a complaint under Section 138 of Negotiable of Instruments Act was also filed, although she has been granted bail. It has been further argued that the petitioner has already been granted anticipatory bail by this Court vide order dated 07.12.2017 pursuant to the aforesaid crime number

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and vide order dated 31.07.2018, proceedings of the Trial Court have already been stayed. Therefore, the FIR as well as criminal case registered against the petitioner may kindly be quashed.

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Learned counsel for the respondent No.2 submits that the petitioner has sexually exploited the respondent No.2 on the pretext of marriage for the last so many years and has cheated her, as he took huge amount of money from her by taking signed cheques of the respondent No.2 during their relationship. Therefore, the petition deserves to be dismissed.

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Learned State counsel submits that on the basis of the evidence, an offence was registered against the petitioner and after investigation, the charge sheet was submitted before the concerned Court and the criminal proceedings are going on. Therefore, the petition is liable to be dismissed at this stage.

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We have heard learned counsel for the parties and perused the material available on record.

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The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR or the charge-sheet may be quashed in

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exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C.

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In the well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal , the Apex Court held that those guidelines should be exercised sparingly and that too in the rarest of rare cases. Guidelines are as follows:

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“(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety to do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 156(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

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In case of Rupan Deol Bajaj v. K.P.S. Gill ; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi ; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed.

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In the matter of Neharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others : 2021 SCC OnLine SC 315, the Apex Court has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an F.I.R./complaint, quashing of which is sought, the Court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the

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F.I.R./complaint. The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the Court to be cautious. The Apex Court has emphasized that though the Court has the power to quash the F.I.R. in suitable cases, the Court, when it exercises power under Section 482 Cr.P.C., only has to consider whether or not the allegations of F.I.R. disclose the commission of a cognizable offence and is not required to consider the case on merit.

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Therefore, it is very well settled that criminal proceedings maliciously instituted with ulterior motives can be quashed by this Court while exercising the power under Section 482 Cr.P.C.

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In the present case, the main allegation against the petitioner is that he sexually exploited the respondent No.2 on the pretext of marriage and took her signed cheques, as such he committed cheating, but the respondent No.2 is a married lady, aged about 45 years and it appears that there were some dispute between the petitioner and the respondent No.2 and the petitioner has also filed complaint before the respondent No.2 under Section 138 of the NI Act and as such it appears that in counterblast to the complaint filed by the petitioner under Section 138 of the NI Act, the impugned FIR was filed by the respondent No.2. The respondent No.2 has also not filed her reply through her counsel and the petitioner was also granted anticipatory bail in the crime in question and the criminal proceedings pursuant to the said crime have also been stayed. Therefore, on the ground of

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malicious prosecution, present petition in view of category No.7 of Bhajan Lal (supra) can succeed.

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In the result, the present petition u/s 482 Cr.P.C. is allowed and FIR dated 13.05.2017 bearing Crime No.193/2017 for the offence punishable under Sections 376 & 420 of IPC registered at Police Station City Kotwali, Jagdalpur, District Bastar (C.G.) as well as charge sheet and the consequential proceedings arising therefrom are hereby quashed.

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Sd/Sd/( Rajani Dubey ) ( Ramesh Sinha ) Judge Chief Justice

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Nirala

Ashok Kumar Shrivastava v. State of Chhattisgarh

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Ashok Kumar Shrivastava v. State of Chhattisgarh

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