Dismissed

Romesh Chander v. Union Territory of J and K Th SHO Police Station City Jammu and Anr.

J&K HC9 Nov 2020CRM(M)/201/2020

Case brief

AI extract

What is this about?

The High Court dismissed a petition under Section 482 Cr.P.C. seeking quashment of an FIR alleging cheating and dishonour of cheque. The court held that Section 482 must be exercised sparingly and does not require an inquiry into the reliability of evidence or factual disputes at the interlocutory stage, noting that the FIR discloses a cognizable offence.

What did the court decide?

Petition dismissed along with all connected CrlM; FIR is not quashed.

Romesh Chander Vs Union Territory of J and K Th SHO Police… — Cheque Dishonour | J&K HC (2020)

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Serial No. 102 ADMISSION CAUSELIST (Through Virtual Mode)

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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CRM (M) No. 201/2020 CrlM No. 709/2020

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Romesh Chander.

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…….Petitioner(s)

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Through: Mr Jasbir Singh Jasrotia, Advocate.

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Union Territory of JK & Anr.

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…….Respondent(s)

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Through: Mr Aseem Sawhney, AAG.

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CORAM :

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Hon’ble Mr Justice Ali Mohammad Magrey, Judge.

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ORDER

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09.11.2020

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This petition under Section 482 Cr. P. C, has been filed by the petitioner seeking quashment of FIR No. 29/2015 dated 13.05.2015 RPC registered at

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Police Station City Jammu against the petitioner under section 420,467,468,471 RPC.

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Briefly stated the case of the petitioner is that the petitioner is a businessman and married person having two children and family members of the petitioner are totally dependent upon the earning of the petitioner. It is submitted that one person namely Shafiq Ahmed S/o Mohd Hussain was also running a business of Dry Fruits under the name and style of M/s Kashmir Dry Fruits and Honey Traders at Vidhata Nagar Bathindi Jammu adjacent to the shop of the petitioner. It is further submitted that on 18.10.2012 the said Shafiq Ahmed approached the petitioner and requested to give his any account number having online transaction facility. The petitioner, being the neighbor of the said Shafiq Ahmed, acceded to his request and gave him his account number bearing account no. 0097010100002408 of J&K Bank Branch Town Hall, Jammu. After obtaining the bank account number of the petitioner, the

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said Shafiq Ahmed went to the petitioner’s Bank at Town Hall and deposited cheque amounting to Rs. 5.50 Lacs. After depositing the said cheque, the said Shafiq Ahmed again requested the petitioner for withdrawal of said amount immediately from his account as he required the money urgently. The petitioner on this told the said Shafiq Ahmed that this is the big amount so he will not withdraw this amount instead the petitioner requested him to give his account number so that he could transfer above mentioned amount of Rs. 5.50 lacs to the account of Shafiq Ahmed. The said Shafiq Ahmed further requested the petitioner for issuance of three cheques, two in the name of Tariq Ahmed Sheikh and one in the name of Shafiq Ahmed and the petitioner on this request issued two cheques in favour of Tariq Ahmed Sheikh amounting to Rs. 1,90,000/- and 3,50,000/- and same was handed over to the Tariq Ahmed Sheikh. The Shafiq Ahmed thereafter on 22.10.2012 obtained another cheque amounting to Rs. 9000/- from the petitioner and as such, the Shafiq Ahmed received whole money being deposited by him in the account of the petitioner. It is further averred that some time the petitioner was informed by the police officials that one complaint dated 16.01.2013 has been filed by the Respondent no. 2 before the Police Post Hari Market for registration of FIR against the petitioner and said Shafiq Ahmed. Later on, the petitioner also came to know that Tariq Ahmed has also filed one civil suit for permanent prohibitory injunction against the Shafiq Ahmed and Branch Manager J&K Bank Town Hall. The respondent no. 1 after receiving the copy of abovementioned plaint, assured the petitioner that no FIR would be registered against him, however, the respondent no. 1 thereafter registered one FIR bearing FIR NO. 29/2015 dated 13.05.2015 against the petitioner under section 420,467,468,471, of which the petitioner is aggrieved, challenges the same on the grounds detailed out in the petition.

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Learned counsel for the petitioner submits that lodging of FIR, in the present case, is nothing but an abuse process of law and that the FIR has been lodged with the oblique motive. It is further submitted that the registration of FIR is wholly unwarranted, aimed at victimizing the petitioner. It is further pleaded that by registering the FIR in question, the civil nature dispute between the parties has been given the shape of a Criminal complaint, which has been depreciated by the Hon’ble Supreme Court from time to time.

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Since the quashment of FIR pending before the competent court is concerned, it is profitable that before going to merits of the case, the question is as to whether the FIR pending before the Court can be quashed in 482 Cr.P.C proceedings filed in this Court. The answer has to be in the negative, for, the remedy under Section 482 Cr. P. C can be invoked/pressed into service only in the following circumstances:

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“(i) to pass orders in order to give effect to an order passed under Cr.P.C

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(ii) to prevent abuse of process of Court (iii) to secure the ends of justice: and (iv) to prevent mis-carriage of justice.”

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Apex Court also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as “K.L.E Society & ors v. Siddalingesh reported in 2008 AIR SCW 1993; A.P Vs Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano Vs State of Uttar Pradesh reported in 2008 AIR SCW 1998”.

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Apex Court in AIR 2004 SC 3967, AIR 1972 SC 484, AIR 1974 SC 1446, AIR 1977 SC 2229, AIR 1989 SC 01, has laid down the same principle.

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It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal Vs Govt. of Karnataka reported in 2008 AIR SCW 1003 herein:

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“10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.

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In State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554 this Court pointed out at SCC P. 574:

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The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.

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In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out:

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In exercising jurisdiction under section 482 of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.

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In Jehan Singh vs Delhi Administration (1974) 4 SCC 522 the application filed by the accused under section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie the allegations in the FIR if assumed to be correct, constitute a cognizable offence.

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In State of Bihar vs Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.

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We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing

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grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.”

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While keeping in view the scope of section 482 Cr.PC the Court should

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refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective.

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In view of the facts and circumstances and law quoted herein above,

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this petition has no merit, therefore, dismissed alongwith all connected CrlM.

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(Ali Mohammad Magrey)
Judge
JAMMU:
09.11.2020
“Hamid”
i. Whether the order is speaking? Yes/No.
ii. Whether the order is reportable? Yes/No.

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ABDUL HAMID BHAT 2020.11.09 12:58 I attest to the accuracy and integrity of this document

Romesh Chander v. Union Territory of J and K Th SHO Police Station City Jammu and Anr.

Case brief

What is this about?

What did the court decide?

Romesh Chander v. Union Territory of J and K Th SHO Police Station City Jammu and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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