Allowed

Sanjay Sharma v. State of Haryana

Punjab & Haryana HC20 Sept 2011CRM-M/15208/2011

Case brief

AI extract

What is this about?

Petitioner sought quashing of a Kalandra under Section 182 IPC and framing of charges alleging false information. The court held that police finding a civil dispute does not prove false information if the informant believed otherwise. Proceedings were quashed as abuse of process.

What did the court decide?

The Kalandra (Annexure P-1) and all proceedings arising therefrom, including the order of framing charge, are directed to be quashed.

Sanjay Sharma Vs State of Haryana — Cheating and Forgery | Punjab & Haryana HC (2011)

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Crl. Misc. No. M-15208 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl. Misc. No. M-15208 of 2011 (O&M)

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Date of decision : 20.09.2011

Sanjay Sharma

....Petitioner

Versus

State of Haryana

...Respondent

CORAM : HON'BLE MR.JUSTICE MAHESH GROVER

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Present: Mr. T.K. Yadav, Advocate for the petitioner

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Mr. Sandeep Mann, Sr. DAG, Haryana

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MAHESH GROVER, J.

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This is a petition under Section 482 of the Code of Criminal Procedure praying for quashing of Kalandra dated 8.6.2009 (Annexure P-1) registered on the ground that the information given by the petitioner to the Police on the basis of which FIR No. 136 dated 15.4.2009 under Sections 420 406, 467, 468, 120-B/34 IPC was lodged was incorrect. A further prayer has been made that the order dated 5.7.2010 whereby the petitioner has been charge sheeted be also set aside. The petitioner had lodged the FIR alleging that the accused persons have committed the offence and have caused wrongful gain to themselves by entering into sale agreement dated 12.12.2006 for an amount of more than Rs. 33 lacs in respect of flat in Faridabad. While doing so they concealed the fact that the original documents pertaining to the flat in question were in possession of Housing Development Finance Corporation Limited

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Crl. Misc. No. M-15208 of 2011 (O&M)

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and a loan had been raised against the said property. The factum of the suit for recovery of an amount of more than Rs. 17 lacs which had been filed by the said Corporation against the accused persons was also concealed. It was also not brought to his notice that the said suit had been decreed on 27.9.2006. It was alleged that the accused had taken away huge amount of more than Rs. 33 lacs on the strength of mis-representation and concealment. A prayer was made that the accused persons be proceeded under Sections 420, 406, 467, 468, 34 and 120-B IPC.

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The police investigated the matter and found that the matter is of civil nature and no criminal offence has been made out and decided to submit cancellation report and at the same time presented a Kalandra against the petitioner under Section 182 IPC.

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Learned counsel for the petitioner contends that the proceedings are in abuse of process of law for the following reasons:-

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(i) That even as per the investigation carried out by the police the allegations made by the petitioner were not found to be false and the only reason for submitting the cancellation report was that the case was of civil nature where no criminality could be attached to it.

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(ii) That the cancellation report was submitted but not accepted by the Court and as a result of which the complaint against the said accused persons is pending and the proceedings subsequent thereto are continuing. (iii) That the charges levelled against the petitioner reveals total lack of application of mind by the Court.

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Crl. Misc. No. M-15208 of 2011 (O&M)

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(iv) That even if the allegations in the Kalandra are taken to be correct it is not likely to result in the conviction of the petitioner.

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Learned counsel for the respondent on the other hand contended that since the charge has already been framed, the petitioner has an efficacious remedy of filing of revision before the Court of competent jurisdiction and instant petition under Section 482 Cr.P.C. is not maintainable. To this learned counsel for the petitioner replied by placing reliance upon judgment of Hon'ble Supreme Court in the case Dhariwal Tobaco Products Ltd. and others vs. State

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of Maharashra and another, 2009(1) R.C.R. (Criminal) 677 in which it has been observed that the power under Section 482 Cr.P.C. can be exercised to prevent the abuse of process of law and merely because of remedy of revision is available to a person shall not be ground for dismissal of the petition if the Court finds that there is manifest injustice being caused.

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I have considered the matter and the rival assertions that have been made. In so far as maintainability of the petition is concerned there is no ambiguity in the position of the law. The power under Section 482 Cr.P.C. is meant to be exercised where the Court is of the opinion that the persistence of the proceedings is an abuse of process of law and to prevent such an abuse, the inherent powers of the Court under Section 482 Cr.P.C. can certainly be exercised, regardless of the fact that there are other efficacious remedies available to a person. The ostensible reason is that criminal process being serious affair, a person should not be ordinarily

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Crl. Misc. No. M-15208 of 2011 (O&M)

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subjected to proceedings which on the face of it seem to be abuse of process of law.

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If the facts of the case are to be seen then the petitioner alleges that the accused persons had managed to extract an amount more than Rs. 17 lacs on the strength of the mis-representation regarding the property which was intended to be sold to the petitioner. It is also to be seen that there is a very thin line which segregates a criminal offence from a civil liability in case where a promise has been made to sell a property by vendor to the vendee and which promise is not honoured. It is the latent intent which defines the distinction between the two. The police having investigated the matter concluded that it is a question of civil liability and not a matter where criminality could be attributed. It is thus the conclusion of the police which does not necessarily imply that the information given by the petitioner to the police was incorrect.

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Section 182 of the Indian Penal Code is extracted here

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below:-

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“182. False information, with intent to cause public servant to use his lawful power to the injury of another person. - Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant-

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(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

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Crl. Misc. No. M-15208 of 2011 (O&M)

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(b) to use the lawful power of such public servant to the injury or annoyance of any person,

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shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” A perusal of the aforesaid provision of law makes it clear that it is a false information which the informant believes to be false if given to public servant would attract the provision of Section 182 of Indian Penal Code. But if the information given is correct and the police merely finds that it is not a criminal offence but a civil liability then merely because the investigating agency perceives it to be so does not tentamount to the information being false to invite criminality.

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The Court is thus of the opinion that Kalandra on the face of it is misconceived, hence, continuance of the proceedings pursuant thereto would be sheer abuse of process of law. Besides it has not been controverted that the cancellation report submitted by the police has not been accepted leaving the question of the criminality of accused persons shall open. Therefore, at this stage to say that the petitioner had given false information would be prejudging the issue.

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For the afore-stated reasons, the petition is allowed. The Kalandra (Annexure P-1) and the all the proceedings arising therefrom including the order of framing charge are hereby directed to be quashed.

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(MAHESH GROVER) JUDGE

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20.09.2011 reena

Sanjay Sharma v. State of Haryana

Case brief

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Sanjay Sharma v. State of Haryana

Case brief

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