2013 (9) TMI 1252 - SC - Indian Laws

Allegations of connivance on District Excise Officer (DEO) - Replacement of deed - Appeal in HC for Quashing a complaint u/s 420 and 120-B of the IPC against DEO - Forged and fabricated Partnership deed - Excise Contracts for Business of liquor - On 27.2.2002, a partnership firm was constituted and a partnership deed was executed on the same date with the intention to carry on business of liquor. The said partnership firm was reconstituted and a deed dated 5.3.2002 was executed inducting among others the respondent no.1 a partner of the firm and the said firm now consisted of twelve partners. The excise auctions for the year 2003-2004 was held on 6.3.2003 and the said firm participated in the auction and being a successful bidder, the contract was awarded to it. The respondent no. 1 filed a complaint alleging that while negotiating and accepting the contract for the year 2003-2004, the reconstituted partnership deed dated 5.3.2002 was utilised, he had also invested a huge amount, but the said deed was subsequently replaced by a forged/fabricated deed dated 6.3.2003 in which the respondent no.1 was not a partner, was implanted in the excise office in its place to deprive him of the profits of the firm. HELD THAT - When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the court should judge the probability, reliability or genuineness of the allegations made therein. More so, the charge sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Cr.P.C. It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not kill a still born child , and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the court should judge the probability, reliability or genuineness of the allegations made therein. Enquiry proceedings to continue.

Summary

Issues Involved:
1. Application under Section 482 of the Code of Criminal Procedure (Cr.P.C.) for quashing a complaint.
2. Allegations of cheating and forgery under Sections 420 and 120-B of the Indian Penal Code (IPC).
3. Delay in filing the complaint.
4. Validity and acceptance of inquiry reports.
5. Prima facie satisfaction for issuing process in a complaint case.
6. Abuse of the process of law.

Detailed Analysis:

1. Application under Section 482 Cr.P.C. for Quashing a Complaint:
The appellant sought quashing of a complaint under Sections 420 and 120-B IPC filed by the respondent, which was dismissed by the High Court. The Supreme Court examined whether the High Court erred in dismissing the application under Section 482 Cr.P.C. The appellant argued that the complaint was an abuse of the court process, as the appellant had been exonerated in various departmental inquiries.

2. Allegations of Cheating and Forgery:
The respondent alleged that the appellant and other partners replaced a genuine partnership deed dated 5.3.2002 with a forged deed dated 6.3.2003 to deprive him of profits. The complaint included specific details, such as the impossibility of the execution of the deed on 6.3.2003 due to the presence of a partner in Ujjain on the same date.

3. Delay in Filing the Complaint:
The appellant contended that the delay of five years in filing the complaint was a ground for quashing it. However, the respondent argued that he became aware of the fraudulent activities only after the inquiry reports were made available in 2007. The Supreme Court noted that the delay was immaterial as the facts came to light much later.

4. Validity and Acceptance of Inquiry Reports:
The inquiry reports by Shri B.K. Vyas and Shri D.R. Johri concluded that the appellant and others were involved in misconduct. However, the State Government did not accept these reports. The Supreme Court emphasized that the question of whether the appellant was responsible for the alleged acts would depend on the evidence presented in court.

5. Prima Facie Satisfaction for Issuing Process:
The Supreme Court reiterated that for taking cognizance or issuing process in a complaint case, the court must have a prima facie satisfaction that there is some material on record to proceed against the accused. The CJM, Bhopal, issued the process after being satisfied that there was material to proceed against the appellant and others.

6. Abuse of the Process of Law:
The appellant argued that the complaint was filed with mala fide intentions to harass him. The Supreme Court acknowledged that while delay in lodging an FIR could be a factor, it should not be the sole reason for quashing proceedings if there is a plausible explanation for the delay. The court emphasized that criminal proceedings should not be used as a tool for harassment and should be quashed only in compelling circumstances.

Conclusion:
The Supreme Court dismissed the appeal, finding no cogent reason to interfere with the impugned complaint or orders. The court held that the allegations had some substance and warranted further investigation. The decision underscored that an appropriate prosecution should not be stifled at the threshold unless there are compelling reasons to do so.