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TMI Blog2000 (1) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed. - CRL.A. 91 OF 2000 - - - Dated:- 28-1-2000 - S. SAGHIR AHMAD AND D. P. WADHWA, JJ. JUDGMENT D.P. WADHWA, J. Leave granted. This appeal is directed against the judgment dated May 6, 1999 of Allahabad High Court dismissing the application of the appellants filed under Section 482 of the Code of Criminal Procedure (for short, the Code ). By this application the appellants had sought quashing of the criminal proceedings pending against them under Section 406/420" of the Indian Penal Code (for short the TPC) in the Court of Chief Judicial Magistrate, Ghaziabad and arising out of Case No. 674 of 1997 of Police Station Noida, District Gautam Budh Nagar. The First Information Report (FIR No. 517 dated August 17, 1997) was filed against seven persons including the two appellants by Mr. P.K. Sen Gupta (respondent No. 2), General Manager, M/s. Phoenix Interna-tional Finance Ltd., NOIDA (for short, the Finance Company ). He al-leged that Ashwani Suri, G. Sagar Suri (the first appellant) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused persons were fraudulent and committed with the common object to cheat the Finance Company. They did not want to refund the money in any way. He, therefore, requested for legal action against the accused persons, On the basis of the First informa-tion Report, the Police registered the case against seven persons, namely, Ashwani Suri, G. Sagar Suri (the first Appellant), Sukhvinder Singh, Shalini Suri, Shama Suri (the second appellant), Charanjit Singh and M.L. Kam-pani. After the investigation, the Police submitted charge sheet dated June 4,1998 in the court of the Chief Judicial Magistrate against four persons, namely, G. Sagar Suri (the first petitioner) Shama Suri (the second petitioner), Ashwani Suri and Shalini Suri describing all of them as Direc-tors of M/s. Ganga Automobiles Ltd. It was stated in the charge sheet that investigation was still pending against charanjit Singh, M.L. Kampani and Mukender Singh. During the course of investigation, statement of the complainant was again recorded on march 25,1998 by the Investigating Officer. Now his version was different. He said that in the first week of June 1996 Ashwani Kumar Suri and Mukender Singh contacted his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gar Suri, Director, (5) Shama Suri w/o G. Sagar Suri, (6) Mukender Singh, (7) Charanjit Singh and (8) M.L. Kampani, the accused 4 to 8 also being shown as Directors of M/s. Ganga Automobiles Ltd. In this com-plaint the case set out is that accused 2 to 8 came to the office of the Finance Company in the month of June 1996 and wanted loan for M/s, Ganga Automobiles Ltd. for Rs, 50,00,000 which they promised to repay with interest. On their representations the Finance Company gave them a loan of Rs. 50,00,000 by means of a cheque after the accused executed promissory note and agreement to repay the principal amount with interest by September 13, 1996. By getting this loan M/s. Ganga Automobiles Ltd. started earning profits after investing the amount in its business. The accused issued two cheques for repayment of the principal amount and the interest. Both these cheques when presented for payment were returned dishonoured. After the return of the cheques unpaid, the Finance Com-pany contacted the accused by telephone and also sent letters and wanted repayment of its money but the accused failed to pay the same and in fact 138. Dishonour of cheque for insufficiency, etc, of funds in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt stated that they were "directly responsible and liable for all the activities and affairs of the company and carry out and execute all the affairs in normal course of business with mutual consultation and participate in each and every work of the company". Obviously, it was necessary to state to make all the accused 2 to 8 liable for offence under Section 138 of the Negotiable Instruments Act. After examining the complainant, learned Additional Chief Judicial Magistrate was of the opinion that there was prima facie case made out against the accused persons for an offence under Section 138 of the Negotiable Instruments Act and by his order dated August 27, 1997 ordered summoning them all. In the Investigation of FIR No. 517 of 1997 it was found that both G. Sagar Suri and his wife Shama Suri were not the Directors of M/s. Ganga Automobiles Ltd. in the counter affidavit filed by L.V. Singh styling himself as authorised signatory on behalf of the second respondent P.K. Sengupta, the complainant, it is admitted that the appellants are not the Directors of Ganga Automobiles Ltd. It is, however, stated that G. Sagar Suri is not only the authorised signatory on behalf of Ganga Automo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence has been made out against them and still why must they undergo the agony of a criminal trial. Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction- under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. In State of Karnataka v. L. Muniswamy and Others, AIR (1977) SC 1489 = [1977] 3 SCR 113, this Court said that in the exercise of the wholesome power under Section 482 of the Code High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceed-ing to continue would be an abuse of the process of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482 Cr. P.C." This Court said that the Chief Judicial Magistrate, Secunderabad ought not to have taken cognizance of the proceedings. It said it considered it to be a fit case to involve jurisdiction under Section 482 of the Code. In the circumstances of the case in hand conclusion is inescapable that invoking the jurisdiction of criminal court for allegedly having com-mitted offences under Sections 406/420 IPC by the appellants is certainly an abuse of the process of law. In the counter affidavit filed on behalf of the complainant it is now admitted that none of the two appellants is a Director of Ganga Automobiles Ltd. Only in respect of the first appellant it is stated that he is the authorised signatory of that company and that in fact he had signed the cheques which were returned dishonoured. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ole to the first appellant. The allegation that in the first instance three persons contacted the complainant company, who told the complainant of other Directors with whom the complainant conversed on telephone appears to be rather improbable. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director or Ganga Automobile Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with a sole purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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