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SUPREME COURT OF INDIA
A.K. Sikri, Ashok Bhushan, JJ.
Vineet Kumar & Ors. – Appellants
Versus
State of U.P. & Anr. – Respondents
Criminal Appeal No. 577 of 2017 (Arising Out of SLP(Crl.) No. 287 of 2017)
Decided On : 31-03-2017
(B) Indian Penal Code, 1860 – Sections 452, 376(d) and 323 – Criminal Procedure Code, 1973 – Section 482 – Lurking house trespass, rape and grievous hurt – Dismissal of quashing petition by High Court – On dishonour of cheques issued by complainant's husband and son proceedings under Section 138 of Negotiable Instruments Act were already initiated by accused – No medical examination was got done without delay – Apart from bald assertions by complainant that all accused have raped, there was nothing which could have led Courts to form an opinion that present case is fit a case of prosecution which ought to be launched – Statement given by prosecutrix/complainant under Section 164 Cr.P.C. is not to be lightly brushed away but statement was required to be considered along with antecedents, facts and circumstances – Present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed criminal proceedings – Judgment of High Court as well as order of Additional Chief Judicial Magistrate and order of Sessions Judge including entire criminal proceedings quashed. (Paras 26, 34, 35, 39 and 40)
Facts of Case:
Instant appeal has been filed against judgment of the High Court of Judicature at Allahabad dismissing Application filed by appellants under Section 482 Cr.P.C. Appellants had filed Application under Section 482 Cr.P.C. for quashing judgment and order passed by Additional Chief Judicial Magistrate-IV, Moradabad summoning appellants for an offence under Section 452, 376(d) and 323 IPC, as well as order passed by District Sessions Judge, Moradabad dismissing Criminal Revision filed by appellants.
Findings of Court:
In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Court cannot permit a prosecution to go on if case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash proceeding.
Result : Appeal allowed.
JUDGMENT
Ashok Bhushan, J.
This appeal has been filed against the judgment dated 16.12.2016 of the High Court of Judicature at Allahabad dismissing the Application filed by the appellants under Section 482 Cr.P.C. Appellants had filed Application under Section 482 Cr.P.C. for quashing the judgment and order dated 03.08.2016 passed by Additional Chief Judicial Magistrate-IV, Moradabad summoning the appellants for an offence under Section 452, 376(d) and 323 IPC, as well as order dated 22.10.2016 passed by the District Sessions Judge, Moradabad dismissing the Criminal Revision filed by the appellants. The appellants shall hereinafter be referred to as accused and respondent No.2 as complainant. The facts of the case as emerged from the records need to be noted for deciding the issues raised in this appeal.
2. The accused have made several financial transactions with complainant, Smt. Rekha Rani, her husband, Akhilesh Kumar and her son, Ankur in the months of May, 2015. Accused No.3 gave Rs. 9 lakh to husband and son of the complainant for business purposes. An amount of Rs. 7 lakh 50 thousand was given in cash to complainant and her husband by accused No.1. Further, husband of complainant received Rs. 3 lakh 60 thousand in cash and Rs. 2 lakh 40 thousand by cheque dated 29.05.2015 from accused No.1.
3. An agreement dated 29.05.2015 was signed by the husband of the complainant and accused No.1 acknowledging the payment of Rs. 3 lakh 60 thousand in cash and Rs. 2 lakh 40 thousand by cheque. A cheque of Rs. 6 lakh was handed over by the husband of the complainant to accused No.1 to ensure the re-payment. Another agreement between the complainant and accused No.1 was entered into on 01.06.2015 wherein it was acknowledged that complainant and her husband had taken Rs. 7 lakh 50 thousand in cash from accused No.1. Earlier, husband of complainant took Rs. 6 lakh from accused No.1. Parties entered into an agreement agreeing with certain conditions. Third agreement was entered into between the son of complainant and accused No.1 on 31.08.2015 wherein son of complainant acknowledged that his parents have taken an amount of Rs. 14 lakh 50 thousand. Complainant and her husband gave cheques of Rs. 6 lakh and Rs. 8 lakh 50 thousand to accused No.1 drawn on Prathama Bank, Kanth Branch, District Moradabad for recovery of the amount given by the accused. Agreement noticed that the amount was borrowed with promise to return the amount. The agreements were written on Non-Judicial Stamp Papers which were not registered but contained signatures of the parties mentioned therein.
4. Accused No.3 filed a complaint under Section 138 of Negotiable Instruments Act being Complaint No.1587/2015 against husband and son of the complainant with the allegation that amount of Rs. 9 lakh was paid to the opposite parties who had issued a cheque of Rs. 9 lakh with the assurance that the amount will be repaid by 22.08.2016. It was stated by accused No.3 in the complaint that after lapse of time when the amount was not paid, the cheque was deposited which was returned back by the Bank with remark "No Sufficient Balance". When the opposite parties were contacted in this regard, the opposite parties told not come to them. After giving a notice on 05.09.2016, complaint was filed on 21.09.2015. Accused No.1 had also filed an Application on 29.09.2015 under Section 156(3) Cr.P.C. against the complainant, her husband and son. Cheque given by son of the complainant of Rs. 6 lakh to accused No.2 was also dishonoured. Complaint filed by accused No.1 under Section 138 of Negotiable Instruments Act was registered as Complaint No.3280/2015. Complaints against complainant, her husband and son were filed in the month of September, 2015 alleging dishonoured of cheque and complaint of non-payment of amount given to the complainant and her husband and son.
5. On 30.10.2015 complainant filed an Application under Section 156(3) Cr.P.C. against all the three accused alleging commission of off
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