LONG NOTE
DELHI HIGH COURT
Pratibha Rani, J.
R.P. Malik —Petitioner
versus
State of NCT of Delhi and Ors. —Respondents
W.P. (Crl.) 545/2003
Decided on 22.05.2013

IMPORTANT POINT
Issue requiring appreciation of evidence cannot be dealt with under Section 482 Cr.P.C.

Headnote:(i) Prevention of Corruption Act, 1988—Section 12—Constitution of India—Article 226 read with Section 482 of Criminal Procedure Code, 1973—Abetment of offence—Petitioner has prayed for quashing of FIR which has already culminated into charge sheet—Trial is yet to commence in this case—Whether a case of abetment for purpose of offence punishable under Section 12 P.C. Act is made out, is required to be dealt with by Trial Court at appropriate stage—Similarly, effect of delay of few hours in registration of FIR cannot be taken into account while considering prayer for quashing of charge-sheet.

       Held: The petitioner has prayed for quashing of the FIR which has already culminated into charge sheet. The Trial is yet to commence in this case and suffice it to say that whether a case of abetment for the purpose of offence punishable under Section 12 P.C. Act is made out, is required to be dealt with by the Trial Court at the appropriate stage. Similarly, the effect of delay of few hours in registration of FIR cannot be taken into account while considering the prayer for quashing of Charge-sheet. Thus placing reliance on Om Prakash vs. State of Haryana (Supra) is of no help to the petitioner.

       (ii) Criminal Procedure Code, 1973—Section 482—Quashing—To invoke its inherent jurisdiction under Section 482 High Court has to be fully satisfied that material produced by accused is such that would lead to conclusion that his defence is based on sound, reasonable, and indubitable facts; material produced is such as would rule out and displace assertions contained in charges levelled against accused and material produced is such as would clearly reject and overrule veracity of allegations contained in accusations levelled by prosecution/ complainant—It should be sufficient to rule out, reject and discard accusations levelled by prosecution/complainant, without necessity of recording any evidence—For this material relied upon by defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality—Material relied upon by accused should be such, as would persuade a reasonable person to dismiss and condemn actual basis of accusations as false—In such a situation, judicial conscience of High Court would persuade it to exercise its power under Section 482 of Code of Criminal Procedure to quash such criminal proceedings, for that would prevent abuse of process of court and secure ends of justice.

       Held: The case law S.N. Sharma v. Bipen Kumar Tiwari & Ors., P.V. Jagannath Rao & Ors. v. State of Orissa & Ors., Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & Ors., Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors., Harshendra Kumar D. v. Rebatilata Koley & Ors., Anita Malhotra v. Apparel Export Promotion Council & Anr. (Supra) relied upon by learned Senior Advocate for the petitioner deal with the powers of the High Court under Articles 226 & 227 of the Constitution of India and under Section 482 CrPC and when such power can be exercised.

       (iii) Negotiable Instruments Act, 1881—Section 138—Prevention of Corruption Act, 1988—Section 12—Constitution of India—Article 226 read with Section 482 of Criminal Procedure Code, 1973—Abetment of offence—For an offence under Section 12 of P.C. Act offer to bribe would amount to abetment irrespective of fact whether cash was placed before public servant or not and whether he agrees to accept the same or not—Mens rea of bribe giver is relevant consideration for purpose of offence under Section 12 of P.C. Act—It cannot be said that charge sheet does not disclose commission of offence under Section 12 of P.C. Act—It is not discernible from record that ACP filed a frivolous and vexatious complaint at behest of person and his family members with whom petitioner is litigating—Subsequent conduct of ACP on getting information from his residence about packet left and currency notes recovered, cannot be judged on the basis of probabilities at this stage, as it is subject matter of trial—There is no hard and fast rule as to how a person would react in a given situation—Everybody has his own way to react in given situation and circumstance—In case of well planned false implication of petitioner under Section 12 P.C. Act, version of complainant would have been foolproof to the extent that petitioner would have been got arrested then and there—Litigation under Section 138 N.I. Act being initiated by petitioner, police had hardly any role to play in that dispute—Writ Petition dismissed.

       Held: For an offence under Section 12 of P.C. Act, offer to bribe would amount to abetment irrespective of the fact whether cash was placed before the public servant or not and whether he agrees to accept the same or not. The mens rea of the bribe giver is relevant consideration for purpose of offence under Section 12 of the P.C. Act.

        On perusal of the complaint, I find it difficult to agree with the submissions made by learned Senior Advocate for the petitioner that the charge sheet does not disclose commission of offence under Section 12 of P.C. Act. It is not discernible from the record that ACP Rajiv Ranjan filed a frivolous and vexatious complaint at the behest of Naveen Soni and his family members with whom the petitioner is litigating.

        The contention of learned Senior Advocate for the petitioner is that this case has been foisted on the petitioner by the ACP in nexus with Naveen Soni and others. When this Court asked learned Senior Advocate for the petitioner to show from record to even derive the inference of so-called nexus, none could be pointed out. The question that arises for consideration is what axe the complainant had to grind in the dispute between R.P.Malik and Naveen Soni and his family or Shri Anoop Minocha, son-in-law of R.P.Malik and Naveen Soni and others. The petitioner claims himself to be a respectable person of the area being Chairman of reputed educational institution as well as Executive Magistrate and Chief Administrative Officer of District and Sessions Court. The conduct of the ACP Rajiv Ranjan in asking R.P.Malik why he has come and his reply “Mein To Janab Ki Sewa Karne Aaya Hun, Aap I.O Ko Kah Kar Mera Case Court Bhijwa Do”, leading to the reaction that the ACP asked him to leave immediately, without ensuring that he escort upto the main gate, cannot be termed as unusual when he is stating that thereafter R.P.Malik started walking out of the drawing room and he retreated to the interior. The subsequent conduct of the ACP on getting information from his residence about the packet left and the currency notes recovered, cannot be judged on the basis of probabilities at this stage, as it is the subject matter of trial. There is no hard and fast rule as to how a person would react in a given situation for the reason that everybody has his own way to react in the given situation and circumstance. The fact remains that the FIR was registered at Anti Corruption Branch, Delhi in the evening though R.P.Malik visited his house at about 8 a.m. in the morning. But it can be inferred from the complaint that the ACP had tried to incorporate the events in the sequence they took place. In case of well planned false implication of the petitioner under Section 12 P.C. Act, the version of the complainant would have been foolproof to the extent that the petitioner would have been got arrested then and there. At the cost of repetition, it can be noted that the basic dispute between R.P.Malik and Naveen Soni was over a property deal which could not materialize and root of the problem was Rs.15 lacs which was paid as advance by R.P.Malik to Naveen Soni and others, but when the transaction could not be completed, it was sought to be refunded through cheque which got bounced. Litigation under Section 138 N.I. Act being initiated by the petitioner, police had hardly any role to play in that dispute. Subsequent disputes between the petitioner and his son-in-law with Naveen Soni and others cannot be said to be of that magnitude so that to help Naveen Soni, the ACP himself would become complainant against the petitioner for the offence under Section 12 P. C. Act. Whether the complaint by the ACP is probable is subject matter of trial and whether ingredients of Section 12 P.C. Act are satisfied so as to warrant trial in the case, the stage is yet to come and it shall be for the Trial Court to hear on this aspect at the stage of charge.

       Issue requiring appreciation of evidence cannot be dealt with under Section 482 CrPC. In the case Chand Dhawan (Smt.) v. Jawahar Lal & Ors.16, it was observed that. When the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved.’

        It may be noted that in the ongoing litigation between the petitioner and his son-in-law on the one hand and Navin Soni and others on the other hand, mere filing of charge sheet in case FIR No.187/2000 PS Shakarpur or FIR in other cases is not sufficient to draw any kind of interference about the correctness of the accusations unless proved during trial.

       Thus, the submissions made on behalf of the petitioner that filing of charge sheet in case FIR No.187/2000 PS Shakarpur is sufficient to prove the correctness of the allegations, has to be rejected.

       The contention of the petitioner that request to the ACP for filing of charge-sheet in case FIR No.187/2000 against Naveen Soni and others could not be termed as illegal is not the issue in this case. The grievance referred to in the complaint of the ACP is that the petitioner brought the sweet box containing an envelope in which Rs.15,000/- were kept and left at the house of ACP. On consideration of the facts and circumstances narrated in the complaint and the statements of the witnesses recorded during investigation, I am of the considered view that the steps delineated in Rajiv Thapar’s case (supra) remains unsatisfied. 46. Since on examining the charge sheet and the material available on record, it is clear that none of the test laid down in Satish Mehra vs. State of NCT of Delhi and Rajiv Thapar and Ors. Vs. Madan Lal Kapoor (Supra) are satisfied, this petition is bound to be dismissed.

        However, before parting, it is necessary to note that for the last 10 years, the trial could not proceed for the reason that Trial Court Record was got consigned to Record Room on the basis of submissions made by the petitioner which were factually incorrect. 48. The observation made by the Apex Court in para 15 of the report Santosh De & Anr. vs. Archna Guhar & Ors., (1994) 2 SCC 420 describes such litigants and approach of the High Court towards such litigations. Para 15 of the report read as under :

        “15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 CrPC. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system.’

       The offshoot of foregoing discussion is that there is no merit in this writ petition. Hence, W.P.(Crl.) No.545/2003 is hereby dismissed with no order as to costs.