Point of Law : Where a criminal proceeding is manifestly attended with mala fides and/or where proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on Accused and with a view to spite him due to private and personal grudge.

JUDGMENT :

1. The petitioners have sought for quashing of FIR No. 267/2022 registered with Ashok Nagar Police Station, Jaipur City (South), Jaipur for offence under Section 354 IPC at the behest of respondent No.2.

2. The FIR has been challenged on the ground that just to pressurize in the civil dispute, the criminal proceedings have been abused for malicious and ulterior motive to wreak vengeance on the petitioners.

3. Undisputed background of the case is that M/s Prem & Company, a partnership firm entered into a business agreement with M/s Sharda Infrastructure Developers on 1.8.2019. Husband of respondent No.2 signed the agreement as authorised agent of his father Shri Chander Prakash Sharma who was one of the partner of M/s Prem &Company. Petitioner No.1 Nitesh Sharma signed the agreement as sole proprietor of M/s Sharda Infrastructure Developers. Petitioner No.2 is an employee of Sharda Infrastructure Developers. Some business dispute arose between the parties and M/s Prem & Company served a notice on the petitioners’ company on 25.8.2021 terminating the agreement aforesaid by following term No. 9.2. It was alleged that M/s Sharda Infrastructure Developers had committed material breach of the provision of the agreement. Soon thereafter both the parties to the agreement approached the Court under Section 9 of the Arbitration and Conciliation Act, 1996 for interim relief of injunction. By order dated 27.4.2022, the learned Commercial Court dismissed both the petitions, however observed, on the basis of material on record, that lock and key of Shikha Hotel with respondent Sharda Infrastructure goes to show that respondent (Sharda Infrastructure Developers) is in actual possession of the hotel and not the applicant (M/s. Prem and Company), as such there was no prima facie case in favour of applicant for grant of injunction. In the concluding paragraph, the Commercial Court recorded as follows:

“54. As discussed above the prima facie case, balance of convenience and irreparable loss, all the three points are found against the applicants and as such this application under Section 9 of the Arbitration and Conciliation Act, 1996 is liable to be dismissed. Hence dismissed. The applications filed by both the parties are disposed of accordingly. No orders as to costs. So far the application filed by M/s. Sharda Infrastructure Developers is concerned keeping in view the facts and circumstances of the matter, the order of maintenance of status quo in respect of the disputed property is proper order and both the parties are directed to maintain the status quo regarding the possession of the property. This order of status quo will be effective for 90 days only and if in between the arbitrator is not being appointed as per the provisions of the Arbitration and Conciliation Act, 196, then this status quo order will be lapse automatically.”

4. On 12.5.2022, this Court appointed sole arbitrator in this matter. However, Hon’ble Mr Justice N.K. Jain, former judge of this Court expressed his unwillingness to go with the arbitration proceedings, thereafter by order dated 30.6.2022, Hon’ble Mr. Justice Guman Singh, former judge was appointed as an arbitrator. Husband of respondent No.2 moved an application before the learned Arbitrator for dropping the proceedings. Consequently on 22.7.2022, arbitration proceedings was dropped. The finding of the Commercial Court that M/s Sharda Infrastructure Developers is in possession of Shikha Hotel has not been disturbed in any other proceedings.

5. According to the impugned FIR, respondent No.2 and her husband had gone at about 11.00 PM on 15.8.2022 to Shikha Hotel to mend the generator as electricity was not functioning at that time. Petitioner No.2 and his four associates allegedly stopped respondent No.2 and her husband from entering into the hotel. In the meantime, the petroling police came and went away. Thereafter the accused persons attempted to outrage the modesty of respondent No.2 and threatened to ra