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2007 Supreme(J&K) 280
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohd. Yaqoob Mir, J.
Helena G. - Appellant
Versus
Ali Mohd. Parray & Anr. - Respondent
561-A Cr.P.C. No. 75/2007
Decided On : 20 December, 2007
Advocate For Appellant: M.S. Latief
Advocate For Respondent: Mir Shafaqat Hussain
The absence of dishonest intention at the beginning of transactions and the civil nature of liability arising from breach of contract were central legal principles established in the judgment.
Headnote:
ABUSE OF PROCESS - Criminal Proceedings - Section 420 & 506 RPC - AIR 1999 SC 1480, AIR 2000 SC 754, 2005 (1) Cr. R. 489 (S.C.), 2006(II) SLJ 789, 2002(1) SLJ 78 - The court discussed the abuse of process of court and violation of norms of justice in criminal proceedings initiated based on a complaint. The judgment referenced various legal provisions and emphasized the absence of dishonest intention at the beginning of the transactions, the civil nature of liability arising from breach of contract, and the need for vigilance in entertaining vexatious and frivolous complaints by criminal courts.
Fact of the Case:
Criminal proceedings were initiated based on a complaint filed by the father of a partner in a partnership business, alleging fraudulent transactions and deceitful intentions by the accused. The accused petitioned for the quashment of the proceedings, claiming abuse of process of court.
Finding of the Court:
The court found that the partnership business between the petitioner and the partner of the complainant was genuine, and the transactions in question were part of the partnership business. It concluded that the alleged dishonest intention did not exist at the beginning of the transactions and that the matter was purely civil in nature.
Issues: The issues revolved around the genuineness of the partnership business, the absence of dishonest intention, and the abuse of process of court in initiating criminal proceedings for civil matters.
Ratio Decidendi: The court emphasized the absence of dishonest intention at the beginning of the transactions, the civil nature of liability arising from breach of contract, and the need for vigilance in entertaining vexatious and frivolous complaints by criminal courts.
Final Decision: The court quashed the proceedings, stating that they were initiated to browbeat and tyrannize the petitioner and amounted to abuse of process of law.
2. Basically son of the complainant, respondent no.2 herein and the petitioner have entered into a partnership whereunder they have agreed to carry partnership business under the name and style of M/S COCO at Firm 3527, Off Domlur Service Road, 13th Main, 1st Gross, Indira Nagar, Bangalore, even open to the parties to carry on business at any additional place(s) as may be mutually agreed between them from time to time. Date of commencement of partnership has been 15.08.2006. Garments, Fabric designing, Job work, Hospitality Services, Consultation etc. was to be dealt with in partnership business and change of nature of business with the condition to carry on business or any additional business will be on agreement of the partners. In case of dispute between the partners, matter has to be dealt with by referring the dispute to the Arbitration.
3. Complainant, father of Imshan partner of the firm has filed a complaint against petitioner alleging therein that his son and the accused (petitioner herein) are running the business under the name and style of M/S COCO at Bangalore, in that connection complainant used to visit Bangalore and accused also used to visit Srinagar. According to respondent no.1 (complainant) on 01.09.2006, petitioner asked him for money in lieu of which, the petitioner would send the silk garments to him for sale at Kashmir.
4. According to the complainant, accused convinced him about the genuineness of transactions and made him to believe that garments at cheap and reasonable rates would be supplied to him. Pursuant to the said belief, persuasion, and motivation, complainant claim to have deposited Rs. 01 lac in account no. 10416344174 of State Bank of India and again deposited Rs. 01 lac in the account no.30077421631 in the name of COCO/Chezmine to be encashed at State Bank Of India, Bangalore. The said amount is stated to have been received by the petitioner. It is further alleged that the petitioner had no intention to send the goods but fraudulently and with the deceitful intention, complainant has been made to part with the money, when the accused was never dealing in garments.
5. Learned Magistrate, after recording the statement of the complainant and one witness produced therein, has taken the cognizance for commission of offence punishable under Section 420 & 506 RPC, as such, issued the process. Aggrieved by the said proceedings, instant petition for its quashment, as proceedings initiated by the trial court are projected to be abuse of process of Court, prevention of which is required as warranted under Section 561-A Cr.P.C.
6. Heard appearing counsel for the parties. Learned counsel appearing for the petitioner highlighted the circumstances as well as the allegations contained in the complaint and projected that basically partnership business was running between the petitioner and respondent no.2. Petitioner no.2 having, shown the different face, as he had left abroad leaving partnership business at the mercy of petitioner. It is in that connection father of respondent no.2 (complainant) has stepped in with the sole aim to settle the partnership transaction by having resort to launching of criminal proceedings.
7. In support of his contentions, learned counsel relied on judgment reported in AIR 1999 SC 1480 titled Nageshwar Prasad Singh v. Narayan Singh and anr., AIR 2000 SC 754 titled G. Sagar Suri and anr. v. State of U.P and ors., 2005 (1) Cr. R. 489 (S.C.) titled Kailash Verma v. Punjab State Civil Supplies Corp. and anr., 2006(II) SLJ 789 Roshan Lal Ansari & Ors v. M/S Kashmir Commercial Agency & Ors., 2002(1) SLJ 78 titled Satlsh Khosla and ors. v. Puran Chand.
8. Learned counsel for respondents reiterated that respondent no.1 has been induced to part with the amount of Rs. 2 lac wi
