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1997 Supreme(Sikk) 7
HIGH COURT OF SIKKIM
M. SENGUPTA
NUSWAN BURJOR MADAN - Appellant
Versus
BISWANATH DAS - Respondents
CRI. MISC. 5 Of 1997
Decided On : July 22, 1997
A.K.UPADHYAYA, J.B.Pradhan, S.KHARE, S.P.WANGDI, V.Agarwal
The Court can quash criminal proceedings under Section 482, Cr. P. C., only if no prima facie case is made out or if the proceedings are malicious or vexatious.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 482 - QUASHING OF CRIMINAL PROCEEDINGS - COURT'S POWER TO QUASH - SCOPE AND LIMITATIONS - COURT CAN QUASH PROCEEDINGS ONLY IF NO PRIMA FACIE CASE IS MADE OUT OR IF PROCEEDINGS ARE MALICIOUS OR VEXATIOUS.
Fact of the Case:
The petitioners were accused of cheating the complainant by taking part payment for a piano and then failing to deliver it. The complainant filed a complaint before the Judicial Magistrate, East Sikkim, who issued summons to the petitioners. The petitioners filed a petition in the High Court under Section 482, Cr. P. C., seeking to quash the proceedings.
Finding of the Court:
The High Court held that the complaint did not disclose a prima facie case of cheating and that the proceedings were malicious and vexatious. The Court noted that the petitioners had admitted to having the piano and that they had taken part payment for it. However, the Court found that there was no evidence of any dishonest intention on the part of the petitioners at the time of entering into the agreement for sale. The Court also noted that the complainant had an alternative remedy in a civil court.
Issues: 1. Whether the complaint disclosed a prima facie case of cheating? 2. Whether the proceedings were malicious and vexatious?
Ratio Decidendi: 1. The Court held that the complaint did not disclose a prima facie case of cheating because there was no evidence of any dishonest intention on the part of the petitioners at the time of entering into the agreement for sale. 2. The Court held that the proceedings were malicious and vexatious because the complainant had an alternative remedy in a civil court.
Final Decision: The High Court allowed the petition and quashed the proceedings in the Trial Court.
( 1 ) THIS case arises out of an application filed under Section 482, Cr. P. C. with a prayer for quashing the complaint filed before the learned Judicial Magistrate, East Sikkim in Criminal Case No. 6/95 wherefrom summons have been issued and served upon the petitioners before us.
( 2 ) THE fact of the case in a nutshell is that the opposite party, respondent No. 1 in this proceeding, filed a complaint before the learned Judicial Magistrate, East Sikkim against the petitioners before us. It was registered as Criminal Case No. 6/95. Learned Magistrate examined the complainant and issued summons upon the accused-petitioners. Summons was ordered for on 26-9-95 but was actually served on the accused/petitioners on 27-11-96. The accused persons made appearance before the learned Magistrate through their lawyer and thereafter they have filed the present petition in this Court on 14-5-1997.
( 3 ) THE fact as disclosed in the petition of complaint is that the accused persons were in possession of a costly piano at their residence in Darjeeling. The complainant approached the accused persons for sale of the said piano. He agreed to sell it at a price, ultimately bargained to Rs. 40,000/ -. The complainant had the idea of reselling the same to one of his friends at Calcutta with a profit of a few thousand rupees. It has been alleged that on 24-5-97, the accused persons came to Gangtok and collected 50% of the price so fixed from the complainant on the undertaking to deliver the piano at Gangtok within a week and to take payment of the balance of Rs. 20,000/ -. A receipt was granted by the accused petitioner No. 1 on receipt of the part payment of Rs. 20,000/- at Gangtok on 24-5-95 as aforesaid. It has been further alleged that the accused persons did not turn up with the piano. From the very start of the negotiation they had the idea of withholding delivery of the piano and extracting the money from the complainant.
( 4 ) THE case of the accused persons is a complete denial of all the allegations. The entire transaction and the story behind has been denied by the accused persons. After being summoned by the learned Magistrate under Sections 417/420/34, IPC, the accused have come before this Court under Section 482, Cr. P. C. It has been alleged that the story of the transaction is outright false. Moreover, no part of cause of action has taken place within the State of Sikkim. It has also been contended that no prima facie case was made out before the learned Magistrate and that complainant was the lone person to depose before the learned Magistrate. It has been pleaded that there is no ingredient of Section 415, IPC in the instant case. It has been alleged that the complainant has been set up by some Agarwala who are inimical towards the petitioners and who have been trying to keep the petitioners entangled with false criminal and civil cases.
( 5 ) THE complainant-respondent opposes the contention of the accused-petitioners on the ground that this petition in its present form is not maintainable. It is barred under the law of limitation and that this Court by exercise of any power under Section 482, Cr. P. C. cannot quash the proceedings at this stage. It has been contended that the petitioners had all along the intention and motive to cheat the complainant.
( 6 ) IT is a settled principle that the Court by way of invoking power under Section 482, Cr. P. C. can quash a criminal proceeding in appropriate cases. While invoking the provision of Section 482, Cr. P. C. this Court must see if the allegations in the complaint, if accepted at their face value, constitute the offence as alleged. Decisions reported in AIR 1977 SC 1754, Sharda Prasad v. State of Bihar and 1982 0 Crlj 2266, Ramautar Choukhanv v. Hari Ram Todi, may be referred to in this context. it is pertinent to note that Section 482, Cr. P. C. has been introduced in the procedure code with a design to achieve a salutary public purpose. It should not be permitted
