Back
2003 Supreme(All) 152
HIGH COURT OF ALLAHABAD
Imtiyaz Murtaza
LT COL ALIASRETD ALIAS PROPKAR SINGH
Versus
STATE OF U P
Decided On : 27 January 2003
Criminal Misc. Application No. 4519 of 2002
Devendra Dhama, SAT BIR SINGH,
The power to quash criminal proceedings should be sparingly exercised, and the allegations should prima facie disclose the commission of an offence.
Headnote:
Abuse of Process - Criminal Complaint - Section 420 IPC - Summary of Acts and Sections: Section 420 IPC - The court discussed the scope of Section 482 Cr. P. C. and emphasized that the power to quash criminal proceedings should be sparingly exercised. It highlighted the distinction between civil and criminal proceedings and the standard of proof required in both matters. The court also considered the allegations in the complaint and the statements of witnesses to determine if an offence under Section 420 IPC was made out. The judgment focused on the need for caution in exercising jurisdiction under Section 482 Cr. P. C. and the requirement for the allegations to prima facie disclose the commission of an offence.
Fact of the Case:
The petition was filed to quash the order and proceedings of a complaint case alleging cheating and breach of trust by the accused in a partnership firm. The accused were alleged to have induced the complainant to invest money and subsequently misappropriated funds from the project account.
Finding of the Court:
The court held that the power to quash criminal proceedings should be sparingly exercised and emphasized the need for the allegations to prima facie disclose the commission of an offence. It partially allowed the petition, quashing the proceedings against two accused and dismissing it against the other two accused. The court directed the appearance and cooperation of the accused in the trial.
Issues: The main issue was whether the allegations in the complaint and the statements of witnesses prima facie disclosed the commission of an offence under Section 420 IPC, and whether the power to quash criminal proceedings should be sparingly exercised.
Ratio Decidendi: The court emphasized the need for caution in exercising jurisdiction under Section 482 Cr. P. C. and highlighted the distinction between civil and criminal proceedings. It held that the power to quash criminal proceedings should be sparingly exercised and the allegations should prima facie disclose the commission of an offence.
Final Decision: The petition was partially allowed, quashing the proceedings against two accused and dismissing it against the other two accused. The court directed the appearance and cooperation of the accused in the trial.
The present petition has been filed for quashing of the order dated 4-2-2002 passed by the Chief Judicial Magistrate, Gautam Budh Nagar in complaint case No. 5070/2000 and proceedings of complaint case and also order dated 18-4-2002 passed by the Additional Sessions Judge (Fast Track Court), Gautam Budh Nagar in Criminal Revision No. 19/2002.
2. The appellants are class-AMES contractor in the name and style of M/s. Good Value Engineers. The firm is a registered partnership firm and applicants are the partners of the aforesaid firm. Opposite Party No. 2 had filed a complaint against the applicants in the Court of the Chief Judicial Magistrate, Gautam Budh Nagar, alleging therein that in September, 1997 applicants were the lowest tenders in MES work contract No. CE (FY)HYD/bha/04/97-98. The said work contract was awarded to them. The applicants did not have adequate working capital to execute the aforesaid MES work contract and they approached the opposite party No. 2 for a loan in the sum of Rs. 10. 00 lacs. The opposite party No. 2 showed his inability to give such a huge amount as an unsecured loan. The accused persons/applicants then made an offer to the complainant/opposite party No. 2 to join them as a second party in the execution of the aforesaid MES contract work. The partnership between the accused persons/applicants and complainant/opposite party came in existence from 30-10-97 by an oral agreement. The oral agreement was reduced in writing agreement was entered into between the parties. It is alleged in the complaint that this agreement was denied by the accused.
3. It is further alleged in the complaint that complainant/opposite party No. 2 was not a partner in the partnership firm M/s. Good Value Engineers. The accused persons had executed a General Power of Attorney on 6-11-1997 in favour of complainant/opposite party No. 2 so as to enable him to operate the
project account can dare with the Government departments for the execution of the aforesaid MES works contract.
4. It is further alleged that on 4-8-1998 the accused persons revoked the aforesaid General Power of Attorney on the pretext of replacing it by a Special Power of Attorney, which was never executed.
5. It is alleged that the sole motive of the accused persons in revoking the aforesaid General Power of Attorney was to keep the complainant away from the operation of the accounts, management of the project during the second half of the execution of MES work contract. The complainant was a Project Manager and did not receive any remuneration except free accommodation, food and transport as he was sharing the profit as a partner. As per mutual agreed terms and conditions of the agreement both parties were expected to invest in the ratio of 50:50 for the execution of the aforesaid MES work contract, but complainant had made 75% of the investment and the accused persons did not invest their full share of the investment and committed a breach of trust.
6. It is further alleged in the complaint that the accused persons on one hand did not invest their full share of the investment and on the other during first half of the execution of MES work contract withdrew fraudulently a sum of Rs. 7. 50 lacs as an advance for building material, which was never purchased.
7. It is further alleged in the complaint that during second half of the execution the accused persons dishonestly misappropriated huge amount by withdrawing Rs. 34,97,152 through pay orders from the project account in State Bank of India Jawahar Nagar (Bhandra) and thereafter, encashed the pay order in their accounts in Vijya Bank, Noida.
8. It is further alleged that the accused persons right from the beginning wanted to cheat the complainant in a total violation of agreed terms and conditions. The accused persons avoided to invest their full share of investment and withdrew Rs. 7. 50 lacs as an advance for building material, which was never purchased and subsequently accused perso
