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2020 Supreme(All) 770
IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Sachin Kumar Srivastava – Applicant
Versus
State of U.P. and Another – Opposite Parties
Application U/S 482 No. - 14261 of 2020
Decided On : 06-10-2020
Advocate Appeared:
For the Applicant : Kamlesh Kumar Singh
Point of Law: While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may
Headnote:
Civil Laws – Dishonoured Cheque – Compromise – Perusal of the first information report, which after some investigation has culminated into a chargesheet, shows that the applicant, Sachin Kumar Srivastava is a businessman engaged in the business of running a printing press. – It is alleged in the FIR that he asked the informant, opposite party no.2 to invest in business which would yield good profit. – It is also alleged that it was represented to complainant-opposite party no.2 that the sum of Rs. 22,00,000/-that she was invited to invest would be returned to her, and in the profit of 40% that the parties would earn, there would be sharing on the basis of 50% each – It is alleged in the FIR that at some stage, the applicant turned dishonest and did not refund her money. – It is also alleged that when the informant demanded her money, the applicant said that their partnership cannot continue and it is better that they part ways. It was also represented to the informant, as part of this dissolution, that the applicant would pay the informant-opposite party no.2, a sum of Rs. 19,000/-per mensem and in that manner would repay the principal sum of money within a period of three years. – It is alleged that two cheques, mentioned in the FIR, when presented on 10.05.2018 and 07.06.2018, were dishonored: one on account of signatures of the account holder not tallying, and the other, due to the account being closed. – It is alleged that the informant contacted the applicant about the dishonored cheques whereupon the applicant promised that he would arrange and pay the money due. – It is said that a period of four months elapsed but to no avail. – There are then certain allegations of a sharp exchange of words and a threat extended. –
Finding of the Court:
Present case is undisputedly a commercial transaction between parties, involving partnership and its dissolution under the law. – There is nothing on record to suggest that the applicant had an intention to cheat at the inception of the transaction. It is just that the venture contemplated by parties did not take off and turn profitable as envisaged. – Ex facie there is nothing shown by the police that may indicate that the applicant ever intended to cheat opposite party no.2. It would ideally and eminently give rise to a cause of action for a suit of dissolution of partnership and rendition of accounts. – Instead of adopting that course, the second opposite party has approached the police, who again very unscrupulously have investigated and filed a charge-sheet in the matter, which indeed presents no criminal angle to it. – The settlement that has been arrived at outside Court reaffirms this Court’s faith in the perversion of the process of Court that has become rampant. – The agreement dated 14.07.2020 is nothing but the result of an abuse of process of the criminal court under which one of the parties have buckled to settle the matter for the fear of the criminal process. – There cannot be a more brazen abuse of process of the criminal court than the one presented here. – This Court is of opinion that the impugned proceedings cannot be permitted to continue. –
Result: Application Allowed
JUDGMENT :
1. Heard Sri Kamlesh Kumar Singh, learned counsel for the applicant, Sri Shailendra Kumar Singh appearing on behalf of opposite party no.2 and Sri S.K. Pal, learned Government Advocate assisted by Sri Indrajeet Singh Yadav, learned A.G.A. appearing on behalf of the State.
2. Admit.
3. Sri S.K. Pal, learned Government Advocate assisted by Sri Indrajeet Singh Yadav, learned A.G.A. waives his right to file a counter affidavit, looking to the nature of the controversy involved.
4. The submission of the learned counsel for the applicant is that a compromise has been arrived at between parties and recorded on 14.07.2020, engrossed on a general stamp worth Rs. 100/-. It has been notarized. In furtherance of the said compromise, a compromise affidavit has been filed before this Court today, which is unsigned and unsworn. It is supported by a declaration. A declaration instead of a sworn affidavit was permitted when there was a nationwide lockdown. Now, the nation is abuzz with life but in the Registry of the Court it appears that it is not business as usual. The Registrar General is directed to examine the feasibility of restoring a suitably modified requirement of filing sworn affidavits by parties. Nevertheless, in the interest of justice, the present matter is being heard on the status of papers filed in Court as per practice current at this time.
5. A perusal of the first information report, which after some investigation has culminated into a chargesheet, shows that the applicant, Sachin Kumar Srivastava is a businessman engaged in the business of running a printing press. It is alleged in the FIR that he asked the informant, opposite party no.2 to invest in business which would yield good profit. It is also alleged that it was represented to complainant-opposite party no.2 that the sum of Rs. 22,00,000/-that she was invited to invest would be returned to her, and in the profit of 40% that the parties would earn, there would be sharing on the basis of 50% each. It is alleged in the FIR that at some stage, the applicant turned dishonest and did not refund her money. It is also alleged that when the informant demanded her money, the applicant said that their partnership cannot continue and it is better that they part ways. It was also represented to the informant, as part of this dissolution, that the applicant would pay the informant-opposite party no.2, a sum of Rs. 19,000/-per mensem and in that manner would repay the principal sum of money within a period of three years. It is alleged that two cheques, mentioned in the FIR, when presented on 10.05.2018 and 07.06.2018, were dishonored: one on account of signatures of the account holder not tallying, and the other, due to the account being closed. It is alleged that the informant contacted the applicant about the dishonored cheques whereupon the applicant promised that he would arrange and pay the money due. It is said that a period of four months elapsed but to no avail. There are then certain allegations of a sharp exchange of words and a threat extended.
6. It is argued by learned counsel for the applicant that the FIR and the criminal prosecution based on it discloses no offence whatsoever. Still, he submits in tandem with the learned counsel appearing for the second opposite party that the parties have compromised the matter privately, which they have reduced to writing. It is on that basis that an affidavit of compromise (with all its infirmities) above described, has been brought on record before this Court. The terms of the compromise recorded between parties, as these appear from a perusal of a photostat copy of the compromise dated 14.07.2020, are as follows:
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