KAPIL AGARWAL AND OTHERSversusSANJAY SHARMA AND OTHERS

                         [2021] 2 S.C.R. 145                            145


              KAPIL AGARWAL AND OTHERS                                  A
                              v.
              SANJAY SHARMA AND OTHERS
               (Criminal Appeal No. 142 of 2021)
                      MARCH 01, 2021
                                                                        B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                      M.R. SHAH, JJ.]
      Constitution of India:
      Art. 226 – Writ petition – For quashing FIR u/ss. 420/406
IPC – Pursuant to termination of contract of distributorship of the     C
complainant, the manufacturing company demanded outstanding
amount due on the complainant – Cheque issued by the complainant
for the outstanding amount was dishonoured and case u/s. 138 of
NI Act pending – Complaint alleging misappropriation of funds
against one of the officers of the manufacturing company resulted
                                                                        D
in negative final police report – Another complaint of complainant
u/s. 156(3) Cr.P.C against officers of the Company (appellants)
pending before the Court – After a period of about 2 years,
impugned FIR u/ss. 406/420 IPC by the complainant against the
appellants (offices of the Company) – Petition u/Art. 226, seeking
quashing of the FIR – Refused by High Court – Appeal to Supreme         E
Court – Held: There is no bar to lodge an FIR with the same
allegations and averments on which earlier complaint case was filed
– Therefore lodging of the previous complaint u/s. 156(3) Cr.P.C
which is pending, would not effect maintainability of the impugned
FIR – However, if the subsequent FIR is found to be abuse of process
                                                                        F
of law in order to harass the accused, the same can be quashed in
exercise of powers u/Art. 226 or s. 482 of Cr.P.C. in exercise of its
inherent powers – The facts of the present case show that the
impugned FIR is an abuse of process of law with a view to harass
the accused – Therefore, High Court ought to have quashed the
same to secure the ends of justice – Code of Criminal Procedure,        G
1973 – s. 482.
      Allowing the appeal, the Court
     HELD: 1. It is not correct to say that the impugned FIR
would not be maintainable, and deserves to be quashed and set
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                                145
146            SUPREME COURT REPORTS                      [2021] 2 S.C.R.


A     aside for the reason that as on the same allegations, the private
      respondent-complainant has filed an application under Section
      156(3) Cr.P.C., which is pending before the Magistrate. As per
      Section 210 Cr.P.C., when in a case instituted otherwise than on
      a police report, i.e., in a complaint case, during the course of the
      inquiry or trial held by the Magistrate, it appears to the Magistrate
B
      that an investigation by the police is in progress in relation to the
      offence which is the subject matter of the inquiry or trial held by
      him, the Magistrate shall stay the proceedings of such inquiry or
      trial and call for a report on the matter from the police officer
      conducting the investigation. It also provides that if a report is
C     made by the investigating police officer under Section 173 Cr.P.C.
      and on such report cognizance of any offence is taken by the
      Magistrate against any person who is an accused in the complaint
      case, the Magistrate shall inquire into or try together the
      complaint case and the case arising out of the police report as if
      both the cases were instituted on a police report. It also further
D
      provides that if the police report does not relate to any accused
      in the complaint case or if the Magistrate does not take
      cognizance of any offence on the police report, he shall proceed
      with the inquiry or trial, which was stayed by him, in accordance
      with the provisions of Cr.P.C. Thus, merely because on the same
E     set of facts with the same allegations and averments earlier the
      complaint is filed, there is no bar to lodge the FIR with the police
      station with the same allegations and averments. [Para 5]
      [156-D-H; 157-A-D]
            2. However, at the same time, if it is found that the
F     subsequent FIR is an abuse of process of law and/or the same
      has been lodged only to harass the accused, the same can be
      quashed in exercise of powers under Article 226 of the
      Constitution or in exercise of powers under Section 482 Cr.P.C.
      In that case, the complaint case will proceed further in accordance
      with the provisions of the Cr.P.C. [Para 6][157-E-F]
G
            3. Inherent jurisdiction under Section 482 Cr.P.C. and/or
      under Article 226 of the Constitution is designed to achieve
      salutary purpose that criminal proceedings ought not to be
      permitted to degenerate into weapon of harassment. When the

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 KAPIL AGARWAL AND OTHERS v. SANJAY SHARMA AND                      147
                    OTHERS

Court is satisfied that criminal proceedings amount to an abuse     A
of process of law or that it amounts to bringing pressure upon
accused, in exercise of inherent powers, such proceedings can
be quashed. In the present case, the impugned/subsequent FIR
filed by the respondent – original complainant can be said to be
an abuse of process of law and the same to be bringing pressure
                                                                    B
on the accused. This is demonstrated from the facts of the case.
Therefore, when the impugned FIR is nothing but an abuse of
process of law and to harass the appellants-accused, the High
Court ought to have exercised the powers under Article 226 of
the Constitution of India/482 Cr.P.C. and ought to have quashed
the impugned FIR to secure the ends of justice. [Paras 6.1, 7 and   C
8][157-F-G; 158-B-H; 159-A-E]
     Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641
     : [2017] 10 SCR 12 – relied on.
      4. The impugned criminal proceedings/FIR registered
under Sections 420/406 IPC, are hereby quashed and set aside        D
on the aforesaid grounds. It is made clear that the Court has not
expressed anything on merits on the allegations made by
respondent no.1 against the appellants as the proceedings in the
form of 156(3) Cr.P.C application are pending before the
Magistrate. [Para 9][159-F-G]                                       E
     G. Sagar Suri v. State of U.P. (2000) 2 SCC 636 : [2000]
     1 SCR 417 ; Jetking Infotrain Ltd. v. State of U.P. (2015)
     11 SCC 730 : [2015] 3 SCR 572 – relied on.
     Uma Shankar Gopalika v. State of Bihar (2005) 10 SCC
     336 ; Mohd. Ibrahim v. State of Bihar (2009) 8 SCC             F
     751 : [2009] 13 SCR 1254 ; Vesa Holdings (P) Ltd. v.
     State of Kerala (2015) 8 SCC 293 : [2015] 4 SCR 27 ;
     Robert John D’Souza v. Stephen V. Gomes (2015) 9 SCC
     96 : [2015] 8 SCR 662 ; State of Haryana v. Bhajan
     Lal, 1992 Supp. (1) SCC 33 ; S.K. Alagh v. State of            G
     U.P. (2008) 5 SCC 662 : [2008] 2 SCR 1088 ; Sardar
     Singh v. State of Haryana (1977) 1 SCC 463 ; Maksud
     Saiyed v. State of Gujarat (2008) 5 SCC 688 ; Sushil
     Sethi v. State of Arunachal Pradesh (2020) 3 SCC 240
     : [2020] 1 SCR 582 – referred to.
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148            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A                             Case Law Reference
      [2000] 1 SCR 417                 relied on                 para 3.5
      [2015] 3 SCR 572                 referred to               para 3.5
      (2005) 10 SCC 336                referred to               para 3.6
      [2009] 13 SCR 1254               referred to               para 3.8
B
      [2015] 4 SCR 27                  referred to               para 3.8
      [2015] 8 SCR 662                 referred to               para 3.8
      1992 Supp. (1) SCC 33            referred to               para 3.8
      [2008] 2 SCR 1088                referred to               para 3.9
C     (1977) 1 SCC 463                 referred to               para 3.9
      (2008) 5 SCC 688                 referred to               para 3.9
      [2020] 1 SCR 582                 referred to               para 3.10
      [2017] 10 SCR 12                 relied on                 para 6.2
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
D     No. 142 of 2021
            From the Judgment and Order dated 08.09.2017 of the High Court
      of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No.
      18308 of 2017
            K.V. Viswanathan, Sr. Adv., Amartya A. Sharan, Amit Anand
E     Tiwari, Ms. Mary Mitzy, Ms. Devyani Gupta, Advs. for the Appellants.
            M. C. Dhingra, Raghvendra Shukla, Aviral Saxena, Gaurav
      Dhingra, Ms. Garima Prashad, Advs. for the Respondents.
             The Judgment of the Court was delivered by
             M.R. SHAH, J.
F
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 08.09.2017 passed by the High Court of Judicature at
      Allahabad in Criminal Miscellaneous Writ Petition No. 18308 of 2017,
      by which the High Court has dismissed the said writ petition preferred
      by the appellants herein, filed under Article 226 of the Constitution of
G     India, for quashing the first information report registered as Case Crime
      No. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border,
      District Ghaziabad, the original writ petitioners/accused have preferred
      the present appeal.
             2. The relevant facts necessary for deciding the present appeal
      are as under:
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 KAPIL AGARWAL AND OTHERS v. SANJAY SHARMA AND                                   149
             OTHERS [M.R. SHAH, J.]

       That one M/s Varun Beverages Ltd. (for short, ‘VBL’) is a licensed        A
franchisee of PepsiCo India Pvt. Ltd. and engaged in the manufacture
and sale of carbonated sweetened water, fruit juice, packaged drinking
water under the PepsiCo brand. That in the year 2013, the VBL appointed
the firm of the complainant – Sanjay Sharma as a Distributor in the area
of Loni, District Ghaziabad to sell and distribute the products
                                                                                 B
manufactured by the company. That in the year 2014, the company
terminated the contract of distributorship, which according to the
appellants was due to non-payment of dues by respondent no.1 herein –
original complainant. According to the appellants, thereafter on
reconciliation of accounts and as per the statement of accounts maintained
by the company, after adjusting of all claims and security deposit, a sum        C
of Rs.9,46,280/- was found to be outstanding upon the complainant,
towards the material supplied to him. The complainant issued a cheque
dated 15.09.2014 in favour of the company – VBL. The said cheque
was presented for encashment on 22.09.2014. The same was dishonoured
and returned unpaid by the banker of the complainant due to “insufficient
                                                                                 D
funds”. That thereafter, due to non-payment after the issuance of the
statutory legal notices, appellants herein filed a criminal complaint under
Section 138 of the Negotiable Instruments Act on 07.11.2014 against R1
and his company Thakur Trading, in the Court of Chief Judicial Magistrate,
Ghaziabad being Complaint Case No. 7652/2014. R1 has been summoned
to face the trial. The said complaint is presently pending for disposal. R1      E
filed a complaint against one of the officers of the company-VBL being
FIR No. 1565/2014 dated 15.09.2014 alleging misappropriation of
Rs.6,00,000/- by one of the officers of the company, namely, Vipul Verma.
That after investigation by the police, the investigating officer submitted
a negative final report No. 47/2015 dated 20.01.2015.
                                                                                 F
       2.1 R1 also filed one another case on 09.02.2015 for
misappropriation of Rs.31,12,375/- by the appellants. That thereafter R1
filed a complaint/application under Section 156(3) Cr. P.C. in the Court
of learned Additional Chief Judicial Magistrate-I, Ghaziabad for issuance
of direction to the Police Station Loni to register FIR against the appellants
herein and two other officers of the company alleging misappropriation           G
of an amount of Rs.31,12,375/-. The learned Magistrate, instead of
directing the police to register FIR, decided to enquire into the matter by
treating the same as a complaint case. That vide order dated 23.03.2015,
the learned Magistrate treated the application of R1 under Section 156(3)
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150             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A     Cr.P.C. as a complaint case and an opportunity was granted to R1 to
      record his statement under Section 200 Cr.P.C.
            2.2 Feeling aggrieved by order dated 23.03.2015 treating the
      application under Section 156(3) Cr.P.C. as a complaint case, R1 filed a
      criminal revision application No. 70/2015 before the learned Sessions
B     Court, Ghaziabad. That the learned Sessions Judge, Ghaziabad allowed
      the said revision application and quashed and set aside order dated
      23.03.2015 passed by the learned Magistrate and remanded the matter
      back to the learned Magistrate to consider the material on record and
      pass speaking order afresh for assigning reasons for considering
      application under Section 156(3) Cr.P.C. as a complaint case. That
C     thereafter the learned Magistrate sought an action report from the
      concerned police station. That the concerned police officer submitted
      the report before the learned Magistrate on 09.08.2015. That the said
      proceedings are pending before the learned Magistrate.
             2.3 That after a period of approximately two years, R1 lodged the
D     impugned FIR against the appellants for the offences under Sections
      406/420 IPC at Police Station Loni, District Ghaziabad, dated 4.8.2017.
      The allegations in the said FIR are same/similar to the allegations levelled
      in the application under Section 156(3) Cr.P.C., which is pending
      consideration before the learned Magistrate since 2015.
E           At this stage, it is required to be noted that the said FIR is filed
      against Kapil Agarwal, appellant No.1 – Director, Sharad Garg, appellant
      No.2 – Multi Unit Manager and Deepak Sharma, appellant No.3 – Sales
      Head. That thereafter the appellants approached the High Court under
      Article 226 of the Constitution of India being Criminal Miscellaneous
F     Writ Petition No. 18308 of 2017 for quashing the aforesaid FIR being
      Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station
      Loni Border, District Ghaziabad. By the impugned judgment and order,
      the High Court has refused to quash the FIR observing that the impugned
      FIR, prima facie, discloses commission of cognizable offence.

G           2.4 Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court refusing to quash the FIR being
      Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station
      Loni Border, District Ghaziabad, the original accused have preferred the
      present appeal.

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 KAPIL AGARWAL AND OTHERS v. SANJAY SHARMA AND                                151
             OTHERS [M.R. SHAH, J.]

       3. Shri K.V. Vishwanathan, learned Senior Advocate appearing           A
on behalf of the appellants has vehemently submitted that the impugned
FIR is an abuse of process of law to harass the appellants by converting
a purely civil dispute into a criminal case.
      3.1 It is submitted that the contents of the FIR show that it has
been registered for recovery of commission and discounts on sale which        B
alleged to have taken in the regular business transactions place over a
period of 15 months between the parties. Hence, it is a purely contractual
dispute on the face of it.
       3.2 It is submitted that no civil proceedings have been filed by the
complainant for recovery of the alleged due amount. It is submitted that      C
the impugned FIR has been lodged solely with a view to arm twist and
extort money from the appellants.
       3.3 It is further submitted that there is not even a whisper about
the pendency of the application under Section 156(3) Cr.P.C. pending
before the learned Magisterial Court, in the FIR. Nor is there any mention    D
of the fact that there is an ongoing case under Section 138 of the NI
Act.
       3.4 It is submitted that the police report in respect of Section
156(3) application has gone against him, R1 has left the earlier
proceedings lying pending for two years without participating in it and       E
has filed a fresh FIR with the same allegations. It is submitted that the
fresh FIR on the same allegations has been filed only with a view to get
the appellants arrested and extort the money from the appellants.
       3.5 Relying upon the decisions of this Court in the cases of G.
Sagar Suri v. State of U.P. (2000) 2 SCC 636 and Jetking Infotrain            F
Ltd. v. State of U.P. (2015) 11 SCC 730, it is submitted that in view of
the pendency of the complaint under Section 138 of the NI Act and the
subsequent FIR is a counter-blast to the same, the present prosecution
would be clearly an abuse of process of law and therefore the impugned
FIR deserves to be quashed and set aside.
                                                                              G
       3.6 Relying upon the decision of this Court in the case of Uma
Shankar Gopalika v. State of Bihar (2005) 10 SCC 336, it is submitted
that as the dispute can be said to be a purely civil dispute, which has
been given a criminal colour, the same deserves to be quashed and set
aside.
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152             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A            3.7 It is further submitted that even taking the allegations in the
      impugned FIR at the face value, no offence under Sections 406/420 IPC
      is made out against the appellants. It is submitted that at best, the impugned
      FIR alleges that R1 entrusted certain monies to the company which the
      company did not pay to him at his request. It is submitted that the company
      – VBL is not even made an accused and the appellants are joined as an
B
      accused in their individual capacity as Director, Multi Unit Manager and
      Sales Head. It is submitted that in order to make out a case under Section
      406 IPC against the appellants, there must be an allegation that R1
      entrusted the appellants in their personal capacities, not as VBL officers,
      with the relevant commissions/benefits.
C            3.8 It is further submitted that even from the bare perusal of the
      contents of the impugned FIR, the essential ingredients of offence of
      cheating under Section 420 IPC are completely missing. It is submitted
      that there is no allegation that the appellants either, (a) deceived R1 by
      making any false or misleading representation; or dishonestly concealed
D     some matter from R1; or by any other act or omission; (b) fraudulently
      or dishonestly induced R1 to deliver the cheques allegedly handed over
      as security, or to agree to entrust the claimed commissions/benefits to
      VBL; or to do or omit to do anything which R1 would not have done or
      omitted to have done if he were not deceived. Reliance is placed on the
      decisions of this Court in the case of Mohd. Ibrahim v. State of Bihar
E     (2009) 8 SCC 751; in the case of Vesa Holdings (P) Ltd. v. State of
      Kerala (2015) 8 SCC 293; in the case of Robert John D’Souza v.
      Stephen V. Gomes (2015) 9 SCC 96; and State of Haryana v. Bhajan
      Lal, 1992 Supp. (1) SCC 33.
              3.9 It is further submitted that even as per the allegations in the
F     FIR, the amount is due from the company and not from the appellants.
      There is no entrustment or retention personally by any of the appellants.
      It is submitted that as held by this Court in the cases of S.K. Alagh v.
      State of U.P. (2008) 5 SCC 662, Sardar Singh v. State of Haryana
      (1977) 1 SCC 463 and Maksud Saiyed v. State of Gujarat (2008) 5
G     SCC 688, even when a case under Section 406 IPC is made out against
      a company, vicarious liability cannot be extended to the Directors or
      officers of a company.
            3.10 It is submitted that as the main allegations are against the
      company and the company had not been made as an accused in the FIR,
H     the same deserves to be quashed and set aside. Reliance is placed upon
 KAPIL AGARWAL AND OTHERS v. SANJAY SHARMA AND                                  153
             OTHERS [M.R. SHAH, J.]

the decision of this Court in the case of Sushil Sethi v. State of Arunachal    A
Pradesh (2020) 3 SCC 240.
       3.11 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to allow the present appeal and quash and set
aside the criminal proceedings and FIR being Case Crime No. 790 of
2017, under Sections 420/406 IPC, Police Station Loni Border, District          B
Ghaziabad, as the same is nothing but an abuse of process of law.
     4. The present appeal is opposed by Shri M.C. Dhingra, learned
Advocate appearing on behalf of the respondent – original complainant.
      4.1 It is submitted that as the FIR discloses commission of
cognizable offence, the High Court has rightly refused to quash the FIR,        C
in exercise of powers under Article 226 of the Constitution of India.
        4.2 It is submitted that initially having failed to get the money due
and payable to the complainant, the complainant was constrained to make
an application under Section 156(3) Cr.P.C. before the learned Chief
Judicial Magistrate at Ghaziabad. However, without referring to the             D
allegations of the offences under Sections 420, 406, 467, 468, 471, 34/
120-B IPC, the learned Magistrate vide a very cryptic order dated
23.03.2015 directed for treating the application under Section 156(3) as
a complaint case under Section 200 Cr.P.C. Aggrieved, the complainant
preferred criminal revision before the learned Sessions Court, which on         E
8.7.2015 set aside order dated 23.03.2015 and remanded the case back
to the learned Magistrate to consider the material on record and decide
the complainant’s application under Section 156(3) afresh by a reasoned
order. It is submitted that once again a closure report was submitted by
the very same investigating officer who earlier submitted the closure
report. It is submitted that as the learned Magistrate did not pass any         F
order on the closure report and kept the application under Section 156(3)
under consideration for long, much to the agony of the complainant craving
justice, the complainant was constrained to file the impugned FIR, making
serious allegations against the company and its officers – appellants
herein. It is submitted that, however, the police arrayed the appellants as     G
an accused for the offences under Sections 420/406 IPC, although the
facts therein disclosed commission of offences under Sections 467, 468,
471 IPC for forging complainant’s blank cheque No. 038611, out of five
blank cheques lying with the company as security and sought to encash
it but could not succeed as the cheque was dishonoured. It is submitted
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154             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     that the company owed Rs.31,12,375.06 towards commission to be paid
      to the complainant – respondent which was lying in trust with it, but did
      not pay to him and thus by cheating him also committed breach of trust.
      It is submitted that in the FIR, it was also alleged that on demanding
      money they extended threats to get him killed and therefore the impugned
      FIR also discloses commission of an offence under Section 506 IPC as
B
      well.
              4.3 Now so far as the submission on behalf of the appellants that
      there is an unexplained delay of two years in lodging the impugned FIR,
      it is submitted that as such there is no delay in registration of the FIR. It
      is submitted that delay is a mixed question of fact and law and a plea of
C     defence. It can be explained at the trial. It is submitted that belated
      registration of FIR is always not fatal to the prosecution in every case as
      it is explainable at the trial. It is submitted that it is not a thumb rule to
      quash FIR for delayed registration, which can be explained at the trial.
             4.4 Now so far as the submission on behalf of the appellants that
D     FIR could not be registered during the pendency of the application under
      Section 156(3) Cr.P.C. on the same set of allegations, it is submitted that
      Section 210 Cr.P.C. leaves no doubt that FIR under Section 154 Cr.P.C.
      can be registered during the pendency of the complaint case on the very
      same set of facts/allegations. It is submitted that quashing of FIR will
E     lead to demolition of complaint under Section 156(3) Cr.P.C. pending
      consideration before the learned Magistrate.
             4.5 It is further submitted that despite the fact that the FIR
      discloses commission of offences under Sections 467, 468, 471, 34/120-
      B IPC also, the police have registered FIR under Sections 420/406 IPC
F     only. It is submitted that the trial Court can add charges under Sections
      467, 468, 471, 34/120-B IPC in exercise of powers under Section 216
      Cr.P.C. at any time before rendering judgment.
             4.6 Now so far as the submission on behalf of the appellants for
      non-disclosure of the pending application under Section 156(3) Cr.P.C.
G     in the FIR is concerned, it is submitted that it is a settled law that FIR is
      not an encyclopaedia. It is submitted that even otherwise non-mentioning
      of the pendency of the complaint under Section 156(3) Cr.P.C. does not
      prejudice the appellants in any manner. It is submitted that even otherwise
      as per Section 210 Cr.P.C., the proceedings before the Magistrate during
      pendency of the investigation by the police in the FIR are required to be
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 KAPIL AGARWAL AND OTHERS v. SANJAY SHARMA AND                                  155
             OTHERS [M.R. SHAH, J.]

stayed by the learned Magistrate. It is submitted that the subsequent           A
registration of FIR on the very same set of allegations, as in the pending
complaint, does not confront any law.
       4.7 Now so far as the submission on behalf of the appellants that
the company is not joined as an accused in the FIR is concerned, it is
submitted that, as such, police ought to have included the company as an        B
accused with the appellants in the FIR. It is submitted that the appellants
named in the FIR have not disputed that they are principal functionaries
of the company and had been responsible for the operations of
complainant’s dealership in all respects. It is submitted that the appellants
cannot draw any benefit for absence of company as their co-accused.
Company can be arrayed as an accused by the police in the chargesheet           C
after collecting evidence. It is submitted that even if by any chance the
police omit to do so, the trial Court has powers under Section 319 Cr.P.C.
to summon the company to stand trial as co-accused.
       4.8 It is further submitted that the accused did not get immunity
for the offence committed by them merely because they have made                 D
complaint against the complainant under Section 138 NI Act. It is
submitted that otherwise all cross criminal cases would be rebuffed if
such contention is accepted.
        4.9 It is further submitted that as such the appellants have
acknowledged through emails as also through duly signed hard copies             E
that Rs. 34,50,418/- is payable to the respondent by way of commission,
incentives and discounts etc. This amount was retained by the appellants
and the company in trust upon conclusion of the dealership. The company
and the appellants have not paid the said amount and thereby have cheated
the respondent and also committed breach of trust. It is submitted that         F
the appellants are now speciously disputing the said acknowledgement.
It is submitted that merely because the acknowledgements through emails
and hard copies are now disputed by the appellants, it will not result in
quashing the FIR.
      4.10 Making the above submissions and submitted that as the FIR           G
discloses commission of cognizable offences, the same may not be
quashed at the threshold in exercise of powers under Article 226 of the
Constitution of India. It is submitted that as held by this Court in catena
of decisions that the power under Article 226 of the Constitution and/or
under Section 482 Cr.P.C. to quash the FIR at the threshold is required
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156             SUPREME COURT REPORTS                              [2021] 2 S.C.R.


A     to be exercised sparingly. It is submitted that it is not a fit case to exercise
      the power under Article 226 of the Constitution to quash the FIR when
      the FIR discloses commission of cognizable offences.
             5. We have heard the learned counsel for the respective parties
      at length.
B            It is the case on behalf of the appellants that as on the same
      allegations, the private respondent-complainant has filed an application
      under Section 156(3) Cr.P.C., which is pending before the learned
      Magistrate, the impugned FIR with the same allegations and averments
      would not be maintainable, and therefore, the FIR lodged with the police
C     station Loni Border, District Ghaziabad deserves to be quashed and set
      aside. The aforesaid cannot be accepted for the simple reason that Code
      of Criminal Procedure permits such an eventuality of a complaint case
      and enquiry or trial by the Magistrate in a complaint case and an
      investigation by the police pursuant to the FIR. At this stage, Section 210
      Cr.P.C. is required to be referred to, which reads as under:
D
             “210. Procedure to be followed when there is a complaint case
             and police investigation in respect of the same offence – (1) When
             in a case instituted otherwise than on a police report (hereinafter
             referred to as a complaint case), it is made to appear to the
             Magistrate, during the course of the inquiry or trial held by him,
E            that an investigation by the police is in progress in relation to the
             offence which is the subject- matter of the inquiry or trial held by
             him, the Magistrate shall stay the proceedings of such inquiry or
             trial and call for a report on the matter from the police officer
             conducting the investigation.
F            (2) If a report is made by the investigating police officer under
             section 173 and on such report cognizance of any offence is taken
             by the Magistrate against any person who is an accused in the
             complaint case, the Magistrate shall inquire into or try together
             the complaint case and the case arising out of the police report as
G            if both the cases were instituted on a police report.
             (3) If the police report does not relate to any accused in the
             complaint case or if the Magistrate does not take cognizance of
             any offence on the police report, he shall proceed with the inquiry
             or trial, which was stayed by him, in accordance with the provisions
             of this Code.”
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 KAPIL AGARWAL AND OTHERS v. SANJAY SHARMA AND                                  157
             OTHERS [M.R. SHAH, J.]

        Thus, as per Section 210 Cr.P.C., when in a case instituted otherwise   A
than on a police report, i.e., in a complaint case, during the course of the
inquiry or trial held by the Magistrate, it appears to the Magistrate that
an investigation by the police is in progress in relation to the offence
which is the subject matter of the inquiry or trial held by him, the
Magistrate shall stay the proceedings of such inquiry or trial and call for
                                                                                B
a report on the matter from the police officer conducting the investigation.
It also provides that if a report is made by the investigating police officer
under Section 173 Cr.P.C. and on such report cognizance of any offence
is taken by the Magistrate against any person who is an accused in the
complaint case, the Magistrate shall inquire into or try together the
complaint case and the case arising out of the police report as if both the     C
cases were instituted on a police report. It also further provides that if
the police report does not relate to any accused in the complaint case or
if the Magistrate does not take cognizance of any offence on the police
report, he shall proceed with the inquiry or trial, which was stayed by
him, in accordance with the provisions of Cr.P.C.
                                                                                D
       Thus, merely because on the same set of facts with the same
allegations and averments earlier the complaint is filed, there is no bar to
lodge the FIR with the police station with the same allegations and
averments.
       6. However, at the same time, if it is found that the subsequent         E
FIR is an abuse of process of law and/or the same has been lodged only
to harass the accused, the same can be quashed in exercise of powers
under Article 226 of the Constitution or in exercise of powers under
Section 482 Cr.P.C. In that case, the complaint case will proceed further
in accordance with the provisions of the Cr.P.C.
                                                                                F
       6.1 As observed and held by this Court in catena of decisions,
inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226
of the Constitution is designed to achieve salutary purpose that criminal
proceedings ought not to be permitted to degenerate into weapon of
harassment. When the Court is satisfied that criminal proceedings amount
to an abuse of process of law or that it amounts to bringing pressure           G
upon accused, in exercise of inherent powers, such proceedings can be
quashed.
      6.2 As held by this Court in the case of Parbatbhai Aahir v.
State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is prefaced
                                                                                H
158                SUPREME COURT REPORTS                        [2021] 2 S.C.R.


A     with an overriding provision. The statute saves the inherent power of
      the High Court, as a superior court, to make such orders as are necessary
      (i) to prevent an abuse of the process of any Court; or (ii) otherwise to
      secure the ends of justice. Same are the powers with the High Court,
      when it exercises the powers under Article 226 of the Constitution.
B            7. Applying the law laid down by this Court, referred to
      hereinabove, to the facts of the case on hand, subsequent FIR filed by
      the respondent – original complainant can be said to be an abuse of
      process of law and the same to be bringing pressure on the accused,
      which can be demonstrated from the following facts:
C           i)       cheque no. 038611 was presented for encashment and the
                     same came to be dishonoured by the banker of the
                     complainant due to “insufficient funds”;
            ii)      that the company – VBL served statutory legal notices upon
                     the complainant under the provisions of the Negotiable
D                    Instruments Act;
            iii)     that thereafter complaint under Section 138 of the Negotiable
                     Instruments Act has been filed by the company against the
                     respondent-original complainant on 7.11.2014;
            iv)      that thereafter, after a period of three months, respondent
E                    no.1 filed an application under Section 156(3) Cr.P.C.
                     seeking registration of FIR against the appellants herein,
                     i.e., in the month of February, 2015;
            v)       the learned Magistrate declined to order registration of FIR,
                     but decided to inquire into the matter by treating the same
F                    as complaint case and granted respondent no.1 – original
                     complainant an opportunity of recording solemn affirmation
                     under Section 200 Cr.P.C. (order dated 23.03.2015). Order
                     dated 23.03.2015 came to be set aside by the learned
                     Sessions Judge vide order dated 8.7.2015 and the matter
                     was remanded to the learned Magistrate with directions to
G
                     pass a speaking order. The same is pending before the
                     learned Magistrate;
            vi)      that thereafter after a period of two years, R1 lodged the
                     impugned FIR against the appellants with police station Loni
                     Border, District Ghaziabad with the similar contents and
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 KAPIL AGARWAL AND OTHERS v. SANJAY SHARMA AND                                  159
             OTHERS [M.R. SHAH, J.]

               allegations which were levelled in the application under         A
               Section 156(3) Cr.P.C. In the FIR, the date of occurrence
               of the offence has been shown as 26.07.2017;
       vii)    it appears that R1 is not proceeding further with his
               application under Section 156(3) Cr.P.C., which is pending
               before the learned Magistrate since last five years;             B
       viii)   in the FIR, neither there is any reference to the application
               under Section 156(3) Cr.P.C. which is pending before the
               learned Magistrate, nor there is a reference of the complaint
               under Section 138 of the NI Act.
      Under the circumstances, the impugned FIR is nothing but an               C
abuse of process of law and can be said to be filed with a view to harass
the appellants.
       8. We are not expressing anything on merits whether, any case is
made out against the appellants for the offences alleged in 156(3) Cr.P.C.
application as the same is pending before the learned Magistrate and the        D
learned Magistrate is to take call on the same. Therefore, when the
impugned FIR is nothing but an abuse of process of law and to harass
the appellants-accused, we are of the opinion that the High Court ought
to have exercised the powers under Article 226 of the Constitution of
India/482 Cr.P.C. and ought to have quashed the impugned FIR to secure          E
the ends of justice.
       9. In view of the above and for the reasons stated above, the
present appeal is allowed. The impugned criminal proceedings/FIR
registered as Case Crime No. 790 of 2017, under Sections 420/406 IPC,
with the police station Loni Border, District Ghaziabad are hereby quashed      F
and set aside on the aforesaid grounds. We make it clear that we have
not expressed anything on merits on the allegations made by respondent
no.1 against the appellants as the proceedings in the form of 156(3)
Cr.P.C application are pending before the learned Magistrate. The learned
Magistrate shall now proceed further with the said application, in
accordance with law and on its own merits. Respondent No.1 may                  G
proceed further with the said proceedings, if he so chooses and is advised.
       10. With these observations, the present appeal is allowed.


Kalpana K. Tripathy                                            Appeal allowed   H