VIJAYANDER KUMAR & ORS.versusSTATE OF RAJASTHAN & ANR.

                       [2014] 1 S.C.R. 1012


A                  VIJAYANDER KUMAR & ORS.
                                 v.
                  STATE OF RAJASTHAN & ANR.
                (Criminal Appeal No. 1297 of 2004)
                       FEBRUARY 11, 2014
8
      [P. SATHASIVAM, CJI, RANJAN GOGOi AND SHIVA
                     KIRTI SINGH, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:
c
        s.482 - Power of High Court to quash criminal
  proceedings - FIR filed for offences punishable ulss 420 and
  120-8 /PC - Final report by police stating the case to be of a
  civil nature - Rejected by Magistrate and cognizance taken -
  High Court declining to interfere - Held: A given set of facts
0
  may make out a civil wrong as also a criminal offence and
  only because a civil remedy may also be available to
  informant/complainant that itself cannot be a ground to quash
  a criminal proceeding - The real test is whether the allegations
  in the complaint disclose a criminal offence or not - When
E informant and witnesses have supported the allegations made
  in the FIR, it would not be proper for the court to evaluate the
  merits of allegations on the basis of documents annexed with
  memo of appeal - There is no good ground to interfere with
  the criminal proceedings against appellants at this stage.
F
        An FIR for offence.s punishable u/ss 420 and 120-8
  IPC was registered by police against the appellants and
  one 'SS' on a written report of respondent no. 2 stating
  that he as a supplier of cotton yarn to the appellants
G owed certain amounts from appellants' company; that
  the appellants without his knowledge transferred the
   management, assets and liabilities, to another concern of
   which 'SS' was one of the Directors; that on the

H                               1012
     VIJAYAN DER KUMAR & ORS. v. STATE OF             1013
                  RAJASTHAN
assurance of the appellants, respondent no. 2 accepted       A
some post dated cheques from 'SS' which got
dishonoured on the instruction of the said 'SS' to stop
payment; that, thus, all the accused by conspiracy played
a fraud on him and cheated him by making false
statement and induced him to sign some papers. The           B
appellants' petition seeking to quash the FIR was
dismissed. The police then submitted the final report that
the case was of a civil nature, which was rejected by the
Magistrate and cognizance was taken. The petition u/s
482 CrPC seeking to quash the criminal proceedings was       c
rejected by the High Court.

    Dismissing the appeal, the Court

     HELD: 1.1 A given set of facts may make out a civil
wrong as also a criminal offence and only because a civil    D
remedy may also be available to the informant/
complainant that itself cannot be a ground to quash a
criminal proceeding. The real test is whether the
allegations in the complaint discloses a criminal offence
or not. [para 12] [1020-8-C]                                 E

   Ravindra Kumar Madhanla/ Goenka and Another vs.
Rugmini Ram Raghav Spinners Private Limited 2009 (6)
SCR 27 = 2009 (11) sec 529 - relied on.

    Vijayander Kumar and Ors. Vs. State of Rajasthan and     F
Another 1999 Criminal law Journal 1849 - referred to.

     1.2 When the informant and witnesses have
supported the allegations made in the FIR, it would not
be proper for this Court to evaluate the merits of the       G
allegations on the basis of documents annexed with the
memo of appeal. Such materials can be produced by the
appellants in their defence in accordance with law for due
consideration at appropriate stage. [para 11] [1019-H;
1020-A-B]                                                    H
    1014    SUPREME COURT REPORTS                [2014] 1 S.C.R.


A     1.3 The facts were properly noticed by the High Court
  on earlier occasion while examining the petition preferred
  by the appellants for quashing of FIR of this case. The
  same view has been reiterated by the High Court in the
  order under appeal for not interfering with the order of
B cognizance by the Magistrate. There is no good ground
  to interfere with the criminal proceedings against the
  appellants at this stage. [para 13] [1020-D-F]

      Thermax Limited and Others Vs. K.M.Johny and
C Others 2011 (14) SCR 154 =2011 (13) SCC 412; Dalip Kaur
  and Others vs. Jagnar Singh and another 2009 (10) SCR 264
  = 2009 (14) SCC 696; Ani/ Mahajan vs. Bhor Industries
  Limited (2005) 10 SCC 228; and R.Kalyani vs. Janak
  C.Mehta 2008 (14) SCR 1249 = 2009 (1) SCC 516; Devendra
  and Others vs. State of Uttar Pradesh and Another 2009 (7)
D scR 872 = 2009 (7) sec 495 - cited.

                        Case Law Reference:
         1999 Criminal law           referred to       para 4
         Journal 1849
E
         2011 (14) SCR 154           cited             Para 8
         2009 (10) SCR 264           cited             Para 8
         2008 (14) SCR 1249          cited             Para 8
F
         2009 (7) SCR 872            cited             para 9
         2009 (6) SCR 27             relied on         para 12
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1297 of 2004.
G
        From the Judgment and order dated 19.03.2004 of the
    High Court of Rajasthan at Jodhpur in S.B. Criminal Misc. No.
    433 of 2000.

H
     VIJAYAN DER KUMAR & ORS. v. STATE OF                  1015
                  RAJASTHAN
      Nidesh Gupta, J.C. Gupta, S.S. Shamshery, AAG, Rajesh         A
Srivastava, Raghvendra Pratap Singh, Suresh Kumari, Tushar
Bakshi, Naresh Bakshi, Dharm Singh, Bharat Sood, Varun
Punia, Sandeep Singh, Ritesh Prakash Yadav, Pragati Neekhra
for the appearing parties.
                                                                    B
    The Judgment of the Court was delivered by

    . SHIVA KIRTI SINGH, J. 1. The appellants have preferred
this appeal against the dismissal of their petition under Section
482 of the Criminal Procedure Code (for brevity ·cr.P.C.') by
the High Court of judicature for Rajasthan at Jodhpur. The High     C
Court declined to interfere with the order of learned Chief
Judicial Magistrate, Sriganganagar, dated 22.05.2000 in Case
No. 63/2000, taking cognizance of offence under Section 420
read with Section 120-B of the Indian Penal Code.
                                                                    D
      2. Respondent No.2, Surendra Singhla, lodged a police
case against the appellants as well as one Satish Singhla on
28.04.1998. According to the averments and allegations in the
written report, the informant is a partner of the Firm M/s.
Rajshree Cotton Corporation, Sriganganagar, working as E
broker as well as dealer in the sale and purchase of cotton. The
appellants are Directors of M/s. R.P. Taxfab Limited, Modi
Nagar, who purchased cotton through informant firm from time
to time. As per the accounts, the informant firm was to receive
a sum of Rs.47,28,115.80/-. Th~ accused persons without
taking the informant into confidence, entered into an agreement
                                                                  F
for transfer of management, assets and liabilities of M/s. R.P.
Taxfab Limited in favour of accused Satish Singhla and two
others who became the new Directors. The management of the
Company was transferred on 24.02.1998 and on 27 .02.1998
the informant was called by the appellants and told that the G
outstanding amount payable by the appellants shall be paid by
the new Directors. The informant did not agree to this. On next
date, the appellants through a demand draft for Rs.10,00,000/-
  (rupees ten lacs) and returned cotton yarn worth Rs.13,26,560/~
                                                                    H -
    1016    SUPREME COURT REPORTS                [2014] 1 S.C.R.


A   settled the dues in part and for the remaining dues they
  persuaded the informant to accept four post-dated cheques
  issued by the new Director Satish Singhla. The informant
  accepted the cheques on being assured by the accused
  persons that when presented on due dates the cheques shall
B be honoured. On such persuasion and trust, the informant
  signed some typed papers showing that he had agreed to
  receive the balance amount from the new Directors of the
  Company and had received draft and goods from the
  appellants.
c       3. Besides the aforesaid allegations and averments in the
  written information, the informant has also alleged that he would
  not have signed the said papers nor received the post-dated
  cheques but for the assurances given by the accused persons
  in presence of two witnesses. It is further alleged that when the
D informant presented cheque dated 25.03.1998 for a sum of
  Rs.5,00,000/- (rupees five lacs) through his bank, the said
  cheque was dishonoured because accused Satish Singhla had
  got the payment of the cheque stopped and that all the accused
  by mutual consent (conspiracy) have played a fraud and
E cheated him by making false statement and holding false
  assurances whereby they induced him to sign some papers.
  Allegedly, the accused had full knowledge even before issuing
  the cheques that these shall not be honoured and they had such
   dishonest intention from the beginning.
F
        4. It is not in dispute that when the cheque bounced, the
  respondent no.2 gave a legal notice and initiated a separate
  complaint under Section 138 of the Negotiable Instruments Act,
  1881, besides lodging of the present FIR on 28.4.1998. The
G complaint filed against the appellants under the Negotiable
  Instruments Act stands quashed by the High Court on the basis
  that they had not issued the cheques in question. The appellants'
  earlier petition under Section 482 of the Cr.P.C. for quashing
  of FIR vide Criminal Miscellaneous Petition No. 466 of 1998
  was dismissed by the High Court by order dated 12.02.1999
H
      VIJAYAN DER KUMAR & ORS. v. STATE OF                      1017
         RAJASTHAN [SHIVA KIRTI SINGH, J.]
which is reported in 1999 Criminal law Journal 1849                      A
(Vijayander Kumar and Ors. Vs. State of Rajasthan and
Another). A perusal of that judgm~nt discloses that the High
Court considered in detail the averments and allegations in the
FIR and came to the conclusion that in view of allegations and
attending circumstances, at that stage it was not possible to            B
hold that the appellants cannot be liable for commission of any
offence. The High Court held that there was a case worth
investigation.

     5. Subsequently, the police concluded investigation and             C
submitted final report to the effect that the case is of civil nature.
The learned Chief Judicial Magistrate, Sriganganagar, rejected
the final report and after hearing the parties took cognizance
of the offence under Section 420 read with Section 120-B of
the IPC against all the five accused vide his order dated
22.05.2000.                                                              D

     6. The challenge to that order through a petition under
Section 482 of the Cr.P.C. has been rejected by the High Court
by the order under Appeal. ·
                                                                         E
      7. Learned senior counsel for the appellants drew our
attention to some letters and communications such as
annexure P.1 and P.2 both dated 27 .02.1998 and annexure
P .10 dated 24.02.1998 to support his contention that on
24.02.1998 itself the chang~in the management was brought
to the notice of the informant with an intimation that a liability . F
of Rs.23,00,000/- (rupees twenty three lacs) has been
transferred to the new management which they shall pay and
thereafter, on 27.02.1998 the informant received payment from
the appellants as well as accepted the post-dated cheques on
27 .02.1998 itself. On that basis it has been contended that G
wrong averments and allegations have been made in the FIR.
It is further case of the appellants that the allegations and
averments do not make out any criminal offence.

     8. On behalf of the appellants reliance has been placed             H
    1018      SUPREME COURT REPORTS                   [2014] 1 S.C.R.


A upon judgments of this Court in the case of Thermax Limited
  and Others Vs. KM.Johny and Others 1 and in case of Da/ip
  Kaur and Others vs. Jagnar Singh and another2. There can
  be no dispute with the legal proposition laid down in the case
  of Anil Mahajan vs. Bhor Industries LimitecP which has been
B discussed in paragraph 31 in the case of Thermox Limited
  (supra) that if the complaint discloses only a simple case of civil
  dispute between the parties and there is an absolute absence
  of requisite averment to make out a case of cheaUng, the
  criminal proceeding can be quashed. Similar is the law noticed
c in the case of Da/ip Kaur (supra). In this case the matter was
  remanded back to the High Court because of non-consideration
  of relevant issues as noticed in paragraph 10, but the law was
  further clarified in paragraph 11 by placing reliance upon
  judgment of this Court in R.Kalyani vs. Janak C.Mehta 4 • It is
  relevant to extract paragraph 11 of the judgment which runs as
0
  follows:

         "11.There cannot furthermore be any doubt that the High
         Court would exercise its inherent jurisdiction only when one
         or the other propositions of law, as laid down in R. Kalyani
E        v. Janak C. Mehta is attracted, which are as under:

                 "(1) The High Court ordinarily would not exercise its
          inherent jurisdiction to quash a criminal proceeding and,
          in particular, a first information report unless the allegations
F         contained therein, even if given face value and taken to be
          correct in their entirety, disclosed no cognizable offence.
                (2) For the said purpose the Court, save and except
          in very exceptional circumstances, would not look to any
          document relied upon by the defence.
G

    1.   (2011) 13 sec 412.
    2.   (2009) 14 sec 696.
    3.   (2005) 10 sec 22s.
H 4.     (2009) 1 sec 516.
       VIJAYAN DER KUMAR & ORS. v. STATE OF                    1019
          RAJASTHAN [SHIVA KIRT! SINGH, J.]
             (3) Such a power should be exercised very sparingly.       A
      If the allegations made in the FIR disclose commission of
      an offence, the court shall not go beyond the same and
      pass an order in favour of the accused to hold absence of
      any mens rea or actus reus.

            (4) If the allegation discloses a civil dispute, the same
                                                                        B
      by itself may not be ground to hold that the criminal
     ·proceedings should not be allowed to continue."

     9. Learned senior counsel for the appellants also placed
reliance upon judgment of this Court in the case of Devendra            C
and Others vs. State of Uttar Pradesh and Anothef5, only to
highlight that a second petition under Section 482 of the Cr.P.C.
can be entertained because order of Magistrate taking
cognizance gives rise to a new cause of action. This issue does
not require any deliberation because learned senior counsel for         o
the respondent no.2, the informant, has not raised any objection
to the maintainability of petition under Section 482 of the
Cr.P.C.

     10. Contra the submission advanced on behalf of the
appellants, learned counsel for the respondent no.2 has                 E
submitted that there is no merit in the contention advanced on
behalf of the appellants that the FIR discloses only a civil case
or that there is no allegation or averment making out a criminal
offence. For that purpose he relied upon judgment of the High
Court rendere'd in the facts of this very case reported in 1999         F
Criminal Law Journal, 1849, already noted earlier.

     11. No doubt, the views of the High Court in respect of
averments and allegations in the FIR were in the context of a
prayer to quash the FIR itself but in the facts of this case those      G
findings and observations are still relevant and they do not
support the contentions on behalf of the appellants. At the
present stage when the informant and witnesses have

5.   (2009) 1 sec 495.
                                                                        H
    1020      SUPREME COURT REPORTS                 (2014] 1 S.C.R.


A supported the allegations made in the FIR, it would not be
  proper for this Court to evaluate the merit of the allegations on
  the basis of documents annexed with the memo of appeal.
  Such materials can be produced by the appellants in their
  defence in accordance with law for due consideration at
8 appropriate stage.
       12. Learned counsel for the respondents is correct in
  contending that a given set of facts may make out a civil wrong
  as also a criminal offence and only because a civil remedy may
  also be available to the informant/complainant that itself cannot
C be a ground to quash a criminal proceeding. The real test is
  whether the allegations in the complaint discloses a criminal
  offence or not. This proposition is supported by several
  judgments of this Court as noted in paragraph 16 of judgment
  in the case of Ravindra Kumar Madhan/al Goenka and
D Another vs. Rugmini Ram Raghav Spinners Private Limited6 .

        13. On considering the facts of the present case it is found
  that the facts were properly noticed by the High Court on earlier
  occasion while examining the petition preferred by the
E appellants for quashing of FIR of this case. The same view has
  been reiterated by the High Court in the order under appeal for
  not interfering with the order of cognizance by the learned
  Magistrate. Hence, we do not find any good ground to interfere
  with the criminal proceedings against the appellants at this
F stage. The appeal is, therefore, dismissed. No c?sts.

         14. It is, however, made clear that observations in this order
    or in the order under appeal are only for deciding the issues
    raised at the present stage and shall not affect the defence of
    the appellants at a subsequent stage of the proceeding.
G
    R.P.                                         Appeal dismissed.



    6.   c2009) 11 sec 529.