Joseph Salvaraj A vs State Of Gujarat & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1251 OF 2011

[Arising out of S.L.P. (Crl.) No.2409 of 2007]

Joseph Salvaraj A. ....Appellant

Versus

State of Gujarat & Ors. ...Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. Respondent No. 4 - complainant, Living Water

Finney, lodged an FIR on 05.09.2006 at 22.15 hrs with

Odhav Police Station, Ahmedabad City, complaining

therein that the Appellant has committed offences

under Section 406, 420 and 506(1) of the Indian

Penal Code (hereinafter shall be referred to as

`IPC').

3. Respondent No.4 was working as Administrative

Officer in "Amaaru Family Education Trust" at

Ahmedabad and claimed that he has been residing

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

2

there, leading life peacefully. He also stated that

Shri Dharmendra P. Rami @ Laldbhai was running

business of Siti Cable in Bapi Nagar area at

Ahmedabad, was known to him for many years and both

of them enjoyed good relations with each other.

4. Sometime in the year 2005, complainant had gone to

Hyderabad at his wife's place where he had the

occasion to watch "God TV" which influenced him

deeply and profoundly touching his holy spirit.

He wanted to share his experience with the

Christian community of Ahmedabad so that they may

also be blessed through this religious channel. On

his return to Ahmedabad, he approached cable

operator Mr. Lalabhai, owner of Siti Cable as

mentioned above and requested him to have this

channel also in the bouquet of channels offered by

him. He also contacted the Appellant's Company

directly, requesting it to allow broadcasting of

"God TV" in certain areas of Ahmedabad through

Siti Cables, Ahmedabad.

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

3

5. Eventually, with the aid and enterprise of Mr.

Lalabhai, they were able to commence broadcasting

of "GOD TV" in the eastern zone of Ahmedabad.

6. Initially, Mr. Lalabhai quoted Rs. 30 lacs for

persuading all the three operators to commence the

telecast of "GOD TV" in their respective areas in

Ahmedabad but the same was settled for Rs. 10 lacs.

Thus, according to the complainant, Mr. Lalabhai

(and 2 other cable operators) had agreed to

broadcast, religious channel "God TV" at Ahmedabad,

after the Appellant had agreed to pay a sum of Rs. 10

lacs to Mr. Lalabhai.

7. However, it appears that there was no Agreement

in writing executed and entered into between Mr.

Lalabhai and the Appellant. Furthermore, there has

not been any Agreement between complainant and either

of the aforesaid two parties. According to him, on

his own, he had acted only as a mediator.

8. From time to time, the Complainant kept

reminding the appellant about payment of the amount

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

4

of Rs. 10 lacs to Mr. Lalabhai. But according to the

Complainant, the appellant deliberately avoided his

communications. In the meanwhile, the cable operators

who had started telecasting "God TV" were also

pressurizing the Complainant for the said amount.

9. As mentioned hereinabove for about five months,

they enjoyed watching "God TV" without any disruption

but thereafter the reception signals of the said

channel developed some technical snag. Thus, from

October 2005, on account of poor quality of

receivers, the reception was also not clear and was

blurred. He once again contacted the Appellant who

agreed to send receiver to the Complainant. After

having received the said receiver, it was delivered

to Mr. Lalabhai but as per the Complainant's version,

by that time the amount of Rs. 10 lacs as agreed to

between Mr. Lalabhai and the present Appellant was

still not paid. Having failed to elicit a verbal

response, the Complainant thereafter wrote a series

of letters and sent e-mails to the Appellant,

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

5

ultimately culminating in a notice dated 21.06.2006,

to which the Appellant replied on 18.07.2006, denying

all accusations and liabilities. Then the problem

started and Respondent No. 4 lodged the FIR against

the Appellant as mentioned hereinabove.

10.After completion of the investigation, as per the

FIR lodged by the Complainant on 05.09.2006, the

Appellant was arrested at Chennai for commission

of the said offences on 17.11.2006. He was thus

constrained to file an application under Section

437 of the Code of Criminal Procedure, 1973

(hereinafter shall be referred to as the `Code')

for grant of bail to him. The same was granted to

him on the conditions mentioned in the order dated

22.11.2006.

11.The Appellant, thereafter, was constrained to file

the petition under Section 482 of the Code in the

High Court of Gujarat at Ahmedabad, with a prayer

for quashing of the FIR bearing C.R. No. I-371/2006

registered with Odhav Police Station and to stay

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

6

further investigation in the case. The said

application came to be considered before the

learned Single Judge on 11.1.2007. By that time,

charge sheet was already filed before the Competent

Criminal Court. Thus, learned Single Judge, was of

the opinion that it was not a fit case to be

entertained and refused to hear the petition on

merits, even though the appellant was given liberty

to file an application for his discharge before the

Trial Court. It may be noted that even in its

impugned order the learned Single Judge has

emphasized that he had not considered the case on

merits. Thus the Appellant's petition was dismissed

and interim order granted in his favour was

vacated.

12. Now the Order dated 11.01.2007 passed by the

learned Single Judge of the High Court in Appellant's

Criminal Application No. 1977 of 2006, is subject

matter of challenge in this Appeal.

13. We have accordingly heard Mr. Huzefa Ahmedi with

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

7

Mr. Shamik Sanjanwala for the Appellants Ms. Jesel,

for respondent No 1,2 and 3 and Ms. Aparna Bhat for

respondent No.4 - Complainant at length. Perused

the record.

14. Learned counsel for the Appellant contended that

even after going through the FIR, no case under

Section 406 or 420 of the Penal Code was made out.

The FIR was filed by a person who is indisputably not

a contracting party and at best by his own admission,

had acted only as a mediator, and had no cause of

action to file the complaint. He has failed to

produce any evidence worth the name in support of his

allegation and legally acceptable that the contract

was concluded, where under the Appellant was obliged

to pay a sum of Rs. 10 lacs to Mr. Lalabhai.

15. The allegations in the F.I.R. clearly discloses a

civil dispute between the parties and the FIR seems

to have been filed only with an intention to harass

and humiliate the Appellant. This was a pre-emptive

move by the Complainant.

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

8

16. A summary Civil Suit under Order 37 Rule II of

Code of Civil Procedure (hereinafter to be referred

as 'CPC') has already been filed by Dharmendra P.

Rami @ Laldbhai against the Appellant and the

Respondent No.4, Complainant herein, before the City

Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs

together with interest thereon. In the said suit an

unconditional leave to defend has already been

granted to the Appellant and the matter is still

pending. In the light of the aforesaid submissions,

it was contended that it is a fit case where the FIR

deserves to be quashed otherwise the same would

amount to abuse of the process of law.

17. On the other hand, the learned counsel for

Respondents especially Respondent No. 4, contended

that intention to cheat the complainant was clearly

made out by the action of the

Appellant, ultimately resulting in lodging of F.I.R.

against Appellant and Respondent No.4 both. Learned

Single Judge was fully justified in rejecting the

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

9

Appellant's Petition as it was not a fit case to

invoke the jurisdiction conferred on the court under

Section 482 of the CrPC. Thus, a prayer was made that

no case for interference was made out and the Appeal

be dismissed.

18. In the light of the rival contentions we have to

examine whether cognizance of the offences could have

been taken by the Competent Criminal Court in the

light of the averments made by the complainant in the

FIR.

19. Even though the learned counsel appearing for

contesting parties have cited numerous authorities

in support of their respective contentions, but in

view of the well settled legal position of law, by

long catena of cases of this Court, on this and

related points, we are not dealing with each one of

them separately and independently. However, the

ratio and gist of these would be reflected in our

order.

20. In the instant case, we have to first examine

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

10

whether any of the ingredients under Section 406, 420

or 506 (1) of the IPC have been made out to enable

the Court to take cognizance thereof against the

appellant or not. Bare perusal of the FIR lodged by

the complainant, would indicate that he had got in

touch with the appellant so as to extend the benefit

of Appellant's Channel "GOD TV" to his other brethren

residing at Ahmedabad. For the said purposes, he had

met the owner of Siti Cable, Bapi Nagar in Ahmedabad

and negotiated a settlement for a sum of Rs. 10 lacs

on behalf of the Appellant's Company as the fee to be

paid to Siti cable by Appellant for telecast of

channel "God TV" in Ahmedabad. Further grievance of

the Complainant was that despite the telecast of "GOD

TV", the Appellant, as promised, failed to pay a sum

of Rs. 10 lacs to the owners of Siti cables. This is

what has been mentioned in nutshell in the

complainant's FIR. We have grave doubt, in our mind

whether on such averments and allegations, even a

prima facie case of the aforesaid offences could be

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

11

made out against the present appellant.

21. Criminal breach of trust is defined under

Section 405 of the IPC and 406 thereof deals with

punishment to be awarded to the accused, if found

guilty for commission of the said offence i.e. with

imprisonment for a term which may extend to three

years, or with fine, or with both.

22. Section 420 of the IPC deals with cheating and

dishonestly inducing delivery of property. Cheating

has been defined under Section 415 of the IPC to

constitute an offence. Under the aforesaid section,

it is inbuilt that there has to be a dishonest

intention from the very beginning, which is sine qua

non to hold the accused guilty for commission of the

said offence. Categorical and microscopic examination

of the FIR certainly does not reflect any such

dishonest intention ab initio on the part of the

appellant.

23. Section 506 of the IPC deals with punishment for

criminal intimidation. Criminal intimidation, insult

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

12

and annoyance have been defined in Section 503 of

the IPC but the FIR lodged by complainant does not

show or reflect that any such threat to cause injury

to person or of property was ever given by the

Appellant to the Complainant.

24. Thus, from the general conspectus of the various

sections under which the Appellant is being charged

and is to be prosecuted would show that the same are

not made out even prima facie from the Complainant's

FIR. Even if the charge sheet had been filed, the

learned Single Judge could have still examined

whether the offences alleged to have been committed

by the Appellant were prima facie made out from the

complainant's FIR, charge sheet, documents etc. or

not.

25. In our opinion, the matter appears to be purely

civil in nature. There appears to be no cheating or

a dishonest inducement for the delivery of property

or breach of trust by the Appellant. The present

FIR is an abuse of process of law. The purely civil

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

13

dispute, is sought to be given a colour of a

criminal offence to wreak vengeance against the

Appellant. It does not meet the strict standard of

proof required to sustain a criminal accusation.

26. In such type of cases, it is necessary to draw a

distinction between civil wrong and criminal wrong

as has been succinctly held by this Court in

Devendra Vs. State of U.P., 2009 (7) SCC 495,

relevant part thereof is reproduced hereinbelow:

"A distinction must be made between a

civil wrong and a criminal wrong. When

dispute between the parties constitute

only a civil wrong and not a criminal

wrong, the courts would not permit a

person to be harassed although no case

for taking cognizance of the offence has

been made out."

27. In fact, all these questions have been elaborately

discussed by this Court in the most oft quoted

judgment reported in 1992 (Suppl) 1 SCC 335 State of

Haryana Vs. Bhajan Lal, where seven cardinal

principles have been carved out before cognizance of

offences, said to have been committed, by the accused

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

14

is taken. The case in hand unfortunately does not fall

in that category where cognizance of the offence could

have been taken by the court, at least after having

gone through the F.I.R., which discloses only a civil

dispute.

28. The Appellant cannot be allowed to go through the

rigmarole of a criminal prosecution for long number of

years, even when admittedly a civil suit has already

been filed against the Appellant and Complainant-

Respondent No. 4, and is still subjudice. In the said

suit, the Appellant is at liberty to contest the same

on grounds available to him in accordance with law as

per the leave granted by Trial Court. It may also be

pertinent to mention here that the complainant has not

been able to show that at any material point of time

there was any contract, much less any privity of

contract between the Appellant and Respondent No. 4 -

the Complainant. There was no cause of action to even

lodge an FIR against the Appellant as neither the

Complainant had to receive the money nor he was in any

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

15

way instrumental to telecast "GOD TV" in the central

areas of Ahmedabad. He appears to be totally a

stranger to the same. Appellant's prosecution would

only lead to his harassment and humiliation, which

cannot be permitted in accordance with the principles

of law.

29. Thus, looking to the matter from all angles, we

are of the considered opinion that the prosecution of

the Appellant for commission of the alleged offences

would be clear abuse of the process of law.

30. The FIR under the circumstances deserves to be

quashed at the threshold. We accordingly do so. The

Appeal is, therefore, allowed. The order of learned

Single Judge is set aside. The FIR dated 05.09.2006

lodged by Respondent No. 4 - Complainant with Odhav

Police Station, Ahmedabad stands quashed and all

criminal proceedings emanating therefrom also stand

quashed. The parties to bear their respective costs.

......................J.

[DALVEER BHANDARI]

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007

16

......................J.

[DEEPAK VERMA]

New Delhi

July 4, 2011