KAPIL AGARWAL AND OTHERS versus SANJAY SHARMA AND OTHERS

KAPIL AGARWAL AND OTHERS

SANJAY SHARMA AND OTHERS

(Criminal Appeal No. 142 of 2021)MARCH 01, 2021

[DR. DHANANJAYA Y CHANDRACHUD AND

M.R. SHAH, JJ.]

Constitution of India:

Art. 226 – Writ petition – For quashing FIR u/ss. 420/406IPC – Pursuant to termination of contract of distributorship of thecomplainant, the manufacturing company demanded outstandingamount due on the complainant – Cheque issued by the complainantfor the outstanding amount was dishonoured and case u/s. 138 ofNI Act pending – Complaint alleging misappropriation of fundsagainst one of the officers of the manufacturing company resultedin negative final police report – Another complaint of complainantu/s. 156(3) Cr.P.C against officers of the Company (appellants)pending before the Court – After period of about 2 years,impugned FIR u/ss. 406/420 IPC by the complainant against theappellants (offices of the Company) – Petition u/Art. 226, seekingquashing of the FIR – Refused by High Court – Appeal to SupremeCourt – Held: There is no bar to lodge an FIR with the sameallegations and averments on which earlier complaint case was filed– Therefore lodging of the previous complaint u/s. 156(3) Cr.P.Cwhich is pending, would not effect maintainability of the impugnedFIR – However, if the subsequent FIR is found to be abuse of processof law in order to harass the accused, the same can be quashed inexercise of powers u/Art. 226 or s. 482 of Cr.P.C. in exercise of itsinherent powers – The facts of the present case show that theimpugned FIR is an abuse of process of law with view to harassthe accused – Therefore, High Court ought to have quashed thesame to secure the ends of justice – Code of Criminal Procedure,1973 – s. 482.

Allowing the appeal, the Court

HELD: 1. It is not correct to say that the impugned FIRwould not be maintainable, and deserves to be quashed and set

Aaside for the reason that as on the same allegations, the privaterespondent-complainant has filed an application under Section156(3) Cr.P.C., which is pending before the Magistrate. As perSection 210 Cr.P.C., when in case instituted otherwise than ona police report, i.e., in complaint case, during the course of theinquiry or trial held by the Magistrate, it appears to the MagistrateBthat an investigation by the police is in progress in relation to theoffence which is the subject matter of the inquiry or trial held byhim, the Magistrate shall stay the proceedings of such inquiry ortrial and call for report on the matter from the police officerconducting the investigation. It also provides that if report isCmade by the investigating police officer under Section 173 Cr.P.C.and on such report cognizance of any offence is taken by theMagistrate against any person who is an accused in the complaintcase, the Magistrate shall inquire into or try together thecomplaint case and the case arising out of the police report as ifboth the cases were instituted on police report. It also furtherDprovides that if the police report does not relate to any accusedin the complaint case or if the Magistrate does not takecognizance of any offence on the police report, he shall proceedwith the inquiry or trial, which was stayed by him, in accordancewith the provisions of Cr.P.C. Thus, merely because on the sameEset of facts with the same allegations and averments earlier thecomplaint is filed, there is no bar to lodge the FIR with the policestation 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 theFsubsequent FIR is an abuse of process of law and/or the samehas been lodged only to harass the accused, the same can bequashed in exercise of powers under Article 226 of theConstitution or in exercise of powers under Section 482 Cr.P.C.In that case, the complaint case will proceed further in accordancewith the provisions of the Cr.P.C. [Para 6][157-E-F]G

3. Inherent jurisdiction under Section 482 Cr.P.C. and/orunder Article 226 of the Constitution is designed to achievesalutary purpose that criminal proceedings ought not to bepermitted to degenerate into weapon of harassment. When the

Court is satisfied that criminal proceedings amount to an abuseof process of law or that it amounts to bringing pressure uponaccused, in exercise of inherent powers, such proceedings canbe quashed. In the present case, the impugned/subsequent FIRfiled by the respondent – original complainant can be said to bean abuse of process of law and the same to be bringing pressureon the accused. This is demonstrated from the facts of the case.Therefore, when the impugned FIR is nothing but an abuse ofprocess of law and to harass the appellants-accused, the HighCourt ought to have exercised the powers under Article 226 ofthe Constitution of India/482 Cr.P.C. and ought to have quashedthe impugned FIR to secure the ends of justice. [Paras 6.1, 7 and8][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 registeredunder Sections 420/406 IPC, are hereby quashed and set asideon the aforesaid grounds. It is made clear that the Court has notexpressed anything on merits on the allegations made byrespondent no.1 against the appellants as the proceedings in theform of 156(3) Cr.P.C application are pending before theMagistrate. [Para 9][159-F-G]

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 SCC336 ; Mohd. Ibrahim v. State of Bihar (2009) 8 SCC751 : [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 SCC96 : [2015] 8 SCR 662 ; State of Haryana v. BhajanLal, 1992 Supp. (1) SCC 33 ; S.K. Alagh v. State ofU.P. (2008) 5 SCC 662 : [2008] 2 SCR 1088 ; SardarSingh v. State of Haryana (1977) 1 SCC 463 ; MaksudSaiyed v. State of Gujarat (2008) 5 SCC 688 ; SushilSethi v. State of Arunachal Pradesh (2020) 3 SCC 240: [2020] 1 SCR 582 – referred to.

ACase Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealDNo. 142 of 2021

From the Judgment and Order dated 08.09.2017 of the High Courtof Judicature at Allahabad in Criminal Miscellaneous Writ Petition No.18308 of 2017

K.V. Viswanathan, Sr. Adv., Amartya A. Sharan, Amit AnandETiwari, Ms. Mary Mitzy, Ms. Devyani Gupta, Advs. for the Appellants.

M. C. Dhingra, Raghvendra Shukla, Aviral Saxena, GauravDhingra, 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 judgmentand order dated 08.09.2017 passed by the High Court of Judicature atAllahabad in Criminal Miscellaneous Writ Petition No. 18308 of 2017,by which the High Court has dismissed the said writ petition preferredby the appellants herein, filed under Article 226 of the Constitution ofGIndia, for quashing the first information report registered as Case CrimeNo. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border,District Ghaziabad, the original writ petitioners/accused have preferredthe present appeal.

2. The relevant facts necessary for deciding the present appealare as under:H

That one M/s Varun Beverages Ltd. (for short, ‘VBL’) is licensedfranchisee of PepsiCo India Pvt. Ltd. and engaged in the manufactureand sale of carbonated sweetened water, fruit juice, packaged drinkingwater under the PepsiCo brand. That in the year 2013, the VBL appointedthe firm of the complainant – Sanjay Sharma as Distributor in the areaof Loni, District Ghaziabad to sell and distribute the productsmanufactured by the company. That in the year 2014, the companyterminated the contract of distributorship, which according to theappellants was due to non-payment of dues by respondent no.1 herein –original complainant. According to the appellants, thereafter onreconciliation of accounts and as per the statement of accounts maintainedby the company, after adjusting of all claims and security deposit, sumof Rs.9,46,280/- was found to be outstanding upon the complainant,towards the material supplied to him. The complainant issued chequedated 15.09.2014 in favour of the company – VBL. The said chequewas presented for encashment on 22.09.2014. The same was dishonouredand returned unpaid by the banker of the complainant due to “insufficientfunds”. That thereafter, due to non-payment after the issuance of thestatutory legal notices, appellants herein filed criminal complaint underSection 138 of the Negotiable Instruments Act on 07.11.2014 against R1and his company Thakur Trading, in the Court of Chief Judicial Magistrate,Ghaziabad being Complaint Case No. 7652/2014. R1 has been summonedto face the trial. The said complaint is presently pending for disposal. R1filed complaint against one of the officers of the company-VBL beingFIR No. 1565/2014 dated 15.09.2014 alleging misappropriation ofRs.6,00,000/- by one of the officers of the company, namely, Vipul Verma.That after investigation by the police, the investigating officer submitteda negative final report No. 47/2015 dated 20.01.2015.

2.1 R1 also filed one another case on 09.02.2015 formisappropriation of Rs.31,12,375/- by the appellants. That thereafter R1filed complaint/application under Section 156(3) Cr. P.C. in the Courtof learned Additional Chief Judicial Magistrate-I, Ghaziabad for issuanceof direction to the Police Station Loni to register FIR against the appellantsherein and two other officers of the company alleging misappropriationof an amount of Rs.31,12,375/-. The learned Magistrate, instead ofdirecting the police to register FIR, decided to enquire into the matter bytreating the same as complaint case. That vide order dated 23.03.2015,the learned Magistrate treated the application of R1 under Section 156(3)

ACr.P.C. as complaint case and an opportunity was granted to R1 torecord his statement under Section 200 Cr.P.C.

2.2 Feeling aggrieved by order dated 23.03.2015 treating theapplication under Section 156(3) Cr.P.C. as complaint case, R1 filed acriminal revision application No. 70/2015 before the learned SessionsBCourt, Ghaziabad. That the learned Sessions Judge, Ghaziabad allowedthe said revision application and quashed and set aside order dated23.03.2015 passed by the learned Magistrate and remanded the matterback to the learned Magistrate to consider the material on record andpass speaking order afresh for assigning reasons for consideringapplication under Section 156(3) Cr.P.C. as complaint case. ThatCthereafter the learned Magistrate sought an action report from theconcerned police station. That the concerned police officer submittedthe report before the learned Magistrate on 09.08.2015. That the saidproceedings are pending before the learned Magistrate.2.3 That after period of approximately two years, R1 lodged theDimpugned FIR against the appellants for the offences under Sections406/420 IPC at Police Station Loni, District Ghaziabad, dated 4.8.2017.The allegations in the said FIR are same/similar to the allegations levelledin the application under Section 156(3) Cr.P.C., which is pendingconsideration before the learned Magistrate since 2015.

At this stage, it is required to be noted that the said FIR is filedagainst Kapil Agarwal, appellant No.1 – Director, Sharad Garg, appellantNo.2 – Multi Unit Manager and Deepak Sharma, appellant No.3 – SalesHead. That thereafter the appellants approached the High Court underArticle 226 of the Constitution of India being Criminal MiscellaneousFWrit Petition No. 18308 of 2017 for quashing the aforesaid FIR beingCase Crime No. 790 of 2017, under Sections 420/406 IPC, Police StationLoni Border, District Ghaziabad. By the impugned judgment and order,the High Court has refused to quash the FIR observing that the impugnedFIR, prima facie, discloses commission of cognizable offence.

G2.4 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court refusing to quash the FIR beingCase Crime No. 790 of 2017, under Sections 420/406 IPC, Police StationLoni Border, District Ghaziabad, the original accused have preferred thepresent appeal.

3. Shri K.V. Vishwanathan, learned Senior Advocate appearingon behalf of the appellants has vehemently submitted that the impugnedFIR is an abuse of process of law to harass the appellants by convertinga purely civil dispute into criminal case.

3.1 It is submitted that the contents of the FIR show that it hasbeen registered for recovery of commission and discounts on sale whichalleged to have taken in the regular business transactions place over aperiod of 15 months between the parties. Hence, it is purely contractualdispute on the face of it.

3.2 It is submitted that no civil proceedings have been filed by thecomplainant for recovery of the alleged due amount. It is submitted thatthe impugned FIR has been lodged solely with view to arm twist andextort money from the appellants.

3.3 It is further submitted that there is not even whisper aboutthe pendency of the application under Section 156(3) Cr.P.C. pendingbefore the learned Magisterial Court, in the FIR. Nor is there any mentionof the fact that there is an ongoing case under Section 138 of the NIAct.

3.4 It is submitted that the police report in respect of Section156(3) application has gone against him, R1 has left the earlierproceedings lying pending for two years without participating in it andhas filed fresh FIR with the same allegations. It is submitted that thefresh FIR on the same allegations has been filed only with view to getthe 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 InfotrainLtd. v. State of U.P. (2015) 11 SCC 730, it is submitted that in view ofthe pendency of the complaint under Section 138 of the NI Act and thesubsequent FIR is counter-blast to the same, the present prosecutionwould be clearly an abuse of process of law and therefore the impugnedFIR deserves to be quashed and set aside.

3.6 Relying upon the decision of this Court in the case of UmaShankar Gopalika v. State of Bihar (2005) 10 SCC 336, it is submittedthat as the dispute can be said to be purely civil dispute, which hasbeen given criminal colour, the same deserves to be quashed and setaside.

A3.7 It is further submitted that even taking the allegations in theimpugned FIR at the face value, no offence under Sections 406/420 IPCis made out against the appellants. It is submitted that at best, the impugnedFIR alleges that R1 entrusted certain monies to the company which thecompany 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 anBaccused in their individual capacity as Director, Multi Unit Manager andSales Head. It is submitted that in order to make out case under Section406 IPC against the appellants, there must be an allegation that R1entrusted 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 thecontents of the impugned FIR, the essential ingredients of offence ofcheating under Section 420 IPC are completely missing. It is submittedthat there is no allegation that the appellants either, (a) deceived R1 bymaking any false or misleading representation; or dishonestly concealedDsome matter from R1; or by any other act or omission; (b) fraudulentlyor dishonestly induced R1 to deliver the cheques allegedly handed overas security, or to agree to entrust the claimed commissions/benefits toVBL; or to do or omit to do anything which R1 would not have done oromitted to have done if he were not deceived. Reliance is placed on thedecisions of this Court in the case of Mohd. Ibrahim v. State of BiharE(2009) 8 SCC 751; in the case of Vesa Holdings (P) Ltd. v. State ofKerala (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. BhajanLal, 1992 Supp. (1) SCC 33.

3.9 It is further submitted that even as per the allegations in theFFIR, 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) 5GSCC 688, even when case under Section 406 IPC is made out againsta company, vicarious liability cannot be extended to the Directors orofficers of company.

3.10 It is submitted that as the main allegations are against thecompany and the company had not been made as an accused in the FIR,Hthe same deserves to be quashed and set aside. Reliance is placed upon

the decision of this Court in the case of Sushil Sethi v. State of ArunachalPradesh (2020) 3 SCC 240.

3.11 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to allow the present appeal and quash and setaside the criminal proceedings and FIR being Case Crime No. 790 of2017, under Sections 420/406 IPC, Police Station Loni Border, DistrictGhaziabad, as the same is nothing but an abuse of process of law.

4. The present appeal is opposed by Shri M.C. Dhingra, learnedAdvocate appearing on behalf of the respondent – original complainant.

4.1 It is submitted that as the FIR discloses commission ofcognizable offence, the High Court has rightly refused to quash the FIR,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 dueand payable to the complainant, the complainant was constrained to makean application under Section 156(3) Cr.P.C. before the learned ChiefJudicial Magistrate at Ghaziabad. However, without referring to theallegations of the offences under Sections 420, 406, 467, 468, 471, 34/120-B IPC, the learned Magistrate vide very cryptic order dated23.03.2015 directed for treating the application under Section 156(3) asa complaint case under Section 200 Cr.P.C. Aggrieved, the complainantpreferred criminal revision before the learned Sessions Court, which on8.7.2015 set aside order dated 23.03.2015 and remanded the case backto the learned Magistrate to consider the material on record and decidethe complainant’s application under Section 156(3) afresh by reasonedorder. It is submitted that once again closure report was submitted bythe very same investigating officer who earlier submitted the closurereport. It is submitted that as the learned Magistrate did not pass anyorder on the closure report and kept the application under Section 156(3)under consideration for long, much to the agony of the complainant cravingjustice, the complainant was constrained to file the impugned FIR, makingserious allegations against the company and its officers – appellantsherein. It is submitted that, however, the police arrayed the appellants asan accused for the offences under Sections 420/406 IPC, although thefacts therein disclosed commission of offences under Sections 467, 468,471 IPC for forging complainant’s blank cheque No. 038611, out of fiveblank cheques lying with the company as security and sought to encashit but could not succeed as the cheque was dishonoured. It is submitted

Athat the company owed Rs.31,12,375.06 towards commission to be paidto the complainant – respondent which was lying in trust with it, but didnot 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 demandingmoney they extended threats to get him killed and therefore the impugnedFIR also discloses commission of an offence under Section 506 IPC asBwell.

4.3 Now so far as the submission on behalf of the appellants thatthere 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. Itis submitted that delay is mixed question of fact and law and plea ofCdefence. It can be explained at the trial. It is submitted that belatedregistration of FIR is always not fatal to the prosecution in every case asit is explainable at the trial. It is submitted that it is not thumb rule toquash FIR for delayed registration, which can be explained at the trial.

4.4 Now so far as the submission on behalf of the appellants thatDFIR could not be registered during the pendency of the application underSection 156(3) Cr.P.C. on the same set of allegations, it is submitted thatSection 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 verysame set of facts/allegations. It is submitted that quashing of FIR willElead to demolition of complaint under Section 156(3) Cr.P.C. pendingconsideration before the learned Magistrate.

4.5 It is further submitted that despite the fact that the FIRdiscloses commission of offences under Sections 467, 468, 471, 34/120-B IPC also, the police have registered FIR under Sections 420/406 IPCFonly. It is submitted that the trial Court can add charges under Sections467, 468, 471, 34/120-B IPC in exercise of powers under Section 216Cr.P.C. at any time before rendering judgment.

4.6 Now so far as the submission on behalf of the appellants fornon-disclosure of the pending application under Section 156(3) Cr.P.C.Gin the FIR is concerned, it is submitted that it is settled law that FIR isnot an encyclopaedia. It is submitted that even otherwise non-mentioningof the pendency of the complaint under Section 156(3) Cr.P.C. does notprejudice the appellants in any manner. It is submitted that even otherwiseas per Section 210 Cr.P.C., the proceedings before the Magistrate duringpendency of the investigation by the police in the FIR are required to beH

stayed by the learned Magistrate. It is submitted that the subsequentregistration of FIR on the very same set of allegations, as in the pendingcomplaint, does not confront any law.

4.7 Now so far as the submission on behalf of the appellants thatthe company is not joined as an accused in the FIR is concerned, it issubmitted that, as such, police ought to have included the company as anaccused with the appellants in the FIR. It is submitted that the appellantsnamed in the FIR have not disputed that they are principal functionariesof the company and had been responsible for the operations ofcomplainant’s dealership in all respects. It is submitted that the appellantscannot draw any benefit for absence of company as their co-accused.Company can be arrayed as an accused by the police in the chargesheetafter collecting evidence. It is submitted that even if by any chance thepolice 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 immunityfor the offence committed by them merely because they have madecomplaint against the complainant under Section 138 NI Act. It issubmitted that otherwise all cross criminal cases would be rebuffed ifsuch contention is accepted.

4.9 It is further submitted that as such the appellants haveacknowledged through emails as also through duly signed hard copiesthat Rs. 34,50,418/- is payable to the respondent by way of commission,incentives and discounts etc. This amount was retained by the appellantsand the company in trust upon conclusion of the dealership. The companyand the appellants have not paid the said amount and thereby have cheatedthe respondent and also committed breach of trust. It is submitted thatthe appellants are now speciously disputing the said acknowledgement.It is submitted that merely because the acknowledgements through emailsand hard copies are now disputed by the appellants, it will not result inquashing the FIR.

4.10 Making the above submissions and submitted that as the FIRdiscloses commission of cognizable offences, the same may not bequashed at the threshold in exercise of powers under Article 226 of theConstitution of India. It is submitted that as held by this Court in catenaof decisions that the power under Article 226 of the Constitution and/orunder Section 482 Cr.P.C. to quash the FIR at the threshold is required

Ato be exercised sparingly. It is submitted that it is not fit case to exercisethe power under Article 226 of the Constitution to quash the FIR whenthe FIR discloses commission of cognizable offences.

5. We have heard the learned counsel for the respective partiesat length.

It is the case on behalf of the appellants that as on the sameallegations, the private respondent-complainant has filed an applicationunder Section 156(3) Cr.P.C., which is pending before the learnedMagistrate, the impugned FIR with the same allegations and avermentswould not be maintainable, and therefore, the FIR lodged with the policeCstation Loni Border, District Ghaziabad deserves to be quashed and setaside. The aforesaid cannot be accepted for the simple reason that Codeof Criminal Procedure permits such an eventuality of complaint caseand enquiry or trial by the Magistrate in complaint case and aninvestigation by the police pursuant to the FIR. At this stage, Section 210Cr.P.C. is required to be referred to, which reads as under:D

“210. Procedure to be followed when there is complaint caseand police investigation in respect of the same offence – (1) Whenin case instituted otherwise than on police report (hereinafterreferred to as complaint case), it is made to appear to theMagistrate, during the course of the inquiry or trial held by him,Ethat an investigation by the police is in progress in relation to theoffence which is the subject- matter of the inquiry or trial held byhim, the Magistrate shall stay the proceedings of such inquiry ortrial and call for report on the matter from the police officerconducting the investigation.

(2) If report is made by the investigating police officer undersection 173 and on such report cognizance of any offence is takenby the Magistrate against any person who is an accused in thecomplaint case, the Magistrate shall inquire into or try togetherthe complaint case and the case arising out of the police report asif both the cases were instituted on police report.

(3)If the police report does not relate to any accused in thecomplaint case or if the Magistrate does not take cognizance ofany offence on the police report, he shall proceed with the inquiryor trial, which was stayed by him, in accordance with the provisionsof this Code.”

Thus, as per Section 210 Cr.P.C., when in case instituted otherwisethan on police report, i.e., in complaint case, during the course of theinquiry or trial held by the Magistrate, it appears to the Magistrate thatan investigation by the police is in progress in relation to the offencewhich is the subject matter of the inquiry or trial held by him, theMagistrate shall stay the proceedings of such inquiry or trial and call fora report on the matter from the police officer conducting the investigation.It also provides that if report is made by the investigating police officerunder Section 173 Cr.P.C. and on such report cognizance of any offenceis taken by the Magistrate against any person who is an accused in thecomplaint case, the Magistrate shall inquire into or try together thecomplaint case and the case arising out of the police report as if both thecases were instituted on police report. It also further provides that ifthe police report does not relate to any accused in the complaint case orif the Magistrate does not take cognizance of any offence on the policereport, he shall proceed with the inquiry or trial, which was stayed byhim, in accordance with the provisions of Cr.P.C.

Thus, merely because on the same set of facts with the sameallegations and averments earlier the complaint is filed, there is no bar tolodge the FIR with the police station with the same allegations andaverments.

6. However, at the same time, if it is found that the subsequentFIR is an abuse of process of law and/or the same has been lodged onlyto harass the accused, the same can be quashed in exercise of powersunder Article 226 of the Constitution or in exercise of powers underSection 482 Cr.P.C. In that case, the complaint case will proceed furtherin accordance with the provisions of the Cr.P.C.

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 226of the Constitution is designed to achieve salutary purpose that criminalproceedings ought not to be permitted to degenerate into weapon ofharassment. When the Court is satisfied that criminal proceedings amountto an abuse of process of law or that it amounts to bringing pressureupon accused, in exercise of inherent powers, such proceedings can bequashed.

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

Awith an overriding provision. The statute saves the inherent power ofthe High Court, as superior court, to make such orders as are necessary(i) to prevent an abuse of the process of any Court; or (ii) otherwise tosecure the ends of justice. Same are the powers with the High Court,when it exercises the powers under Article 226 of the Constitution.

B7. Applying the law laid down by this Court, referred tohereinabove, to the facts of the case on hand, subsequent FIR filed bythe respondent – original complainant can be said to be an abuse ofprocess of law and the same to be bringing pressure on the accused,which can be demonstrated from the following facts:

Ci)cheque no. 038611 was presented for encashment and thesame came to be dishonoured by the banker of thecomplainant due to “insufficient funds”;

ii)that the company – VBL served statutory legal notices uponthe complainant under the provisions of the NegotiableDInstruments Act;

iii)that thereafter complaint under Section 138 of the NegotiableInstruments Act has been filed by the company against therespondent-original complainant on 7.11.2014;

iv)that thereafter, after period of three months, respondentEno.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 sameFas complaint case and granted respondent no.1 – originalcomplainant an opportunity of recording solemn affirmationunder Section 200 Cr.P.C. (order dated 23.03.2015). Orderdated 23.03.2015 came to be set aside by the learnedSessions Judge vide order dated 8.7.2015 and the matterwas remanded to the learned Magistrate with directions toGpass speaking order. The same is pending before thelearned Magistrate;

vi)that thereafter after period of two years, R1 lodged theimpugned FIR against the appellants with police station LoniBorder, District Ghaziabad with the similar contents andH

allegations which were levelled in the application underSection 156(3) Cr.P.C. In the FIR, the date of occurrenceof the offence has been shown as 26.07.2017;

vii)it appears that R1 is not proceeding further with hisapplication under Section 156(3) Cr.P.C., which is pendingbefore the learned Magistrate since last five years;

viii)in the FIR, neither there is any reference to the applicationunder Section 156(3) Cr.P.C. which is pending before thelearned Magistrate, nor there is reference of the complaintunder Section 138 of the NI Act.

Under the circumstances, the impugned FIR is nothing but anabuse of process of law and can be said to be filed with view to harassthe appellants.

8. We are not expressing anything on merits whether, any case ismade 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 thelearned Magistrate is to take call on the same. Therefore, when theimpugned FIR is nothing but an abuse of process of law and to harassthe appellants-accused, we are of the opinion that the High Court oughtto have exercised the powers under Article 226 of the Constitution ofIndia/482 Cr.P.C. and ought to have quashed the impugned FIR to securethe ends of justice.

9. In view of the above and for the reasons stated above, thepresent appeal is allowed. The impugned criminal proceedings/FIRregistered as Case Crime No. 790 of 2017, under Sections 420/406 IPC,with the police station Loni Border, District Ghaziabad are hereby quashedand set aside on the aforesaid grounds. We make it clear that we havenot expressed anything on merits on the allegations made by respondentno.1 against the appellants as the proceedings in the form of 156(3)Cr.P.C application are pending before the learned Magistrate. The learnedMagistrate shall now proceed further with the said application, inaccordance with law and on its own merits. Respondent No.1 mayproceed further with the said proceedings, if he so chooses and is advised.

10. With these observations, the present appeal is allowed.

Kalpana K. Tripathy