REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 908 OF 2009

[Arising out of SLP (Criminal) No. 1793 of 2008]

HARMANPREET SINGH AHLUWALIA

& ORS. … APPELLANTS

Versus

STATE OF PUNJAB & ORS. … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.Appellants are before us aggrieved by and dissatisfied with a

judgment and order dated 13.12.2007 passed by a learned single judge of the

Punjab and Haryana High Court in Criminal Miscellaneous No. M-40020 of

2007 dismissing an application praying for quashing FIR No. 141 dated

30.5.2006 under Section 406/420 of the Indian Penal Code (for short, “IPC”)

in exercise of its jurisdiction under Section 482 of the Code of Criminal

Procedure (for short, “the Code”)

3.The basic fact of the matter is not in dispute.

Appellant No.1 is the husband of the respondent No.3. The other

appellants are his parents.

Respondent No. 3 was married with one Ravinder Singh Jaspal in

Canada in the year 1995. A son was born out of the said wedlock on or

about 25.8.1996. As disputes and differences arose between them,

respondent No. 3 filed an affidavit for grant of divorce on or about

30.9.1998. In the said proceedings, a decree for divorce was granted by a

Canadian court on or about 22.4.2000.

Almost immediately thereafter, that is, on 21.5.2000, respondent No.3

and appellant No.1 got married at Jalandhar as per Sikh rites.

After a month’s stay in India, respondent No. 3 left for Canada. On or

about 6.3.2001, respondent No.3 gave birth to a female child in Canada.

Appellant No.1 went to Canada on the sponsorship of respondent No.3 on

14.4.2001. He got an employment there as a driver.

2

Disputes and differences arose between the appellant No.1 and the

respondent No.3 in the year 2003. Allegedly, she left with all her

belongings and withdrew Canadian $ 24500 from the joint account of the

parties.

It is neither denied nor disputed that she had been contacting lawyers

with regard to her matrimonial disputes and even cancelled the sponsorship

of the application for grant of permanent residence of appellant No.1 as also

his family.

In those circumstances, Appellant No.1 initiated a divorce

proceedings before the Ontario Court of Justice, inter alia, stating:

“On 28

th

August, 2003, when the applicant had

gone to work, the respondent left the matrimonial

home to live with her parents. She took with her

all her personal effects, jewelleries and withdrew

$23,000.00 from their joint bank account.

The respondent is threatening to hurt herself

and get the applicant involved with the police to

deport him from Canada.

The applicant is afraid and believes, that if

she is allowed to come back to his home, she may

hurt herself or may hurt the applicant.

The respondent wants the applicant to be

deported and may do anything to cause physical

violence.

3

Inderpal Singh is the father of the

respondent, Paramjit Kaur and the father in law of

the applicant.

Surinder Singh is the brother of the

respondent, Paramjit Kaur and the brother-in-law

of the applicant.”

However, differences between them were sorted out and respondent

No.3 affirmed an affidavit on or about 30.9.2003 admitting her mistake,

stating:

“On September 20, 2003, I decided to return to the

house of my husband without advising him that I

was coming back. My husband is reluctant and

fearful to have me back in the house. I have

promised my husband that I would not harass him

any more and that I am very sorry for all the

problems that I have created for him.

I am making this affidavit to satisfy the concerns

and fear of my husband, HARMANPREET

SINGH AHLUWALIA with respect to my motive

of returning to his house. Harmanpreet Singh

Ahluwalia fears that I have voluntarily returned to

him cause more damage and problems for him. I

have, however, returned to my husband because I

have realized that I had made a big mistake by

taking the steps mentioned above and I am truly

remorseful for my actions.”

On or about 5.2.2006, parents of appellant No.1 visited Canada as

appellant No.2 developed a heart problem.

4

Disputes and differences again arose between the parties in the year

2006 as a result whereof they started living separately with effect from

29.3.2006.

It is only thereafter, the father of the respondent No. 3, namely Inter

Pal Singh, a retired Police Inspector and permanent resident of Canada,

while on a trip to India, lodged a complaint against the appellants under

Section 406/420 IPC on or about 21.4.2006 along with an affidavit of

respondent No.3 inter alia alleging that the appellants demanded dowry and

misappropriated the dowry articles.

It was furthermore alleged:

“11.That the marriage of Harmanpreet Singh

was conducted with my daughter with preplanned

ulterior and malafide motive in order to deceive

and misappropriate and misuse the dowry articles

which were entrusted to the accused as mentioned

above and had got pre-planned, ulterior and

malafide motive. At the time of living home, the

aforesaid Harmanpreet Singh also withdrawn the

amount from the bank from the joint account.”

In view of separation between appellant No.1 and respondent No.3,

appellant filed a second divorce petition on or about 1.5.2006 in the Superior

Court of Brampton, Ontario seeking divorce and custody of the child.

5

Indisputably, an FIR bearing No. 141 dated 30.5.2006 was registered

under Section 406/420 IPC at Division No. 4, Jalandhar.

The Superintendent of Police, Jalandhar made an enquiry with regard

to the aforementioned matter. He submitted a report on or about 30.3.2007,

the concluding portion whereof reads as under:

“From the investigation conducted till now, I have

reached to this conclusion that although the

marriage of Paramjit Kaur daughter of Inderpal

Singh and Harmanpreet Singh Ahluwalia son of

Sh. Harbhajan Singh had been solemnized at Hotel

Raj Mahal, Jalandhar, but the misunderstanding/

altercation between them had been developed after

their reaching in Canada. This fact has also been

proved/clarified here that during the period from

the year 2000 upto the year 2005, both of them

(husband-wife) had been living amicably but later

on again misunderstanding developed between

them due to calling of his parents by Harmanpreet

Singh to Canada. But the allegations leveled by

the plaintiff in the suit/case are baseless and devoid

of facts which has not been proved and neither

there are solid proof available in this regard.”

He made recommendations for cancellation of the said suit/case,

stating:

“From the enquiry till now made into the case

registered under FIR No. 141 dated 30.5.2006

under Section 406/420 IPC at P.S. Division No. 4,

Jalandhar, the allegations leveled by the plaintiff

have not been proved and neither the offence has

been found to be done. If approved, then S.H.O.

6

P.S. Division No.4 Jalandhar may be advised to

submit the cancellation report of this suit case.”

4.However, despite the same, a charge-sheet was issued. In the mean

time, divorce application filed by the appellant in Canada, were allowed by

the Ontario Superior Court of Justice by its order dated 19.10.2007.

On receipt of the summons, appellants filed an application under

Section 482 of the Code which by reason of the impugned judgment has

been dismissed.

5.Mr. Rajiv K. Garg, learned counsel appearing on behalf of the

appellants would submit:

i.Having regard to the factual backdrop of the matter, it is

evident that the Jalandhar Court had no territorial jurisdiction to

make an investigation into the matter.

ii.The proceedings initiated against the appellant amounts to an

abuse of the process of law as the FIR was deliberately filed at

Jalandhar although the offences, if any, had taken place only at

Ontario in Canada.

7

6.Mr. Vineet Dhanda, learned counsel appearing on behalf of the

respondent, on the other hand, urged:

i.That the appellants have committed criminal breach of trust in

respect of the articles which were given in dowry.

ii.Appellant No.1 married respondent No.3 only for the purpose

of going to Canada and, thus, an offence under Section 420 of

IPC must also be held to have been committed.

7.The allegations made in the FIR show that the appellant Nos. 2 and 3

could go to Canada on joint sponsorship of the appellant No.1 as also the

respondent No.3. It is only at Canada that alleged demand of a sum of Rs.5

lakhs was made on the premise that they intended to buy some property. In

the FIR, it was alleged that she left her residence for attending her duties at

about 0630 hrs in the morning on 29.3.2006 leaving behind her husband as

also two kids aged 5 and 9 years. However, when she returned home around

1700 hrs, she found some articles missing. She was admittedly informed by

the concerned police officers telephonically as regards the filing of divorce

petition by the appellant and, thus, she should not bother him anymore. It is

only thereafter the first informant Inder Pal Singh came to India and lodged

the FIR. He is a retired police officer. In his report, he alleged:

8

“9.That at the time of departure, the accused

were fully made aware of the fact that all the

articles of dowry mentioned above constitutes the

Streedhan of the daughter of the applicant namely

Paramjit Kaur and are meant for the exclusive use

and the same should be given to her for her

personal use whenever she demands the same from

them from time to time. After whole incident my

daughter Smt. Paramjit Kaur is living under

depression and cruelty.

10.That when I demanded the dowry articles

and Streedhan property, the above mentioned

persons refused to return the dowry articles.”

8.Parties admittedly live at Ontario in Canada. Offence, if any, had

been committed in Canada. FIR, however, has been lodged at Jalandhar

only after the divorce application was filed. No allegation has been made in

the FIR that appellants at the time of marriage or thereafter demanded any

dowry. The demand of a sum of Rs.5 lakhs allegedly was made only in

Canada and that too after the appellant Nos. 2 and 3 arrived in Canada in

March 2006, i.e., almost after a period of five years from the date of

marriage. We have noticed hereinbefore the opinion of the Superintendent of

Police. He recommended ‘cancellation’ of the FIR for one reason or the

other. However, the said recommendation had not been accepted. A charge-

sheet has been filed.

9

9.Mr. Dhanda submits that the jurisdiction of a High Court under

Section 482 of the Code should be used in exceptional cases and very

sparingly. According to the learned counsel, allegation of mala fide against

the first informant cannot be a ground for quashing a criminal proceeding

after a charge-sheet has been filed. Strong reliance in this behalf has been

placed on State of Karnataka v. M. Devendrappa [2002(3) SCC 89].

In the aforesaid judgment, this Court was considering a case of

quashing of a criminal proceeding for commission of offence punishable

under Section 465, 468, 471 and 420 read with Section 120B of the IPC.

Respondents therein were excise officials. This Court held:

“9. As noted above, the powers possessed by the

High Court under Section 482 of the Code are very

wide and the very plenitude of the power requires

great caution in its exercise. Court must be careful

to see that its decision in exercise of this power is

based on sound principles. The inherent power

should not be exercised to stifle a legitimate

prosecution. The High Court being the highest

court of a State should normally refrain from

giving a prima facie decision in a case where the

entire facts are incomplete and hazy, more so when

the evidence has not been collected and produced

before the Court and the issues involved, whether

factual or legal, are of magnitude and cannot be

seen in their true perspective without sufficient

material. Of course, no hard-and-fast rule can be

laid down in regard to cases in which the High

Court will exercise its extraordinary jurisdiction of

quashing the proceeding at any stage. {See: Janata

Dal v. H.S. Chowdhary [(1992) 4 SCC 305] and

10

Raghubir Saran (Dr) v. State of Bihar [AIR 1964

SC 1]}. It would not be proper for the High Court

to analyse the case of the complainant in the light

of all probabilities in order to determine whether a

conviction would be sustainable and on such

premises arrive at a conclusion that the

proceedings are to be quashed. It would be

erroneous to assess the material before it and

conclude that the complaint cannot be proceeded

with. In a proceeding instituted on complaint,

exercise of the inherent powers to quash the

proceedings is called for only in a case where the

complaint does not disclose any offence or is

frivolous, vexatious or oppressive. If the

allegations set out in the complaint do not

constitute the offence of which cognizance has

been taken by the Magistrate, it is open to the High

Court to quash the same in exercise of the inherent

powers under Section 482 of the Code. It is not,

however, necessary that there should be

meticulous analysis of the case before the trial to

find out whether the case would end in conviction

or acquittal. The complaint has to be read as a

whole. If it appears that on consideration of the

allegations in the light of the statement made on

oath of the complainant that the ingredients of the

offence or offences are disclosed and there is no

material to show that the complaint is mala fide,

frivolous or vexatious, in that event there would be

no justification for interference by the High Court.

When an information is lodged at the police station

and an offence is registered, then the mala fides of

the informant would be of secondary importance.

It is the material collected during the investigation

and evidence led in court which decides the fate of

the accused person. The allegations of mala fides

against the informant are of no consequence and

cannot by themselves be the basis for quashing the

proceedings.”

Recently in R. Kalyani vs. Janak C. Mehta & Ors. [(2009) 1 SCC

516], this Court opined:

11

“15.Propositions of law which emerge from the

said decisions are:

(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

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.

(3) Such a power should be exercised very

sparingly. 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 by itself may not be a ground to hold that

the criminal proceedings should not be allowed to

continue.

16.It is furthermore well known that no hard

and fast rule can be laid down. Each case has to be

considered on its own merits. The Court, while

exercising its inherent jurisdiction, although would

not interfere with a genuine complaint keeping in

view the purport and object for which the

provisions of Sections 482 and 483 of the Code of

Criminal Procedure had been introduced by the

Parliament but would not hesitate to exercise its

jurisdiction in appropriate cases. One of the

paramount duties of the Superior Courts is to see

that a person who is apparently innocent is not

12

subjected to persecution and humiliation on the

basis of a false and wholly untenable complaint.”

We must, however, also notice that in State of Haryana & Ors. vs.

Bhajan Lal [1992 Supp (1) SCC 335], this Court inter alia laid down the law

in the following terms:

“102. In the backdrop of the interpretation

of the various relevant provisions of the Code

under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions

relating to the exercise of the extraordinary power

under Article 226 or the inherent powers under

Section 482 of the Code which we have extracted

and reproduced above, we give the following

categories of cases by way of illustration wherein

such power could be exercised either to prevent

abuse of the process of any court or otherwise to

secure the ends of justice, though it may not be

possible to lay down any precise, clearly defined

and sufficiently channelised and inflexible

guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein

such power should be exercised.”

Sub-Para (7) of the said Para reads as under:

“(7)Where a criminal proceeding is

manifestly attended with mala fide

and/or where the proceeding is

maliciously instituted with an ulterior

motive for wreaking vengeance on the

accused and with a view to spite him

due to private and personal grudge.”

Does this case come within the purview of the aforementioned dicta is

the question.

13

10.Parties were married in May 2000. Disputes between the parties arose

for the first time in the year 2003. Respondent No.3, however, on an

application filed by the appellant No.1 apprehending danger to his life,

categorically admitted her fault and guilt. Even at that point of time no

allegations of cheating and/or non-return of the Stridhan were made. It is

only after a period of three years when the disputes and differences between

the parties wrecked up once again and on filing of an application for divorce,

the father of the respondent No.3 came from Canada to Jalandhar to lodge

FIR. The facts pleaded in the application for quashing of FIR before the

High Court are not denied or disputed. In fact, most of the documents relied

on by the appellant are annexed to the counter affidavit filed on behalf of the

respondent No.3 herself. We, therefore, do not have to consider any

document which the appellant intends to place before us by way of defence.

It is also not a case where this court has to undertake a difficult task of

appreciating the evidence brought on record by the parties.

Mr. Dhanda’s submission that the marriage between the appellant

No.1 and respondent No.3 was solemnized only for the purpose of getting

the family settled at Canada is far fetched. For the purpose of constituting

an offence for criminal breach of trust and/or cheating, the ingredients

14

thereof as contained in Section 405 and 415 respectively must be borne out

from the records.

11.Criminal breach of trust is defined in Section 405 of IPC. The

ingredients of an offence of the criminal breach of trust are:

“1.Entrusting any person with property or with

any dominion over property.

2.That person entrusted (a) dishonestly

misappropriating or converting to his own

use that property; or (b) dishonestly using or

disposing of that property or willfully

suffering any other person so to do in

violation—

(i)of any direction of law prescribing the

mode in which such trust is to be

discharged, or

(ii)of any legal contract made touching

the discharge of such trust.”

Section 415 of the IPC defines cheating as under :

“Section 415.—Cheating—Whoever, by

deceiving any person, fraudulently or dishonestly

induces the person so deceived to deliver any

property to any person, or to consent that any

person shall retain any property, or intentionally

induces the person so deceived to do or omit to do

anything which he would not do or omit if he were

not so deceived, and which act or omission causes

or is likely to cause damage or harm to that person

in body, mind, reputation or property, is said to

‘cheat’.”

15

An offence of cheating cannot be said to have been made out unless

the following ingredients are satisfied:

“i) deception of a person either by making a

false or misleading representation or by

other action or omission;

(ii)fraudulently or dishonestly inducing any person to

deliver any property; or

(iii)To consent that any person shall retain any property and

finally intentionally inducing that person to do or omit to

do anything which he would not do or omit.”

12.For the purpose of constituting an offence of cheating, the

complainant is required to show that the accused had fraudulent or dishonest

intention at the time of making promise or representation. Even in a case

where allegations are made in regard to failure on the part of the accused to

keep his promise, in absence of a culpable intention at the time of making

initial promise being absent, no offence under Section 420 of the Indian

Penal Code can be said to have been made out.

13.We may reiterate that one of the ingredients of cheating as defined in

Section 415 of the Indian Penal Code is existence of an intention of making

initial promise or existence thereof from the very beginning of formation of

contract.

16

In Ajay Mitra v. State of M.P. (2003) 3 SCC 11, this Court held:

15. Section 420 IPC says that

“whoever cheats and thereby dishonestly

induces the person deceived to deliver any

property to any person ... shall be punished with

imprisonment ...”.

Cheating has been defined in Section 415 IPC and

it says that:

“415. Whoever, by deceiving any person,

fraudulently or dishonestly induces the person

so deceived to deliver any property to any

person, or to consent that any person shall

retain any property, or intentionally induces the

person so deceived to do or omit to do anything

which he would not do or omit if he were not so

deceived, and which act or omission causes or

is likely to cause damage or harm to that person

in body, mind, reputation or property, is said to

‘cheat’.”

16. A guilty intention is an essential ingredient

of the offence of cheating. In other words “mens

rea” on the part of the accused must be established

before he can be convicted of an offence of

cheating. (See Jaswantrai Manilal Akhaney v.

State of Bombay [AIR 1956 SC 574). In Mahadeo

Prasad v. State of W.Bi [AIR 1954 SC 724] it was

held as follows: (AIR paras 4-5)

Where the charge against the accused is

under Section 420 in that he induced the

complainant to part with his goods, on the

understanding that the accused would pay for

the same on delivery but did not pay, if the

accused had at the time he promised to pay cash

against delivery an intention to do so, the fact

that he did not pay would not convert the

transaction into one of cheating. But if on the

other hand he had no intention whatsoever to

pay but merely said that he would do so in

order to induce the complainant to part with the

goods then a case of cheating would be

established.”

17

In Hira Lal Hari Lal Bhagwati v. CBI [(2003) 5 SCC 257], this Court

held :

“40. It is settled law, by a catena of decisions, that

for establishing the offence of cheating, the

complainant is required to show that the accused

had fraudulent or dishonest intention at the time of

making promise or representation. From his

making failure to keep promise subsequently, such

a culpable intention right at the beginning that is at

the time when the promise was made cannot be

presumed. It is seen from the records that the

exemption certificate contained necessary

conditions which were required to be complied

with after importation of the machine. Since the

GCS could not comply with it, therefore, it rightly

paid the necessary duties without taking advantage

of the exemption certificate. The conduct of the

GCS clearly indicates that there was no fraudulent

or dishonest intention of either the GCS or the

appellants in their capacities as office-bearers right

at the time of making application for exemption.”

{See also Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006)

6 SCC 736]}

In Vir Prakash Sharma v. Anil Kumar Agarwal [(2007) 7 SCC 373],

noticing, inter alia, the aforementioned decision, this Court held:

“8. The dispute between the parties herein is

essentially a civil dispute. Non-payment or

underpayment of the price of the goods by itself

does not amount to commission of an offence of

cheating or criminal breach of trust. No offence,

having regard to the definition of criminal breach

18

of trust contained in Section 405 of the Penal Code

can be said to have been made out in the instant

case.”

It was furthermore opined:

“13. The ingredients of Section 420 of the Penal

Code are as follows:

(i) Deception of any persons;

(ii) Fraudulently or dishonestly inducing any

person to deliver any property; or

(iii) To consent that any person shall retain any

property and finally intentionally inducing

that person to do or omit to do anything

which he would not do or omit.

No act of inducement on the part of the appellant

has been alleged by the respondent. No allegation

has been made that he had an intention to cheat the

respondent from the very inception.

14. What has been alleged in the complaint

petition as also the statement of the complainant

and his witnesses relate to his subsequent conduct.

The date when such statements were allegedly

made by the appellant had not been disclosed by

the witnesses of the complainant. It is really absurd

to opine that any such statement would be made by

the appellant before all of them at the same time

and that too in his own district. They, thus, appear

to be wholly unnatural.

15. In law, only because he had issued cheques

which were dishonoured, the same by itself would

not mean that he had cheated the complainant.

Assuming that such a statement had been made,

the same, in our opinion, does not exhibit that

there had been any intention on the part of the

19

appellant herein to commit an offence under

Section 417 of the Penal Code.

16. Furthermore, admittedly, their residences are in

different districts. Whereas the appellant is a

resident of the district of Ajamgarh, the respondent

is a resident of the district of Rampur. Cheques

were admittedly issued by the appellant at his

place. There is nothing on record to show that any

part of the cause of action arose within the

jurisdiction of the court concerned. Even if such

statements had been made, the same admittedly

have been made only at the place where the

appellant resides. The learned Magistrate,

therefore, had no jurisdiction to issue the

summons.”

The said principle has been reiterated in All Cargo Movers (I) Pvt.

Ltd. v. Dhanesh Badarmal Jain & Anr. [2007 (12) SCALE 391], stating:

“For the said purpose, allegations in the complaint

petition must disclose the necessary ingredients

therefor. Where a civil suit is pending and the

complaint petition has been filed one year after

filing of the civil suit, we may for the purpose of

finding out as to whether the said allegations are

prima facie cannot notice the correspondences

exchanged by the parties and other admitted

documents. It is one thing to say that the Court at

this juncture would not consider the defence of the

accused but it is another thing to say that for

exercising the inherent jurisdiction of this Court, it

is impermissible also to look to the admitted

documents. Criminal proceedings should not be

encouraged, when it is found to be mala fide or

otherwise an abuse of the process of the Court.

Superior Courts while exercising this power should

also strive to serve the ends of justice.”

20

(See also Sharon Michael & ors. vs. State of Tamil Nadu & Anr.

[2009 (1) SCALE 627]

14.It is, therefore, evident that the element of wrongful intention should

ordinarily exist from the inception of the contract. FIR does not satisfy the

aforementioned test. So far as the allegation in regard to criminal breach of

trust is concerned, it related to the dowry articles. No allegation has been

made that the appellants are guilty of commission of offence punishable

under Section 3 and/or 4 of the Dowry Prohibition Act. If any dowry has

been given, the same would attract the provisions of the special act in

preference to the general statute. Furthermore, if any article is given by way

of dowry, the question of entrustment thereof for or on behalf of the bride

would not arise.

Allegations made in the FIR merely disclose that at the time of

leaving the house, appellants had taken with them certain articles. The said

articles ought to be in lawful possession of the respondent No.3. The

offence of theft might have been committed. But when they are in joint

possession, even no offence of theft would also be made out.

Furthermore, the larger part of offence, if any, has been committed

only in Canada. Why the father of respondent No. 3 had to come from

21

Canada to Jalandhar to lodge an FIR is difficult to comprehend. Respondent

No.3 and the first informant do not say that the inquiry report submitted by

the Superintendent of Police on the representation made by the appellant

No.2 was incorrect. It has also not been stated that as to on what material,

the charge-sheet had been submitted. We, in the peculiar facts and

circumstances of this case, have absolutely no doubt in our mind that the

allegations contained in the FIR had been made with an ulterior motive to

harass the appellants. Continuance of the criminal proceeding against them

would, therefore, amount to abuse of process of the court.

In All Carogo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain & Anr.

[2007 (12) SCALE 391], this Court held:

“For the said purpose, allegations in the complaint

petition must disclose the necessary ingredients

therefor. Where a civil suit is pending and the

complaint petition has been filed one year after

filing of the civil suit, we may for the purpose of

finding out as to whether the said allegations are

prima facie cannot notice the correspondences

exchanged by the parties and other admitted

documents. It is one thing to say that the Court at

this juncture would not consider the defence of the

accused but it is another thing to say that for

exercising the inherent jurisdiction of this Court, it

is impermissible also to look to the admitted

documents. Criminal proceedings should not be

encouraged, when it is found to be mala fide or

otherwise an abuse of the process of the Court.

22

Superior Courts while exercising this power should

also strive to serve the ends of justice.”

{See also V.Y. Jose & Anr. vs. State of Gujarat & Anr. [2008 (16)

SCALE 167]}

In Hira Lal & Ors. vs. State of U.P. & Ors. [2009 (5) SCALE 418],

this Court held:

“10.The parameters of interference with a

criminal proceeding by the High Court in exercise

of its jurisdiction under Section 482 of the Code

are well known. One of the grounds on which

such interference is permissible is that the

allegations contained in the complaint petition

even if given face value and taken to be correct in

their entirety, commission of an offence is not

disclosed. The High Court may also interfere

where the action on the part of the complainant is

mala fide.”

15.Upon taking a holistic view of the matter vis-à-vis the statutory

provisions, we are of the opinion that the appellants had made out an

exceptional case to invoke the inherent jurisdiction of the High Court under

Section 482 of the Code. It was, in our opinion, obligatory on the part of the

High Court to exercise its discretionary jurisdiction to prevent the abuse of

process of the court.

23

16.For the aforementioned reasons, the impugned judgment and order of

the High Court is set aside. The appeal is allowed.

……………….…..………….J.

[S.B. Sinha]

..………………..……………J.

[Dr. Mukundakam Sharma]

New Delhi;

May 5, 2009

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