Quashing of taking cognizance
2. This appeal impugns judgment and order of the High Court dated 01.02.2024 passed in Cr. M.P. No.3796 of 2018 whereby, exercising powers under Section 482 of the Code of Criminal Procedure, 1973, the High Court quashed the order dated 20.02.2020, by which cognizance was taken, and all further proceedings in connection with Case No.78 of 2016, registered at P.S. Sakchi, corresponding to G.R. No.1627 of 2016, pending in the court of Chief Judicial Magistrate3, Jamshedpur.
Factual Matrix
Appellant section 156(3) Cr.P.C for collecting rent arrears amount
3. The appellant (original complainant) filed an application, under Section 156(3) CrPC, alleging that the second and third respondents (original accused) offered to take appellant’s Truck (Trailor No.NL 01K 1250) on a monthly rent of Rs.33,000, exclusive of driver’s/helper’s salary, for plying it between Tata Steel Jamshedpur and Kalinganagar; pursuant to that offer, an agreement was entered into between the appellant and the accused on 10.07.2014 thereby letting the vehicle to the accused for a period up to 31.03.2016 with effect from 14.07.2014; and, in furtherance thereof, possession of the Truck was given to the accused. In return, they paid one month rent, after deducting TDS. But thereafter, though the Truck had been in possession of the accused since July 2014, rent including arrears amounting to Rs.12,49,780 was not paid despite repeated false assurances.
CJM allowed application filed under section 156(3) CrPC
4. On the aforesaid application under Section 156(3) CrPC, the learned CJM vide order dated 12.11.2016 directed the police to institute a case and investigate.
CJM issued NBW against accused
5. During investigation when despite notice under Section 41A CrPC the accused did not appear, the police applied to the CJM for issuance of NBW against the accused. The said application was allowed vide order dated 30.06.2017.
Quash preferred against NBW
6. Aggrieved with the order dated 30.06.2017, the second and third respondents filed application under Section 482 CrPC for quashing the aforesaid order as well as proceedings pursuant to the FIR registered as Case No.78 of 2016 at P.S. Sakchi.
7. In the application under Section 482 CrPC it was, inter alia, alleged that no agreement was executed; that appellant intended to let out his Truck parked inside Tata Steel Factory, but, despite payment of advance rent of one month, necessary papers concerning the Truck were not provided, therefore, no agreement was executed; and even if it is taken that agreement was executed, no offence punishable under Sections 406 and 420 IPC is made out.
While pending quash CJM took cognizance and issued summons
8. While the application under Section 482 CrPC was pending before the High Court, on a police report, cognizance was taken by CJM on 20.02.2020 and processes were issued under Section 204 CrPC. Consequently, respondent nos. 2 and 3 (original accused) sought amendment in their prayer before the High Court so as to include the prayer to quash the cognizance order.
High Court quashed order of cognizance all further proceedings
9. The High Court vide impugned order quashed the order of cognizance and all further proceedings in the case concerned while leaving it open to the original complainant to take recourse to civil remedies.
Reasoning of the High Court
10. The High Court reasoned thus:
a. There is no allegation of entrustment in the FIR, therefore, offence of criminal breach of trust, punishable under Section 406 IPC6, is not made out.
b. Admittedly, one month rent was paid, therefore, dishonest intention from the very beginning was not there. The application is only for recovery of rent, which can be realised by taking recourse to appropriate civil proceeding. Hence, no offence punishable under Section 420 IPC is made out.
11. Aggrieved by the order of the High Court, original complainant is before us. 12. We have heard learned counsel for the parties and have perused the materials on record.
Analysis
The correctness of the allegations is not to be tested during quash
16. Before we proceed to test the correctness of the impugned order, we must bear in mind that at the stage of deciding whether a criminal proceeding or FIR, as the case may be, is to be quashed at the threshold or not, the allegations in the FIR or the police report or the complaint, including the materials collected during investigation or inquiry, as the case may be, are to be taken at their face value so as to determine whether a prima facie case for investigation or proceeding against the accused, as the case may be, is made out. The correctness of the allegations is not to be tested at this stage.
Taking possession of the truck on hire and has failed to pay hire charges for months together while making false promises for its payment shows dishonest intention on the part of the accused
17. To commit an offence, unless the penal statute provides otherwise, mens rea is one of the essential ingredients. Existence of mens rea is a question of fact which may be inferred from the act in question as well as the surrounding circumstances and conduct of the accused. As a sequitur, when a party alleges that the accused, despite taking possession of the Truck on hire, has failed to pay hire charges for months together, while making false promises for its payment, a prima facie case, reflective of dishonest intention on the part of the accused, is made out which may require investigation. In such circumstances, if the FIR is quashed at the very inception, it would be nothing short of an act which thwarts a legitimate investigation.
Court shall not quash When FIR alleges dishonest conduct on the part of the accused which is supported by investigation materials and disclose commission of cognizable offence
18. It is trite law that FIR is not an encyclopedia of all imputations. Therefore, to test whether an FIR discloses commission of a cognizable offence what is to be looked at is not any omission in the accusations but the gravamen of the accusations contained therein to find out whether, prima facie, some cognizable offence has been committed or not. At this stage, the Court is not required to ascertain as to which specific offence has been committed. It is only after investigation, at the time of framing charge, when materials collected during investigation are before the Court, the Court has to draw an opinion as to for commission of which offence the accused should be tried. Prior to that, if satisfied, the Court may even discharge the accused. Thus, when the FIR alleges a dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognizable offence, investigation should not be thwarted by quashing the FIR.
Petition to quash does not become infructuous on submission of police report
19. No doubt, a petition to quash the FIR does not become infructuous on submission of a police report under Section 173 (2) of the CrPC, but when a police report has been submitted, particularly when there is no stay on the investigation, the Court must apply its mind to the materials submitted in support of the police report before taking a call whether the FIR and consequential proceedings should be quashed or not. More so, when the FIR alleges an act which is reflective of a dishonest conduct of the accused.
Factually quash not justified
20. In the instant case, the FIR alleges that the accused took original complainant’s Truck/ Trailor on hire for a period starting from 14.07.2014 up to 31.03.2016 at a monthly rent of Rs.33,000/- but, after payment of 1st month rent, the rent was not paid despite false assurances. The allegation that rent was not paid by itself, in ordinary course, would presuppose retention of possession of the vehicle by the accused. In such circumstances as to what happened to that Truck becomes a matter of investigation. If it had been dishonestly disposed of by the accused, it may make out a case of criminal breach of trust. Therefore, there was no justification to quash the FIR at the threshold without looking into the materials collected during the course of the investigation.
21. In our view, the High Court ought to have considered the materials collected during investigation before taking a call on the prayer for quashing the FIR, the cognizance order and the proceedings in pursuance thereof.
23. Accordingly, the appeal is allowed. The impugned order of the High Court is set aside. The quashing petition shall be restored to its original number and shall be decided afresh by the High Court in accordance with law and in the light of the observations above. All contentions and pleas are kept open for the parties to urge before the High Court.
24. Pending application(s), if any stand disposed of.
Party
Somjeet Mallick … Appellant(S) versus State of Jharkhand & Others … Respondent(S) – Criminal Appeal No. of 2024 (Arising Out of SLP (Criminal) No.6583 of 2024) – 2024 INSC 772 – OCTOBER 14, 2024