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.   

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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  28th 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.  

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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.   

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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.   

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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.  

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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.  

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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:

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“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.   

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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  

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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:

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“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  

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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.   

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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  

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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’.”

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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.

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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.”

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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  

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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  

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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.”

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(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  

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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.  

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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.   

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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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