REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 779  OF 2007

Rajeswar Tiwari & Ors.             .... Appellant (s)

Versus

Nanda Kishore Roy        .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1)  This  appeal  is  directed  against  the  final  order  dated  

31.01.2007 passed by the High Court of Calcutta in C.R.R. No. 2774  

of  2005  with  C.R.R.  No.  2772  of  2005  whereby  the  High  Court  

dismissed the applications filed under Section 482 of the Criminal  

Procedure  Code  (hereinafter  referred  to  as  ‘the  Code’)  by  the  

appellants  to  quash  the  criminal  proceedings  pending  before  the  

Judicial Magistrate, 2nd Court, Asansol, being Case No. C/438 of 2003  

under Section 406/120B of IPC corresponding to T.R. No. 167 of 2003.  

2) The facts leading to the present appeal are as under:

a) In 1973, the respondent joined the Indian Iron and Steel  

Company Ltd., (renamed IISCO Steel Plant), a unit of Steel Authority  

of India Ltd., at Burnpur, near Asansol in West Bengal.  In 1989, he  

was appointed as Assistant Foreman. In 1991 he filed a writ petition  

being C.O. No. 9954(W) of 1991 before the High Court of Calcutta  

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seeking direction for considering his claim for promotion to the  

post  of  Senior  Mechanic  alleging  that  he  was  superseded  by  his  

juniors.  On 19.01.1995, the respondent filed another writ petition  

praying for interim order restraining the appellants from filling up  

the post of Assistant Foreman.  The High Court, in the said writ  

petition, directed for maintaining status quo.  In June 1996, the  

respondent filed a contempt petition on the ground of violating the  

said  status  quo  order  by  the  appellants  herein.   In  the  said  

contempt petition, the High Court directed for personal appearance  

of  the  concerned  officers  of  the  Company  and  ultimately  after  

hearing them, dismissed the contempt petition.   

b) On 06.12.2003, the respondent filed a private complaint being  

C/438  of  2003  before  the  Additional  Chief  Judicial  Magistrate,  

Asansol under Sections 461/468/406 read with Section 120B of IPC  

against  the  appellants  herein  alleging  discrimination  by  unduly  

deducting Rs.1,640/- p.m. from the monthly salary as Income Tax.  It  

was also stated in the complaint that the amount so deducted was not  

deposited with the Income Tax Authority and should be refunded back.  

It was also mentioned in the complaint about the wrongful deduction  

of  the  amount  on  account  of  cooperative  loan  issued  by  the  

appellants/Company.  On examination of the witnesses under Section  

200 of the Code of Criminal Procedure, the Magistrate directed the  

Officer-in-Charge  P.S.  Hirapur  to  cause  an  inquiry  into  the  

allegations made in the complaint.  On 30.04.2004, the appellants  

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informed that the amount of income tax deducted in consonance with  

Section 192 of the Income Tax Act being deposited in due course as  

tax to the credit of employee/respondent in terms of Section 199 of  

the Income Tax Act as uniformly done in respect of every employee  

and also produced Form No-16 of the respondent for the period from  

01.04.2003 to 31.03.2004.  On 15.07.2004 & 30.01.2005, the police  

submitted  two  inquiry  reports,  inter  alia,  stating  the  previous  

conduct of the respondent and also stated that the complaint in  

issue  is  civil  in  nature.   On  31.01.2005,  after  taking  into  

consideration  the  inquiry  reports  of  the  police,  the  Judicial  

Magistrate,  Asansol  directed  issuance  of  summons  against  the  

appellants for an offence under Section 406/120B of the Indian Penal  

Code.   In  response  to  the  summons,  the  appellants  made  an  

application  under  Section  205  of  the  Code  before  the  Judicial  

Magistrate and the same was rejected by an order dated 26.07.2005.  

Subsequently, vide order dated 12.09.2005, the Judicial Magistrate  

issued warrant of arrest against the appellants.  The appellants  

filed application being C.R.R. No. 2774 of 2005 before the High  

Court of Calcutta under Section 482 of the Code for quashing of the  

complaint and prayed for staying of proceedings in the complaint  

bearing  No.  C/438  of  2003.  The  appellants  also  filed  another  

application under Section 482 being C.R.R. No. 2772 of 2005 seeking  

quashing of the order dated 12.09.2005.  The High Court, by order  

dated  31.01.2007,  rejected  the  prayer  for  quashing  the  criminal  

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proceedings and disposed of both the applications with a direction  

to the trial Court to dispose of the matter within a period of six  

months.  Aggrieved by the same, the appellants have preferred this  

appeal by special leave before this Court.

3)   Heard  Mr.  Ranjit  Kumar,  learned  senior  counsel  for  the  

appellants and Mr. Yashank Adhyaru, learned senior counsel for the  

respondent.   

4)  In order to test the claim of both the parties as well as the  

correctness of the impugned order of the High Court, it is useful to  

refer the details of the complaint dated 06.12.2003 filed by the  

respondent.  He described himself as an employee of ME Steel, IISCO,  

Burnpur and he made the following officers as accused persons:  

1. A.K. Jaiswas EDI/C.Cum M.D. IISCO Ltd. Burnpur Works

2. Rajeswar Tiwari GM [P&A]

3. Robin Roy DGM (MM) SMS Deptt.

4. P. Karmakar, AGM [MM] SMS Deptt.

5. Sukumar Mukherjee, Manager Finance

6. Shivaji Roy DGM [PL]

7. Tarit Pal GM [IS]

All are of IISCO Burnpur PS Hirapur Distt. Burdwan

In the complaint, he mentioned about the filing of writ petition in  

1991 before the High Court of Calcutta and the order passed therein  

in 2003.  He also referred to his contempt petition before the High  

Court.  He alleged that due to the direction of the High Court,  

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which was issued at his instance, the abovesaid officers entered  

into a criminal conspiracy and with a view to pressurize him for  

withdrawing the said contempt, starting giving threats to him in  

various manners.  According to him, due to such attitude towards  

him, the accused persons with a view to get their object fulfilled,  

started illegal deduction of Rs. 1640/- per month from his monthly  

salary  as income  tax w.e.f.  May 2003.  In this  way, the  accused  

persons had deducted an amount of Rs. 13,120/- from his salary on  

account of income tax and the said amount had not been deposited  

with the income tax authority.  The appellant also stated that he  

does not fall within the category of taxable income, and in any  

event, not to the tune of Rs. 1640/. He also claimed that he sent a  

notice under registered post with acknowledgement due on 17.11.2003  

to  accused  Nos.  1  to  5  requesting  them  to  return  the  money  so  

deducted illegally from his salary.  On receipt of the notice, the  

accused persons abused him in the presence of witnesses and others  

and also threatened him with dire consequences.  He also pointed out  

that a sum of Rs. 3050/- had been deducted from his salary illegally  

on  account  of  cooperative  loan  although,  on  the  previous  month,  

deduction was only to the extent of Rs. 50.  With these allegations,  

he  claimed  that  accused  persons  have  committed  offence  under  

Sections 467, 468, 403 and 406 read with Section 120B IPC and prayed  

for issuance of summons.  

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5)  We have adverted to almost all the averments/allegations made by  

the respondent herein in respect of accused nos. 1 to 5 who are  

appellants before us.  From this, we are able to understand that the  

respondent has grievance against the management in respect of his  

non promotion at the relevant time, moving to the High Court of  

Calcutta, obtaining certain orders, filing of contempt petition etc.  

It is also alleged that the appellants have deducted income tax to  

the  extent of  Rs. 1,640/-  per month  from his  monthly salary  as  

income tax but according to the respondent, he was not liable to pay  

income tax.   

6)  Mr. Ranjit Kumar, learned senior counsel for the appellants has  

pointed out that there is no lapse on their part in respect of the  

allegation relating to non promotion of the respondent.  In fact,  

according to him, the respondent had been held guilty by the CBI in  

a case for using fabricating documents for the purpose of promotion.  

He also pointed out that though the High Court has permitted to take  

action against him according to law, the management did not take any  

action against him.  He also pointed out that in view of statutory  

provisions of the Income Tax Act, particularly, Sections 192, 200,  

206,  271C  and  276B-BB,  like  other  employees,  the  respondent  was  

liable  to  pay  income  tax  and  the  appellant  as  an  employer  

statutorily bound to deduct an amount from his salary as per the  

above  provisions.   Whatever  may  be,  inasmuch  as  appellants  have  

performed  their  statutory  obligation,  it  is  not  a  case  for  

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adjudication  by  the  Magistrate  on  criminal  side.   He  further  

contended  that  the  High  Court  also  failed  to  exercise  its  

jurisdiction under Section 482 for quashing the summoning order.  On  

the  other  hand,  Mr.  Yashank  Adhyaru  supported  the  order  of  the  

Magistrate  based  on  the  complaint  of  the  respondent  and  also  

submitted  that  the  High  Court  has  not  committed  any  wrong  in  

rejecting the petition under Section 482 of the Code.   

7)  At the relevant time, i.e on 06.12.2003, when the respondent  

made a complaint to the Magistrate, he was an employee of IISCO,  

Burnpur.  There is no dispute about the same.   

8)  Chapter XVII of the Income Tax Act deals with Collection and  

Recovery of Tax.  Section 192 speaks about deduction at source from  

Salary.

“192. (1) Any person responsible for paying any income  chargeable under the head “Salaries” shall, at the time of  payment, deduct income-tax [***] on the amount payable at  the average rate of income-tax [***] computed on the basis  of the [rates in force] for the financial year in which  the  payment  is  made,  on  the  estimated  income  of  the  assessee under this head for that financial year.”

Section 200 relates to duty of person deducting tax.

“200. (1) Any person deducting any sum in accordance with [the  foregoing  provisions  of  this  Chapter  shall  pay  within  the  prescribed time, the sum so deducted to the credit of the  Central Government or as the Board directs.

(2) Any person being an employer, referred to in sub-section  (1A) of section 192 shall pay, within the prescribed time, the  tax to the credit of the Central Government or as the Board  directs.

(3) Any person deducting any sum on or after the 1st day of  April, 2005 in accordance with the foregoing provisions of  

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Government in certain cases or pay the tax collected at source under  

Section 276 BB shall be punishable with imprisonment.   

10)   In  the  case  on  hand,  it  is  the  categorical  stand  of  the  

appellants-management that the amount of tax that has been deducted  

from the respondent’s salary as TDS under the head “Salaries” in  

terms of Section 192 is uniformly done in respect of each and every  

employee of the company.  It is also asserted that the amount of tax  

so deducted, deposited to the credit of the employees including the  

respondent in terms of Section 199.  They also produced a copy of  

Form No-16 being the certificate under Section 203 of the Income Tax  

Act, 1961 for the tax deducted at source from the income chargeable  

under the head “salaries” in respect of the respondent relating to  

period from April 1st, 2003 to March 31st, 2004.   

11)  In the light of the factual scenario, let us see the initial  

direction of the Judicial Magistrate, Asansol to the IO concerned,  

the report of the police officer as well as ultimate order dated  

31.01.2005  by  the  Additional  Chief  Judicial  Magistrate  issuing  

summons  upon  the  appellants/accused  persons  for  offence  under  

Section 406 read with 120B IPC in terms of Section 204 of the Code.  

When the complaint was forwarded to the SI Hirapur, Police Station,  

he conducted an inquiry, recorded statements of IISCO officials,  

perused the documents concerned and also noted that the tax was  

deducted as per their company norms.  After making such a note, the  

SI Hirapur has concluded that “the matter is civil in nature” and  

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forwarded the same to Additional CJM with a request to clarify the  

same.  On the basis of the said report, by order dated 31.01.2005,  

the Additional CJM, after recording the stand of the complainant  

about illegal deduction of Rs. 1640/- per month from his salary as  

income  tax  and  the  same  had  not  been  deposited  by  the  accused  

persons to the income tax authority month by month, has concluded  

“on perusal of the same, it appears to me that there is sufficient  

ground  for  proceeding  against  the  accused  persons  under  Section  

406/120 B IPC.”  First of all, it is not clear how the Additional  

CJM has concluded that “there is sufficient ground for proceeding  

against the accused under Section 406/120 B IPC”, more particularly,  

when  the inquiry  report by  the SI  Hirapur shows  that the  issue  

raised in the complaint is civil in nature.   

12)  We have already adverted to the relevant provisions from the  

Income Tax Act, particularly, duty of the employer in deducting tax  

at source and forwarding the same to the authority concerned i.e. to  

the credit of Central Government as well as failure to do so results  

in  prosecution.   From  the  materials  placed,  particularly,  the  

contents  of  the  complaint,  relevant  statutory  provisions  of  the  

Income Tax Act, report of the SI Hirapur, we are of the view that  

the complaint does not disclose any case to proceed against the  

accused  persons as  arrived by  the Additional  CJM.  Even if  the  

respondent  had  some  grievance  with  the  appellants  about  non-

promotion, direction of the High Court, pendency of contempt etc. it  

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is  not  a  case  for  criminal  prosecution.   If  he  is  very  much  

interested to vindicate his grievance, the respondent could have  

very well approached the officer concerned of the IISCO or to the IT  

authority concerned.  Though in the complaint, it is stated that the  

respondent  had  sent  a  notice  under  registered  post  with  

acknowledgment due on 17.11.2003, admittedly, no such proof had been  

placed before the Court.  In fact, the appellants stoutly denied the  

receipt of such a notice.   

13)  Inspite of all the details and materials since the Additional  

CJM issued summons, the appellants approached the High Court under  

Section 482 of the Code for quashing the same.  The High Court, by  

the impugned order, without adverting to any of the above mentioned  

relevant materials passed a cryptic order in one line “I am not  

inclined  to  quash  the  criminal  proceeding  pending  before  the  

Additional CJM, Asansol”.  No doubt, after dismissing the petition  

issued  certain  directions  for  protection  relating  to  personal  

appearance of the appellants before the Magistrate.   

14)   This  Court,  in  a  series  of  decisions,  has  emphasized  the  

inherent  power  of  the  High  Court  to  pass  appropriate  orders  to  

prevent the abuse of process of court or to secure the ends of  

justice.  Though, inherent jurisdiction under Section 482 has to be  

exercised  sparingly,  carefully  and  with  caution  when  adequate  

materials are available which clearly shows that the proceeding is  

either of civil nature, cannot be adjudicated by the criminal court  

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or if it is an abuse of process of court, the High Court is well  

within its power to exercise its inherent jurisdiction and quash the  

same.   

15)   Contours  of  the  power  under  Section  482  CrPC  have  been  

explained in a series of decisions by this Court. In  Nagawwa v.  

Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, it was held that  

the  Magistrate  while  issuing  process  against  the  accused  should  

satisfy himself as to whether the allegations in the complaint, if  

proved, would ultimately end in the conviction of the accused. It  

was held that the order of Magistrate issuing process against the  

accused could be quashed under the following circumstances:  

“(1) Where the allegations made in the complaint or the  statements of the witnesses recorded in support of the  same taken at their face value make out absolutely no case  against the accused or the complaint does not disclose the  essential  ingredients  of  an  offence  which  is  alleged  against the accused;

(2)  Where  the  allegations  made  in  the  complaint  are  patently  absurd  and  inherently  improbable  so  that  no  prudent person can ever reach a conclusion that there is  sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in  issuing process is capricious and arbitrary having been  based  either  on  no  evidence  or  on  materials  which  are  wholly irrelevant or inadmissible; and

(4)  Where  the  complaint  suffers  from  fundamental  legal  defects,  such  as,  want  of  sanction,  or  absence  of  a  complaint by legally competent authority and the like.”

16)  In State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335, a  

question came up for consideration as to whether quashing of the FIR  

filed  against  the  respondent  Bhajan  Lal  for  the  offences  under  

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Sections  161 and  165 IPC  and Section  5(2) of  the Prevention  of  

Corruption Act was proper and legal.  Reversing the order passed by  

the High Court, this Court explained the circumstances under which  

such power could be exercised.  Apart from reiterating the earlier  

norms laid down by this Court, it was further explained that such  

power  could  be  exercised  where  allegation  made  in  the  FIR  or  

complaint are so absurd and inherently improbable on the basis of  

which no prudent person can ever reach a just conclusion that there  

is sufficient ground for proceeding against the accused.  No doubt,  

at the stage of quashing an FIR or complaint the High Court is not  

justified  in  embarking  upon  an  inquiry  as  to  the  probability,  

reliability or genuineness of the allegation made therein.  

17)  In Sardar Trilok Singh and others vs. Satya Deo Tripathi (1979)  

4 SCC 396, when the financer seized the truck in question due to  

default  in  payment  of  instalment,  buyer  of  the  vehicle  launched  

criminal prosecution, this Court held it as an abuse of process of  

the court since the dispute was essentially of a civil nature and  

quashed the entire proceedings.  

18)  In  G. Sagar Suri and another vs. State of U.P. and others,  

(2000) 2 SCC 636, this Court has held:-

“8. Jurisdiction under Section 482 of the Code has to be  exercised with great care. In exercise of its jurisdiction  the High Court is not to examine the matter superficially. It  is to be seen if a matter, which is essentially of a civil  nature, has been given a cloak of criminal offence. Criminal  proceedings are not a short cut of other remedies available  in  law.  Before  issuing  process  a  criminal  court  has  to  exercise a great deal of caution. For the accused it is a  

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serious matter. This Court has laid certain principles on the  basis of which the High Court is to exercise its jurisdiction  under  Section  482  of  the  Code.  Jurisdiction  under  this  section has to be exercised to prevent abuse of the process  of any court or otherwise to secure the ends of justice.”

19)  In Alpic Finance Ltd. vs. P. Sadasivan and another (2001) 3 SCC  

513,  this  court  reiterated  that  the  complaint  must  disclose  

essential ingredients of the offence.  After adverting to  Nagawwa  

(supra), and  State of Haryana vs. Bhajan Lal (supra), and after  

finding that in the complaint there is no allegation that there was  

fraud or dishonest inducement on the part of the respondents and  

thereby the respondents parted with the property, it is trite law  

and common sense that an honest man entering into a contract is  

deemed to represent that he has the present intention of carrying it  

out but if, having accepted the pecuniary advantage involved in the  

transaction, he fails to pay his debt, he does not necessarily evade  

the debt by deception, upheld the order of the High Court quashed  

the proceedings and dismissed the appeal.   

20)   In  Indian  Oil Corporation vs.  NEPC  India Ltd.  and Others,  

(2006) 6 SCC 736, the following paragraphs are relevant:-

“13. While on this issue, it is necessary to take notice of a  growing tendency in business circles to convert purely civil  disputes into criminal cases. This is obviously on account of  a  prevalent  impression  that  civil  law  remedies  are  time  consuming  and  do  not  adequately  protect  the  interests  of  lenders/creditors. Such a tendency is seen in several family  disputes  also,  leading  to  irretrievable  breakdown  of  marriages/families. There is also an impression that if a  person could somehow be entangled in a criminal prosecution,  there is a likelihood of imminent settlement. Any effort to  

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settle civil disputes and claims, which do not involve any  criminal  offence,  by  applying  pressure  through  criminal  prosecution should be deprecated and discouraged.  

“It is to be seen if a matter, which is essentially of a  civil nature, has been given a cloak of criminal offence.  Criminal proceedings are not a short cut of other remedies  available in law. Before issuing process a criminal court has  to exercise a great deal of caution. For the accused it is a  serious matter. This Court has laid certain principles on the  basis of which the High Court is to exercise its jurisdiction  under  Section  482  of  the  Code.  Jurisdiction  under  this  section has to be exercised to prevent abuse of the process  of any court or otherwise to secure the ends of justice.”

14. While no one with a legitimate cause or grievance should  be prevented from seeking remedies available in criminal law,  a complainant who initiates or persists with a prosecution,  being  fully  aware  that  the  criminal  proceedings  are  unwarranted and his remedy lies only in civil law, should  himself be made accountable, at the end of such misconceived  criminal proceedings, in accordance with law. One positive  step that can be taken by the courts, to curb unnecessary  prosecutions  and  harassment  of  innocent  parties,  is  to  exercise their power under Section 250 CrPC more frequently,  where  they  discern  malice  or  frivolousness  or  ulterior  motives on the part of the complainant.”

21)   In  the  light  of  the  above  mentioned  well  established  

principles, we are of the view that the High Court has committed an  

error,  firstly, in not assigning any reason and passing a cryptic  

order  and  secondly,  failed  to  exercise  its  jurisdiction  under  

Section 482 when the complaint does not disclose any offence of  

criminal nature.  For the sake of repetition, we reiterate, though  

the respondent had some grievance about his non promotion, certain  

orders passed by the High Court including filing of contempt etc.,  

in  view of  the statutory  provisions of  the Income  Tax Act,  the  

assertion of the appellants that deductions were being made for all  

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the persons who are liable to pay tax in terms of the Income Tax  

Act,  the  proper  remedy  for  the  respondent  is  to  approach  the  

authority/officer concerned and not by filing complaint as mentioned  

above.  We have already adverted to the report of SI Hirapur holding  

that the matter in issue is civil in nature.   

22)  Considering all these materials and in the light of the various  

principles  enunciated,  we  hold  that  the  High  Court  committed  an  

error in not exercising its jurisdiction and dismissing the petition  

filed  under  Section  482.   Consequently,  we  quash  the  criminal  

proceedings pending before the trial Court being Case No. C/438 of  

2003  initiated  against  the  appellants.   The  criminal  appeal  is  

allowed.   

...…………………………………J.                      (P. SATHASIVAM)                    

...…………………………………J.                  (DR. B.S.CHAUHAN)  

NEW DELHI; AUGUST 19, 2010.           

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ITEM NO. 1-A  ( For Judgment )

           COURT No.9           SECTION II

              S U P R E M E   C O U R T   O F   I N D I A                            RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO.779 OF 2007

RAJESWAR TIWARI & ORS. .. Appellant(s)

   Versus

NANDA KISHORE ROY .. Respondent(s)

DATE : 19/08/2010     This APPEAL was called  on for pronouncement of judgment today.  

  For Appellant(s) Mr. Sunil Kumar Jain, Adv.

For Respondent(s) Ms. Sarla Chandra, Adv.

Mr.Rajesh Srivastava, Adv.

              ---

Hon'ble Mr. Justice P. Sathasivam pronounced the  judgment of the Bench comprising Self and Hon'ble Dr.  Justice B.S. Chauhan.  

The appeal is allowed.

   [ Usha Bhardwaj ]        Court Master  

          [ Savita Sainani ]       Court Master  

  [ Signed reportable judgment is placed on the file ]  

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