Anil Gupta And Another vs Union Territory Of J&K And Another on 3 April, 2025

Jammu & Kashmir High Court

Anil Gupta And Another vs Union Territory Of J&K And Another on 3 April, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
CRM(M) No. 646/2023
c/w
CRM(M) No. 710/2023
                                                      Reserved on 17.03.2025
                                                     Pronounced on 03.04.2025




Anil Gupta and another                          .....Appellant(s)/Petitioner(s)

Q
                        Through: Mr. Himanshu Beotra, Adv.
                vs
Union Territory of J&K and another                        ..... Respondent(s)
                        Through: Mr. P. D. Singh, Dy.AG for No. 1
                                 Mr. Bhavesh Bhushan, Adv. for No. 2


Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 JUDGMENT

1. The petitioners through the medium of petition bearing CRM(M) No.

646/2023 have challenged order dated 15.07.2023 passed by the Principal

Sessions Judge, Jammu(hereinafter to be referred as the revisional court),

whereby, a revision petition filed against order dated 02.03.2023 passed

by the learned Special Excise Magistrate, Jammu(hereinafter to be

referred as the Trial Magistrate), has been allowed and the SHO Police

Station, Channi Himmat, Jammu has been directed to register an FIR on

the basis of the complaint filed by respondent No. 2 against the

petitioners.

2. It appears that a complaint alleging commission of offences under sections

120-B, 193, 195/408, 196, 209, 211, 323, 327, 330, 342, 347, 348, 352,

357, 384, 385, 386, 387, 392, 394, 403, 420, 465, 467, 468, 471, 474, 500,
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CRM(M) Nos. 646/2023 & 710/2023

504 and 506 read with section 34 IPC was filed by respondent No. 2

before the learned Special Excise Magistrate, Jammu.

3. Briefly stated, the allegations made in the said complaint are that on

19.05.2022 at about 11 AM when respondent No. 2/complainant had gone

to his office, the petitioners yelled at him calling him a thief and they

alleged that the complainant had misappropriated funds of the firm. It was

alleged that the complainant was over powered by the petitioners as well

as other employees of the firm and he was dragged into a room where he

was wrongfully confined and brutally beaten by them. It was conveyed to

the complainant that he along with two more employees, namely, Ankush

Sharma and Surinder Kumar had misappropriated the funds of the firm

from June 2020 onwards and that the other two employees had already

admitted their guilt and refunded the money. It was pleaded by the

complainant that he had not done anything wrong but the petitioners did

not listen to him. He was coerced into signing certain documents by

putting his life and limb under serious threat. He was also told to get an

amount of Rs. 3.50 lacs or else he would not be let off.

4. It was further alleged that father in law of the complainant came on spot to

get him released from illegal confinement and his family members also

got worried about his safety, whereafter his elder sister went to Police

Station, Channi Himmat to make a complaint in respect of the incident. It

was alleged in the complaint that the Incharge of the said Police Station

informed petitioner No. 1 about the complaint lodged by the sister of the

complainant but because of the influence of the petitioners, the Police did

not act.

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CRM(M) Nos. 646/2023 & 710/2023

5. At about 3-4 PM on the same day, the father in law of the complainant,

Rajinder Singh and his brother in law Rakesh Singh came to the premises

where the complainant had been kept in illegal confinement. His wife

Laxhmi Devi and his sons, two sisters and brother in law also came over

there, but they were not allowed to enter the building. It was further

alleged that thereafter the petitioners illegally confined father in law of the

complainant and asked the complainant to go with his brother in law along

with two employees of the petitioners to the house of father in law of the

complainant at Kala Gate and bring back two vehicles which were lying

over there. The registration of one of the vehicles is stated to be JK14H

5666 whereas the registration of other vehicle is stated to be JK14H 8304.

The first one is stated to be registered in the name of his brother in law,

Rakesh Singh, whereas the second one is stated to be registered in the

name of Laxhmi Devi, the wife of the complainant. Both these vehicles

were brought along with documents to the office of the petitioners at about

5.30 PM and these vehicles were retained by the petitioners in an illegal

manner for ensuring the arrangement of money by the complainant.

6. It was further alleged in the complainant that at about 6 PM on the same

day, the petitioners allowed father in law of the complainant to go with his

other family members but the complainant was taken into custody and was

made to sign two blank cheques bearing Nos. 927071 and 927072 of J&K

Bank Branch Gujjar Charitable Trust Jammu, whereafter the possession of

these cheques were taken by the petitioners. According to the

complainant, dates on those cheques were filled as 18.06.2022 and

05.08.2022 and the amount of Rs. 6 lacs and Rs. 8 lacs was also filled in
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CRM(M) Nos. 646/2023 & 710/2023

these cheques, which were drawn in favour of M/s ANN Agencies. The

said cheques are stated to have been presented for encashment and the

same were returned unpaid. Legal notices were issued by the petitioners

through their counsel, whereafter criminal proceedings were initiated

against the complainant.

7. After the aforesaid events, wife and brother in law of the complainant

addressed a written application to the Senior Superintendent of Police,

Jammu(SSP) seeking registration of the FIR. The said application was sent

through registered post on 01.10.2022. It was further submitted in the

complaint that no legal action was taken by the Police despite receipt

aforesaid application and when the complainant approached the Police for

getting the status relating to the registration of the FIR, the Police did not

give any satisfactory response.

8. With the aforesaid allegations, the complaint came to be filed before the

learned Trial Magistrate on 17.01.2023. On the said date, the learned Trial

Magistrate sought a report from the Senior Superintendent of Police

Jammu. After getting the report from the Police, the learned Trial

Magistrate vide order dated 02.03.2023 dismissed the application of the

respondent/complainant primarily on the grounds that the

respondent/complainant has not complied with the requirement of

approaching the incharge of the Police Station concerned and the SSP

before filing the complaint before the court. According to the learned Trial

Magistrate, the complainant had not adhered to the provisions of law as

contained in section 154(1) and 154(3) of the Code of Criminal

Procedure(Cr.P.C.). It was further observed by the learned Trial
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CRM(M) Nos. 646/2023 & 710/2023

Magistrate that there was delay of seven months in filing the complaint

which has remained unexplained. The learned Trial Magistrate also went

into merits of the allegations and observed that prima facie it appears to be

a conscious attempt on the part of the complainant to create his defence in

the complaints lodged by the petitioners against him under section 138

Negotiable Instruments Act.

9. The aforesaid order came to be challenged by a way of revision petition by

the respondent/complainant before the learned revisonal court, who vide

impugned order dated 15.07.2023 allowed the revision petition and

directed the Police to register an FIR against the petitioners. While doing

so, the learned revisional court held that the complainant had specifically

stated in his complaint that his elder sister had approached the SHO

concerned and he had also placed on record the complaint addressed by

his wife and brother in law to SSP Jammu. Thus, requirements of sections

154(1) and 154(3) of the CrPC stand adhered to in the present case. It was

observed by the learned revisional court that in view of the law laid down

by the Supreme Court in Lalita Kumari v Government of Utter

Pradesh and others, 2014(2) SCC 1 and Upkar Singh vs. Ved Prakash

and others, (2004) 13 SCC 292, it was bounden duty of the learned

Magistrate to direct registration FIR in the case. It was also observed that

the learned Trial Magistrate has exceeded its jurisdiction by going into the

merits of the allegations made in the complaint filed by the respondent

No. 2 as the scope of preliminary verification is only to ascertain as to

whether cognizable offences are made out or not.

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CRM(M) Nos. 646/2023 & 710/2023

10. The petitioners have challenged the impugned order passed by the

revisional court on the grounds that it was not open to the learned

revisional court to re-appreciate the material on record as the same is

beyond the scope of revisional power. It has been further contended that

the learned Trial Magistrate has failed to appreciate the fact that the

respondent/complainant had not adhered to the provisions contained in

sections 154(1) and 154(3) of the Cr.P.C. It has also been contended that

there was no material before the learned revisional court to conclude that

the respondent had complied with the requirements of section 154(1) of

the Cr.P.C. and that the story put up by the wife of the complainant and

brother in law in their application to the SSP is entirely different from the

story projected in the complaint. It has also been contended that there was

a huge delay of seven months in filing the application and that there was

no explanation for the said delay.

11. It appears that after passing of the impugned order by the revisional court,

the Police registered FIR No. 118/2023 for offences under sections 120-B,

193, 195, 408, 196, 209, 211, 323, 327, 330, 342, 347, 348, 352, 357, 384,

385, 386, 387, 392, 394, 403, 420, 465, 467, 468, 471, 474, 500, 504 and

506 read with section 34 IPC with Police Station Channi Himmat Jammu.

The petitioners have challenged the said FIR by way of CRM(M) No.

710/2023.

12. I have heard learned counsel for the parties and perused record of the case.

13. The main ground that has been urged by the learned counsel for the

petitioners for impugning the order of the revisional court is that the

respondent/complainant had not complied with the provisions contained in
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CRM(M) Nos. 646/2023 & 710/2023

sections 154(1) and 154(3) of the Code before filing the complainant

before the learned Trial Magistrate.

14. Section 154(1) of the Code mandates an officer incharge of the Police

Station to reduce into writing every information relating to commission of

a cognizable offence. Sub section (2) of the Section 154 of the Code

provides that a copy of such information shall be furnished to the

informant free of cost. Sub section (3) provides that a person aggrieved by

refusal on the part of the officer incharge of a Police Station to record

information as referred to in sub section (1), has the option of sending the

substance of such information in writing and by post to Senior

Superintendent of Police concerned and if the SSP is satisfied that the

information discloses commission of a cognizable offence, he has to either

investigate the case himself or direct investigation to be made by a

subordinate police officer. Sections 156(3) Cr.P.C. vests power with the

Magistrate having jurisdiction under section 190 Cr.P.C. to direct

investigation into a cognizable case and such direction has to be made to

the officer incharge of the Police Station concerned.

15. The Supreme Court in the case of Lalita Kumari (supra) has while

interpreting the provisions contained in sections 154 and 156 Cr.P.C. held

that the registration of FIR is mandatory under section 154 of the Code if

the information discloses commission of cognizable offences and no

preliminary enquiry is permissible in such a situation. It has further been

held in case the Police Officer, who avoids duty of registering offence if

cognizable offence is disclosed, is liable to be subjected to action. The

Supreme Court further held that the scope of preliminary enquiry is not to
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CRM(M) Nos. 646/2023 & 710/2023

verify the veracity or otherwise of the information received but only to

ascertain whether the information reveals any cognizable offence. The

Court also illustrated the types of cases in which preliminary enquiry is to

be conducted. One of such types of cases is the cases where there is

abnormal delay/laches in initiating criminal prosecution e.g. over three

months’ delay in reporting the matter without satisfactorily explaining the

reasons for delay.

16. The ratio laid down by the SC in the aforesaid case was explained by the

Supreme Court in the case of Priyanka Shrivastava vs. U. P and others

2015(6) SCC 287. The Supreme Court while noticing the ratio laid down

by the Constitution Bench in Lalita Kumari‘s case(supra) observed as

under:

24. Regard being had to the aforesaid enunciation of law, it
needs to be reiterated that the learned Magistrate has to remain
vigilant with regard to the allegations made and the nature of
allegations and not to issue directions without proper application
of mind. He has also to bear in mind that sending the matter
would be conducive to justice and then he may pass the requisite
order. The present is a case where the accused persons are
serving in high positions in the bank. We are absolutely
conscious that the position does not matter, for nobody is above
law. But, the learned Magistrate should take note of the
allegations in entirety, the date of incident and whether any
cognizable case is remotely made out. It is also to be noted that
when a borrower of the financial institution covered under the
SARFAESI Act, invokes the jurisdiction under Section 156(3)
Cr.P.C. and also there is a separate procedure under the
Recovery of Debts due to Banks and Financial Institutions Act,
1993, an attitude of more care, caution and circumspection has
to be adhered to.

25. Issuing a direction stating “as per the application” to lodge
an FIR creates a very unhealthy situation in the society and also
reflects the erroneous approach of the learned Magistrate. It also
encourages the unscrupulous and unprincipled litigants, like the
respondent no.3, namely, Prakash Kumar Bajaj, to take
adventurous steps with courts to bring the financial institutions
on their knees. As the factual exposition would reveal, he had
prosecuted the earlier authorities and after the matter is dealt
with by the High Court in a writ petition recording a settlement,
he does not withdraw the criminal case and waits for some kind
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CRM(M) Nos. 646/2023 & 710/2023

of situation where he can take vengeance as if he is the emperor
of all he surveys. It is interesting to note that during the tenure
of the appellant No.1, who is presently occupying the position of
Vice-President, neither the loan was taken, nor the default was
made, nor any action under the SARFAESI Act was taken.

However, the action under the SARFAESI Act was taken on the
second time at the instance of the present appellant No.1. We are
only stating about the devilish design of the respondent No.3 to
harass the appellants with the sole intent to avoid the payment of
loan. When a citizen avails a loan from a financial institution, it
is his obligation to pay back and not play truant or for that
matter play possum. As we have noticed, he has been able to do
such adventurous acts as he has the embedded conviction that he
will not be taken to task because an application under Section
156(3) Cr.P.C. is a simple application to the court for issue of a
direction to the investigating agency. We have been apprised
that a carbon copy of a document is filed to show the
compliance of Section 154(3), indicating it has been sent to the
Superintendent of police concerned.

26. At this stage it is seemly to state that power under Section
156(3) warrants application of judicial mind. A court of law is
involved. It is not the police taking steps at the stage of Section
154 of the code. A litigant at his own whim cannot invoke the
authority of the Magistrate. A principled and really grieved
citizen with clean hands must have free access to invoke the said
power. It protects the citizens but when pervert litigations takes
this route to harass their fellows citizens, efforts are to be made
to scuttle and curb the same.

27. In our considered opinion, a stage has come in this country
where Section 156(3) Cr.P.C. applications are to be supported
by an affidavit duly sworn by the applicant who seeks the
invocation of the jurisdiction of the Magistrate. That apart, in an
appropriate case, the learned Magistrate would be well advised
to verify the truth and also can verify the veracity of the
allegations. This affidavit can make the applicant more
responsible. We are compelled to say so as such kind of
applications are being filed in a routine manner without taking
any responsibility whatsoever only to harass certain persons.
That apart, it becomes more disturbing and alarming when one
tries to pick up people who are passing orders under a statutory
provision which can be challenged under the framework of said
Act or under Article 226 of the Constitution of India. But it
cannot be done to take undue advantage in a criminal court as if
somebody is determined to settle the scores. We have already
indicated that there has to be prior applications under Section
154(1) and 154(3) while filing a petition under Section 156(3).
Both the aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed. The
warrant for giving a direction that an the application under
Section 156(3) be supported by an affidavit so that the person
making the application should be conscious and also endeavour
to see that no false affidavit is made. It is because once an
affidavit is found to be false, he will be liable for prosecution in
accordance with law. This will deter him to casually invoke the
authority of the Magistrate under Section 156(3). That apart, we
have already stated that the veracity of the same can also be
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CRM(M) Nos. 646/2023 & 710/2023

verified by the learned Magistrate, regard being had to the
nature of allegations of the case. We are compelled to say so as
a number of cases pertaining to fiscal sphere, matrimonial
dispute/family disputes, commercial offences, medical
negligence cases, corruption cases and the cases where there is
abnormal delay/laches in initiating criminal prosecution, as are
illustrated in Lalita Kumari are being filed. That apart, the
learned Magistrate would also be aware of the delay in lodging
of the FIR.

17. From the aforesaid observations of the Supreme Court in Priyanka

Shrivastava‘s case (supra), it is clear that in appropriate cases, a

Magistrate would be well advised to verify the truth and he/she can also

verify the veracity of the allegations. It is also clear that there has to be

prior application under section 154(1) and 154(3) CrPC while filing an

application under section 156(3) Cr.P.C. and a complainant has to clearly

spell out both these aspects in his application and necessary documents to

that effect have to be filed. The Court further held that the veracity of the

deposition made by the complainant can also be verified by the Magistrate

regard being had to the nature of the allegations of the case and that the

learned Magistrate should also be aware of the delay in lodging of the

FIR.

18. Adverting to the facts of the present case, the complainant in his complaint

before the learned trial Magistrate has pleaded that his elder sister had

approached SHO Police Station, Channi Himmat with a verbal complaint

regarding the incident but instead of registering her complaint and coming

to the rescue of the complainant, the incharge of Police Station made a

personal phone call to petitioner No. 1. The complaint filed by the

respondent/complainant before the learned trial Magistrate is supported by

his own affidavit. As per the case of the complainant, it was his elder
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CRM(M) Nos. 646/2023 & 710/2023

sister who approached the Incharge Police Station, Channi Himmat with a

report relating to the incident but affidavit of elder sister of the

complainant has not been annexed with the complaint to certify this fact.

Apart from this, as per the ratio laid down by the Apex Court in Priyanka

Shrivastava‘s case(supra), the complainant has not only to indicate that

he has made a prior application under section 154(1) and 154(3) Cr.P.C.

but he has also to annex necessary documents to that effect. In the instant

case, even if, it is assumed that an oral complaint was made by the sister

of the complainant with the Incharge Police Station neither any affidavit

of the said person nor any document to show that she had lodged any

complaint with Police Station, Channi Himmat, has been placed on record

by the complainant. Thus, clearly the complainant has not adhered to the

provisions contained in section 154(1) Cr.PC in the present case.

19. That takes us to the question whether requirement under section 154(3)

Cr.P.C. has been complied with. The wife and brother in law of the

complainant, namely, Laxhmi Devi and Rakesh Singh are stated to have

addressed a communication to SSP Jammu on 01.10.2022. A perusal of

the contents of the said communication would reveal that both the

applicants have essentially made a prayer before the SSP concerned

seeking action against the petitioners for illegally retaining the vehicles

belonging to them, though the applicants have also made a reference in the

said application to the incident of obtaining cheques from the complainant

under coercion. However, there are no averments in the said application

with regard to the material incidents which have been highlighted by the

complainant in his complaint presented before the learned trial Magistrate.
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CRM(M) Nos. 646/2023 & 710/2023

There is no mention of allegations regarding illegal confinement of the

complainant or illegal confinement of his father in law nor there is any

mention of beating up and dragging of the complainant by the petitioners.

So strictly speaking it cannot be stated that the complainant has brought

all the material facts to the notice of the SSP Jammu through his wife and

brother in law vide his application dated 01.10.2022. Thus, even the

provisions of requirements of section 154(3) have not been strictly

complied with by the complainant before approaching the learned Trial

Magistrate.

20. The learned revisional court while dealing with the aforesaid aspect of the

matter has, without any basis, observed that the complainant/respondent

No. 2 could not file complaint before the SSP because at that time, he was

in illegal confinement and subsequently under the influence of

petitioner No. 2, he was arrested and after being bailed out, the complaint

was filed.

21. If we have a look at the complaint filed by the respondent No.

2/complainant before the learned Trial Magistrate, everything has taken

place on 19.05.2022. Firstly at 11 AM on the said day, he was illegally

confined and made to sign certain papers and thereafter at 3-4 PM on the

same day, his other relatives including father in law and brother in law and

wife were brought to the office premises of the petitioners and the two

vehicles were brought over there at about 5.30 PM. On the same day, at

about 6 PM, father in law of the complainant was allowed to go along with

other family members but the complainant was made to sign blank

cheques. After 19.05.2022, up till the time he was arrested in FIR No.
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CRM(M) Nos. 646/2023 & 710/2023

115/2022 which was registered on 24.07.2022 at the instance of the

petitioner-Anil Gupta, he had ample time at his disposal to move the

machinery of the police as well as the Magistrate. Therefore, the

observations of the learned revisional court that the petitioner could not

file complaint before the Police because he was in the illegal confinement

and thereafter arrested in FIR filed by the petitioner-Anil Gupta, is a

figment of imagination without any basis.

22. From the above sequence of events, it is clear that the

respondent/complainant has, after sleeping over the matter for about seven

months and without approaching the Police Authorities, filed the

complaint before the learned Trial Magistrate that too without adhering to

the provisions contained in section 154(1) and 154(3) of the CrPC, which

have been held to be mandatory. Any direction for registration of FIR in

contravention of these requirements cannot be sustained in law.

23. The Supreme Court in the case of Babu Venkatesh and others vs State

of Karnataka and anr reported in 2022 LiveLaw(SC) 181 has held that

prior to the filing of a petition under section 156 CrPC there have to be a

applications under section 154(1) and 154(3) of the Cr.P.C. and while

directing registration of FIR, the Magistrate has to consider these aspects

of the matter. Recently the Supreme Court has, in the case of Ranjit

Singh Bath and another v U. T of Chandigarh and another, Cr.

Appeal No. 4313 of 2024 decided on 06.03.2025, held that without

adhering to the requirements of section 154(1) and 154(3) of the Cr.P.C, a

Magistrate cannot direct registration of FIR under section 156(3) Cr.P.C
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CRM(M) Nos. 646/2023 & 710/2023

as the same would be contrary to the binding decision in Priyanka

Shrivastava‘s case(supra).

24. Learned counsel for the petitioner has contended that the complainant had

brought to the notice of the learned Trial Magistrate another version of the

occurrence that had taken place on 19.05.2022 and merely because FIR

has been registered against the complainant on the basis of complaint

lodged by the petitioner-Anil Gupta in respect of the version of occurrence

given by the said petitioner, it is not permissible in law to deny

registration of FIR on the basis of the complaint made by the petitioner,

which is counter version of the same occurrence. In this regard the learned

counsel for the petitioners has relied upon the judgment of the Supreme

Court in Upkar Singh vs Ved Prakash and others, (2004) 13 SCC 292

and the judgments of this Court in the case of Govind Singh vs U. T. of

J&K, Manu/JK/07502/2021and Abdul Rashid vs. UT of J&K and

others, CRM(M) No. 238/2021, decided on 10.02.2023.

25. There is no quarrel with the proposition of law that two FIRs with regard

to the same occurrence can be registered when there are two different

versions with regard to the same occurrence but in the instant case, the

situation is different. The FIR which has been registered by petitioner-Anil

Gupta against the respondent/complainant is relating to misappropriation

of funds by the respondent and the co-accused over a period of time

ranging from May 2022 to June 2022 whereas the allegations made in the

complaint lodged by the respondent/complainant relate to 19.05.2022 and

these pertain to alleged illegal confinement of the complainant and

exertion of coercion upon him to part with money, cheques and vehicles.
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CRM(M) Nos. 646/2023 & 710/2023

This is entirely a different occurrence which is not a cross version of the

occurrence which is subject matter of FIR No. 115/2022 lodged by the

petitioners against the respondent/complainant on 24.07.2022. The said

FIR has, admittedly resulted in a charge sheet against the

respondent/complainant. The judgments relied upon by the learned

counsel for the respondent/complainant in this regard are of no benefit to

the case of the respondent/complainant.

26. As already stated pursuant to the direction passed by the learned revisional

court, FIR No. 118/2023 has been registered by the Police Station, Channi

Himmat against the petitioners. The said FIR has been challenged by the

petitioners by virtue of separate petition filed under section 482 Cr.P.C.

bearing CRM(M) No. 710/2023.

27. Since it has already been held by this Court that direction of the learned

revisional court for registration of the said FIR without adherence to the

provisions contained in section 154(1) and 154(3) Cr.P.C. is not in

accordance with law therefore, the impugned FIR No. 118/2023 of Police

Station Channi Himmat dated 07.08.2023 cannot be sustained in law, the

same being consequence of an order, which is not in accordance with law.

28. Even on merits, the criminal proceedings emanating from the impugned

FIR against the petitioners are not sustainable in law for the reasons that

the facts narrated hereinbefore clearly indicate that the said FIR has been

lodged by the respondent No. 2 with a view to wreck vengeance upon the

petitioners and to spite them. It is an admitted case of the parties that the

complainant/respondent No. 2 was an employee of the petitioners who had

leveled allegations of misappropriation of funds against him. They had
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CRM(M) Nos. 646/2023 & 710/2023

even registered FIR No. 115/2022 dated 24.07.2022 against respondent

No. 2 which has culminated into a charge sheet against him. The

petitioners have also filed criminal complaints under section 138

Negotiable Instruments Act in respect of the cheques issued by respondent

No. 2 on 18.06.2022 and 05.08.2022 for amount of Rs. 6.00 lacs and 8.00

lacs respectively. These complaints have been filed by the petitioners

against the respondent/complainant in December, 2022 after dishonor of

the cheques for insufficiency of funds. It is only thereafter that the

respondent/complainant approached the learned Trial Magistrate by way

of an application under section 156(3) Cr.P.C. which came to be filed

before the learned Trial Magistrate on 17.01.2023 immediately after the

respondent No. 2 got knowledge about the filing of the criminal

complaints under section 138 Negotiable Instruments Act against him.

The learned Trial Magistrate is right in his observation that the

proceedings launched by the respondent No. 2 against the petitioners

appear to be a devise to create a defence for himself in the criminal

complaints filed by the petitioners against him. Although the question

whether such an observation could have been made by the learned Trial

Magistrate while considering an application under section 156(3) Cr.P.C.

is debatable one but this Court while dealing with the present petition

under section 482 Cr.P.C. would be well within its jurisdiction to take into

account this aspect of the matter.

29. From the manner in which the respondent/complainant has proceeded to

launch prosecution against the petitioners, it clearly reflects that it is a

brazen attempt on his part to persecute the petitioners, as a counter blast to
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CRM(M) Nos. 646/2023 & 710/2023

the criminal challan as well as criminal complaints filed against him at the

instance of the petitioners. The allegations made in the impugned FIR are

absurd and inherently improbable. The criminal prosecution initiated by

the respondent/complainant against the petitioners is manifestly actuated

with mala fides with an ulterior motive for wrecking vengeance against

the petitioners.

30. The Supreme Court in Mr. Robert John D’Souza and others v V.

Gomes and another, (2015) 9 SCC 96 has observed that the Court must

ensure that the criminal prosecution is not used as an instrument of

harassment for seeking private vendetta or with an ulterior motive to

pressurize the accused. Similarly, in M/s Medchi Chemicals and

Pharma Pvt. Ltd. vs Biological E. Ltd and others reported in (2000) 3

SCC 269, the Supreme Court has observed that frustrated litigants ought

not to be allowed to indulge so as to give vent to their vindictiveness

through a legal process and such an investigation ought not to be allowed

to be continued since the same is opposed to concept of justice which is

paramount. Again in Mohan Goswami and anr. vs State of

Uttrakhanchal and others, (2007) 12 SCC 1, the Supreme Court has

laid down that the Court proceedings are not to be permitted to degenerate

into a weapon of harassment or persecution.

31. In view of the aforesaid analysis of law on the subject and applying the

same to the facts emanating in the present case from the material on

record, it appears to be a fit case where this Court should exercise its

power under section 482 Cr.P.C. (now 528 Bharatiya Nagrik Suraksha

Sanhita) to quash the impugned FIR and it also appears that the learned
18

CRM(M) Nos. 646/2023 & 710/2023

revisional court has exceeded its jurisdiction in setting aside a well

reasoned order passed by the learned Trial Magistrate.

32. For the foregoing reasons, both the petitions( CRM(M) Nos. 646/2023 and

710/2023) are allowed. The impugned order passed by the revisional court

on 15.07.2023 is set aside. Further FIR bearing No. 0118 dated 07.08.2023

registered with Police Station Channi Himmat Jammu and the proceedings

emanating therefrom are also quashed.

(SANJAY DHAR)
JUDGE

Jammu
03.04.2025
Rakesh PS
Whether the order is speaking: Yes
Whether the order is reportable: Yes

Rakesh Kumar
2025.04.04 09:33
I attest to the accuracy and
integrity of this document