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Mushtaq Ahmad Vs. Mohd. Habibur Rehman Faizi & Ors [1996] INSC 165 (31 January 1996)

Bharucha S.P. (J) Bharucha S.P. (J) Mukherjee M.K. (J)

CITATION: 1996 SCC (7) 440 JT 1996 (1) 656 1996 SCALE (1)606

ACT:

HEAD NOTE:

O R D E R

Leave granted.

Heard the counsel appearing for the parties.

The appellant herein filed a complaint before the Chief Judicial Magistrate, Mau alleging commission of offences under sections 406, 409, 420 and 467 IPC by the respondent Nos. 1 to 4 ('respondents' for short). The learned Magistrate took cognizance upon the complaint and then recorded the statement of the appellant under Section 200 Cr.P.C. On being satisfied from the complaint, the documents filed therewith and the statement of the appellant that the above offences were made out against the respondents he issued process against them. Aggrieved thereby the respondents filed a petition under Section 482 Cr. P.C. for quashing the complaint and the proceeding arising therefrom which was allowed by the High Court with a finding that the complaint was false, frivolous and vexatious and a direction upon the appellant to pay Rs.5,000/- to the respondents as costs. Hence this appeal.

Having perused the impugned judgment in the light of the complaint and its accompaniments we are constrained to say, that the High Court exceeded its jurisdiction under Section 482 Cr.P.C. in passing the impugned judgment and order. It is rather unfortunate that though the High Court (1992 Supp. (1) SCC 335) wherein this Court has enumerated by way of illustration the categories of cases in which power to quash complaint or FIR can be exercised, it did not keep in mind - much less adhered to - the following note of caution given therein :- "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." In the complaint the appellant averred that he was a teacher of Madrasa Faiz-e-Am since the year 1974 and at the material time the respondents were the Manager, Principal, Teacher and Member of the Managing Committee of the school respectively. In the year 1985 he went on leave to get higher education in Saudi Arabia and after coming back from there in 1988 when he went to join the School he found that his salaries and dearness allowances for the above period had been drawn by them from the Government funds and, by forgoing his signatures, purported payments thereof to him were shown. According to the complaint, the respondents had thereby committed breach of trust of Government money. In support of the above allegations made in the complaint copies of the salary statements of the relevant periods were produced. Inspite of the fact that the complaint and the documents annexed thereto clearly made out a, prima facie, case for cheating, breach of trust and forgery, the High Court proceeded to consider the version of the respondents given out in their petition filed under Section 482 Cr.P.C. vis-a-vis that of the appellant and entered into the debatable area of deciding which of the version was true, - a course wholly impermissible in view of the above quoted observations in the case of Bhajan Lal (supra).

For the foregoing reason, we allow this appeal, set aside the impugned order of the High Court and direct the Magistrate to proceed with the complaint in accordance with law.

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