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A.G. Northern Tour & Travels v/s State of J&K, Through Sho Tourist Police Station

    Criminal Miscellaneous Case No. 49 of 2018

    Decided On, 29 November 2018

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE RASHID ALI DAR

    For the Appearing Parties: Syed Faisal Qadiri, Asif A Bhat, Advocates.



Judgment Text

1. By the medium of this petition filed under Section 561-A Cr. PC, the petitioner has sought the indulgence of this Court in quashing the FIR bearing No. 05 of 2017, dated 04.07.2017, registered against him at Tourist Police Station, TRC Srinagar, for the commission of an offence punishable under Section 120-B, 420 RPC. He also seeks to direct the respondent not to harass/cause interference in the business activities of the petitioner.

2. The pith and core of the petition of the petitioner is that the petitioner is a Registered Travel Agent with the Tourism Department of the State of Jammu and Kashmir and has been consequently granted Registration in terms of the provisions of Jammu and Kashmir Registration of Tourist Trade Act, 1978. The petitioner provides various services to the passengers/tourists coming within the territory of the State of Jammu and Kashmir for various purposes including business, Tourism, Domestic, Pilgrimage. Apart of the business activities, the petitioner came to be appointed as the Ticket Booking Agent for UT Air India Private Limited, Amarnathji Yatra for a period 29th June to August, 2017. In this behalf an agreement dated 25.04.2017, was made between the petitioner and the above stated Helicopter's Service. In this agreement, it is clearly shown at S. No. 13 that the Helicopter Tickets can't be sold as a package with other facilities and the actual cost of Helicopter Tickets shall be specifically stated in the package. It is further submitted that as part of the business activities during the period of currency of the above stated agreement, the petitioner in the form of collaboration with other Travel Agents also sells the said packages directly to the agents, who in turn would sell it further to the travelers. It appears that some of the passengers including the complainant had purchased a Tour Package which included the Helicopter Tickets alongwith the other facilities from one namely M/s Vacation Planners India Tour & Travels. The said passengers after availing the services provided by the said Travel Agent and after offering pilgrimage at Shri Amarnathji Shrine have filed a complaint against various persons including the petitioner with the respondent, who thereupon has registered aforesaid FIR.

3. Aggrieved by the registration of the FIR, numbered above the petitioner has challenged its vires on the grounds, inter alia, that the complainant at no point of time had ever contacted or availed the services of the petitioner for the purposes of purchasing any tickets or any package with the intent of undertaking the pilgrimage of Shri Amarnathji Yatra in Kashmir. The contents of FIR would indicate that the cheating as alleged have no direct nexus with the petitioner and, therefore, the name of the petitioner has been unnecessarily dragged in the impugned FIR, as a result of which, the rights of the petitioner have been infringed as the same would amount to abuse of the process of law for incorporating a name of the petitioner with whom the complainant had no connection or transaction. The FIR also discloses that the complainant found the package offered as costly and therefore, requested for negotiation, which was declined by the said Vacation Planners, however, the complainant agreed to avail the package. It is further submitted that at no point of time the complainant ever interacted or approached the petitioner herein for any of the services being offered by the petitioner and, therefore, the petitioner is not privy to any of the transactions between the complainant and the said Vacation Planners. The contents of the FIR would also indicate that the complainant allegedly deposited the amount for buying the package in the Bank Account of M/s Vacation Planners India Tour and Travel Limited on 09.06.2017 and 20.06.2017. Thereafter the said Vacation Planners provided the tickets alongwith the package to the complainant. It is strange that the entire commercial transaction having taken place between the complainant and M/s Vacation Planner, however, the name of the petitioner unnecessarily has been dragged in the impugned order. It is further submitted that the complainant had availed the services from Vacation Planners in the form of purchase of tickets alongwith package on 09.06.2017 and the FIR has been lodged with the respondent on 04.07.2017. Therefore, there is a gross and unexplained delay on part of the complainant in registering an FIR against the petitioner. It is further submitted that the contents of the FIR reveal that the allegations levelled by the complainant against the petitioner along with others are purely civil in nature. The veracity of the facts alleged by the complainant against the accused along with the petitioner can be ascertained on the basis of evidence and documents by a Civil Court of competent jurisdiction. Moreover, in case higher charges were paid by the complainant to Vacation Planners, the complainant had a remedy available under the Civil Law and therefore initiation of criminal proceedings against the petitioner would amount to abuse of the process of the Court making it liable for the FIR to the extent of the petitioner to be quashed.

4. In the status report filed by the respondent, it is stated that on 04.07.2017, a complaint was received by Tourist Police Station, TRC Srinagar, from one Ravi Bhatia resident of New Delhi to the effect that the complainant along with his five friends intended to perform Shri Amarnathji Yatra in the month of July, 2017, however, they were cheated by a travel agency namely Vacation Planners India, 90 ft. Road Soura Srinagar, who has provided them helicopter tickets of UT Air Company on exorbitant prices. It has further stated that after verifying the rates of helicopter tickets they came to know that the fare of one UT Air helicopter ticket was Rs. 3430/= (to and from Neelgrath-Panjtarni Sector) while as the said travel agency offered them a tour package which included six helicopter tickets and one none AC Tavera vehicle for three days @ 9200/- per person. After calculating the actual price of the tour package (06 helicopter tickets for Rs. 20580/- @ Rs. 3430/- per ticket plus Rs. 6000/- for a Tavera cab @ 2000/- for 3 days) it came to around Rs. 26580/- whereas, the said travel agency by way of cheating and misrepresentation has overcharged them and has taken Rs. 55200/- from them. Upon the receipt of the complaint filed by the complainant, a case bearing FIR No. 05/2017 for the commission of offence punishable under Sections 420, 120-B-6 (II), 2/32 TT act, was registered in Tourist Police Station, TRC, Srinagar and investigation was taken up. During the course of investigation apart from conducting legal formalities the statement of complainant and other pilgrims were recorded before the Court of Judicial Magistrate under section 164-A Cr. PC. During the course of investigation ,it came to the fore that the complainant has deposited an amount of Rs. 55,200/- in the account of Vacation Planners India in two transactions, on 09.06.2017 & 20.06.2017, the email correspondences & copy of UT Air Helicopter tickets were seized in the instant case and prepared seizure memo. During further investigation, cost of Helicopter ticket was verified from SASB, which was found to be Rs. 3430 from Neelgrath-Panjtarni Sector. It has further surfaced that four helicopter tickets were issued by Vacation Planners India Tour & Travels, 90 FT road Soura on 19.06.2017 while as two tickets were issued by one travel agent namely Ashish Gupta of A. G. Northern Tour & Travel, Trikuta Nagar, Jammu on 17.06.2017. It is further submitted that during the investigation, the alleged accused Nadeem Wahid Rather was working as General Sales Agent (GSA) of UT Air Helicopter Company and has received two helicopter tickets from another General Sales Agent (GSA) of the said Company namely Ashish Gupta, Proprietor of A. G. Northern Tour and Travels, Trikuta Nagar Jammu. A summon under Section 94 of Cr. PC was served to the said travel agent Ashish Gupta on 11.08.2017 and he was asked to produce the receipts of tickets issued to Vacation Planners India, e-mail correspondence and the details of the helicopter tickets with contact numbers of pilgrims and the bills of money received from alleged accused Nadeem Wahid Rather, so that the fact could be ascertained. The said Ashish Gupta came to Tourist Police Station along with his lawyer on 17.08.2017 and produced Xerox copies of the tickets, bills/documents related to helicopter tickets sold by him during Amarnathji Yatra, 2017 and on 19.08.2017 the said Ashish Gupta again sent some documents through his lawyer. The documents produced by the said Ashish Gupta were seized in the instant case and during perusal of the documents submitted by the said travel agent, the cost mentioned in the tickets was found Rs. 3200/- whereas the actual ticket issued by A. G. Northern Tour & Travels on 17.06.2017 in favour of the complainant is Rs. 3430/- per ticket. The bills submitted to this police station by A. G. Northern Tour & Travels in respect of the two tickets issued by him to Vacation Planner India Tour and Travel on 17.06.2017 were not found existing

5. It has further stated that the accused Ashish Gupta is misleading the investigation agency by giving vague statements which could not be substantiated or proved correct. He has stated that he used to take cash payments from accused Nadeem Wahid Rather in lieu of the helicopter tickets he sold him during Holy Amarnathji Yatra, 2017 and produced documents containing copy of the bill dated 17.06.2017, which were seized on 19.08.2017 as per law. However, during investigation, no such bill was found existing in the office record of accused Nadeem Wahid Rather, which has been seized during investigation and it has surfaced that the bank transactions between them has taken place only during Amarnathji Yatra, 2017, whereas, no bank transaction between the two was found during other months in the year 2017. Perusal of the record seized from the office of accused Nadeem Wahid Rather and forensic opinion received from CFSL Chandigarh reveals that accused Ashish Gupta and Nadeem Wahid Rather were only doing the business of sale and purchase of helicopter tickets during Holy Amarnathji Yatra, 2017, with each other. Ashish Gupta has stated that he has sold 219 helicopter tickets during Amarnathji Yatra, 2017 to the pilgrims directly and approximately 44 tickets to accused general sales agent, Nadeem Wahid Rather. He further stated that he has received cash payments in respect of all these tickets and the pilgrims used to visit his office at Trikuta Nagar Jammu, for purchasing helicopter tickets and they never contacted him through email. It will be apt to mention here that if during Amarnath Yatra, 2017, Ashish Gupta was only selling the helicopter tickets then the bank transactions having taken place, between him and accused Nadeem Wahid during Yatra period only, proves that he was receiving payments from accused Nadeem Wahid through bank transfer. On the other hand, if accused Ashish Gupta was doing other business activities with accused Nadeem Wahid for the rest of year which otherwise could not be corroborated from the CFSL opinion and seized office records of accused Nadeem Wahid Rather, than there should have been bank transactions between two of them during entire year, which are not. During investigation the mandatory information of the pilgrims & contact numbers were fond existing in the computer of accused general Sales Agent (GSA) Nadeem Wahid Rather, therefore as a General Sales Agent of a helicopter company, accused Ashish Gupta should also possess the requisite details saved and updated in his official computer system which he has used in issuance of the helicopter tickets of the complainant and other during the Holy Yatra of Shri Amarnathji in 2017 and was required to forward the same to UT Air Helicopter company on daily basis. The same is mandatory as per General terms & conditions, clause 18 of Tender document No. SASB/IT/2017/02 dated 09.01.2017, issued by Shri Amarnathji Shrin Board for Holy Yatra 2017-18 and Clause (I) of the agreement signed by accused Ashish Gupta with the Helicopter Company on 25.04.2017 vide UT Air letter No. UTI/COMM/17-63. Either the accused Ashish Gupta in order to shield himself is reluctant to provide correct information and contact numbers of pilgrims to whom he has sold helicopter tickets during Holy Yatra 2017 or he has destroyed a vital piece of evidence so that facts could not be unearthed. It is further submitted that the evidences collected till date during the investigation of the instant case establish the offences of cheating and malpractice against accused Nadeem Wahid Rather of Vacation Planner India, however, modus operandi of accused Ashish Gupta proprietor of A. G. Northern Tour and Travels Trikuta Nagar, Jammu is being further investigated. Since the investigation as against the Nadeem Wahid Rather, prop. of Vacation Planners India in the instant case is complete. A preliminary charge sheet against Nadeem Wahid Rather will be filed before the Court after completing departmental formalities. Whereas, investigation in respect of accused Ashish Gupta Prop. A. G. Northern will be further continued and a supplementary charge sheet under Section 173 (8) Cr. PC, may be filed before the competent Court after obtaining further evidences.

6. The learned for the petitioner along with learned AAG have been heard.

7. The learned counsel for the petitioner laid emphasis on judgments titled Ajay Mitra v. State of M.P. and Others, reported in State of Orrisa & Another v. Saroj Kumar Sahoo, (2003) AIR SC 1069 and Mandeep Singh v. State of U.T. Chandigarh and Others,2006 1 Crimes 123 (SC) in Cri. MIsc No. M-21747 of 2011 and contended that on a bare perusal of the aforesaid FIR, it is evident that no offence is disclosed to have been committed by the petitioner herein and so the continuance of the investigation has subjected petitioner herein to agony and irreparable injury. There is ulterior motive in continuance of the investigation according to him. In view of this pendency, the petitioner herein cannot participate in any fresh contract regarding the Tour and Travels operated in connection with the Amarnathji Yatra. It is also his contention that the Act attributed to the petitioner herein, even if presumed to be true can be taken note of by resorting civil remedy and there is no scope for enunciations of criminal proceedings.

8. Mr. Bhat, learned AAG, however, submitted that the FIR cannot be treated as encyclopedia of the prosecution case and so the pleas taken by the petitioner for quashment of the proceedings are not sufficient. For examining the merit of prayer made by the petitioner, the allegations as referred in status report have to be seen which reflects the matter has a criminal manifestation too. Even if complainant could file a civil action against the petitioner, same would not be held a bar for registration of FIR and proceedings with investigation. According to him it can be safely said on a perusal of status report that it is the attitude of the petitioner himself which has led to the delay in concluding the same.

9. In rebuttal, Mr. Qadri, learned counsel submitted that if the Vacations Tour and Travels have sold tickets at higher cost, the criminal liability of the petitioner cannot be inferred on that count. Mens rea which is essential to hold a person guilty for the commission of offences under Section 420 Penal Code is absent in the instant case. The terms and conditions in the agreement clearly indicate that air tickets can be sold as a package with other facilities and the actual cost of tickets has to be stated in the package is also submitted by him. The relevant clause in the agreement authorized the petitioner to expand scope of activities and sell tickets as a package. The investigating Agency has not paid attention towards the fact that the complainant had admitted that he had approached the website of UT Air India for transaction.

10. Considered rival arguments and perused the material available on record.

11. For examination of the relevant merits of the contentions raised in present petition, it would proper herein to refer para 11 of the judgment of the Apex Court titled State of Karnatka v. Paster P. Raju reported in,2006 SC 2825.

"There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the incharge of the police station concerned to the Magistrate empowered to take cognizance of the offence. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India v. Prakash P. Hinduja & Anr., (2003) 6 SCC 195, where after referring to King Emperor v. Khwaja Nazir Ahmad, (1945) AIR PC 18, H.N. Rishbud & Inder Singh v. The State of Delhi, (1955) AIR SC 196, State of West Bengal v. SN Basak, (1963) AIR SC 447, Abhinandan Jha & Ors. v. Dinesh Mishra, (1968) AIR SC 117 and State of Bihar & Anr. v. JAC Saldanha & Ors., (1980) 1 SCC 554, it was observed as under in para 20 of the reports :-

"20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency."

This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the investigation stage."

12. In Eastern Spinning Mills v. Raju Poddar reported in, (1985) AIR SC 1668, their lordships commenting this aspect of the case observed as follows:

"We consider it absolutely unnecessary to make reference to the decisions of this Court and they are legion which have laid down that save in exceptional case where noninterference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offence. And frankly such is not the case here.

13. In M/s Medchl Chemicals and Pharma Pvt. Ltd. v. M/s Biological E. Ltd. reported in, (2000) AIR SC 1869, their lordships of Hon'ble Apex Court held as under:

"16. Be it noted that in the matter of exercise of High Courts inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction. Recently, this Court in Trisuns Chemical Industry v. Rajesh Agarwal and others, (1999) 5 SCALE 609 1999 AIR SCW 3492: AIR 1999 SC 3499: Cri LJ 4325) observed (Para 4 to 7 of AIR SCW, AIR ad Cri LJ):

5. Respondents counsel in the High Court put forward mainly two contentions. First was that the dispute is purely of a civil nature and hence no prosecution should have been permitted, and the second was that the Judicial Magistrate of First Class, Gandhidham has no jurisdiction to entertain the complaint. Learned Single Judge has approved both the contentions and quashed the complaint and the order passed by the magistrate thereon.

6. On the first count learned Single Judge pointed out that there was a specific clause in the Memorandum of Understanding arrived between the parties that disputes, if any, arising between them in respect of any transaction be resolved through arbitration. High Court made the following observations:

Besides supplies of processed soyabean were received by the complainant company without any objection and the same have been exported by the complainant-company. The question whether the complainant-company did suffer the loss as alleged by it are the matters to be adjudicated by the Civil Court and cannot be the subject matter of criminal prosecution.

7. Time and again this Court has been pointing out that the quashment of FIR or a complaint in exercise of inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal, (1992) Supp1 SCC 335 and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259: (1999 AIR SCW 881: AIR 1999 SC 1216: 1999 Cri LJ 1833).

8. In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations:

It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.

9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v.Bhajan Lal (Supra).

17. On careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in

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divers situations. As a matter of fact they are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred . The two types of actions are quite different in content, scope and impart [vide Pratibha Rani v. Suraj Kumar (supra)]. 14. It is clear from the observations made by their lordships in above referred cases, the practice of quashing proceedings at the initial stage when the Investigating Agency is yet to come to a definite conclusion stands deprecated. It requires to be noted that in the outline of the stand taken by the respondent, the name of the present petitioner is reflected as an accused. It is stated that notice in terms of Section 94 Cr. PC was served on the travel agent-petitioner herein for production of the documents, who came to the police station along with his advocate. The other particulars of the conduct of the petitioner herein including regarding his omission in cooperating with the Investigating Agency are also given. The conduct of the petitioner, as stated, is being further investigated. Having regard to the stage of investigation, it would improper to make any observation regarding reliability of the case as projected by Investigating Agency or about mala fides in initiation of exercise. In the judgment referred above, it is clearly laid down that the High Court would not be fair in embarking any enquiry in exercise of powers under Section 482 Cr. PC. The question of mens rea raised about the transaction in question or its absence too cannot be commented upon now when the facts are hazy and half backed. Similarly, the point raised by the petitioner that the terms of understanding, if any, violated in breach can be taken care of by a civil action too would not be sufficient to nullify the proceedings right now. It is not absolute rule that in any action for which remedy may be at civil law, the criminal prosecution would not lie as the conduct of a person may well entail action both at civil and criminal law. 15. Viewed in the context of what has been said and done above, there appears no merit in the petition of the petitioner, same entails dismissal and is, accordingly, dismissed.
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