I am a young entrepreneur aged 36 yrs dealing with mobile application in manufacturing and marketing of product pan India from Jamshedpur through channel sales in the year 2015 i appointed a super stockist in Vijayawada and started my business we worked for 8 months with proper transaction but suddenly the party quited from the business and asked to take return back of unsold stocks but according to agreement goods once sold could not be taken back as the company already purchased the server now the party just to harass the company filed a fir under section 402 and 406 that company did not send some commodity wherein all the relevant documents for example delivery challan invoice courier receipt delivery receipt are available few days back the Andra Pradesh police came for an investigation but because now my office is changed were unable to find me the matter is not their in the court only the fir copy is registered so i am unable to take an ab also should i move for quising of the case in high court kindly suggest
14 answers received from multiple lawyers
Lawyers are available now to answer your questions.
1) quashing is to be done only in exceptional circumstances
2) HC would be reluctant to quash FIR pending investigations
3) it is better you coperate with police and have ytour statement recorded
4) produce all documentary evidence in your possession that you have purchased the server
1. Since FIR is registered taking of bail remains only option.
2. In the dispute mentioned above your complicity does not appeAr to be clear making the prospect of getting bail quite bright.
3. Additionally file quashing petition also as every business dispute does not warrant registration of FIR u/s 496 IPC.
1. Both the sections are non bailable and non ordinarily non compoundable.
2. allegations leveled against both the sections can be compounded by the accuser only after taking permission from the Court.
3. It is not understandable as to why you are not able to avail AB. Engage a lawyer at Vijaywada to enquire about the FIR no. and then apply for the AB at the earliest.
4. Contest the case fittingly thereafter.
5. you can also lodge a police complaint u/s211 of IPC against the party for lodging false complaint against you to cause damage to you.
On further cross checking in the court of Vijayawada I only found the copy of the Fir, no police report neither any NBW has been issued till date how come I'll be able to take an AB at this juncture ,and more over according to my best knowledge the nature of the case is a civil matter wherein its all about business transactions thus thought of going for quashing kindly guide
Yes,first get AB and then apply for quashing. Your case has good merit.
you can apply for anticpatory bail on basis of FIR filed by party
2) wait for police investigations to be completed and then file for quashing in HC
should I straight away go for a quashing as no nbw issued till date and can Vijayawada police arrest me without serving notice under section 41 crpc
dont go in for quashing now
2) HC is reluctant to quash FIR pending investigations
3) if FIR is filed police has to issue you notice under section 41 A of cr pc to record your statement
4)police cannot arrest you arbitrarily
Sir I need to understand is it necessary to go for AB rather than quashing as the fir against the matter is totally wrong its a purely civil matter and even the SC has commented A Bench comprising Justices H K Sema and R V Raveendran conceded that the delay in adjudication of civil disputes is a major reason for people converting civil cases into criminal cases. "Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution, should be deprecated and discouraged." so what I feel is to discourage such cases rather than participating in this unlawful act
it is advisable to apply for anticipatory bail as the complainant may grease some palms to harass you un necessarily
2) although police cannot arrest you arbitrarily yet you would have a Damocles sword hanging over your head
Though the case is pending at FIR stage it would be better and in your own interest that you may obtain AB first and then try for quashing the FIR through high court.
Please remember that high court do not entertain quash as a routine.
On further cross checking in the court of Vijayawada I only found the copy of the Fir, no police report neither any NBW has been issued till date how come I'll be able to take an AB at this juncture ,and more over according to my best knowledge the nature of the case is a civil matter wherein its all about business transactions thus thought of going for quashing kindly guide
You can apply for anticipatory bail on the basis of pending FIR agaisnt you.
The FIR has not been converted from crime number to criminal case number in the trial court, since the police have not filed the charge sheet yet,hence you may not find the case details.
It is not necessary to issue a NBW at this stage, nor you can argue that this is a civil matter because a FIR has been registered already hence your claim will not find any ground.
should I straight away go for a quashing as no nbw issued till date and can Vijayawada police arrest me without serving notice under section 41 crpc
The FIR is a step after enquiring you under section 41 Cr.p.c., hence dont expect any justice from police who have been bought by the opposite party with heavy dosage of corruption.
Approaching high court for seeking quash is different to that of obtaining anticipatory bail.
I need to understand is it necessary to go for AB rather than quashing as the fir against the matter is totally wrong its a purely civil matter.
It is essential that you get enlarged on bail or else the police may make an arrest on you due to pressures from the opposite quarters.
The civil matter or criminal matter may be decided during trial proceedings and not now at this stage.
1. You shall have to file an application for AB for which the Court will ask for the case diary (CD) fixing another date for hearing as without seeing the CD, no Court will pass an order for AB.
2. If the CD is not placed on the next date of hearing, then on the prayer of your Advocate, the Court can ask appearance of the IO or even the S.P./D.C. of the police on the next date of hearing.
3. On receipt of the order, the IO shall certainly send the CD to the Court.
4. You shall have to have an efficient lawyer who should be able to fix the public prosecutor (PP) who will not object when your AB application will be moved.
5. On receipt of the AB you can either contest the case or file a quash case after charge sheet (CS) is filed by the IO, finding out loopholes in the said CS.
1. For arresting you against the FIR filed against you leveling charges with non bailable charges, no warrant is required by the police.
2. Police is also not required to send you notice u/s 41 of Cr.P.C.for making arrest of yourself against FIR filed under non bailable sections of IPC.
1. Ordinarily, no High Court entertains quash petition before the charge sheet is filed.
2. Filing of petitions before the High court is expensive and should be filed after taking all the precautions and preparations.
3. So, it will be prudent on your part to first get the AB and then contest the case and thereafter file the quash petition after CS is filed by the IO.