Crl. M. No. M- 22157 of 2009 v. The Union Territory, Chandigarh

lodged the FIR against the petitioners, on the allegations, that they(petitioners) had been known to them, for the last more than 4/5 years . In the first instance Ashok Kumar, and Sushma, petitioners, came to them for treatment. Thereafter, they introduced Varinder Kumar Saluja @ Kumar Sahib, Surinder Kumar Saluja, Davinder Kumar Saluja and Ravi Kumar Saluja and all used to come to them for medical treatment. In this way, a close relationship was developed between the complainant and the petitioners. Dr. Punit Mittal, complainant, used to visit the house of Varinder Kumar and Ashok Kumar, where their parents usually resided with them as they were suffering from old age health trouble like diabetes, blood pressure etc. Dr. Punit Mittal, complainant and his wife gave personal care to their parents. Ashok Crl. M. No. M- 22157 of 2009 -3- Kumar Saluja, Sushma, Surinder Kumar , Ravi Kumar and Davinder Kumar, accused used to project Varinder Kumar as Kumar Sahib and also used to boast that he is a very rich man and having big business related to the film industry in Bombay. Varinder Kumar, accused, when met the complainant, also narrated the same facts. The petitioners, thus, made the complainant and his wife, to believe that Varinder Kumar, accused, is actually rich and a big man.

3. On 22.03.2007, Varinder Kumar @ Kumar Sahib, came to the complainant, alongwith Ashok Kumar and his wife. They induced the complainant to buy flat No. 275-A, in Sector 51, Chandigarh Housing Board . They represented that the flat, aforesaid, was owned by Varinder Kumar @ Kumar Sahib. Since the complainant and his wife were having good relations, with the petitioners, they did not suspect any foul play and agreed to buy the same, for Rs.40.00 lacs. Ashok Kumar and his wife, petitioner nos. 2 and 3, told that actually Varinder Kumar, accused, was in dire need of money for the time being, and ,therefore, he was selling the house. Crl. M. No. M- 22157 of 2009 -4-

4. On 23.3.2007, Varinder Kumar, accused and Ashok Kumar, petitioner no.2, showed them (complainant and his wife) flat No. 275-A, Sector 51, Chandigarh, which was locked from outside. They asked for four photographs, photocopy of PAN Number, last year Income Tax Statement, Marriage Certificate of Doctor Monika Mittal, in whose name, the flat, aforesaid, was to be transferred. They also demanded initial payment, to the tune of Rs.2.6 lacs. Varinder Kumar, accused, however, told him to pay Rs.36,500/- as expenses for transfer fee of the flat, out of which, Rs.10,000/- will be deposited in the Red Cross and Rs.26,500/- shall be paid, as transfer fee. On the next day, a cheque of Rs.2.6 lacs after obtaining the same from his father by the complainant, was given to Varinder Kumar.

5. On 28.03.2007, Varinder Kumar and Davinder Kumar, accused asked for payment of Rs.2.00 lacs. Accordingly, cheque bearing No. 564068 dated 28.3.2007 of SBI Ram Darbar, Phase-II, Chandigarh, was given to Varinder Kumar and Davinder Kumar,accused, on 4.4.2007. On

08.04.2007 Varinder Kumar, accused, alongwith Ashok Kumar, accused came to the complainant and demanded money. The complainant and his wife handed over account payee cheque No. 7078876 of Rs.5.00 lacs, of SBOP, Sector Crl. M. No. M- 22157 of 2009 -5- 35-D, Chandigarh, from the account of the father of the complainant, as part payment of the flat, aforesaid, as he (complainant) had no money in his account.

6. After 3-4 days, Varinder Kumar and Ashok Kumar, accused came to the complainant, and demanded Rs.30.00 lacs. The complainant told them that the amount was not readily available and would be paid after one month. During this period, the complainant talked to his patient Anil Bhardwaj, regarding the purchase of flat, aforesaid. He (Anil Bhardwaj) being their family friend, advised him to get and check the ownership papers.

7. On 11.5.2007 Varinder Kumar and Ashok Kumar, accused, came to the Clinic of the complainant and asked for balance sale consideration i.e. Rs.30.00 lacs . At that time, Anil Bhardwaj and Ramesh Mittal were also sitting there. When the wife of the complainant, asked for a copy of documents of ownership of flat, the accused, felt disturbed and told that they will hand over the same, within a week, but they could not hand over the same. Ultimately, on verification from the Chandigarh Housing Board, the complainant came to know that accused Varinder Kumar, was not the owner of the flat, aforesaid, but, on the other hand,one Ashok Kumar Vashisht was the owner thereof. It was further stated, that Crl. M. No. M- 22157 of 2009 -6- right from the very inception, the petitioners, in connivance with each other, intended to cheat the complainant, as a result whereof, they made him to part a sum of Rs. 9.96 lacs from time to time.

8. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully.

9. The Counsel for the petitioners, has submitted that the allegations, contained in the FIR are inherently improbable and no prudent man could believe the same. He has further submitted that no criminal offence was constituted, from the allegations, contained in the complaint. He has further submitted that, in fact, it was a loan transaction. He has further submitted that a loan of Rs. 9.96 lacs obtained by Varinder Kumar, was re-paid by him, in cash to Dr. Monika Gupta Mittal, wife of the complainant, vide receipt Ex.P-4. He has further submitted that the petitioners have been falsely implicated, in the instant case, only on account of the reason that they are the relations of Varinder Kumar, accused (non-applicant). He has further submitted that continuation of the FIR shall amount to sheer abuse of the process of law and Court. Crl. M. No. M- 22157 of 2009 -7-

10.. On the other hand, the Counsel for the respondents, have submitted that the FIR was registered after due enquiry. They have further submitted that it was not a loan transaction, but right from the very beginning, all the petitioners, in connivance with each other, had an intention to cheat the complainant and his wife and, as such, made them to part with a sum of Rs.9.96 lcs,for the sale of a flat, though Varinder Kumar, was not the owner of the same, yet he represented himself to be so. They have further submitted that not only this, but even the receipt Ex.P-4, regarding the alleged return of the amount of Rs.9.96 lacs, to the wife of the complainant, in cash, was a forged document, which was established from the report, (Annexure R-1) of the Forensic Science Laboratory. They have further submitted that it could not be imagined that if a person paid the amount through cheques, he or she would allegedly accept the same, in cash, as the transactions are required to be shown, in the Income Tax Returns. They have further submitted that challan has already been presented and charge has already been framed against the accused. They have further submitted that the disputed facts could not be adjudicated upon in these proceedings. Crl. M. No. M- 22157 of 2009 -8-

11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition is liable to be dismissed, for the reasons to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the FIR, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations, set out in the FIR, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana Crl. M. No. M- 22157 of 2009 -9- and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following categories of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in Crl. M. No. M- 22157 of 2009 -10- support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for Crl. M. No. M- 22157 of 2009 -11- wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

12. The inherent powers with which the Criminal Courts are clothed are to make such orders, as may be necessary for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised, in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts of the instant case, let us see, as to whether, the petitioners deserve the indulgence of the Court or not. The power, under Section 482 Cr.P.C., can be exercised only in the rarest of rare cases. Section 482 Cr.P.C., provides an extra-ordinary remedy, which can be invoked only in exceptional circumstances. The power under Section 482 Cr.P.C., cannot be exercised, when there is an express bar created by any provision of the Cr.P.C., or any other Statute. From the allegations, contained in the FIR, and the documents, Crl. M. No. M- 22157 of 2009 -12- attached therewith, it is evident that right from the very beginning, it was the intention of the accused-petitioners and their co-petitioners (non applicants) to allegedly cheat the complainant and his wife. Thus, the petitioners and their co- petitioners, allegedly hatched a conspiracy, as a result whereof, the complainant and his wife were made to part with a sum of Rs.9.96 lacs for the sale of flat, though Varinder Kumar (non- applicant) was not the owner thereof. In the FIR, different roles were assigned to the accused-petitioners and their co- petitioners (non-applicants). Not only this, the petitioners alongwith Varinder Kumar, (non-applicant) went to the extent of allegedly forging receipt P-5, showing that an amount of Rs.9.96 lacs had been paid to Dr. Monika Gupta Mittal, wife of the complainant, in cash. This fact, was prima facie established from Annexure R-1, report of the Government Examiner of questioned documents, Directorate of Forensic Science, Ministry of Home Affairs, Government of India. It is evident from this report that the printed text, in the red enclosed portion marked Q1, appears to have been printed subsequently after the execution of the questioned signatures when examined under stereomicroscope. It means that the signatures of Dr. Monika Gupta Mittal were allegedly obtained on blank paper and lateron, body thereof, was scribed, so as to Crl. M. No. M- 22157 of 2009 -13- show that amount of Rs.9.96 lacs in cash, was paid to her. The allegations, contained in the FIR and in the documents, attached with the report under Section 173 Cr.P.C., constituted the criminal offences. It could not be said that it was only a civil dispute, which has been converted into a criminal dispute. The allegations, contained in the FIR and the documents, attached therewith also cannot be said inherently improbable. At the time of deciding the petition under Section 482 Cr.P.C., the Court is only required to go into the allegations, contained in the FIR and the documents, attached therewith. The disputed facts as to whether Varinder Kumar, was the owner of the flat, allegedly agreed to be sold, by him to the complainant and his wife; whether it was merely a loan transaction; and whether the receipt, (Annexure P-4) was allegedly forged by all the accused in conspiracy with each other, cannot be finally determined, in these proceedings of summary nature. The Court is not required to take into consideration the probable defence of the accused. The probable defence, which may be available to the accused-petitioners, can only be taken, during the course of trial of the case. The challan has already been presented, in the Court. Charge has already been framed by the trial Court, and now the case is fixed for trial. It is now for the trial Court to decide the guilt or otherwise of the petitioners. Crl. M. No. M- 22157 of 2009 -14- Under these circumstances, no ground, whatsoever, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings

13. For the reasons recorded above, petition under Section 482 Cr.P.C., for quashing FIR No.333 dated

21.7.2007, under Sections 420,120-B, 465 , 467 , 468 and 471 IPC, Police Station Sector 34, Chandigarh, is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

14. The Registry is directed to comply with the order immediately.

07.04.2010 dinesh (SHAM SUNDER) JUDGE