Virender Singh v. State of Haryana

quashing of FIR No. 242 dated 16.5.2008 under Sections 420, 468, 120-B IPC registered at Police Station Faridabad Central (District Faridabad). The petitioner had purchased vehicle No.HR47B- 1819 on 31.8.2004. The said vehicle was financed by M/s Orix auto and Business Limited, Jaipur. This entry was made in the Certificate of registration of the vehicle. The petitioner could not make the payment of instalments. On 31.10.2005 he agreed to sell the trailer to Satya Narain son of Sumer Singh resident of village Deroli Ahir, District Mahendergarh. It was agreed to be sold for `9,19,000/-. Out of this, `3,25,000/- were to be paid in cash and Satya Narain was to pay the balance instalments of `5,84,000/- Finance Company. The General Power of Attorney in favour of Satya Narain was got executed. After making part payment, Satya Narain could not pay the entire sale consideration. The payment was made to the Finance Company by Satpal son of Sheotaj resident of Deroli Ahir who was maintaining the vehicle. In the meantime, Satya Narain and accused Rahul Gupta obtained Form 35 (notice of termination of an agreement of hire purchase/hypothecation) on 26.6.2007. Affidavit of the petitioner was forged on 26.6.2007 showing that the vehicle had been sold by the petitioner to Rahul Gupta at Faridabad. Thereafter, registration Certificate was Crl. Misc. No. M-36331 of 2011 (O&M) [ 3 ] issued by the Registering Authority-cum-Regional Transport Authority, Faridabad. On coming to know about the above facts, complaint was made by the father of the petitioner to the police after getting information under the RTI Act on

29.3.2008 (Annexure P3). The Deputy Commissioner marked the inquiry to Superintendent of Police, Faridabad. After great persuasion, inquiry was conducted and it was found that the forms on behalf of the petitioner was produced fraudulently and his affidavit was forged by some other person. The duplicate RC and ownership of the vehicle in favour of Rajesh Gupta was suspended with effect from

26.6.2007 vide order dated 21.4.2008 passed by the Registring Authority, Secy. R.T.A. Faridabad (Annexure P5). A communication was sent on 13.5.2008 with a request to register a criminal case against Jogender Pal Singh and Jawahar Lal Gupta, Advocates, both Notaries in District Court, Faridabad. On 19.3.2008 the vehicle was impounded by Delhi Police under Section 66 of the Delhi Police Act. The petitioner as well as Rahul Gupta made applications for release of the vehicle and after conducting inquiry the Delhi Police ordered the release of the vehicle in favour of the petitioner on 29.4.2008. In the meantime, the petitioner sent a Legal Notice on 22.4.2008 (Annexure P6) to Satya Narain Crl. Misc. No. M-36331 of 2011 (O&M) [ 4 ] that he had violated the terms of the agreement and Special Power of Attorney dated 31.10.2005 and it stood cancelled. Vide order dated 25.6.2010 (Annexure P8) the Regional Transport Authority, Faridabad, came to a conclusion that Rahul Gupta had obtained a duplicate RC No.

HR-47B-1819 on the basis of documents which were forged in material particulars. As per Section 55 (50) of the Motor Vehicle Act, 1988 the duplicate RC No. HR-47B-1819 along with all entries in it were cancelled with immediate effect. Rahul Gupta was ordered to surrender the RC within 15 days. Mr. N.S.Shekhawat has vehemently argued that the FIR (Annexure P1) was registered on 16.5.2008 against the two Notaries i.e. Jogender Pal Singh and Jawahar Lal Gupta on a letter written by the Registering Authority-cum- Secy. RTA, Faridabad, that these officials had helped in fabrication of false documents to secure a duplicate RC in favour of Rahul Gupta of the vehicle in question. The petitioner was called by the police on 29.4.2011 and he was arrested after 3 years of the registration of the FIR. A bare reading of the contents of the FIR do not make out a case against the petitioner. The Regional Transport Authority had suspended the duplicate RC issued by the Transport Authority, Faridabad, in favour of Rahul Gupta vide order Crl.

Misc. No. M-36331 of 2011 (O&M) [ 5 ] dated 25.6.2010 (Annexure P8). On receipt of a complaint from Virender Singh that he had not sold his vehicle to Rahul Gupta, an inquiry was held by the Secretary, RTA, Faridabad, Sh. Yash Pal Yadav, HCS and RC was suspended on 21.4.2008. Notice of cancellation was issued. Neither Rahul Gupta appeared nor submitted anything in response to the notice. In this background, the duplicate RC was suspended. After suspension of the RC on 21.4.2008 the present FIR No. 242 dated 16.5.2008 under Sections 420, 468, 120-B IPC was registered at Police Station Faridabad Central (District Faridabad) against Jogender Pal Singh and Jawahar Lal Gupta, Advocates, working as Notaries. The petitioners are being harassed after 3 years of registration of the FIR even when the duplicate RC has been suspended finally vide order dated 26.5.2010. Mr. C.S.Bakshi, Addl. A.G. Haryana, on the other hand, has argued that on 24.3.2008 on the basis of Form 26 duplicate RC was applied before RTA office, Rewari which was issued on 28.3.2008. Thereafter, one Rahul Gupta on

21.4.2008 had applied to RTA office requesting for issuing of the said RC in the name of Rahul Gupta. The petitioner and his father Kishori Lal did not appear before the RTA, Faridabad. They had transferred the said vehicle to Rakhi Goyal wife of Shri Vijay Goyal, resident of Ajmer for consideration of `8 lacs and got registered with the Crl. Misc. No. M-36331 of 2011 (O&M) [ 6 ] Registration Authority and obtained new number RJ-01/GA- 4800 on 19.6.2009. This was done on the basis of duplicate RC issued by the RTA office Faridabad. The said vehicle was got released from Police Station Okhla Phase-2 and thereafter sold to Vijay Goyal for ` 8 lacs on 19.6.2009. After presentation of challan the case is fixed for 24.3.2012 for framing of charges. The petitioner can take all the pleas before the trial Court. Heard counsel for the parties. After going through the case and record, it is found that the petitioner after purchasing the vehicle and getting it financed from M/s Orix Auto and Business Solutions Limited, Jaipur in 2004 had agreed to sell the vehicle on 31.10.2005 by way of Agreement and Power of Attorney to Satya Narain. Satya Narain could not comply with the terms of the agreement and eventually vide legal notice dated 22.4.2008 (Annexure P6) the Power of Attorney and Agreement were cancelled. A duplicate RC had been got issued of the said vehicle by one Rahul Gupta in his name and a complaint made by the petitioner and his father the Registering Authority, Faridabad, had cancelled the alleged transfer in favour of Rahul Gupta vide order dated 25.6.2010 (Annexure P8). It will not be out of place to mention that this vehicle had been impounded by the Delhi Police under Section 66 of the Delhi Police Act and the petitioner as well Crl. Misc. No. M-36331 of 2011 (O&M) [ 7 ] as Rahul Gupta had made an application to Delhi Police for getting the vehicle released. After conducting inquiry on

29.4.2008 the vehicle was ordered to be released in favour of the petitioner. This fact has not been denied by the respondents in the reply. As far as the dispute with Satya Narain is concerned, it is civil in nature as he had not performed the conditions of Agreement to Sell. The General Power of Attorney regarding the vehicle in favour of Satya Narain was executed. Satya Narain had made only part payment and at best Rahul Gupta could be accused of violating the Agreement to Sell. The RC in favour of Rahul Gupta was issued by the RTA, Faridabad, it was suspended on

21.4.2008. Thereafter, petitioner was the sole registered owner of the vehicle. The vehicle was initially registered at Rewari and when an application was made by the petitioner to renew the RC, report was sought by RTA, Rewari from Faridbad. They were duly informed vide letter dated

13.5.2008 by Registering Authority-cum-RTA Faridabad that signatures of the petitioner were forged on the affidavit while transferring the vehicle in favour of Rahul Gupta. It is in this background that the present FIR was registered against Jogender Pal Singh and Jawahar Lal Gupta, Advocates, both notaries in District Court Faridabad. A subsequent sale made by the petitioner on Crl. Misc. No. M-36331 of 2011 (O&M) [ 8 ]

19.6.2009 to Shri Vijay Goyal resident of Ajmer cannot made basis for charging the petitioner for an offence under Sections 420, 467, 468, 471, 120-B IPC. To constitute an offence under Section 420 IPC there should not only be cheating, the accused should have dishonestly induced the person deceived to deliver any property or to make, alternate or wholly part a valuable security. While examining the complaint where the accused had sold the property of the complainant claiming himself to be the owner the Supreme Court in Md. Ibrahim & others v. State of Bihar and another 2009 (4) RCR (Criminal) 369 has held that it was the purchaser who was cheated and not the owner and purchaser can file a complaint under Section 420 IPC. In paragraph 14 the applicability of Sections 417, 418, 419 or 420 of the Code are explained. Paragraph 14 is reproduced as under:- “When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration.

But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case Crl. Misc. No. M-36331 of 2011 (O&M) [ 9 ] of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing the sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds deceived the complainant in any manner.

As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.” In the facts of the present case, the sale made by the petitioner on 19.6.2009 to Vijay Goyal at best could be a Crl. Misc. No. M-36331 of 2011 (O&M) [ 10 ] case of driving and selling the vehicle which was not belonging to him. The cause of action of filing a complaint under Section 420 IPC would lie with the purchaser i.e. Vijay Goyal. The present FIR was registered at the recommendation made by the RTA, Faridabad and thereafter vide order dated 13.5.2008 the Superintendent of Police Faridabad had requested for registration of the FIR against Jogender Pal Singh and Jawahar Lal Gupta, Advocates. Petitioner was the complainant and no role could be attributed to him for issuance of a duplicate RC in favour of Rahul Gupta. Eventually, vide letter dated 12.10.2010 the Transport Commissioner, Haryana, directed the Secretary, Regional Transport Authority, Faridabad, to lodge a FIR against Rahul Gupta son of Nand Kishore Gupta since he had obtained a duplicate RC on the basis of forged documents.

After receiving this letter, the Secretary, RTA Faridabad, vide letter dated 11.11.2010 (Annexure P-10) has made a request to the SHO, Central Police Station, Faridabad, to register the FIR against Rahul Gupta. In State of Haryana v. Bhajan Lal 1991 (1) RCR (Criminal) 383 this Court in the backdrop of interpretation of various provisions of Criminal Procedure Code has laid down principles of law relating to exercise of power under Section 482 Cr.P.C. to prevent the abuse of process of court or to secure the ends of justice. The parameters laid down are as Crl. Misc. No. M-36331 of 2011 (O&M) [ 11 ] under:- “(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, 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 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 Crl. Misc. No. M-36331 of 2011 (O&M) [ 12 ] complaint are so absurt and inherently improbable on the basis of which no prudent person can ever 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.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The anticipatory bail was granted to the petitioner as the dispute primarily with regard to Virender Singh and Satya Narain was civil in nature. It will not be out of place to refer to the successive complaints made by the petitioner and his father to initiate action against Rahul Gupta. Reference can be made to representations Annexures P3 Crl. Misc. No. M-36331 of 2011 (O&M) [ 13 ] and P4. The petitioner has been issued a notice in this FIR after a gap of 3 years when the Regional Transport Authority, Faridabad, has cancelled the RC issued in the name of Rahul Gupta vide order dated 25.6.2010 (Annexure P8) and subsequently the Transport Commissioner vide letter dated 12.10.2010 (Annexure P9) has recommended the registration of FIR against Rahul Gupta and a recommendation has been made to SHO Central Police Station, Faridabad, by the Secretary, Regional Transport Authority, Faridabad, vide Annexure P10 requesting him to register the FIR against Rahul Gupta.