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Uttarakhand High Court · body

2003 DIGILAW 42 (UTT)

Manoj Prabhakar v. State of Uttaranchal

2003-04-05

IRSHAD HUSSAIN

body2003
Judgement- The instant miscellaneous petition under section 482 of the Code of Criminal Procedure (hereinafter in short 'Code') has been filed for quashing the charge-sheet no. 16-A of 2001 filed before A.C.J.M., Haldwani, Nainital relating to F.I.R. no. 1444 of 1999, under sections 406, 420,471 I.P.C. 2. Heard Sri Rakesh Diwedi, learned counsel for the petitioner and Sri U.K. Uniyal, learned Govt. Advocate. 3. The facts of the case, in brief, are that Complainant Lalit Chandra lodged an F.I.R. alleging that the petitioner accompanied-by-Sri Divya Nautiyal and Sri Umesh Chandra visited his shop and induced him to invest money in APACE Savings and Mutual Benefits (India) Ltd. assuring that the principal amount together with interest at the rate of 10% and interest at the rate of 3% after fifteen months shall be repaid back. The complainant in view of the inducement and promise opened two accounts in the said company and deposited Rs. fifty per day for fifteen months. When company's agent Umesh Chandra did not visit the complainant to collect the instalments, the complainant went to the office of the company and to his surprise found the same closed and was told that the office of the company is lying closed for the last 5-6 days. Complainant then went to Lucknow office of the company and on enquiry was told that the money of the investors had been dishonestly misappropriated. 4. Complainant thus alleged that the petitioner and co-accused named therein have cheated him and dishonestly misappropriated his money amounting to Rs. 35,000.00 by deceitful means. A case was registered and on completion of the investigation charge-sheet 16-A in question, Annexure P 5A dated 18.07.2001 was submitted and the same came to be filed before A.C.J.M., Haldwani on 13.08.200l. 5. It was argued by the learned counsel for the petitioner that in the F.I.R. no specific allegations have been made against the petitioner and he has been falsely implicated in the case; that the petitioner had never been the director of the APACE Group of Companies and was not in any way involved in the affairs of the company; that an F.I.R. no. 253 dated 07.03.2000 was also lodged at police station Haldwani by Ms Bhawana Joshi alleging herself to be the c1erk-cum-agent of APACE Group of Companies looking after the affairs at Haldwani office with the allegations that the Director and General Manager of the company are not repaying the money to the investors and it appear that they have dishonestly misappropriated the money of the depositors obtained by deceitful means and since the allegations against the company and its Director pertain to all the investors, there was no occasion to file separate charge-sheet in question based on same evidence which had been collected in relation to the F.I.R. no. 253 and further that another F.I.R. no. 237 dated 23.06.2000 lodged by Gopal Singh with similar allegations of cheating and dishonest misappropriation of depositors' money, the investigation was conducted and charge-sheet, Annexure P-4 was also filed against the petitioner and, thus the offences alleged to have been committed in regard to the said F.I.R. no. 237 were also in respct of similar transactions, the filing of charge-sheets in successive cases amount to harassment of the petitioner on account of multiplicity of the proceedings and investigations. 6. Learned counsel in view of above submitted that to secure the ends of justice the charge-sheet in question need to be quashed in inherent powers of the High Court under section 482 of the Code. Learned counsel for the petitioner placed reliance on the following decisions in support of his arguments: (a) T.T. Antony vs State of Kerala and others, (2001) 6 SCC, 181, (b) Kari Choudhary vs Mst. Sita Devi and others, (2000) 1 SCC, 714, (c) In Re : Sankar Gope, 1995, Criminal Law Journal, 1358, (d) G. Sagar Suri and another vs State of U.P. and others, (2000) 2 SCC, 636, (e) S.W. Palanitkar and others vs State of Bihar and another, (2000) 1 SCC, 24l. 7. Sri U.K. Uniyal, learned Government Advocate has supported the cause of the complainant by submitting that the charge-sheet in question has been filed after proper investigation as the allegations as made out in the F.I.R. no. 1444 of 1999 prima facie constitute offences of cheating and Criminal breach of trust etc. of Indian Penal Code as the allegations were found supported by evidence collected during the investigation. 1444 of 1999 prima facie constitute offences of cheating and Criminal breach of trust etc. of Indian Penal Code as the allegations were found supported by evidence collected during the investigation. It was submitted that there is nothing to indicate that the matter pertaining to the deposit secured from the complainant and the instant F.I.R. was investigated with relation to the other first information reports also lodged against the petitioner and others and further that the instant F.I.R. pertain to distinct and separate incident and also to different occasion than alleged in other first information reports. It was further submitted that the petitioner had himself campaigned in favour of the company and also issued fixed deposit bond in favour of the depositors under his signatures on behalf of the APACE Group of Companies and it was prima facie established by investigation that the petitioner was directly involved with the affairs and functioning of the company in securing the deposits by deceitful means and has also prima facie committed the offences alleged against him. 8. Repelling the arguments of the learned counsel for the petitioner it was further argued that the petition has no merit and is fit to be dismissed. 9. As far as the submissions of the learned counsel for the petitioner are concerned it need to be mentioned that the allegations against the petitioner in the F.I.R. no. 1444 of 1999 are neither vague nor lacking essential ingredients of the offences alleged to have been committed by the petitioner and others. The petitioner alongwith others visited the shop of the complainant Lalit Chandra and as narrated in the F.I.R. induced the complainant to deposit the money with the company by giving allurement that the money shall be repaid with interest after maturity period, knowing well that promise is not to be fulfilled thereby depriving the complainant of his money dishonestly. Therefore there is no force in the submission that no specific allegations have been made in the F.I.R. against the petitioner. So far as the contention that the petitioner was not the Director of the company, attention was drawn to the inspection note of the Chartered Accountants, Annexure P-7 indicating that in the register of the company name of the petitioner does not exist in the list of the Board of Directors of the company in question and its sister companies. So far as the contention that the petitioner was not the Director of the company, attention was drawn to the inspection note of the Chartered Accountants, Annexure P-7 indicating that in the register of the company name of the petitioner does not exist in the list of the Board of Directors of the company in question and its sister companies. Even though it may be so, but it cannot at this stage be accepted that the petitioner was not in any way involved in the affairs of the company. In the petition by the petitioner it has not been specifically averred that the petitioner has never visited the complainant to seek investment of money in the name of the company. Moreover, no rejoinder affidavit was filed to challenge the submission of the respondent that the fixed deposit certificates issued on behalf of the company bear signatures of the petitioner. One of the fixed deposit certificates bearing the signatures of the petitioner was annexed as Annexure C A-1 to the counter affidavit in the case. This was referred to by the learned counsel for the respondent to rebut the submissions made on behalf of the petitioner that petitioner was not involved in the affairs of the company and have had no occasion to induce the depositor to part with the money by deceitful means with Intention that the same may be misappropriated dishonestly. 10. In the case- T.T. Antony vs State of Kerala and others, (2001) 6 SCC, 181, relied upon by the learned counsel for the petitioner, the principle laid down is that there can be no second F.I.R. and no fresh investigation on receipt of every subsequent information in respect of same cognizable offence or same occurrence giving rise to one or more cognizable offences can be made. In the reported case the date of occurrence was 25.11.1994 and two first information reports pertaining to two different places were filed and registered as crimes nos. 353 and 354 of 1994 and the investigation in those case was pending. While the investigations on the basis of the first information reports was pending the enquiry commission submitted its report to the government which was accepted by the government and as a follow up action the Director General of the Police issued orders to register a case and under the have the same investigated by a senior officer. While the investigations on the basis of the first information reports was pending the enquiry commission submitted its report to the government which was accepted by the government and as a follow up action the Director General of the Police issued orders to register a case and under the have the same investigated by a senior officer. In consequence of the orders of the D.G.P., the Deputy Superintendent of Police registered a fresh case as crime no. 268 of 1997 and the case was investigated and charge-sheet was filed against number of persons who thereafter filed writ petitions in the High Court for quashing F.I.R. in crime no. 268 of 1997. There was no dispute that in truth and substance the essence of the offences in crime nos. 353 and 354 of 1994 was the same as in crime no. 268 of 1997. Considering these facts it was held that the registration of the second F.!.R. under section 154 of the Code on the basis of letter of the Director General of Police as crime no. 268 of 1997 is not valid and consequently the investigation made pursuant thereto is of no legal consequence and they were accordingly quashed leaving it open to the investigating agency to seek permission of the Magistrate to make further investigation and submit further report or reports in accordance with law in regard to earlier first information reports registered as crime nos. 353 and 354 of 1994. However, the facts of the instant case are at variance and the principle laid down in the reported case cannot be made applicable here. The reason is that although F. 1. R. no. 253 lodged by Ms Bhawana Joshi was of general nature there is nothing to indicate that the investigation covered the incident alleged in the instant F.I.R. also. Similar observation can also be made in regard to another F.I.R. 237 of 2000 lodged on 23.06.2000 by Gopal Singh Khati in which charge-sheet had been submitted against the petitioner because the allegation related to deposits made by investors other than the complainant of the F.I.R. in question and the charge-sheet filed thereon. Similar observation can also be made in regard to another F.I.R. 237 of 2000 lodged on 23.06.2000 by Gopal Singh Khati in which charge-sheet had been submitted against the petitioner because the allegation related to deposits made by investors other than the complainant of the F.I.R. in question and the charge-sheet filed thereon. It is immaterial if the criminal law was set into motion leading to the investigation of the offences of cheating and criminal breach of trust against the petitioner and others by reason of other first information reports which did not pertain to the incident in question and the deposit made by the complainant of F.I.R. no. 1444 under inducement and deceitful means. 11. On the facts of the case the another decision of the apex court in- Kari Choudharty vs Mst. Sita Devi and others, (2000) 1 SCC, 714, has also no bearing because in the case before the apex court the second F.I.R. pertain to one and the same incident against the same accused. 12. In the case In Re : Sankar Gope, 1995, Criminal Law Journal 1358 again the facts were not identical to the instant case in as much as i~ regard to the depositors' money with the finance company there was absolutely no allegation in the F.I.R. that there was ever any failure, neglect or refusal to pay any matured deposit to any of the depositors/investors by the company and in the absence of any allegation prima facie offences of cheating or criminal breach of trust in respect of the investors' money was not found to be disclosed or made out and in view thereof, F.I.R. in criminal proceedings was quashed in inherent powers of the High Court under section 482 of the Code. As stated earlier there is definite allegation in the F.I.R. in question that the petitioner and others who were connected with the affairs of the company have failed and neglected to pay the matured deposit. In other words this reported decision is also of no help to the cause of the petitioner as advocated on his behalf. 13. Relying on the reported case- G. Sagar Suri and another vs State of U.P. and others, (2000) 2 SCC, 636, learned counsel for the petitioner submitted that since the petitioner was not the director of the finance company, there was no occasion to file charge-sheet against him. 13. Relying on the reported case- G. Sagar Suri and another vs State of U.P. and others, (2000) 2 SCC, 636, learned counsel for the petitioner submitted that since the petitioner was not the director of the finance company, there was no occasion to file charge-sheet against him. The facts of the reported case are also not identical because in the case before the apex court the complainant failed to show as to what role was played in duping the finance company by the persons who were not the directors of the company and against those charge-sheet was filed for cheating etc. after investigation and which came to be quashed in the circumstances of the case. Further in the instant case as stated above; specific role-has been assigned to the Petitioner and on Investigation allegation as made out in the F.I.R. prima facie constituted offences of cheating etc. In this way the reported case has also of no help to the petitioner. 14. The last reported decision- S.W. Palanitkar and others vs State of Bihar and another, (2000) 1 SCC, 241, was pressed into service to show that to make out a case of cheating and criminal breach of trust intention of such offence must be shown at the time when the inducement was made and mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. It is clear from the allegations in the F.I.R. in question that the petitioner alongwith others went to the shop of the complainant Lalit Chandra and induced him to invest the money with the finance company under an allurement that the money shall be repaid with interest after a fixed period, but the petitioner and the company failed and neglected to pay the matured amount. The specific allegation of the F.I.R. was found to be prima facie true as a result of the investigation of the case and the intention to cheat on the part of the petitioner thus clearly exist at the time of making of the inducement to the complainant of the case. The ratio of the decision of the reported case also, therefore is of no avail to the cause of the petitioner. 15. The ratio of the decision of the reported case also, therefore is of no avail to the cause of the petitioner. 15. In view of above it can be safely observed that the allegations set out in the F.I.R. and the charge-sheet in question in law constitute the offence of cheating, criminal breach of trust etc. and the resort to criminal proceedings against the petitioner in the circumstances do not amount to an abuse of the process of the court and consequently power of quashing of criminal proceedings of the charge-sheet in question cannot legally be exercised in favour of the petitioner. In other words, the petition is devoid of merit and is dismissed accordingly.