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2008 DIGILAW 419 (JK)

Kewal Krishan Kohli v. State

2008-11-10

SUNIL HALI

body2008
1. Petitioner in this petition under Section 561-A Cr.P.C. seeks quashment of FIR No.182 of 2007 dated 17.05.2007 registered with Police Station, Gandhi Nagar, Jammu for offences under Sections 415/420 RPC. 2. For understanding the controversy involved in this petition, the brief resume of the facts is necessary. 3. A complaint titled Gheetin Singh Vs. Kewal Krishan Kohli was filed by complainant-respondent no.3 before Chief Judicial Magistrate, Jammu under sections 415/420 RPC, which came to be transferred to the court of learned Sub Registrar, Jammu on 30.04.2007, who on examination, returned the same in original to the SHO Police Station, Gandhi Nagar, Jammu i.e. respondent no.2 under Section 156(3) RPC for investigation under law. The allegations leveled in the complaint were that an Agreement to Sell was executed by the petitioner in favour of the complainant-respondent no.3 for sale of House No.20 B/C Gandhi Nagar, Jammu for an amount of Rs.69.00 lac and in lieu of that an amount of Rs.49.00 lac was received by the petitioner from complainant-respondent no.3 which was acknowledged at the back of the said agreement executed between them. After receiving the aforesaid amount a General Power of Attorney came to be executed on 29.07.2000. In para No.2 of the agreement to sell, it has been specifically mentioned that the property in question is free from all encumbrances and charges. Subsequently it was revealed that the petitioner-accused much before the execution of agreement to sell, had mortgaged the property in question in favour of Canara Bank and had obtained a loan of Rs.14.00 lacs. This fact came to the notice of complainant-respondent no.3 when he came across the information that a civil suit was pending in the court of learned Additional District Judge (Bank Cases) Jammu wherein the factum of mortgage of the house in favour of Canara Bank has been projected. complainant-respondent no.3 alleges that the petitioner after having known that the property was mortgaged to the Canara Bank, willfully executed the Agreement to Sell and received an amount of Rs.49.00 lac with the intention to cheat him. For this act of the petitioner, FIR No.182 of 2007 was registered with the Police Station, Gandhi Nagar, Jammu. 4. Being aggrieved of the registration of the aforesaid FIR, the petitioner has filed the present petition under Section 561-A Cr.P.C. seeking quashment of the same. 5. The petitioner has taken various grounds in his petition. For this act of the petitioner, FIR No.182 of 2007 was registered with the Police Station, Gandhi Nagar, Jammu. 4. Being aggrieved of the registration of the aforesaid FIR, the petitioner has filed the present petition under Section 561-A Cr.P.C. seeking quashment of the same. 5. The petitioner has taken various grounds in his petition. The essential points taken in this petition are:- (a) That the complainant-respondent no.3 has no locus standi to file the complaint; (b) That the complainant-respondent no.3 has executed sale deed with Madan Mohan Bhargav of the said property on the basis of the power of attorney; (c) That the said Madan Mohan Bhargav in his communication with the Bank has admitted about the pendency of the civil suit in respect of the said property before the learned Additional District Judge (Bank Cases), Jammu. 6. Heard learned counsel for the parties and perused the record. 7. The power of the court to interfere in the investigation has to be exercised sparingly and in exceptional cases. The power of the Investigating Officer cannot be interfered with unless it is shown that there was no material on the basis of which the investigation in the matter could be permitted. Once the FIR stands registered, the Investigating Officer has to examine the material on the basis of which he seeks initiation of the investigation in the matter. It is only on the existence of the material on the basis of which the investigation can be initiated. Once the material discloses the commission of cognizable offence, the Court cannot obstruct the course of investigation. It is only when no material fact is disclosed in the FIR, then investigation can be questioned. 8. Applying this test in the present case, following facts are not disputed:- (a) That the property in question stood mortgaged with the Canara Bank at the time the petitioner entered into agreement with complainant-respondent no.3 for sale of said property; (b) That the sale consideration of the property has been received and acknowledged by the petitioner; (c) That the petitioner has executed a General Power of Attorney with complainant-respondent no.3 in respect of the said property. 9. 9. In order to attract the provisions of Section 415 RPC, which define cheating, the essential ingredients are that the person induced to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which would not do or omit if he were not so deceived, and which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". The petitioner while concealing this fact that the property was already mortgaged with the Canara Bank, executed an Agreement to Sell with claimant-respondent no.3 and induced him to part with Rs.49.00 lac. The facts as enumerated above disclose the cognizable offence and there is sufficient material with the Investigating Officer to proceed with the investigation. 10. The contention raised by the petitioner has no relevance in deciding the present controversy. The issue raised by the petitioner relates to intricacy which in my opinion, can be decided only by the civil court. So far as present controversy is concerned, I find no reason to interfere with the process of investigation. I accordingly, dismiss this petition and direct the Investigating Officer to go ahead with the investigation. 11. Accordingly, this petition is disposed of along with connected Cr.M.P(s), if any.