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2010 DIGILAW 267 (RAJ)

Dev Narayan Fagna v. State of Rajasthan

2010-02-03

MAHESH CHANDRA SHARMA

body2010
Hon'ble SHARMA, J.—Heard learned counsel for the petitioner, learned counsel for the complainant and the learned Public Prosecutor. 2. This criminal miscellaneous petition has been filed by the accused petitioner Dev Narayan Fagna under Section 482 Cr.P.C. praying for quashing the first information report No. 70/2008 lodged at Police Station Pratap Nagar for the offence under Section 420 IPC. 3. In brief the facts of the case are that complainant had some transactions with the petitioner regarding sale of a piece of land bearing Khasra No. 106 measuring 1.23 Hectares situated at village Tilawala, Tehsil Sanganer, District Jaipur. It has been alleged in the FIR that on 5.9.2006 the petitioner came to the house of the complainant and offered to sale the above mentioned property. He further stated that he was in need of a land and therefore agreed to purchase the said land after duly inspecting the site where the said land was situated. On the very same day i.e. on 5.9.206 sale of land was fixed for a sum of Rs. 70,00,000 for which token money of Rs. 11,000 was given to the petitioner. Moreover, it has been alleged that on 10.9.2006 a sum of Rs. 35,00,000 were paid in cash and Rs. 25,00,000 were payable through three cheques bearing Nos. 671092, 671093 and 671094 of Rs. 10,00,000/- Rs. 10,00,000/- and Rs. 5,00,000/- respectively of Standard Chartered Bank issued in the name of Shri Bhanwar Lal. Lateron it was found that the account of complainant for which cheques were given was closed and the complainant on informing about this agreed to replace the same with another set of cheques. It is stated in the petition that on the instructions of Bhanwarlal the petitioner went to get the cheques replaced. It has been averred that on 19.9.2006 the complainant issued three more cheques which were in the name of Bhanwar Lal of in lieu of the previous cheques bearing Nos. 991107, 991108, 991109 of total amount of Rs. 25,00,000/-. When the complainant asked the accused petitioner regarding registry of the aforesaid land, he repeatedly stated that the same would be done. In 2008 the complainant came to know that in the revenue record entries regarding land was not in favour of Dev Narayan petitioner and the petitioner was not the owner of the land. 25,00,000/-. When the complainant asked the accused petitioner regarding registry of the aforesaid land, he repeatedly stated that the same would be done. In 2008 the complainant came to know that in the revenue record entries regarding land was not in favour of Dev Narayan petitioner and the petitioner was not the owner of the land. The petitioner obtained huge amount from the complainant and hence he lodged the first information report No. 70/2008 at Police Station Pratap Nagar. Thereafter the petitioner moved anticipatory bail before the Sessions Judge, which was rejected. After rejection of anticipatory bail, the petitioner moved this petition under Section 482 Cr.P.C. for quashing of the first information report. 4. The learned counsel for the petitioner argued that neither the petitioner was the owner of the said land nor made any agreement to sale, nor received any amount with respect to the sale of the said land. The cheques which have been mentioned by the complainant were payable to Bhawar Lal Gujjar and not to the petitioner. The learned counsel argued that a perusal of the cheques would make it clear that there had been transaction of money between Bhanwar Lal and Bheem Raj Meena and not between the complainant and the petitioner and thus the allegations against the petitioner has malafidely been knotted in the FIR in which he had no role whatsoever. The learned counsel stated that the petitioner obtained copy of the alleged receipt dated 19.9.2006 issued by him which is clearly a forgery in as much the writing other than receipt of replaced cheques has been interpolated. The learned counsel further stated that a bare look at the receipt would show that it is forgery committed by the complainant. The learned counsel for the petitioner also averred that the dispute even if taken on its face value is of civil nature and no offence whatsoever is made out. The FIR is being abused by the complainant to harass the petitioner who is an innocent and has no connection whatsoever with the allegations as mentioned in the FIR. The learned counsel lastly argued that the FIR is liable to be quashed to prevent abuse of the process of law or otherwise to secure the ends of justice. The FIR is being abused by the complainant to harass the petitioner who is an innocent and has no connection whatsoever with the allegations as mentioned in the FIR. The learned counsel lastly argued that the FIR is liable to be quashed to prevent abuse of the process of law or otherwise to secure the ends of justice. The learned counsel in support of its argument placed reliance on Murari Lal Gupta vs. Gopi Singh (2005) 13 SCC 699 , Inder Mohan Goswami and another vs. State of Uttarachal and others (2007) 12 SCC 1 , and Hridya Ranjan Prasad Verma and others vs. State of Bihar and another (2000) 4 SCC 168 . 5. Mr. N.K. Maloo, learned counsel for the complainant and Mr. Peeyush Kumar, learned Public Prosecutor argued that the FIR completely disclosed the commission of offence by the accused petitioner and the accused petitioner cheated the complainant and obtained Rs. 35,00,000 in cash and it was on his advise the cheques were given in the name of Bhanwar Lal and it was only in 2008 the complainant came to know from the revenue record that the transaction made by the petitioner of the land does not belong to him and on the contrary it was the land of Bhanwar Lal, who is father of the accused petitioner. The accused petitioner has gone in adoption to Ganesh Narayan Fagna and there is no connection between the accused petitioner and Bhanwar Lal. The FIR completely disclosed that the accused petitioner not only cheated the complainant but to Bhanwar Lal also. The FIR was rightly registered against him. The learned Public Prosecutor argued that the money taken by the accused petitioner from the complainant has to be recovered by the investigating agency from the accused petitioner. The accused petitioner gave receipt of Rs. 35,00,000 and cheques of Rs. 25,00,000/- to the complainant which is Ex. 5 enclosed with this miscellaneous petition. Thus it is a clear case of cheating the complainant and Bhanwar Lal. The anticipatory bail application filed before the Sessions Judge was rejected and now the petitioner has filed this misc. petition for getting the FIR quashed. The matter has to be investigated and without investigation in the matter, the truth cannot be found out. Thus it is a clear case of cheating the complainant and Bhanwar Lal. The anticipatory bail application filed before the Sessions Judge was rejected and now the petitioner has filed this misc. petition for getting the FIR quashed. The matter has to be investigated and without investigation in the matter, the truth cannot be found out. In these circumstances the learned counsel for the complainant and the Public Prosecutor argued that the petition filed by the accused petitioner is an abuse of process of law. Both the counsel argued that the petition filed by the petitioner is liable to be rejected. The learned counsel for the complainant and the learned Public Prosecutor in support of their arguments placed reliance on State of Haryana and others vs. Bhajan Lal and others (1992 Supp (1) SCC 335 and State of Karnataka and another vs. Pastor P. Raju ( AIR 2006 SC 2825 = RLW 2007(1) SC 200). 6. Before proceeding further it would be necessary to have a look at the provisions of Section 482 Cr.P.C., which reads as under: 482. Saving of inherent powers of High Court. 482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is also necessary to have a look at the principles enunciated by the Apex Court in State of Harayana and others vs. Bhajan Lal and others, which are as under: (a) 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; (b) 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; (c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused; (d) 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 order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd 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; (f) 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; (g) 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. [305 -H; 306A-E] 7. In State of Karnataka and another vs. Pastor P. Raju, the Apex Court in para 11 observed as under: 11. There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the incharge of the police station concerned to the Magistrate empowered to take cognizance of the offence. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India vs. Prakash P. Hinduja & Anr. (2003) 6 SCC 195 , where after referring to King Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18, H.N. Rishbud & Inder Singh vs. The State of Delhi AIR 1955 SC 196 , State of West Bengal vs. SN Basak AIR 1963 SC 447 , Abhinandan Jha & Ors. vs. Dinesh Mishra AIR 1968 SC 117 and State of Bihar & anr. vs. JAC Saldanha & Ors. (1980) 1 SCC 554 , it was observed as under in para 20 of the reports:- "20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency." This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the investigation stage. 8. 8. I have gone through the FIR, particularly receipt Annexure-5 enclosed with the petition and the arguments submitted by both the parties and cases relied upon by them and the principles enunciated above in the cases of State of Haryana and others vs. Bhajan Lal and others (supra) and State of Karnataka and another vs. Pastor P. Raju (supra), in my considered opinion at this stage in the instant case, the allegations made in the FIR, do clearly constitute a cognizable offence and this case does not call for the exercise of inherent powers of this Court under Section 482 Cr.P.C. to quash the FIR itself. The case is still under investigation and the police is in the process of collecting evidence. The investigation is necessary and the same cannot be stopped at this stage in a proceedings under Section 482 Cr.P.C. 9. In view of the above I pass the following order: (1) The misc. petition filed by the accused petitioner is rejected. The interim order dated 11.11.2009 passed by this court is vacated. (2) The copy of this order may be sent to the Director General of Police of Rajasthan for strict compliance in such matters. In Rajasthan cases of sale of land by the persons without having any land and sale of land by mafia groups are increasing day by day. The police personnel of the concerned Police Stations be asked to investigate such matters in a speedy manner by a specially constituted monitoring team of specialised persons in such investigations. Compliance report about this may be informed to this court or to the Registry of this Court about the action taken in the matters.