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2013 DIGILAW 288 (PNJ)

S. P. Singh v. Govt. of Haryana

2013-03-04

MEHINDER SINGH SULLAR

body2013
JUDGMENT Mr. Mehinder Singh Sullar, J.: (Oral) - The matrix of the facts and material, culminating in the commencement, relevant for deciding the instant petition and emanating from the record, is that one Lakshmi and her husband Vivek Kumar, were joint owners and in possession of flat, bearing No.1005, Block-J, 10th Floor in Wemblay Estate, Resewood City, Gurgaon. Due to some strained matrimonial relations, Lakshmi has lodged a criminal case against her husband and his relatives, vide FIR No.930 dated 13.10.2008, for the commission of offences punishable u/ss 498-A, 323, 504 and 506 IPC in Police Station Siyani Gate, Ghaziabad. She has also filed a civil suit and criminal complaint against her father-in-law (complainant) and his brother. Lakshmi and her father were stated to have mala fide intention to grab the flat in question. 2. The prosecution claimed that the petitioners-accused hatched a criminal conspiracy, prepared a fake & forged general power of attorney (Annexure P2) and fraudulently got transferred the disputed flat in their name, by virtue of sale deed dated 8.4.2010 (Annexure P4), in order to cheat the owner and used the forged documents as genuine. The case of the prosecution (in the FIR Annexure P1) further proceeds as under: “During this period the said Lakshmi and his family members have no relations with my son and with us. The said daughter in law and her father had the mala fide intentions from very beginning to grab the said property. (4) That it came into my knowledge since the last week that some persons have forged the documents of the said flat and have planted some wrong persons and falsely got the registry executed in the office of the Sub-Registrar, Gurgaon on 08/04/2010 in the name of said S.P.Singh and Smt.Veena Singh. At that time, my son was in London which can be verified. My son never appeared before the office and never got the registry executed and not received any amount and there is no photograph affixed on of my son on the said registry. The accused persons have forged the identity card and impersonified somebody else as my son and got the registry executed in order to enrich them and cause loss to my son. The accused persons have forged the identity card and impersonified somebody else as my son and got the registry executed in order to enrich them and cause loss to my son. After receiving the copy of the said registry we came to know that a forged General Power of Attorney in the name of my son was got registered by said Lakshmi in Noida of which neither my son nor we were aware. All these conspiracy was hatched by the said Lakshmi, her father Baljeet Singh and S.P.Singh in connivance with Veena Singh, D.P.Singh, Karan Singh, Advocate and also the officers of the Sub- Registrar and other persons who all in criminal conspiracy got the registry executed in order to make loss to my son. The said registry got executed by fraud cheating illegally which is prima facie illegal. The cheques shown in the sale deed were not received by my son and not ever used. Besides this the home loan for the said flat is in the name of my son who is still paying the instalments during this period no registry can be affected.” 3. Leveling a variety of allegations and narrating the sequence of events in detail, in all, according to the complainant that petitioners along with their other co-accused hatched a criminal conspiracy, prepared a fake power of attorney (Annexure P2) and fraudulently got transferred the flat in dispute in their name, by way of sale deed (Annexure P4), in order to cheat the owner and used the forged documents as genuine. During the course of investigation, it was revealed that the petitioners and their other co-accused have also prepared a false PAN card (Annexure P6), other documents, opened a fake account and deposited the amount in the account of the owner, which they have subsequently withdrawn in order to cheat him. In the background of these allegations and in the wake of complaint of complainant Rajender Parsad son of Sukhdev (for brevity “the complainant”), a criminal case was registered against the petitionersaccused and their other co-accused, vide FIR No.355 dated 1.7.2010 (Annexure P1), on accusation of having committed the offences punishable u/ss 419, 420, 467, 468, 471 and 120-B IPC by the police of Police Station City, Gurgaon in the manner depicted here-in-above. 4. 4. Aggrieved thereby, petitioners S.P.Singh, his wife Veena Singh and D.P.Singh son of L.B.Singh have now preferred the present petition to quash the impugned FIR (Annexure P1), invoking the provisions of section 482 Cr.PC, inter-alia, pleading that they were bona fide purchasers and purchased the flat in question at the instance of Devender Kumar, property dealer. They raised the bank loan and purchased it, vide sale deed (Annexure P4). The dispute was stated to be purely of a civil nature and civil suit filed by them is still pending. It was alleged that petitioners have been falsely implicated by the complainant in the instant case. On the strength of aforesaid grounds, the petitioners sought to quash the impugned FIR (Annexure P1) and all other consequent proceedings arising thereto in the manner described hereinbefore. 5. The respondents refuted the prayer of the petitioners and filed their respective separate replies, taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioners. According to the respondents that during the course of investigation, the incriminating evidence has surfaced against the petitioners and as such, non-bailable warrants were issued against them by the Chief Judicial Magistrate. They are avoiding arrest and warrants could not be executed as yet. It was pleaded as under:- “Initially the investigation the case was carried out by S.I. Hukam Singh, Police Station Gurgaon. During investigation, one accused Jitender, who introduced the some person as Vivek in the Indus IND Bank, Lajpat Nagar, New Delhi for opening an account in the said bank, was arrested on 13.09.2010. It is also mentioned that as per record collected from the Indus Bank an amount of Rs.29,08,996 was deposited in the said account of forged Vivek Kumar account no.014BY31180001 Indus Bank on 03.04.2010 through cheque no.224575 and later on an amount of Rs.28,00,000 was got transferred in the account of accused/petitioner S.P.Singh in the account no.30958509027 through cheque no.892506 dated 12.04.2010 which shows the conspiracy between the accused/petitioner and other remaining accused. The said S.I. Hukam Singh also arrested the accused Karan Singh on 16.09.2010 as the accused Karan Singh had identified the person who stood as Vivek before the Sub Registrar, Gurgaon. Now the investigation of the case is being carried out by the Economic Offence Wing.” 6. The said S.I. Hukam Singh also arrested the accused Karan Singh on 16.09.2010 as the accused Karan Singh had identified the person who stood as Vivek before the Sub Registrar, Gurgaon. Now the investigation of the case is being carried out by the Economic Offence Wing.” 6. Instead of reproducing the entire contents of the replies and in order to avoid repetition, suffice it to say that the respondents have reiterated the allegations contained in the FIR (Annexure P1). However, it will not be out of place to mention here that they have stoutly denied all other allegations contained in the main petition and prayed for its dismissal. 7. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, there is no merit in the present petition in this context. 8. At the very outset, what cannot possibly be disputed here is that the Hon’ble Apex Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka, [2008(2) Law Herald (SC) 942] : 2008(2) R.C.R.(Criminal) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:- (i) 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. (ii) 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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. (iii) 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. (iv) Where, the allegations in the F.I.R. 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 S.155(2) of the Code. (iv) Where, the allegations in the F.I.R. 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 S.155(2) of the Code. (v) 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. (vi) 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. (vii) 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.” 9. Not only that, again the Hon’ble Supreme Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr., [2010(5) Law Herald (SC) 2972] : 2010(3) R.C.R.(Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:- “16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.” 10. Ex facie the arguments of learned counsel that the petitioners were bona fide purchasers and since there is no (sufficient) legal evidence on record against them, so, they have been falsely implicated in the instant case by the complainant, are not only devoid of merit but misplaced as well. 11. As is evident from the record, that prosecution claimed that petitioners and their other co-accused hatched a criminal conspiracy, prepared false power of attorney (Annexure P2), fake documents, executed the forged sale deed by impersonation, committed forgery for the purpose of cheating and used the forged documents as genuine. That means, there are direct allegations of forgery & cheating and the mere fact that the petitioners have filed a civil suit would not exonerate them from the commission of heinous offences, as contrary urged on their behalf. 12. Meaning thereby, if the nature of accusation of criminal conspiracy, cheating, forgery, material evidence, legal position and totality of the facts and circumstances of the case, as discussed here-inabove, are put together, then, to me, the conclusion is inescapable that there is an ample evidence on record against the petitioners in this relevant connection. 13. Therefore, it cannot possibly be saith that the FIR (Annexure P1) deserves to be quashed at this initial stage for want of evidence. As to whether the petitioners were bona fide purchasers, or they have prepared the indicated false documents, as claimed by the prosecution or they have been falsely implicated by the complainant, as pleaded by them (petitioners) or sufficiency of evidence or otherwise and other submissions, relatable to the appreciation of evidence (as now sought to be urged on their behalf), would be the moot points to be decided during the course of trial by the trial Court. Such intricate questions cannot legally be decided by this Court at this initial stage in the absence of evidence on record. Such intricate questions cannot legally be decided by this Court at this initial stage in the absence of evidence on record. If all such points, which require determination by the trial Court, are to be decided by this Court in the garb of petition under section 482 Cr.PC, then, the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as contemplated under the Code of Criminal Procedure, which is not legally permissible. 14. Moreover, it is now well settled principle of law that the High Court should not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained, are the functions of the trial Judge to do so. The High Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Reliance in this connection can be placed upon the judgment of Hon’ble Supreme Court in case U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and another, [2009(1) Law Herald (SC) 563] : (2009) 2 SCC 147. 15. Therefore, the Bench mark set out in the aforesaid judgments and essential ingredients for quashing the impugned FIR (Annexure P1) at this initial stage are totally lacking in this case. Hence, the contrary arguments of learned counsel for petitioners “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances as the ratio of law laid down in the aforementioned judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed in the obtaining circumstances of the case. 18. 17. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed in the obtaining circumstances of the case. 18. Needless to mention that nothing observed, here-in-above, would reflect, on the merits of the main case, in any manner, during the course of trial, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant connection.