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Jharkhand High Court · body

2014 DIGILAW 226 (JHR)

Hari Prasad v. State of Jharkhand

2014-02-10

R.R.PRASAD

body2014
Order This application has been filed for quashing of the FIR of Sidhgora P.S. case no.128 of 2013 registered under Sections 467, 468, 471, 420, 406/34 of the Indian Penal Code. 2. According to Mr. Sahani, learned counsel appearing for the petitioners, one FIR bearing Sidhgora P.S. case no.207 of 2010 had been instituted against the petitioners earlier under Sections 406, 420 and 120(B) of the Indian Penal Code. In that case, the allegations which had been made by the opposite party no.2 against the petitioners were that the complainant-opposite party no.2 having constructed a commercial building in the name of Bifia Complex sold 1800 sq.ft each of the ground floor, 1st floor and 2nd floor of the aforesaid complex to the petitioner no.1 at the cost of Rs.90 lakhs, whereas 1870 sq.ft each of the 1st floor and 2nd floor of the building was sold to the petitioner no.2 at the cost of Rs.50 lakhs and both of them paid those amounts. 3. Further case was that shops situated at the basement measuring 497 sq.ft and 280 sq.ft as also constructed portion measuring 447 sq. ft. of the ground floor was sold to the petitioner no.3 for a consideration of Rs.36,53,149/-as against that only a sum of Rs.13,80,000/- was paid in advance. 4. Further case of the complainant was that the accused persons had asked the complainant to do certain extra works for which they are ready to bear the cost of it. Accordingly, the work worth Rs.1,97,70,271/-which the accused persons wanted to do, was done but as against that, they paid only a sum of Rs.1,67,50,800/-and as such, a sum of Rs.30,19,471/- remained to be paid. 5. It had further been alleged that the complainant as per the wishes of the accused persons sold 3670 sq.ft of the constructed portion and 2000 sq.ft. of the basement to them for a sum of Rs.1,09,25,000/-on promise being made that the payment would be made as soon as the bank advances loan to them and they started running nursing home in the building but did not pay the amount which was due to be paid to the complainant and ultimately, refused to make payment to the complainant. 6. That FIR was challenged to be bad before this Court in Cr.M.P.No.743 of 2011. 7. 6. That FIR was challenged to be bad before this Court in Cr.M.P.No.743 of 2011. 7. The submission which had been advanced on behalf of the petitioners was that accepting the entire allegation taken to be true, no offence is made out against the petitioners as they had never been alleged to have induced the complainant fraudulently and dishonestly to sell the building of the complex nor from the allegation made in the complaint, it can be inferred that the petitioners had had fraudulent or dishonest intention at the time of making promise. 8. Opposite party no.2 had contested the case wherein arguments were advanced that not only the offence of cheating and criminal breach of trust is made out, rather the offence of forgery also gets attracted as during investigation, some facts have been collected by the investigating agency showing commission of the offence of forgery. After taking into account the rival submissions, the court did not find case being made out of criminal breach of trust. With respect to submission relating to offence of forgery, it was observed by the court that the Superintendent of Police has directed for lodging a fresh FIR against the petitioners but on the day when the case was disposed of, FIR had never been lodged and therefore, taking the case to be a case of criminal breach of trust and cheating, it was set aside. 9. Subsequent to that, a FIR has been lodged alleging therein that the petitioners in course of investigation of the FIR which was quashed has taken the plea that these petitioners themselves had constructed certain parts of the building. In support of that claim, certain documents were produced before the Investigating Officer of that case. The said documents itself depict that offence of forgery has been committed. On such allegation, a case was registered as Sidhgora P.S. case no.128 of 2013 under Sections 467, 468, 471, 420, 406/34 of the Indian Penal Code. That FIR has also been challenged on behalf of the petitioners to be bad. 10. Mr. The said documents itself depict that offence of forgery has been committed. On such allegation, a case was registered as Sidhgora P.S. case no.128 of 2013 under Sections 467, 468, 471, 420, 406/34 of the Indian Penal Code. That FIR has also been challenged on behalf of the petitioners to be bad. 10. Mr. Sahani, learned counsel appearing for the petitioners submits that in spite of the FIR which was instituted under Sections 406 and 420 of the Indian Penal Code on the allegations which are also there in this case, being quashed, the police has again registered a case under Sections 420 and 406/34 of the Indian Penal Code besides the offence under Sections 467, 468, 471 of the Indian Penal Code and thereby on this ground alone, the FIR is fit to be quashed. 11. Further it was submitted by Mr. Sahani learned counsel appearing for the petitioners that certain documents which are transportation voucher are said to have been produced before the Investigating Officer by the petitioners but the petitioners are not the makers of those documents, rather those transportation vouchers had been supplied by Ajay Singh. Nine documents showing carriage of building materials by the vehicle number of which have been given were produced. Out of that, one document shows the number of vehicle which was found to be of Scooty and therefore, the documents have been taken to be forged but admittedly the petitioners are not the maker of those documents and as such, they cannot be prosecuted for an offence of forgery and thereby the FIR is also fit to be quashed. 12. As against this, learned counsel appearing for the opposite party no.2 submits that those documents which are said to be the forged documents are parts of the FIR. One of such documents issued on 6.9.2009 certifies that goods were transported subsequent to that date, i.e, 9.9.2009, 1.10.2009, 10.10.2009, 18.10.2009 and 30.10.2009 which fact itself demonstrates about the factum of forgery and it is true that those documents have been issued by one Ajay Singh, General Order Supplier but admittedly those documents have been used by the petitioners and thereby offence of forgery is made out. 13. 13. It was further submitted that while lodging FIR, no allegation has been made with respect to commission of offence of cheating and criminal breach of trust but the police has instituted the case under those offences and therefore, the police in course of investigation may rectify its mistake. 14. Thus, upon hearing learned counsel appearing for the parties, it does appear that though the documents which are said to have been issued by Ajay Singh, General Order Supplier claim has been put in by the petitioners of transporting building materials for making construction. Among them, one of documents shows showing carriage of building materials bears the number of vehicle which was found as that of Scooty. 15. In such situation, the FIR never warrants to be quashed. Accordingly, this application stands dismissed. 16. Notwithstanding the fact that this application got dismissed, the petitioners would be at liberty to raise the issue which would be available at an appropriate stage. Application dismissed.