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Allahabad High Court · body

2017 DIGILAW 279 (ALL)

ATUL SHARMA v. STATE OF U. P.

2017-01-20

AJAI LAMBA, VIJAY LAXMI

body2017
JUDGMENT By the Court.—Hon’ble Justice Deepak Misra speaking for the Bench vide judgment dated 6.1.2017 rendered by Hon’ble Supreme Court of India in Ajay Singh and another and etc. v. State of Chattisgarh and another, [Criminal Appeal Nos. 32-33 of 2017 [S.L.P. (Crl.) Nos. 7694-7695 of 2016 dated 6.1.2017] has observed in the following words: “Performance of judicial duty in the manner prescribed by law is fundamental to the concept of rule of law in a democratic State. It has been quite often said and, rightly so, that the judiciary is the protector and preserver of rule of law. Effective functioning of the said sacrosanct duty has been entrusted to the judiciary and that entrustment expects the Courts to conduct the judicial proceeding with dignity, objectivity and rationality and finally determine the same in accordance with law. Errors are bound to occur but there cannot be deliberate peccability which can never be countenanced. The plinth of justice dispensation system is founded on the faith, trust and confidence of the people and nothing can be allowed to contaminate and corrode the same.” 2. The above noted observations would have significance, relevance and applicability to the case in hand also. Rather the observations would be relevant for the process of adjudicating and judging any matter. 3. Atul Sharma, the accused, has filed this petition for issuance of a writ in the nature of certiorari quashing First Information Report registered in context of Case Crime No. 0679 of 2016 dated 9.6.2016 Police Station Gomti Nagar, District Lucknow under Section 138 Negotiable Instruments Act, Sections 420, 467 and 471 Indian Penal Code. 4. Respondent No. 4, Satanjay Verma son of Sri P.C. Verma is the complainant of the First Information Report. Gist of the allegations made in the impugned First Information Report are required to be noticed, before considering the issues that have been raised before this Court. 5. The allegation in the impugned First Information Report, made by respondent No. 4 Satanjay Verma, the complainant, is to the effect that he met Atul Sharma, the petitioner about two years back in Nainital. Atul Sharma projected that he is owner of a number of hotels. Confidence of the complainant was won. The complainant was told that the petitioner wanted to expand his business of hoteliering and for the purpose, needed Rs. 1.5 crores. The complainant was told that in case Rs. Atul Sharma projected that he is owner of a number of hotels. Confidence of the complainant was won. The complainant was told that the petitioner wanted to expand his business of hoteliering and for the purpose, needed Rs. 1.5 crores. The complainant was told that in case Rs. 1.5 crores is given on loan at the rate of 14% interest, the business would improve. The loan amount would be returned. 6. The respondent complainant has further alleged that he believed the petitioner whereupon he gave Rs. 1,18,00,000/- on annual interest of 14% after making arrangements from Hemant Dwivedi. It has been alleged that Atul Sharma, the petitioner gave four cheques in the sum of Rs. 25 lacs each and one cheque in the sum of Rs. 18 lacs, post dated. Details of cheques and bank account number of the petitioner have been given in the impugned First Information Report. It has further been alleged that the petitioner promised to pay interest in the sum of Rs. 14,52,000/- with the last instalment. 7. It has been stated in the impugned First Information Report that cheques were deposited in the bank. The cheques were not honoured/encashed for insufficient fund. It has been alleged that even earlier, the petitioner had sent Rs. 60/62 lacs through NEFT/RTGS. Atul Sharma still owes Rs. 52/14 lacs. The petitioner also owes Rs. 14,52,000/- as interest on Rs. 1,18,00,000/- at the rate of 14%. In regard to dishonour of cheques, the complainant spoke to Atul Sharma who started tactics of dilly dallying in regard to repayment on the mobile of father of the complainant (Shri P.C. Verma). The message is saved on the mobile phone of father of the complainant. The complainant has come to know from his own sources that the petitioner does not have any bank account in Nainital (Ram Nagar), in which sufficient money is available. The petitioner has been inducing people in the same manner and has been cheating them in regard to his account in Oriental Bank of Commerce, Nanda Lines, Ram Nagar Branch. Cheques issued from the said bank, however, are dishonoured. The complainant has been induced through sweet talk for the purpose of cheating in giving to the accused Rs. 1,18,00,000/-. Consequently, it has been alleged that offence under Sections 420, 467, 471 I.P.C. and Section 138 Negotiable Instrument Act has been committed. Case be registered and investigation be undertaken. 8. Cheques issued from the said bank, however, are dishonoured. The complainant has been induced through sweet talk for the purpose of cheating in giving to the accused Rs. 1,18,00,000/-. Consequently, it has been alleged that offence under Sections 420, 467, 471 I.P.C. and Section 138 Negotiable Instrument Act has been committed. Case be registered and investigation be undertaken. 8. Per Contra, the case set up by the petitioner Atul Sharma by way of this petition is to the fact that the petitioner has been implicated on the basis of false and concocted story. The story set up in the impugned First Information Report to the effect that one Hemant Dwivedi made arrangements for Rs. 1.18 Crores to be given to the petitioner/accused is false. The transaction details, viz. date, place, mode of payment by the complainant/respondent No. 4 to the petitioner has not been given in the impugned First Information Report which shows that no such transaction has taken place. It has not been disclosed that money taken by respondent No. 4/complainant from Hemant Dwivedi for the petitioner was later on returned by respondent No. 4/complainant to Hemant Dwivedi. 9. It has further been said in the petition that in case money was paid by Hemant Dwivedi to the petitioner, Hemant Dwivedi would be the aggrieved person and the petitioner would be required to return the money to Hemant Dwivedi. Wrongful loss would have been caused to Hemant Dwivedi. In such circumstances, respondent No. 4 Satyanjay Verma would have no cause to register the impugned First Information Report. 10. In para 11 of the petition it has been alleged that father of respondent No. 4/complainant Justice P.C.Verma, is a retired Judge of Allahabad High Court. Respondent No. 4/complainant being close acquaintance of the petitioner sought financial help for expansion of his dairy business. Respondent No. 4/complainant told the petitioner that he did not have sufficient money for expansion of his business, therefore, financial assistance be provided by the petitioner. 11. In paras 12 and 13 of the petition it has been stated that petitioner in good faith in the month of August 2015, issued cheques to respondent No. 4/complainant. Respondent No. 4/complainant was asked to present/encash the cheques only when the petitioner informed him about availability of funds. 11. In paras 12 and 13 of the petition it has been stated that petitioner in good faith in the month of August 2015, issued cheques to respondent No. 4/complainant. Respondent No. 4/complainant was asked to present/encash the cheques only when the petitioner informed him about availability of funds. Respondent No. 4/complainant was however, in immediate need of money and therefore, requested the petitioner to deposit even small amount directly in his account or in the account of his firm. Respondent No. 4/complainant assured the petitioner that he would return the cheques, whenever they meet. 12. It has been pleaded in the petition that the petitioner did not develop any suspicion because he had high regard for father of respondent No. 4/complainant. 13. The petitioner on request of respondent No. 4/complainant started depositing money in the account of respondent No. 4/complainant and his firm, as and when money was available. Chart indicating transactions between the petitioner and respondent No. 4/complainant has been appended with the petition as Annexure-2. It has been stated in the petition that subsequently, pressure was mounted by the respondent No. 4/complainant to give more money. The petitioner was unable to provide any more funds and appraised respondent No. 4 that respondent No. 4 had requested for loan and not vice versa. Under the circumstances, respondent No. 4/complainant got annoyed and threatened the petitioner with dire consequences. Respondent No. 4/complainant presented the three cheques issued by the petitioner, which were dishonoured and consequently the petitioner has been implicated in the impugned First Information Report. 14. In para 21 of the petition it has been pleaded by the petitioner that the petitioner has always been taking loans from bank, never from private individuals. 15. In para 23 of the petition it has been specifically pleaded that respondent No. 4/complainant has been using the influence of his father Justice P.C. Verma (since retired) for creating pressure on the basis of impugned First Information Report, on the petitioner to pay more money. 16. In para 24 of the petition it has been stated that till registration of the First Information Report a sum of Rs. 68,14,000/- has been received by respondent No. 4/complainant. Even if the amount of three dishonoured cheques is set off, no offence has been committed by the petitioner. The First Information Report has been lodged with ulterior motives. 17. In para 24 of the petition it has been stated that till registration of the First Information Report a sum of Rs. 68,14,000/- has been received by respondent No. 4/complainant. Even if the amount of three dishonoured cheques is set off, no offence has been committed by the petitioner. The First Information Report has been lodged with ulterior motives. 17. It has been pleaded that by registration of impugned First Information Report respondent No. 4/complainant has laid a trap so that the money paid by the petitioner cannot be claimed back by the petitioner. 18. In para 26 of the petition, it has been stated that on the one hand impugned First Information Report has been registered and on the other hand, respondent No. 4/complainant requested for financial help from the petitioner. The petitioner in good faith, however, without having any knowledge of the impugned First Information Report deposited a sum of Rs. 2,00,000 in the account of respondent No. 4/complainant on 21.6.2016. 19. It has been pleaded in paras 27 and 28 of the petition that respondent No. 4/complainant is an influential person and even though no cause of action has arisen in Lucknow, impugned criminal proceedings have been initiated in Lucknow and investigation has been commenced. 20. It has been asserted in the Writ Petition that in context of Section 138 Negotiable Instruments Act crime could not have been registered. Admittedly no document has been forged or fabricated, yet the petitioner has been implicated under Sections 420, 467, 471 Indian Penal Code. 21. We have heard learned counsel for the parties namely Ms. Madhumita Bose, Advocate for the petitioner, Dr. L. P. Mishra, Advocate for Respondent No. 4, Sri R.K. Dwivedi, Advocate for the Investigating agency/State and Sri Sidharth Dhaon, Advocate for The Income Tax Department. 22. Counter-affidavit has not been filed on behalf of Respondent No. 4, or the State. 23. Sri Sidharth Dhaon, Advocate has filed affidavit of Shri Shafiq Rahman Malik, Principal Director (Investigation), Department of Income Tax, Lucknow alongwith documents and enquiry report in Court which is taken on record. A copy of the affidavit and all accompanying documents have been given to learned counsel for the petitioner, learned counsel for the State and learned counsel for Respondent No. 4. Even earlier affidavit, with certain documents, dated 17.12.2016 was filed on behalf of the income tax authorities which is available on record. 24. A copy of the affidavit and all accompanying documents have been given to learned counsel for the petitioner, learned counsel for the State and learned counsel for Respondent No. 4. Even earlier affidavit, with certain documents, dated 17.12.2016 was filed on behalf of the income tax authorities which is available on record. 24. Learned Counsel for the petitioner has argued that the documents placed on record with the petition, and supplementary-affidavit establish that it is the petitioner who gave money to Respondent No. 4 through bank transfers. Offence, as alleged has not been committed. Respondent No. 4 through his influence got the crime registered in abuse of the process of law. Under influence, fair investigation is not being conducted. The documents of the petitioner are not being considered. The documents clearly disprove the allegations made in the impugned First Information Report. The case is covered by judgement rendered by Hon’ble Supreme Court of India in Rajiv Thappar and others v. Madan Lal Kapoor, (2013) 3 SCC 330 . The complainant has no material whatsoever to establish that any money was given to the petitioner and offence has been committed. 25. Learned counsel for Respondent No. 4 has argued that the very fact that the petitioner issued the cheques in favour of his client, which have been dishonoured, shows that the offence has been committed. It has been argued that there is no ground to quash the impugned proceedings. Learned counsel has opposed the involvement of the Income Tax authorities in the process of adjudication. 26. The State counsel has not drawn attention of the Court towards any material to show that investigation has been conducted. 27. Sri Sidharth Dhaon has highlighted the result of the enquiry conducted in deference of orders of this Court. Sri Sidharth Dhaon has further informed the Court that the petitioner is not an income tax assesee in Lucknow. He, however, has assured the Court that the relevant authorities shall forthwith respond to the queries of the Investigating Officer as and when called upon. The petitioner and the other persons associated with the alleged transaction have been questioned by the income tax authorities. The relevant material has been filed with the application/affidavits. 28. Before we proceed further, we would like to consider as to what is ‘investigation’. 29. The petitioner and the other persons associated with the alleged transaction have been questioned by the income tax authorities. The relevant material has been filed with the application/affidavits. 28. Before we proceed further, we would like to consider as to what is ‘investigation’. 29. “Investigation” is a term defined under Section 2(h) CrPC in the following terms : “2(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;” 30. The dictionary meaning of investigation as per The New Lexicon Webster’s Dictionary of the English Language is “an examination for the purpose of discovering information about something”. 31. As per Oxford Advanced Learner’s Dictionary of Current English, investigation is “an official examination of the facts about a situation, crime, etc”. 32. “Investigate” has been defined in Oxford Dictionary (supra) as, “to carefully examine the facts of a situation, an event, a crime etc. to find out the truth about it or how it happened.” 33. “Offence” has been defined under Section 2(n) of the CrPC in the following terms: “(n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871 (1 of 1871);” 34. Having taken note of the definition of ‘Investigation’, ‘Investigate’ and ‘Offence’, it would be relevant to consider as to what is investigation, and scope of investigation. 35. Investigation, in substance, means collection of evidence relating to the commission of the offence. The Investigating Officer is, for this purpose, entitled to question persons who, in this opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned by him to writing. He is also entitled to search the place of the offence and to search other places with the object of seizing articles connected with the offence. No doubt, for this purpose he has to proceed to the spot where the offence was committed and do various other things. He is also entitled to search the place of the offence and to search other places with the object of seizing articles connected with the offence. No doubt, for this purpose he has to proceed to the spot where the offence was committed and do various other things. But the main object of investigation being to bring home the offence to the offender the essential part of the duties of an investigating officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender. Merely making some preliminary enquiry upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. [State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221 ] 36. What ultimately is the aim or significance of the expression “fair and proper investigation” in criminal jurisprudence? It has a twin purpose ; Firstly, the investigation must be unbiased, honest, just and in accordance with law ; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the Court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the Court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a Court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons.” [Vinay Tyagi v. Irshad Ali @ Deepak and others, (2013) 5 SCC 762 ] 37. From the above, it is evident that objective of ‘investigation’ is ‘to find out the truth’. It is the bounden duty of the investigating officer to find out as to how the incident/transaction/event happened. Investigation is required to be conducted through a scrupulous, unbiased, trustworthy and lawful manner. 38. From the above, it is evident that objective of ‘investigation’ is ‘to find out the truth’. It is the bounden duty of the investigating officer to find out as to how the incident/transaction/event happened. Investigation is required to be conducted through a scrupulous, unbiased, trustworthy and lawful manner. 38. As per the definition of ‘investigation’ referred to above, it becomes evident that the investigation is not confined to looking into or examining only the case brought out by the complainant/informant. Rather, there have been a number of cases wherein a complainant, after committing offence, has gone ahead in registering a crime indicating culpability of others. In case scope of investigation is confined to the examination of the story given by the complainant only, it shall cause manifest injustice, as the very purpose of investigation would be lost and frustrated. It would result in partial and prejudiced investigation resulting in unfair results. 39. From the definition of ‘investigation’ provided under Section 2(h) of Cr.P.C., it is evident that it includes all proceedings for the ‘Collection of evidence’. The provision does not even envisage that only the version given by the complainant/informant is to be inquired or investigated. There might be a situation wherein only the accused might have access to material or evidence relevant for investigation of a crime which would elucidate, clarify and unfold the facts. Surely, investigation in regard to such material would help the investigating agency to come to the right conclusion. Thus, there can be no bar spelt out in law to the accused pointing out the material which is relevant for the investigation of the crime. It would, however, be solely for the investigating agency to draw a conclusion, on completion of investigation. 40. In the pleadings in the petition, as noted above and in the course of arguments, it has been repeatedly stressed that the investigating agency is under tremendous pressure of Justice P.C.Verma (Retired) who is father of respondent No. 4 complainant, and therefore, investigation in relevant aspects is not being conducted. It has been stressed before the Court that fair and proper investigation is not being conducted under influence and pressure. 41. It is the case of the petitioner that the Bank transactions, and the documents filed for Income Tax purposes are conclusive evidence of sound, reasonable and indubitable quality to demonstrate that the petitioner gave loan to respondent No. 4/complainant. It has been stressed before the Court that fair and proper investigation is not being conducted under influence and pressure. 41. It is the case of the petitioner that the Bank transactions, and the documents filed for Income Tax purposes are conclusive evidence of sound, reasonable and indubitable quality to demonstrate that the petitioner gave loan to respondent No. 4/complainant. The petitioner has brought on record of the Court the Provisional Income Tax Return, with accompanying documents, which are appended with supplementary-affidavit, to demonstrate this fact. 42. It has been pleaded on the strength of the documents that the offence has not been committed. In case the documents are considered by the investigating agency, true facts would emerge. However the documents are not being considered because the investigation is tainted and one sided. It has been pointed out that respondent No. 4 has not brought any material on record, which can be translated into legal evidence to show that he gave loan to the petitioner or arranged money from Shri Hemant Dwivedi or any other person to be advanced as loan to the petitioner. No such material being available on record, evidently, the case set up by the complainant in the impugned F.I.R. is false so as to pressurize the petitioner to pay more money. 43. The case of the petitioner is that the impugned proceedings have been initiated in abuse of process of the law and process of the Court. The evidence produced by the petitioner is such that it disproves the allegations made in the impugned F.I.R., which be quashed so as to avoid miscarriage of justice. In this regard judgement of the Hon’ble Supreme Court of India rendered in the case of Rajiv Thapar and others v. Madan Lal Kapoor, (2013) 3 SCC 330 , has been invoked. 44. Although, notice was issued by the Court on 19.8.2016, yet no response has been filed on behalf of the investigating agency. The Court has not been informed about any progress in the investigation. 45. The investigator was required to investigate whether the petitioner/accused had taken loan from the complainant/Respondent No. 4, and had not repaid, thereby committing offence? The investigator was also required to investigate whether the complainant had the resources to pay to the accused the loan amount and whether money was given on loan to the petitioner? 45. The investigator was required to investigate whether the petitioner/accused had taken loan from the complainant/Respondent No. 4, and had not repaid, thereby committing offence? The investigator was also required to investigate whether the complainant had the resources to pay to the accused the loan amount and whether money was given on loan to the petitioner? The needful has not been done by the investigating officer. The averments made in the petition were required to be considered and investigated. Even this has not been done. 46. Respondent No. 4/complainant has not brought any material on record to show that he made arrangement of money from Hemant Dwivedi or some other person to be advanced as loan to the petitioner. The allegations made in the petition, have not been denied. It has not been shown to the Court that Hemant Dwivedi, or any other person, had sufficient funds, and loan indeed had been given to the petitioner, as alleged in the impugned F.I.R. 47. This Court faced with counter claims, and no investigation in the matter, as noted above, in the interest of fair and effective investigation thought it just and proper to ask the Income Tax authorities to give assistance to the writ Court, and in the investigation process. This is particularly so because the case set up by the petitioner is that in his Books of Accounts furnished with the Income Tax authorities, the loan advanced to the complainant/Respondent No. 4 has been duly reflected. 48. Another factor for involving the Income Tax authorities is that respondent No. 4 through the F.I.R. claims that he advanced loan in excess of Rs. 1 Crore to the petitioner. Surely, such a person is bound by law to reflect such transaction under the Income Tax laws. If not the respondent No. 4, the person who had arranged money to give loan, namely Hemant Dwivedi, could demonstrate that he had the money available, which indeed was given to the petitioner accused. A person who claims to have given loan in access of Rupees one crore is presumed to be an Income Tax Assessee. It is under these peculiar facts and circumstances that this Court thought it prudent to seek assistance from the Income Tax authorities in the process of investigation. 49. A person who claims to have given loan in access of Rupees one crore is presumed to be an Income Tax Assessee. It is under these peculiar facts and circumstances that this Court thought it prudent to seek assistance from the Income Tax authorities in the process of investigation. 49. Since investigation is required to be in context of an incident or transaction, so as to unravel the truth, effective investigation is possible only if relevant inputs are given, by the authorities concerned also. In the matters of transaction of money by an income tax assessee, surely the role of Income Tax Department cannot be divorced from the alleged transaction in context of which the crime has been registered. 50. The Investigating agency and the Courts may not be competent to make reasoned and principled decisions on unfamiliar and complex issues. If investigation is required in context of revenue record, surely the investigating officer cannot be expected to have proficiency in such matters. Aid and assistance from the revenue authorities can be taken for taking in possession the relevant revenue record/entries and for understanding the complexities of adjudication on the revenue side. Likewise, if a matter involves complex science rich issues, surely reference to relevant department/body having expertise in that field would not be out of place, in the interest of fair and effective investigation. In cases where complex medical issues are involved, Board of Doctors is constituted for giving opinion so that the investigating agency is given due assistance and effective and proper investigation can be conducted. It is in the scheme of things, so as to unravel all the facts through fair investigation, the Court thought it appropriate to direct the Income Tax authorities to give assistance to the writ Court, in the process of investigation. 51. As noted above, there is an allegation against respondent No. 4 of influencing the investigating agency, so as to pressurise the petitioner/accused to give money to the complainant. So as to preserve the rule of law and so as to maintain the faith, trust and confidence of the people, this Court involved the Income Tax Authorities to enquire into the matter. Bias cannot even be alleged against the income tax authorities. The objection of learned counsel for respondent No. 4 to the effect that Income Tax authorities could not have been involved in the process, is without any logical bearing. Bias cannot even be alleged against the income tax authorities. The objection of learned counsel for respondent No. 4 to the effect that Income Tax authorities could not have been involved in the process, is without any logical bearing. Learned counsel has not drawn attention of the Court towards any legal bar on the part of the writ Court or the investigating agency from getting assistance and aid from the Income Tax authorities. Under the circumstances, the objection of learned counsel being without merit, is rejected. 52. A reference is required to be made to the report filed by Principal Director (Investigation), Department of Income Tax, Lucknow. 53. In the course of proceedings, two affidavits have been filed by Shri Shafiq Rahman Malik, Principal Director (Investigation), Department of Income Tax, Lucknow, one dated 17.12.2016 and the other dated 19.1.2017. Both the affidavits are accompanied by documents and statements recorded in the course of proceedings/inquiry conducted in deference to orders of this Court. 54. Gist of the conclusion is that : (a) Respondent No. 4 Satanjay Verma set up a case that he gave loan in the sum of Rs. 1,18,00,000/- in cash, to the petitioner Atul Sharma, in October, 2012 @ 14% interest. Out of Rs. 1,18,00,000/-, a sum of Rs. 75 lacs were out of his own funds, whereas Rs. 43 lacs were arranged by him from Shri Hemant Dwivedi. The loan was given on mutual understanding and no loan agreement was executed. (b) Shri Satanjay Verma did not know the postal address of Shri Hemant Dwivedi and at the time of questioning, even his contact number was not available. (c) Satanjay Verma, through his Advocate, set up a case that he had received advance money for sale of agricultural land in the sum of Rs. 1 crore in cash on 16.5.2012. Bainama Prapti Raseed dated 16.5.2012 has been filed. It appears that Satanjay Verma filed a copy of agreement to sell to substantiate the plea that he had sold land. An affidavit was also filed in this regard. (d) It appears that the land has been shown as sold to one Shri Anil Pandey. Shri Anil Pandey was joined in the inquiry proceedings. Shri Anil Pandey furnished an agreement to sell without possession dated 3.11.2014. Shri Anil Pandey stated that he had given only Rs. 20 lacs as advance to Shri Satanjay Verma. (d) It appears that the land has been shown as sold to one Shri Anil Pandey. Shri Anil Pandey was joined in the inquiry proceedings. Shri Anil Pandey furnished an agreement to sell without possession dated 3.11.2014. Shri Anil Pandey stated that he had given only Rs. 20 lacs as advance to Shri Satanjay Verma. The agreement submitted by Satanjay Verma was shown to Anil Pandey. Anil Pandey stated that the agreement seems to be fake. Anil Pandey was specifically asked whether he had given Rs. 1 crore as an advance. Anil Pandey responded that the agreement is fake and baseless and the contents are beyond his knowledge. (e) Hemant Dwivedi was also questioned. Statement of Hemant Dwivedi is available on record. Hemant Dwivedi stated that he had made arrangements of money to be given to Satanjay Verma through some other persons. Hemant Dwivedi was questioned as to when the money was returned back. Hemant Dwivedi informed the Income tax authorities that the money was advanced directly by the other persons to Shri Satanjay Verma. 2-3 months thereafter Hemant Dwivedi had inquired from those persons whereupon they informed that Satanjay Verma had returned the amount. Hemant Dwivedi stated that there was no agreement. The transaction was done on a personal level. He had no record available in regard to transactions. (f) The petitioner was also questioned in regard to his case that he had given money on loan to respondent No. 4. Statement of the petitioner was taken which is a part of the record. The petitioner gave details of the bank transactions through which loan was given to respondent No. 4. Because Satanjay Verma did not cooperate with the agencies, the stand of the petitioner could not be substantiated. 55. In answer to Question No. 11 (How do you know Satanjay Verma?), the petitioner responded in the following words : “Ans: 11- Shri P.C. Verma was Senior Judge in Uttarakhand High Court, Nainital in 2008-09. I have a resort name Clifftop Club resort (a unit of my company Ski and Snow Resorts P. Ltd.) in Dist. Chamoli. There was a litigation between the State and my resort which came for hearing before Shri P.C. Verma, who decided in my favour as per law. I started knowing him from that point. Thereafter he started asking me for small favours involving accommodation of his family and friends. Chamoli. There was a litigation between the State and my resort which came for hearing before Shri P.C. Verma, who decided in my favour as per law. I started knowing him from that point. Thereafter he started asking me for small favours involving accommodation of his family and friends. I felt myself obliged but all these favours started taking bigger shapes and ultimately turned into extortions. Upon retirement, he called me up for help and told me that his son Satanjay Verma wants to do some business for which he requires loan from Bank. The Bank was asking Satanjay to declare the source from where he would invest his share capital before availing the loan from bank asked me to give him some post dated cheques on the strength of which he can show the bank that the share capital would be made available by en-cashing these cheques as loans. Thereafter he forced me to encash those cheques immediately whereby I did not have enough funds available at that moment for the cheques given to Satanjay Verma to get encashed. He, thereafter told me to RTGS the amount of loan to Satanjay Verma and Satvik Dairy and promised me that he would return me the loaned amount once the disbursement is done from the venture Satvik Dairy of Shri Satanjay Verma to be loaned by a bank. Under extreme pressure and his repeated promise to return the loaned amount to me soon, we loaned him the amounts from our various company accounts as per details as follows” 56. Be that as it may, the following is the conclusion drawn by Income Tax authorities in affidavit dated 17.12.2016 (para 17) : “17. That in compliance of the order passed by this Hon’ble Court the authorized officer which in the instant case was Deputy Director of Income Tax (Inv.)-I, Lucknow has arrived at a conclusion vide office order F.No. DDIT (Inv.)-I/Lko/Court Matter/2016-17 dated 13.12.2016 that the Respondent No. 4 was non cooperative in furnishing his statement with respect to the summons issued under Section 131 of the Income Tax Act, 1961 dated 2.12.2016. The authorized officer has also given a finding to the effect that the sum of Rs. 1,18,00,000/- only was transferred through cash transaction and without being coupled with an agreement thus, the same does not appear to be genuine in nature. The authorized officer has also given a finding to the effect that the sum of Rs. 1,18,00,000/- only was transferred through cash transaction and without being coupled with an agreement thus, the same does not appear to be genuine in nature. It has further been held that the transaction carried out by the petitioner are reflecting in his financial statement for the period in question however due to non cooperation by the Respondent No. 4 same are not verifiable from the books of accounts, bank statements or statement on oath of the Respondent No. 4. The authorized officer contemplates invoking the provisions of Section 269SS and Section 271D of Income Tax Act, 1961 against the petitioner but due to non-co-operation of Respondent No. 4 at the present time by not furnishing requisite details the authorized officer is not invoking aforesaid two provisions against him. That for non co-operation on part of Respondent No. 4 proceedings under Section 272A (1)(c) are proposed to be initiated. It is further relevant to submit herein that in respect of the transaction which forms the subject-matter of the dispute, the Authorized Officer has drawn a finding that no legal documents were furnished by Respondent No. 4 which could authenticate the fact that Respondent No. 4 paid loan to the petitioner. It is also relevant to submit here that the Authorized Officer in his report has drawn a conclusion that transactions relating to Sri Hemant Dwivedi and Sri Anil Pandey, who arrange a sum of Rs. 43,00,000/- and the sale transaction in respect of cash amounting to Rs. One Crore, respectively, could not be verified by Respondent No. 4. The Photostat copy of the report F.No. DDIT (Inv.)-I/Lko/Court Matter/2016-17 dated 13.12.2016 is being filed herewith as Annexure A-13 to this Affidavit.” (Emphasised by us) 57. The conclusion drawn by Principal Director (Investigation), Department of Income Tax, Lucknow in report appended with affidavit dated 19.1.2017 is in the following terms : “Sub: Final report in compliance of the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, order dated 28.11.2016 and 19.12.2016 passed inn Writ Petition No. 19317(MB) of 2016 (Sri Atul Sharma v. State of U.P. and others)—Reg.— Kind reference is invited to the above. 2. As desired by the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, the necessary enquiries were conducted in this case. 2. As desired by the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, the necessary enquiries were conducted in this case. In this connection, this is to submit that summons under Section 131 of the Income Tax Act, 1961 dated 9.2.2016 was issued to Sri Anil Pandey R/o 65/79, Chhitwapur Road, Near Chhitwapur Police Chowki, Station Road, Lucknow to appear before the undersigned on 13.12.2016. 3. As per Hon’ble High Court of Judicature at Allahabad, Lucknow bench order dated 19.12.2016, a summon under Section 131 of the Income Tax Act, 1961 dated 23.12.2016 was issued to Shri Hemant Dwivedi S/o Shri PL Dwivedi, Nilyam Colony, Haldwani, Uttarakhand to appear before the Assistant Director of Income Tax (Inv.), Haldwani on 27.12.2016 and to produce the following : i. Personal deposition. ii. Details of amount/loan provided by you Shri Satanjay Verma or Shri Atul Sharma. iii. Name and address of the persons from whom the amount/loan provided by you to Shri Satanjay Verma or Shri Atul Sharma. iv. Details of amount and date, when Shri Satanjay Verma returned the amount/loan to you and further paid by you to concerned persons from whom amount/loan was taken and provided to Shri Satanjay Verma or Shri Atul Sharma. v. Copy of agreement for the amount/loan between you and Shri Satanjay Verma or Shri Satanjay Verma and persons from whom the amount/loan arranged. 4. In response to the summon issued to Shri Anil Pandey, he appeared before the undersigned on 22.12.2016 to record his statement on oath under Section 131 of the Income-tax Act 1961 and stated : i. That Shri Satanjay Verma and his father Justice (Retd.) P.C.Verma was introduced to him by Shri Shailendra Srivastava, Advocate, regarding Sale of their land at Village-Jaiti Kheda, Pargana, Bijnor, tahseel and district Lucknow. In response to the amount Rs. 1,00,00,000/- given as advance to Shri Satanjay Verma by him for the purchase of above discussed land, Shri Anil Pandey told that he has given only Rs. 20,00,000/- to shri Satanjay Verma as an advance. ii. When he was shown a photocopy of legal agreement as submitted by Shri Satanjay Verma at the time of his last appearance before undersigned on 7.12.2016, he told that he was not aware of this agreement and signature on this agreement is not mine. I also do not know the witnesses of this agreement. ii. When he was shown a photocopy of legal agreement as submitted by Shri Satanjay Verma at the time of his last appearance before undersigned on 7.12.2016, he told that he was not aware of this agreement and signature on this agreement is not mine. I also do not know the witnesses of this agreement. Therefore, as far as I am concerned this agreement seems to be fake. iii. When he was again asked about the agreement and Rs. 1,00,00,000/- as an advance, he told that as this agreement is fake and baseless, all the contents of this agreement is beyond my knowledge. iv. When asked about the supporting documents to substantiate his claim he promised to submit the document by 23.12.2016, he submitted the certified copy of agreement (Copy of agreement is enclosed herewith). 5. Since Shri Hemant Dwivedi was busy for 27.12.2016, therefore he appeared before the Asst. Director of Income-tax (Inv.), Haldwani, on 24.12.2016 and his statement was recorded on oath under Section 131 of the Income Tax Act, 1961. 6. Specific queries were asked from him regarding the details of persons from whom he arranged the Rs. 43 Lakh as per his statement under Section 131 dated 19.12.2016. In his reply, Shri Hemant Dwivedi has inter alia again stated: i. That since the matter is very old, he did not remember about the details of the concerned persons from whom he arranged the money for Shri Satanjay Verma. He was just a middle man and the whole amount was arranged from others. ii. that he himself did not give any of his own money to Shri Satanjay Verma. After 2-3 months, when he contacted the persons from whom arrangements of amount/loan made to Shri Satanjay Verma, it was informed by the persons that the amounts have been repaid to them. iii. that being a middle man only, he did not make any agreement with Shri Satanjay Verma and the persons from whom the money was arranged. The transaction took place on the basis of personal relations only and no interest rate was fixed for it. The whole amount was repaid within 2-3 months. 7. iii. that being a middle man only, he did not make any agreement with Shri Satanjay Verma and the persons from whom the money was arranged. The transaction took place on the basis of personal relations only and no interest rate was fixed for it. The whole amount was repaid within 2-3 months. 7. Further, a summon under Section 131 dated 2.1.2017 issued to Shri Satanjay Verma as per Hon’ble High Court of Judicature at Allahabad, Lucknow bench order dated 19.12.2016 to appear before undersigned on 4.1.2017 to verify the fact stated in the statement on oath by Shri Anil Pandey and Shri Hemant Dwivedi, an Inspector of Income-tax has been sent to the Shri Satanjay Verma’s residence at 3/471 Vishwas Khand, Gomti Nagar, Lucknow, as stated by Shri Satanjay Verma in his statement (dated 7.12.2016) on oath, to serve the summon, but his father Justice Retd.) P.C.Verma told that Shri Satanjay Verma is out of station. The Inspector of Income-tax has requested him to receive the summon on the behalf of Shri Satanjay Verma but he told that only Shri Satanjay Verma will receive the summon (the Inspector report is enclosed herewith). However, to submit the affidavit to the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench on 6.1.2017, another effort has been made to serve the summon by affixture on the gate of Shri Satanjay Verma’s residence to appear on 4.1.2017. 8. But after making all the efforts to make Shri Satanjay Verma to appear before undersigned for the purpose of investigation of facts emerged after statement on oath of Shri Anil Pandey and Shri Hemant Dwivedi as directed by the Hon’ble High Court of Judicature of Allahabad, Lucknow Bench, he did not appear before the undersigned to clarify the fact concerned till date. In view of the above, it may be concluded: (i) That he has not cooperated in the proceeding, Provision of Section 272A (1)(c) of Income-Tax Act, 1961 may be invoked against Shri Shatnajay Verma. (ii) that Shri Satanjay Verma’s claim of giving loan of Rs. 1,18,00,000/- to Shri Atul Sharma, is a self cooked story as he could not submit any legal supporting document to substantiate his claim. (ii) that Shri Satanjay Verma’s claim of giving loan of Rs. 1,18,00,000/- to Shri Atul Sharma, is a self cooked story as he could not submit any legal supporting document to substantiate his claim. (iii) That proceeding under Section 277 of Income-tax act, 1961 and 181 of IPC may be initiated against Shri Satanjay Verma for making false statement on oath to any public servant authorised by law to administer such oath. (iv) That proceeding under Section 465 of IPC may be initiated against Shri Satanjay Verma for submitting forged documents of “Bayana Prapti Raseed”. (v) That proceeding under Section 464 of IPC for making a false documents. Enclosures : As above. Yours faithfully, (Pramod Kumar) Deputy Director of IncomeTax (Inv)-I Lucknow” (Emphasised by us) 58. Judiciary is the protector and preserver of rule of law, as has been held in Ajay Singh’s case (supra). Effective functioning of the Judiciary is possible, only if the stream of justice is not polluted. So as to achieve this objective, we had to pass this detailed order. We are of the considered view that investigation needs to be entrusted with a senior police officer. 59. The circumstances do indicate that proper, effective and fair investigation at the police station level is not possible. Under the circumstances, we hereby direct Principal Secretary, Home, U.P., Lucknow to entrust the investigation of the case to an I.P.S. officer not below the rank of Superintendent of Police with clear directions that investigation be conducted properly, effectively and fairly, without influence and favour. The investigating officer be appointed within 10 days of receipt of copy of this order. 60. Learned counsel for respondent No. 4 states that he has no objection to investigation by a senior police officer. The affidavits and reports furnished by the Income Tax authorities be forwarded to the Investigating Officer. 61. We direct the investigating officer to conduct investigation strictly in accordance with provisions contained in Chapter XII of Code of Criminal Procedure. The investigating officer shall be at liberty to approach the Income Tax authorities at Lucknow or in Uttrakhand to take any further document on record, and also to get verified from the Income Tax authorities any document that has already been taken on record while preparing the above mentioned reports. 62. The investigating officer shall be at liberty to approach the Income Tax authorities at Lucknow or in Uttrakhand to take any further document on record, and also to get verified from the Income Tax authorities any document that has already been taken on record while preparing the above mentioned reports. 62. The investigating officer would ensure that investigation is conducted while taking into account the definition and scope of investigation to which a detailed reference has been made in earlier part of the judgement. 63. Principal Secretary, Home, U.P., Lucknow in exercise of his superintending power under Section 3 of the Police Act, 1861 shall ensure that investigation is conducted in accordance with law, effectively, fairly and speedily. We make it clear the anything said herein above is not a finding of fact. We have only referred to the material placed on record by the parties, and the income tax authorities. 64. We also direct the Income Tax authorities to initiate proceedings, on the criminal side and/or under the Income Tax laws, against respondent No. 4, in case prima facie it is found that cognizable offence/other offences have been committed, as recommended/concluded by Principal Director (Investigation), Income Tax, in the above extracted report. 65. We hereby direct Senior Registrar of this Court to forward both the affidavits and accompanying documents filed by Principal Director(Investigation), Department of Income Tax, Lucknow alongwith copy of this order, to Principal Secretary, Home, Lucknow, within four working days of receipt of copy of this order. 66. Copy of this order be also forwarded to Principal Chief Commissioner, Income Tax, Lucknow and Principal Director (Investigation), Income Tax, Lucknow. 67. With the above directions and observations, we dispose of the matter.