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2018 DIGILAW 1797 (RAJ)

Meraj Un Nabi Khan v. State of Rajasthan

2018-08-28

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT KANWALJIT SINGH AHLUWALIA, J. 1. The present petition has been filed under Section 482 Cr.P.C. praying that charge-sheet bearing No.172/2010 pertaining to FIR No.322/2010 registered at Police Station Ashok Nagar, Jaipur for offences under Sections 420, 406 and 120B IPC be quashed as in an identical FIR bearing No.228/2010 registered at same police station i.e. Ashok Nagar, Jaipur for offences under Sections 420 and 406 IPC, the investigating agency earlier had proposed Final Report in negative form after giving opinion that the dispute is civil in nature. 2. It is pleaded in the present petition that the petitioners initially were Directors of Krishana Villa Prime Apartments Pvt. Ltd. The said company came into existence after same was merged with firm M/s. Gold Dreams Builders & Developments. The company acquired housing and commercial plots of land and flouted eight Group Housing Schemes. The said schemes were approved by Jaipur Development Authority. It is further averred in the petition that the company intended to construct residential flats at Jagatpura under the name and style 'Sky Line'. 3. To cut the long story short, the respondent no.2 Sachin Saxena for booking a flat with company of the petitioners deposited Rs. 75,000/- as a booking amount. It is further pleaded in the present petition that the complainant approached the Housing Development Finance Corporation Ltd. (in short HDFC) and IDBI for securing loan towards the cost of said flat. In sub-para (vi) of Para 10, it is pleaded that Krishana Villa Prime Apartments Pvt. Ltd., the company of which petitioners were Directors, was taken over by M/s. Amay Home Services Ltd. and hence, petitioners resigned as Directors. 4. Earlier petitioners had approached this Court by filing SBCRLMP No.4726/2018 and in the said petition, on 9.8.2018, this Court had passed the following order:- "Counsel for the petitioners has contended that in all 39 FIRs have been registered against the petitioners, wherein it is alleged that the company of which petitioners were Directors accepted the amount from the persons who were interested to buy the flat. Counsel for the petitioners has contended that even though petitioners have resigned from the company and at relevant time were not Directors of the company, still in order to buy the peace, they are ready and willing to return the total amount of Rs. Counsel for the petitioners has contended that even though petitioners have resigned from the company and at relevant time were not Directors of the company, still in order to buy the peace, they are ready and willing to return the total amount of Rs. 94 lakhs to the depositors or whatever amount is due to the persons who have deposited the amount with the company of which petitioners were ex-directors. Joint prayer qua 39 FIRs cannot be accepted, petitioners if so advised, may file similar petition qua each FIR. List the present petition after similar petition qua each FIR is filed." 5. In pursuance of the aforesaid order, separate petitions have been filed by the petitioners and today thirty-three petitions are listed on Board. 6. Mr. S.S. Hora, learned counsel for the petitioners has drawn attention of this Court to the report of investigation submitted in respect of case FIR No. 322/2010 dated 6.8.2010 registered at Police Station Ashok Nagar. The relevant portion of the charge-sheet in which the investigating officer has given his opinion regarding commission of offences, reads as under:- ^^lEiw.kZ rdehy rQrh'k ls eqyfteku 'kadj ,e tsBk.kh] fejkt [kkau] ukosn lS;nh 420] 406] 120ch] 201] 204 vkbZ ih lh dk tqeZ rFkk jksfgr lwjh] fouksn tSu o jkgqy egkuk ds fo#) /kkjk 120 ch] 201] 204 vkbZ ih lh dk tqeZ o v#.k caly] ds fo#) tqeZ /kkjk 420] 406] 120ch izekf.kr ik;k x;k o tqeZ /kkjk 467] 468] 471 Hkk0n0la0 dk tqeZ izekf.kr ugh ik;k x;kA^^ 7. The learned counsel for the petitioners has contended that the principal offences falling under Sections 420 and 406 IPC are compoundable offences. It is further contended that even though Section 120B IPC is a substantive offence, in the event of composition of principal offences continuation of the proceedings qua offence under Section 120B IPC will not serve any useful purpose. The learned counsel for the petitioners has further canvassed that the offences under Sections 201 and 204 IPC are not made out qua the petitioners. The learned counsel for the petitioners has submitted that the petitioners are ready and willing to return the amount received by the company from the complainant towards booking of the flats and hence, an opportunity be granted to the petitioners to compound the principal offences falling under Sections 420 and 406 IPC. The learned counsel for the petitioners has submitted that the petitioners are ready and willing to return the amount received by the company from the complainant towards booking of the flats and hence, an opportunity be granted to the petitioners to compound the principal offences falling under Sections 420 and 406 IPC. It is further submitted that at the relevant time when the FIR was registered, the petitioners were not Directors of the company. The learned counsel for the petitioners has stated at Bar that the petitioners shall deposit Rs. 49,88,078/- by way of Demand Draft today in the office of Dy. Registrar (Judicial). He has further submitted that the remaining amount shall be deposited by the petitioners in the office of Dy. Registrar (Judicial) within two weeks thereafter. It is contended that the petitioners are ready and willing to return the entire booking amount to small investors, complainant of various FIRs, who had deposited the same in the housing scheme to book a flat. 8. I have heard Mr. S.S. Hora, learned counsel for the petitioners and Mr. Prakash Thakuriya, learned Public Prosecutor appearing for the State. 9. Mr. Prakash Thakuriya, learned Public Prosecutor to repel the contention raised by counsel for the petitioners has contended that since the offences under Section 406 and 420 IPC are compoundable, the petitioners should present compromise for composition of offences before the trial court at first instance. This Court finds merit in the submissions advanced by learned Public Prosecutor as the return of the amount to the small investors to their satisfaction can bring an end to long drawn litigation, which has culminated into registration of thirty-nine FIRs, and filing of charge-sheets. 10. However, this Court may note here that unilateral offer has been made by the petitioners for composition of offences and till today consent of the person who invested the amount for booking of flat has not been obtained. 11. Section 19(5) and 22(c) of Legal Services Authority Act, reads as under:- "19(5). 10. However, this Court may note here that unilateral offer has been made by the petitioners for composition of offences and till today consent of the person who invested the amount for booking of flat has not been obtained. 11. Section 19(5) and 22(c) of Legal Services Authority Act, reads as under:- "19(5). A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of- (i) any case pending before; or (ii) matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised: Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. 22C.Cognizance of cases by Permanent Lok Adalat.- (1) Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute : Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law: Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees: Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority. (2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute. (2) After an application is made under sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute. (3) Where an application is made to a Permanent Lok Adalat under sub-section (1), it- (a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application; (b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings; (c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto. (4) When statement, additional statement and reply, if any, have been filed under sub-section (3), to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute. (5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub-section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner. (6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it. (6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it. (7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. (8) Where the parties fail to reach at an agreement under subsection (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute. " Thus, there is no dispute that under the aegis of Lok Adalat, litigation qua compoundable offences pertaining to each FIR can be resolved. A party to the litigation can file an application expressing its intention to resolve the dispute amicably. Therefore, liberty is granted to the petitioners to file an application in each FIR before the trial court for composition of offences under Sections 406 and 420 IPC, which are compoundable offences. The trial court may issue notice to the complainant and the State and may compound offences under Sections 406 and 420 IPC, in case amount is returned by the petitioners to the satisfaction of the complainant, who had deposited the amount for booking of flat. The trial court in its wisdom can also refer the matter pertaining to each FIR, to Permanent Lok Adalat for amicable resolution of the dispute for the offences under Sections 420 and 406 IPC. The trial court in its wisdom can also refer the matter pertaining to each FIR, to Permanent Lok Adalat for amicable resolution of the dispute for the offences under Sections 420 and 406 IPC. In case due to endeavour made by the trial court or by the Permanent Lok Adalat, offences under Sections 406 and 420 IPC are compounded, a direction is issued to the investigating officer to re-examine the records and the investigating officer in his wisdom may omit offences under Sections 120B, 201 and 204 IPC, as amicable resolution of the dispute between the parties is a finest hour and the court should grant due sanctity to the compromise arrived between the parties. A further liberty is granted to the petitioners that in case offences under Section 406 and 420 IPC are compounded by the trial court or by the Permanent Lok Adalat, they may re-approach this Court for quashing of FIR for offences under Sections 120B, 201 and 204 IPC on the basis of compromise if the said offences are not omitted or deleted by the investigating officer. With the directions issued and observations made above, the present petition stands disposed of. It is further ordered that upon deposit of booking amount in respect of each FIR, the trial court shall keep the arrest warrants issued against the petitioners in abeyance till the orders in respect of the prayer made by the petitioners for composition of offences which are compoundable, are passed by the trial court or by Permanent Lok Adalat. It is clarified that in case the amount is not deposited within two weeks, from the date of receipt of certified copy of this order, the law shall take its own course and nothing said herein shall be construed in favour of the petitioners. The amount deposited by the petitioners in the trial court shall be kept by the trial court in Fixed Deposits in a nationalized Bank till the same is disbursed to the complainant to their satisfaction. Needless to say the interest which shall accrue in FDR shall also be paid to the complainant.