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2023 DIGILAW 2050 (RAJ)

Nawal Kishore Dangayach v. State of Rajasthan

2023-11-01

BIRENDRA KUMAR

body2023
JUDGMENT : Mr. Birendra Kumar, J. - The petitioner has sought for quashment of FIR No.375/2023 registered with Police Station Chomu, Jaipur (West) for offences under Sections 406, 420, 467, 468, 471 and 120B IPC at the instance of respondent No. 2. 2. The prosecution case as disclosed in the FIR is that M/s A. Gangwal Real Estate LLP was a partnership firm and was developing "Iconic Residency" at plot No. A5 Airport Enclave, Tonk Road, Jaipur. The informant contacted the petitioner and others named in the FIR for purchase of flat No.103 super built up area of 3473. 73 sq. feet on total consideration money of Rs. 2,57,05,602. The complainant paid Rs. 50 lakhs in different instalments in token whereof receipts were granted which are attached with the reply of the respondent. This took place in the year 2016. When no progress of construction was visible for 5 years, respondent No. 2 asked for refund of his consideration money. The petitioner issued a cheque No. 000013 of the HDFC Bank Vaishali Nagar Branch, Jaipur dated 10.04.2023 of Rs.50 lakhs, which got dishonoured and the bank reported on 21.07.2023 about dishonour of the cheque for the reason that the referred bank account bearing 50200010761840 was already blocked. The complainant gathered that he has been cheated by the petitioner. 3. Learned counsel for the petitioner Mr. S.S. Hora, submits that the petitioner was inducted in the firm as partner by written agreement dated 01.01.2015. Thereafter, the petitioner retired from the firm on 25.10.2016. Learned counsel contends that it is specific case of the petitioner that the petitioner had never entered into any agreement with anyone to sale the flats nor had issued any receipts nor on the date of issuance of cheques of Rs. 50 lakhs in favour of respondent No. 2, the petitioner was a partner in the firm. Some signed cheques of the period when the petitioner was partner of the firm was misused and different so-called beneficiaries have lodged separate FIRs against the petitioner. When the petitioner came to know about the fraud upon the petitioner, he also lodged FIR No. 443 dated 27.06.2023 with Jawahar Circle Police Station for offences under Sections 420, 467, 468, 471 and 120B IPC against respondent No.2 and other named persons, who have lodged separate FIRs against the petitioner. When the petitioner came to know about the fraud upon the petitioner, he also lodged FIR No. 443 dated 27.06.2023 with Jawahar Circle Police Station for offences under Sections 420, 467, 468, 471 and 120B IPC against respondent No.2 and other named persons, who have lodged separate FIRs against the petitioner. Learned counsel contends that the documents produced and relied upon by the respondent No. 2 are forged and fabricated documents. Learned counsel contends that the case of the petitioner is fully covered by certain grounds of quashing of a FIR stated in State of Haryana v. Bhajanlal, reported in 1992 Supp. (1) SCC 335. According to learned counsel the allegation made in the FIR 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. Moreover, the criminal proceedings is manifestly attended with mala-filed to wreck vengeance on the petitioner and with a view to spite him due to private and personal grudge. 4. Learned counsel for the respondent No. 2 Mr. Sudhir Jain, contends that it is not disputed by the petitioner, rather document produced by the petitioner discloses that the petitioner and others were inducted as partner of the said firm on 01.01.2015. The respondent No. 2 had paid Rs. 50 lakhs in three instalments, which would be evident from receipt dated 14.04.2016, 20.05.2016 and 24.05.2016. All these receipts were signed by the same person (petitioner) who had issued the refund cheque. On the date of issuance of receipts of consideration money, the petitioner was partner of the firm as he retired only on 25.10.2016. The retirement of the petitioner was not known to respondent No. 2 or any other prospective purchasers who have lodged separate FIRs. The petitioner with fraudulent and dishonest intention issued refund cheque as authorised person of A. Gangwal Real Estate LLP. Therefore, the petitioner created a false document pretending himself to be authorised person to sign cheque on behalf of the firm though the petitioner was conscious that he was not authorised to sign any cheque. The cheque bounced for the reason that the bank account was already blocked. Evidently the petitioner was conscious of the fact that the cheque would not be honoured at any cost. The cheque bounced for the reason that the bank account was already blocked. Evidently the petitioner was conscious of the fact that the cheque would not be honoured at any cost. The assertion of the petitioner that his previously signed cheque was used has no merit in the facts and circumstances of the case for the reason that the cheque bounced due to blockage of the account and not due to the reason that signature on the cheque was not matching with the signature available with the bank. Therefore, the offences alleged are prima-facie made out. Learned counsel for respondent No. 2 has relied on the judgment of the Hon'ble Supreme Court in Ajay Kumar Das v. State of Jharkhand & Anr. reported in 2011 (4) RCR (Criminal 231) for his submission that material brought on record by the accused cannot be looked into at the stage of petition under Section 482 CrPC. The probable defence would be considered at the stage of trial and the same cannot be basis for quashing of the criminal proceedings at the threshold. Learned counsel has further relied upon the judgement in Sangeetaben Mahendrabhai Patel v. State of Gujarat and Anr. reported in 2012 (2) RCR (Criminal 757) for his submission that a criminal proceeding under section 138 of the Negotiable Instruments Act and under Sections 420 and 406 IPC can go together if the ingredients of offences under the Indian Penal Code are made out. Ingredients of offence under section 138 of the Negotiable Instruments Act and that of the Indian Penal Code are not the same, therefore, there is no question of double jeopardy. Learned counsel for the respondent contends that the police report dated 30.6.2023 would reveal that after investigation of the FIR, the police has found allegation against the petitioner true. In FIR No. 360/2023 also lodged by Pappu Lal Jat, the police has found allegation against the petitioner true. 5. The parameters of the power to quash criminal proceedings under Section 482 Cr.P.C are well defined. In FIR No. 360/2023 also lodged by Pappu Lal Jat, the police has found allegation against the petitioner true. 5. The parameters of the power to quash criminal proceedings under Section 482 Cr.P.C are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salen, Tamil Nadu & ors., (2019) 14 SCC 568 , the Hon'ble Supreme Court reiterated the earlier view that where an accused seeks quashing of the FIR invoking inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegation in the complaint. In M/s. Neeharika Infrastructure(Pvt.) Ltd. v. State of Maharashtra & ors., reported in AIR 2021 SC 1918 , the Hon'ble Supreme Court elaborately considered the scope and extent of the powers under Section 482 Cr.P.C and held that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norms formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an inquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by the Supreme Court in R.P.Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana & ors. v. Bhajan Lal & ors., {(1992) Supp (1) SCC 335}, the Court would have jurisdiction to quash the FIR/complaint. 6. The undisputed facts of this case are that the petitioner was one of the partner along with other co-accused persons inducted in the firm on 01.01.2015. The petitioner retired only on 25.10. 2016. The consideration money was received by the petitioner and receipts were issued in token thereof, as claimed by respondent No.2. The refund cheque was also signed by the same person, who had issued receipts of acceptance of consideration money. The petitioner does not deny his signatures on the refund cheque rather asserts that the signed cheque was misused. Evidently this issue requires investigation / trial and cannot be shut down at the threshold. 7. The refund cheque was also signed by the same person, who had issued receipts of acceptance of consideration money. The petitioner does not deny his signatures on the refund cheque rather asserts that the signed cheque was misused. Evidently this issue requires investigation / trial and cannot be shut down at the threshold. 7. The FIR prima-facie discloses a case of dishonest and fraudulent intention at the time of issuance of refund cheque for the reason that prima-facie the petitioner was aware that he was no longer a partner in the said firm, therefore, only a competent person could have issued the refund cheque. The allegation is of collusion amongst all the partners in suppressing the real state of affairs of the firm to the purchasers including respondent No. 2. The cheque was signed as authorised person of the firm, therefore, offence of making of false document is also prima-facie made out because the maker of the document was conscious that he was not the same person (the authorised person of the firm) who ostensibly signed the cheque. Once the FIR discloses prima-facie cognizable offence, it must be investigated and it cannot be quashed simply considering the probable defence of the petitioner. As discussed above, this is not a case wherein allegation in the FIR appears to be absurd or inherently improbable nor any other ground raised by the petitioner is available to interfere with the FIR. Moreover, trustworthiness of the allegation cannot be looked into at this stage, therefore, the Court does not find any merit in this petition. 8. Accordingly, the instant petition stands dismissed as devoid of any merit.