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2023 DIGILAW 669 (RAJ)

Islamdeen S/o Shri Mehardin v. State of Rajasthan

2023-03-14

FARJAND ALI

body2023
ORDER : 1. The instant Criminal Misc. Petitions have been preferred by the petitioners under Section 482 Cr.P.C. for quashing of FIR No. 187/2008 registered at P.S. Pokhran, Distt. Jaisalmer for the offences under Sections 420, 467, 468, 471 and 120-B of the IPC. 2. Learned counsel for the petitioner submits that prior to filing of impugned FIR No. 187/2008, P.S. Pokhran, District Jaisalmer, the complainant had filed another FIR No. 74/2003 at P.S. Pokhran, Jaisalmer, in which the same set of allegations have been levelled against him as levelled in the instant FIR (No. 187/2008). In yet another FIR No. RC JDH 2007 A0013/2007 which was lodged at P.S. Superintendent of Police, Central Investigation Bureau, Jodhpur before lodging of FIR No. 187/2008, at the behest of Chairman, Jaipur Thar Gramin Bank, similar allegations have been levelled. In FIR No. RC JDH 2007 A-0013/2007, the police had filed negative final report before the Court concerned, therefore, the petitioners have filed the instant Misc. Petition to quash the proceedings arising out of FIR No. 187/2008. It is submitted by counsel for the petitioners that the dispute in between the parties has been resolved through an amicable settlement by an affidavit dated 23.04.2017 and a written letter dated 23.04.2017 was also sent to the IO to inform about the same. Now, there remains no controversy in between them and the parties do not wish to continue the criminal proceedings any further. 3. Heard learned counsel for the petitioners as well as learned Public Prosecutor for the State. Perused the material available on record. 4. For the purpose of examination and scrutiny, it is felt appropriate to go through the contents of previous two FIRs and their result as well as the contents of the FIR impugned. 5. The brief facts as per the first FIR bearing No. 074/2003 lodged at the behest of respondent No. 2 Kaan Singh are that it was alleged that on 26.03.2002, the complainant attempted to obtain a loan from Thar Aanchalik Gramin Bank, Pokhran, for the amount of Rs. 3,00,000/- by making a down payment of Rs. 61,000/-. The bank approved the loan and the payment was made with cheque no. 145709 issued in the name of M/s Asian Agro Sales. The cheque No. 145709 was cashed by M/s Asian Agro Sales. 3,00,000/- by making a down payment of Rs. 61,000/-. The bank approved the loan and the payment was made with cheque no. 145709 issued in the name of M/s Asian Agro Sales. The cheque No. 145709 was cashed by M/s Asian Agro Sales. The aforementioned firm did not provide the complainant with the tractor and the complainant filed an FIR on 02.05.2003 at Police Station Pokhran against Shri Illias Khan, M/s Asian Agro Sales firm's owner, in accordance with Sections 406 and 420 of the Indian Penal Code. The trial has been concluded and vide judgment dated 01.09.2010, the accused-Illias Khan has been convicted for the offence punishable under section 420 of IPC and has been sentenced with maximum of five years of rigorous imprisonment along with fine of Rs. 7,00,000/- as well as under Section 406 of IPC and has been sentenced with maximum of one year of rigorous imprisonment. 6. The brief facts as per the Second Report bearing FIR No. RC JDH 2007 A-0013/2007 lodged by the Chairman, Jaipur Thar Gramin Bank on 24.11.2007 are that the bank manager of the Thar Aanchalik Gramin Bank in Pokhran, Sh. Ramdev Deval, used his position for inappropriate gains. He was involved in a criminal conspiracy with M/s Asian Agro Sales, causing additional malfeasance to the bank. The complainant requested for the loan which was sanctioned by the then manager Ramdev Deval for the amount of Rs. 3,00,000/- for the purpose of purchasing a tractor. The manager using his official position knowingly allowed the firm to withdraw the loan without following the set procedure resulting in an unwarranted loss to the bank and an unlawful gain to the enterprise. The agricultural land required a mortgage deed to be created but R.D. Deval purposefully did not follow the prescribed process and further permitted the company to withdraw the loan amount. Sh. Illyas Khan (proprietor) failed to deliver the tractor to the complainant and Mr. Deval failed to obtain the charge being created on the loanees’ agricultural land. Moreover, it was discovered that the corporation had opened an account in the bank only for the purpose of receiving payments for tractor loans. 7. It is crystal clear from the negative final report no. 05/2008 filed by the CBI on 11.08.2008 in the second FIR that no case was made out against Sh. Moreover, it was discovered that the corporation had opened an account in the bank only for the purpose of receiving payments for tractor loans. 7. It is crystal clear from the negative final report no. 05/2008 filed by the CBI on 11.08.2008 in the second FIR that no case was made out against Sh. R.D. Deval as it is shown that the loan was sanctioned by R.D. Deval, however, in fact, the loan was sanctioned by S.K.Mundra, the then General manager of the bank on 26.03.2002 at the head office level, after following the due procedure as specified by the bank, that too after evaluation and processing of the relevant loan documents by Mahesh Chandra Gupta and Anjum Parvej, the officers of bank, posted at head office Jodhpur. Regarding the second claim that R.D. Deval failed to create a mortgage on the loanees' agricultural land, it was found during investigation that R.D. Deval had written to the Sub-Registrar, Pokaran on the same day the loan was disbursed on 28.03.2002, requesting the creation of charges on the loanees' agricultural land, though this could only be done in 2007. After receiving permission from the borrowers for this purpose, the cheque for the loan amount was issued in favour of the mentioned company by the bank. It is also untrue that the account was only formed in the name of the aforementioned firm at the Pokaran Branch to receive these tractor loans; a current account was opened in this firm's name in 2001 and the loan in question was approved in March 2002 and there were no new and substantial facts on the basis of which a subsequent FIR would have succeeded. The negative final report has been submitted by the investigating agency in the lower court which was accepted by the Judge, CBI cases vide order dated 01.02.2011. 8. Finally, the brief facts of the third report, that is the impugned FIR bearing No. 187/2008, lodged by the Complainant on 02.09.2008 are that even after repeated intimidation to Illiyas Khan, he makes no attempt to deliver the tractor to the complainant. The bank eventually started pressurizing the complainant to finish the mortgage deed creation process because, in their opinion, the bank had already made the payment. However, the complainant informed the bank manager that he would finish the process as soon as the tractor was delivered. The bank eventually started pressurizing the complainant to finish the mortgage deed creation process because, in their opinion, the bank had already made the payment. However, the complainant informed the bank manager that he would finish the process as soon as the tractor was delivered. Later, the complainant filed a lawsuit under sections 406 and 420 of IPC. According to the complainant, the bank manager sold his piece of land measuring 74*15 bigha by forcibly obtaining his wife's signature in the presence of two witnesses. These two witnesses were also made accused in this FIR and it has been alleged that they were also part of the conspiracy along with the manager Ramdev Deval. Furthermore, he created a fraudulent mortgage document for a period of 5 years in Durga Devi’s name (wife of complainant) on 28.08.2008 and afterwards, in absence of the complainant and his wife, changed the date of the said document to 28.03.2005, whereas the actual date should have been 31.07.2005. 9. In the FIR No. 187/2008 a negative final report has been filed by the IO with the conclusion that the matter is purely of civil nature, however, the Trial Court did not accept the same and directed the investigating agency for further investigation of the case. 10. It is manifesting from the elucidation of the contents of the three FIRs as well as the Final Report that the parties, the details of the alleged incident, the facts of the alleged incident and the cause of action of the impugned FIR and the two FIRs filed at earlier instances are the same but the facts have just been narrated with slight differences and exaggerations each time. It seems that the complainant is persistent and he retold the same things time and again. It would not be justifiable to lodge a fresh report on the basis of different narrative of the same incident every time. The truth, substance and assertion in the first FIR No. 74/2003 and the FIR No. 187/2008 are same and the persons made accused in FIR No. 187/2008 could have been roped in as accused within the scope of investigation conducted in pursuance of first FIR No. 47/2003 and there was no need to file a subsequent FIR. 11. The truth, substance and assertion in the first FIR No. 74/2003 and the FIR No. 187/2008 are same and the persons made accused in FIR No. 187/2008 could have been roped in as accused within the scope of investigation conducted in pursuance of first FIR No. 47/2003 and there was no need to file a subsequent FIR. 11. The Hon’ble Supreme Court in the case of T.T. Antony vs. State of Kerala, AIR 2001 SC 2637 has observed that the subsequent FIR on the same contents is nothing but an abuse of process of law. The relevant paragraphs of the same are reproduced as under: “From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer in-charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr.P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution.” 12. A bare perusal of all the three FIRs makes it abundantly clear that the truth; substance; nature of accusation and the cause of action of previous and present FIRs are same, therefore, in view of the judgment passed in T.T. Antony (supra) and the observations made herein above, this Court is inclined to interfere in the course of investigation. 13. The parties to the lis have resolved their dispute amicably and do not wish to continue the criminal proceedings and have jointly prayed for quashing of the same. 13. The parties to the lis have resolved their dispute amicably and do not wish to continue the criminal proceedings and have jointly prayed for quashing of the same. The offences alleged in this matter are non-compoundable, however, Hon’ble the Supreme Court in the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303 has propounded that if it is convinced that offences are entirely personal in nature and do not affect the public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, the High Court should not hesitate to quash the same by exercising the inherent powers vested in it. It is observed that in such cases, the prosecution becomes the lame prosecution and pursuing such a lame prosecution would be a waste of time and energy that will also unsettle the compromise and obstruct restoration of peace. This court is aptly guided by the principles propounded by Hon’ble the Supreme Court and feels that when the dispute is essentially inter se between the parties, either they are relatives; neighbours or having business relationship and which does not affect the society at large, then in such cases, with a view to maintain harmonious relationship between two sides and for restitution of relationship and with a view to end-up the dispute in between them permanently, the High Court should exercise its inherent power to quash the FIR and all other subsequent proceedings initiated thereto. 14. In view of the above observations and taking into account the fact that the present one is the successive FIR of the earlier incident, though the offences are not compoundable but the parties have settled the dispute amicably and that is essentially in between the parties which is not affecting public peace and tranquility, therefore, with a view to maintain the harmony and to resolve the dispute finally in between the parties, this court feels that continuance of the investigation in impugned FIR would surely amount to an abuse of process of law, therefore, to prevent the same, the Misc. Petitions are allowed and the impugned FIR is quashed. 15. Accordingly, the instant Miscellaneous petitions are allowed. Petitions are allowed and the impugned FIR is quashed. 15. Accordingly, the instant Miscellaneous petitions are allowed. The FIR No. 187/2008 registered at the Police Station Pokaran, District Jaisalmer for the offences under Sections 420, 467, 468, 471 and 120-B IPC and proceedings initiated in pursuance thereof are quashed and set aside. The SHO concerned is directed to prepare a closure report and he shall submit the same before the Magistrate concerned within a period of thirty days from the date of receipt of this order. 16. Accordingly, the Miscellaneous petitions stand disposed of. 17. The stay petitions also stand disposed of.