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Bharat Bhusan Malhotra S/O. Late … vs The State, G.E. Money Housing … on 22 November, 2007

Delhi High Court Bharat Bhusan Malhotra S/O. Late … vs The State, G.E. Money Housing … on 22 November, 2007Author: V Gupta Bench: V Gupta

JUDGMENT

V.B. Gupta, J.

Page 3035

1. This petition under Section 482 Cr.P.C. has been filed for issuing directions for calling for records pertaining to FIR No. 809/2007 P.S. Saraswati Vihar, New Delhi and quashing of the same.

2. The FIR in question was registered under Section 420/406/467/468/120B IPC against the present petitioner. The allegations in the FIR are that petitioner obtained home loan for purchase of second floor of property No. H-9/12, Malviya Nagar, New Delhi, which property was shown by the complainant to the petitioner prior to entering into home loan agreement. Before granting the loan, the officials of the complainant went through all the legal formalities, that is, the complainant obtained non-encumbrance certificate after getting the verification through their Advocate. The petitioner had sent a notice dated 28.4.2006 to the complainant, and complainant vide reply dated 10.5.2006, admitted that the loan was sanctioned after verification of the title deed. The loan amount was disbursed Page 3036 to the petitioner after completing title search with regard to the ownership of the said property. The petitioner created equitable mortgage in respect of the said property and the original sale deed was submitted after disbursement of the loan. The amount of loan was disbursed by the complainant by cheque in the name of seller namely Shri. Narinder Singh Negi and a sum of Rs. 96,000/- was given to the petitioner Brij Bhusan Malhotra. One Mr. Surendra Mohan Tiwari has filed a Civil Suit against the petitioner as well as co-accused Narinder Singh Negi, Sanjiv Tiwari and others, bearing Suit No. 225/05 for cancellation of documents in favor of the petitioner, which is pending in the court of Shri A.K. Pathak, Additional District Judge. It is further alleged that Sh. Narinder Singh Negi had already sold the said house to Sh. Surendra Mohan Tiwari in the year 1997 and petitioner was not in the possession of the property. The petitioner has thus cheated the complainant by concealing the fact that property in question has already been sold to Sh. Surendra Mohan Tiwari.

3. It has been contended by learned Counsel for the petitioner that petitioner is a bona-fide purchaser, who submitted all the documents to the complaint and he at no time had induced the complainant to believe that the title of the above said property was true, but he submitted it to be verified by the complainant. The complainant has failed to show that there existed a fraudulent intention at the time of commission of the offence. Further, civil dispute between the parties is also pending and as such present FIR in question is liable to be quashed.

4. In a recent decision of Apex Court, Pratibha v. Rameshwari Devi and Ors. III (2007) DLT (Crl.) 963, it has been laid down that for purpose of finding out commission of cognizance offence, High Court is only required to look into allegations made in complaint or FIR and conclude whether prima facie offence made out by complainant in FIR or complaint or not. After considering the materials on record and the complaint filed it was held:

We are of the view that the High Court had exceeded its jurisdiction by quashing the FIR No. 221 of 2001 in the exercise of its inherent powers under Section 482 of the Code. Before we consider the scope and power of the High Court to quash an FIR in the exercise of its inherent powers under Section 482 of the Code even before the parties are permitted to adduce evidence in respect of the offences alleged to have been made under the aforesaid two sections (namely, Sections 498A and 406 of IPC), we may keep it on record that two questions merit our determination in the present case:

(i) whether the High Court while quashing the FIR in the exercise of its inherent powers under Section 482 of the Code was entitled to go beyond the complaint filed by the complainant; and (ii) whether the High Court was entitled to look into and consider the investigation report submitted by four officers of the rank of Dy. Superintendent of Police for quashing the FIR even before the same could be filed before the concerned Magistrate. Before we do that, we may first consider how and when the High Court, in Page 3037 its inherent powers under Section 482 of the Code, would be justified in quashing an FIR. It is at this stage appropriate to refer Section 482 of the Code itself which runs as under:

482. Saving of inherent powers of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

A bare look at this provision would show that while exercising such inherent powers, the High Court must be satisfied that either:

(i) An order passed under the Code would be rendered ineffective; or

(ii) The process of any Court would be abused;

or

(iii) The ends of justice would not be secured.

In State of West Bengal v. Swapan Kumar Guha , Chandrachud, C.J. [as His Lordship then was] had observed that if the FIR did not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. In the same judgment, Justice A.N. Sen [as His Lordship then was] who has written the main judgment, has laid down the legal propositions as follows:

…the legal position is well-settled. The legal position appears to be that if an offence is disclosed, the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted…. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards them and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished Page 3038 to the serious detriment of the welfare of the society and the cause of justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed….

Whether an offence has been disclosed or not must necessarily depend on the fact and circumstances of each particular case…. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence.

5. In Pratibha Rani v. Suraj Kumar and Anr. , this Court at page 395 observed as follows;

It is well settled by a long course of decisions of this Court that for the purpose of exercising its powers under Section 482, Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations.

6. In Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angra and Ors. , this Court has reiterated the same principle and laid down that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverter allegations as made prima facie establish the offence.

7. Again in the case of State of Bihar v. Murad Ali Khan and Ors. , Venkatachaliah, C.J. [as His Lordship then was] has laid down that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has observed that in exercising that jurisdiction, the High Court should not embark upon an inquiry whether the allegations in the complaint are likely to be established by evidence or not.

8. From the principles laid down in the abovementioned decisions, it is clear that the Court is entitled to exercise its inherent jurisdiction for quashing a criminal proceeding or an FIR when the allegations made in the same do not disclose the commission of an offence and that it depends upon the facts and circumstances of each particular case. We also feel it just and proper to refer to a leading decision of this Court reported in State of Haryana v. Bhajan Lal I (2006) CCR 209 (SC) : 1992 Suppl. (1) SCC 335, in which this Court pointed out certain category of cases by way of illustrations wherein the inherent power under Section 482 of the Code Page 3039 can be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The same are as follows:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverter allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint 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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding in maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

9. Keeping the aforesaid principles in mind and considering the decisions as referred to herein earlier, it is to be seen as to whether there are grounds for quashing the FIR in question or not. The allegations against the petitioner are that petitioner along with his wife applied for loan against the built up property with M/s. G.E. Money Housing Finance Ltd. on the basis of sale deed dated 23rd April, 2005, alleged to have been executed by one Narinder Singh Negi in favor of the petitioner. The same Narinder Singh Negi had already sold the said property to one Surendra Mohan Tiwari way back in 1997.

10. Thus, the petitioner, his wife and Mr. Narinder Singh Negi hatched a conspiracy and forged a sale deed for the purpose of cheating the actual owner and also to cheat M/s. G.E. Money Housing Finance Ltd.

11. So, prima facie, the averments made in the FIR discloses the commission of Criminal offence and the investigation is at initial stage, as admittedly the charge sheet has not yet been filed in the Court so far. The Apex Court Page 3040 in its decision in Union of India v. Prakash P. Hinduja and Anr. (2003) 6 SCC 195, observed as follows: Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer-in-charge of the police station in Court under Section 173(2) of Code, this field being exclusively reserved for the investigating agency.

12. Since the case is at the investigation stage and prima facie, offence of cheating etc is clearly made out against the present petitioner, no ground is made out for quashing of the FIR in question and the present petition is wholly misconceived and is nothing but an abuse of the process of law and as such the same is hereby dismissed with costs of Rs. 5,000/-.

13. The petitioner is directed to deposit the costs of Rs. 5,000/- with the trial court within one month from today, failing which the trial court shall recover the same in accordance with the provisions of law.

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