Hon'ble Naheed Ara Moonis,J.
Present petition has been filed seeking relief of quashment of F.I.R lodged at case crime No. 3475 of 2008 under section 419/420/467/468/471/120 B IPC at P.S. Kotwali Karvi District Chitrakoot encapsulating therein the allegation that Ganesh Shaker Gupta who was rendering service as sub-agent dealing in share market working on behalf of Seema Security Private Ltd Sanjay Place Agra which company is owned by four Directors and the petitioner was one of its Director. It is alleged that the respondent no.3 who is the author of the F.IR wanted to invest money in share market and contacted Ganesh Shanker Gupta who assured him to get a D-mat account opened and for that purpose on different dates by different cheques the respondent no. 3 issued cheques in favour of Seema Securities. It is further alleged that D-mat account was not opened and when respondent no.3 sought information from Ganesh Shanker Gupta, he was evasive which generated suspicion and ultimately he came to know that on the pretext of opening D-mat account, Ganesh Shanker Gupta has siphoned off money to the tune of of Rs. 7,50,000/-.
Sri D.S.Srivastava, assisted by Sri Lav Srivastava Advocate has not denied the status of Ganesh Shanker Gupta as agent of Seema Securities but has come up with a theory that when the petitioner communicated with Ganesh Shanker Gupta upon notice being served by the respondent no.3, he was informed by Ganesh Shanker Gupta that as a matter of fact, the respondent no. 3 had taken loan from him and to shore up is case, the sub agent produced agreements. The notice, proceeds the submission, was duly replied.
In the course of arguments on 6.1.2010, it was disclosed that a petition was filed bearing No. 17185 of 2008 on behalf of Krishna Kumar Singh, Munna Lal Gupta, Rama Shanker Gupta, Ganesh Shanker Gupta and Ajai Kumar Agarwal and in that petition, the petitioners were represented by Sri R.S.Sharma, Advocate. The said petition ultimately culminated in in being dismissedl by means of order dated 22.9.2008. The order passed by the Division Bench consisting of Hon. Yatindra Singh and Hon. K.N.Ojha JJ are reproduced below.
"This writ petition is against the FIR lodged in case crime no. 3475 of 2008 under section 419, 420, 467, 468, 471 IPC P.S. Kotwali Karvi District Chitrakoot.
We have heard counsel for the petitioners and learned AGA for the respondents.
We see no justification to interfere. The writ petition is dismissed." It is further informed that one of the petitioners namely Munna Lal Gupta filed a second petition namely Writ Petition No. 25266 of 2009 M.L.Gupta v.State of U.P. and others in which he was represented by Sri V.K.Mishra and Gaurav Mishra, Advocates. The Division Bench of this Court consisting of Hon. Yatindra Singh and Hon. Shri Kant Tripathi JJ passed the order dated 9.12.2009 staying arrest of the petitioner. The order being relevant is reproduced below.
"The petitioner (Sri Munna Lal Gupta) has filed this writ petition against the FIR dt. 6.9.2008 in case crime No. 3475 of 2009 under sections 406, 419, 420, 467, 468, 471 IPC Police Station- Karbi, District Chitrkoot.
The counsel for the petitioner submits that:7 >The petitioner is merely a witness in the deed > In any case the dispute is a civil dispute.
Issue notice. Notice on behalf of the Sate of U.P and the State Officials has been accepted by AGA. Issue notice to the private respondents by registered post. List for admission after service upon the private respondents.
In the meantime, investigation may go on, but the petitioner will not be arrested till the next date of listing or till submission of the police report under section 173 (2) Cr.PC (whichever is earlier) provided he cooperates in the investigation."
In this petition also, there is specific declaration that "this is the first writ petition against the FIR in question. No other writ petition has been filed before this Hon. Court of law." Despite the case being called out ad nauseum, the counsel namely Vinod Kant Mishra and Gaurav Mishra did not appear.
In the present petition also, the petitioner has made specific declaration that this is the first writ petition of the petitioner before this Hon. Court. And that except the present writ petition no other writ petition has been filed by the petitioner for the relief claimed in this petition.
When the counsel for the petitioner in the instant petition namely Sri D.S.Srivastava was confronted with the second petition, he explained that he was not the counsel in the earlier petition nor the factum that the petitioner was one of the petitioners in the earlier petition namely Writ Petition No. 17185 of 2008 was brought to his notice on or before filing of the present petition. Again when the counsel for the petitioners was called upon to explain why exemplary cost be not inflicted on the petitioner for abusing the process of the court which tantamounts to playing fraud upon this Court, the learned counsel in consultation of his client, intimated the Court that the earlier petition was filed jointly by the petitioners and it cannot be ruled out that his name was arrayed as one of the petitioners without his consent or knowledge. The learned counsel also commiseratingly submitted that a benign view may be taken in the matter and the petition be dismissed as not pressed.
Be that as it may, it would clearly transpire that the petitioner was arrayed as petitioner no. 1 and the vakalatnama filed in that case by Sri R.S.Sharma Advocate bears signatures of all the petitioners including the present petitioner in Writ Petition No. 17185 of 2008. This belies the version that the petitioner had no knowledge of his being arrayed as one of the petitioners in the earlier writ petition as aforesaid. By this reckoning, it leaves no room for doubt that the present petition has been filed by concealing the fact that earlier petition was also filed on the self same ground and for the self same relief and the same was dismissed.
Likewise, in writ petition No. 25266 of 2009 filed by Munna Lal Gupta, it clearly transpires that the interim order dated 9.12.2009 was obtained by the petitioner Munna Lal Gupta by concealing the fact that the earlier writ petition was filed challenging the self same F.IR and the same culminated in being dismissed by this Court. It is nothing but a brazen attempt by the petitioner to inveigle the court into passing the interim order staying arrest despite the fact that the earlier petition challenging the self same F.IR dated6.9.2008 in which he was arrayed as petitioner no. 2 had already been dismissed in limine. The case for abusing the process of the Court and in consequence, playing fraud upon the Court is clearly discernible and the petitioner is liable to be penalized for making false declaration and also for concealing the fact that the earlier petition challenging the self same F.I.R had already been dismissed by the Court. The explanation put forth does not appear to be plausible and it appears to us to be a fit case in which cost must be inflicted for concealing the material fact.
The petition is accordingly dismissed. As observed above, it is, besides being abuse of the process of the court, is a fraud played upon the court and therefore, exemplary cost must be imposed. In the facts and circumstances of the case, we have no hesitation that it is a fit case in which exemplary cost be inflicted on the petitioners namely Ajai Kumar Singh and Munna Lal Gupta which we quantify at Rs. 50,000/- each which it is directed shall be deposited at the end of the Registrar General of this Court within a month. It is prescribed as a consequence that in case the petitioners fail to deposit the cost within the time frame as aforesaid, the same shall be recovered accordingly as arrears of land revenue by referring the matter to the appropriate authority competent in this regard. It is also postulated that the amount so recovered shall be funnelled to the corpus of U.P Legal Aid Service for being utilized there.
It is further directed that the interim order dated 9.12.2009 passed in Writ Petition No. 25266 of 2009 shall stand vacated and the order would be communicated accordingly to all concerned Order Date :- 18.1.2010 MH