Court No. - 65
Case :- CRIMINAL MISC. WRIT PETITION No. - 5013 of 2019 Petitioner :- Sudhakar Upadhyay And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Abhishek Kumar Counsel for Respondent :- G.A.,Rajnish Dubey
Hon'ble Karuna Nand Bajpayee,J. Hon'ble Ifaqat Ali Khan,J.
This writ petition has been filed seeking the quashing of F.I.R. dated 15.01.2019 registered as Case Crime No.154 of 2019, under Sections-420, 467, 468, 471, 406 and 506 I.P.C., P.S.-Sahibabad, District-Ghaziabad.
Heard petitioners' counsel, counsel for respondent no.4 and learned A.G.A. Entire record has been perused.
Submission of counsel for petitioners is that even if the entire prosecution version is assumed to be true then also the allegation relates to non performance of contractual obligations as well as to the dishonour of cheques which cannot be subject matter of an F.I.R. Further submission is that the respondent no.4-first informant was in fact a money lender who used to extract illegal gains from small contractors. Several other contentions have also been raised by the petitioners' counsel but all of them relate to disputed questions of fact. The court has also been called upon to adjudge the worth of prosecution allegations and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of indictment has been questioned, absence of material which may substantiate the allegations has been contended and false implication has been pleaded.
The law regarding sufficiency of grounds which may justify quashing of F.I.R. in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. The view taken in the case of Satyapal vs. State of U.P. and others, 2000 Cr.L.J. 569 which was further confirmed by another Full Bench of this Court in the case of Ajit Singh @ Muraha v. State of U.P. and others (2006 (56) ACC 433) makes the position of law in this regard clear and this Court does not find it advisable to whittle down the power or scope of investigation in the given case. The operational liberty to collect sufficient material, if there exists any, cannot be scuttled prematurely by any uncalled for overstepping of the Court. It has to be an extremely discreet exercise.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or
charge sheet and the same may also be good grounds to quash the F.I.R. Some of them are akin to the illustrative examples given in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused in the F.I.R. or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable or impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted only with ulterior motive or grudge and vengeance alone, may be illustratively the fit cases for the High Court in which the F.I.R. or the criminal proceedings may be quashed. If a particular case falls in some such categories as recognized by the Apex Court in Bhajan Lal's case, it may justify the interference by this Court in exercise of its inherent power as provided in Code of Criminal Procedure or in exercise of its powers vested by the Constitution of India.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
As per the version given in the F.I.R. in question there was an agreement in between petitioner no.1 and the first informant-respondent no.4 regarding a plot for a consideration of Rs.54,50,000/-. In terms of aforesaid agreement the first informant had given Rs.25,00000/- to petitioner no.1 in the year 2015 itself. An agreement to sale was also prepared on 14.10.2015 in between them and the details of money given by the first informant to petitioner no.1 find place in aforesaid deed. It has been further alleged in the F.I.R. that on 01.03.2016 petitioner no.1 approached the first informant and has shown his inability in disposing of the said plot in favour of the first informant as there was some loan on the aforesaid plot. However, petitioner no.1 proposed the first informant that in case the first informant renders some more monitory assistance to petitioner no.1 then subsequently he will provide the first informant the share of benefit which the petitioner was going to gain in a contract from Delhi Jal Board. Petitioner No.1 had given two cheques of Rs.30,00000/- and Rs.31,20,000/- to the first informant. Keeping reliance upon the words of petitioner no.1, the first informant had again given Rs.10,00000/- to him and further he had also given different cheques amounting to Rs.20,00000/- which was duly encashed in the account of the petitioner. As per the F.I.R. the first informant had also given Rs.6,20,000/- cash to the petitioner no.1 and as such a total amount of Rs.61,20,000/- was taken by the petitioner no.1 from the first informant. Further allegation is that when the first informant presented the cheques, given by the petitioner no.1, in the bank, the same were dishonoured. Thereafter, the first informant again contacted the petitioner no.1 several times and demanded his money back but for one reason an another the money has not been returned back to the first informant. it has been alleged in the F.I.R. that when the first informant went the house of petitioner no.1, then petitioner no.2, who is the wife of petitioner no.1, had given threatening to him. As per the F.I.R. petitioner no.2 claimed himself as a journalist and had threatened the first informant that she will defame him by spreading fake news in media. She had also threatened the first informant that she will lodge frivolous case against him and in case he further demands for money from her or from her husband i.e. petitioner no.1 or takes any legal action against them, she will get murdered the first informant.
The submissions made by the petitioner's learned counsel call for determination on pure questions of fact which may be adequately discerned only through proper investigation. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins or where the investigating agency should not be given fullest opportunity to make proper inquiry and reach at the just conclusions in the matter. This Court does not deem it proper to suffocate or trammel the ambit and scope of independent investigation into the case. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during investigation or trial. But it shall suffice to observe that the perusal of the record makes out prima facie offences at this stage and there appear to be sufficient ground for investigation in the case. We do not find any justification to quash the F.I.R. or the proceedings against the accused arising out of it as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the same is refused as we do not see any breach of constitutional provisions or any abuse of the process of law.
However, in view of the peculiar facts and circumstances of the case, it is directed that in case after surrendering in the court below an application for bail is moved on behalf of the accused-petitioners within ten days from today, the same shall be considered and decided in accordance with law.
In the aforesaid period or till the date of appearance of the accused- petitioners in the court below, whichever is earlier, no coercive measures like arrest shall be taken or given effect to.
It is clarified that this order has been passed only with regard to the accused on behalf of whom this writ petition has been moved in this Court.
With the aforesaid observations, this writ petition is finally disposed off.
Order Date :- 22.2.2019 M. Kumar