Wednesday, October 10, 2007

498A FIR Qushing Judgement

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IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT: QUASHING OF FIR

WP (Crl) No 77/2004

Date of Decision : 18.11.2004

Mahindra Kumar Narendra & Ors. ..Appellant

Through Mr. Mr.Rahul Gupta with Mr.Rakesh Mukhija and Mr.S.Tabrez, Advocates

Versus

State & Ors. ..Respondents

No.1 & 2 Through Mr.Akshay Bipin, Advocate

No.3 Through Mr.Mohit Mathur, Advocate

R.C.CHOPRA, J.

1. The petitioners feeling aggrieved by the registration of the FIR No.375/2003 at PS Shahdara, Delhi under Section 498-A/406/506/323/34 IPC have filed this Writ petition under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure with the prayer to quash the aforesaid FIR and restrain the respondents from taking any action in pursuance thereof.

2. The facts relevant for the disposal of this petition, briefly stated, are that the petitioners are residents of Raj Nagar, Ghaziabad, U.P. Petitioner No.3, who is the son of petitioners No.1 & 2, was married to Ms.Sarabpreet Kaur, respondent No.3, a resident of Delhi. On account of some matrimonial disputes between petitioner No.3 and respondent No.3, FIR No.474/2003 dated 9.7.2003 was registered at PS Kavi Nagar, Ghaziabad, U.P. on the basis of a complaint filed by respondent No.3. The said FIR was transferred to Delhi and thereafter, registered as FIR No.375 of 2003 at PS Shahdara, Delhi. The petitioners allege that the transfer of the FIR and the registration thereof at Delhi was an abuse of the process of law and as such, was liable to be quashed. It is pleaded that Police at Ghaziabad, U.P. had no powers or authority to transfer the FIR, which was registered at PS Kavi Nagar, Ghaziabad.

3. It is also pointed out by the petitioners that after marriage, the petitioner No.3 and his wife respondent No.3 had stayed at Ghaziabad for few days and thereafter on 24.2.2002, they left for Bahrain as petitioner No.3 was working there for the last about 10 years. They came back from Bahrain after about 1½ year and reached India on 3.7.2003. On the same date, the wife Sarabpreet Kaur, respondent No.3 left for her parents’ house at Shahdara and on the morning of 4.7.2003, the petitioner No.3 went back to Bahrain to join his duty. On 9.7.2003 the wife respondent No.3 filed FIR at Kavi Nagar, Ghaziabad, U.P., on the basis of which petitioner No.1 was arrested. He was released on bail on 14.7.2003. The petitioner No.2 also surrendered before the Court and was released on bail on 18.7.2003. In October, 2003, the petitioners were approached by Police personnel from Delhi as well as some Police officials from Ghaziabad that FIR No.375/2003 had been registered at Delhi and thereafter, on inquiries, they came to know that the Police authorities at Ghaziabad had ordered transfer of the FIR and investigations to Delhi. It is pleaded that the registration of FIR at Shahdara, Delhi is without jurisdiction, illegal and actuated with malafides of the complainant to blackmail and pressurize the petitioners.

4. In the Status Report filed on behalf of the State, it is stated that the FIR No.474/2003 registered at PS Kavi Nagar, Ghaziabad, was transferred to Delhi as the complainant was apprehending danger to her life while going to U.P. to attend the case. It is also pointed out that the FIR lodged at Kavi Nagar, Ghaziabad disclosed that after coming back from Bahrain, the husband of the complainant had brought her to her parental house at Shahdara, Delhi and asked her parents that she should be sent to her matrimonial home only when they were able to give Rs.3 lacs. On 9.7.2003, when the complainant went to her matrimonial home at Raj Nagar, Ghaziabad, she came to know that her husband had already left for Bahrain. Her in-laws did not allow her to enter the matrimonial home and she was given beatings also. It is clarified that no fresh case has been registered by Delhi Police and only a new number has been given to the old FIR, which was being investigated by U.P. Police. On the request of the petitioners’ counsel, the case file was produced before the Court and it was shown that the orders for transferring the FIR from Ghaziabad to Delhi were on the ground that the complainant was making a request for transfer of the FIR and also for the reason that part of the cause of action had arisen within the jurisdiction of Delhi Courts.

5. Learned counsel for the petitioners has vehemently argued that the FIR registered at Ghaziabad could be transferred to Delhi only if no part of cause of action had arisen at Ghaziabad. It is also submitted that only High Court could transfer the investigations of the FIR No.474/2003 registered at PS Kavi Nagar to Delhi. He relies upon the judgements in “Satvinder Kaur Vs. State & Anr.” reported in (1999) 8 SCC p-728, “Navinchandra N.Majithia Vs. State of Maharashtra & Ors.” reported in (2000) 7 SCC p-640, “State of Haryana & Ors. Vs. Bhajan Lal & Ors.” reported in 1992 Supp (1) SCC p-335 and “T.T.Antony Vs. State of Kerala & Ors.” reported in 2001 Vol. 6 SCC p-181 to contend that Ghaziabad Police had no authority or power to transfer the investigations to Delhi.

6. On the other hand, learned counsel for the State and learned counsel for respondent No.3 argue that the FIR in question was merely forwarded by Ghaziabad Police to Delhi on the request of the complainant and for the reason that part of cause of action had arisen within the jurisdiction of Delhi Courts and as such, no illegality or irregularity had been committed. It is submitted that the FIR remains the same and only its number has been changed so that it is registered at the concerned Police Station and investigations are carried out in accordance with law. They rely upon the judgement of Satvinder Kaur Vs. State & Anr.(supra) as well as the judgement in “Sukhjinder Singh Vs. State” reported in (2001) 8 SCC p-630 to contend that there was nothing wrong in forwarding the FIR to Delhi Police and its registration and investigations.

6. After considering the submissions made by learned counsel for the parties and in view of the judgement of the Apex Court in Satvinder Kaur Vs. State (supra), this Court is of the view that there is no embargo or restriction upon an Investigating Officer in the matter of forwarding an FIR to a Police Station if he comes to the conclusion that the crime was committed within territorial jurisdiction of that Police Station also. It cannot be held that FIR can be transferred only when it is found that no cause of action had arisen within the area in which FIR was lodged. In Satvinder Kaur’s case, the quashing of the FIR by the High Court was held improper but it was nowhere stated that when an offence has been committed partly in one area and partly in another area, the I.O. has no powers to forward the case to the Police Station of the area in which the offence appears to have been partly committed. For example, if the kidnapping takes place in area “A”, murder takes placed in area “B” and the destruction of evidence is in area “C”, the FIR can be registered by the Police at any of the three places under Section 178 (c) of the Code for the reason that the Magistrates of all these areas are empowered to take cognizance of the offence under Section 170 and 173 of the Code of Criminal Procedure. Investigating Officer in whose area the offence was partly committed and FIR was lodged may for a variety of reasons forward the case to another area, in which also the offence was partly committed, so that further investigations and trial may take place in that area. In the case of murder as mentioned above, if FIR is lodged at place “C” but the Investigating Officer is of the view that the investigations and trial should be at place “A” or “B” where the main offence was committed or where the witnesses and evidence are readily available or more effective investigations can be conducted by the Police of those areas, he may forward the case to the Police Stations of those areas. It is not necessary that Investigating Officer forwarding the case should find that no part of cause of action had taken place within his jurisdiction inasmuch as where an offence is partly committed at one place and partly at another place, the discretion must remain with the Police or complainant to choose the place of trial. The accused should not have any say in the matter. The only embargo is that FIR cannot be transferred to an area in which no part of offence appears to have been committed. The case of Naveenchandra N.Majithia Vs. State of Maharashtra & Ors. (Supra) dealt with the question of cause of action only in relation to Article 226(2) of the Constitution of India and as such, is not directly applicable to the facts of the present case.

7. In the present case, the file produced by the State before the Court, which was requisitioned on the request of learned counsel for the petitioners, clearly discloses that the investigations were transferred to Police Station Shahdara by the Ghaziabad Police on the ground that the complainant was finding it difficult to pursue her case in Ghaziabad as well as for the reason that part of cause of action had arisen within the jurisdiction of Police Station Shahdara where the petitioner No.3 had left his wife respondent No.3 after saying that she should be sent back to her matrimonial home only when her family was able to give Rs.3 lacs. It it alleged that thereafter on that very night, the petitioner No.3 left for Bahrain and when the complainant respondent No.3 went to her matrimonial home, she was maltreated and beaten and as such, she spontaneously made a report at PS Kavi Nagar, Ghaziabad. Since a part of cause of action had arisen within the jurisdiction of Delhi Courts also and the complainant was requesting Ghaziabad Police to send her case to Delhi, there was nothing wrong if the FIR was forwarded to PS Shahdara and was registered as FIR No.375/2003. If no part of cause of action had arisen within the jurisdiction of PS Shahdara, the things would have been otherwise.

8. It is not understandable as to what prejudice the accused-petitioners would suffer if instead of Ghaziabad Police, the Police at Delhi carries out the investigations and the case is tried by Delhi Courts. It appears that the petitioners are trying to bring respondent No.3 under pressure by making her pursue the case in U.P. as they know that she and her parents are residents of Delhi and it would be difficult for them to pursue the matter in Ghaziabad or U.P. Courts. It cannot be held that the registration of FIR at Shahdara, Delhi, was without jurisdiction, illegal, abuse of process of law or actuated with any malafides. The judgements of the Apex Court in State of Haryana & Ors. Vs. Bhajan Lal & Ors. and T.T.Antony Vs. State of Kerala (supra) are of no help to petitioners as it is not a case of second FIR but merely a case of transfer of the FIR from one Police Station to another Police Station.

9. In the result, this Court is of the considered view that the prayer for quashing the FIR No.375/2003 registered at PS Shahdara and for prohibiting the Police from carrying out further investigations is without any merit.

The petition, therefore, stands dismissed.

10. However, it is clarified that the benefit of bail that has been granted to two of the petitioners by the Courts at Ghaziabad shall continue and shall not be re-agitated merely on the ground that the case has been forwarded to Delhi Police.

November 18, 2004 R.C.CHOPRA, J.

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THIS SECOND JUDGEMENT WAS DISMISSED BUT IT HAS MANY REFERENCE TO SUCCESSFUL CITATIONS


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IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT: QUASHING OF FIR

WP (Crl) No 832/2002

Date of Decision : September 09, 2004


Narender Dev Relan
Through Mr.K.T.S.Tulsi, Sr.Advocate
with Mr.S.S.Jauhar and Mr.Prabhjit
Jauhar, Advocates ....Petitioner

Versus

State & Ors.
Mr.Sunil K.Kapoor for respondent No.1
Through Mr.D.Moitra for respondents
No.2 to 5 ....Respondent


R.C.CHOPRA, J.

1. This Writ Petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure is for quashing FIR No.477 registered at P.S. Connaught Place, New Delhi under Section 406/420/120-B IPC and the proceedings arising therefrom.

2. The facts relevant for the disposal of this Writ Petition, briefly stated, are that the petitioner was carrying on the business of stock and share brokering under the name and style of M/s.R.K.Relan & Company, a partnership firm, which was a member of Delhi Stock Exchange. On 7.8.1998, this firm informed Delhi Stock Exchange that it was being dissolved w.e.f. 15.8.1998. On the said date, this firm was dissolved. The clients were informed about the dissolution of the firm. Delhi Stock Exchange issued notices to the creditors to submit proof of their outstanding dues/claims in pursuance of which respondents No.2 to 5 also furnished their claims, which were verified by a Default Committee of Delhi Stock Exchange headed by Mr.Justice N.N.Goswami, a retired Judge of Delhi High Court. While the Committee appointed by Delhi Stock Exchange was looking into the claims the respondent No.2 made a complaint to Delhi State Consumers Disputes Redressal Commission and also to DCP (Crime), Economic Offences Wing, New Delhi.

3. In March, 2001, respondents No. 2 to 5 filed a writ before the High Court which was registered as WP (Crl.) No.316/2001. Vide orders dated 31.8.2001, the High Court directed DCP (Crime) to look into the matter and take action in accordance with law. In pursuance of the said orders, the aforesaid FIR was registered on 15.9.2001. On 27.9.2001, the petitioner appeared before the High Court. After hearing him, it was ordered that DCP (Crime) shall look into the contentions being raised by the petitioner. On 9.11.2001, the claims of the respondents No.2 to 5 were settled by Delhi Stock Exchange and on 24.5.2002, they accepted payments after giving undertakings.

4. According to the petitioner, the disputes between the petitioner and respondents No.2 to 5 were purely civil in nature and no offence was made out and as such, the process of criminal justice was being misused for blackmailing the petitioner, who was aged about 72 years. It was also pleaded that the facts and circumstances of the case did not disclose commission of any offence and as such, the FIR as well as the proceedings arising therefrom were liable to be quashed.

5. The respondent No.1 filed a status report giving the details of the FIR and the allegations being levelled against the petitioner. It was submitted that as per investigations, it had been established that 5000 shares of M/s.Silver Line Industries in the name of respondents were sold through the firm of the petitioner and 100 shares of Satyam Computers, 100 shares of State Bank of India and 100 shares of HCL Infosys were purchased through them but neither the sale proceeds of Silver Line shares was paid to the complainant nor the shares of Satyam Computers , State Bank of India and HCL Infosys were delivered to them. It was clarified that though these shares along with sale proceeds of about 4.9 lacs had been returned to the complainant after the registration of the case but the complainant was insisting upon making good losses which were estimated at Rs.84 lacs and hence, the petition was without any merit.

6. The counter affidavit filed by respondent No.2 also says that the petitioner and his firm had indulged in cheating and criminal breach of trust inasmuch as by the date of the registration of the FIR, neither the shares were delivered nor payments were made to respondents No.2 to 5. According to him the undertaking signed before Delhi Stock Exchange was sought to be signed "without prejudice" but the Stock Exchange authorities refused to give cheques, if he wrote those words. The petitioner filed a rejoinder to the counter affidavit of respondent No.2. An additional affidavit was also filed by the petitioner.

7. Learned counsel for the petitioner has vehemently argued that the FIR in question and the proceedings emanating therefrom are liable to be quashed inasmuch as the petitioner has not committed any offence under Section 420/406 or 120-B IPC. According to him, the disputes between the parties are of purely civil nature and the respondents No.2 to 5 are indulging in arm twisting tactics to pressurize the petitioner to extract some more amount from him to which they are not entitled. He argues that the petitioners' firm had wound up its business in accordance with the rules and regulations of Delhi Stock Exchange. It had placed all its accounts and list of creditors before the Default Committee for verification and deposited Rs.30 lacs also for payment to creditors. He submits that after the statement dated 24.5.2002 under which the respondents 2 to 5 received payments they have no justification for continuing with the criminal proceedings against the petitioner. The dispute was in regard to the sale of the shares of Silver Line Industries and the shares which had been purchased on behalf of respondents No.2 to 5 but the payment of the Silver Line Industries shares had already been made and the shares also have been delivered. He points out that in the letter dated 14.9.1998 written by the complainant to Delhi Stock Exchange, there was no allegation of any inducement or dishonest intention, which shows that the dealings between the petitioner and the respondents NO.2 to 5 were routine business dealings without any misrepresentation or inducement. In the complaint before the Consumer Forum also, no allegations of cheating etc. were made and as such, it can be held that the FIR and the proceedings arising therefrom are an abuse of the process of law.

8. Learned counsel for the respondents No.2 to 5, however, contends that the petitioner had not only made misrepresentations to respondents No. 2 to 5 but was also guilty of criminal breach of trust inasmuch as in spite of being an agent only of respondents No.2 to 5, he refused to hand over the sale proceeds of the shares of Silver Line Industries as well as the share certificates of some of the companies, which were delivered only after the FIR was registered. According to him, it is not a case in which the Court should exercise its powers for quashing the FIR for the reason that the FIR discloses the commission of various cognizable offences by the petitioner.

9. I have heard learned counsel for the petitioner and learned counsel for the respondents. I have gone through the records of the case.

10. The principles and the parameters for quashing a complaint or an FIR were settled by the Apex Court in the case of State of Haryana Vs. Bhajan Lal & Ors. reported in 1992 Supp. (1) SCC 335. It was held that the powers for quashing a complaint or FIR should be exercised sparingly and only in exceptional cases and ordinarily, the Courts ought not to interfere with the investigations of cognizable offences. It was also held that the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. In the cases of Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615 as well as Trisuns Chemical Industry Vs. Rajesh Agarwal & Ors. reported in JT(1999) 6 SC P-618 also, the Apex Court held in no uncertain terms that in case a perusal of the FIR or the complaint discloses the commission of a cognizable offence, the Court must not axe down the FIR or the complaint at the threshold. It has been held that quashment of the FIR or a complaint in exercise of inherent powers of the High Court should be limited to very extreme and exceptional cases as indicated in Bhajan Lal Vs. State of Haryana (supra). It is settled position of law that if a prima facie case is made out disclosing the ingredients of the offence, the Court must not quash the FIR and the approach should be very circumspect, cautious and careful. A complaint or an FIR can be quashed only if the allegations made therein even if taken at their face value and accepted in entirety do not constitute any cognizable offence or the Court is of the view that the prosecution is absolutely frivolous and amounts to abuse of the process of law.

11. In the cases of Kamala Devi Aggarwal v. State of West Bengal; reported in 2001 Cri.L.J. 4733, Lalmuni Devi v. State of Bihar; reported in JT 2001 (1) SC 150, T.S. Rajamoni v. Randip Barua; reported in 2001 Cri.L.J. 4144 and Trisuns Chemical Industry Vs. Rajesh Agarwal & Ors. (supra) it has been held that the mere fact that a dispute is of civil nature also cannot be made a ground for quashing an FIR. The fact that an act has a civil profile also is not sufficient to denude it of its criminal outfit. In Rajesh Bajaj v. State of NCT of Delhi (supra) it was observed that the facts narrated in a complaint may reveal a commercial or money transaction but that hardly is a reason for holding that the offence of cheating is not made out. It was observed that many a cheatings are committed in the course of commercial and money transactions.
Learned counsel for the petitioner has relied upon the judgements in Ajay Mitra Vs. State of M.O. & Ors. reported in 2003(3) SCC P-11, Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr. reported in 1982(1) SCC P-466, G.Sagar Suri & Anr. Vs. State of U.P. and Ors. reported in 2000(2) SCC P-636, K.MuruganVs. Fencing Association of India, Jabalpur & Ors. reported in 1991(2) SCC P-412 and Madhavrao Jiwajirao Scindia & Ors. Vs. Sambhajirao Chandrojirao Angre & Ors. reported in (1988) 1 SCC P-692. In these judgements also, the principles as discussed hereinbefore have been enunciated.

12. In the light of the law and the powers of the High Court as discussed above, this Court finds that the FIR made by respondent No.2 against the petitioner cannot be held to be either false or frivolous on the face of it or disclosing no cognizable offence. The respondent No.2 has made categorical allegations in the FIR that the petitioner and his partner in spite of demands, did not pay the sale proceeds of 5000 shares of Silver Line Industries belonging to the complainant and his family and also did not deliver to them the shares of Satyam Computers, SBI and HCL Infosys. It was also alleged that they had dishonestly and fraudulently induced them to sell their shares and had committed breach of trust also. A further allegation was made that the petitioner and his partner had threatened him with dire consequences and told him that by spending Rs.1 lac, they could get him and his family killed/eliminated.

13. The plea of learned counsel for the petitioner that in August, 1998 itself, the petitioner's firm M/s.R.K.Relan & Company, which was a member of Delhi Stock Exchange, had decided to dissolve itself and had informed Delhi Stock Exchange which issued notices to its creditors including the respondents No.2 to 5, is of no help to him and does not absolve the petitioner and his partner of the offences complained of in the FIR for the reason that it has come on record that the sale proceeds of certain shares, which had been earlier sold by the petitioner and his partner on behalf of respondents No.2 to 5 and some share certificates were returned to respondents No.2 to 5 only after the filing of the FIR. This conduct may be a factor for indulgence in the matter of sentence but does not absolve the petitioner of the offences complained of. The settlement of claims of respondents NO.2 to 5 through Delhi Stock Exchange or the payments received by respondents No.2 to 5 after the verification of their claims by a Default Committee of Delhi Stock Exchange also does not obliterate the offences complained in the FIR. The fact that the respondents No.2 to 5 had moved Delhi State Consumers Disputes Redressal Commission but had not made any allegations therein in regard to the offences of cheating and criminal breach of trust is of no consequence inasmuch as in the complaint made before the Commission even, same facts were reiterated and relief was claimed against the petitioner and his firm. Before the said Commission, there was neither any need nor any purpose to allege that some offences had been committed by the petitioner and his partner. The deposit of a sum of Rs.30 lacs by the firm of the petitioner with Delhi Stock Exchange to settle the claims of the creditors was also immaterial as the petitioner being a member of Delhi Stock Exchange was obliged to follow the procedure for settling the claims of the creditors but it does not mean that the grievance of respondents No.2 to 5 against the petitioner and his partner were without any basis or was false and frivolous. The malpractices of the share brokers who play in the market with the funds of their clients are well known and as such, it cannot be said at this stage that the FIR made by respondent No.2 and the allegations contained therein are false and frivolous and are required to be axed at the threshold. The allegations in regard to the threats given to the respondent No.2 to get him and his family eliminated through some hired killers also make out a cognizable offence, which requires investigation and action in accordance with law.

14. The existence of a civil dispute between the petitioner and respondents No.2 to 5 does not ipso facto mean that the dispute has no criminal profile. The civil dispute might have been settled through Delhi Stock Exchange and the respondents might have received payment even after giving undertakings in view of the settlement dated 24.5.2002 but that in no way absolves the petitioner of criminal liability, if any, arising out of the transaction. The allegations of inducement, criminal breach of trust and criminal intimidation as made in the FIR did make out cognizable offences, which called for registration of FIR and investigations. Therefore, this Court does not find it to be a fit case for exercise of discretion to quash the FIR as prayed.
The petition accordingly stands dismissed.

September 09, 2004 R.C.CHOPRA, J.

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