C482/1383/2012 of FALGUN K. PATEL Vs STATE OF UTTARAKHAND AND ANR

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 1383 of 2012

Falgun K. Patel …………. Applicant

versus

State of Uttarakhand & another …………. Respondents

Ms. Pushpa Joshi, Sr. Advocate assisted by Mr. Manish Arora, Advocate for the applicant.

Mr. V.S. Pal, AGA with Ms. Shiwali Joshi, Brief Holder for the respondent State. Ms. Manisha Bhandari with Mr. Prem Kaushal, Advocates for respondent no. 2.

with

-Criminal Misc. Application (C482) No. 674 of 2013

Pawan Giri …………. Applicant

versus

State of Uttarakhand & another …………. Respondents

Ms. Pushpa Joshi, Sr. Advocate assisted by Mr. Saurav Adhikari, Advocate for the applicant.

Mr. V.S. Pal, AGA with Ms. Shiwali Joshi, Brief Holder for the respondent State.

Ms. Manisha Bhandari with Mr. Prem Kaushal, Advocates for respondent no. 2.

Hon’ble U.C. Dhyani, J. (oral)

Since both the applications, moved under Section 482 of Cr.P.C., involve common facts, therefore, these are being decided by this common judgment and order for the sake of convenience / brevity.

2) The applicants, by means of present applications under Section 482 of Cr.P.C., seek to quash and set aside the impugned charge-sheet as well as summoning orders dated 01.12.2012, passed by Addl. Civil Judge (Sr. Div.) / Judicial Magistrate, Roorkee, District Haridwar in criminal case no. 3286 of 2012, State vs Falgun K. Patel and others (case crime no. 110 of 2011), under Sections 420, 384, 120-B of IPC, which relates to police station Bhagwanpur, District Haridwar.

3) An FIR was lodged by respondent no. 2 Satbir Moolchand Sehrawat against Sanjeev Kumar, Champa Lal, Abha Sinha, Pawan Giri, Falgun Patel, Sandeep Gupta, Ravi Gupta, Naresh Gupta, Subhash Gupta, Praveen Teotiya on 23.05.2011 in police station, Bhagwanpur, Roorkee, District Haridwar, which was registered as case crime no. 110 of 2011, under Sections 120-B, 304, 420, 407, 468 and 471 of IPC. After the investigation, charge-sheet in respect of offences punishable under Sections 420, 384 and 120B of IPC was submitted against the accused persons. Cognizance was taken on the said charge-sheet and accused persons were summoned to face the trial for the offences complained of against them. Aggrieved against submission of charge-sheet and passing of summoning order, present applications under Section 482 of Cr.P.C. were filed by the applicants.

4) Learned counsel for the applicants submitted that the FIR does not disclose any offence, be it under Section 384 of IPC or Section 420 of IPC. There is no averment in the FIR that the complainant / respondent no. 2 was ever put in fear of life or immediate injury or was threatened by the applicants. If the applicants filed an FIR against respondent no. 2, the same does not amount to extortion, in as much as, the filing of an FIR does not come within the purview of extortion. Learned counsel for the applicants also submitted that the company owned by respondent no. 2 did not have any property / security / land in its name, hence, the question of incurring loss to respondent no. 2 does not arise.

5) It was further submitted that in FIR No. 96 of 2011, it was alleged that an agreement dated 08.01.2009 was executed between City Pride Builders and Promoters Pvt. Ltd. and Sandeep Gupta and Company, which document was forged / fabricated document. The Investigating Officer never called the original copy or certificate / verified copy of the said agreement. Learned counsel also submitted that the said document was nothing but waste paper in view of the statements and affidavits of other two Directors. Alleged forged document does not bear the signatures of Sandeep Gupta and Company. Even the address of Sandeep Gupta and Company is not mentioned in the same. The said agreement does not reveal the

particulars of any land, hence, it cannot be used for transfer of any land or property. No claim has been forwarded on the basis of said agreement. Learned counsel laid emphasis on the fact that the State Forensic Science Laboratory refused to give any handwriting expert opinion with regard to the agreement, in as much as the original document was never called by the Investigating Officer, and only photocopy of the same was available.

6) The agreement dated 08.01.2009 is already in question before the Judicial Magistrate at Roorkee, in which the Hon’ble Apex Court has directed the court below to proceed on day-to-day basis. In other words, the hearing of criminal case pending against respondent no. 2 is going on day-to-day basis at Roorkee. Learned counsel for the applicants also drew the attention of this Court towards the counter affidavit filed by respondent no. 1, in which the statements of Smt. Abha Sinha, one of the Directors of company of respondent no. 2, taken under Section 161 of Cr.Pr.C., were annexed. The applicants also lodged an FIR No. 153 of 2009 against respondent no. 2, in which charge-sheet was filed, and cognizance was taken. Respondent no. 2 made similar allegation in FIR No. 96 of 2011, regarding execution of sale deed by one Praveen Teotiya. State Government directed further investigation by CBCID in FIR No. 153 of 2009. The allegations levelled by respondent no. 2 were found to be baseless. Respondent no. 2 has,

therefore, been making baseless allegations against the applicants. Multiplicity of cases is not permitted in the eyes of law.

7) Coming back to the facts of FIR No. 96 of 2011, Rs. 3.10 crores were never transferred to Sandeep Gupta and Company by the company owned by respondent no. 2. Learned counsel for the applicants also drew the attention of the Court towards the counter affidavit filed by the State, wherein the statement of Subhash Gupta under Section 161 of Cr.P.C. were excerpted. Learned counsel further drew the attention of this Court towards the statement given by Sandeep Gupta under Section 161 of Cr.P.C. In Criminal Writ Petition No. 457 of 2011, filed by Subhash Gupta and Sandeep Gupta before this Court, and in Criminal Writ Petition No. 532 of 2011, filed by Naresh Kumar, it was admitted that they have received only Rs. 46 lacs from City Pride Builders and Promoters Pvt. Ltd. (respondent company). Smt. Abha Sinha and Pawan Giri also stated in their affidavits that their company did not pay any cash to Sandeep Gupta and Company. Respondent no. 2 failed to give any explanation of cash payment of Rs. 2.74 crores to M/s Sandeep Gupta and Company. Respondent no. 2, in his statement under Section 161 of Cr.P.C., disclosed about ‘HawalaOperation’ which was brought into notice by Circle Officer, Kankhal in his report dated 29.06.2013 to Sr. Superintendent of Police, Haridwar. Even Praveen Teotiya in his

statement under Section 164 of Cr.P.C., did not support the State case. It cannot be said on the basis of sale deed executed by Praveen Teotiya that he purchased the land as per agreement entered into between City Pride Builders and Promoters Pvt. Ltd. and Sandeep Gupta and Company on 15.02.2007 in lieu of payment of Rs. 3.90 crores.

8) Learned counsel for the applicants also contended that even if it be conceded for the sake of arguments that the applicants and their partner Champa Lal paid Rs. 1.25 crores through bank channel to Praveen Teotiya from which Praveen Teotiya paid to various individuals for sale deed, no crime is made out against the applicants. The said fact shows that Praveen Teotiya did not receive any land in lieu of Rs. 3.10 crores. Had Praveen Teotiya received land in lieu of Rs. 3.10 crores, there was no need of further payment of Rs. 1.25 crores.

9) Apparently it transpires that there is dispute between the Directors. Two Directors say that they did not pay Rs. 3.10 crores to Sandeep Gupta and Company, and not single square meter of land was transferred in favour of applicants’ company i.e. Sarck Infrastructure. One of the Directors said otherwise. It was lastly argued that the company of respondent no. 2 is registered company under the Company’s Act, 1956. Control of the company is only with the Board of

Directors and bank accounts of the company are operated jointly by two Directors, viz., Satbir Sahrawat and Abha Sinha. There is no resolution of the Board of Directors to support Satbir Sahrawat’s complaint. The complaint filed by Satbir Sahrawat was invalid and without authority.

10) Learned counsel for respondent no. 2 submitted that the applicants have not only played fraud upon respondent no. 2, but have also taken the entire State machinery for ride by forging documents in connivance with the co-accused, and implicated respondent no. 2 in false criminal case by manipulating records, witnesses for his vested financial interests. Respondent no. 2 placed documentary proof of forged documents alongwith the video recording. Upon his request the FIR against applicants was lodged. The charge-sheet was filed against the applicants. The Investigating Officer collected documentary as well as the oral evidence, which included statement under Section 164 of Cr.P.C. of Praveen Teotiya. Emphasis was laid that the disputed questions of fact cannot be decided in exercise of jurisdiction under Section 482 of Cr.P.C. The charge-sheet was based upon the documents and oral evidence, for which the trial has to be conducted and the same can be decided only after the authenticity of the witnesses are decided on touchstone of trial. During the investigation it came out that four prosecution witnesses cited in case crime no.

220 of 2009 (originated on the basis of FIR filed by Falgun K. Patel against Satbir Sahrawat and others), submitted their affidavits before this Court, stating therein, that the land was given to the applicant Falgun K. Patel as per the agreement dated 08.01.2009, and on his direction, the land was transferred in the name of Praveen as he was his Authorised Teotiya, Representative in the compounding application filed before this Court. They stated on oath that their statements were never recorded in case crime no. 220 of 2009. Learned counsel for respondent no. 2 further submitted that all these facts are the questions of fact which are to be decided and tried in the Court of law and the same cannot be subjected to the intervention of this Court.

11) It was also submitted on behalf of respondent no. 2 that the charge-sheet against the applicants was submitted after thorough investigation. The case presented by the complainant / respondent no. 2 against accused persons / applicants was that of using forged document as genuine one and filing of false case of not receiving land as against the money paid to the complainant. As per the agreement dated 08.01.2009, major chunk of land to be given to the applicant Falgun K. Patel was already given to him and in support thereof, there were the affidavits of the owners of the land. Sandeep Gupta and others stated on oath that they gave the land to applicant Falgun K. Patel

in pursuance of the agreement dated 08.01.2009, who was signatory to such sale deeds. Falgun K. Patel was in full knowledge of the fact that Praveen Teotiya, his own nominated representative, was being given the land. Praveen Teotiya stated under Section 164 of Cr.P.C. that he took the land on behalf of applicant Falgun Patel, who was not domicile of Uttarakhand. Learned counsel for respondent no. 2, therefore, concluded by saying that the uncontroverted allegations as made from the record of the case and the document submitted therewith, prima facie, establish the offence against the applicants. Learned counsel for the applicants further contended that bare reading of the charge-sheet would disclose that the cognizable offence has been committed and the facts, evidence and material on the basis of which, the charge-sheet was filed, cannot be analysed at this stage. Learned counsel relied upon catena of decisions including R.P. Kapoor vs. State of Punjab, AIR 1960 SC 866, State of Haryana vs. Bhajan Lal, 1992 SCC (Crl.) 4226,Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986 and Roopan Deol Bajaj vs. . Kanwar Pal Singh Gill (1995) 6 SCC 194

12) The FIR filed against the accused-applicants for the offences punishable under Sections 420, 468, 471, 406, 120-B of IPC culminated into charge-sheet (against them) under Sections 420, 406, 384, 120B of IPC, after the investigation. As per the allegations

made in the FIR, accused-applicants used forged document (agreement dated 08.01.2009) as genuine one and filed false case of not receiving land as against the money paid to the complainant / informant. There were two agreements executed on 08.01.2009. One is said to be forged document and the other is genuine one. According to the complainant, the accused persons used the forged document as genuine one. As per another agreement dated 08.01.2009 (genuine one), major chunk of the land to be given to the accused Falgun K. Patel had already been given to him. The affidavits of the sellers of said land were filed in support thereof. Sandeep Gupta and others filed affidavits to show that they gave the land to Falgun K. Patel in pursuance of the agreement dated 08.01.2009. Falgun K. Patel was signatory to such sale deeds and was in full knowledge of the fact that the person, who was being given the land, was Praveen Teotiya, his nominated representative. Praveen Teotiya, in his statement under Section 164 of Cr.P.C., said that he took land on behalf of Falgun K. Patel, as the latter was not domicile of Uttarakhand. It is question of fact to be proven in the Court of law as to why and how, he signed such sale deeds and whether he had the knowledge, as told by the witnesses. The chargesheet was supported by the copies of sale deeds bearing signatures of the accused Falgun K. Patel, copies of the statements of the prosecution witnesses, videography establishing the transfer of money from the complainant

to the prosecution witnesses, its transcript, statement under Section 164 of Cr.P.C. of Praveen Teotiya, statements of other witnesses, which, prima facie, bring out the commission of offence to show that even after receiving the land, the applicants, in connivance with co-accused, registered false case against the complainant to extort money, cheat him with further money, even after receiving land of the same value and also filed civil suit for recovery of money against which accused-applicant already received land.

13) Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherentpowers. Where allegations give rise to civil claim and also amount to an offence, merely because civil claim is maintainable, does not mean that criminal complaint cannot be maintained. It may be purely civil wrong or purely criminal offence or civil wrong as also criminal offence constituting both on the same set of facts. But if the records disclose commission of criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because civil wrong has also been committed. The power cannot be invoked to stifle or scuttle legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss complaint or quash such proceedings in exercise of its inherent or original jurisdiction. Quashing of charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with view to decide admissibility and reliability of the documents or records, but is required to proceed as per an opinion, formed prima facie. The factual foundation and ingredients of an offence being satisfied the court will not dismiss the complaint or quash such proceedings in exercise of its original jurisdiction.

14) In the instant case, it cannot be said, on bare reading of the FIR coupled with the documents that no cognizable offence was, prima facie, made out against the accused-applicants. If the law laid down by the Hon’ble Apex Court in catena of decisions is applied to the facts of this Case, it leads to the one and only conclusion that no interference is called for by this Court in exercise of its inherent jurisdiction. The reply to the steps required to be followed by the High Courts, as given in Rajiv Thapar and others vs Madan Lal Kapoor, (2013) 3 SCC 330, is also in the negative. It is also settled law that the factual aspects need not be gone into by this Court in exercise of it’s inherent jurisdiction. The jurisdiction under Section 482 of Cr.P.C. has to be exercised sparingly, carefully and with caution and only when exercise is justified by the tests specifically laid down in the section itself. This Court is, therefore, not coming to the conclusion, nor can it be, in exercise of its jurisdiction under Section 482 of Cr.P.C., that the allegations levelled against the accused-applicants are proved or substantiated. Appellate or revisional jurisdiction is different from this jurisdiction, in as much as the parties have already availed of the opportunity to adduce evidence in appellate (or revisional) jurisdiction, which opportunity is available to the parties only to the extent of filing affidavit, counter affidavit, rejoinder affidavit alongwith the documents in this jurisdiction. This Court is therefore, only inclined to hold at this stage that it is

not such case in which the Court should exercise it’s inherent jurisdiction to throttle or quash the prosecution story, in as much as, the factual controversy is not to be gone into by this Court in exercise of its inherent jurisdiction under Section 482 of Cr.P.C.

15) Both the applications filed by the accused-applicants under Section 482 of Cr.P.C. are, therefore, dismissed.

16) Since the trial in the cross case is already on it’s way before Judicial Magistrate, Roorkee and the accused persons in that case were directed to be released on bail, in the event of their arrest, by Hon’ble Supreme Court, vide judgment and order dated 25.02.2011, it will therefore, be in the fitness of things, if somewhat similar order is passed in respect of the accused persons of this case also. It is accordingly provided in the interest of justice that if the accused-applicants surrender before the court below and seek bail, their bail applications shall be decided by the court concerned as expeditiously as possible and without unreasonable delay.

(U.C. Dhyani, J.)