Dinesh Trehan vs State of U.P. and others

Ramesh Sinha, J.—Heard Sri Mohit Singh, learned counsel for the petitioner, Sri S. K. Tripathi and Sri Manu Khare, learned counsel for the respondent No. 3 and the learned A.G.A. appearing for the State. The relief sought in this petition is for quashing of the F.I.R. registered at Case Crime No. 626 of 2011, under Sections 420. 467, 468 and 471. I.P.C, P.S. Sector 20 Noida, District Gautambudh Nagar.

The allegation against the petitioner in the first information report is that he approached the respondent No. 3 and stated that he wants to construct flats after dismantling his house, i.e., House No. B-35. Sector-20 Noida and he would give him ground floor and 1st floor by November, 2010. The petitioner told the informant that for the said purpose, he requires money from him for which an agreement to sale was executed between them on 5.5.2010 as security. The informant gave Rs. 20 lakhs in cash to the petitioner who assured that he would give the possession of the said flat to the informant by building the same by November, 2010 but the petitioner did not fulfil his promise. After taking the money from the informant, he started making excuses by saying that he would give him the flats. When the informant pressed hard to the petitioner to return his money, on which petitioner gave the post dated cheque No. 237307 of Rs. 20 lakhs dated 16.6.2011 of Bank of Rajasthan, Branch Janpath New Delhi. The informant when produced the said cheque through his Banker H.D.F.C. then the said cheque was dishonoured and returned to the informant''s banker with an endorsement that the payment of the said cheque has been stopped by the drawer. The informant further enquired from the Bank and he came to know that the said account was a Joint Account of two persons and the said account was operative by the signature of the said two persons and further there was insufficient fund in the said account. The informant further alleged that the petitioner prepared forged papers deliberately and dishonestly in order to put him to wrongful loss.

It has been argued by the learned counsel for the petitioner that the petitioner has lodged a first information report on 28.2.2011 at police station Sector-20 Noida District Gautambudh Nagar regarding theft of his original and important documents which included cheque book/pass book of Corporation Bank, Bank of Rajasthan, Bank of India and Bank of Patiala, Mobile phone, original sale-deed and original property papers etc. and the disputed cheque alleged to be given to respondents by the petitioner was lost, hence he wrote to his bank to stop payment of all the cheques including the cheque in question.

It is then urged that with regard to the disputed cheque, a complaint u/s 200, Cr. P.C. was filed by the respondent No. 3 in the court of Addl. Chief Metropolitan Magistrate, Patiala House, Delhi on 17.8.2011 u/s 138 of the Negotiable Instruments Act. The petitioner has been summoned vide order dated 19.8.2011 for facing the trial hence, the present first information report for the offence under Sections 420, 467, 468 and 471, I.P.C. is not maintainable against the petitioner. The learned counsel for the petitioner further submits that on 12.9.2011 he lodged a first Information report against the respondent No. 3 and one Rajendra Mehta which has been registered as 655 of 2011. under Sections 420, 467, 468 and 471. I.P.C. P.S. Sector 20 Noida, District Gautambudh Nagar on the allegation that the respondent No. 3 and Rajendra Mehta who is the brother-in-law of the petitioner with whom the some property dispute is going. In order to falsely implicate them forged sale deed and cheque in his name have been prepared and it has been alleged that the petitioner has taken Rs. 20 lakhs from respondent No. 3 with respect of his property in which he is residing for sale, the ground floor and 1st floor of the same to him and have further made a stop payment to deceive the respondent No. 3. It is then submitted by the learned counsel for the petitioner that on 5.5.2010, petitioner was in Firozpur, Punjab to attend the cremation of his relative and have come back from Firozpur, Punjab to New Delhi on 7.5.2010.

Learned counsel for the petitioner has placed reliance on the judgment of Hon''ble Supreme Court in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao and another, 2011 Cr LJ 1094; 2011 (2) ACR 1497 (SC). wherein it has been held :

"that the appellant who was already convicted u/s 138 of the Negotiable Instruments Act, 1881 he could not be again tried or punished on the same facts u/s 420 or any other provision of I.P.C or any other statute. Although the offences are different but facts are same. Hence, Section 300 (1) of Cr. P.C applies. Consequently, the prosecution u/s 420, I.P.C. was barred by Section 300 (1) of Cr. P.C.''''

The petitioner''s counsel also placed reliance on the judgment of Supreme Court in G. Sagar Suri and another v. State of U. P. and others, 2000 (4) ACC 501; 2000 (1) ACR 427 (SC), in which it has been held that, ''complaint filed u/s 138 of Negotiable Instruments Act for dishonour of cheque and F.I.R. also lodged for offence under Sections 406 and 420, I.P.C. was an abuse of process of law."

On the other hand, Sri Manu Khare. learned counsel for the respondent No. 3 has argued that the petitioner has cheated the informant and has not fulfilled his commitments. The petitioner in order to escape from his liability, he issued the disputed cheque which was found to be of an account operated jointly by two persons. The petitioner in order to deceive the informant of his money, got stop payment made and lodged a false first information report regarding theft of his documents in question on 28.2.2011 in which a final report was submitted by the police on 24.3.2011. When notice was issued to petitioner by the C.J.M., Gautambudh Nagar on the final report in Case Crime No. 205 of 2011, Sector-20 Noida. District Gautambudh Nagar, he did not appear before the Court inspite of the repeated notices sent to him hence, the Court accepted the final report on 2.6.2011.

The counsel for the respondent No. 3 has further drawn the attention of this Court that the dishonest conduct of the petitioner is evident from the first information report lodged by the petitioner on 12.9.2011 as a counter blast against respondent No. 3 and co-accused Rajendra Mehta, who is the brother-in-law of the petitioner for the offence as Case Crime No. 655 of 2011 under Sections 420, 467, 468 and 471, I.P.C., P.S. Sector 20 Noida. District Gautambudh Nagar in which false allegations are made against them to build up his defence. This Court stayed the arrest of the respondent No. 3 and co-accused Rajendra Mehta in Case Crime No. 655 of 2011 under Sections 420, 467, 468 and 471, I.P.C, P.S. Sector 20 Noida. District Gautambudh Nagar vide order dated 28.9.2011 of respondent No. 3 and co-accused Rajendra Mehta.

We have considered the submissions advanced by the learned counsel for the parties. We are of the opinion that right from the very inception the petitioner had no intention to deliver the flats to the informant for which he has taken Rs. 20 lakhs from the respondent No. 3 dishonestly and further in order to escape from his liability, he lodged a first information report regarding theft of his cheque books and certain documents including the disputed cheque and got stop payment of the same through his banker and has further lodged a first information report against the informant and his brother-in-law Rajendra Mehta, as counter blast on 12.9.2011. The aforesaid judgments of the Supreme Court cited by the learned counsel for the petitioner are distinguishable from the facts and circumstances of the present case. As in the instant case, there are allegations of forgery committed by the petitioner for preparing documents including Bank account which was operative by two persons which are still to be Investigated by the police, hence, it is not proper for this Court to arrive at a conclusion whether any offence of forgery is made out or not.

The Full Bench of this Court in Ajit Singh @ Muraha v. State of U. P. and others, 2006 (56) ACC 433 : 2006 (3) ACR 2842 (FB), reiterated the view taken by the earlier Full Bench In Satya Pal v. State of U. P. and others, 2000 Cr LJ 569 : 1999 (3) ACR 1985 (FB), after considering the various decisions of the Apex Court including State of Haryana and others Vs. Ch. Bhajan Lal and others, , that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex facie discernible from the allegations contained In the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case. From the perusal of the F.I.R., prima facie it cannot be said that no cognizable offence is made out. Hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner.

The writ petition is accordingly dismissed.