Kuldeep Singh Chauhan vs State of Haryana and others

MANISHA BATRA, J. (Oral)

The present petition has been filed under Section 482 of the Code of Criminal Procedure (for short 'the Code') seeking quashing of the order dated 13.06.2022 (Annexure P-3), passed by the Court of learned Judicial Magistrate First Class, Gurugram, whereby the prayer made by the petitioner under Section 156(3) Cr.P.C. for directing registration of an FIR was declined, as well as for quashing of the order dated 13.08.2024, passed by the Court of learned Additional Sessions Judge, Gurugram dismissing, whereby the revision preferred by the petitioner against the said order, had been dismissed.

Briefly stated facts relevant for the purpose of disposal of this petition are that the petitioner is the son of late Surender Pal Singh Chauhan, who passed away on 20.04.2021, leaving behind four legal heirs, including respondent No.2, namely Suman Senger, who is the petitioner's sister. According to the petitioner, his father had been suffering from Parkinson's disease for several years and, during the last phase of his life, was not physically or mentally capable of understanding or executing documents. It is alleged that respondent No.2 and her husband, respondent No.3, who were residing near the deceased, fraudulently procured signatures/thumb impressions of the deceased on certain documents and manipulated his movable and immovable assets in their favour without the knowledge or consent of the other legal heirs.

It is further alleged that after the death of the petitioner's father, respondent Nos.2 and 3 continued to operate his bank accounts and withdrew substantial amounts through ATM transactions despite having knowledge of his demise. The petitioner claims that complaints and representations were submitted to the Commissioner of Police, Gurugram as well as to the concerned banks requesting appropriate legal action and freezing of the accounts. However, the police, after conducting an inquiry, concluded that no cognizable offence was made out. Consequently, the petitioner instituted a private complaint under Sections 406, 420, 467, 468, 471 and 120-B IPC along with an application under Section 156(3) Cr.P.C. seeking registration of an FIR. The learned Magistrate declined the said prayer but directed the complainant to lead preliminary evidence and the revision petition against the said order also came to be dismissed. Aggrieved thereof, the present petition has been filed.

It is argued by learned counsel for the petitioner that the impugned orders are not sustainable in the eyes of law. The allegations made in the complaint clearly disclose commission of cognizable offences involving cheating, criminal breach of trust, forgery and conspiracy. However, both the Courts concerned did not take into consideration the said fact. It is argued that the deceased was suffering from serious ailments and was not in a position to execute any document consciously, yet respondent Nos.2 and 3 managed to obtain documents in their favour and thereafter misappropriated the funds lying in his bank accounts by repeatedly operating his ATM card even after his death. It is further argued that respondent No.2 cannot derive any legal advantage merely on the basis of being a nominee in the bank accounts, as nomination does not override the rights of legal heirs under the law of succession. The allegations require a thorough police investigation involving collection of bank records, ATM transactions, electronic evidence and verification of disputed documents, which cannot effectively be undertaken in a private complaint. It is thus submitted that both the Courts below have adopted an unduly technical approach in refusing to exercise powers under Section 156(3) Cr.P.C. despite the complaint disclosing cognizable offences. While submitting that an FIR under the appropriate penal provisions is required to be registered against the private respondents, it is urged that the petition deserves to be allowed and the impugned orders are liable to be quashed. To fortify his arguments, learned counsel for the petitioner has relied upon the authority cited as Lalita Kumar v. Govt. Of U. P. and another, 2013 SCC Online 999 to contend that registration of FIR is mandatory if the information discloses commission of a cognizable offence.

Per contra, learned State counsel has argued that there is no infirmity or illegality in the impugned orders. The learned Magistrate has exercised his discretion in accordance with law. The complaint has not been dismissed and the petitioner has already been afforded an opportunity to substantiate his allegations by leading preliminary evidence. The Magistrate, after considering the material placed before him, found no justification for directing registration of an FIR at that stage. It is further argued that the dispute essentially arises out of transactions between family members concerning the estate of the deceased and the material sought to be relied upon by the petitioner is already within his knowledge and possession. Therefore, there is no requirement for immediate police investigation. Hence, it is urged that the petition, being devoid of any merit, is liable to be dismissed.

This Court has heard the rival submissions.

The grievance of the petitioner is confined to the refusal of the learned Magistrate to invoke powers under Section 156(3) Cr.P.C. It is not in dispute that the learned Magistrate has not dismissed the complaint. Rather, while declining the request for registration of an FIR, the learned Magistrate has directed the petitioner to lead preliminary evidence and the complaint is already pending consideration before the trial Court. The revisional Court has also affirmed the said view. The power under Section 156(3) Cr.P.C. is discretionary and is not to be exercised as a matter of course merely because the complaint alleges commission of cognizable offences. Where the complainant is in possession of the relevant facts and evidence and is capable of substantiating the allegations by leading evidence before the Magistrate, the Court is fully competent to proceed under Chapter XV of the Code instead of directing registration of an FIR.

In the present case, the allegations primarily arise out of transactions relating to the estate of the deceased and are founded upon documents, bank transactions and circumstances already within the knowledge of the petitioner. The learned Magistrate has consciously chosen to proceed with the complaint by calling upon the petitioner to adduce preliminary evidence. Such a course is permissible in law and cannot be said to be suffering from any jurisdictional error or patent illegality. Merely because the petitioner desires a police investigation would not justify interference in exercise of the inherent jurisdiction of this Court. No perversity, arbitrariness or miscarriage of justice is discernible in the concurrent orders passed by the Courts concerned.

The reliance placed by the petitioner upon the judgment of the Hon'ble Supreme Court in Lalita Kumari' case (supra) is misconceived and does not advance his case. The said judgment lays down the obligation of the police under Section 154 Cr.P.C. to register an FIR where information disclosing a cognizable offence is received. The controversy in the present case, however, does not pertain to the failure of the police to register an FIR under Section 154 Cr.P.C. simpliciter but to the correctness of the judicial discretion exercised by the learned Magistrate while dealing with an application under Section 156(3) Cr.P.C. The Magistrate, after examining the complaint and the material placed on record, declined to direct registration of an FIR and instead chose to proceed with the complaint by calling upon the petitioner to lead preliminary evidence under Chapter XV of the Code. Such a course is legally permissible and falls within the discretion vested in the Magistrate. Moreover, the allegations arise out of a dispute amongst legal heirs regarding the estate of the deceased and are founded upon facts and documents already within the petitioner's knowledge and possession. Therefore, the ratio of law laid down in this authority cannot be mechanically extended to curtail the discretion of the Magistrate while considering an application under Section 156(3) Cr.P.C. or to compel an order directing registration of an FIR in every such case.

In view of the discussion as made above, this Court finds not merit in the present petition. Accordingly, the same is hereby dismissed.

Pending miscellaneous application(s), if any, shall also stand disposed of.