Shyam Sunder vs State of Punjab

B. Rai, J.

This petition under Section 482 of Code of Criminal Procedure has been filed by Shyam Sunder and his three sons for quashment of FIR No. 35 dated April 8, 1996 registered at Police Station Ropar (copy annexure P6) under Sections 406 and 420 of Indian Penal Code and all the proceedings relating thereto, arising therefrom or in connection therewith, inter alia, on the grounds that petitioner No. 1 is a petty shopkeeper carrying on `Karyana'' business in Sector 20D, Chandigarh and petitioners No. 2 to 4 are his sons; respondent No. 3 is working as financier and advances loans on interest. He was friendly with petitioner No. 1. On the basis of friendship petitioner No. 1 borrowed a sum of Rs. 2 lacs on December 13, 1994 agreeing to pay it back after a short period without interest. Due to circumstances, the petitioner could not return the loan as promised. He, however, returned the loan subsequently in two instalments. The last payment was made through cheque dated April 12, 1995. Respondent No. 3 issued a receipt of Rs. 56,000/ (copy annexure P1) expressly stating therein that the amount has been received in full and final settlement. That amount was debited in his account (a copy of the relevant Bank account is annexure P2). It is further alleged that the amount was advanced to the petitioner No. 1 as a loan and that factual position has been recited in the legal notice, issued to petitioner No. 1 by respondent No. 3 (copy of the legal notice is annexure P3). It is further pleaded that on a second thought, however, respondent No. 3 demanded interest at a high rate, but petitioner No. 1 did not agree to the same on the ground that the amount was repaid to him in full and final settlement of his claim.

Respondent No. 3 made a complaint to Chandigarh Police alleging an offence of cheating against the petitioner and his sons. That complaint was enquired into by the Chandigarh Police, Economic Wing, and after a deep probe, it was found that the matter was of civil nature and no action on criminal side was called for. The report is Annexure P4. Thereafter, respondent No. 3, without disclosing that he had already filed a complaint with the Chandigarh Police, approached the police at Ropar with the same complaint for the same purpose (copy anneure P5). It is alleged that respondent No. 3 is a rich person doing business of financing, who obliges the officers in various ways. He influenced the Ropar police and got the case registered. The petitioner, anticipating trouble, at their hand applied for prearrest bail vide an application (copy annexure P7), but the said petition for anticipatory bail was dismissed by this Court vide order dated November 6, 1995. Encouraged with the order dated November 6, 1995, the Ropar police sought permission to register a case with a prayer for modification of the order dated November 6, 1995. That application, however, was dismissed vide order dated February 12, 1996. After decision of the case against the petitioners, the petitioners were arrested by the Ropar police. They were tortured in many ways to recover from him, the original receipt, annexure P1 and the legal notice, annexure P3, which indicated that the dispute was of purely civil nature, and that no cheating was involved. It is further alleged that the premises of the petitioner were raided and ransacked, but petitioner No. 1 did not produce the documents, sought to be recovered from him. Ultimately, the petitioners were sent to the judicial lockup. However, they were released on bail after 18 days.

In response to notice of motion, issued by the court, respondent No. 3 has filed reply in the form of an affidavit pleading therein that an amount of Rs. 2 lacs was advanced to the petitioner under deception and the allurement given by the petitioners to get a gas agency at Kharar. That amount was not borrowed by them, but it was a Trust money, which was extorted from the respondent with dishonest intention. Accordingly, the petition for quashing the FIR is mis conceived. Not only this, the report under Section 173 of Code of Criminal Procedure has been filed and the case is pending for the trial. According to respondent No. 3, the receipt of Rs. 56,000/ issued by the respondent in favour of the petitioners, pertains to the amount, which they had received from him for the purpose of getting S.T.D. connection. It is alleged that the said deal was a separate one. The petitioners have spelled the receipt in this manner, which according to him, is totally erroneous. When the petitioner could not get the S.T.D. connection for the respondent, he returned the said amount. He took a specific plea that the money was not given as loan to the petitioners, therefore, the question of demanding interest does not arise. The petitioners being local residents of Chandigarh, the police of Chandigarh was bribed by them and the complaint was filed as being pertaining to a civil dispute, which according to him is factually incorrect. He pleaded that registration of FIR against the petitioners is absolutely correct and legally justified. He levelled the allegations that the petitioners are professional thieves. They indulge in such type of frauds with various people. About 3 cases of similar nature are pending against them. They are facing trial under Section 138 of the Negotiable Instruments Act at Chandigarh. It was, however, admitted that at the time of registration of FIR at Ropar, no legal opinion was obtained from the District Attorney (Legal) by the Ropar police and the matter was thoroughly enquired into. Other averments contained in the petition were denied.

The petitioners have filed replication controverting the pleas taken by the respondent and reasserted their stand.

I have heard the learned counsel for the parties and have gone through the record.

It was argued by the learned counsel for the petitioners that these days the police do interfere in civil matters for some extraneous considerations. A creditor often approaches them to get the amount without settling it into the court. According to the learned counsel, in this case also, respondent No. 3 approached the Chandigarh police for taking action against the petitioners alleging that they have committed an offence of cheating. According to the learned counsel, the complaint made by respondent No. 3 was thoroughly enquired into by the Chandigarh police, but it was fairly found that the dispute between the parties was of civil nature and no action was required to be taken on criminal side. To substantiate his arguments, he has referred to annexure P4 and annexure P2. It is specifically stated that the amount had been advanced as a loan. To further substantiate his contention, it was contended that when the petitioners sought the anticipatory bail from this Court, it was conceded on behalf of the respondent that the dispute was of a civil nature.

The learned counsel for the petitioners went on to argue that it appears highly improbable and incredible that the petitioner would join all his three sons to commit the alleged offence and they would simultaneously make a promise to get respondent No. 3 a gas agency. It was vehemently argued that the petitioners have already suffered mental and physical pain and torture. They are still getting threats from the police on telephone. Learned counsel states that they are threatening to implicate them in some Narcotic Drugs case, in which the petitioners would pass the rest of their lives in jail. The learned counsel for the respondents has endeavoured to justify the action taken against the petitioners.

I have given my thoughtful consideration to the rival contentions and have perused the record.

It was not disputed before me that after registration of FIR No. 35 dated April 8, 1996 under Sections 406/420 of Indian Penal Code at Police Station Ropar, final report under Section 173 Code of Criminal Procedure has already been submitted to the Ilaqa Magistrate and the trial is going on. Even if it is taken that the allegations contained in the First Information Report against the petitioners are totally false and baseless, it would be open to them to lead an evidence in their defence before the trial court. Not only this, after the presentation of the challan, case was posted for November 14, 1996 by the Judicial Magistrate Ist Class, Ropar for further proceedings. At the time of arguments, it was not the case of the petitioners that no charge has been framed against them for the alleged offences till date. If the Judicial Magistrate on perusal of final report under Section 173 Code of Criminal Procedure and after going through the documents relied upon by the proseention had formed a prima faice opinion to frame the charge against the petitioners and charge has already been framed, the petitioners could challenge the order framing the said charge in a court of competent jurisdiction, but there is nothing to show that any step in the direction was taken by the petitioners. Reasons recorded above do persuade this Court to hold that no ground is made out for quashing the impugned F.I.R. and any proceedings taken thereon by the trial court.

The petition, therefore, must fail and is dismissed.