Full Text
HIGH COURT OF DELHI
SATPAL KALRA & ANR .....Petitioners
Through: Mr. A. Mishra, Mr. Sahil and Mr. Nidhish Kumar, Advocates.
Through: Mr. Amol Sinha, ASC (Criminal) for the State
SI Rahul Lamba, DIU/South.
Mr. Sanjay Dewan and Mr. Anish Dewan, Advocates for R-2.
JUDGMENT
1. The present writ petition has been filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter, ‘Cr.P.C.’) and seeks the quashing of FIR No. 273/2016 under Sections 420/406/506/120B of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) registered at P.S. Chittaranjan Park, Delhi and the proceedings emanating therefrom.
BACKGROUND
2. A complaint under Section 200 Cr.P.C. and an application under Section 156(3) of the Cr.P.C. was filed at the instance of Sh. Vishal Diwan (‘Complainant/Respondent No.2’) on 23rd July, 2016 before the Ld. CMM, Saket Courts, Delhi against Petitioner No. 2, Varun Kalra.
3. On 27th September, 2016, the aforesaid application under Section 156(3) Cr.P.C. was withdrawn by Respondent No. 2. Subsequently, the ld. Metropolitan Magistrate vide order dated 09th November 2016 recorded that the abovementioned complaint was also dismissed as withdrawn at the instance of Respondent No. 2.
4. FIR No. 273/2016, which is the subject matter of the present case was registered at the instance of Respondent No. 2, Sh. Vishal Diwan at P.S. Chittaranjan Park on 18th October, 2016 under Sections 420/406/506 IPC. The allegations made in the FIR are set out as under: i. It is alleged by Respondent No. 2 that the Petitioners were well acquainted to him for more than 10 years, and claimed themselves to be the Directors of SPL Marketing Private Limited. Sometime in April 2014, Varun Kalra (Petitioner No. 2) had approached him to invest money in his company for the purpose of starting a new business venture of importing cooling towers and its components. ii. It is alleged that accused/Petitioner No. 2 induced Respondent No. 2 to firstly pay Rs. 10 lakhs by way of cash on 10th June, 2014. Later, on 04th August, 2014, Petitioner No. 2 approached him again seeking the payment of some more amount, and, accordingly, Respondent No. 2 paid an additional sum of Rs. 9 lakhs. The payment of Rs. 9 lakhs were paid by way of Rs. 8 lakhs in cash and Rs. 1 lakh by way of Cheque bearing No. 0000012 dated 05th August 2014. In this regard, Petitioner No. 2 brought pre-printed documents as a “loan agreement” dated 04th August 2014 and “promissory note” dated 04th August 2014 on which he had signed and affixed his thumb impressions. iii. It was further alleged that Respondent No. 2 paid another sum of Rs. 2 lakhs by way of Cheque No. 0291721 dated 16th December, 2014 which was transferred in the account of Petitioner No. 2 bearing Account NO. 16621000009250. Thus, a total sum of Rs. 21 lakhs were paid by the Complainant to Petitioner No. 2. iv. Further, the Complainant alleged that when he demanded from Petitioner No. 2 to return the amounts, paid by him, Petitioner No. 2 transferred a sum of Rs. 2.[5] lakhs stating it to be share/return/entitlement over the investment made by Respondent No. 2. Subsequently, two cheques of Rs. 9 lakhs and Rs. 10 lakhs, bearing Nos. 000012 and 000017 respectively drawn on A/c No. 16621930003106, HDFC Bank Ltd., N-13, Kalkaji Branch, New Delhi were given to Respondent No. 2 towards discharge of the liability against the principal amount of Rs. 19 Lakhs paid by Respondent No. 2. v. It is stated that the aforementioned cheques were post-dated and payable in December 2015. Cheque No. 000012 was deposited on 3rd December, 2015 and Cheque No. 000017 was deposited in bank on 29th January, 2016 by Respondent No. 2. Once the cheques were presented in the bank, they were dishonoured by the banker of the accused/Petitioner for the reason of “drawer signature differs/AUTH TO OPERATE A/C not reached.” vi. It is alleged that the cheques were presented by Petitioner No. 2 with different signatures to the Complainant intentionally, knowing that the cheques would not be cleared by the bank due to signatures being contrary to the approved signatures and neither did the concerned bank account had sufficient balance for the cheques to be cleared, displaying the intention to cheat and defraud Respondent No. 2. vii. The Complainant also alleged that Petitioner No. 1, who is the father of accused/Petitioner No. 2 and one of the directors of SPL Marketing Private Limited avoided to accept the liability for the payment of money. He further states that he had been threatened by Petitioner No. 1 stating that if he does not withdraw his complaints against him and Petitioner No. 2, he would get the Complainant killed and his body will not be found by his family.
5. Respondent No. 2 had also filed a Complaint Case no. 632042/2016 under the Negotiable Instruments Act, 1881 before the Ld. MM (NI Act)-/SE/ND, Civil Judge, Saket Court, New Delhi.
6. It is stated that during the investigation the accused/Petitioner No. 2 was called for investigation after a notice was sent under Section 41-1(A) of the Cr.P.C., however, he did not join the investigation. Petitioner No. 1, who is the father of the accused/Petitioner No. 2 stated that his son was not present in India. Consequently, look out circular of Petitioner No. 2 was opened after which he returned to India and joined the investigation.
7. Upon completion of investigation, a chargesheet was filed qua the accused /Petitioner No.2 on 18th October, 2018 under Section 420 of IPC and Petitioner No. 1 was not arrayed as an accused.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
8. Learned Counsel for the Petitioners submit that the short question which requires adjudication in the present case before this Court is whether the FIR under question can be allowed to be continue or deserves to be quashed in view of the fact that a similar complaint which was filed by the Complainant/Respondent NO. 2 was dismissed as withdrawn. It is also submitted by the counsel for the Petitioners that it is a settled law the withdrawal of a complaint amounts to the acquittal of the accused qua the said offences and, therefore, an identical complaint on the same facts is not maintainable. Insofar as Section 506 IPC alleged against Petitioner No. 1 is concerned, the investigating officer has not charge sheeted him. In support of their contention, reliance is placed on the following judgements passed by the Hon’ble Supreme Court of India in Samta Naidu v. State of M.P., (2020) 5 SCC 378 and BRK Athethan Vs. Sun Group & Anr. 2022 SCC OnLine SC 1705.
9. It is stated that the allegations against the Petitioners are of civil nature. Further, he states that from the perusal of the chargesheet it is revealed that Respondent No. 2 has annexed one loan agreement which is alleged to have been executed on 04th August, 2019 wherein interest charged was 4.5% per month which comes to approximately 54% p.a. Further, as per the demand promissory note, the interest is charged at 8% per month which comes to 96% p.a.
10. It is further submitted that the entire amount of Rs. 21,00,000/- claimed to have been paid by Respondent No. 2 was allegedly paid in cash, with no receipt and no income tax return and Respondent No. 2 was aware that Petitioner No. 2, Varun Kalra had moved to California, and places reliance on Pg. 126 of the Chargesheet.
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2
11. Per Contra, it is submitted by the learned counsel for the Respondent NO. 2, Sh. Vishal Diwan that the subject FIR registered under Section 420 IPC contains all the essential ingredients of the offence of cheating under Section 415/420 IPC i.e. deception of a person either by making a false or misleading representation or by other action or omission; fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
12. According to the Complainant/Respondent No. 2, in the present case, he was induced by the accused to part with a considerable sum of money on, inter alia, the dishonest/false pretext of return (12-15%) besides assuring the repayment of principal amount. Being so deceived, the Complainant had paid the amount to the accused. Later, to return the amount, Petitioner No.2, Varun Kalra had dishonestly issued two cheques, which are the subject matter of the present FIR, with different signatures. The cheques were returned unpaid/dishonoured for the reasons of “signature differ”. He also places reliance on the bank opening form annexed with the chargesheet and states that there is sufficient material on record including the undisputed signatures of Petitioner No. 2 to show that he deliberately appended his incorrect signatures on the two cheques as he had every reason to believe that the cheques would be dishonoured.
13. Further, he submits that the accused/Petitioner No. 2 contemporaneously executed an agreement and a promissory note in favour of Respondent NO. 2/Complainant. He places reliance on the FSL report submitted by the RFSL, Chanakyapuri, New Delhi of the agreement dated 4th August 2014 which bears the signatures of Varun Kalra which is enclosed to the supplementary chargesheet. It is also submitted that Petitioner No. 1, who is the father of accused/ Respondent No. 2, had assisted his son as well as threatened Respondent No. 2. He also alleges that no proper investigation as to the role of Petitioner No. 1, i.e., Satpal Kalra has been done.
14. It has also been submitted that various complaints are pending against Petitioner No. 2, Varun Kalra in different courts and he was not appearing in those proceedings, as he had fled abroad since July, 2023. It is further submitted that earlier also in the initial stages of the matters he had fled to the United States of America and had returned only after the Trial Court was constrained to take coercive action against him.
15. It is therefore stated, that the conduct of Petitioner No. 2 disentitles him from any relief by this Court. Insofar as the quashing of FIR is concerned, it is stated that no case to quash the FIR has been made out, reliance has been placed on the settled legal position for the quashing of FIRs by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.
REJOINDER ON BEHALF OF THE PETITIONERS
16. It is submitted that Petitioner No. 1, who is a senior citizen, has no role per se and has been implicated in the present FIR with mala fide intentions and ulterior motives to settle score with Petitioner No. 2, Varun Kalra. Further, it was stated that the allegations made in the previous complaint by Respondent No. 2 were similar to the present FIR. The FIR in question, according to the counsel for the Petitioner, has the same contents as alleged in the previous complaint which was declined to be registered as FIR by the report of the Vigilance Department vide the report dated 5th April, 2016 on the grounds that it is civil in nature and no case has been made out.
17. On the question of joining the investigation at a later stage, it is stated that the Petitioners have joined the investigation as mentioned in the status report dated 27th July 2017 filed by the SHO, P.S. Chittaranjan Park. Petitioner No. 2 could not previously join the investigation as he was residing in USA and his visa had expired, which had to be renewed immediately thereon. Further, Petitioner No. 2 was advised by his attorney not to travel unless his visa was renewed, and therefore, Petitioner No. 2 joined the investigation at a later stage.
ANALYSIS AND FINDINGS
18. The primary contention on behalf of the Petitioners is that the present FIR cannot be allowed to be continued and deserves to be quashed, in view of the fact that a similar complaint filed by the Complainant herein was dismissed as withdrawn vide order dated 09th November, 2016 by the ld. Metropolitan Magistrate, Saket Court. It is submitted that the complaints were identical in nature and that in fact in pursuance of order dated 27th February, 2023 passed by the Predecessor Bench of this Court, a report was placed by the Investigating Officer which demonstrates that except for the contents of allegations levelled against Petitioner No. 1 all the other allegations in the previous complaint as well as the present FIR are identical. It is further submitted that even as per the chargesheet, the allegations against Petitioner No. 1 could not be substantiated and therefore, he was not charge sheeted.
19. It is the contention on behalf of the Petitioners that since Section 506 IPC against Petitioner No. 1 stands dropped, the contents of both the complaints are identical and in view of the same, the present FIR needs to be quashed.
20. The relevant list of dates and events as detailed in the written submission filed on behalf of the Petitioners are reproduced as under: Dates Events 27.09.2016 Application filed by the Respondent No.2 under Section 156(3) CrPC was dismissed as withdrawn. 09.11.2016 Complaint under Section 200 Cr. P.C. was withdrawn without seeking any liberty. A statement of the Respondent No. 2 on S.A. was also recorded before the Ld. MM. 06.10.2018 After about two years of withdrawal of the said complaint, a fresh complaint vide D.D. Entry No. 25B with identical facts have been filed by adding the allegations u/s 506 IPC against the Petitioner No. 1. The rest of the contents of the complaint is exactly similar to the earlier complaint. 18.10.2018 The present FIR under question got to be registered under Section 406, 420, 506 IPC against the Petitioners. However, the date of registration of FIR as per record is 18th October, 2016.
21. Reliance has been placed on the following judgments:
(i) Kamal Singh v. Sumer Singh, 2022 SCC OnLine P&H 4055 passed
(ii) Supinder Singh v. Provident Fund Inspector, 1997 SCC OnLine
(iii) Samta Naidu v. State of M.P., (2020) 5 SCC 378 passed by Hon’ble
(iv) BRK Athethan v. Sun Group & Anr., 2022 SCC OnLine SC 1705
(v) Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 passed by
22. A perusal of the record reflects that the Complainant/Respondent No. 2 had earlier approached the Vigilance Department and vide report dated 05th April, 2016, the complaint was filed stating that the same was of a civil nature. Subsequently, the complaint under Section 200 Cr.P.C. along with application under Section 156(3) Cr.P.C. was filed by Respondent No. 2 on 23rd July, 2016 before the concerned learned Metropolitan Magistrate, Saket Courts. An action taken report was filed by P.S. Chittaranjan Park dated 16th August, 2016 stating that the dispute is civil in nature and no cognizable offence is made out. On 27th September, 2016, the application under Section 156(3) Cr.P.C. was dismissed as withdrawn by the learned Metropolitan Magistrate, Saket Courts. On 18th October, 2016, the present FIR was registered at P.S. Chittaranjan Park and, thereafter, on 09th November, 2016, the complaint under Section 200 Cr.P.C. was dismissed as withdrawn by the learned Metropolitan Magistrate, Saket Courts. There is no dispute with regard to the fact that the allegations made in the complaint before the learned Metropolitan Magistrate as well as in the present FIR are similar except for an additional allegation qua Petitioner No. 1 for offence punishable under Section 506 IPC.
23. It is also now a matter of record that the complaint under Section 200 Cr.P.C. before the learned Metropolitan Magistrate was dismissed as withdrawn after the registration of FIR. Thus, the contention of learned counsel for the petitioners that the FIR was registered after the dismissal of the complaint is factually incorrect. What was withdrawn was the application under Section 156(3) Cr.P.C. seeking direction for registration of FIR and, therefore, whether the same could be a bar for registration of FIR by the S.H.O. under Section 154 Cr.P.C. is the issue in the present matter.
24. It is a well settled legal position that the Cr.P.C.,1973, provides for registration of FIR by two means. First and foremost, the powers of the S.H.O. under Section 154 of the Code to register the FIR. The said section provides that every information relating to commission of cognizable offence, if given orally to the Officer-in-charge of the police station, shall be reduced in writing by him and the same is referred to as First Information Report. The Code further provides that the ld. Metropolitan Magistrate of the concerned Police Station can order investigation of an offence under Section 156(3) of the Cr.P.C. Section 156 of the Code provides as under: “156. Police Officer's power to investigate cognizable case.
1. Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
2. No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
3. Any Magistrate empowered under section 190 may order such an investigation as above mentioned.”
24.1. The Hon’ble Supreme Court in Lalita Kumari vs Govt. of U.P. & Ors., AIR 2014 SC 187, held that the registration of FIR is mandatory under Section 154 of the Cr.P.C, if the information discloses a commission of cognizable offence.
24.2. Section 156(3) of the Cr.P.C. operates at pre-cognizance stage of a complaint, giving power to any Magistrate empowered to take cognizance of offences under Section 190 of the Cr.P.C. to order investigation into any cognizable offence. This position of law was laid down by the Hon’ble Supreme Court in Tula Ram v. Kishore Singh, (1977) 4 SCC 459, wherein it was held as under:-
of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
4. Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.”
24.3. In the present case, it is not the case of the Petitioners that the learned Magistrate had taken cognizance when the application under Section 156(3) of the Cr.P.C. was dismissed as withdrawn. It is pertinent to note that no observations were made by the learned Metropolitan Magistrate on the merits of the case.
25. There is no bar under the Cr.P.C. for registration of an FIR while a complaint is pending before the Metropolitan Magistrate. In fact, the Code provides for a procedure to be followed when there is a complaint and a police investigation in respect of the same offence. Section 210 of the Cr.P.C. provides as under:
26. What is prohibited is a second FIR on the same cause of action, which is not a counter case as held by the Hon’ble Supreme Court in TT Anthony vs State of Kerala, (2001) 6 SCC 181. The provision of Section 210 of the Cr.P.C. provides for a procedure where the Magistrate shall enquire into trial in a complaint case as well as a case arising out of police report and treat both of them as cases instituted on a police report. However, in the present case, as pointed out hereinabove, Respondent No. 2 subsequently withdrew his complaint under Section 200 of the Code vide order dated 09.11.2016, i.e., after registration of the present FIR on 18.10.2016.
27. In Samta Naidu (supra), the Hon’ble Supreme Court was dealing with the situation wherein a complaint was filed and the same was dismissed by the learned Metropolitan Magistrate on merits under Section 203 of the Cr.P.C. The Complainant being aggrieved filed a revision before the learned Additional Sessions Judge and the same was dismissed as withdrawn and liberty was sought to file a fresh complaint. However, the learned ASJ while disposing of the petition noted that a new complaint can be filed at any time on basis of new facts and for which no permission was required from the Court and simply dismissed the petition on the ground that the Complainant does not wish to press the said petition anymore. Thereafter, a fresh complaint was filed by the Complainant on the same allegations but relying on additional material in the complaint. On the basis of the complaint cognizance was taken by the learned Metropolitan Magistrate. The issue before the Hon’ble Supreme Court was whether a second complaint was maintainable or not. After discussing, all the judgments passed by the Hon’ble Supreme Court on the issue, it was observed and held as under:
14. If the facts of the present matter are considered in the light of these principles, it is clear that paragraphs 3, 4 and 5 in the first complaint contained the basic allegations that the vehicle belonging to the father was sold after the death of the father; that signatures of the father on Form 29 and 30 were forged; that signatures on the affidavit annexed with Form 29 and 30 were also forged; and that on the basis of such forged documents the benefit of “sale consideration of the vehicle” was derived by the accused. The order dated 5.7.2013 passed by the Judicial Magistrate First Class, shows that after considering the evidence and documents produced on behalf of the complainant, no prima facie case was found and the complaint was rejected under Section 203 of the Code of Criminal Procedure, 1973. The stand taken before the Revisional Court discloses that at that stage some new facts were said to be in possession of the complainant and as such liberty was sought to withdraw the Revision with further liberty to file a fresh complaint. The liberty was not given and it was observed that if there were new facts, the complainant, in law would be entitled to present a new complaint and as such there was no need of any permission from the Court. The Revisional Court was definitely referring to the law laid down by this Court on the basis of the principles in Taluqdar. Thereafter a complaint with new material in the form of a credit note and Registration Certificate was filed. The core allegations, however, remained the same. The only difference was that the second complaint referred to additional material in support of the basic allegations. Again, in terms of principle laid down in para 50 of Taluqdar as amplified in para 16 in Poonam Chand Jain, nothing was stated as to why said additional material could not be obtained with reasonable diligence.
15. Reliance was, however, placed by Ms. Meenakshi Arora, learned Senior Advocate, on para 18 of the decision of this Court in Shivshankar Singh. In that case a Protest Petition was filed by the complainant even before a final report was filed by the police. While said Protest Petition was pending consideration, the final report was filed, whereafter second Protest Petition was filed. Challenge raised by the accused that the second Protest Petition was not maintainable, was accepted by the High Court. In the light of these facts the matter came to be considered by this Court as under:-
16. As against the facts in Shivshankar, the present case stands on a different footing. There was no legal infirmity in the first complaint filed in the present matter. The complaint was filed more than a year after the sale of the vehicle which meant the complainant had reasonable time at his disposal. The earlier complaint was dismissed after the Judicial Magistrate found that no prima facie case was made out; the earlier complaint was not disposed of on any technical ground; the material adverted to in the second complaint was only in the nature of supporting material; and the material relied upon in the second complaint was not such which could not have been procured earlier. Pertinently, the core allegations in both the complaints were identical. In the circumstances, the instant matter is completely covered by the decision of this Court in Taluqdar as explained in Jatinder Singh and Poonam Chand Jain. The High Court was thus not justified in holding the second complaint to be maintainable.”
28. In Joseph Salvaraj (supra), the Hon’ble Supreme Court was dealing with a situation where the Complainant therein had filed a criminal complaint under Sections 499/500 of the IPC, which was dismissed by the ld. Judicial Magistrate on merits. Criminal Revision was filed against the said order which was withdrawn by the Complainant and thereafter filed a second complaint before the ld. Judicial Magistrate for the same offence against the same accused. In these circumstances, again after discussing the judicial precedents, the Hon’ble Supreme Court held the second complaint was not maintainable.
29. In Supinder Singh (supra), the Hon’ble Punjab and Haryana High Court was dealing with a situation where the Provident Fund Inspector had filed a complaint which was withdrawn and, subsequently, filed a second complaint on the same cause of action before learned Chief Judicial Magistrate, which was held to be not maintainable.
30. The aforesaid judicial precedents do not apply to the facts of the present case. As pointed out hereinafter, the present FIR was registered while a complaint case was pending before the learned Metropolitan Magistrate. The application under Section 156(3) Cr.P.C. was dismissed as withdrawn and there was no observation on the merits of the case by the learned Metropolitan Magistrate. Further, the Code itself provides for the situation where there is a complaint case and FIR registered on the same cause of action against the same accused. Therefore, in the considered opinion of this Court there was no legal bar for registration of the impugned FIR.
31. Insofar as the merits of the allegations in the present FIR is concerned, it is noted that the chargesheet has been filed before the Court of competent jurisdiction after obtaining the FSL report. It is the case of Respondent No. 2 that Petitioner No. 2 had dishonestly induced him to invest in a new business venture of importing cooling towers and its components. It is alleged by Respondent No. 2 that on the basis of said dishonest inducement, he paid a sum of Rs. 21 lakhs to Petitioner NO. 2 and the latter had also signed documents purported to be a loan agreement and a promissory note to show his bonafides, on which, Petitioner No. 2 had affixed his signatures as well as thumb impressions. It is alleged that over the period of time, Respondent No. 2 had paid total sum of Rs. 21 lakhs to Petitioner No. 2. It is alleged that when Respondent No. 2 demanded his money back, Petitioner No. 2 transferred a sum of Rs. 2,50,000/- and also handed over two cheques of Rs. 9 lakhs and 10 lakhs each. The aforesaid two cheques which were post-dated, when presented were dishonoured for the reason “drawer signatures differ.” It is the case of Respondent No. 2 that Petitioner No. 2 intentionally signed on the cheques in a manner which is different from his records on the bank, and thus during the course of the investigation, it has come on record that the signatures on cheques as well as the admitted signatures of Petitioner No. 2 on various documents were different. The said report has been filed by way of supplementary chargesheet before the concerned competent Court.
32. Petitioner No. 2, however, in his petition has taken a stand in the following manner:
mention here that Respondent No. 2 asked Petitioner No. 2 to pay only for the first committee and thereafter, he need not have to pay any money because being the committee organiser he will get first or second committee in Petitioner No. 2 name and the rest of the monthly committee will be paid from the interest of the same amount (Size of the committee Rs. 40 lacs).
9. During this course in time Petitioner No. 2 handed Respondent No. 2 sum of Rs. 2 lacs towards the first committee of Rs. 40 lacs, as asked by Respondent No. 2. That on the basis of these false assurances by Respondent No. 2, Petitioner No. 2 is still unaware of Conspiracy hatched against him, paid amount upto Rs. 7-8 lacs(approx.) by now.
10. It is pertinent to mention here that Petitioner No.2 has shifted and has been residing in U.S.A since 5th May, 2015 with his family. It is also pertinent to mention that Petitioner No. 2 prior to moving abroad informed Respondent No. 2 about his immigration to the USA and showed his unwillingness to continue with the committee, on which Respondent No. 2 assured Petitioner No. 2 that his presence is not required and also asked him to issue some Signed, Blank Cheques; Blank papers. In furtherance to that Respondent No. 2 also assured Petitioner No. 2 that within a month, committee will pay him the entire sum which Respondent No. 2 has invested in the second committee which was drawn/issued in Petitioner No. 2 name. It is relevant to mention here that all the particulars of 10-11 cheques approx. issued by Petitioner No. 2 were left blank except the signatures and on two cheques amounts were filled of Rs. 20 Lacs and Rs. 40 Lacs, accordingly with signatures however, the same were undated and unnamed.
12. That after Petitioner No. 2 shifted to U.S.A., in the year 2015, aforementioned blank and signed cheques were distributed by Respondent No. 2 to his associates and on the basis of same cheques, false and frivolous cases are registered against Petitioner No. 2, under Negotiable Instruments Act, 1881 in Saket Court at New Delhi before Metropolitan Magistrate titled as (1) VISHAL DIWAN VS VARUN KALRA; (2) MUNISH RAHEJA VS VARUN KALRA; (3) CHANDERKANT MISHRA VS VARUN KALRA; (4) VIKRAM DIWAN VS VARUN KALRA.” (emphasis supplied)
33. The concerned Investigating Officer after investigating the matter has filed the chargesheet qua Petitioner No. 2 wherein it has been recorded as under: “During investigation Sh. Satpal Kalra joined the investigation and stated that he never met Vishal Diwan regarding the matter and he is nothing got to do with the case and allegations made by Vishal Diwan are false and pressurize to me only. He denied for the allegation of threat. From the investigation allegations could not be substantiate against the company M/s SPL Marketing Private Limited and Satpal Kalra. No money was credited in account of the company. Regarding the allegation of life threat no date of incident mentioned. Complainant not informed about any PCR call in this regard. From the investigation it is found that accused Varun Kara intentionally appended differ signatures so that the cheques would never get cleared and that Varun Kalra intended to cheat and defraud the complainant. The accused Varun Kalra induced the complainant to part with his money and intentionally forged different signatures on his cheques issued, having full knowledge that the signatures appended by him are not the original signatures as maintained by him with his bankers. The account opening form of the accused Varun Kalra reflecting his signatures with his bankers A comparison of the two brings to light the difference in the signatures of the accused Varun Kalra in his accounts maintained with his bankers, as compared to the signatures appended by the accused Varun Kalra on the cheques issued by him to the complainant. The degree of difference in the signatures of the accused Varun Kalra across these two documents prove the case. Such difference would not have been possible unless the accused Varun Kalra always intended to cheat and defraud the complainant. From the investigation, enquiries made with Complainant and alleged Satpal Kalra, documents obtained during investigation allegations against Satpal Kalra and the Company could not be substantiated regarding cheating and threat, hence Satpal Kalara not Charge sheeted. As per allegation money was given to Varun Kalra in cash and through cheques in the personal account of Varun Kalra. Original Loan Agreement along with Promissory Note along with admitted signature of Varun Kalra and specimen signature of Varun Kalra have been sent to RFSL, Chanakyapuri, New Delhi for expert opinion regarding the signature of Varun Kalra on the documents vide acknowledgement of case acceptance no. RFSL (CH.P)-2018/DOC-1012 dated:- 28.09.2018. After obtaining the result from RFSL, Chanakyapuri, New Delhi supplementary Charge sheet of the case will be filed u/s 173.[8] СгPC. From the investigation conducted, statements of witnesses recorded, report/documents received from the Bank Manager of HDFC Bank there are sufficient evidences on record that accused Varun Kalra S/o Sh. Satpal Kalra R/o A-4/237, Konark Appartments, Kalkaji Extention, New-Delhi 110019, has intentionally signed the differ signature on the cheque no. 000012 and 000017 A/c no. 16621930003106 and handed over the same to the Complainant and on representation the cheques were returned unpaid. Accused Varun Kalra who has joined the investigation as and when he was called for the same. He is a permanent resident of Delhi. He has been kept in column no. 11 of the Charge sheet. Accused Varun Kalra may kindly be called through notice and cognizance against him may please be taken. Witnesses may be called through summons to depose their respective evidences before the Hon’ble Court and the trial may kindly be commenced upon.”
34. As can be seen from above, the stand of Petitioner No. 2 that he was induced to invest with Respondent No. 2 in some committee is a matter of trial. Admittedly, Petitioner No. 2 does not dispute his signature and thumb impression on loan agreement as well as the promissory note but takes a stand that the said documents were got signed by Respondent No. 2 which were blank. This again is a disputed question of fact and is a matter of trial. The promissory note placed on record by Respondent No. 2 shows that the Petitioner No. 2 has signed on the revenue stamp on the as well as had affixed his thumb impression on the promissory note. The stand of Petitioner No. 2, that he had signed the blank promissory note as well as cheques is difficult to comprehend, in view of the fact, that he is an educated business man and well-versed with the functioning of monetary transactions in ordinary course of the business that he was pursuing. Therefore, the said stand cannot be a bonafide claim. In fact, prima facie, the case of Petitioner No. 2 would be covered by the following illustration of Section 415 of the IPC which reads as under: -
35. Be that as it may, the aforesaid are disputed question of facts which this Court in the exercise of the jurisdiction under Article 226 of the Constitution of India cannot go into. The Hon’ble Supreme Court, in Mahendra K.C. v. State of Karnataka, (2022) 2 SCC 129, held as under:
whether any offence is made out even if the allegations are accepted in toto.”
36. The facts and circumstances of the case, as discussed hereinabove, do not warrant exercise of jurisdiction under Article 226 of the Constitution of India for quashing of FIR No. 273/2016 under Sections 420/406/506/120B of the IPC registered at P.S. Chittaranjan Park and the consequent chargesheet against Petitioner No. 2 pending before the Court of competent jurisdiction. It is further clarified that since Petitioner No. 1 was not chargesheeted, therefore, no observation has been made with respect to him.
37. The petition is accordingly dismissed and disposed of.
38. Pending applications, if any, also stand disposed of.
39. Nothing stated hereinabove shall be construed as an opinion on the merits of the case and observations made are only for the purpose of adjudication of the present petition.
40. Judgment be uploaded on the website of this Court, forthwith.
41. Copy of the judgment be sent to the concerned learned Trial Court for necessary information and compliance.
AMIT SHARMA JUDGE OCTOBER 25, 2024/bsr/sn