Dismissed

Sandeep Garg v. State of U.P. and 2 Others

Allahabad HC28 Sept 2021CRLP/7160/2021

Case brief

AI extract

What is this about?

Writ petition sought quashing of FIR and stayed of arrest due to alleged identical allegations in prior rejected complaints. Court found investigation revealed evidence of cognizable offence and distinguished precedent where prior guilt was established. Petition dismissed with liberty to seek bail.

What did the court decide?

Writ petition dismissed; liberty granted to petitioner to apply for anticipatory bail or bail in accordance with law.

Sandeep Garg Vs State of U.P. and 2 Others — Cheque Dishonour | Allahabad HC (2021)

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Court No. - 46

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Case :- CRIMINAL MISC. WRIT PETITION No. - 7160 of 2021

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Petitioner :- Sandeep Garg Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gaurav Tripathi,Anurag Vajpeyi Counsel for Respondent :- G.A.

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Hon'ble Surya Prakash Kesarwani,J. Hon'ble Gautam Chowdhary,J.

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Heard Sri Manish Tiwari, learned Senior Advocate, assisted by Sri Gaurav Tripathi, learned counsel for the petitioner and Sri Roopak Chaubey, learned A.G.A. for the State-respondents.

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This writ petition has been filed praying for following reliefs:-

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"a. Issue writ, order or direction in the nature of certiorari quashing the impugned First Information Rreport dated 25.7.2021 bearing Case crime no. 1268 of 2021 under Sections 406, 420, 120B I.P.C. and 3, 4, 5 & 6 of Prize Chit Funds and Money Circulation (Banning) Act, 1978, Police Station Kavi Nagar, District Ghaziabad.

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b. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.1 and 2 not to arrest the petitioner in pursuance of the impugned first information report dated 25.07.2021 bearing Case crime no. 1268 of 2021 under sections 406, 420, 120B and section 3, 4, 5 & 6 of Prize Chit Funds and money Circulation (Banning) Act, 1978 Police Station Kavi Nagar, District Ghaziabad."

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Learned counsel for the petitioner submits that on identical set of allegations two applications being Case No. 1563 of 2019 (Amit Tayal vs. Sandeep Garg and others) and Case No. 390 of 2020 (Amit Tayal vs. Sandeep Garg and 3 others), both under Section 156(3) Cr.P.C. were filed by the son of respondent No.3 before the Chief Judicial Magistrate, Ghaziabad. The application No. 1563 of 2019 was rejected by order dated 15.10.2019 and the second case/application No. 390 of 2020 was rejected for non prosecution by order dated 26.8.2020. Thereafter, the informant-respondent No.3 had filed an application under Section 156 (3) Cr.P.C. which was allowed by the Chief Judicial Magistrate and the

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impugned first information report dated 25.7.2021, under Section 406, 420, 120B I.P.C. and 3, 4, 5 & 6 of Prize Chit Funds and Money Circulation (Banning) Act, 1978, P.S.- Kavi Nagar, District Ghaziabad, was registered. He further submits that the impugned F.I.R. is based on identical set of allegations on the basis of which the earlier application u/s 156 (3) Cr.P.C., filed by the son of respondent No.3, was rejected. Therefore, in view of the law laid down by the Hon'ble Supreme Court in Krishna Lal Chawla and others vs. State of U.P. and another, (2021) 5 SCC 435, the impugned F.I.R. No. 1268 of 2021 deserves to be quashed, inasmuch as on the same set of allegations the second F.I.R. is not permissible.

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Learned A.G.A. submits that the application/case No. 1563 of 2019, filed by the son of respondent No.3, was rejected on account of certain lacunas in his application; firstly that he had not filed any proof that the I.D. relates to which company and secondly no proof of the deposit of the amount in the account of the petitioner's company was filed. The informant-respondent No.3 neither lodged any first information report nor filed any application u/s 156(3) Cr.P.C. earlier. The informant-respondent No.3/his wife is an investor apart from the investment made by his son Amit Tayal. His application does not suffer from any of the lacunas as pointed out by the Chief Judicial Magistrate in his order dated 15.10.2019 passed in Case No. 1563 of 2019 (Amit Tayal vs. Sandeep Garg and others). He refers to the Paragraphs No. 9, 10 & 11 of the counter affidavit filed by Senior Superintendent of Police, Ghaziabad and submits that the investigation so far has revealed that the informant and others have deposited money with the petitioner's company but fraudulently they have not been returned their money back and thus they have been cheated. Reference to the several criminal cases registered against the petitioner, have also been made in the counter affidavit. The counter affidavit further states that the investigation is in progress and the same shall be concluded expeditiously in fair and

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impartial manner. He, therefore, submits that as per settled principles of law, the impugned F.I.R. cannot be interfered with. He relied upon judgement of Hon'ble Supreme Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918.

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We have carefully considered the submissions of the learned counsels for the parties and perused the records of the writ petition.

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We find that earlier the son of the informant-respondent No.3 had filed a Misc. Case No. 1563 of 2019 (Amit Tayal vs. Sandeep Garg and others), u/s 156(3) which was rejected by the Chief Judicial Magistrate by order dated 15.10.2019 on the grounds firstly that particulars of the family members who invested money have not been disclosed, secondly I.D. is not sufficient ground unless it may be known that the I.D. is related to the company and thirdly no proof of deposits of the amount with the petitioner's company have been filed. The second application u/ s 156(3) Cr.P.C. was filed by the son of informant-respondent No.3 being Misc. Case No. 390 of 2020 (Amit Tayal vs. Sandeep Garg and 3 others) which was rejected by the Chief Judicial Magistrate, Ghaziabad by order dated 28.6.2020 for want of prosecution.

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We find that the wife of respondent No.3 and other family members have deposited money with the petitioner’s company. This fact has been admitted before us by the learned counsel for the petitioner. It has been admitted before us by the learned counsel for the petitioner that I.D.s were issued by the petitioner’s company to the respondent No.3 and others.

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In Paragraph Nos. 9, 10 and 11 of the counter affidavit dated 27.9.2021 filed today by the Senior Superintendent of Police, Ghaziabad, it has been stated as udner:-

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“9. That it is respectfully submitted that investigation in the present case is still pending, however, till date, in addition to first informant, Kamlesh Tayal, Lisha Sharma, Gaurav Agarwal and Surendra Kumar Sharma are found to be persons, who had deposited money with the company, but had not received their money back and thus they were cheated.

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10. That it is submitted that on the basis of investigation conducted so far which includes documentary evidence also, it is clear that petitioner, who is Managing Director of the company, had committed offences punishable under sections 406, 420, 120-B IPC and Section 3, 4, 5 and 6 of Prize Chit Funds and money Circulation (Banning) Act, 1978. The investigating officer is trying to contact the persons, who are shown to be victims in the present first information report. The deponent further submits that investigation in the present case will be done in fair and impartial manner expeditiously.

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11. That it is relevant to note that petitioner is having criminal history of 4 cases, details of which given herein below;

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(i) Case crime no. 316 of 2017, under section 420, 406 IPC, police station Kavi Nagar, district Ghaziabad.

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(ii) Case crime no. 319 of 2017, under section 420, 406 IPC, police station Kavi Nagar, district Ghaziabad

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(iii) Case crime no. 975 of 2017, under section 420, 406 IPC, police station Kavi Nagar, district Ghaziabad

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(iv) Case crime no. 2010 of 2019, under section 406, 420, 120 IPC and 3, 4, 5 and 6 of Prize Chit Funds and money Circulation (Banning) Act, 1978, police station Kavi Nagar, district Ghaziabad.”

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The Investigating Officer has also filed today a counter affidavit dated 27.9.2021 in which he has given brief description of investigation. In Paragraph No.11 of his counter affidavit, the Investigating Officer has stated as under:-

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“11. That on 15.09.2021 (parcha CD5) second statement of first informant was recorded, in which he had given the details of money transaction (Rs. 56,500/-) made by his son with the company namely ADS Cash Digital Services Company. The first informant had also provided his Adhar Card, Pan Card, confirmation letter and account statement of his son showing payment to the company on his behalf. On the same date statement of Smt. Lisha Sharma wife of Punita

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Sharma was also recorded , who had stated that she was also approached by the agents of the company, who had stated that after depositing of Rs. 56500/- she will be provided laptop to the tune of Rs. 45000/- and thereafter, after clicking the links provided by the company, she will get further money. She had also got registered with the company and on 30.01.2017 her husband had deposited Rs. 56,500/- with the company through his credit card. She also states that she had not received any money from the company. The account statement of husband of witness/victim Lisha Sharma showing payment of Rs. 56,500/- to the company is part of case diary. On the same date the statement of Amit Tayal, who is son of first informant, was also recorded by the investigating officer, who had stated that on behalf of her mother Smt. Kamlesh Tayal he had also deposited Rs. 55,200/- in the account of ADS Cash Digital Services company through swipe machine of an agent of company. He further stated that after clicking on the links/advertisement a little payment was made in the account of her mother by the company, but later on nothing was paid. The aforesaid witness Amit Tayal had provided his bank statement showing transaction of money to the tune of Rs. 55,200/- to the company, which is part of case diary. On the same date son of first informant Amit Tayal had also given documents related to his cousin Gaurav having I.D. No.45060546, who is also victim in the present case.

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On the same date certain documents were also provided to the investigating officer/deponent, which shows that one Surendra Kuamr Sharma having I.D. No. 36143296 had also deposited Rs. 55,200/- in the account of the company. The account statement of Surendra Kumar Sharma and his confirmation letter issued by the company is also part of case diary.”

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In his counter affidavit, the investigating officer has also referred the statements of the informant and others recorded by him and certain documents collected by him during investigation.

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In the impugned first information report it has been alleged that the petitioner collected certain amounts from the depositors and also separately charged Rs. 1300/- per person for I.D. and promised to give one electronic kit I-pad and laptop which were not given. The I.D. was subsequently deactivated. The petitioner was not returning/repaying the deposits made by the depositors and when in the month of March the

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informant went to the office of the petitioner’s company then it was found that office was closed and the petitioner fled away. In the impugned F.I.R. facts with regard to the I.D. numbers and amounts etc. have been disclosed and it has been alleged that the petitioner has committed fraud.

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In the case of Bhajan Lal (supra) Hon’ble Supreme Court has enumerated the principles for interference with the F.I.R. which are reproduced below:-

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“”102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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The principles laid down in the case of Bhajan Lal (Supra) have been reiterated by the Hon’ble Supreme Court in subsequent several judgements including the latest judgement of M/s Neeharika (supra) .

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The judgement in the Case of Krishna Lal Chawla (supra) relied upon by the learned counsel for the petitioner is entirely on different set of facts and has no application on facts of the present case as would be evident from paragraphs No. 2.1 to 2.8 of the aforesaid judgement. The principle laid down in the case of Krishna Lal Chawla (supra) is that it is incumbent upon the Court to preserve balance between the power to investigate offences under the Cr.P.C. and fundamental right of the individual to be free from frivolous and repetitive criminal prosecutions forced upon him by the might of the State.

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In the case of Krishna Lal Chawla (supra) relied by the petitioner, the Hon’ble Supreme Court laid down principles of law as under:-

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"12. Thus, it is incumbent upon this Court to preserve this delicate balance between the power to investigate offences under the CrPC, and the fundamental right of the individual to be free from frivolous and repetitive criminal prosecutions forced upon him by the might of the State. If the Respondent No. 2 was aggrieved by lack of speedy investigation in the earlier case filed by him, the appropriate remedy would have been to apply to the Magistrate under Section 155(2), CrPC for directions to the police in this regard. Filing a private complaint without any prelude, after a gap of six years from the date

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of giving information to the police, smacks of mala fide on the part of Respondent No. 2.

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13. It is also crucial to note that, in the fresh complaint case instituted by him, Respondent No. 2 seems to have deliberately suppressed the material fact that a charge sheet was already filed in relation to the same incident, against him and his wife, pursuant to NCR No.160 of 2012 (Crime No. 283 of 2017) filed by Appellant No.1’s son. No reference to this charge sheet is found in the private complaint, or in the statements under Section 200, CrPC filed by Respondent No. 2 and his wife. In fact, both the private complaint and the statement filed on behalf of his wife, merely state that the police officials have informed them that investigation is ongoing pursuant to their NCR No.158 of 2012. The wife’s statement additionally even states that no action has been taken so far by the police. It is the litigant’s bounden duty to make a full and true disclosure of facts. It is a matter of trite law, and yet bears repetition, that suppression of material facts before a court amounts to abuse of the process of the court, and shall be dealt with a heavy hand (Ram Dhan v. State of Uttar Pradesh & Anr., (2012) 5 SCC 536; K.D. Sharma v. SAIL, (2008) 12 SCC 481). "

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The principles of law laid down by the Hon’ble Supreme Court in the case of Krishna Lal Chawla (supra) as quoted above are of no help to the petitioner as the facts of the present case are different. The present case is the case where the informant-respondent No.3 has filed his first application under Section 156(3) Cr.P.C. which was registered as the impugned F.I.R. Perusal of the impugned F.I.R. prima facie discloses commission of cognizable offence. Perusal of the counter affidavit filed by Senior Superintendent of Police, Ghaziabad and the counter affidavit filed by the Investigating Officer discloses that the investigation so far has prima facie revealed commission of cognizable offence. Under the circumstances we do not find any good reason to interfere with the impugned F.I.R., more so in view of the law laid down by the Hon'ble Supreme Court in the cases of Bhajan Lal (supra) and M/S Neeharika (Supra).

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For the reasons as aforesaid, we do not find any good reason to interfere with the impugned F.I.R. Consequently, the writ petition is

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dismissed, leaving it open for the petitioner to apply for anticipatory bail/ bail as the case may be, in accordance with law.

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Order Date :- 28.9.2021 Vandana

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Sandeep Garg v. State of U.P. and 2 Others

Case brief

What is this about?

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Sandeep Garg v. State of U.P. and 2 Others

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