Criminal Misc. Petition filed to quash FIR for cheating. Court dismissed petition as FIR alleges prima facie offence and petitioner failed to comply with prior court orders regarding repayment or deed execution.
No interference allowed; FIR quashing rejected; investigation directed to be completed expeditiously.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc(Pet.) No. 208 / 2018 Prakash Chandani S/o Late Kishan Chand, By Caste Sindhi, Resident of 3-V-12, Prabhat Nagar, Hiran Magari, Sector-5, Udaipur (Rajasthan)
----Petitioner
Versus
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Shambhoo Singh For Respondent No.1 : Mr. V.S. Rajpurohit, P.P.
For Complainant : Mr. Umesh Shrimali
Mr. Akshay Surana
HON'BLE MR. JUSTICE VIJAY BISHNOI
Order
22/03/2018
The matter comes up for consideration of application (APPLR No.280/2018) preferred on behalf of the petitioner with a prayer for modifying the order dated 07.03.2018, whereby this Court has directed the petitioner to get registered sale deed executed in favour of the complainant in terms of the agreements provided the complainant pays remaining amount of Rs.22 lacs to the petitioner. This Court has recorded the undertaking of the petitioner that the registration charges and the stamp duty would be paid by the petitioner.
Learned counsel for the petitioner has submitted that the order of directing the petitioner to pay registration charges and stamp duty be modified and it may be ordered that the petitioner
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is not liable to bear charges of the stamp duty.
It is noticed that on 07.03.2018, petitioner-Prakash
Chandani remained present before this Court and voluntarily gave an undertaking that he is ready to pay registration charges and the stamp duty on his own. Looking to this fact, no case for modifying the order dated 07.03.2018 is made out.
The application (APPLR No.280/2018) is dismissed.
This second criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner with a prayer for quashing of FIR No.387/2016 of Police Station Hiran Magari, District Udaipur for the offence punishable under Sections 420 and 406 IPC. The first criminal misc. petition No.3801/2016 filed by the petitioner was disposed of by this Court vide order dated 14.09.2017 with liberty to the petitioner to move appropriate representation before the investigating authority. It has also been directed that the investigating authority shall consider the representation of the petitioner and investigation into the allegations levelled in the FIR in fair manner. This Court has also observed that if during the investigation, the concerned investigating authority needs to arrest the petitioner then the petitioner shall be given 15 days notice before making such arrest.
As per the petitioner, he has already filed detailed representation before the Investigating Officer, however, the Investigating Officer has not taken into consideration the said representation of the petitioner in right perspective.
Per contra, learned Public Prosecutor has submitted that the
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representation of the petitioner was taken into consideration by the Investigating Agency, however, after taking into consideration the same, the Investigating Agency has come to the conclusion that prima facie case against the petitioner for the offence punishable under Sections 420 and 406 IPC is made out.
It is also to be noticed that Mr. Shambhoo Singh learned counsel appearing for the petitioner made a statement before this Court on 15.02.2018 that petitioner is ready to return the amount received from the complainant towards the disputed transaction within a period of two months from today.
While observing this, this Court has directed the petitioner to furnish two post dated cheques covering the total amount paid to the petitioner by the complainant towards the disputed agreement on the next date and the matter was fixed on 21.02.2018. On 21.02.2018, this Court directed the parties concerned to present in the Court on 26.02.2018 so as to explore the possibility of a settlement. On 26.02.2018, it was observed by this Court that the cheque available with learned counsel for the petitioner bears some overwriting and at that stage, learned counsel for the petitioner prays for short adjournment to provide a fresh cheque of the accused so that the dispute can be settled. On 07.03.2018, petitioner was present in person and made a statement that he is ready to get the sale deed executed in favour of the complainant in terms of the agreements subject to the condition that the complainant shall pay the remaining amount of Rs.22 lacs to the petitioner. The petitioner present in person had also given
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undertaking that he would pay registration charges and stamp duty on his own. While observing this, this Court has fixed the matter on 21.03.2018, however, on 21.03.2018, it was informed
by the learned counsel for the complainant that the petitioner has not complied with the directions given by this Court on 07.03.2018 and, therefore, the matter is listed for today.
As observed earlier, in the meantime, an application is preferred on behalf of the petitioner with a prayer for modifying the order dated 07.03.2018, which has already been dismissed in the earlier part of this order.
At this stage, learned counsel for the petitioner proposed to argue the matter on merits.
Learned counsel for the petitioner while arguing the matter on merits has submitted that from the bare reading of the impugned FIR, it is clear that the dispute between the petitioner and the respondent is purely of civil nature and no case for cheating and mis-appropriation of any money is made out against the petitioner.
Learned counsel for the petitioner has placed reliance on decisions of this Court rendered in Mohan Lal vs. State of Rajasthan & Anr. and Satyavati vs. State of Rajasthan & Ors. and has prayed that the impugned FIR be quashed and set aside.
Per contra, learned counsel for the petitioner as well as learned counsel for the complainant have argued that the allegation contained in the FIR do constitute prima facie offence as
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the petitioner has committed cheating with the complainant and misappropriated an amount of rupees around 38 Lacs. It is also argued that looking to the conduct of the petitioner before this
Court, wherein, at one point of time, he undertook to pay whole amount to the complainant through cheques and later on agreed to get the registered sale deed in favour of the complainant but on both the occasion he has not complied with the said undertakings, hence, the petitioner is not entitled for any relief.
Heard the learned counsel for the parties and perused the impugned FIR.
After carefully reading the impugned FIR, this Court is of the opinion that the allegations contained in the FIR do constitute a prima facie offence. Hon’ble Supreme Court in State of Haryana & Ors. vs. Bhajan Lal & Ors. reported in 1992 SCC (Cri) 426 has held that where the allegations levelled in the FIR do constitute a prima facie offence, the FIR cannot be quashed. Otherwise also, looking to the conduct of the petitioner of giving false undertakings before this Court, he is not entitled to get any relief from this Court while exercising inherent power.
Hence, no interference is called for in this criminal misc. petition, the same is hereby dismissed.
Learned Public Prosecutor is directed to instruct the Investigating Officer to complete the investigation expeditiously.
(VIJAY BISHNOI)J.
Taruna
2 issues framed by the court
Whether the allegations in the FIR constitute a prima facie offence precluding quashing under Section 482 Cr.P.C.
Whether the petitioner's non-compliance with prior court undertakings bars equitable relief.
Colour shows how this judgement treated each authority
Mohan Lal vs. State of Rajasthan & Anr.Referred¶37
Mohan Lal vs. State of Rajasthan & Anr.
Satyavati vs. State of Rajasthan & Ors.Referred¶37
Satyavati vs. State of Rajasthan & Ors.
State of Haryana & Ors. vs. Bhajan Lal & Ors.Applied¶44
State of Haryana & Ors. vs. Bhajan Lal & Ors. (1992 SCC (Cri) 426) · Who else cites this
Prakash Chandani
State of Rajasthan
Shri Brijesh Chandra Mishra
VIJAY BISHNOI
As recorded by the court registry
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