Hansraj and Others vs State of U.P. and Another

Ravindra Singh, J.—Heard Sri. J.S. Kashyap and Km. Istuti Singh, learned Counsel for the applicants, learned A.G.A. for the State of U.P. and Sri. Rashtrapati Khare, learned Counsel appearing on behalf of Respondent No. 2.

This application has been filed by the applicants Hansraj, Bharat Kumar and Harish Kumar with a prayer to quash the charge-sheet No. 170 of 2008, dated 9.4.2008 of Case Crime No. 390 of 2008 under Sections 420, 467, 468, 471, 406 and 120B, I.P.C., police station Indrapuram, district Ghaziabad pending in the Court of learned C.J.M., Ghaziabad in Criminal Case No. 7742 of 2008 and to quash the order dated 12.5.2008 by which the cognizance has been taken by learned C.J.M., Ghaziabad.

The facts, in brief, of this case are that the F.I.R. has been lodged by Respondent No. 2 Smt. Deepika against the applicants on 18.3.2008 at 3.30 p.m. in Case Crime No. 390 of 2008, police station Indrapuram, district Ghaziabad alleging therein that her husband Harish Kumar, applicant No. 3, her father-in-law Bharat Kumar applicant No. 2, Hansraj applicant No. 1 and one Dharmendra Arora have cheated her by way of playing a fraud and forging a document. It is alleged that Respondent No. 2 and applicant No. 3 Harish Kumar have booked a Flat No. 606, Regent Block, Supertech Constructions Pvt. Ltd., 9 Vaishali, Ghaziabad, its reference is given in a letter dated 16.2.2005 (allotment letter), it was jointly allotted in the names of Respondent No. 2 and her husband applicant No. 3. Several payments have been made by Respondent No. 2 from her account for which the Respondent No. 2 has taken housing loan of Rs. six lacs from Syndicate Bank, she has taken the money from her parents also, the same was paid to Supertech Company but by playing a fraud its registry was made only in the name of applicant No. 3 Harish Kumar, after investigation the charge-sheet has been submitted on which the learned C.J.M. has taken the cognizance on 12.5.2008. The present application has been filed with a prayer to quash the above mentioned charge-sheet and the cognizance order dated 12.5.2008.

It is contended by counsel for the applicants that on account of dispute between wife and husband, the present F.I.R. has been lodged, prior to lodging the F.I.R., the F.I.R., dated 9.3.2008 was lodged by Respondent No. 2 against her husband Harish Kumar, father-in-law Bharat Kumar, mother-in-law Smt. Shakuntala Devi and Sachin alias Joni. The dispute between the parties are purely of civil in nature. The marriage of the applicant No. 3 was solemnized with Respondent No. 2 on 11.11.2003 without any demand of dowry. After marriage, the Respondent No. 2 and her father were insisting the applicant No. 3 Harish Kumar to live separately from his parents for which the applicant No. 3 has applied for loan of Rs. 6 lacs to purchase a residential flat. He applied for flat, the same was allotted, the allotment letter was issued by Super Tech. Construction Private Limited on 16.2.2005, its sale deed was executed in favour of applicant No. 3 on 9.3.2005 with the permission of Respondent No. 2 Smt. Dipika Kamal but subsequently, the Respondent No. 2 persuaded the applicant No. 3 to enter her name in the aforesaid flat but the same was refused which caused so many problems between husband and wife ultimately the F.I.R. of Case Crime No. 341 of 2008 under Sections 498A, 323 and 406, I.P.C. and Section 3/4 of Dowry Prohibition Act, P.S. Indrapuram, district Ghaziabad was registered on 9.3.2008, the F.I.R. u/s 2/3 of Women Domestic Violence Act was also registered on 13.3.2008 and the F.I.R. of the present case was registered on 18.3.2008. The Respondent No. 2 also filed a civil suit for declaring the ownership of the flat in the Court of learned Civil Judge, Sr. Division, Ghaziabad in which the injunction order dated 17.3.2008 was passed. A loan of Rs. 6 lacs has been sanctioned for the flat by H.D.F.C. Bank, its instalments have been paid by the applicant No. 3 through the Bank Account No. 00931050006756 of H.D.F.C. Bank.

During investigation, the statements of Dharmendra Arora and R.K. Arora have been recorded by the Investigating Officer u/s 161, Code of Criminal Procedure which shows that the sale deed was executed in favour of applicant No. 3 with the permission of the Respondent No. 2, the Investigating Officer also recorded the statements of other witnesses Ram Kishan and Sonu which do not disclose the constitution of the offence under Sections 420, 467, 468, 471 and 406, I.P.C. There is no credible evidence collected by the Investigating Officer against the applicants, even then, the charge-sheet has been submitted against the applicants, the same may be quashed because the F.I.R. has been lodged with an ulterior motive by the Respondent No. 2, the proper remedy available in the civil court.

In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel appearing on behalf of Respondent No. 2 that on the basis of allegation made in the F.I.R. and the material collected by the Investigating Officer during investigation, it discloses that cheating has been committed with the Respondent No. 2 and the applicants have played a fraud and forged agreement to sell was also prepared and a sale deed was executed in favour of applicant No. 3 whereas the flat was booked by the Respondent No. 2 and applicant No. 3 jointly, during investigation, the Investigating Officer has collected a sufficient material disclosing the commission of the offence there is sufficient material against the applicant to proceed further. The civil suit has been filed by Respondent No. 2 so that she may be able to get her share in the flat. By filing a civil suit, she may not be able to claim her right, due to filing of civil suit it cannot be said that the issue in the present case is purely of civil in nature whereas the act done by the applicants is constituting an offence in which they have been charge-sheeted. There is no proper ground for quashing the charge-sheet. Learned C.J.M., Ghaziabad has taken the cognizance after perusing the material collected by the Investigating Officer during investigation. There is no illegality in the order of cognizance dated 12.5.2008, it has been wrongly mentioned the date in the present case as 2.5.2008, the present application is devoid of merit and the same may be dismissed.

From the perusal of the record it appears that in the present case, F.I.R. has been lodged by Respondent No. 2 against the applicants on 18.3.2008, after its investigation, the Investigating Officer submitted the charge-sheet dated 9.4.2008 in the Court of learned Magistrate concerned on which the learned C.J.M., Ghaziabad has taken the cognizance on 12.5.2008, the Investigating Officer has relied upon the statements of Respondent No. 2 Smt. Dipika Kamal, Ram Kishan, the allegation made in the F.I.R. are prima facie disclosing the commission of an offence, the material collected by the Investigating Officer during investigation is sufficient to proceed further against the applicants, there is no illegality in submission of charge-sheet in the Court of learned C.J.M. concerned and there is no illegality in taking the cognizance by learned C.J.M. concerned. The allegations made against the applicants are constituting the commission of an offence, its fabric is not purely of civil in nature, in the present case, the Respondent No. 2 has filed suit to enforce her civil right, by way of filing such suit it cannot be said that the issue involved in the present case is purely of civil in nature and the applicant may not be prosecuted, therefore, the prayer for quashing the charge-sheet No. 170 of 2008, dated 9.4.2008 in Case Crime No. 390 of 2008 under Sections 420, 467, 468, 471, 406 and 120B, I.P.C., P.S. Indrapuram, District Ghaziabad is refused and the prayer for quashing the impugned order dated 12.5.2008 (incorrectly mentioned in the application as 2.5.2008) by which the cognizance has been taken by the learned C.J.M. in Criminal Case No. 7742 of 2008 is also refused.

Interim order dated 6.8.2008 is hereby vacated.

However, considering the facts and circumstances of the case, it is directed that in case the applicants have not been released on bail, if they appear before the Court concerned within 30 days from today and apply for bail, the same shall be heard and disposed of in view of Amarawati and Another (Smt.) Vs. State of U.P.,

The Full Bench of this Court has held in the aforementioned case:

Even if a cognizable offence is disclosed in the F.I.R. or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar Vs. State of U.P. and others, before deciding whether to make an arrest or not.

The High Court should ordinarily not direct any subordinate court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is u/s 437, Code of Criminal Procedure ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application u/s 439, Code of Criminal Procedure, it is in the discretion of the learned Sessions Judge, considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.

The above view has been approved by the Hon''ble Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. on 23.3.2009 in Criminal Appeal No. 538 of 2009 : 2009 (2) ACR 2063 (SC).

With this direction, this petition is finally disposed.