V.K.Beri vs State of Punjab

R.L. Anand, J.

V.K. Beri, petitioner has filed the present petition under section 482 Cr.P.C. for the quashment of FIR No. 5 dated 31.1.1995, under Sections 120B, 420, 468, 471 and Section 5 of the Prevention of Corruption Act which FIR was registered with the Central Bureau of Investigation, Sector 30, Chandigarh. The FIR is sought to be quashed by the petitioner on the ground that it was registered in a highly belated and delayed stage and was a gross misuse and abuse of the process.

The case of the petitioner is that on 25.9.1990 vide Annexure P.1 he was placed under suspension with immediate effect. On 1.1.1991 a case was registered against him pertaining to the transactions having taken place in the year 1987. The said case was registered after a thorough enquiry conducted by the Department as the petitioner was placed under suspension and enquiry was conducted into all the affairs of the Department. Thereafter, FIR No. 2 of 1991 was got registered under Sections 415, 419, 420, 380, 467, 468 and 471 IPC at the instance of Divisional Manager. Not satisfied with that FIR, another FIR was registered against the petitioner under Sections 419, 420, 468 and 471 IPC on 13.7.1991 bearing No. 226 of 1991, Annexure P.3. The said FIR was also registered on the asking of the superior officers as certain persons were absolutely inimical towards the petitioner. The entire record was with New India Assurance Company and the petitioner had no access to that record. The petitioner has not been chargesheeted. However, he was placed under suspension with the mala fide intention of the senior officers. Both the FIRs. were later dropped and the petitioner vide orders dated 9.8.94 was discharged by the learned Chief Judicial Magistrate in FIR No. 226 of 1991. That order has become final.

The petitioner alleges that after his discharge on 9.8.94 in FIR No. 226 of 1991, another FIR was lodged against him on 31.1.1995. This FIR also pertains to the record which was already available with the New India Assurance Company and pertains to the year 1987. The contents of the FIR are selfexplanatory and clearly show that the same has been registered to drag the petitioner in protracted litigation for all times to come and after a delay of about 8 years. The petitioner further alleges in his petition that no offence is made out even prima facie under Section 120B read with Sections 420, 468, and 471 IPC as there is no conspiracy or cheating involved in it. In the FIR Annexure P.5, the investigation has not been conducted by Dy. S.P. but it has been conducted at the level of Inspector and therefore, it also deserves to be quashed. The case of the petitioner is that his right of liberty is likely to be jeopardised with the lodging of FIR Annexure P.5 and he cannot remain under suspension for all times to come. The manner in which FIR No. 5 dated 31.1.1995 has been registered shows that Senior Officers of the Company are colluding with each other so as to harass the petitioner. Even otherwise, this FIR Annexure P.5 does not make out any cognizable offence against the petitioner on the face of it. The delay in lodging the FIR makes the FIR bad, and the investigation is liable to be quashed. With the above main pleas, the petitioner V.K. Beri has prayed for the quashment of FIR No. 5 and all the investigation conducted by the C.B.I. against him.

Notice of the petition was given to the respondents. On the record, the first written statement is dated 15.1.1996 which has been filed by respondent No. 2. A preliminary objection was taken by this respondent that quashing of said FIR Annexure P.5 will be against the pronouncement of the various judgments of the Hon''ble Supreme Court as when the investigation against the petitioner is in progress, the provisions of Section 482 Cr.P.C. should not be invoked. On merits, the stand taken by respondent No. 2 was that a case PC5/95, CBI, Chandigarh was registered on the basis of the source information. The question of delay in the case of frauds only arises from the date the fraud came to the light and not from the date when the fraud was committed. Moreover, it appears that the petitioner along with others had committed fraud in such a manner that it could come to light after many years. The petitioner manipulated the record of the company in such a manner that the fraud could not be detected easily. During the course of investigation it was found that modus operandi of the accused persons was that he in connivance with other associates of the departments and outsiders used to book false fire policies in the names of fictitious persons and after doing the insurance, they used to show false fire accidents in the office complexes/residences and used to process the false claims with the help of one surveyor Shri B.K. Kalia. The claims so processed were for the amount from Rs. 24,000/ to Rs. 25,000/ as the Manager himself was competent to pass those claims. The petitioner was the Manager himself. Apart from this, all the bank accounts had been opened by the petitioner himself in the fictitious names by giving wrong addresses. Even addresses given in the policies were different than the addresses given in the documents. It was only to mis lead the investigation so that the persons could not be traced who had committed the fraud. All the relevant cheques of the bogus claims issued by the Insurance Company had been deposited in the accounts and payment was utilised by the petitioner Sh. V.K. Beri. The CBI during the course of investigation had seized so many insurance and bank records. That record was under scrutiny. The possibility of many more such frauds or bogus claims were likely to be unearthed. The respondent denied that the investigation was not being conducted by the authorised officers. There is no delay in the investigation. The cases were registered when the frauds came to the knowledge of the Insurance Company.

Another written statement was filed on 6.3.1996 in which it has been stated that there is no delay on the part of Investigating Agency as the case was registered in the month of January, 1995 and the investigation is practically complete. Statements, of 32 witnesses had already been recorded and more than 161 documents have been seized. The statements of certain witnesses under Section 164 Cr.P.C. have been recorded. The perusal of the statement of Satish Kumar Sehgal shows that there was an established connivance between the petitioner and other persons and the petitioner used to receive fake and fictitious claim amount by opening fictitious accounts and he used to open the accounts in the names of fictitious persons in the bank. The specimen signatures have been taken of the accused for comparison. The case was registered against the petitioner on the basis of secret information which was received in the month of July, 1991 and before the registration of a regular case, thorough verifications were made and finally after completing the discreet verification, the final decision for the registration of the case was taken against the petitioner in the month of January, 1995 and accordingly FIR was registered on 31.1.1995 Annexure P.5. It has further been stated in this written statement that it took some time to collect the record for the years 198688. The CBI was overburdened with the cases of different nature of the States of Punjab and Haryana and Union Territory and for that reason the preliminary enquiry could not be conducted earlier. The second written statement has been furnished to this Court under the signatures of Shri N.S. Raju investigating officer. One more reply was filed on 23.4.1996 on behalf of the respondents and it has been stated that investigation in the present case is being carried out for the different transactions of bogus fire claims filed on behalf of different firms/individuals than those of the transactions mentioned in the earlier two FIRs. by the petitioner. On verification it was found that claims made are false as well as the claims have been made by nonexistant firms/individuals or bogus claims had been passed. The transactions of the Insurance Company under investigation of the CBI have no bearing over the transactions which were the subject matter of earlier FIRs Nos. 2 and 226 and 1991. The basis of the present FIR is entirely different from the transactions of earlier FIR and to show this Court the stand the respondent No. 2 had given the cheque members, amounts and the names of the parties. With above defence respondent No. 2 has prayed for the dismissal of the writ petition.

I have heard Shri Kanwaljit Singh, Advocate appearing on behalf of the petitioner and Shri R.K. Handa, Advocate who put in appearance on behalf of the CBI/UOI and with their assistance have gone through the record of this case.

The FIR in dispute is Annexure P.5 which was registered on 31.1.1995 and it is sought to be quashed by the petitioner on two grounds. Firstly, that the principles of double jeopardy would be applicable in this case in view of the fact that in the earlier two FIRs which were registered in the year 1991, the petitioner either has been acquitted or discharged and those orders have become final. The subjectmatter of this FIR were the transactions of 1987. The subjectmatter of the present FIR is also of the transactions of the year 1987 and the alleged offence of the FIR in dispute could be detected by the Insurance Company and by not doing so and by lodging FIR Annexure P.5, the petitioner is being harassed and by virtue of provisions of Section 300 Cr.P.C., this FIR could not be registered and is liable to be quashed alongwith investigation.

The second premises on which this FIR Annexure P.5 is sought to be quashed is that the information was supplied to the CBI in 1992 and the CBI took three years to make preliminary verifications and the FIR was recorded on 31.1.1995 after three years. Even for two years the investigation was not complete and at this stage putting up the challan for the transactions of 1987 is nothing but an abuse of the process of law and, therefore, the FIR Annexure P.5 is liable to the quashed.

Both the pleas raised by the learned counsel for the petitioner in the opinion of this Court are devoid of any merit. Section 300 of the Code of Criminal Procedure is the guiding section on the basis of which the first plea of the petitioner can be dealt with. This Section lays down that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under subsection (1) of Section 221, or for which he might have been convicted under sub section (2) thereof.

The bar of Section 300 Cr.P.C. would apply only if the petitioner is in a position to prove successfully that the subjectmatter of FIR Annexure P.5 is "same facts for any other offence for which a different charge from the one made against him might have been made". It may be mentioned here that in one of the FIRs, the petitioner was only discharged as per orders of the learned Magistrate Annexure P.4 dated 9.8.1994. The order of the learned Magistrate with respect to the other FIR has not been placed on record. It is settled law that order of discharge cannot be held as a judgment either of conviction or of acquittal. Assuming for the sake of argument that the other order pertaining to the second FIR was an order of acquittal still we have to see whether the FIR in dispute is based on the same facts which were the subject matter of the earlier two FIRs of 1991. Copies of both the FIRs have been placed on record as Annexure P.2 and P.3. The subjectmatter of the FIR was that the department came to know that some claim cheques of some of the customers were missing from the office and after enquiries it came to the notice of the office that Shri V.K. Beri petitioner with male fide intention had stolen the aforesaid cheques from the office and opened fictitious and false accounts in the name of some of the customers in the Bank of India, Mall Road, Amritsar and got all the cheques encashed and thus committed a fraud by concealing those cheques from the Insurance Company which is a public sector undertaking. The second FIR was registered on the basis of a letter written to the Senior Superintendent of Police by a customer by alleging that his Truck No. PJA 4215 had met with an accident on 3.1.1988 and he lodged a claim with New India Insurance Company Ltd. with which the truck was comprehensively insured. He did not receive his claim and issued reminders and later on he came to know that his claim stood paid vide cheque dated 4.2.1988 for Rs. 36,100/. The complainant informed the Department that he never received this amount. Rather it has been taken by one Kharaiti Lal of M/s Green Bus Service, Amritsar and he had encashed the amount by making a forgery and he has cheated and misappropriated the amount; on the basis of that investigation went into action and finally it was found that V.K. Beri had taken the cheque and opened a fictitious account in the name of Madan Lal. One more complaint was lodged on the similar lines.

In this regard it will be useful for me also to refer to the FIR Annexure P.5 which is totally based on different facts than the one from Annexures P.2 and P.3. The allegation against the petitioner in the present FIR is that he along with V.K. Kalia and with the proprietor of M/s Sangeeta Enterprises besides others cheated the Insurance Company by preferring bogus fire claims prior to 198788. The bogus claims were submitted to the Insurance Company and bogus claims were passed on the basis of the false documents and in this manner the various amounts were accumulated by the petitioner along with others in order to cheat and defraud the Insurance Company. A comparative study of FIRs Annexures P.2, P.3 and P.5 would show that modus operandi of the petitioner and another accused was different. It cannot be lost sight of the fact that the Insurance Company performs multifarious duties and disburses various claims to the parties under different heads. It takes insurance of the trucks, factory premises and office premises etc. The investigation of the CBI cannot be quashed under FIR Annexure P.5 simply on the ground that the transactions subjectmatter of the FIR Annexure P.5 are of the year 198788. Had the transactions/subject matter of FIR Annexure P.5 been of the same nature as that of Annexures P.2 and P.3 there would have been some force in the contention of Shri Kanwaljit Singh, learned Sr. counsel appearing on behalf of the petitioner. The principles of double jeopardisy or that of Section 300 Cr.P.C. are totally inapplicable to the facts in hand. Moreover, the investigation in this case is complete. The case has been put up before the Higher Authorities for obtaining the sanction of the prosecution against the petitioner. In these circumstances it will not be fair on the part of this Court to quash the FIR has held in 1994(2) RCR 37 (State of Bihar v. K.J.D. Singh) and 1995(2) RCR 124. It has been categorically stated by the Hon''ble Supreme Court that once the investigation has been conducted and evidence has been collected against the accused, the High Court was not justified in quashing of the FIR. Such evidence which has been collected by the Investigating Agency should be evaluated by the trial Courts and High Courts should not adopt a short circuit in order to quash the FIR and the investigation. Similar is the observation of the Hon''ble Supreme Court in 1996(2) Judgments Today 488 (State of UP v. O.P. Sharma) in which it was held that High Court should exercise powers sparingly and cautiously. In 1994(1) RCR 591 the Hon''ble Supreme Court further held that High Court is not supposed to quash the FIR when it discloses the commission of offence. The statutory powers of the police to investigate cannot be interfered with in exercise of inherent powers of the High Court.

The learned counsel for the petitioner has relied on 1996(1) All Instant Judgments 300 (Siri Ram Bhola v. State of Haryana). This authority is not applicable to the facts in hand. In the cited case, the petitioner was tried and acquitted of the same charges. In the present case the allegations as contained in Annexure P.5 are totally different from the one as contained in Annexures P.2 and P.3. The modus operandi of the FIR are different though the transactions pertain to the year 198788. I have already discussed above that it will not make difference if the transactions of the FIR in dispute Annexure P.5 are of the year 198788 like Annexures P.2 and P.3. The facts are totally different. The learned counsel for the petitioner also relies on a judgment passed in Criminal Misc. No. 8173M of 1996. This judgment also is not applicable to the facts in hand.

Second plea of the learned counsel for the petitioner was that information was sent by the CBI in 1992. That information was converted in the FIR in 1995. More than 2 years had already elapsed. It was an excuse on the part of the CBI to say that voluminous record was to be collected for proving the allegations against the petitioner. Five years have been taken by the CBI for conducting the investigation which is wholly not complete as the challan has not been submitted so far before the trial Court. It is not certain when the prosecution would obtain the necessary sanction against the petitioner for his prosecution. It is also not certain if the Punishing Authority would give the sanction against the petitioner or not. In these circumstances, the fate of the petitioner cannot be allowed to hang in plane for all times. The learned counsel further submitted that even if it is assumed for the sake of arguments that the challan would be put up against the petitioner shortly, still such trial will take years together against the petitioner and in the light of earlier acquittal and discharge of the petitioner, the present FIR should be quashed being an abuse of the process of law, more so when the allegations do not disclose an offence against the petitioner. This submission of the learned counsel for the petitioner is also devoid of any merit. Firstly I may state that FIR Annexure P.5 prima facie discloses an offence and also indicates the modas operandi on the part of the petitioner for the offence for which the petitioner is being charged, there is no limitation. The cases of frauds take time. After conceiving credible information in the year 1992, the CBI made discreet enquiries and verification. In the view of this Court those enquiries were conducted for the benefit of the petitioner and not for the benefit of the company. Now the CBI wants to prosecute the petitioner. A person who commits offences cannot be allowed to go scot free under the garb of protracted litigation; otherwise it will throttle the process of judicial system till the case of the petitioner is covered under the statutory provisions. In 1990(1) RCR 381 (Mangi Lal v. State of Rajasthan) it was held that the delay in a trial is aregrettable feature but having regard to the nature of offence and availability of evidence in support of the prosecution, it is not expedient to terminate the proceedings on account of the lapse of time alone. At the most some directions can be given to the trial Court to conclude the proceedings. In the present case, I do not find that any inordinate or unexcusable delay occurred on the lapse of CBI officers. The allegations pertain to record. The offence was detected somewhere in the year 1991 itself. Enquiries were conducted. It went up to January, 1995. Further documents were collected. Legal formalities such as comparison of signatures were conducted and now the challan is practically ready except for the obtaining of the sanction.

In the light of above, this Court is of the considered opinion that the present petition under Section 482 Cr.P.C. filed by the petitioner for the quashment of FIR Annexure P.5 has no legs to stand and the same is hereby dismissed.