CRM No. M-36244 of 2012 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-36244 of 2012(O&M) Date of Decision: 19.11.2012 [ENTITY] wife of [ENTITY] Petitioner Versus The [ENTITY] & Ors. Respondents
CORAM: HON'BLE MR. JUSTICE [ENTITY] Present: Mr.[ENTITY], Advocate for the petitioner. [ENTITY], J.(oral) The contour of the facts & material, culminating in the commencement, relevant for disposal of the instant petition and emanating from the record is that, [ENTITY] (accused) husband of the petitioner, was having a joint account along with his son [ENTITY] and brother [ENTITY], in Punjab National Bank, Barewal Road, Ludhiana. On 22.02.2012, he presented a fake account payee cheque, bearing No.FAK-9[SECTION]71 dated 14.02.2012, for a sum of Rs.1,07,12,500/- in his joint account, purported to have been issued by M/s [ENTITY], out of its current account. Accordingly, the said amount was credited in his ([ENTITY]) joint account. Thereafter, within a period of two days, accused [ENTITY] has withdrawn the entire amount of Rs.1,06,50,000/- from the said Bank account by different modes of withdrawal mentioned therein in the final police report.
2. [ENTITY], M/s [ENTITY] informed its Bank that they have not issued any such cheque and the amount of Rs.1,07,12,500/- has been wrongly debited from their bank account. The prosecution claimed that, on comparison of both the cheques, it revealed that the cheque submitted by accused-[ENTITY] was fake and he has illegally and fraudulently withdrawn the amount of Rs.1,06,50,000/- in this respect.
3. During the course of investigation, it revealed that the impugned fake cheque prepared by [ENTITY], co-accused (since declared proclaimed offender) was handed over to accused-[ENTITY], for its presentation in his bank account. He (accused [ENTITY]) further handed over the indicated cheque to his other co-accused [ENTITY], for its presentation in his bank account. Accused [ENTITY] again handed over that fake cheque to other co-accused- [ENTITY], for its presentation in his bank account, for the reasons best known to them. Ultimately, he (accused-[ENTITY]) further handed over that cheque to his co-accused [ENTITY], who actually presented the fake cheque in his account and fraudulently withdrew an amount of Rs.1,06,50,000/- within a period of two days, in order to cheat the bank. There are specific allegations that subsequently, all the accused have divided the fraudulently withdrawn impugned amount amongst themselves.
4. In this manner, according to the prosecution that, all the accused have hatched a well-thought criminal conspiracy, committed forgery, prepared and possessed the forged cheque for the purpose of cheating and used it as genuine. Moreover, they have illegally withdrawn and apportioned amongst themselves a huge amount of Rs.1,06,50,000/- fraudulently withdrawn from the pointed account of the Bank, on the basis of fake cheque in question. In the background of these allegations and on the basis of complaint of complainant-Senior Manager, Punjab National Bank, the present criminal case was registered against the petitioner, her son [ENTITY], husband [ENTITY], brother-in-law [ENTITY], [ENTITY], [ENTITY], [ENTITY] & [ENTITY] etc., by virtue of FIR No.12 dated 02.03.2012 (Annexure P1), for the commission of heinous offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT], for hatching a criminal conspiracy, preparing, using the false & forged cheque as genuine and apportionment amongst themselves of fraudulently withdrawn the huge amount in crores on the basis of forged cheque, by the police of Police Station PAU, Ludhiana, in the manner described here-in-above.
5. The petitions for regular bail filed by some of the accused were dismissed by this Court, vide [CASE NUMBER] titled as "[ENTITY] Vs. [ENTITY]", by means of order dated 10.9.2012 (Annexure P3).
6. After completion of the investigation, the police submitted the final police report (challan) against all the indicated accused.
7. The petitioner claimed that in pursuance of the application, the matter was re-investigated by the Committee of police officers and she, her son [ENTITY] & brother-in-law [ENTITY] were exonerated by it, by way of inquiry report dated 10.9.2012 (Annexure P2).
8. Not only that, thereafter, on the basis of representations made by [ENTITY] son of [ENTITY] & [ENTITY] son of [ENTITY] to Additional Director General of Police, the DSP (IVC) (respondent No.2) again exonerated accused [ENTITY], [ENTITY] and [ENTITY] (private respondents No.3 to 5), through the medium of subsequent impugned inquiry report dated 12.10.2012 (Annexure P4).
9. Instead of submitting to the jurisdiction of the trial Court, petitioner [ENTITY] wife of [ENTITY] has preferred the instant petition, to quash the impugned enquiry report (Annexure P4), invoking the provisions of [SECTION] [ACT], mainly on the ground that the final police report (challan) has already been submitted and the impugned subsequent inquiry report (Annexure P4), submitted by respondent No.2 is totally illegal and mala fide in this context.
10. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the present petition in this regard.
11. Ex facie, the argument of the learned counsel that since respondent No.2 has submitted his inquiry report after the presentation of the final police report (challan), so, the impugned subsequent inquiry report (Annexure P4) is illegal and arbitrary, lacks merit at this stage.
12. Above being the position on record, now the short & significant question, though important, that arises for determination in this petition is, as to whether the instant petition u/[SECTION] [ACT] to quash the subsequent impugned re-investigation report (Annexure P4) is maintainable at this stage or not?
13. Having regard to the contentions of learned counsel for petitioner, to me, the answer must obviously be in the negative in this respect.
14. As is evident from the record, that, a criminal case was registered against the accused, vide FIR (Annexure P1) in the manner depicted here-in-above. The petitions for regular bail filed by some of the accused were dismissed by this Court, vide [CASE NUMBER] by virtue of order (Annexure P3). After completion of the investigation, the police has already submitted the final police report (challan) u/[SECTION] [ACT] against all the indicated accused. Thereafter, in the wake of application/representation, the police exonerated the petitioner, her son and brother-in-law, by means of 1st report (Annexure P2), whereas respondent No.2 exonerated respondent No.3 to 5, by virtue of impugned 2nd report (Annexure P4).
15. What cannot possibly be disputed here is that although legally speaking, once having completed the investigation, the final police report/challan u/[SECTION] [ACT] was submitted, then the police almost becomes "Functus-Officio", except to further investigate the case, that too, with the prior approval of the Court u/[SECTION] [ACT]. But, strange enough, in the instant case, the police in the garb of re-investigation, has exonerated the accused, vide subsequent impugned reports (Annexures P2 & P4), much after the submission of final police report. Whether the subsequent reports (Annexures P2 & P4) are genuine or otherwise or what are their affects, would be the moot points to be decided at the time of taking cognizance u/[SECTION] [ACT] during the course of trial by the trial Magistrate. Be that as it may, but, in any case, the petition u/[SECTION] [ACT], to challenge the impugned subsequent investigation report (Annexure P4) is not at all maintainable at this stage. This matter is no more res integra and is now well settled.
16. An identical question came to be decided by Hon'ble Apex Court in case [PRECEDENT], wherein under similar circumstances and having considered the provisions of [SECTION], [SECTION] and [SECTION] [ACT], it was held as under (paras 17 to 19 & 21):-
"17. It follows that where the police report forwarded to the Magistrate under [SECTION] [ACT] states that a person has committed an offence, but after investigation the further report under [SECTION] [ACT] states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in the two reports, make out an offence committed by the person. This interpretation has been given by this Court in [ENTITY] v. Dinesh Mishra to the provisions of [SECTION] and [SECTION] of the [ACT], which were the same as in the [ACT].
18. In [ENTITY], para 15 at p. 123 of [ACT] this Court observed:
"15 The police, after such investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under [SECTION], notwithstanding the contrary opinion of the police, expressed in the final report."
19. After referring to the law laid down in [ENTITY], this Court has further held in [ENTITY] v. Kanwar Pal Singh Gill that where the police in its report of investigation or further investigation recommends discharge of the accused, but the complainant seeks to satisfy the Court that a case for taking cognizance was made out, the Court must consider the objections of the complainant and if it overrules such objections, it is just and desirable that the reasons for overruling the objections of the complainant be recorded by the Court and this was necessary because the Court while exercising power under [SECTION], [ACT] whether to take cognizance or not to take cognizance exercises judicial discretion.
21. Pursuant to permission granted by the learned Magistrate on 27.7.2006 for further investigation, a further report has been made by the Superintendent of Police, City-II, Ludhiana, stating that Respondent 1 for his self-defence had caused injuries to the appellant and others and hence the cross-case against Respondent 1 is required to be cancelled. This further report has to be forwarded to the learned Magistrate and as has been held by this Court in [ENTITY] and [ENTITY] it was for the learned Magistrate to apply judicial mind to the facts stated in the reports submitted under [SECTION], [ACT], and to form an opinion whether to take cognizance or not to take cognizance against Respondent 1 after considering the objections, if any, of the complainant, namely, the appellant."
17. [ENTITY], it was ruled (para 24) that since the Magistrate had not applied his mind to the merits of the reports, so, the exercise of power by the High Court under [SECTION] [ACT] at an interlocutory stage was not warranted and under these circumstances, the petition u/[SECTION] [ACT] was not maintainable.
18. In this manner, the ratio of the law laid down in the aforesaid judgment "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
19. Therefore, it cannot possibly be saith at this stage that the subsequent report (Annexure P2), favouring them and exonerating the petitioner, her son and brother-in-law, is valid and the 2nd report (Annexure P4) favouring and exonerating private respondent Nos.3 to 5 is illegal and arbitrary, as urged on behalf of petitioner. These subsequent reports (Annexures P2 and P4) stand on the same footing and contrary to already submitted final police report under [SECTION] [ACT]. Under these circumstances, it is for the Magistrate to consider the matter with regard to the validity and genuineness or otherwise of the subsequent reports (Annexures P2 and P4) and their legal affects at the time of taking cognizance u/[SECTION] [ACT] as held in [PRECEDENT]'s case (supra). Thus, the contrary arguments of learned counsel for petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
20. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the cases of either side during the course of trial of main case, as there is no merit, therefore, the instant petition is hereby dismissed in the obtaining circumstances of the case.
21. Needless to mention that nothing observed here-in-above would reflect, on the merits of the main case, in any manner, during the course of trial as the same has been so recorded for a limited purpose of deciding the present petition.
19.11.2012 ([ENTITY]) AS JUDGE Whether to be referred to reporter?Yes/No