CRM No.M-9236 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision : 10.11.2010 Abhishek Gupta ...Petitioner versus U.T., Chandigarh and another ...Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.P.S. Hundal, Sr. Advocate with Mr.Dinesh Trehan, Advocate for the petitioner. Mr.Hemant Bassi, Advocate for respondent No.1-U.T., Chandigarh. Mr.Amar Vivek, Advocate for respondent No.2. M ehinder S ingh S ullar , J. (Oral) The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that petitioner-accused Abhishek Gupta was posted as Senior Manager (Marketing) with M/s Pioneer Securities Private Ltd. (for short “the Company”). He used to visit the shop of complainant-Deepak Kalra and developed friendly relations with him. The complainant claimed that in the month of March, 2005, the accused came to his shop and represented to him that accused-V.K.Gupta was a partner of Vikas WSP Company, which he had purchased after it was delisted by the Stock Exchange. The accused induced the complainant to invest the money through them with the false promise and assurance that by purchasing shares of the said company, they (complainant) will be able to make a huge profit in a short duration of time. The accused were stated to have represented the complainant that in case he wanted to make the investment, he should give them the amount in cash, on the pretext that encashment of an amount of account payee cheque would take some time, which would result in CRM No.M-9236 of 2009 (O&M) 2 unnecessary delay and the golden opportunity to make a huge profit in short duration of the time, may be missed. 2. According to the complainant that as he had friendly relations with the petitioner-accused and had full faith in him, therefore, he (complainant) handed over a sum of Rs.5,05,000/- in cash on different occasions, for the purpose of purchasing the shares in their names. The accused kept on assuring him that they (accused) have invested the indicated money in the aforesaid company. The complainant became suspicious. When he demanded documentary proof, then the accused misrepresented him that the shares were lying in their (accused) account and will be transferred in his (complainant) account. In this manner, the accused delayed the matter on one pretext or the other. It was claimed that ultimately after a lot of persuasion, the accused agreed to return the entire money. Instead of paying the entire amount, the accused was stated to have issued a cheque bearing No.675058 dated 10.04.2006 drawn by ICICI Bank, Chandigarh only in the sum of Rs.5,00,000/- under the signatures of petitioner-accused Abhishek Gupta. At that time, the accused assured the complainant that his entire remaining amount (Rs.10,00,000/-) of investment along with profit thereon will be returned shortly. 3. The case of the prosecution further proceeds that thereafter the accused did not make the payment of the balance amount. So much so, the cheque of part payment given to him under the signatures of the petitioner-accused, on presentation to the bank, was also dis-honoured, on account of insufficient funds, as conveyed to him, vide bank memo dated 20.04.2006 in this behalf. 4. Levelling a variety of allegations and narrating a sequence of events, in all, according to the complainant that the accused has dishonestly misappropriated his deposited amount and converted the same to his own use, fraudulently and dishonestly induced him to hand over the amount in question. On the basis of aforesaid allegations and in the wake of complaint of complainant Deepak Kalra (respondent No.2), the present case was registered against the CRM No.M-9236 of 2009 (O&M) 3 accused, vide FIR No.82 dated 07.06.2006 (Annexure P-3), on accusation of having committed the offences punishable under Sections 406 and 420 IPC by the police of Police Station, Sector 3, Chandigarh, in the manner indicated here-in- above. 5. Instead of submitting to the jurisdiction of the trial Court, main accused-petitioner Abhishek Gupta, filed the present petition for quashing the FIR (Annexure P-3) and challan under Section 173 Cr.P.C. (Annexure P-4), invoking the provisions of section 482 Cr.PC. That is how I am seized of the matter. 6. The petitioner has sought the quashing of the FIR, mainly on the grounds that (i) he has been falsely implicated in the present case; (ii) it is not mentioned in the FIR that from the very beginning, his intention was to cheat the complainant; (iii) no date, month or year of payment of impugned amount has been mentioned in the FIR; (iv) the police has neither associated any witness from the public nor interrogated any officer/official of the Company to ascertain the actual role of the petitioner in the entire episode and (v) the FIR does not show that the complainant had ever visited the office of the Company for verification of his investment and since the complainant has also filed a complaint (Annexure P5) against the petitioner under section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as “the Act”), so, the present FIR (Annexure P3) is liable to be quashed. 7. The respondents contested the claim of the petitioner and filed a detailed reply, inter-alia, pleading certain preliminary objections of, maintainability and locus standi of the petitioner to file the instant petition. The petitioner was stated to have produced forged, fabricated and manipulated documents, with a view to misled the Court. The complainant-respondent claimed that he had no dealings whatsoever with the company. He and his family members had only dealing with the petitioner personally, so much so money was paid by them to the petitioner personally, for purchase of shares as per his promise. The petitioner was CRM No.M-9236 of 2009 (O&M) 4 stated to have embezzled the entire amount personally. One of the cheques issued by the petitioner for some amount had been presented by the complainant, but the same was dis-honoured by the bank. It was thereafter that the proceedings under section 138 of the Act only qua that cheque only were initiated. But it has got nothing to do with the remaining part of the prosecution version of cheating and misappropriating the entire amount by the petitioner-accused. It will not be out of place to mention here that the complainant-respondent has stoutly denied all other allegations contained in the petition and prayed for its dismissal. 8. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context. 9. Ex facie, the main celebrated contention of the learned counsel for the petitioner that since the complainant filed a complaint under section 138 of the Act, so, the FIR (Annexure P3) is liable to be quashed, is neither tenable nor the observations of this Court in case Harinderpal Singh v. State of Punjab 2007(4) R.C.R.(Criminal) 534 are at all applicable to the facts of the present case, wherein it was observed that “if the complainant has filed a complaint under section 138 of the Act, then there is no occasion for him to prosecute the accused under sections 406 and 420 IPC.” Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner in the present controversy. 10. As is evident from the record that according to the prosecution version, the petitioner-accused made false promises and induced the complainant to invest the money through them with the assurance that by purchasing the shares of delisted company, they will be able to make a huge profit in a short duration of time. He gave the impugned amount to the petitioner-accused personally for investment. The complainant claimed that although he was entitled to the amount of about Rs.15 lacs in pursuance of his investment as promised, but ultimately CRM No.M-9236 of 2009 (O&M) 5 after a lot of persuasion, the accused issued a cheque bearing No.675058 dated 10.4.2006 drawn by ICICI Bank, Chandigarh only for a sum of Rs.5 lacs under the signatures of petitioner-accused, which too was dis-honoured by the bank. At that time, the accused assured that the entire remaining amount of about Rs.10 lacs of investment alongwith profit will be returned shortly, which was never returned by him. 11. Therefore, the issuance of cheque of a lessor amount, which too was dis-honoured and the filing of complaint (Annexure P5) under section 138 of the Act in this respect, to my mind, will not exonerate the petitioner-accused from the offences of cheating and misappropriation committed by him in this relevant behalf. 12. There is another aspect of the matter, which can be viewed from a different angle. What is not disputed here is that the trial court has already taken cognizance and after finding sufficient material on record, it framed the charges against the petitioner, vide order/charge sheet dated 24.8.2009 (Annexure P7) in the following manner:- “That during the year 2005, you the above named accused Abhishek Gupta being posted as Senior Manager (Marketing) with M/s Pioneering Securities Private Limited, SCO No.145-146, Cabin No.3, Sector-8, Chandigarh and being friend of complainant Deepak Kalra, were entrusted with a total sum of Rs.5,05,000/- by way of various installments for purchase of shares i.e. 12,500/- shares of Vikas WSP @ Rs.06/- per share, total amounting to Rs.75,000/-; 1197 shares of Reliance Industries Futures @ Rs.780/- per share, total amounting to Rs.1,25,000/- and 7 applications of ICICI Mutual Fund in the sum of Rs.15,000/- each, total amounting to Rs.1,05,000/-, which you failed to return to the complainant and thereby committed an offence of breach of trust in respect of the said entrusted property and you thereby committed an offence punishable under section 406 of Indian Penal Code and within my cognizance. That during the abovesaid period, you cheated Akshay Vig by dishonestly inducing him to invest the above said amount of CRM No.M-9236 of 2009 (O&M) 6 Rs.5,05,000/- by way of various installments for purchase of shares i.e. 12,500/- shares of Vikas WSP @ Rs.06/- per share, total amounting to Rs.75,000/-; 1197 shares of Reliance Industries Futures @ Rs.780/- per share, total amounting to Rs.1,25,000/- and 7 applications of ICICI Mutual Fund in the sum of Rs.15,000/- each, total amounting to Rs.1,05,000/-, through you for purchasing abovesaid shares, by luring him of a huge profit in a short duration of time and you thereby committed an offence punishable under section 420 of Indian Penal Code and within my cognizance.” 13. Meaning thereby, once the Court has already taken the cognizance and the charges have already been framed, then the FIR cannot legally be quashed in exercise of jurisdiction of this court under section 482 Cr.PC and the only remedy available to the accused is to challenge the order of framing charges by the Magistrate before the revisional Court (Sessions Judge), in view of judgment of Hon'ble Apex Court in case Minakshi Bala v. Sudhir Kumar 1994 (3) R.C.R. (Criminal) 123. 14. Above all, it is not a matter of dispute that the scope of quashing an FIR as envisaged under section 482 Cr.PC is not res integra and is well recognized. It is well settled proposition of law that in case on the bare reading, the offences are made therefrom, no order can be made for quashment. The FIR can only be quashed in the rarest of the rare cases, only if it is proved that the same was lodged maliciously or vexatiously in order to wreck vengeance and only in that eventuality, the FIR amounts to abuse of process of the Court and not otherwise. Reliance in this regard can be placed on the celebrated judgment of Hon'ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R.(Criminal) 92 in this respect. 15. As is clear from the record that there are direct allegations against the petitioner-accused that he has cheated by dishonestly inducing the complainant to invest the amount and misappropriated the money entrusted to him by the CRM No.M-9236 of 2009 (O&M) 7 complainant and thus committed the offences punishable under sections 420 and 406 IPC. All the essential ingredients of the indicated offences are complete. There is a prima facie ample evidence involving the complicity of the petitioner in the commission of heinous crime of cheating and misappropriation. There is nothing on the record even to suggest remotely that the FIR was got lodged by the complainant maliciously or vexatiously in order to wreck vengeance. 16. Not only that, all the remaining indicated contentions raised on behalf of the petitioner in the present petition are factual in nature and can only be appreciated by the trial Court after evidence is led by the prosecution during the course of trial. The learned counsel for the petitioner has miserably failed to urge that the present case falls within the ambit of parameters laid down by in Bhajan Lal and Som Mittal's cases (supra). Thus, the arguments of the learned counsel for the respondents that the trial against the petitioner is warranted, have considerable force and the contrary contentions of the learned counsel for the petitioner “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. Therefore, there is no ground to quash the FIR (Annexure P3) in exercise of limited inherent jurisdiction of this Court. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial, the instant petition is hereby dismissed in the obtaining circumstances of the case. 19. Needless to say that nothing recorded herein above would reflect on the merits of the case, in any manner, as the same has been so observed for a limited purpose of deciding the present petition. (Mehinder Singh Sullar) 10.11.2010 Judge AS Whether to be referred to reporter?Yes/No