Crl. M.C. No. 3671/2007 Page 1 of 32 “REPORTABLE” * HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. 3671/2007 Date of decision: February 06, 2009 # RAMESH CHAND GUPTA & ORS. ...... Petitioners ! Through : Mr. Jayant Bhushan, Sr. Adv. Mr. Subodh K. Pathak, Adv. Mr. S.P. Tripathi, Adv. Mr. Anil Dutt, Adv. Versus $ UNION OF INDIA & ANR. ..... Respondents ^ Through : Mr. O.P. Saxena, APP Mr. Anurag Kumar Aggarwal, Adv. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. 1. This petition under Section 482 of Criminal Procedure Code (hereinafter referred to as Cr.P.C.) read with Article 226 of the Constitution of India Crl. M.C. No. 3671/2007 Page 2 of 32 has been filed by the petitioners seeking quashing of FIR No. 621/2005 registered at Police Station Shahdara on 20.12.2005 for offences under Sections 420/465/468/471/34/120B Indian Penal Code (hereinafter referred to as ‗IPC‘) as well as order of the trial court dated 21.7.2007 whereby he took cognizance of the said offences and summoned the petitioners as accused persons. 2. Jan Sudhar Smiti (hereinafter referred to society) is a registered society involved in the management, operation and maintenance of Jan Suvidha Complexes like providing toilets and lavatories to the slums and Jhuggi Jhopries cluster colonies. Petitioner No. 1 is the President and petitioner Nos. 2 and 3 are the members of the governing body. Complainant was erstwhile secretary of the society and had filed a complaint in the court of learned ACMM on 8.12.2005 which culminated into registration of the impugned FIR No. 621/2005 at Police Station Shahdara. 3. Office bearers and members of the society had Crl. M.C. No. 3671/2007 Page 3 of 32 various internal problems relating to governance of the society and management of funds of the society deposited in the bank and these disputes arose during the period when petitioner No. 1 Ramesh Chand Gupta and complainant Subhash Chand Roongta were the President and the Secretary of the Society. On 8.3.1996 the executive body held a meeting and unanimously resolved to enroll the desirous persons as members of the society for doing social work and for that purpose petitioner No. 1 was given absolute discretionary authority to enroll new members. The minutes of the said meeting were also signed by the complainant. A meeting was held on 20.5.1996 in which seven new members were enrolled as members and in the same meeting Smt. Saroj Sharma and S. Panna Lal, the new inducted members, were unanimously nominated as acting Vice President and acting Secretary respectively. This meeting was also attended and signed by the complainant. The said minutes were approved by the governing body on 15.6.1996. On 26.7.1996, in another meeting of Crl. M.C. No. 3671/2007 Page 4 of 32 the governing body three new members were admitted in the presence of the complainant. Since the treasurer of the society had resigned in the meeting held on 28.9.1996, the executive body unanimously authorised, later on ratified the Secretary and President to operate the bank account till January 2000. The resolution was ratified in the meeting dated 8.10.1996. Complainant also filed an affidavit on 26.7.2000 indicating that there was no dispute amongst the members of the society. An amount of Rs. 22,65,000/- was withdrawn by the complainant in between August 2000 to 3.10.2000. This became bone of contention and disputes arose between the parties. 4. On 4.10.2000 petitioner No. 1 filed a criminal complaint against the complainant. Petitioner No. 1 also filed a civil suit for declaration and injunction being suit No. 118/2001 tilted as ―Ramesh Chand Gupta & Anr. v. Subhash Chand Roongta & Ors.‖ on 29.3.2001 along with an application under order 39 rules 1 and 2 CPC. Crl. M.C. No. 3671/2007 Page 5 of 32 Another suit was filed by the society on 15.2.2002 seeking declaration and permanent injunction being suit No. 380/2002 (new No. 178/03/02) titled as ―Delhi Jan Sudhar Samiti v. Ramesh Chander Gupta & Ors.‖ before this Court. Suit no. 380/2002 was consolidated with suit 118/2001 by virtue of an order passed by this Court on 17.2.2003. 5. Justice Avadh Bihari (retired judge of this Court) was appointed as Court Officer by the High Court vide its order dated 12.3.2003 with the consent of the parties for finalisation of membership of the society and for conducting the elections. The court officer/local commissioner submitted its report dated 10.1.2004 and conducted elections of the governing body of the society on 31.1.2004 and accordingly submitted the results to which objections were filed by the society through the complainant. The objections were dismissed by the learned ADJ vide his order dated 10.12.2004 and the results of the elections were accordingly declared by the learned ADJ. Crl. M.C. No. 3671/2007 Page 6 of 32 6. The society thereafter filed a civil miscellaneous main No. 106/2005 titled as ―Delhi Jan Sudhar Samiti v. Ramesh Chand Gupta & Ors‖ on 15.1.2005 against the said order of the learned ADJ. However, the said civil miscellaneous main was dismissed by this Court on 3.2.2005. Aggrieved by the said order of this Court, society filed an SLP in the Supreme Court which was dismissed on 18.3.2005. Vide order dated 2..7.2005 the learned ADJ directed the complainant to hand over the charge, management, maintenance and operation of seven complexes of the society to Ramesh Chand Gupta, petitioner No.1. Complainant handed over the possession of eight sites/complexes to petitioner No.1 on 5.3.2006 in compliance of the order dated 2.7.2005. This order was also challenged by the complainant in this Court which was dismissed by this Court on 1.3.2006. 7. Suit No. 380/2002 filed by the society through the complainant was dismissed having become infructuous due to appointment of new governing Crl. M.C. No. 3671/2007 Page 7 of 32 body by the learned ADJ on 20.1.2007. Complainant filed a revision petition against the said order which was also dismissed by this court being devoid of merits vide its order dated 26.4.2007. Against the said order of this Court an SLP was filed in the Supreme Court which was also dismissed on 27.7.2007. The civil litigation was initiated and pursued by the complainant in the name of the society against the members of the society including the petitioners. 8. During the pendency of the civil litigation complainant filed a criminal complaint titled as ―Subhash Roongta v. Ramesh Chand Gupta & Ors‖ on 8.12.2005 against the petitioners for having committed offences under Sections 420/464/465/467/468/471/120B IPC. On the orders of the learned MM dated 16.12.2005 FIR No. 621/2005 was registered on 20.12.2005. After investigation of the case chargesheet has been filed in the Court. 9. Allegations against the petitioner in the FIR are Crl. M.C. No. 3671/2007 Page 8 of 32 that minutes of various meetings of the society were recorded in the minute book by the complainant in his own writing and the minutes of meetings dated 21.10.1995, 20.5.1996, 26.7.1996 and 8.10.1996 have been tampered with by the petitioners by filling the portion of the minutes in between the place where he finished writing and where he had put his signatures by inserting certain lines. No such proceedings had taken place nor petitioner No. 1 was so authorised by the complainant to add to the minutes to fabricate proceedings. Petitioner No. 1 had produced these documents when the elections were to be conducted by Justice Avadh Bihari (retired) and used these forged minutes of the meeting to appoint new members whose names were subsequently added unlawfully and took over the control of the society. This was done in conspiracy with the new members, appointed after elections were conducted by Justice Avadh Bihari (retired) appointed officer by the Court. 10. Earlier, in 1996, petitioner had stated that minute Crl. M.C. No. 3671/2007 Page 9 of 32 book was misplaced. Complainant, subsequently started maintaining the minute book by himself since 1997. Later on when the elections were conducted, during the litigations between the parties since 2000, when elections were conducted by the order of the court, the minute book was suddenly produced by petitioner No. 1 and was claimed to be genuine. It is alleged that the petitioners have tampered with the minute book and also with the records kept with the registrar of societies. The tampering has been done by adding few lines and names of the new members in the space between the last line of the minutes and the place where signatures of the complainant appear. The new members so appointed had also put their signatures subsequently beneath the signatures of the complainant. The petitioners and the other accused persons in conspiracy with each other have used the forged minute book as genuine and succeeded in illegal induction of new members. Since the offences of forgery and cheating have been committed in connivance with each other, to Crl. M.C. No. 3671/2007 Page 10 of 32 cause wrongful loss to the complainant and wrongful gain to themselves, petitioner and other accused persons have committed offences under Sections 420/464/465/467/468/471/120B IPC. 11. Mr. Jayant Bhushan, learned senior counsel for the petitioners, has made following submissions: (a) In the documents alleged to be forged, the complainant admitted that there were gaps between the written matter and his signatures and his handwriting has been admitted by the civil court and the court had passed orders on the same. (b) The allegation that minute book was misplaced and thereafter he started to keep minute book with himself raised by the complainant are false as in earlier civil litigations no minute book was reported as misplaced and neither did complainant placed minute book on record which is stated to have been maintained by him. Crl. M.C. No. 3671/2007 Page 11 of 32 (c) Factum of prior civil litigations has not been disclosed in the FIR and disputes between the parties are related to the functioning and elections in the society and are purely of civil nature. (d) The charge sheet was filed and the same does not constitute or make out any offence committed by petitioners against complainant as alleged in the FIR. The FIR and subsequent chargesheet are without collateral evidence for supporting allegations against the petitioners and upon the evidence gathered during investigation the prosecution had himself submitted that there is no evidence per se against the accused. (e) The civil proceedings were already initiated by complainant against the petitioners and during the course of these litigations the present FIR was registered on the same crux of the disputes contained in the civil litigations thus attracting sections 40 to 42 of Crl. M.C. No. 3671/2007 Page 12 of 32 the Indian Evidence Act (hereinafter referred to as ‗Act‘). (f) The order of issue of summons against the petitioners is passed by the learned Metropolitan Magistrate without application of mind and perusal of facts. The impugned order suffers from perversity, illegality and infirmity, as the factum that civil disputes inter-se the parties were decided against the complainant and upheld till the Supreme Court, is not considered at all. 12. It is also argued by the learned senior counsel for the petitioners that FIR has been used as a tool by the complainant for his ulterior motive and to hinder the smooth functioning of the society. The FIR does not disclose any offence under Sections 420/469 IPC as neither an act of delivery of property, or inducement for the benefit by conversion into valuable security by an act of deceit, or fraud to induce any other person, have been alleged in the FIR. It is also emphasised that Crl. M.C. No. 3671/2007 Page 13 of 32 offence under Section 465 of the IPC are not made out against the petitioners in the FIR. It is urged by learned senior counsel for the petitioners that, FIR has been lodged because of retribution and absurd and improbable allegations have been levelled against the petitioners therein. 13. Mr. Anurag Kumar Aggarwal, learned counsel for the complainant has argued that civil litigation has no bearing on the criminal litigation i.e. the FIR in question as, by virtue of Sections 40, 41 and 42 of the Act, the judgments passed in the civil cases inter se the parties have no relevancy. Therefore, judgments in the civil suits cannot be taken into consideration by the Court as relevant fact for deciding the present petition on merits. 14. The dispute was amongst the members of the society and the complainant, who has since resigned from the membership of the society, because of differences among themselves regarding the mannerism in which the management of the society and the society funds Crl. M.C. No. 3671/2007 Page 14 of 32 were handled by petitioner No. 1. Complainant has admitted that he had left blank space before placing his signature on the minute book dated 20.5.1996 and 26.7.1996. Petitioner No. 1 Ramesh Chand Gupta has not disputed that the names of the members were inserted by him in the minutes book in his own hand. Why the space was left in between the last line written by the complainant and his signatures is a mystery and probably this mystery could not be solved; that the Investigating Officer filed a closure report before the learned MM. 15. In the meeting held on 8.3.1996, duly attended by accused petitioner No. 1 Ramesh Chand Gupta and complainant Subhash Roongta, it was resolved to induct new members in the society and President was authorised to enroll new members as some social workers wanted to join the society. Minutes dated 8.3.1996 were unanimously approved by the governing body in its meeting dated 20.5.1996. Petitioner No. 1 happened to be the President of the Society at the relevant time. It was in the Crl. M.C. No. 3671/2007 Page 15 of 32 meeting dated 20.5.1996 that seven new members were enrolled; two of them were made acting vice president and acting secretary respectively. These minutes were signed by the complainant on the same day and below his signatures the other members who had attended the meeting including the new enrolled members signed the minutes. It is pertinent that in the meeting on 15.6.1996, minutes of meeting held on 20.5.1996 were approved. This meeting was also attended by the complainant, who signed the same, besides other members. Thus, prima facie it is clear that complainant was in the know of the proceedings conducted in the meetings held on 20.5.1996 and 15.6.1996 but, he never took any objection to the enrollment of seven members named in the meeting dated 20.5.1996. Complainant, as per his own case, had written the minutes and has only disputed the entry of names of seven persons, allegedly made subsequently by the petitioner. Out of these seven members, three were present in the meeting dated 15.6.1996. In the minutes dated Crl. M.C. No. 3671/2007 Page 16 of 32 26.7.1996 the names of three newly enrolled members find mention below the recorded proceedings and above the words ―The General body meeting will be held on 28-09-96‖. Below this seven members including the complainant and petitioner No. 1 had appended their signatures against their names. 16. Under these circumstances, it is to be seen if prima facie an offence under Section 420 IPC is made out against the petiitoners. Section 415 IPC defines cheating in the following words: ―415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ―cheat‖.‖ 17. The gravamen of grievance of the complainant is Crl. M.C. No. 3671/2007 Page 17 of 32 that new members were appointed in the society illegally by tampering with the minute book records by the accused/petitioners and the complainant was against the induction of new members in the society. Hence, essentially it is a dispute which involves induction of new members without proper procedure and without obtaining sanction of other members, specially, when complainant was admittedly secretary of the society at the relevant time. Might be that complainant was against enrollment of ten new members in the society, the fact remains he had signed the minutes of the governing body without recording his objection to the enrollment of new members when a decision was taken that President was empowered to enroll new members. Petitioner No. 1, who was the president at the relevant time, accordingly enrolled ten members. It is not in dispute that these names were squeezed in between the space left by the complainant while signing the minutes. 18. As discussed above, the minutes were subsequently Crl. M.C. No. 3671/2007 Page 18 of 32 approved in the second meeting which were also attended by the complainant and the names of the newly enrolled members were in his knowledge when he approved the minutes of the meeting dated 20.5.1996, 15.6.1996 and 26.7.1996. He never raised any objection to the enrollment of the new members by the President in any of these meetings, duly attended by him. Therefore, prima facie the basic ingredient of cheating in this case is missing. There is no evidence on the record to suggest that petitioners had fraudulently enrolled ten new members in the society with a view to deceive, or dishonestly induce complainant to sign the minutes, which, he would not have done, if he was not so deceived and the said act of omission was likely to cause any damage or harm to him in body, mind, reputation or property. There is no dishonest concealment of facts by the petitioners from the complainant. Petitioner No. 1 prima facie enrolled ten members in view of the powers vested in him by the governing body in the meeting of the society held on 8.3.1996, bonafidely. Crl. M.C. No. 3671/2007 Page 19 of 32 19. For the similar reasons, it cannot be said that petitioners fabricated and forged the minutes dated 20.5.1996 and 26.7.199 with intent to use the said forged and fabricated minutes for purposes of cheating the complainant i.e. to cause wrongful loss to the complainant and wrongful gain to themselves. Hence prima facie, ingredients of an offence of cheating punishable under Section 420 IPC are not made out on the record. 20. Section 471 of IPC is attracted only when a person fraudulently or dishonestly uses as genuine, any document which, he knows, or has reason to believe that it is forged. As discussed above, prima facie there is nothing to indicate that minutes of the meeting were forged and fabricated by subsequently entering the names of ten members as newly enrolled members. It cannot be said that the minutes were fraudulently used as genuine by the petitioners for the simple reason that complainant was present in the meetings whereby the minutes recorded in the relevant meetings dated 8.3.1996 and 20.5.1996 were approved in his Crl. M.C. No. 3671/2007 Page 20 of 32 presence and under his signatures. Complainant, therefore, is deemed to have acknowledged the newly enrolled members from the date of their enrollment since the year 1996. The present complaint was filed by him on 8.12.2005; after about nine years of enrollment of the new members or the alleged commission of forgery and fabrication in the minutes by the petitioners, specially petitioner No. 1. It would not be out of place to mention that civil litigation inter se the parties had started somewhere in the year 2001 and complainant had been raising the same defences, as are his allegations in the FIR in all the civil suits. 21. In State of Haryana v. Bhajan Lal – 1992 SC 604 guidelines were laid down for the High Court to be followed for quashing of FIR contained in para 105 of the judgment, which is as follows: ―105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this court in a series of Crl. M.C. No. 3671/2007 Page 21 of 32 decisions relating to the exercise of the extra-ordinary power under Article 226 of the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined any sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same Crl. M.C. No. 3671/2007 Page 22 of 32 do not disclose the commission of any offence and make out a case against the accused. 4. Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.‖ Crl. M.C. No. 3671/2007 Page 23 of 32 22. The criminal proceedings in the present case have been initiated maliciously and are being prosecuted by the complainant malafidely with an ulterior motive for wreaking vengeance on the accused persons with a view to settle his score with them due to private and personal grudge. Complaint therefore does not disclose any offence allegedly committed by the petitioners punishable under Section 471 IPC. 23. Learned senior counsel for the petitioners has emphasised that the civil suits have been finally decided inter se the parties upto the Supreme Court and the FIR was lodged after first round of civil litigation was complete and second round of litigation was also complete before the impugned order dated 21.7.2007 was passed by the learned trial court and, therefore, he urged that the trial court should have taken into consideration the fact that the dispute inter se the parties being common in civil suit as well as in the criminal