Vineet Kumar And Ors vs State Of Up & Anr

2. The accused have made several financial transactions with complainant, Smt. Rekha Rani, her husband, Akhilesh Kumar and her son, Ankur in the months of May, 2015. Accused No.3 gave Rs.9 lakh to husband and son of the complainant for business purposes. An amount of Rs.7 lakh 50 thousand was given in cash to complainant and her husband by accused No.1. Further, husband of complainant received Rs.3 lakh 60 thousand in cash and Rs.2 lakh 40 thousand by cheque dated 29.05.2015 from accused No.1.

3. An agreement dated 29.05.2015 was signed by the husband of the complainant and accused No.1 acknowledging the payment of Rs.3 lakh 60 thousand in cash and Rs.2 lakh 40 thousand by cheque. A cheque of Rs.6 lakh was handed over by the husband of the complainant to accused No.1 to ensure the re-payment. Another agreement between the complainant and accused No.1 was entered into on 01.06.2015 wherein it was acknowledged that complainant and her husband had taken Rs.7 lakh 50 thousand in cash from accused No.1. Earlier, husband of complainant took Rs.6 lakh from accused No.1. Parties entered into an agreement agreeing with certain conditions. Third agreement was entered into between the son of complainant and accused No.1 on 31.08.2015 wherein son of complainant acknowledged that his parents have taken an amount of Rs.14 lakh 50 thousand. Complainant and her husband gave cheques of Rs.6 lakh and Rs.8 lakh 50 thousand to accused No.1 drawn on Prathama Bank, Kanth Branch, District Moradabad for recovery of the amount given by the accused. Agreement noticed that the amount was borrowed with promise to return the amount. The agreements were written on Non-Judicial Stamp Papers which were not registered but contained signatures of the parties mentioned therein.

4. Accused No.3 filed a complaint under Section 138 of Negotiable Instruments Act being Complaint No.1587/2015 against husband and son of the complainant with the allegation that amount of Rs.9 lakh was paid to the opposite parties who had issued a cheque of Rs.9 lakh with the assurance that the amount will be repaid by 22.08.2016. It was stated by accused No.3 in the complaint that after lapse of time when the amount was not paid, the cheque was deposited which was returned back by the Bank with remark “No Sufficient Balance”. When the opposite parties were contacted in this regard, the opposite parties told not come to them. After giving a notice on 05.09.2016, complaint was filed on 21.09.2015. Accused No.1 had also filed an Application on 29.09.2015 under Section 156(3) Cr.P.C. against the complainant, her husband and son. Cheque given by son of the complainant of Rs.6 lakh to accused No.2 was also dishonoured. Complaint filed by accused No.1 under Section 138 of Negotiable Instruments Act was registered as Complaint No.3280/2015. Complaints against complainant, her husband and son were filed in the month of September, 2015 alleging dishonoured of cheque and complaint of non-payment of amount given to the complainant and her husband and son.

5. On 30.10.2015 complainant filed an Application under Section 156(3) Cr.P.C. against all the three accused alleging commission of offence under Section 376(d),323 and 452 IPC. In the application allegation was made against the accused that on 22.10.2015 at about 7.30 p.m. all the three accused came to the house of the complainant. At that time she was alone in the house. It was alleged that all the three accused started misbehaving with her. They beat her with stick, fist and kick. Thereafter, accused, Vineet and Nitendra raped her one by one while Sonu stood outside the room. When Sonu told them about arrival of complaint's husband, all the three accused fled away. It was further alleged that she went to the Police Station on the same day but the Police did not register FIR. An order dated 03.11.2015 was passed by the Additional Chief Judicial Magistrate-IV, Moradabad for registration and investigation to the concerned Police Station. On 06.11.2015, the First Information Report was registered being No.251/2015 at Police Station Kanth, District Moradabad under Section 376(d), 323, 452 IPC against the accused. After registration of the case, crime was investigated by Investigating Officer(IO). The IO recorded the statements of complainant, her husband and mother-in-law. Complainant in her statement repeated her allegation. It was further stated that she went along with her husband to Police Station but report was not lodged. On next day, she went to Government Hospital, Moradabad with her husband for medical examination. Doctor conducted medical examination to external injuries but refused to her internal examination. Husband and father-in-law of the complainant also recorded statements. They stated that before they arrived at the house, accused had already fled away. IO asked the complainant “as to whether now she is ready to get done medical examination”, husband of the complainant answered “no, now there is no benefit out of medical examination. Now, I don't want to get my wife's medical examination done as much time has been elapsed“. When the husband was also asked some questions to get her wife medically examined following answers were given by the husband:

10. After statement under Section 164 Cr.P.C. was recorded, IO carried out detailed investigation by recording statements of brother of complainant's husband and his wife. Along with the complainant, the brother of her husband as well as his wife were also staying in the same house at the relevant time. The IO recorded the statement of Nikesh Kumar, brother of complainant's husband. It is useful to extract below the statement of brother of complainant's husband as recorded by the IO:

14. After submission of Final Report on 29.11.2015 Police has also submitted a further report before the Additional Chief Judicial Magistrate for initiating proceeding under Section 182 Cr.P.C. against the complainant. Respondent No.2 moved Protest Petition dated 07.01.2016. It was allowed by the Addl.CJM on 28.05.2016. An Application under Section 482 Cr.P.C. was filed before the High Court. It was allowed and order dated 28.05.2016 was set aside directing the Magistrate to pass fresh order. The Magistrate passed again order dated 03.08.2016 summoned the accused. Revision was filed before the Sessions Judge against the order dated 03.08.2016 which was dismissed by order dated 22.10.2016.

17. Learned counsel for the appellants contended that criminal proceedings initiated by the complainant in the facts of the present case was malafide and falsely initiated to save complainant, her husband and son from making repayment of the amount taken by them with regard to which complaint under Section 138 of Negotiable Instruments Act by the accused were already filed and pending. After registration of case on Application filed by the complainant under Section 156(3) Cr.P.C., the IO conducted thorough investigation by recording the statements of complainant, her husband as well as husband's brother and brother's wife. Various affidavits were also received by the IO and after conducting investigation there was sufficient materials to come to the conclusion that a story of alleged rape was wholly false and no such incident had taken place as alleged by the complainant. He has submitted a Final Report in the case which ought to have been accepted by the learned Magistrate. It is contended that Protest Petition has been allowed without adverting to the material collected by the IO. The fact that the Application under Section 156(3) Cr.P.C. itself was filed after 8 days of alleged rape, there is no medical report to prove the alleged rape, these were sufficient to discard the allegations made by the complainant. Summoning of the accused of such serious offence cannot be a mechanical exercise in the facts and circumstances of the case and material collected during investigation which were part of the Final Report were required to be adverted to by the Court while rejecting the Final Report. Learned counsel submits that prosecution in the present case is a clear abuse of the process of the Court and deserves to be set aside in exercise of jurisdiction under Section 482 Cr.P.C. by the High Court.

26. From the material on records, following facts are disclosed from the sequence of events which preceded the registration of FIR on 06.11.2015. The complainant, her husband and son had taken different amounts totalling Rs.22 lakh 50 thousand in the month of May, 2015 for business/shop purposes from the accused. Three agreements were written on Non-Judicial Stamp Papers on 29.05.2015, 01.06.2015 and 31.08.2015 wherein complainant, her husband and son have acknowledged receipt of the money in cash as well as by cheque. Cheques of Rs. 6 lakh, Rs.14 lakh 50 thousand were given to accused for ensuring the repayment. Cheques were drawn on the Prathama Bank, Kanth Branch, District Moradabad. Cheques were deposited in the Bank which were returned with endorsements “No Sufficient Balance”. After cheques having been dishonoured, complaints under Section 138 of Negotiable Instruments Act were filed by the accused against the husband and son of the complainant which were registered in the month of September/October and were pending before alleged incident dated 22.10.2015.

27. The complainant alleges rape by the accused on 22.10.2015 at 7.30 p.m. at her house and alleges that on the same day she went to the Police Station but FIR was not registered. She states that after sending an application on 26.10.2015 to the SSP, she filed an Application under Section 156(3) Cr.P.C. before the Magistrate. There is no medical report obtained by the complainant except medical report dated 20.11.2015. IO on 07.11.2015 when asked the complainant to get medical examination done, complainant and her husband refused. The incident having taken place on 22.10.2015 at 7.30 p.m. nothing was done by the complainant and her husband till 26.10.2015 when she alleges the Application was sent to SSP.

35. The fact is that no medical examination was got done on the date of incident or even on the next day or on 07.11.2015, when IO asked the complainant and her husband to get done the medical examination. Subsequently it was done on 20.11.2015, which was wholly irrelevant. Apart from bald assertions by the complainant that all accused have raped, there was nothing which could have led the Courts to form an opinion that present case is fit a case of prosecution which ought to be launched. We are conscious that statement given by the prosecutrix/complainant under Section 164 Cr.P.C. is not to be lightly brushed away but the statement was required to be considered along with antecedents, facts and circumstances as noted above. Reference to the judgment of this Court in Prashant Bharti vs. State(NCT of Delhi), 2013 (9) SCC 293, is relevant for the present case. In the above case the complainant lady aged 21 years lodged an FIR under Section 328 and 354 IPC with regard to the incident dated 15.02.2007. She sent a telephonic information on 16.02.2007 and on her statement FIR under Sections 328 and 354 IPC was registered against the appellant. After a lapse of five days on 21.02.2007 she gave a supplementary statement alleging rape by the appellant on 23.12.2006, 25.12.2006 and 01.01.2007. Statement under Section 164 Cr.P.C. of the prosecutrix was recorded. Police filed charge-sheet under Section 328, 324 and 376 IPC. Charge-sheet although mentioned that no proof in support of crime under Section 328/354 could be found. However, on the ground of statement made under Section 164 Cr.P.C. charge-sheet was submitted. Paragraph 10 of the judgment which notes the charge-sheet is as follows:

30. After submission of Final Report and submissions of Report under Section 182 Cr.P.C. dated 29.11.2015 complainant filed a Protest Petition on 07.01.2016.

satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed.”

40. In the result, appeal is allowed, the judgment of the High Court dated 16.12.2016 as well as the order of Additional Chief Judicial Magistrate dated 03.08.2016 and the order of the Sessions Judge dated 22.10.2016 including the entire criminal proceedings are quashed.