Gujarat High Court
Shalin Atulbhai Parikh vs State Of Gujarat & on 6 April, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/1999/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 1999 of 2016
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SHALIN ATULBHAI PARIKH....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR NARENDRA L JAIN, ADVOCATE for the Applicant(s) No. 1
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 06/04/2016
ORAL ORDER
The petitioner is attempting to get his FIR registered for the offences of cheating and forgery allegedly committed by the persons who are arraigned as accused. He was before this Court by preferring a petition being Special Criminal Application No.7100 of 2015. This Court vide order dated 07/12/2015 has directed the Police Inspector, Paldi Police Station, Ahmedabad, to look into the complaint of the petitioner and to take a decision whether the same discloses commission of any cognizable offence or not. It would be appropriate to reproduce the order passed by this Court at this stage.
"2. The Police Inspector, Paldi Police Station, Ahmedabad, shall look into the complaint at Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun May 08 03:35:02 IST 2016 R/SCR.A/1999/2016 ORDER Annexure'A', Page8 to the petition and take a decision whether the same discloses commission of any cognizable offence or not. After perusal of the complaint and inquiry, if any, the Police Inspector, Paldi Police Station, Ahmedabad, is of the view that the same discloses commission of a cognizable offence, then, in such circumstances, the First Information Report be registered forthwith. However, if the Police Inspector, Paldi Police Station, Ahmedabad, is of the view that no case is made out for the registration of the FIR, then, in such circumstances, the petitioner be informed in writing about the same by giving reasons in brief within a period of fortnight from today.
3. With the above direction, this application is disposed of. I clarify that I have otherwise not gone into the merit of the matter. Direct service is permitted."
2. It appears that pursuant to the directions of this Court on 17/03/2016, a communication is addressed to the Registrar, High Court of Gujarat, Ahmedabad, which in detail narrates the entire set of facts to conclude that one matter is pending before this Court being Company Petition No.348 of 2015 and another is under Section 138 of the Negotiable Instrument Act at NI Court No.30 and no offence is committed within the jurisdiction of the Paldi Police Station. He also further has concluded that in relation to the allegations made by the petitioner, no Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun May 08 03:35:02 IST 2016 R/SCR.A/1999/2016 ORDER concrete evidence are available; nor are those available substantiate any offences alleged. It is his report that other two matters since are pending before the concerned Court, application is required to be filed or if the representations is to be made, the same should be done before the Sola Police Station.
3. Aggrieved, the petitioner is before this Court.
4. It is the say of the petitioner that the amount was paid by the petitioner to the company towards the consideration of the purchase of the share by the petitioner from Mr.Amit Singh. The money was paid to the company and shares were purchased by Mr.Amit Singh, who is arraigned as one of the accused. It is also his say that company had paid interest at the rate of 12% per annum for financial year 201415 in April, 2015 and cheque was duly signed by the proposed accused Mr.Amit Singh. Not only that but he had also paid the TDS to the Income Tax Department on the said interest. It is also his further say that none of the records of the Registrar of Companies reflects such transaction against the purchase of share. It is from the beginning the case of the petitioner that he was approached by the accused regarding attractive returns in the pharmaceutical industry. After various rounds of meetings, the petitioner was lured into advancing a huge sum of Rs.1,62,50,000/ to the accused. The person proposed as accused have not only blocked the information Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun May 08 03:35:02 IST 2016 R/SCR.A/1999/2016 ORDER regarding functioning of the industry, but also, have refused to repay the money to the petitioner. With the allegations that the proposed accused have forged the documents, petitioner herein has sought to file a complaint and therefore, had approached the concerned Police Station. When the Officer chose not to file a complaint, he had approached this Court and this Court passed the aforementioned order dated 07/12/2015.
5. Learned advocate appearing for the petitioner Mr.Narendral L Jain has vehemently urged that if the Police Inspector, Paldi Police Station was of the opinion that he had no jurisdiction, he ought not to have entered into the merit of the matter. He also could not have taken any shelter of the report of the private handwriting expert and conclude on the strength thereof that the signatures made were not forged. He has urged that if the petitioner has relinquished his right, there was no earthly reason for the company to pay the interest in the month of April, 2015 and that too by way of cheuqe. He admits that there are other proceedings which are pending, but according to him, it is a question of forged documents and forgery of his signature which has given rise to the lodgment of the complaint and therefore, he has approached this Court.
6. Learned APP, Ms. Monali Bhatt appearing for the respondentState has urged that if this Court has directed the Police Inspector, Paldi Police Station to look into the matter and lodge the FIR, if any Page 4 of 8 HC-NIC Page 4 of 8 Created On Sun May 08 03:35:02 IST 2016 R/SCR.A/1999/2016 ORDER cognizable offence is made out, the Officer concerned was duty bound to look into the allegations. According to her, when cognizable offence was not made out, the preliminary inquiry was undertaken. It was noticed after the said preliminary inquiry was undertaken that no case is made out for the Paldi Police Station to register the FIR and therefore, the same was not registered. The petitioner, if is aggrieved, would always approach the Police Station having jurisdiction. She however urged that the Police Inspector concerned had not obtained any report from the private handwriting expert, but it was the proposed accused, who produced those documents and that was sought to be relied upon while undertaking the preliminary inquiry. According to her, no case is made out to further direct lodgment so far as the Paldi Police Station is concerned.
7. Having heard the learned Counsel for both the sides and having also examined the report of the concerned Police Station with the details provided by the applicant in the memo of the petition, it could be prima facie noticed that there are serious questions raised by the petitioner in the representation made to the Paldi Police Station.
8. This Court, after noticing the allegations had directed the concerned Police Station to look into this aspect on the line of the decision in case of Lalita Kumari v. Govt. of U.P., [(2014) 2 SCC 1] wherein the Police Officer concerned is required to Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun May 08 03:35:02 IST 2016 R/SCR.A/1999/2016 ORDER lodge the FIR, if cognizable offence is made out. Preliminary inquiry is made permissible, only to find out as to whether cognizable offence is revealed or not. If he is of the opinion that no cognizable offence at the end of the inquiry is made out, brief reasons in writing are to be recorded and communicated to the complainant for denying the registration of the FIR.
9. In the instant case, the court had directed the Police Inspector, Paldi Police Station to look into the representation as the same was addressed by the petitioner to the concerned Police Inspector. If he was of the opinion that no offence was committed within the jurisdiction of the Paldi Police Station, there was no reason for him to then look into the aspect with such elaboration. Assuming that after preliminary inquiry only he had noticed that, he could have then communicated that aspect rather than deciding upon the issue in entirety. What is also found prima facie objectionable is his relying on the opinion of the handwriting expert provided by the other side which is proposed as accused, to conclude that no offence of cheating or forgery gets established. Even if during the course of preliminary inquiry, there are certain documents which are needed to be looked into, the possible defence of the accused cannot be brought in with the evidence of the private handwriting expert to deny the very lodgment of the complaint. It is completely unheard that at the stage of lodgment of the FIR, all these aspects are to be Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun May 08 03:35:02 IST 2016 R/SCR.A/1999/2016 ORDER gone into. A preliminary inquiry is made permissible by the Court only to the extent whether that reveals the cognizable offence or not and nothing beyond that. There cannot be however any straight jacket formula as the fulcrum of facts in each case would essentially need to be looked into. Thus, the report submitted by the Police Inspector, Paldi Police Station deserves not to be sustained, as the Police Inspector, Paldi Police Station appears to have exceeded his brief while denying the lodgment.
10. Pendency of other two matters, one under Section 138 of the NI Act and another matter for winding up being Company Petition No.348 of 2015 can never be the ground for denying the lodgment of the complaint, if otherwise the allegations of forgery and cheating are at large on the face of the report. Since the residence of the petitioner is within the area of Paldi Police Station and as the proposed accused had approached him at his residence for the averred inducement of investment, he had made representations initially to the Paldi Police Station.
11. Again, by giving '0' (zero) number, the complaint always can be lodged and transferred to the Police Station having jurisdiction rather than sending the complainant from post to pillar, however the very approach of the concerned Officer is unsustainable of adjudicating the allegations at the threshold rather than inquiring into the allegations. The company is situated within the jurisdiction of Sola High Court Page 7 of 8 HC-NIC Page 7 of 8 Created On Sun May 08 03:35:02 IST 2016 R/SCR.A/1999/2016 ORDER Police Station, where the petitioner's signature is alleged to have been forged and misused. It would be appropriate to direct the Police Inspector, Sola High Court Police Station to look into the matter and register the FIR. The Police Inspector, Sola Police Station shall not take into account any of the details referred to in the report of the Police Inspector, Paldi Police Station and shall inquire into the matter independently all the aspects.
12. Resultantly, petition is allowed setting at naught the impugned communication of Paldi Police Station dated 17/03/2016 and directing the Police Inspector, Sola Police Station to abide by the directions issued in the case of Lalita Kumari v. Govt. of U.P. (supra).
13. With the aforementioned directions and observations, present petition stands disposed of. Direct Service is permitted.
(MS SONIA GOKANI, J.) sompura Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun May 08 03:35:02 IST 2016