Allahabad High Court
Himanshu Khatri vs State Of U.P. And 3 Others on 7 February, 2019
Author: Sanjay Kumar Singh
Bench: Bala Krishna Narayana, Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Judgment Reserved on 10.12.2018
Judgment Delivered on 07.02.2019
Court No. - 4
Case :- CRIMINAL MISC. WRIT PETITION No. - 34314 of 2018
Petitioner :- Himanshu Khatri
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Yash Tandon
Counsel for Respondent :- G.A.,Azad Khan,Brijesh Sahai
Hon'ble Bala Krishna Narayana,J.
Hon'ble Sanjay Kumar Singh,J.
Delivered by Hon'ble Sanjay Kumar Singh,J.
1. Heard Sri Gopal Swaroop Chaturvedi, Senior Advocate assisted by Sri Yes Tandan, and Sri Brijesh Sahai, assisted by Sri Azad Khan and Sri Bhavya Sahai, Advocates for respondent No.4 and Sri Ashutosh Kumar Sand, learned Additional Government Advocate Ist assisted by Mrs. Manju Thakur, learned AGA Ist for the State.
2. Learned Additional Government Advocate has accepted notice on behalf of respondent Nos. 1, 2 and 3. Respondent No.4 has filed counter affidavit dated 29.11.2018 after serving the copy of the same upon the learned counsel for petitioner. Learned counsel for the petitioner stated at the Bar that he does not propose to file any rejoinder affidavit and the present writ petition may be heard on merit at this stage itself. In view of the above, this matter is being decided finally at the admission stage itself.
Relief claimed in the writ petition:
3. The petitioner invoking extraordinary jurisdiction under Article 226 of the Constitution of India has filed this writ petition with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. dated 14.11.2018 lodged by respondent No.4 against the petitioner registered as Case Crime No. 1835 of 2018, under Sections 408, 406 and 420 I.P.C. at Police Station Noida, Sector-20, District Gautam Budh Nagar.
Prosecution case:
4. The prosecution case in brief as mentioned in the impugned F.I.R. dated 14.11.2018 is that the informant Phill Alaph S/o Sri Robert Edward Alape R/o 379, Hill Street San Francisco California, USA, who is respondent no.4 in the writ petition is citizen of U.S.A. He is director and CEO of a company viz. Vsolay, Inc. and its wholly owned subsidiary Point Marketing ,, Inc, which is a software company and is in business of developing software and selling them to different clients. In 2006 company of the informant had come into contact with petitioner Himanshu Khatri who represented that he would hire individual software developers from India to build technology product for the informant. The process for engaging these individuals has been that their Cvs, education, credentials and experience were scrutinized by petitioner and he after verification sent the same to the informant along with the range of hourly compensation they expected to receive for their work. It is alleged that petitioner as agent of informant's company was getting a 1 USD per hour per person management fee agreed to cover costs and provide some margin for petitioner Mr. Himanshu Khatri. All the costs of computers, internet, cabs, etc. were borne by informant's company. Petitioner also took USD 20,000/- in the account of his sister Seema Jhurani for management costs. During the entire period of engagement petitioner fraudulently misrepresented the true identities of the individuals as well as their experience and their compensation. Petitioner sent forged C.V.s of the candidates after increasing their age and experience to the informant and in some cases after changing the names of the candidates also sent forged and photo-shopped ID cards to substantiate the forged C.Vs. Instead of experienced software engineers petitioner hired very unexperienced and junior person but charged from the informant for higher experienced persons. All this continued to happen from 2006 to 2015. In the end of year 2015, informant came to know that petitioner has been perpetrating a deep fraud, since beginning. He has hired very junior developers at very low cost, and hidden their true identities, levels of experience, and skills behind fraudulent identities, false names and fraudulent C.Vs and cheated informant. When informant came to know about general out line of aforesaid fraud of the petitioner, he requested the petitioner for validation of the identities and experience levels of the team, then petitioner provided a number of forged and fabricated documents, various government issued identity cards, Voter Cards, Driving Licenses and the photos of the actual holders of those Ids which were replaced with the photo of others. Petitioner also modified others information on the said ID cards such as date of birth to match the information presented on C.Vs., which were 100% fraudulent, forged and fabricated. Informant profiled individuals who don't exist and present job histories, skills and other data that was entirely fictional and false. On insisting by the informant that he wish to take interview all the hired Software Developers personally, via Skype video call, the petitioner presented few persons for interview before him through a Skype video call. The petitioner also presented some employees who were not even working for informant's company at that time but petitioner was charging fee from the informant's company in their name. The petitioner also raised bill for such individuals who either do not exist at all or had left long before. In one case, after one senior developer left after approximately six months of services while the informant continued to be billed for that person for more than three years, at 25 USD per hour. As such petitioner has charged higher rate for persons with high experience but on the other hand he paid very less amount to the unexperienced developers and put the major chunk for himself, which he otherwise had to incur for hiring better experienced and qualified professionals. In the most recent billing, which have run close to 40,000 USD per month, informant came to know his total outlay to the team has been less than 8,000 USD per month. Petitioner has misused a relationship of trust and successfully cheated the informant adopting different modusoperndi causing loss in the range of at least 2 million USD (Approximately Rs. 138,000,000/-) but likely more. The petitioner caused wrongful loss to company of the informant for wrongful benefits to him. The work performed by junior developers hired by petitioner has been of extremely low quality, and their productivity has also been low. Informant's company lost customer after customer due to malfunctioning products, or features of product, and incurred heavy losses in business. In the First Information Report it is mentioned the informant being in United State could not come to India earlier for lodging a criminal complaint against petitioner and others. It is also mentioned in the First Information Report that informant come to know that petitioner has also cheated some other US companies in the similar manner and prayed that police investigation is required to unearth the conspiracy of the alleged accused persons, to discover the previous and subsequent conduct of the accused persons, to procure evidence to prove the dishonest intentions, to trace out the modus operandi of forgery, fabrication and cheating, for arrest and identification of different persons involved, to identify the other persons cheated by the accused persons in the same manner, for search and collection of other documentary evidence which the complainant itself would not be able to collect.
Submissions on behalf of the petitioner:
5. Challenging the impugned FIR dated 14.11.2018, Sri Gopal Swaroop Chaturvedi, Senior Advocate appearing on behalf of the petitioner submitted that:-
(i) An agreement was signed on 26.10.2006 between the complainant and petitioner was engaged as an independent contractor.
(ii) As per the said agreement dated 26.10.2006 the base location of petitioner Himanshu Khatri's operations was Delhi and that any dispute arising would be settled in the State Court of California only and both parties revoked the rights to take any legal action anywhere outside of state of California.
(iii) Work and business relations were going smooth between petitioner's firm, My Mind Infotech and Demos on demand. The petitioner's firm used to send the detailed timsesheet on the month end to the complainant and his accounting team and after verification "Demos On Demand" used to make payments for the timesheet and invoice submitted.
(iv) After sometime, the complainant started paying less and money used to accrue on "Demon On Demand". Upon various requests, the complainant used to send part payments and therefore by February, 2009, around 136904 USD was due on Demon On Demand.
(v) On 24th March 2015, Vivek Kumar Akhil resigned from Mymind Infotech and then opened up a company called "Webmind Infotech". He and the complainant joined hands together with the malafide intention to take away staff and clients of Mymind Infotech. Vivek Kumar Akhil was stealing confidential data of Mymind Infotech's clients and the same was reported to the Police.
(vi) The complainant and Vivek Akhil also contacted "Mymind Infotech" staff and tried to steal them away by offering them higher salaries. Complainant has also contacted Mymind Infotech's clients, namely Leland R Johnson, Mark Connolley and Donna Johnson and tried to solicit from them work that they were giving to petitioner Himanshu Khatri. After knowing this petitioner Himanshu Khatri sent several e-Mails to the complainant asking him not to contact his clients but the complainant never responded back.
(vii) It is submitted that Vivek Kumar Akhil lodged a false FIR dated 9.5.2018 against the petitioner, being F.I.R. case crime No. 0646 of 2018, under Sections 384, 420, 504, 506, 120-B IPC, Section 66 IT Act, Police Station Noida Sector 20, District Gautam Budh Nagar, Uttar Pradesh. The petitioner has come to know that nothing incriminating was found against the petitioner in the said case and a final report was filed in the same absolving the petitioner.
(vii) Thereafter, Vivek Kumar Akhil colluded with the complainant to harass the petitioner.
(viii) The complainant has also joined this evil design in order to avoid payment of outstanding dues to the tune of about 199275.50 USD which he owes to the petitioner by implicating him in this false criminal case.
(ix) It is submitted that with the said objective in mind, the complainant filed the impugned FIR dated 14.11.2018 registered as Case Crime No. 1835 of 2018 under Sections 408, 406, 420 IPC, Police Station Noida Sector 20, District Gautam Budh Nagar against the petitioner.
(x) Vivek Kumar Akhil has conspired with the complainant and has used the complainant as a proxy to file the present FIR and to seek personal vendetta.
(xi) Respondent no.4/informant was a client of the petitioner's firm called "My Mind Infotech Pvt. Ltd" and has outstanding dues which he owes to the petitioner for the services provided to him by the petitioner.
(xii) Respondent no.4 through the impugned First Information Report dated 14.11.2018 has given a criminal color to a purely civil dispute.
(xiii) Petitioner was not an agent of the company and was an outside contractor providing services to the complainant's company.
(xiv) None of the ingredients of the Sections 408, 406, 420 IPC are made out therefore, impugned FIR dated 14.11.2018 is liable to be quashed without any investigation in the matter.
Submissions on behalf of complainant/respondent no.4
6. Sri Brijesh Sahai, assisted by Sri Bhavya Sahai, learned counsel for the complainant/respondent no.4 refuting the aforesaid arguments advanced on behalf of the petitioner submitted that:-
(i) Subsequent to the lodging of the impugned FIR dated 14.11.2018 by the respondent no.4 under Sections 406, 408 and 420 IPC, the Investigating Officer has further added Sections 471, 468, 120-B IPC also in the present matter against the petitioner.
(ii) Against the petitioner one more complaint dated 26.11.2018 of similar nature has been made by David Cole owner of Blue River Digital Inc. 1624 Santa Clara Drive. Roseville, California 95661 USA appended as Annexure No. C.A.-1.
(iii) The petitioner had sent the forged curriculum vitae of some software developers namely, Ankit, Satya and Saurabh to the respondent no.4 via E-mail. Copy of the aforesaid E-mail and forged curriculum vitae of software developers have brought on record by the respondent no.4 as Annexure no.3 alongwith his counter affidavit.
(iv) The petitioner had sent forged curriculum vitae as well as I.D. of Rohit Arora and Saurabh Kumar. It is submitted that nobody named as Rohit Arora and Saurabh Sharma exists and the petitioner every time by way of video calling introduces one person named Gyan Ranjan working in the office of the petitioner as Rohit Arora as well as Saurabh Sharma.
(v) The petitioner has not annexed the relevant documents which were annexed with the FIR and are part of it.
(vi) It is submitted that the respondent no.4 has paid approximately two million USD (Approximately Rs. 14,00,00,000/-) to the petitioner.
(vii) The respondent no.4 has never poached any client of the petitioner. All the allegations of the petitioner against the respondent no.4 are false and against the evidence on record.
(viii) It is submitted that the petitioner owing to his cheating and forgery has siphoned off two Million USD (Rs. 14,00,00,000/- Approximately) due to which respondent no.4 was left with no other option but to Institute the present proceedings against the petitioner through FIR dated 14.11.2018.
(ix) The FIR lodged against the petitioner discloses mens rea on his part which proves that the present matter is not a civil dispute but a criminal case. The respondent no.4 being resident of U.S.A. could not come earlier to India to lodge criminal case against the petitioner.
(x) Respondent no.4 has no concerned to the FIR dated 9.5.2018 lodged by Vivek Kumar Akhil against the petitioner.
(xi) A bare perusal of the FIR discloses the commission of offences under Sections 406, 408, 420, 467, 468, 471, 120B IPC against the petitioner, therefore, FIR dated 14.11.2018 cannot be quashed in view of well settled law laid down by the Supreme Court..
Submissions on behalf of State:
7. Sri Ashutosh Kumar Sand, learned AGA Ist vehemently opposed the prayer of the petitioner by contending that the prosecution case as mentioned in the FIR clearly indicate the elements of criminal breach of trust, cheating, criminal conspiracy, impersonation, forgery and fraud, etc. On taking the entire contents of the FIR as it is in toto, as per the law laid down by the Supreme Court, the cognizable offence under Section 406, 408 and 420 IPC as mentioned in the FIR are made out against the petitioner. It is also submitted that in the case of criminal breach of trust, cheating, fraud and forgery the delay in lodging FIR is immaterial as such offences are normally disclosed after considerable period. He further submitted that the matter requires investigation to elicit the truth and at this stage impugned FIR as well as investigation cannot be quashed. The writ petition is liable to be dismissed.
Analysis of relevant provisions of law
8. Firstly, we shall deal with the Section 406 and 408 IPC.
Criminal breach of trust is defined in Section 405 IPC and is punishable under Section 406 IPC. There are two distinct parts involved in the commission of the offence of criminal breach of trust.
(i) The first consists of the creation of an obligation in relation to property over which dominion or control is acquired by the accused.
(ii) The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.
9. In view of above, the offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it, or converts it to his own use. In the FIR allegations have been leveled against the petitioner that he also raised bills for such individuals who either do not exist at all or had left long before. It is also alleged that petitioner has charged higher rate for persons with high experience but on the other hand he paid very less amount to the inexperienced developers and put the major chunk for himself. Another allegation in the FIR is that the petitioner sent forged CVs of the candidates after increasing their age and experience to the informant and in some cases after changing the name of the candidates also sent forged and photo-shopped ID cards. The petitioner instead of experienced software engineer hired very inexperienced and junior persons but charged the amount from the complainant for higher experience person hiding their true identities, level of experience and skills behind fraudulent identities. As such petitioner adopting different modusoperandi misused a relationship of trust and successfully cheated the complainant causing loss to the range of at least two million USD (approximately Rs. 138,000,000/-) to the company of the complainant/respondent no.4 for his undue benefits. The word "entrustment" as defined under Section 406 IPC has different implication in different context. The entrustment contemplated by Section 405 does not amply a trust in the sense of any law relating to the trust but the trust could be created in any manner. Where the property/money entrusted to accused for particular use and the accused setting it apart for another use it will come under the definition of misappropriates or converts the property/money to his own use. The petitioner's manner of dealing with the money entrusted to his custody by the complainant as mentioned in the FIR for payment of software developers prima facie constitutes criminal breach of trust against him.
10. From the material on record it transpires that pursuant to an agreement dated 26.10.2006 singed between the petitioner and complainant appended as Annexure no.1 to the writ petition, the petitioner was engaged as independent contractor by the complainant to perform a variety of services related to ongoing activities of point marketing and Demons On Demand including but not limited to software development and other technical activities as assigned. As such the petitioner was having supervision and control over the work assigned to him under an agreement dated 26.10.2006 and the amount was entrusted to him by the complainant regarding the work assignment prior to making its payment to the software developers and persons engaged by the petitioner for the purpose as mentioned in the agreement dated 26.10.2006. Dominion over the money involve in this case was the result of entrustment of money by the complainant to the petitioner pursuant to aforesaid agreement. As such, on accepting the allegations as leveled by the complainant against the petitioner as true, prima facie discloses the commission of offence of criminal breach of trust against the petitioner.
11. Secondly, we shall deal Section 420 IPC.
Cheating is defined in Section 415 IPC and is punishable under Section 420 IPC. Section 415 is set out below:-
"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'.
Explanation. A dishonest concealment of facts is a deception within the meaning of this Section."
The essential requisites of the offence of Cheating thus requires-
1. deception of any person.
2 (a) fradulently or dishonestly inducing that person-
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person 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.
12. The essence of an offence of cheating under Section 415 IPC is that damage or harm caused by deception. In fact act of fraud or cheating in another term can be said to be a knowing misrepresentation of the truth or concealment of material facts to induce another to act to his detriment and it has different forms and hues. The crux of postulate is the intention of the person who induces the victims of his representation and not the nature of the transaction, which would become decisive in discerning whether there was commission of offnece of cheating or not. In the present case, in hand, the complainant in the FIR has mentioned that the petitioner by dishonest concealment and misrepresentation of the facts induced the complainant to believe his act and conduct as true, though it was otherwise. The complainant/respondent no.4 in the FIR has mentioned that all the acts of criminal breach of trust, cheating, fraud etc. as alleged in the FIR on the part of the petitioner were committed continued between 2006 to 2015. At the end of year 2015 the complainant came to know and believed that petitioner has been perpetrating a deep fraud since beginning and adopting different modusoperandi caused a huge financial loss to the complainant and his company in the business. It is also alleged in the FIR that since the complainant being in United State could not come to India earlier for lodging criminal complaint against the petitioner and others. Accepting the contends of allegation as mentioned in the FIR the basic ingredients to constitute an offence of cheating are available on record, therefore, the contention of learned counsel for the petitioner that bare perusal of FIR the offence under Section 420 IPC is not made out against the petitioner is not liable to be accepted at this stage. The learned counsel for the complainant/respondent no.4 has also invited the attention of the Court that during the course of investigation section 471, 468 and 120B IPC has also been added in this case. This fact has not been denied from the side of the petitioner. Since, the petitioner has not chosen to file rejoinder affidavit against the counter affidavit of the complainant/respondent no.4, therefore, the contends of counter affidavit of the complainant is unrebutted. In the counter affidavit the complainant has also mentioned that one more complaint dated 26.11.2018 of similar nature has been filed against the petitioner by David Cole owner of Blue River Digital Inc. 1624 Santa Clara Drive. Roseville, California 95661 USA. The complainant through his counter affidavit has also brought on record the copy of E-mail and forged curriculum vitae of software developers with further contention that petitioner has not annexed the relevant document which were annexed with the FIR and are part of it, but the same has not been denied from the side of the petitioner.
13. Learned counsel for the petitioner placed reliance on the judgment of Apex Court in case of State of Gujarat Vs. JaswantlalNathalal AIR 1968 SC 700. In the said judgment the fact was that the Government of Gujarat gave on contract to Bharat Sewak Samaj the work of construction of a building for a Government Litho-Printing press. Bharat Sewak Samaj applied to the Government for allotment of Cement for the construction of work in question. In response 100 bags cement was delivered to the respondent/accused for and on behalf of Bharat Sewak Samaj. The accused after taking delivery of the aforesaid 100 bags of Cement, delivered at work side only 60 bags of Cement and remaining 40 bags, he sent to the godown of PW-2. On the above facts, the State of Gujarat concluded that the respondent accused has committed breach of trust in respect of 40 bags of Cement he sent to the godown of PW-2. In that case the case of the accused respondent was that Bharat Sewak Samaj in turn gave that work on sub contract to a firm known as M/s Kaushik and company and in anticipation of allotment to BSS, Kaushik and company had utilized for construction work in question 40 bags of Cement belonging to them, hence he sent 40 bags of cement to the godown of PW-2 to be stocked for and on behalf of Kaushik and company. On the aforesaid fact the Apex Court held that a mere transaction of sale cannot amount to an entrustment and where the government cells cement to its contractor solely for the purpose of be used in connection with the construction work, the circumstances does not make the transaction anything other than the sale.
The issue before the Apex Court in that case was also not relating to quashing of FIR at pre-investigation stage. In view of above, the aforesaid judgment relied upon on behalf of the petitioner is distinguishable on the facts and issue involve in the present case of the petitioner in hand.
14. On behalf of the petitioner reliance was also placed on another judgment of Apex Court in case of Anand Kumar Mohatta and another Vs. State Department and Home and another given in Criminal Appeal No. 1395 of 2018. Fact in that case was that parties entered into agreement dated 03.06.1993 with regard to the development of the property owned by the appellants. Parties agreed to develop the said property by constructing a high-rise building comprising of flats. Respondent no.2 in that case paid a sum of Rs. 1 Crore as contemplated by clause 38 of agreement. The said agreement could not be fulfilled as the new building regulations which were introduced prohibited the construction of high-rise building in the lutiyons bungalow zone, where the property situated. On the said fact, on14.03.2011 appellant no.1 wrote a letter stating that he does not wish to develop the property. The appellants did not take any further action neither did the return the amount advanced by the respondent no.2. On the above fact the Apex Court observed that we find that the dispute has the contours of a dispute of civil nature and does not constitute a criminal offence. In the said case investigation was completed and charge-sheet was submitted, which have been quashed by the Apex Court. The aforesaid judgment relied upon on behalf of the petitioner is also distinguishable on the facts of the present case of the petitioner in hand.
Discussion of decided judgments:
15. The Apex Court in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
16. The Apex Court in State of Bihar and another Vs. P.P. Sharma I.A.S. And another 1992 SCC (Cri.) 192 has observed that Supreme Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. High Court in exercise of power under Article 226 and 227 of the Constitution of India cannot assume such jurisdiction and put an end to the process of investigation and trial provided under the law.
17. The Apex Court in case of M Krishnan Vs. Vijay Singh 2001 (8) SCC 645 has settled that scope of interference in the matter of quashing of FIR or complaint making following observation in para 9 of the judgment, which is reproduced herein below:-
"Right from the case of R.P. Kapur V. State of Punjab, AIR (1960) SC 866, this Court has held that revisional or inherent powers for quashing the proceedings at the initial stage can be exercised only where the allegations made in the complaint or the first information report, even if taken at their face value and accepted in their entirety, do not prima facie disclose the commission of an offence or where the uncontroverted allegations made in the FIR or complaint and the evidence relied in support of the same do not disclose the commission of any offence against the accused, or the allegations are so absurd and inherently improper that on the basis of which no prudent person could have reached a just conclusion that there were sufficient grounds in proceeding against the accused or where there is an express legal bar engrafted in any provisions of the Code or any other statute to the institution and continuance of the criminal proceedings or where a criminal proceeding is manifestly actuated with malafide and has been initiated maliciously with the ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge."
18. The Apex Court in Zandu pharmaceutical Works Ltd. and Ors. Vs. Mohd. Shararful Haque and another 2005 SCC (Cri) 283 has observed that when a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
19. Apex Court in R. Kalyani Vs. Janak C. Mehta 2009 1 SCC 516, considering the earlier judgments of the Supreme Court held that the High Court would not exercise its inherent jurisdiction to quash a criminal proceeding ordinarily and more so a First Information Report unless the allegations, even if they are deemed to have been proved, do not disclose any cognizable offence.
20. Apex Court in Union of India Vs. Ramesh Gandhi 2012 1 SCC 476 held that it is not appropriate to interfere with the investigation at the FIR stage.
21. Apex Court in Mosiruddin Munshi Vs. Md. Siraj 2014 6 Scale 659, the Supreme Court noticed that the examination of the case in detail in al petition under Section 482 Cr.P.C. is not warranted and that stalling of the investigation on the ground that the dispute was a civil transaction would be appropriate.
22. The Apex Court in Superintendent of Police, CBI and others Vs. Tapan Kumar Singh 2003 SCC (Cri) 1305 had an occasion to consider the issue that what is necessary requirement of FIR. The Apex Court held that it is not necessary that the FIR must disclose all facts and details relating to the offence reported what is required is that the information given must disclose the commission of a cognizable offence and must provide a basis for the police officer to suspect the commission of such an offence. The relevant extract of paragraph 20 of the above judgment is reproduced herein below:-
"It is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can."
Conclusion
23. It is well settled law by the Apex Court that the power of quashing the criminal proceeding and FIR can be exercised very sprangly and with circumspection. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or complaint. The delay in lodging in FIR in such cases cannot be a ground to quash the FIR unless the Court feels under peculiar circumstances that such delay tantamounts to abuse of process of law. Applying the aforesaid test as laid down by the Apex Court in catena of judgments and upon perusal of contents of the impugned FIR dated 14.11.2018, it cannot be said that the same does not disclose the commission of any cognizable offence. This Court under Article 226 of the Constitution of India cannot delve into the exercise of appreciation of evidence and record it's finding one or other way. At this stage, it is on the part of Investigating Officer only to find out and elicit the truth, therefore, we have not proceeded to examine the reliability or genuineness of the allegations made in the FIR, as any finding recorded by us may prejudice the interest of the parties concerned.
24. Nature of allegations and averments as mentioned in the FIR make out a case for deep investigation by the authority concerned/Investigating Officer and the dispute in controversy in this case can be resolved through evidence only.
25. The present case involves various factual disputes between the parties concerned, it is well settled that the disputed facts and the defence of the accused cannot be taken into consideration at the pre-investigation/trial stage in exercise of extraordinary power under Article 226 of the Constitution of India.
Result
26. In view of above, we refuse to exercise our discretionary jurisdiction. The writ petition is accordingly fails and is dismissed.
Order Date:- 07.02.2019 Abhishek/AK Pandey