Punjab-Haryana High Court
Avtar Singh vs State (U.T on 30 September, 2010
Author: S.S. Saron
Bench: S.S. Saron
In the High Court of Punjab and Haryana at Chandigarh
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Criminal Misc. No.M-29007 of 2010
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Date of decision:30.9.2010
Avtar Singh
.....Petitioner
v.
State (U.T., Chandigarh) and others
.....Respondents
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Present: Mr. Rajbir Singh, Advocate for petitioner.
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S.S. Saron, J.
The petitioner-Avtar Singh by way of the present petition under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' - for short) seeks quashing of four final reports (Annexures-P.17 to P.20) out of five final reports filed by the police under Section 173 Cr.P.C. The said five reports have been filed in case FIR No.550 dated 27.11.2007 (Annexure-P.2) registered at Police Station, Sector-34, Chandigarh for the offence under Section 420 Indian Penal Code (`IPC' - for short) in which later the offence under Section 406 IPC was also added. A further prayer has been made for quashing the said FIR No.550 dated 27.11.2007 (Annexure-P.2) registered at Police Station, Sector 34, Chandigarh.
A complaint dated 8.9.2007 (Annexure-P.1) was filed by Amit Arora, Deep Chand and Sanjay Kalia (respondents No.2 to 4) against Avtar Cr. Misc. No.M-29007 of 2010 [2] Singh (petitioner), Mohinder Kaur wife of Avtar Singh and Preet Arpan Singh son of Avtar Singh (non-petitioners). It has been alleged by the complainants (respondents No.2 to 4) that they had good relations with one Bir Singh son of Vidya Sagar and they were looking for a flat somewhere near Mohali. Said Bir Singh suggested that some of his friends were building a Society in the name and style of M/s Garib Nawaj Co-operative House Building Society at Mohali and they would be starting construction of flats shortly. Avtar Singh (petitioner No.1) was its President; besides, Mohinder Kaur and Preet Arpan Singh (accused Nos.2 and 3) were participants in the project. The complainants went to the office of the accused at SCO No.83-84, Sector 34, Chandigarh. After an assurance was given, the complainants made payments to the accused on account of land, membership fee and a sum of `1,25,000/- by way of three separate cheques was given by the complainants-respondents No.2 to 4. A receipt was given by the accused to each of the complainants duly signed by the petitioner. The complainants-respondents No.2 to 4 waited for response from the accused for a considerable period of time. In spite of frequent inquiries, the construction of the flats did not start and the petitioner was postponing the matter on various pretexts. The complainants came to know that the accused had been maintaining a huge office fitted with luxurious, furniture and had employed a big staff at the cost of innocent persons. The complainants started a probe in the matter and they came to know that the accused were out to grab their hard earned money. They had been cheated by the accused. The complainants also contacted Bir Singh, who confirmed Cr. Misc. No.M-29007 of 2010 [3] the ill-intentions of the accused. They had been induced to pay `4,35,510/-; besides, the accused had committed criminal breach of trust and misappropriated considerable amount and they had declined to pay back the money that was given.
On the basis of the said complaint, FIR No.550 dated 27.11.2007 (Annexure-P.2) was registered at Police Station, Sector 34, Chandigarh. The grievance of the petitioner is that there is only one complaint by the three complainants (respondents No.2 to 4). However, the Police has presented five reports (Annexures-P.16 to P.20) under Section 173 Cr.P.C. and the petitioner, it is submitted, is not liable to be made to face five trials for five cases in one FIR by filing separate reports in one FIR. It is submitted that five reports (Annexures-P.16 to P.20) have been wrongly filed. In report No.1, the Police shows the complainant-Deep Chand (respondent No.3), Sanjay Kalia (respondent No.4) and one Satpal Bansal. In report No.2, Sanjay Bansal, Surinder Kumar and Kewal Krishan are shown as complainants. In report No.3, Bhaskar Bajaj, Baljinder Singh and Bir Singh are shown as complainants and in report No.4, Rajesh Gupta, Harvinder Pal Singla and Jaggan Nath are shown as complainants. In report No.5, Vivek Sharma, Dinesh Kakar and Rajesh Kathuria have been shown as complainants. The above said five different cases are listed before the learned Judicial Magistrate Ist Class, Chandigarh. It is also submitted that during investigations two persons, namely, Mohinder Kaur and Preet Arpan Singh i.e. wife and son of the petitioner against whom allegations were also levelled by the complainant were declared innocent and five Cr. Misc. No.M-29007 of 2010 [4] reports have been filed against the petitioner alone. It is submitted that the Police by going against the settled law ignored the fact that in a case where similar allegations have been levelled against one person by different persons, separate reports cannot be presented against one accused in one FIR. In the present case there were only three complaints originally who had lodged one complainant. Amongst the complainants, one of the complainant, namely, Amit Arora (respondent No.2) did not join the investigation. The Police, it is submitted, failed to consider the statements of the witnesses and these in any case, it is submitted, cannot be converted into different reports. It is submitted that a complainant can be a witness but a witness cannot be a complainant. Therefore, it is submitted that submission of five reports in one FIR on the basis of statements under Section 161 Cr.P.C. by the witnesses who were joined in the investigation by the Police, different reports were not liable to be presented.
I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner, however, find no merit in the same. As has already been noticed, respondents No.2 to 4 filed a complaint dated 3.5.2007 (Annexure-P.1) wherein they stated that they had given a sum of `1,25,000/- to the petitioner by way of cheques. The petitioner also delivered the receipt for the said amount. Thereafter, they kept on waiting for considerable period and in spite of frequent inquiries with regard to the commencement of construction in respect of the flats the accused had been postponing the matter on various pretexts. The complainants came to know that the accused had been maintaining huge office fitted with luxurious Cr. Misc. No.M-29007 of 2010 [5] furniture and had employed a big staff at the cost of innocent persons like the complainants. They probed into the matter and came to know that their hard earned money had been misappropriated and they had been cheated. On the basis of the complaint of respondents No.2 to 4, FIR (Annexure-P.2) dated 27.11.2007 has been registered. During investigation of the case statement (Annexure-P.3) of one Satpal Bansal was recorded who also had deposited an amount of Rs.2,10,510/- as membership fee and cost of land with the accused Avtar Singh and his wife Mohinder Kaur and his son Preet Arpan Singh. He waited for many days and inquired about the construction of flats from Avtar Singh and his companions. He came to know that Avtar Singh had a big office furnished with modern furniture in which he had appointed a big staff and thereby had used the money collected from the public. It is alleged by Satpal Bansal that Avtar Singh and his companions had committed fraud with him and embezzled `2,10,510/-. Similar statement (Annexure-P.4) of Kewal Krishan was recorded who took membership of the Garib Nawaj Co-operative House Building Society at Mohali for an amount `10,500/- and gave `1 Lac towards cost of the land. However, the said amount had been misappropriated. Statement (Annexure- P.5) of Surinder Kumar to similar effect regarding misappropriation and embezzlement by the accused Avtar Singh is recorded. Moreover, Sanjeev Bansal made a statement (Annexure-P.6), Bhaskar Bajaj made a statement (Annexure-P.7), Baljinder Singh made a statement (Annexure-P.8), Bir Singh made a statement (Annexure-P.9), Rajesh Gupta made a statement (Annexure-P.10), Harvinder Pal Singla made a statement (Annexure-P.11), Cr. Misc. No.M-29007 of 2010 [6] Jaggan Nath made a statement (Annexure-P.12), Dinesh Kakar made a statement (Annexure-P.13), Vivek Sharma made a statement (Annexure- P.14) and Rajesh Kathuria made a statement (Annexure-P.15). In their respective statements, it has been alleged by the persons making their respective statements that they had been cheated by the petitioner and the amount given towards allotment of plot/house in the Garib Nawaj Co- operative House Building Society had been embezzled and misappropriated. On the basis of FIR and the statements, five challans have been filed by the prosecution by clubbing three incidents into one challan. In the challan (Annexure-P.16), it has been stated that in the case the statements (Annexures P.4 to P.15) of Deep Chand, Sanjay Bansal, Satpal Bansal, Sanjay Kalia, Surinder Kumar, Kewal Krishan, Bhaskar Bajaj, Baljinder Singh, Bir Singh, Rajesh Gupta, Harvinder Pal Singla, Jaggan Nath, Vivek Sharma, Dinesh Kakar and Rajesh Kathuria were recorded. They all informed that they deposited the money in the office of the Garib Nawaj Co- operative House Building Society, SCO No.83-84, Sector 34, Chandigarh. It is mentioned that the complainant-Amit Arora (respondent No.2) did not join the investigation. In any case, President-Avtar Singh (petitioner) of the said Co-operative Society was arrested on 28.1.2008 and was on bail. His specimen signatures were taken in Court which were sent for comparison to the Government Examiner of Questioned Documents (GEQD), Central Forensic Science Laboratory (CFSL), Sector 36, Chandigarh. The petitioner had made 815 members in all and from each member initially an amount of `500/- was taken as membership fee and `1 Lac was taken as money for the Cr. Misc. No.M-29007 of 2010 [7] land. Thereafter, from 2005 onwards the petitioner received `10,500/- as membership fee and `1 Lac and, `2 Lacs as earnest money. The petitioner purchased 9 Acres, 2 Kanals, 18 Marlas, 5 Sarsai land for construction for a consideration of `5,03,47,963/- in the name of Garib Nawaj Co-operative House Building Society, Mohali in Village Sohana, District Mohali. Apart from it, land measuring 14 Kanals, 1 Marla for a consideration of `84 Lacs was purchased. On not getting permission to construct houses on the said land, the members of the Society demanded the money back. Then Avtar Singh (petitioner) withdrew `1,28,17,500/- through self-cheques bearing the signatures of the petitioner and Harvinder Pal Singh, Cashier. Harvinder Pal Singh returned `49,84,082/- of his 74 members, Vivek Sharma returned `11,25,000/- of his 9 members. The remaining amount of `67,08,418/- was consumed by Avtar Singh (petitioner) and the offence under Section 406 IPC was added in the case. It is mentioned that the petitioner gave false representation to the members that on getting permission he would give the houses by constructing them. However, neither any house was given nor the money returned. It is mentioned that 15 persons have joined the investigation and as per the provisions of Section 219 Cr.P.C. different challans would be presented of three persons. Therefore, challan No.1 (Annexure-P.16) of the complainants Deep Chand, Sanjay Kalia and Satpal Bansal alleging misappropriation of an amount of `5,31,520/- was presented against the petitioner for the offence under Sections 406 and 420 IPC. To similar effect is challan No.2 (Annexure-P.17) of the complaints Sanjeev Bansal, Surinder Kumar and Kewal Krishan. Challan No.3 (Annexure-
Cr. Misc. No.M-29007 of 2010 [8] P.18) is in respect of complainants Baljinder Singh, Bhaskar Bajaj and Bir Singh for embezzlement and misappropriation of `2,46,020/-. Challan No.4 (Annexure-P.19) is in respect of Rajesh Gupta, Harvinder Pal Singla and Jaggan Nath Singla alleging misappropriation of an amount of `3,31,530/- and challan No.5 (Annexure-P.20) is in respect of complainant-Rajesh Kathuria, Dinesh Kakar and Vivek Sharma alleging misappropriation of an amount of `2,77,400/-.
The grievances of the petitioner are that in one FIR, five different challans (Annexures-P.16 to P.20) are not liable to be filed as the petitioner would have to face five trials; besides, on mere statements recorded under Section 161 Cr.P.C., the petitioner cannot be proceeded against are not tenable and are devoid of any merit. It may be noticed that Section 161 Cr.P.C. provides for examination of witnesses by the Police. A Police Officer is authorized to record statements of witnesses acquainted with the facts and circumstances of the case under the said provision; besides, the witness is bound to answer all questions relating to such case put to him by the Police Officer, other than the questions the answer to which would have a tendency to expose him the criminal charge or to a penalty or forfeiture. The Police Officer may reduce into writing any statement made to him in the course of an examination under the said Section and if he does so, he is to make a separate and true record of the statement of each such person whose statement he records. The contention of the learned counsel that mere examination of a witness who is supposed to be acquainted with the facts and circumstances of the case would not Cr. Misc. No.M-29007 of 2010 [9] warrant the initiation of prosecution, is not the correct position. In fact a FIR is not liable to be registered on the basis of each such statement. The provision of Section 219 Cr.P.C. would be applicable and have rightly been applied by the prosecution. Section 219 Cr.P.C. reads as under:-
"219. Three offences of same kind within year may be charged together-
(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law:
Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
Therefore, a person accused of an offence within the space of 12 Cr. Misc. No.M-29007 of 2010 [10] months from the first to last such offences whether in respect of the same person or not he may be charged with and tried at one trial in any number of them not exceeding three. The said provision evidently covers a case of present kind where a person accused of similar nature of allegations and having embezzled the amount of different persons can be charged and tried. The mere fact that the provisions of Section 219 Cr.P.C. is within the power and ambit of Judicial Courts as it comes under Chapter-XVII (b) Cr.P.C. i.e. under the heading of 'joinder of charges' is inconsequential as the Court is to consider the framing of charges only after the charge-report (challan) is filed. Therefore, without the charge report (challan), the question of framing charges would not arise. Rather, the transaction being the same only one FIR is liable to be registered. The Supreme Court in T.T. Antony v. State of Kerala and others, (2001) 6 SCC 181 held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. Only information about commission of a cognizable offence which is first entered in station house diary by officer in charge of the police station can be regarded as FIR under Section 154 CrPC. All such subsequent informations will be covered by Section 162 CrPC. The Officer in charge of the Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. It was further held that after Cr. Misc. No.M-29007 of 2010 [11] registering the FIR or commencing investigation, registering of second FIR or successive FIRs in respect of the same incident and crime and making fresh investigation pursuant thereto would be irregular which calls for interference by the High Court under Articles 226/227 of the Constitution or Section 482 Cr.P.C. It was observed that the scheme of Cr.P.C. is that an officer in-charge of the Police Station has to commence investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected, he has to form an opinion under Section 169 or 170 Cr.P.C., as the case may, and forward his report to the Magistrate concerned under Section 173 (2) Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C. Therefore, it is quite evident that on the basis of one report, a FIR is registered and during the course of investigation if further material comes on record, then second or successive FIRs are not to be registered and the other persons may be proceeded against in the same FIR. This, however, is subject to the rider provided under Section 219 Cr.P.C. that the persons to be charged with and tried at one trial are not to exceed three. In the circumstances, there is no error committed by the Cr. Misc. No.M-29007 of 2010 [12] prosecution in filing the charge-reports (challans) (Annexures-P.16 to P.20) by clubbing three of the charges which are of the same kind, within the space of 12 months from the first to the last and in respect of the same person, that is, the petitioner-Avtar Singh. The earliest information with regard to commission of cognizable offence is to be treated as FIR. This sets the criminal law in motion and investigation is to commence on that basis. However, information gathered by the Police need not warrant the registration of second FIR. Besides, the criminal prosecution is not for vindication of a private grievance but is the proceeding in the interest of the society for punishing the offender. It is for maintaining stability in the society that certain acts are constituted as offence and right given to any citizen to set criminal law in motion for the purpose of bringing the culprit to book. Therefore, the statements (Annexures-P.3 to P.15) given by various persons merely sets the criminal law in motion for proceeding against the offender which in the present case is Avtar Singh. The said statements would not warrant that different FIRs are to be registered against him but that he is proceeded against in one FIR only by setting the criminal law in motion. Accordingly, the contentions raised by the learned counsel for the petitioner are devoid of merit.
In the facts and circumstances, there is no merit in the criminal miscellaneous petition and the same is accordingly dismissed. September 30, 2010. (S.S. Saron) Judge *hsp*