Jammu & Kashmir High Court
Arit Gupta And Ors vs State Of J&K; on 8 February, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr. P.C. No.509/2017
MP No. 1/2017
Date of order: .02.2018
Arit Gupta and ors versus State of J&K
Coram:
Hon'ble Mr. Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s) : Mr. Sunil Sethi, Sr. Advocate with
Ms. Veenu Gupta, Advocate.
For the Respondent(s) : Mr. S. S. Nanda, Sr. AAG.
Mr. Gagan Basotra, Advocate.
i) Whether approved for reporting in Yes/No
Law journals etc.
ii) Whether approved for publication
in press: Yes/No
1. The petitioners, in this petition, preferred under Section 561-A of the Code of Criminal Procedure seek the allowance of this Court in quashing the FIR bearing No.97/2017 dated 21.07.2017 registered against them by the respondent No.1-State of Jammu and Kashmir, through SHO police Station Channi Himmat, Jammu, for the commission of offences punishable under Section 120-B, 420, 467, 468 and 471 RPC.
2. It has been delineated in the FIR that in a complaint of the complainant, namely, Rakesh Kumar Gupta S/o Kasturi Lal Gupta R/o Greenbelt Park, Gandhi Nagar, Jammu addressed to the Director General of the Police of Jammu and Kashmir and the Inspector General of Police, Jammu, it has been alleged that the complainant constructed a three storeyed building comprising of five shops in the year 1992 on land measuring seven marlas.
561-A Cr.P.C. No.509/2017 Page 1 of 36In Shop No.3, located in the ground floor, the complainant carried his business under the name and style of "M/s ABLE Traders"; Shop No.2 was converted into a store and in the basement a Boutique and Gymnasium was being run by him besides a cement and spare parts store in the ground floor. The documents, it is stated bear testimony to this fact. The complainant has further stated that his mother owns land measuring 11 marlas in Khasra No.790 min, Khata No.162 min and Khewat No.4 situated at village Deeli, which has been purchased vide a deed of sale duly registered on 17.02.2002. The complainant has proceeded to state that during the night intervening between 7th and 8th May, 2005, the accused, named, Arit Gupta, Sumant Singh, Vinod Kher and Rakesh Kumar Bagotra along with some other persons entered into the building of the complainant with an intention to commit theft and cause his death. They caught hold of him, confined him illegally and threatened to kill him in case he tries to stop them. He raised a hue and cry but the accused persons removed the goods and the material from the building in three vehicles and thereby put him to a loss of more than 16 Lac. This was done by the accused persons at the behest of the accused No.1, a senior police officer who hatched a criminal conspiracy to deprive him from his landed estate as he had strained relations with the complainant. He used his influence to facilitate the commission of the above said crime and prepared fraudulent documents in connivance with the revenue officials and other accused persons. On his complaint, an FIR was registered in this regard but the accused managed to stall the investigation of the case. The accused prepared and managed to get the sale deed executed and registered by forging the signature of his mother and thereby committed fraud. The complainant has also stated that he has mortgaged his landed property with the Citizen Cooperative Bank and has obtained the loan from the said bank and there was no question of disposing of the said property in favour of the 561-A Cr.P.C. No.509/2017 Page 2 of 36 accused persons. He never sold the land to the tune of seven (07) marlas falling under Khasra No.131 min Khata No.36 min and Khewat No.1 situated at Channi Kamala along with the structure raised thereupon to Rajinder Singh, Varinder Singh and Jai Singh in equal shares as reflected in the fake documents dated 08.04.2005. The accused persons executed a sale deed 28.04.2005 in favour of Rakesh Kumar Bagotra which was registered on 03.05.2005. The complainant has further averred that the two shops were also directed to be attached by the learned Principal District Judge Jammu in the execution petition and the same have been handed over to the bank for auction as the complainant was not in a position to liquidate his liability and now after clearing the liability the said property has been released in his favour. The complainant has further articulated that it was at the instance of the accused persons, namely, Rajinder Singh, Varinder Singh and Jai Singh, that the concerned bank, with whom the property was mortgaged, filed a complaint against him to the effect that he has disposed of the mortgaged property but on an enquiry the Crime Branch vide its report dated 30.12.2006 concluded that the mortgaged property has not been disposed of by the complainant and the same does exist on the spot. However, what surfaced in the enquiry is that one Rakesh Kumar Bagotra and others in furtherance of a criminal conspiracy hatched with the concerned revenue officials got the document of sale registered on the basis of the false extracts. The complainant has elucidated that this property is still mortgaged with the bank, and, therefore, the question of selling the same to any other person does not arise. However, the accused persons in order to hide their deeds and in order to grab the landed property of the complainant fraudulently and in connivance with the revenue officials prepared another sale deed in favour of the accused Neeraj Kumar. The accused persons are trying to grab the property of the complainant on the basis of the fraudulent documents prepared by them in 561-A Cr.P.C. No.509/2017 Page 3 of 36 connivance with each other. They have prepared the sale deeds fraudulently to cheat the complainant and to deprive him of his landed property by hatching a criminal conspiracy with the accused No.3, who was holding a high position in the Police Department.
3. The petitioners, accused, have impugned the FIR registered against them on the grounds, inter alia, that the FIR registered against them by the respondent is illegal, arbitrary and contrary to the provisions of law and, therefore, the same deserves to be quashed. From the allegations leveled against them in the impugned FIR, no offence muchless the offences punishable under Sections 120-B, 420, 467, 468 and 471 RPC are made out against them. The petitioners have been wrongly and falsely involved in the FIR. The registration of the impugned FIR by the respondent against the petitioners is highly motivated in as much as the same has been registered by the respondent on the directions of his superior officer holding the rank of Inspector General of Police, Jammu Zone, Jammu. It is further submitted that the complainant being fully aware and having the knowledge that the earlier FIR registered against the petitioners on the basis of his complaint was closed as not proved, he instead of filing a complaint with the Police Station concerned routed the same through the offices of the Director General of Police and the Inspector General of Police. The IGP, Jammu Zone, Jammu, without associating and involving the petitioners with any enquiry conducted pursuant to the complaint filed by the complainant directed the respondent to register the FIR against the petitioners vide his office letter No.16.08.2017. The SHO Police Station, Channi Himmat, Jammu, being a subordinate officer was not even allowed to go through the contents of the complaint and hold a preliminary investigation or enquiry in the matter and he by succumbing to the pressure and the influence of the IGP Jammu Zone, Jammu registered the impugned FIR. The mode and manner in which the impugned FIR has 561-A Cr.P.C. No.509/2017 Page 4 of 36 been registered is highly perverse and contrary to the provisions of law and, therefore, the same cannot sustain the test of judicial scrutiny. None of the ingredients essential for the proof of the offences leveled against the petitioners is made out in the case. The lodging of FIR in the instant case is a result of a mala fide action and non application of mind. The FIR impugned is being used as a tool for harassing and victimizing the petitioners notwithstanding the fact that the petitioners are not involved in any of the offences. Viewed from any angle, the impugned FIR is contrary to the provisions of law and has been registered with the oblique motive of harassing and victimizing the petitioners at the hands of the respondents. The allegations contained in the impugned FIR if taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the petitioners; Added to it is that the FIR impugned is nothing but a lever used to cause harm to the otherwise well reputed image and reputation of the petitioners. At the end it has been urged that with a view to prevent the abuse of the process of law and to secure the ends of justice, the petitioners seek the indulgence of this Court to invoke its inherent jurisdiction under the provisions of Section 561-A Cr.P.C and quash the FIR impugned.
4. The Respondent No.1 has resisted and controverted the petition of the petitioners in his objections on the grounds, chiefly, that two complaints of Rakesh Kumar Gupta were received at ZPHQ Jammu, one through PHQ and the second addressed to IGP Jammu Zone. In these complaints the complainant made some fresh allegations which were not a part of the complaint filed before the Crime Branch Jammu and on the basis of these complaints, the FIR has been registered at P/S Channi Himmat, Jammu for investigation. Law is well settled by the Apex Court in the case of State of Haryana versus Bhajan Lal, wherein elaborate guidelines have been laid down regarding the exercise of inherent jurisdiction under section 561-A 561-A Cr.P.C. No.509/2017 Page 5 of 36 Cr. P. C. The case in hand does not fall within these guidelines and as such the same requires dismissal. In the year 2006 Managing Director, Citizens Cooperative Bank ltd. 117-A/D, Gandhi Nagar, Jammu made a complaint to the Crime Branch Jammu stating therein that Rakesh Kumar Gupta after taking the loan has clandestinely disposed of the property at Channi Himmat, Jammu, which he had mortgaged in favour of the Bank On this complaint, the enquiry was conducted by the Enquiry Officer, Sh S. S. Slathia, ASI Crime Branch, Jammu. The Enquiry Officer vide his report dated 30.12.2006 concluded that the complaint of the Citizens Cooperative Bank ltd 117-A/D, Gandhi Nagar, Jammu is false and baseless as the mortgaged properties have not been disposed of by Rakesh Kumar Gupta rather the same exist on the spot even as per the revenue records. However, it is surprising to submit here that in the same complaint, another enquiry was held by different E.Os of Crime Branch Jammu, wherein it has been concluded that the aforesaid mortgaged property has been sold to the petitioners vide sale deed dated 08.04.2002. Accordingly, on the recommendations of the enquiry officer a case FIR No.23/2008 U/S 420, 467, 468, 471, 120-B RPC, r/w 5(2) P.C. Act was registered in Crime Branch Jammu, the challan whereof has been produced in the court of law for judicial determination. The sale deed dated 08.04.2002 is alleged to be fudged and a fraudulent one as the complainant Rakesh Kumar Gupta has averred in the complaint that he has not executed any such sale deed in favour of the petitioners and his signatures on the same have been forged which fact has been further fortified and corroborated by the FSL report obtained during the course of enquiry. Therefore, investigation of the case FIR No.97/2017 registered on the complaint of Rakesh Kumar Gupta requires to be carried on so that it can be taken to its logical conclusion. The subject matter of investigation in the earlier case was regarding the execution of the mortgage deed dated 561-A Cr.P.C. No.509/2017 Page 6 of 36 08.05.2002 and not the factum of the sale deed purported to be forged, as alleged by the complainant which is the subject matter of investigation in case FIR No.97/2017. It is further submitted that during the course of enquiry the alleged accused persons were also summoned and asked to explain and produce documents with respect to land in question in order to authenticate the version of the complainant but they did not tender any justification nor did they produce any valid document to refute the allegations of the complainant. With regard to the averments made in the petition that the FIR has been registered after obtaining FSL report regarding the disputed sale deed dated 08.4.2002, notwithstanding the fact that similar report has been obtained in the course of enquiry on an earlier complaint of similar nature made by the aforementioned complainant to the crime branch Jammu, it is submitted that admittedly the mandate of the enquiry and investigation is diverse but the investigating agency during the course of investigation is not precluded from looking into/examining the Enquiry Report of the independent Inquiry Officer regarding the incident, which is under investigation. It is only after thorough and scrupulous investigation, that the case shall be taken to its rightful culmination. However, from a cursory glance of the expert report obtained from FSL, Srinagar, it appears that it is in the context of some other issue and does not pertain to the signatures of the complaint on the sale deed in question. Since the complaint clearly discloses the commission of cognizable offences by the petitioners herein, in connivance with the revenue and other officials, therefore, the same requires a thorough investigation as the said persons have allegedly executed another sale deed dated 28.04.2005 which was registered on 03.05.2005 in favour of one Rakesh Kumar Bagotra which depicts the sale of 04 marlas of land along with the structure out of the land to the tune of 07 marlas as detailed above. In order to verify the contents of the said complaints, which disclose the allegations 561-A Cr.P.C. No.509/2017 Page 7 of 36 of the preparation of false and forged sale deed dated 08.04.2002 registered in the Ld /Court of Municipal Magistrate Jammu, the certified copy of sale deed dated 08.04.2002 was obtained from the concerned Court on 05.07.2017 and accordingly the said sale deed (questioned document) bearing questioned signatures marked as Q1, admitted signatures marked as A1 and the specimen signatures marked as S1 of complainant Rakesh Kumar Gupta S/o Sh. Kasturi Lal Gupta were sent to the Director FSL, Jammu for comparison and expert opinion as to whether the questioned signatures marked as Q1, admitted signature marked as A1 and the specimen signatures marked as S1 are of the one and the same person and tally with each other or otherwise. Subsequently, the FSL report dated 12.08.2017 was received with the result that "The persons who wrote the blue enclosed standard signatures stamped and marked A1, A1/1 to A1/3 and S1, S1/1 to S1/25 did not write the red enclosed questioned signatures Q1 due to the reason that differences have been observed between the questioned and the standard signatures"; That on the basis of the FSL report, the allegations regarding preparation of false and forged sale deed dated 08.04.2002 by the alleged accused namely Rajinder Singh S/o Sh Balwan Singh, R/o Khour Dhonia Tehsil R.S.,Pura, Varinder Singh S/o Karan Singh R/o Raipur Satwari, Jammu and Jai Singh S/o Bachiter Singh R/o Sec-7, Channi Himmat, Jammu in league with the revenue and other officials concerning the above said landed property of the complainant namely Rakesh Kumar Gupta are prima facie made out against the aforesaid persons as well as against Arit Gupta S/o Prem Nath Gupta R/o Talab Tillo Bohri, Jammu and Deep Sharma S/o Sh. Payare Lal R/o Pacca Danga Jammu, who were witnesses to the said sale deed.
5. Head and considered.
561-A Cr.P.C. No.509/2017 Page 8 of 366. The law is that in exercise of the wholesome power vested in the High Court under Section 482 of the Criminal Procedure Code corresponding to Section 561 of the J&K Criminal Procedure Code, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to the laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and the purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
7. In the law laid down by the Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335, the Supreme Court has elaborately considered the scope of Section 482 Cr. P.C. In this case the Supreme Court had the occasion to determine the power of the High Court to quash the entire criminal proceeding including the FIR. The case under scrutiny arose out of an FIR registered under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. After noticing the earlier pronouncements on the subject, the Supreme Court detailed with lace certain categories of cases by way of illustration where power under Section 482 of the Cr. P.C. can be 561-A Cr.P.C. No.509/2017 Page 9 of 36 exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph 102 of the judgment provides seven categories of cases where the provisions of Section 482 Cr. P.C. can be invoked and these are extracted below:
"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 FIR 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 do not disclose the commission of any offence and make out a case against the accused.
4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without any 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 561-A Cr.P.C. No.509/2017 Page 10 of 36 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."
8. Testing the instant case on the standards of the law laid down above which are illustrative and not exhaustive what requires to be looked into is whether the criminal proceedings initiated against the accused are manifestly attended with mala fides and devised to wreck vengeance on the accused. It needs must be said that on the complaint filed by the complainant earlier in point of time an FIR bearing No.29/2005 for the commission of offences under Section 450/382/380/397 RPC was registered against the accused, namely, Vinod, Arit Gupta, Suman Singh and Rakesh Kumar Bargotra, who are accused in this case also. Annexure- B attached to the petition is an order dated 21.04.2009 of the Court of learned Sub Judge/Judicial Magistrate (Electricity), Jammu. The police authorities after the conclusion of the investigation in the FIR aforesaid closed it as not proved and submitted a closure report before the Court. The excerpts of the order of the learned Sub Judge/Judicial Magistrate 561-A Cr.P.C. No.509/2017 Page 11 of 36 (Electricity), Jammu, that have a bearing in determining this matter so as to see what that case, was all about, how the investigation culminated into that case and what the Court directed are reproduced herein below verbatim:-
"The IO recorded the statements of the witnesses and on conclusion of the investigation he closed the case as not proved. He has further prayed for initiation of proceedings u/s 182 RPC against the complainant. Closure report was presented before the ld. CJM Court who transferred the same to the Ld. City Judge, Jammu for disposal. The Ld. City Judge, Jammu made reference of the report to the Ld. CJM Jammu on the ground that he does not want to hear the matter for personal reasons. Accordingly, this case was transferred from the files of Ld. City Judge Jammu to this Court for disposal under law.
The police have closed the case as not proved on following grounds:
1. That the accused failed to produce the documents with respect to the ownership of the building and the land on which building has been constructed.
On the contrary the accused Rakesh Kumar has produced Revenue record showing his ownership of the land bearing Khasra No.131 over which the building has been constructed and also some agreements showing that the persons occupying the shops in the building are tenants of Mr. Rakesh Bargotra, the alleged accused.
561-A Cr.P.C. No.509/2017 Page 12 of 362. That some of the alleged stolen articles were recovered from the possession of the Complainant only;
3. The Complainant failed to produce any witness to support his allegations.
4. The false complaint has been filed to harass the alleged accused persons.
The court further directed that the complainant was put to notice. He appeared before the Court and filed a protest petition. In the protest petition he submitted that the investigation of the case has not been conducted properly in as much as one of the accused is the brother of a high ranking police officer and after yielding under the influence of the said police officer, the police authorities closed the case without proper investigation. The statement of the complainant was reduced into writing. The complainant reiterated the stand taken by him earlier in the complaint. He was directed to adduce evidence in support of the allegations levelled by him. He took more than a dozen opportunities to adduce the evidence in support of the allegations but failed. He subsequently absented himself from the proceedings and did not appear in the Court for the last so many hearings.
Taking into consideration the above the court concluded that in view of the facts and circumstances discussed above it appears that the allegations levelled by the complainant are false and baseless as they are not supported by any evidence. The court also held that some of the articles alleged to have been stolen were recovered and seized from the complainant only which goes to show that the allegations are false. The 561-A Cr.P.C. No.509/2017 Page 13 of 36 Court also ordered that the case does not require any reinvestigation in view of the attending circumstances. The Court accordingly accepted the police report and rejected the protest petition filed by the complainant. The articles seized from the possession of the complainant and subsequently released in his favour temporarily, were ordered to be released in favour of the complainant. The Court also directed that the police is at liberty to file a complaint u/s 182 RPC against the complainant, if they choose so."
9. What can be elicited from the order aforesaid is that the police authorities gave reasons to support the closure of the case as not proved. After the submission of the closure report, by the Police authorities the Court put the complainant to notice. He filed a petition wherein he took the plea that the police authorities have investigated the case in a rough shod manner. He also stated that it is under the influence of the brother of one of the accused, a police officer, that the police authorities carried the investigation of the case in a hot haste. Be that as it may, the Court give the complainant more than a dozen opportunities to adduce the evidence in support of the allegations leveled in the FIR but he failed to do so and subsequently he stayed away from the proceedings. The Court, accordingly, came to the conclusion that the allegations leveled against the complainant are false and baseless.
10. The contention of the learned counsel for the respondents-State that the allegations leveled in the FIR No.29/2005 are per-se different than the allegations leveled against the accused in the FIR No.97/2017 appears to be a spurious argument when tested on the facts of the case registered in the year 2005. The story put forward by the complainant in the FIR No.29/2005 was that the accused during the night intervening between 7 th and 8th May, 2005 barged into the building which allegedly belonged to 561-A Cr.P.C. No.509/2017 Page 14 of 36 him. In that FIR, the complainant further stated that the accused took away the articles and goods lying in the building valued at an amount of approximately Rs.16.00 Lacs and they threatened to kill him. The police authorities came to the conclusion that the complainant did not produce the documents to substantiate his claim regarding the ownership of the building and the land appurtenant thereto and to the contrary the accused Rakesh Kumar produced the revenue record justifying his claim on the land bearing Khasra No.131 over which the building has been constructed as also some agreements depicting that the persons occupying the shops in the building are the tenants of Mr. Rakesh Bargotra, the alleged accused. It also states that some of the articles alleged to have been removed by the accused, were recovered from the possession of the Complainant himself and that the Complainant failed to substantiate his case by any evidence.
11. No doubt, the offences under which the earlier FIR was registered are different than the ones in which the impugned FIR has been registered but the basic structure and the sub-stratum of both the FIRs revolves round the same plea, that is whether the accused or the complainant are the owners in possession of the building constructed over the land bearing Khasra No.131, situated at village Deeli. The complainant as is palpable from the perusal of the order aforesaid failed to substantiate his claim in the earlier FIR by any documentary evidence as a sequel to which the case was closed as not proved, which was accepted by the trial Court, although the trial Court gave a long lease of life to it and doled out a latitude to the complainant by repeatedly asking him to produce the evidence in order to substantiate his claim that he is owner of this property It is not known how and why the complainant, after rising from a deep slumber, registered a case against the petitioners in the year 2017 when he acquiesced in the order dated 21.04.2009. May be that he was waiting for the opportune time to look for the moles and holes in the department as would direct the 561-A Cr.P.C. No.509/2017 Page 15 of 36 investigation in the matter afresh on the same issues as were raised in the earlier FIR.
12. Learned counsel for the petitioner in the compilation produced by him before this Court which shall form the part of the file has placed some documents on record, Annexure A-1 of which is reproduced below:
ZONAL HEADQUARTERS, CRIME BRANCH JAMMU The Director, FSL, Srinagar.
No: CR-J/Clt/3664-65 Dated:- 16/03/2006
Sir,
During the course of probe of above cited enquiry following documents have been obtained/seized:-
1. Sale deed dated 18.04.2002 executed between Rakesh Kumar Gupta S/o Kasturi Lal Gupta R/o 71-72/4 Channi Himmat Jammu and Rajinder Singh S/o Balwan Singh R/o Khour Dounia and two others regarding 7 marlas land comprising Kh No. 131 situated at Channi Kamala upon which signatures of vendor are marked as Q1, Q2 and Q2a.
2. Copy of "Fard Intikhab" dated 08.04.2002 prepared by Patwari halqa & attested by settlement Naib Tehsildar Bahu on the reverse of which signature of vendor is marked as Q3.
3. "Naksha Plot" Khasra No. 131 prepared by Patwari halqa and attested by Settlement Nb. Tehsildar Bahu dated 08.04.2002 on the reverse of which signature of vendor is marked as Q-4.
4. Site plan showing existing plan of Shri Rakesh Gupta S/o Kashturi Lal Gupta at Khasra No. 131, channi Kmala for prepared by Architect upon which signature of vendor is marked as Q-5.561-A Cr.P.C. No.509/2017 Page 16 of 36
5. Mortgage deed dated 14.06.2002 executed between Rakesh Kumar Gupta and citizen co-operative Bank Ltd. upon which signatures fo Rakesh Kumar Gupta are marked A1, A1-a, A2a, A2b.
6. Application for loan against machinery submitted by M/S Aable Traders to the Manager Citizen co-operative Bank, vinayak Bazar bearing signatures of application marked as A3 and A3-a.
7. Hypothecation of goods deed dated 05.06.2002 submitted by Citizen Co-operative Bank Ltd, Vinayak Bazar, Jammu Lvs, upon which signautres of Rakesh Kumar Gupta are marked as A4, A4-
a, A5, A5-a, A6, A6-a, A7, A7a, A8, A8-a, A9 and A9-a.
8. Specimen signautures of Rakesh Kumar Gupta S/o Kasturi Lal gupta R/o House No. 71/72 Sector 04 Channi Himmat, Jammu marked as S1, S2 & S3.
9. Letter bearing No. Reg. No. 1151 dated 09.05.2002 of Manager Citizen Co-operative Bank Branch, Vinayak Bazar addressed to Tehsildar, Jammu insertion made at Q6 & 6a in the main letter marked Q-6c.
10.Copy of Khasra girdawari in respect of Khasra No. 131 channi Kamala for the year Rabi 2001 dated 09.05.2002 bearing red ink report of Patwari in which cutting/suspicious writing is marked as Q-7.
All the above seized/obtained documents containing questioned/admitted and specimen writings are sent to you with the request that after scientific analysis, expert opinion on the following points may be provided:
a) Whether the questioned signatures marked as Q1, Q1a, Q2, Q2A, Q3, Q4, Q5 Tallies with the admitted signature marked as A1, A1a, A2a, A2b, A2a, A3, A4, A4a, A5, A5a, A6, A6a, A7, A7a, A8, A8a, A9, A9a.
b) An inter-se comparison of the signatures may also be made with Q1, Q1a, Q2, Q2a, Q3, Q4 and Q5.
c) Whether there is any insertion/addition obliteration in the writings marked as Q6, Q6A and Q7 and if so, then what was the original writing and the differences in the ink used for writing the body writing marked as Q6c.
13. In addition to other documents, the Sale Deed dated 18.04.2002 executed by Rakesh Kumar Gupta and Rajinder Singh was also sent for 561-A Cr.P.C. No.509/2017 Page 17 of 36 examination by the FSL expert who tendered his opinion. The authenticity of this sale deed has again been challenged by the complainant on the ground that the same is fake and forged. In the FSL report it has been stated that the person who wrote the red enclosed admitted signatures marked as A-1, A1-a, A-2, A-2a, A-3, A-3a, A-4, A- 4a, A-5, A-5a, A-6, A-6a, A7, A7a, A8, A8a, A9, and A9a also wrote the red enclosed questioned signatures marked as Q-1, Q-1a, Q-2, Q-2a, Q-3, Q-4 and Q-5.
My opinion is based upon the cumulative consideration of the various similarities observed between the questioned and the admitted signatures both in the general writing characteristics as well as in the individual writing characteristics. The general writing habits of movement speed, slant, alignment, relative size and proportion of various characters and parts of characters are observed to be similar between the questioned and the admitted signatures. The skill and the line quality of the questioned signatures is also observed to be similar to those of the admitted signatures. The interse comparison of the admitted signatures reveals that those signatures are free and smooth having natural variations among themselves and when the comparison is made to those of the questioned signatures, they show similarities with when the comparison is made to those of the questioned signatures, they show similarities with natural variation of this natural variation is found to be within the range and extent as exhibited by the admitted signatures. Similarities are also observed in the movement of execution of various strokes and parts of strokes with their combinations and termination between the questioned and the admitted signatures. Similarities have also been observed in the minute and inconspicuous details of the formation of various characters and parts of characters between the questioned and the admitted signatures and some of the significant features of similarities are as follows:
Peculiar manner of executing the initial character forming angularity between the two strokes together with the manner of executing the subsequent character with the shape of the curvature formed and link with the subsequent character U with the shape of its body part, the manner of 561-A Cr.P.C. No.509/2017 Page 18 of 36 executing the body part of letter P and the relative location and position of putting the t-cross bar as observed in the questioned signatures is similarly observed in the admitted signatures.
These similarities observed are highly significant in nature and will not accidentally coincide in the writing habits of two different persons and when considered collectively lead me to the aforesaid opinion.
14. After considering the opinion of the FSL as detailed above the Court of the learned Sub Judge, Jammu returned a finding that the closure report merits to be closed. Learned counsel for the State has pleaded in his objections and the arguments that the State obtained a copy of the questioned documents from the Court and submitted the same for eliciting the opinion of the FSL expert. Linda L Mitchell's, an authority on forensic examination of documents/handwriting expert in his blog states that in the absence of original documents, the analysis of a questioned document is limited to the features that survive the copying process. This can be likened to identifying a person behind a cloudy window; the basics are there, but details are missing. What we call the "three-dimensionality" of the original document is lost. Not to mention that if the copy is a copy of a copy, the details become increasingly difficult to verify.
15. Section 45 of the Evidence Act enables the Court to obtain the opinion of the expert on various aspects including the one relating to the comparison of disputed signatures and an expert will not be in a position to render any of his opinion when the original document containing the disputed signature is not forwarded to him.
16. The other facet of the case is that the complainant mortgaged a portion of the building raised on 7 marlas of land with the Citizens Cooperative Bank after the sale of this property on 08.04.2002 in favour of the 561-A Cr.P.C. No.509/2017 Page 19 of 36 petitioner Nos.2, 3 & 5. He made a default in the repayment of the loan. The Managing Director of the Citizens Cooperative Bank lodged a complaint against him before the Senior Superintendent of Police, Crime & Railways, Jammu, on the subject "Complaint against Sh. Rakesh Kumar S/o Sh. Kasturi Lal R/o 71-72 Channi Himat, Jammu- Prop. Of M/S Able Traders and Able Industries", which forms Annexure-G to the petition and the contents thereof are reproduced below:
"This is to inform that the captioned person was granted a term loan for Rs.15.00 lacs and cash credit limit of Rs.20.00 lacs against his unit M/S Able Traders and another cash credit limit of Rs.15.00 lacs against the unit M/S Able Industries from our Vinayak Bazar Branch. In case of M/S Able Traders, the borrower had mortgaged land measuring 7 kanals and 14 marlas and a crusher situated at Sainik Colony/Chowadi Jammu and a plot measuring 88'x43' situated at Karan Nagar, Jammu, as collateral security whereas in Able Industries the collateral security was comprised of two shops measuring 15.7'x30' each on ground floor and two stair cases leading to upper floor and basement situated at Main Road, Channi Himat Jammu. Apart from this, the bank had also mortgaged primary securities i.e. the units in question (Machinery and structure) financed by the Bank including hypothecation of stocks in trade.
Since the party defaulted to repay the loan, as such, the Bank initiated recovery proceedings against the defaulter Sh. Rakesh Mahajan Sole Prop. of the units. During the course of recovery proceedings, it has come to 561-A Cr.P.C. No.509/2017 Page 20 of 36 notice that the defaulter has clandestinely disposed of the properties comprising of plot measuring 88'x43' situated at Karan Nagar Jammu and two shops measuring 15.7'x30' each situated at Channi Himat Jammu. Further it has also been discovered that a plot measuring 40'x26' out of the properties situated at Karan Nagar Jammu stood already disposed of by the defaulter in the year 2000 by a registered mortgage deed to one Mr. Maheshwar Prashad S/o Sh. Dwarka Nath R/o Parmandal Teh. Samba Distt. Jammu which the defaulter fraudulently mortgaged to the Bank in the year 2002 by way of registered deed for securing credit facility. At present, apx. Rs.73.00 lacs are recoverable from the concerned.
Since Sh. Rakesh Mahajan has cheated the Bank and taken away the public money by conducting a criminal act and as such a criminal case against the defaulter needs be registered in the interest of Bank."
17. The authorities of the Crime Branch conducted a preliminary inquiry into the above complaint and the inquiry officer concluded that the complainant here in this case obtained a loan from the Citizens Cooperative Bank by mortgaging the land which had earlier been sold by him and accordingly a case for the commission of offences under Sections 420, 467, 468, 471, 120-B of the RPC and 5(2) of the Prevention of Corruption Act, was registered against him and others. After the conclusion of the investigation of the case a charge sheet for the aforesaid offences was laid against the complainant and others in the competent court of law the details of which are given below:-
561-A Cr.P.C. No.509/2017 Page 21 of 36"Brief facts of the case are that a written complaint on behalf of Managing Director, Citizens Cooperative Bank Ltd, 117/Ad Gandhi Nagar Jammu was received in Crime Branch, Jammu through Crime Hqrs, J&K Srinagar. The complainant has alleged that Sh. Rakesh Kumar Gupta S/o Sh. Kasturi Lal Gupta R/o Channi Himmat Jammu in order to secure a term loan amounting to Rs. 15 Lac and cash credit limit of Rs. 25.00 lacs against his Unit namely M/s Able Traders and another Cash credit of Rs. 15.00 lacs against his other Unit M/s Able Industries from Vinayak Bazar Branch of the bank had mortgaged fake collateral security i.e. land, buildings/shops which he had already disposed of. The accused (Borrower) had mortgaged the below mentioned properties against the above said loan. (1) Land measuring 07 kanals and 14 marlas situated at village Chowadi faling in Khasra No. 1346. (2) A plot 88'x43' situated at Karan Nagar Jammu in Khasra No. 95 Min as collateral security. (3) Two shops measuring 15.7 x 30' each on ground floor, two stair cases and basement situated at Channi Kamala Jammu in Khasra No. 131 Min. the accused Rakesh Gupta became a defaulter, and the bank authorities initiated recovery proceedings against the above defaulter/proprietor of both the above firms. During the course of recovery proceedings, came to the notice of bank authorities that the above said defaulter had clandestinely disposed of the property comprising of a plot situated at Karan Nagar Jammu 561-A Cr.P.C. No.509/2017 Page 22 of 36 and two shops in question situated at Channi Kamala Jammu. It has been further alleged that a plot mortgaged in Khasra No. 95 Min situated at Karan Nagar Jammu in the year 2002 with the Bank had already been sold to one Maheshwar Prasad S/o Dwarka Nath R/o Parmandal in the year 2000, which he had fraudulently mortgaged with the Bank. It is also alleged that the accused has cheated the Bank and had taken away the public money and at present approximately amount of Rs. 73.00 lacs has to be paid by him. On receiving of the above said complaint, a Preliminary enquiry was initiated in Crime Branch, Jammu, which was finally concluded by Sh. A.K. Chib, the then Dy. Superintendent of Police, Crime Branch, Jammu as Proved. Accordingly a formal case FIR No. 23/2008 U/s 420, 467, 468, 478, 120 B/ RPC, r/w 5(2) P.C. Act, was registered in Crime Branch, Jammu on 16.08.2008 and the investigation of the case was entrusted to SI Gulab Chand Manhas. Necessary permission U/s 3 P.C. Act to investigation the instant case was obtained from the Hon'ble court Chief Judicial magistrate Jammu. During the course of investigation, preliminary enquiry documents alongwith FSL opinion were seized on 22.08.2008. Original loan case documents in respect of M/s Able Traders and M/s Able Industries were seized from Citizen Co-operative bank Branch Vinayak Bazar Jammu on 06.11.2008. Attested/certified copies of mutation No. 2363, 2371, 238, 2395,2834, 2939, 2949, 561-A Cr.P.C. No.509/2017 Page 23 of 36 2950, 2953, 2954 and 3231 were seized from Tehsil Office Jammu on 12.03.2009 whereas certified copies of mutations No. 2690, 2767 and 3528 pertaining to Khasra No. 95 Min situated at Karan Nagar Jammu were seized from Sh. Vijay Kumar Patwari Halqa Jammu Khas on 27.05.2009. A verification report in respect of accused Rakesh Kumar Gupta so called proprietor of company namely M/s Raghav Enterprises, 69 Parhaladpur Sector 20, Rohini New Delhi was obtained from Police Station Aman Vihar Delhi with regard to existence of the above so called bogus fake company which does not exist at al. Besides verification report of Police station Aman Vihar Delhi revealed that the unit of accused under the name and style of M/s Raghav Enterprises 69 Parahladpur, sec 20 Rohni does not exist in sector 20 Rohni Delhi. Original account opening from alongwith other documents in respect of accused Rakesh Kumar Gupta were seized from HDFC Bank Ltd, G-14 Kirti Nagar extension New Delhi on 05.03.2009. Original Khasra Girdawari record pertaining to Khasra No. 131 Min Channi Kamala, original register, Fard Partal of village Chani Baija and certified copies of Mutation of Pert Patwar registered vide Nos. 794, 958, 1064, 1375, 1453, 1537 and 1538 in respect of Khasra No. 131 Min Channi Kamata Jammu were also seized from Sh. Yaqoob Mattoo Patwari Halqa Bahu - IInd on 04.05.2009. Original sanction of Board members in respect of above said loan cases alongwith other 561-A Cr.P.C. No.509/2017 Page 24 of 36 related documents were seized from Administrative office of Citizen Co-operative Bank Ltd, 117-A/D, Gandhi Nagar, Jammu on 24.03.2000 Boardes, other relevant information was also obtained from the concerned quarters Statements of concerned witnesses were recorded U/s 161 CrPc. Investigation conducted and perusal of records, reveals that accused Yougal Kishore Mahajan was posted as Branch manager, Citizen Co-operative Bank Ltd., Branch Vinayak Bazar Jammu during the year 2002 upto 07.12.2002, whereas accused Rajinder Kumar was posted as Patwari Halqa Channi Kamala during the month of April/May 2002. In the 1st Week of May, 2002, the accused Rakesh Kumar Gupta S/o Late Kasturi Lal gupta had applied for grant of a term loan for Rs. 15.00 lacs and cash credit limit of Rs. 20.00 lacs against his Unit M/s Abie Traders and other cash credit limit of Rs. 15.00 lac against his unit M/s Able Industries through Citizen Co-operative Bank Ltd, Jammu Branch Vinayak Bazar, Jammu. The complainant the then managing Director, Citizen Co-operative Bank Ltd, Jammu while making the complaint vide his letter No. ADM/2952 dated 29.06.2006, gave the details of the properties mortgaged in different cash credit accounts of M/s Able Industries as two shops measuring 15.7x 30' at main road Channi Himmat inadvertently. However the details of such mortgaged properties in different cash credit amounts has been clarified by the present Managing Director Sh. Ashok Goswami vide his letter 561-A Cr.P.C. No.509/2017 Page 25 of 36 No. ADM/9806 dated 29.10.2008 during the course of investigation. The above term and cash credit limits were sanctioned/granted through Citizen Co-operative Bank Ltd, Branch Vinayak Bazar Jammu in favour of accused Rakesh Kumar Gupta S/o Kasturi Lal Gupta R/o Channi Himmat Jammu. The details of the properties in each loan account in respect of M/s Able Traders and M/s Able Industries mortgaged by the accused as per the Bank records is as under:-
M/s Able Traders (Sole proprietor accused Rakesh Kumar Gupta):- The term loan of Rs. 15 lacs, cash credit limit Rs. 10.00 lacs and enhanced to Rs. 20.00 lacs. Date of sanction 07.05.2002. Date of encashment 27.09.2002. Security hypothecated (i) stocks (ii) plant and Machinery (iii)Registered mortgage of property comprising of two shops measuring 15.7x30' each on ground floor and two stair cases, one leading to upper floor and another stair to the basement. The basement is also of the same size of the two shops combined at village Channi Kamala under Khasra No. 131 Min. Registered mortgage of the plot measuring 3784 sq.ft falling under Khasra No. 95 Min situated at 2nd extension Karan Nagar, Jammu.
M/s Able Industries (sole proprietor accused Rakesh Kumar Gupta):- Cash credit limits of Rs 5.00 lacs. Date of sanction 15.04.2002. Security Hypothecated (i) stocks (ii) plant and Machinery (ii) Registered mortgage of property comprising of land measuring 07 561-A Cr.P.C. No.509/2017 Page 26 of 36 kanal and 14 Marlas situated at Village Chowadi Tehsil and District Jammu with the following details, land measuring 05 kanals and 17 marlas comprising in Khasra No. 1346, Khewat No. 18, Khata No. 280 Min situated at village Chowadi to accused Rakesh Kumar Gupta R/o Channi Himmat Land measuring 01 kanala ½ Marlas comprising in Khasra No. 1346, Khewat No. 18, Khata No. 280 Min situated at village Chowadi belonging to Sh. Jugal Kishore gupta S/o Late kasturi Lal gupta R/o channi Himat Jammu.
Scrutiny of the seized record/ documents regarding land purchased by accused Rakesh Kumar Gupta in Khasra No. 95 Min situated at Karan Nagar Jammu revealed that the said accused Rakesh Kumar Gupta had purchased 05 kanals and 15 marlas of land in Khasra No. 95 min from Dr. Karan Singh through his Attorney holder Brig. J.S. Rajput (Retired) S/o late bikram Singh R/o The Palace Jammu vide Sale Deed dated 09.01.1999 duly registered in the Court of Sub Registrar Jammu. Subsequently the accused had sold the above said land to different persons for which mutation No.s 2363, 2371, 2388, 2395, 2834, 2939, 2949, 2950, 2953, 2954, 3231, 2690, 2767 and 3528 were attested by the revenue authorities in favour of concerned purchasers to whom the above said land was sold by the accused Rakesh Kumar Gupta. The total land sold by the accused Rakesh Kumar Gupta is 114 Marlas and 263 Sq. Ft i.e. about 115 Marlas which existed on spot 05 kanal and 15 marlas. This 561-A Cr.P.C. No.509/2017 Page 27 of 36 clearly shows that accused Rakesh Kumar Gupta had sold the above said land purchased by him in Khasra No. 95 min at Karan Nagar Jammu and thereafter executed a mortgage deed of the plot situated at Karan Nagar Jammu out of the above said land in question measuring approximately 13 marlas and 148 Sq. ft. in favour of Citizen Co-operative Bank Branch Vinayak Bazar, Jammu duly attested by Ld. Sub Registrar City North Jammu as Collateral security for the cash credit limit granted in favour M/s Able Traders Jammu of whom accused Rakesh Kumar Gupta is a Proprietor in connivance with the then Branch Manager accused Yougal Kishore Mahajan in the year 2002, whereas accused Rakesh Kumar Gupta had already sold the above mortgaged plot to one Maheshwar Prasad S/o Dwarka Nath R/o Parmandal, tehsil Samba Vide Sale Deed dated 23.10.2000 registered on 04.11.2000 in the Court of Sub-Registrar Jammu and Mutation No. 2950 dated 26.06.2003 stands attested by the Revenue authorities in this regard. The accused Yougal Kishore Mahajan Branch manager has deliberately avoided making lien of mortgage properly in the revenue records and has violated norms /conditions laid down by the Bank while granting loan in favour of Rakesh Kumar Gupta in order to give undue benefits to accused Rakesh Kumar Gupta, which has caused wrongful loss to the public/Bank Money, which clearly proves misuse of official position by the said Branch Manager. The accused Yougal Kishore Mahajan 561-A Cr.P.C. No.509/2017 Page 28 of 36 Branch manager after granting the loan and during preparation of legal documents has deliberately avoided to mark/note the status of mortgaged plot in Khasra No. 95 min measuring 3784 sqft. Comprising about 13 marlas and 143 sqft situated at 2nd extension Karan Nagar Jammu on 07.05.2002 and 27.09.2002, whereas said mortgaged plot was already sold by accused to one Maheshwar Prashad about two years back on 04.11.2000. it is pertinent to mention here that the land in question is private land and does fall under Abadi Deh and is purely a private land, which required necessary entries in the revenue record at the time of mortgaging the same by Rakesh Kumar accused in favour of Bank against the loan obtained by him.
Investigation has further revealed that the two shops measuring 15.7'x30' each ground floor and two stairs leading to upper floor and basement situated at main road Channi mala comprising khasra No. 131 min was the land, which was purchased by the accused Rakesh kumar Gupta and subsequently had constructed a building on a portion of the said land and had sold the remaining portion of the said land to various persons. The accused Rakesh Kumar Gupta had sold the above two shops measuring 15.7'x30' each on ground floor and two stairs leading to upper floor and basement comprising Khasra No. 131 min situated at main road Channi Kamala to Rajinder Singh and others vide sale deed dated 10.04.2002 and revenue authorities have also attested mutation No. 1375 dated 30.04.2002 in 561-A Cr.P.C. No.509/2017 Page 29 of 36 favour of vendees i.e. Rajinder Singh and others. The accused after hatching criminal conspiracy with accused Rajinder Kumar the then Patwari Halqa Channi has obtained false copy of Khasra'Gridawari regarding his ownership on 09.05.2022 alongwith Jamabandi and has fraudulently mortgaged the above two shops alongwith basement in favour of citizens Co- operative Bank Ltd. against the obtained loan as collateral security, which he had already sold to Rajinder Singh and others on 08.04.2002. Accused Rajinder Kumar Patwari in connivance with accused Rakesh Kumar Gupta had prepared false revenue documents with intention to give undue benefit to the accused Rakesh Kumar Gupta and has misused his official position. The extract of Girdawari and Bank letter No. 1151 dated 09.05.2002, revealed that the dimension of shops has been shown as 15.7'x20' and 31.2x20' which has been tempered and converted as 15.7'x30' and 1.2'x30' by the accused persons. The FSL opinion also confirms the insertion on the revenue documents. The accused Rajinder Kumar Patwari has also recorded the bank lien in Register Khasra/Girdawari on 09.05.2002, illegally to facilitate the accused Rakesh Kumar Gupta. The said false entry of the lien has been set-aside by the then Niab Tehsildar Slam Din Chowdary during the perusal of records and partal on 28.08.2006. In this connection the above said nabi Tehsildar has passed detailed order while setting aside the false entry in registry fard 561-A Cr.P.C. No.509/2017 Page 30 of 36 partal on 28.08.2006. The accused Rakesh Kumar Gupta, after obtaining loan fraudulently from citizen cooperative bank Branch Vinayak Bazar Jammu, in connivance with accused Yougal Kishore Mahajan the then Branch manager of the Bank and Rajinder Kumar the then Patwari Halqa Channi became the defaulter of the Bank to the tune of Rs. 73,00,000/= as on 29.06.2006. The above bank/public money has been misappropriated by the accused Rakesh Kumar Gupta, which has caused wrongful loss to the bank and wrongful gain to the accused. During the course of investigation it also transpired that the main accused also connived with two other accused namely Jugal Kishore S/o Kasturi Lal Gupta R/o Section 7, Channi Himmat Jammu a fried of the accused who were knowing well that the mortgaged property had already been disposed of by the accused Rakesh Kumar Gupta and still they stood as guarantors of the fraudulent mortgage deed. The Government has accorded sanction vide Govt. Order No. 26 GAD (Vig of 2011 dated 24.03.2011 in respect of accused Rajinder Kumar S/o Vilayati Ram R/o Village Chak Murar Tehsil Bishnah Jammu then then Patwari Channi Himmat. However there is no need to obtain Govt.
Sanction in respect of Yougal Kishore Mahajan the then Branch Manager Citizens cooperative Bank Vinakya Bazar Jammu as the said person has been dismissed by the Bank authorities. On the basis of the evidence oral, documentary, scientific as well as 561-A Cr.P.C. No.509/2017 Page 31 of 36 circumstantial brought on record during investigation offences U/s 420, 467, 471, 120-B RPC, have fully been established against the accused person namely (1) Rakesh Kumar Gupta S/o Late Kasturi lal Gupta R/o H. No. 71-72 Section 4, Channi Himmat Jammu.
Offences U/s 420, 467, 468, 471, 120-B/ RPC r/w 5 (2) P.C. Act have been established against accused persons namely (2) Yougal Kishore Mahajan S/o Puran Chand Mahajan R/o near Airtel Tower Patoli Mangotrian, Jammu ( the then Branch manager, Citizen Co-operative Bank, Vinayak Bazar, Jammu. (3) Rajinder Kumar s/o Vilayati Ram R/o Village Chack Murar, Tehsil Bishnah (the then Patwari Halqa Channi Himmat) and offences U/s 420, 120-B RPC have been established against the accused namely Jugal Kishore S/o Kasturi Lal Gupta R/o 103/4, Channi Himmat Jammu and Rattan Lal s/o Behari Lal R/o Devipur Tehsil Akhnoor, District Jammu. The above mentioned accused persons from 01 to 05 are presented before the Hon'ble court in custody.
Therefore through the medium of this Challan, it is prayed that the above mentioned accused persons may kindly be put to trial for the commission of above cited offences after appreciating the evidence annexed herewith".
18. On the face of the above what can be concluded is that the accused Rakesh Kumar Gupta, and others have been indicted by the authorities of the Crime Branch, Jammu in FIR No. 23/2008 for the commission of 561-A Cr.P.C. No.509/2017 Page 32 of 36 offence U/s 420, 467,468, 478, 120-B/ RPC read with section 5 (2) P.C. Act on the grounds, that Rakesh Kumar Gupta sold the two shops measuring 15.7'x30' each on the ground floor, two stair cases leading to upper floor and the basement raised on land bearing Khasra No. 131 Min. The police authorities after carrying a thorough investigation in the FIR No. 23/2008 and after obtaining the report of the FSL expert which confirmed the insertion in the revenue documents, have now turned a volte face to the earlier stand by directing another round of investigation in the case on the ground that the documents are fake and forged when the Police authorities already concluded in FIR No. 23 of 2008 that the complainant has already sold his property. It has been stated in the objections filed by the state that a full-fledged trial is going on against the complainant in FIR No. 23/2008 in the competent court of jurisdiction and the Police authorities have now turned around in projecting a different and a distinct argument based on the same set of facts on the strength of the FIR bearing No. 97/2017. The trial in the case will as a matter of course be truncated/aborted if FIR No. 97/2017 is allowed to stand which is not countenanced in law. The Police authorities cannot change colors like a Chameleon by stating in one case that the complainant in FIR No. 97/2017 has been cheated when on the plain reading of the Police report laid in terms of 173 CrPc in case bearing FIR No. 23 of 2008, they have returned a definite finding that the complainant has cheated the Bank by mortgaging the property which he had already sold and has secured to obtain a loan from the Bank for which he has been charged for the commission of the offences levelled against him.
19. The other aspect of the case which goes to the root of the case is that Shri. Rakesh Kumar Bargotra (Petitioner No.8) filed a civil suit for Permanent Prohibitory Injunction restraining the defendant, that is the 561-A Cr.P.C. No.509/2017 Page 33 of 36 complainant in the FIR, his agents and representatives from interfering into the peaceful possession of the plaintiff over a piece of land measuring 16 marlas comprising under Khasra No. 790 min, Khata No. 162 min and Khewat No. 4, situated at village Deeli, Jammu and a piece of land measuring 4 marlas comprising under Khasra No. 131 min, Khata No. 36 min and Khewat No. 1-min situated at Channi Kalama, Jammu, and the construction raised thereon. The suit was decreed in favour of the plaintiff and the decree-sheet reads as under:-
"A decree of Permanent Prohibitory Injunction restraining the defendant, his agents and representatives from interfering into the peaceful Possession of the plaintiff over a piece of land measuring 16 marlas comprising under Khasra No. 790 min, Khata No. 162 min and Khewat No.4, situated village Deeli, Jammu and piece of land measuring 4 marlas comprising under Khasra No. 131 min, Khata No. 36 min and Khewat No. 1 min, situated at Channi Kalama Jammu and the construction raised there on is passed in favour of the plaintiff and against the defendant. Since the defendant has been set ex-
parte".
20. On the strength of the decree aforesaid which pertains to the entire range of the land depicted in the FIR and the construction raised on it the registration of the FIR against the petitioners appears to be totally unwarranted, unjust and against the law for the elementary reason that the Civil Court has already decided and determined the rights of the parties vis-à-vis the said land. In Joseph Salavaraj Vs. State of Gujrat & Ors"
561-A Cr.P.C. No.509/2017 Page 34 of 36reported in 2011, "7SCC" 59, the Supreme Court has viewed that a purely civil dispute can be given a colour of a criminal offence to wreak the vengeance against the applicant and it is necessary to draw a distinction between a civil wrong and a criminal one and the applicant cannot be allowed to go through the rigmarole of a criminal prosecution for a long number of years, even when admittedly a civil suit has been filed.
21. In the instant case as is repeated and reiterated here a civil court has passed a decree of Permanent Injunction restraining the complainant from interfering into the possession of the petitioner No.9 vis-à-vis the land which forms the subject matter of the FIR and under such circumstances of the case, the FIR it appears has been devised as a subterfuge to wreak vengeance against the petitioners.
22. The law is that Section 561-A Cr.Pc envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give an effect to an order under the code (ii) to prevent abuse of process of Court and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have the inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. Courts are invested with all such powers as are necessary to do right and to undo a wrong in the course of administration of justice on the principle of Quando lex aliquid alique concedit concediture et id Sine quo res ipsa esse non protest (When the law gives the person anything, it gives him that without which it cannot exist).
23. Viewed in the context of all that has been said and done above, the petition of the petitioners merits to be allowed, as a consequence of which FIR 561-A Cr.P.C. No.509/2017 Page 35 of 36 No. 97/2017 registered by the respondent No.1, i.e., the State of Jammu and Kashmir through SHO, Police Station, Channi Himat, Jammu, for the commission of offences punishable under Section 120-B, 420, 467, 468 and 471 RPC is quashed including the proceedings being conducted in the aforesaid FIR as against the petitioners.
(M. K. Hanjura) Judge Jammu .02.2018 Surinder 561-A Cr.P.C. No.509/2017 Page 36 of 36