Gujarat High Court
Vineetkumar Vinaichand vs State Of Gujarat & on 6 August, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
VINEETKUMAR VINAICHAND NAWALKHAV/SSTATE OF GUJARAT R/CR.MA/13162/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 13162 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE K.M.THAKER Sd/- ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ VINEETKUMAR VINAICHAND NAWALKHA & 1....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR. BHADRISH S RAJU, ADVOCATE for the Applicant(s) No. 1 - 2 MR BN LIMBACHIA, ADVOCATE for the Respondent(s) No. 2 MR KP RAVAL APP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 06/08/2013 ORAL JUDGMENT
1. In present petition under section 482 of the Code the two petitioners, who are accused Nos. 1 and 2 in the complaint dated 5.3.2012 filed by present respondent No.2 and registered as M. Case No. 9 of 2012 at Gandhinagar Police Station have prayed, inter alia, that:-
8(a) To quashing and setting aside the impugned FIR at Annexure-A being M.Case No. 9 of 2012 registered with C.I.D. Crime Police Station, Gandhinagar Zone.
(b)......
(c).......
(d).......
2. The complainant has alleged offence under Section 409, 420, 467, 468, 47, 477(A), 506(2) and 120(B) of Indian Penal Code.
3. So far as the factual background relevant for considering and deciding present petition is concerned, it has emerged from the record and submissions by learned advocates for the petitioners and respondent No.2 that the petitioner No.1 and respondent No.2 (the complainant) got married in November 1986 and after their marriage the respondent No.2 was staying with her husband (i.e. petitioner No.1) and his family at Jaipur i.e. at her matrimonial house.
3.1 It has emerged from the record and submissions by learned advocates that the family of husband of the respondent No.2 i.e. family of the petitioners herein is engaged in business of running jewelry shop in name and style of V.H. Jewelers.
3.2 Sometime after the marriage the petitioner No.1 entered into partnership with respondent No.2 and one other member of the family.
3.3 It appears that somewhere in 2010 i.e. more than 24 years after their marriage some disputes and differences started between the petitioner No.1 and respondent No.2 i.e. husband and wife.
3.4 According to the petitioners allegation the respondent No.2 addressed a letter dated 10.2.2010 to the partners of the above mentioned partnership firm stating, inter alia, that she had shifted to her parental house at Ahmedabad and that any transfer / withdrawal from her capital account must not be made without her sanction or permission and if any transaction is made without her consent in writing the partners of the firm would be responsible and she also demanded copy of Partner's Capital Account as well as balance-sheet and copies of Tax returns for last five years.
3.5 Somewhere in March 2011 the respondent No.2 again addressed a letter to other partners of the firm allegedly informing that she desires to retire from the partnership firm w.e.f. 1.4.2011 and that therefore balance of capital and profit of partnership firm may be released in her favour and that she would not be responsible for any liability of the firm which arose on and from 1.4.2011.
3.6 Sometime thereafter i.e. in July 2011 the respondent No.2 filed complaint against petitioner Nos. 1 and 2 under Section 498-A and 114 of IPC.
3.7 The said complaint was filed in the Court at Ahmedabad wherein learned Metropolitan Magistrate passed order under Section 156(3) of Cr.P.C.
3.8 At this stage it would be appropriate to mention that according to the submission by learned advocate for the petitioners, the said complaint and proceedings came to be transferred to the Court at Jaipur on ground of want of jurisdiction with the Court of learned Magistrate at Ahmedabad and the proceedings are presently pending before the Court at Jaipur.
3.9 Subsequently, on 5.3.2012 the respondent No.2 filed the impugned complaint which came to be registered as M. Case No. 9 of 2012 which is challenged in present petition under Section 482 of the Code.
4. In the said complaint dated 5.3.2012 the respondent has alleged, inter alia, that by way of conspiracy the petitioners i.e. accused Nos. 1 and 2 have forged her tax returns which is filed with income tax department. It is also alleged that on the said tax return her signature is forged and a sum of Rs.72.5 Lacs has been siphoned away from her capital / balance with the firm wherein she was partner to the extent of 32.5% and subsequently the petitioners have created / forged record to show that the said amount has been given in gift by her to her son whereas in fact she has not given such gift to her son and it is the petitioner Nos. 1 and 2 who have forged such incorrect and fabricated entries in the accounts and also reflected said incorrect details in the tax return wherein her signature is forged.
5. Mr. S.V. Raju, learned Senior Counsel has appeared with Mr. B.S.Raju, learned advocate for the petitioners i.e. original accused Nos. 1 and 2 and Mr. Thakker, learned Senior Counsel has appeared with Mr. Limbachiya, learned advocate for the respondent No.2-complainant.
6. Mr. Raju, learned senior counsel for the petitioners submitted, inter alia, that the impugned complaint deserves to be quashed on ground of want of jurisdiction inasmuch as even according the complainant, the alleged offence is committed at Jaipur and the offence was allegedly committed when even the complainant was at Jaipur and that, therefore, the complaint or investigation and any subsequent proceedings would not be maintainable at Ahmedabad-Gandhinagar or in State of Gujarat. Mr. Raju, learned senior counsel for the petitioners further submitted that the complaint has been filed at Ahmedabad only with a view to harassing the petitioners and with ulterior and malafide intentions. He also claimed and contended that even if the allegations made in the complaint are taken at its face value, then also any ingredient of the alleged offence is not made out and therefore also the complaint deserves to be quashed. He further submitted that the impugned complaint amounts to abuse of process of law and that the allegations made in the complaint are ex-facie, improbable and unbelievable. He also submitted that from the fact that the beneficiary of the alleged transaction, i.e. the son in whose favour the amount is allegedly transferred/credited, is not impleaded as accused, establishes that the complaint has been filed only with a view to harassing accused Nos.1 and 2, i.e. present petitioners. Mr.Raju, learned senior counsel for the petitioners also submitted that the fact that any other tax return for the relevant assessment year is not filed, establishes that the return is not forged or fabricated, as alleged by the respondent. So as to support his submissions, Mr.Raju, learned senior counsel for the petitioners relied on the decision in the case of Madhavrao Jiwarjirao Scindia vs. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692] and the decision in the case of Bhajan Lal vs. State of Haryana [AIR 1982 SC 604].
7. Per contra, Mr. Thakker, learned senior counsel for the respondent complainant submitted that there is no justification to terminate the investigation at its threshold. He also submitted that even if the petitioners' submission with regard to territorial jurisdiction and place of commission of offence are entertained for sake of examining the said contention, then also this cannot be a ground to quash the complaint and terminate the investigation and if considered necessary and appropriate then the investigation may be transferred and on that ground, the order to quash the investigation would not be justified. Mr. Thakkar, learned Senior Counsel for the respondent also submitted that after present petitioners made available to the respondent the copies of the relevant documents (i.e. the documents / tax return allegedly signed by the respondent and allegedly filed by her before the Tax Authority) in the Court of learned Magistrate on the date when the matter was scheduled for hearing, handwriting expert's opinion i.e. opinion from FSL was called for and the FSL has opined that the signature on the tax return in question is not of the complainant respondent No.2.
7.1 Mr. Thakkar, learned Senior Counsel for the respondent complainant also alleged that the complainant is driven out from her matrimonial house after marriage of almost 23 years. He also claimed that the daughter born from the wedlock between the respondent and petitioner No.1 is staying with the respondent complainant whereas the son (in whose name the capital / profit from complainant's account with the firm is transferred allegedly by the complainant) is staying with petitioner No.1.
8. I have heard learned Counsel for the petitioners and respondent at length and I have also examined and taken into consideration the documents placed on record by the contesting parties.
9. Before proceeding further it is relevant and appropriate to mention that the complaint is filed on 5.3.2012 and present petition appears to have been filed on or around 7.9.2012 i.e. after six months. Therefore, upon considering the said aspect coupled with the span of six months in the interregnum the Court inquired about progress, if any, in the investigation.
9.1 On this count, the learned advocate for the respondent submitted that to the knowledge of the respondent investigation had commenced and some material was collected and as a part of investigation process the documents were forwarded to the Forensic Science Laboratory (FSL for short) and the FSL, Gandhinagar has opined that the signature on the disputed tax return is not of the respondent complainant.
9.2 When the said aspect is taken into account with reference to the issues which are involved in the present case, it appears that the investigation is still not concluded and relevant facts are still hazy and that therefore it would not be proper or justified for the Court to record any conclusion more so before the investigation is concluded and relevant material, statements, documents etc. are collected.
10. Actually, this Court, while considering a petition under Section 482 of the Code ought to refrain from expressing any prima facie decision or recording any conclusion. In this context reference is required to be made by the below mentioned decisions of the Hon'ble Apex Court:-
10.1 In the decision in the case of Dr.Monika Kumar and Anr. v. State of U.P. And Ors. [AIR 2008 SC 2781], the Honble Apex Court has observed that:
30.
We may reiterate and emphasise that the powers possessed by the High Court under Section 482 Cr.P.C. Are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its jurisdiction of quashing the proceeding at any stage. [See Janata Dal v.H.S. Chowdhury (1992) 4 SCC 305; Raghubir Saran Dr. v.State of Bihar 1964 (2) SCR 336; Kurukshetra University v. State of Haryana (1977) 4 SCC 451; and Zhandu Pharmaceuticals Works Limited and Others v.Mohd. Sharaful Haque and Another 2005 (1) SCC 122]. (emphasis supplied) 10.2 In this view of the matter, it is relevant to consider in present case that the investigation is still not over and relevant details and material are yet to be collected by I.O. Hence, it would not be proper and this Court is not inclined, to scuttle the investigation at this stage.
10.3 Besides this in view of the facts of the case and the material which is on record particularly the photocopy of the disputed tax return and the submissions based on FSL's report, it is not possible to hold and record that any case for investigation is not made out.
10.4 In this background when the entire set of allegations by the respondent- complainant and the case presented by the petitioners are considered conjointly, it emerges that the allegations made by the respondent and the case presented by the petitioners give rise to diverse issues e.g.
(a) whether the respondent complainant did herself actually and form time to time during financial year give alleged gift to the tune of Rs.72.5 lacs in favour of Mr.Vinit;
(b) Whether the signature of the respondent complainant in the said tax return (which contain the disputed remarks / notes about alleged transfer / gift) is made by her or said signature is forged;
and in absence of relevant details and material and evidence the said and other connected aspects / issues are unclear and hazy.
10.5 Therefore, also the Court is not inclined and convinced to scuttle the investigation at this stage and / or to reach and record any conclusion.
11. In this context it is relevant to note that the complainant has filed complaint against present petitioner Nos. 1 and 2 wherein she has alleged, inter alia, that she was partner to the extent of 32.5% in the partnership firm and at the time when she was driven out of her matrimonial house the amount pending to her credit / in her capital and profit account with the partnership firm, was to the extent of Rs.106.18 lacs.
11.1 The respondent has also claimed that subsequently when the tax-return came to be filed for subsequent financial year (which was filed on or around 13.10.2010 and wherein the forged signature of the complainant was put) a note was appended stating that during the financial year the complainant made gift of 72.5 lacs on different dates to Mr. Vinit i.e. son of petitioner No.1 and respondent No.2.
11.2 It is claimed by the complainant (i.e. present respondent) that she had never made such gift in favour of her son or any one and that she had not authorized anyone to make such gift to her son or anyone else and that she has not signed any tax return with such note / remarks however by forging her signature on the document, the offence is committed.
11.3 As mentioned earlier, Mr. Raju, learned Counsel for the petitioners has contended that the said complaint is filed only as an afterthought and only with a view to harassing the two petitioners Mr. Raju, learned Counsel for the petitioners heavily relied on the affidavit dated 31.8.2012 made by one Mr. Vinit i.e. son of petitioner No.1 and respondent complainant wherein the deponent has, inter alia, averred and asserted that:-
4.
I say that the true and correct facts are as follows:
(a) That the capital amount of Rs. 72.5 lakhs was transferred only within the books of the said partnership firm and there was no cash transaction at any point of time.
(b) That the said transfer was effected as a gift from my mother to me and with the full consent of my mother and of her own free will.
11.4 Hon'ble Apex Court has always observed that investigation ought not be scuttled at its threshold. It is true that if it appears to the Court that if the complaint and / or investigation, amounts to abuse of process of law or on plain reading of the allegation any ingredient of alleged offence is not made out against the complainant then the Court may interfere with the complaint however, before doing so the Court would be cautious and would take into account as to whether the material produced by the accused is such which would lead to the conclusion that his defence is based on sound, reasonable and indubitable facts and that the evidence cited by accused would dislodge the allegations and charge levelled against him /her. Hon'ble Apex Court has placed word of caution in a recent decision in case of Rajiv Thapar vs. Madanlal Kapoor (2013 [3] SCC 330) and observed that the exercise of power vested in the High Court under Section 482 of the Code would have far-reaching consequences as it would negate the prosecution / complainant's case without allowing the prosecution / complainant to lead evidence and that therefore the Court would invoke inherent jurisdiction with caution, care and circumspection. The Hon'ble Apex Court in the said decision in case of Rajiv Thapar (supra) observed, inter alia, that:-
29.
The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution s/complainant s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection.
To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.
11.5 When the said observations by Hon'ble Apex Court is taken into account and facts of present case are accordingly examined then it emerges that it is not possible for the Court at this stage to hold that the investigation should be stifled and terminated at its threshold / at this stage and before it is concluded.
The facts of the case also forbid, and do not permit, the Court to hold at this stage that any prima facie case against the accused justifying investigation is not made out.
12. Mr. K.P. Raval, learned APP, upon instruction informed the Court that the investigation officer has recorded certain statements of the complainant, complainant's parents and brother / sister, and has taken custody of certain documents and in respect of complainant's signature opinion from FSL is obtained however other samples of signatures of other persons are yet to be obtained and that the handwriting in some of the documents have been sent for examination however, further investigation could not be carried out in view of the the pendency of present petition and the order dated 10.9.2012. Mr. K.P. Raval, learned APP clarified that CID is investigating the case and investigation officer has yet to collect the relevant and connected documents and sample of signatures of accused Nos. 1 and 2 are also yet to be collected. He confirmed the submission by learned Senior Counsel for respondent with reference to FSL's opinion about petitioner's signature.
12.1 Thus, as mentioned hereinabove earlier, the details available before the Court at this stage are hazy and inadequate and sufficient details, material, documents etc. necessary to reach any conclusion are yet not available.
13. In view of the facts of the case and nature of the allegations, the issues
(i) as to whether alleged transfer of fund from the capital account and profit account of the firm took place with consent of and on instruction from the complainant or not; and,
(ii) whether the tax return said to have been filed for the financial year was filed by the complainant; and,
(iii) whether the signature on the said tax-return is of the complainant or not
(iv) or, whether complainant's signature on tax- return is forged arise in present case for which investigation is necessary and on such issues / aspects, any decision or any view cannot be expressed and recorded by the Court at this stage and without sufficient material and clarity about factual aspects it cannot be concluded that the alleged offence is not made out and the investigation cannot be terminated.
13.1 The affidavit said to have been made by Mr. Vinit (i.e. the son of petitioner No.1 and respondent No.2), being issue related to facts, is a matter of investigation and evidence, which can be examined and dealt with by learned trial Court.
13.2 In absence of proper and sufficient material it is not possible for the Court to record opinion at this stage that allegations are improbable and any offence is not made out more particularly because FSL, according to the learned APP and the respondent, has given opinion that the signature on the tax return is not of the complainant.
14. In present case, it appears that all facts related to the alleged gift and submission of tax return and about the disputed signature on the tax return and about the disputed remark / note (i.e. the remark / note that the amount to the tune of Rs.72.5 Lacs is allegedly given as gift by the complainant to her son) are required to be investigated.
14.1 Even if the material placed on record i.e. the material placed on record by the petitioners (who are shown as accused in FIR) are taken into consideration then also the fact remains that investigation as regards the diverse aspects involved the case (some of which are discussed hereinabove) are yet to be investigated, and the report of FSL, prima facie lends some support to the complainant's allegation.
14.2 Under the circumstances at this stage, it is not possible for the Court to hold that the allegations and the assertions contained in the FIR are ruled out and said material are sufficient to reject and overrule the factual assertions contained in the complaint and / or the allegations in the complaint are improbable.
15. In that view of the matter it is also not possible for the Court to prematurely terminate the investigation at nascent stage by quashing the complaint.
16. After having reached the conclusion that in view of the facts of the case there is not basis or justification to prematurely terminate the prosecution, the contention which remains to be addressed is about the objection on ground of territorial jurisdiction.
16.1 So far as the contention on ground of territorial jurisdiction is concerned this is not the stage (i.e. when the investigation is not completed and final report is not filed) where the Court would ordinarily enter into and examine the issue of territorial jurisdiction of investigation officer.
16.2 The said issue can be considered by the learned trial Court and / or it is also open to the investigation officer as statutory authority to take appropriate steps in accordance with provision of the code.
16.3 In this context it is appropriate to take into consideration below mentioned observations by Hon'ble Apex Court.
(a) In the decision in case between Rasiklal Dalpatram Thakkar vs. State of Gujarat (AIR 2010 SC 715), wherein Hon'ble Apex Court addressed the issue as to whether the police authority, pursuant to and with regard to order passed under Section 156(3) of the Cr. P.C., can unilaterally decide not to conduct investigation on ground that he has no territorial jurisdiction, Hon'ble Apex Court has observed that:-
18.
The principal question which emerges from the submissions made on behalf of the parties is whether in regard to an order passed under Section 156(3), Cr. P. C. the police authorities empowered under Sub-section (1) of Section 156 can unilaterally decide not to conduct an investigation on the ground that they had no territorial jurisdiction to do so.
22. In the instant case, the stage contemplated under Section 181(4), Cr. P. C. has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the learned Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3), Cr. P. C. and as it appears, a final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai.There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai. In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156, Cr. P. C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction.
A glance at the material before the Magistrate would indicate that the major part of the loan transaction had, in fact, taken place in the State of Gujarat and that having regard to the provisions of sub-section (2) of Section 156, Cr. P. C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation.
It was open to the learned Magistrate to direct an investigation under Section 156(3), Cr. P. C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter.
23. Having regard to the law in existence today, we are unable to accept Mr. Syed's submissions that the High Court had erred in upholding the order of the learned Trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat.We are also unable to accept the submission that it was for the Investigating Officer in the course of investigation to decide whether a particular Court had jurisdiction to entertain a complaint or not. It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3), Cr. P. C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so.
24. On the materials before him the learned Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. As mentioned hereinbefore, Section 181(4), Cr. P. C. deals with the Court's powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court.
(b) In the decision in case between Naresh Kavarchand Khatri vs. State of Gujarat (AIR 2008 SC 2180) Hon'ble Apex Court has observed that:-
5.....The power of the court to interfere with an investigation is limited. The police authorities, in terms of Section 156 of the Code of Criminal Procedure, exercise a statutory power. The Code of Criminal Procedure has conferred power on the statutory authorities to direct transfer of an investigation from one Police Station to another in the event it is found that they do not have any jurisdiction in the matter. The Court should not interfere in the matter at an initial stage in regard thereto. If it is found that the investigation has been conducted by an Investigating Officer who did not have any territorial jurisdiction in the matter, the same should be transferred by him to the police station having the requisite jurisdiction.
6.
It is of some significance that the High Court exercised its jurisdiction even without notice to the petitioner. The investigation has to be carried out on the basis of the allegations made. The first informant is required to be examined; statements of his witnesses were required to be taken; the accused were also required to be interrogated.
The undue haste with which the High Court has exercised its jurisdiction, in our opinion, should not be encouraged. Whether an officer incharge of a police station has the requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Sections 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, investigation can be conducted by the concerned officer in-charge of the police station which has jurisdiction to investigate in relation thereto. Sub-section (4) of Section 181 of the Code of Criminal Procedure Code would also be relevant therefor.
We need not dilate more on analyses of the aforementioned provisions as the said question has been gone into by this Court on more than one occasion.
(c) In the decision in case between Satvinder Kaur vs. State of Gujarat (1999 [8] SCC 728 / AIR 1999 SC 3596) Hon'ble Apex Court has observed that:-
8.
In our view, the submission made by the learned counsel for the appellant requires to be accepted. The limited question is whether the High Court was justified in quashing the FIR on the ground that Delhi Police Station did not have territorial jurisdiction to investigate the offence. From the discussion made by the learned Judge, it appears that learned Judge has considered the provisions applicable for criminal trial. The High Court arrived at the conclusion by appreciating the allegations made by the parties that the S.H.O., Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction to entertain and investigate the F.I.R. lodged by the appellant because the alleged dowry items were entrusted to the respondent at Patiala and that the alleged cause of action for the offence punishable under S. 498-A, I.P.C. arose at Patiala. In our view, the findings given by the High Court are, on the face of it, illegal and erroneous because :-(1)............
(2)............
(3)............
9. This would be clear from the following discussion. Section 156 of the Criminal Procedure Code empowers the Police Officer to investigate any cognizable offence. It reads as under :-
"156.
.......
10. It is true that territorial jurisdiction also is prescribed under sub-section (1) to the extent that the officer can investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, sub-section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Ss. 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, forward the accused under custody to a Magistrate, empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.
11.Chapter XIII of the Code provides for "Jurisdiction of the Criminal Courts in inquiries and trials." It is to be stated that under the said chapter there are various provisions which empower the Court for inquiry or trial of a criminal case and that there is no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be investigated, inquired or tried.This would be clear by referring to Ss. 177 to 188. For our purpose, it would be suffice to refer only to Ss. 177 and 178 which are as under :-
"177.
..........
178. ...........
12. A reading of the aforesaid sections would make it clear that S. 177 provides for "ordinary" place of inquiry or trial. Section 178 inter alia provides for place of inquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in other and where it consisted of several acts done in different local areas, it could be inquired into or tried by a Court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that S.H.O. does not have territorial jurisdiction to investigate the crime.
13..........
14. Further, the legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the F.I.R., prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.
It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under S. 482, Cr. P.C. to quash a FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se, it has no jurisdiction to examine the correctness or otherwise of the allegations.
Hence, in the present case, the High Court committed grave error in accepting the contention of the respondent that Investigating Officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of police station at Delhi. The appreciation of the evidence is the function of the Courts when seized of the matter. At the stage of investigation, the material collected by an Investigating Officer cannot be judicially scrutinized for arriving at a conclusion that police station officer of particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of S. 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be inquired into or tried by a Court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that S.H.O., Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, S. 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of respondent No. 2 on the ground of want of territorial jurisdiction. (emphasis supplied) In this decision Hon'ble Apex Court addressed the issues whether the High Court was justified in quashing the FIR on the ground that Delhi Police did not have territorial jurisdiction to investigate offence. After considering the relevant provisions Hon'ble Apex Court observed that:-
if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.
The Hon'ble Apex Court further observed that:-
If the F.I.R., prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.
With the said observations Hon'ble Apex Court observed that:-
the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction...
(d) In the decision in case between Navinchandra N. Majithia vs, State of Maharashtra (AIR 2000 SC 2966) Hon'ble Apex Court has referred to the decision in case of Satvinder (supra)and observed that:-
41.
In the case of Satvinder Kaur v. State (Govt. of NCT of Delhi) (1999 ) 8 SCC 728 : (1999 AIR SCW 3607 : AIR 1999 SC 3596 : 1999 Cri LJ 4566) the question of quashing of FIR on the ground of lack of territorial jurisdiction of the police to investigate the offence came up for consideration. Construing the provision of Sections 154, 162, 177 and 178 of the Criminal Procedure Code this Court held that if Investigating Officer finds that the crime was not committed within his territorial jurisdiction he can forward the FIR to the police station concerned, but this would not mean that in a case which requires investigation the Police Officer can refuse to record the FIR and/or investigate it. Disapproving the order of the Delhi High Court quashing the FIR at the investigation stage on the ground of lack of territorial jurisdiction this Court observed (Para 14 of AIR SCW, AIR and Cri LJ) :
"Further, the legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482, Cr.P.C. to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations." (emphasis supplied) 16.4 Below mentioned points can be deduced from the decisions by the Apex Court and the provisions under the Code that:-
(a) having regard to the provisions of sub-section (2) of Section 156, Cr. P. C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. (see para 22 AIR 2010 SC 175)
(b) The Code of Criminal Procedure has conferred power on the statutory authorities to direct transfer of an investigation from one Police Station to another in the event it is found that they do not have any jurisdiction in the matter. The Court should not interfere in the matter at an initial stage in regard thereto. (see para 5 AIR 2008 SC 2180)
(c) If the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed.
(please see para 10 in 1999 (8) SCC 728)
(d) If the F.I.R., prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. (para 14 1999 (8) SCC 728)
(e) At the stage of investigation, it cannot be held that the investigating officer does not have territorial jurisdiction to investigate the crime (para 12 1999 [8] SCC 728)
(f) At the stage of investigation, the material collected by an Investigating Officer cannot be judicially scrutinized for arriving at a conclusion that police station officer of particular police station would not have territorial jurisdiction. (para 15 1999 [8] SCC 728)
17. Upon considering the facts of present case and applying the above quoted observations by the Hon'ble Apex Court to the facts of present case, this Court is not inclined to entertain petitioners' objection against the investigation on ground of alleged lack of territorial jurisdiction.
17.1 This Court has already recorded, in present order, that for other reasons recorded in this order the Court is not inclined to hold, at this stage, that any offence is not made out the Court is not inclined to quash the investigation and the complaint. The said observation left behind the observation against investigation on ground of limitation and for the above mentioned reasons and in light of the observations by the Hon'ble Apex Court the Court is not inclined to entertain petitioners' said objection as well.
17.2 In light of the above quoted observations by Hon'ble Apex Court and in light of the facts of this case, this court is of the view that only in view of the objections on ground of territorial jurisdiction, the compliant cannot be quashed in exercise of powers under Section 482 of the Code.
18. The Court is also of the view that merely because the complainant has filed complaint in Ahmedabad, it does not automatically and as a corollary establish that the complainant has filed complaint in Ahmedabad only with a view to harassing the petitioners and / or to abuse process of law.
18.1 The investigation authority or the learned Court, on this count, can take necessary steps in accordance with the provisions of the Code.
18.2 Moreover, in view of the allegation about forged signature and fabricated document (the tax-return) and disputed transaction in garb of gift which warrant and justify complete investigation, it cannot be said, at this stage that the complainant is abuse of process of law and in light of the facts of the case the Court would not be justified in recording conclusion at this stage that the complaint amounts to abuse of process of law.
19. On the other hand, if the investigation officer finds that there is no material to support the allegation in the complaint or that there is no substance in the allegation then the investigation officer would file appropriate summary.
20. As observed by Hon'ble Apex Court, action of quashing the complaint at its threshold i.e. even before investigation is concluded, would negate the complainant's case without allowing the investigation officer to even collect necessary and relevant material to form any opinion and reach any conclusion and such decision would have far reaching consequences and therefore Court would take such decision with caution, care and circumspection and would be slow in quashing the complaint at its threshold.
20.1 Having regard to the facts of the case and the fact that investigation is not completed and the investigation officer has yet to collect necessary and relevant material / document and has yet to record statements of the concerned persons / witnesses and for the foregoing reasons the Court is of the view that the petition does not deserve to be entertained at this stage and the complaint does not deserve to be quashed at its threshold.
21. In the result and for the foregoing reasons the petition is not entertained and it is disposed of accordingly. Rule is discharged. Interim relief, if any, stands vacated forthwith.
Sd/-
(K.M.THAKER, J.) Suresh* 26