Rajasthan High Court - Jaipur
Pranay Vijay vs State Of Rajasthan on 31 January, 2020
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ Petition No. 671/2018
Pranay Vijay S/o Shri Ramesh Kumar Vijay B/c Mahajan, Aged
About 45 Years, R/o House No. 270, Vishwakarma Nagar, Kota,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through P.p.
2. The Director General Of Police Rajasthan, Jaipur
3. Dhirendra Srivastava S/o Shri Ram Kumar Srivastava B/c
Kayasth, R/o House No. E-42, Srinathpuram, Rk Pura,
Kota, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Rohan, Jain, Adv.
For Respondent(s) : Mr. Ramesh Chaudhary, PP
Mr. Madhav Mitra, Adv. for
complainant.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order
Reserved on 27/01/2020
Pronounced on 31/01/2020
1. By way of this criminal writ petition, petitioner prays for quashing of the criminal proceedings arising out of FIR No.191/2017, registered with Police Station, Mahaveer Nagar, Kota City, Kota against the petitioner for the offence under Section 420, 467, 468, 471, 120B and 201 IPC.
2. It has been averred on behalf of the petitioner that the impugned FIR and criminal proceedings initiated thereto are counter blast of the complaint filed by the petitioner under the (Downloaded on 03/02/2020 at 09:10:42 PM) (2 of 7) [CRLW-671/2018] provisions of Section 138 of the Negotiable Instruments Act (for short 'NI Act'). The respondent No.3-complainant lodged the impugned FIR No.191/2017 wherein he alleged that two plots were sold to the complainant through agreement to sell which were shown for sale by the petitioner bearing Plot No.139B and 140B at Vishwakarma Nagar, Kota for a sum of Rs.40 Lac. It was also offered by the accused-petitioner to the complainant that a sum of Rs.12 to 13 Lac would be spent in making construction on the said plots and he, therefore, handed over cheques of the sum of Rs.12,51,000/- and Rs.3,35,000/- to the petitioner-Pranay Vijay wherein dates were mentioned and a third cheque was also given without date to the petitioner-Pranay Vijay for the purpose of construction apart from the amount of Rs.40 Lac which were paid earlier by cheques. It was stated in the FIR that the actual owner of the plot was one Khadib Hussain in whose favour the sale deed was executed by the Urban Improvement Trust, Kota. It is stated that instead of registering the plots in name of the complainant, the said plots were registered in name of petitioner-Pranay Vijay himself later on by the registered sale deed on 20/02/2017 in- stead of the complainant and the sale agreement, which was lying with the accused-petitioner-Pranay Vijay was destroyed.
3. Learned counsel for the petitioner submitted that the impugned FIR had been lodged only because the petitioner had given a notice on 12/04/2017 under Section 138 of NI Act upon dishonouring of the cheque of Rs.12,51,000/- for which he filed a complaint before the Special Judge, NI Cases, Kota on 11/05/2017 and notices were issued in the said case. The petitioner has also stated that he is sole owner of the plots and the complainant had sold the plots to the petitioner and the petitioner started (Downloaded on 03/02/2020 at 09:10:42 PM) (3 of 7) [CRLW-671/2018] construction on the plot by executing an agreement with one contractor to which the complainant had signed as a witness and if otherwise also, it was a case of civil nature relating to civil dispute and the criminal proceedings initiated against the petitioner ought not be continued. He therefore prayed for quashing of FIR.
4. It has been pointed out on behalf of the respondents No.1 & 2 in reply that the investigation was conducted in the FIR and four times, the investigation was transferred at the request of the petitioner and each time, it has been found that the petitioner has committed forgery and the contents of the FIR have been found to be correct. It has been further stated that the notices under Section 191 Cr.P.C. were issued to the petitioner but he did not produce any document.
5. As regards the complainant, learned counsel on his behalf has submitted that the petitioner has prepared forged documents of agreement where signatures of the complainant are forged. Not only this, against the petitioner there are as many as four different FIRs under Section 420, 306 IPC, bearing FIR Nos. 38/2013, 790/2013, 49/2015 and 50/2015 lodged by other persons with whom the petitioner is staid to have committed cheating and forgery. Copies of the FIRs were passed over to this Court during the course of hearing. In all these cases, the petitioner has taken the same stand of the amount received by him through cheque being a civil dispute while in one of the FIR bearing No.790/2013, final report has been given against which protest petition has been filed and in other cases, the investigation is going on at various Police Stations at Kota. Thus, learned counsel for complainant submits that keeping in view conduct of the petitioner, the proceedings need not be interfered with. (Downloaded on 03/02/2020 at 09:10:42 PM)
(4 of 7) [CRLW-671/2018] Learned counsel for the complainant further submitted that in view of the judgment rendered by the Apex Court in Vijayander Kumar & Ors. Vs. State of Rajasthan & Anr.: 2014 Cr.L.R. (SC) 286 availability of civil remedy cannot be a ground to quash criminal proceedings.
6. Per-contra, learned counsel for the petitioner has relied on Eicher Tractor Limited & Ors. Vs. Harihar Singh: (2008) 16 SCC 763 to submit that if criminal proceedings have been initiated as counter blast to the proceedings initiated by the person under Section 138 NI Act, the case would fall under category (7) of Bhajan Lal's Case [1992 Suppl (1) SCC 335] and the proceedings are liable to be quashed. He also relied on the judgment of Apex Court in Sunil Kumar Vs. Escorts Yamaha Motors Ltd & Ors.:
(1999) 8 SCC 468 to submit that if an FIR has been lodged to preempt the filing of complainant, then the proceedings ought to be quashed. He also relied on the judgment in Mahendra & Mahendra Financial Services Limited & Anr.: (2009) 1 SCC 706 in support of his contention that the entire proceedings are counter blast of the proceedings under Section 138 of NI Act.
7. Heard learned counsel for the parties at length.
8. From the facts which have come on record, it is apparent that the allegations against the petitioner are of having done cheating with the complainant. It has also come out that the complainant had, in-fact, purchased the plot by making payment of a sum of Rs.40 Lac through various cheques and the petitioner is a property dealer. After having received a sum of Rs.40 Lac, the agreement to sale was destroyed by the petitioner and the cheque amount given to him for the purpose of construction of building on the plot was submitted for encashment. The counsel for the (Downloaded on 03/02/2020 at 09:10:42 PM) (5 of 7) [CRLW-671/2018] petitioner has not been able to explain the reasons for giving cheques of Rs.13 Lac to him if the plot was purchased by the petitioner. This Court also notices that the petitioner has not come out as to how he became owner of the plot and how the registered sale deed was executed in his own name. All these matters required to be examined by the Police and from the status report submitted by the Public Prosecutor, prima-facie, the Police has found that the concerned petitioner is not cooperating and has not produced any record and the investigation is required to be conducted and even the report is to be received from the FSL. The status report mentioned about the enquiry which was conducted before this Court has passed the interim order restraining coercion action against the petitioner.
9. So far as the law in relation to the interference by this Court under Section 482 Cr.P.C. is concerned, this Court finds that the judgments, which have been cited by learned counsel for the petitioner, are on their own facts. In criminal cases, while the law has been settled by the Supreme Court in the case of Bhajan Lal (supra), which laid down several different aspects which can be looked into for the purpose of quashing of FIR and criminal proceedings, the said aspects will have to be examined with reference to the facts of the facts.
10. In the present case, this Court is not satisfied that the present FIR is a counter blast to the proceedings initiated by the petitioner under Section 138 of NI Act. On the other hand, this Court finds that the cheques, which were submitted for encashment, in liew of making construction for the petitioner on the property which he had purchased, could not have been encashed as the case of the petitioner before this Court is that he (Downloaded on 03/02/2020 at 09:10:42 PM) (6 of 7) [CRLW-671/2018] is owner of the property which he has purchased by registered sale deed from the original owner Khadib Hussain and therefore, there was no occasion for the petitioner for encashment of such a cheque given to him by complainant for the purpose of construction of the plot. It appears that the entire proceedings taken up by the petitioner under Section 138 of NI Act, were only to save himself from the impending action which the complainant would take against him. In such circumstances, the law laid down by the Apex Court with regard to counter blast of the proceedings would not have any application to the present facts. This Court also finds that there is no civil remedy available with the complainant as against the petitioner who has destroyed the agreement to sale. However, presumption regarding oral agreement can also be drawn by the investigating agencies through encashment of the cheques of Rs.40 Lac as mentioned in the FIR. In the present case, therefore, this Court is satisfied that the criminal proceedings must go on and reach to its logical end. The judgments cited at bar would thus be of no help to the petitioner as they are found to be based on different facts altogether.
11. This is a writ petition filed by the petitioner. The scope of Article 226 & 227 of the Constitution in criminal proceedings is very limited. Unless this Court reaches to a conclusion that a fundamental right of the petitioner is being violated on account of initiation of the criminal proceedings, in the opinion of this Court, the writ proceedings would not lie.
12. As noticed above, this Court holds that no interference in the proceedings initiated against the petitioner is warranted. The writ petition is wholly frivolous and without basis. (Downloaded on 03/02/2020 at 09:10:42 PM)
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13. Consequently, the instant writ petition is dismissed. All pending applications including stay application also stand dismissed.
(SANJEEV PRAKASH SHARMA),J Raghu/ (Downloaded on 03/02/2020 at 09:10:42 PM) Powered by TCPDF (www.tcpdf.org)