Allahabad High Court
Akshay Jain And 2 Others vs State Of U.P. And 2 Others on 12 October, 2020
Bench: Pankaj Naqvi, Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 8284 of 2020 Petitioner :- Akshay Jain And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Priyanka Sharma,Avnish Kumar Srivastava Counsel for Respondent :- G.A. and 2. Case :- CRIMINAL MISC. WRIT PETITION No. - 8285 of 2020 Petitioner :- Akshay Jain And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Priyanka Sharma,Avnish Kumar Srivastava Counsel for Respondent :- G.A.,Ashish Kumar Singh and 3. Case :- CRIMINAL MISC. WRIT PETITION No. - 8286 of 2020 Petitioner :- Akshay Jain And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Priyanka Sharma,Avnish Kumar Srivastava Counsel for Respondent :- G.A. and 4. Case :- CRIMINAL MISC. WRIT PETITION No. - 8287 of 2020 Petitioner :- Akshay Jain And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Priyanka Sharma,Avnish Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Pankaj Naqvi,J.
Hon'ble Vivek Agarwal,J.
1. Head Shri Avnish Kumar Srivastava, learned counsel for petitioners, learned A.G.A and Shri Ashish Kumar, learned counsel for respondents.
2. Petitioners who claim themselves to be businessmen and builders are challenging the registration and investigation in Case Crime Nos.467, 466, 459, 457 of 2019 under Sections 406, 420, 467, 468, 471, 120B, Police Station Sihani Gate, District Ghaziabad.
3. Petitioners are seeking quashment of the F.I.Rs on the ground that F.I.Rs have been lodged mala fidely and falsely against the petitioners. The concerned police is trying to arrest them without making any enquiry or investigation, which is violation of Article 21 of the Constitution of India.
4. Shri Avnish Kumar Srivastava learned counsel for petitioners vehemently argues that petitioners have been granted moratorium up till 31.12.2020 by the Real Estate Regulatory Authority of U.P. (RERA) and therefore, there is no justification in lodging F.I.R. against the petitioners.
5. Shri Ashish Kumar learned counsel for respondents on the other hand submits that petitioner have not enclosed copy of any order from the RERA and in any case it is evident from builder buyer agreement that builder was obliged to make payment of loan instalments in the bank till the handing over of the possession of the flat in question. It is also submitted that complainants are those who have booked the flats in the housing complex developed by M/s Idea Builders Pvt. Ltd., in the name of 'Red Apple Residency' at Khasra no.998, Raj Nagar Extension, National Highway-58, Ghaziabad (U.P.). It is submitted that as per the agreement construction was to commence in the year 2013 and flats were to be handed over by the year 2016.
6. M/s. Idea Builders Pvt. Ltd., of which petitioners are Directors/Business Associates have not made any progress. It is submitted that in the agreement itself it is mentioned that a ''Red Apple Residency' is an escalation free project. Similarly it is also mentioned that possession of the unit will be given within 30 months from the date of agreement. For this purpose informants had obtained loan which has been substantially withdrawn by the builder and yet no progress has been made till date.
7. They are forced to pay interest and instalments which were actually required to be paid by the builder and many of the accounts have been declared as NPA by the financial institutions.
8. Learned counsel for the petitioners in his turn rebutting the submissions made by counsel for informants submits that because of demonetization in 2014 their building activities have been substantially impacted and they have completed one of the towers out of three towers to be constructed to the extent of 70% and they are duty bound to handover possession by 31.12.2020.
9. When we asked learned counsel for petitioners to show from documents on record the progress of the project after the so called order of RERA and what is the extent of work which is yet to be completed to put informants in possession, learned counsel for petitioners is not in position to substantiate any of his submissions through cogent material on record.
10. We also offered learned counsel for petitioners to deposit the default instalments as per the terms and conditions of the agreement so to bring the informants out of the clutches of NPA (Non Performing Assets) seriously causing dent to their credit rating which will have over all impact on their credibility, but this offer too has been rejected on the ground that he has been asked by the RERA authorities to deposit some amount before the said authority and therefore, they are not in a position to even fulfill the requirement of bringing out the informant/complainant/ consumers out of the clutches of their loans being declared as NPA.
11. Learned counsel for petitioner has though placed reliance on the decision of coordinate Benches in case of Vijyant Jain vs. State of U.P. passed on 30.09.2020 in Criminal Misc. Bail Application No.22172 of 2020 wherein benefit of bail has been extended in favour of one Shri Vijyant Jain. Learned counsel has also placed reliance on interim orders passed by coordinate Benches extending them benefit of Section 173(2) Cr.P.C., protection.
12. As far as petitioners' contention for quashing of F.I.R. is concerned, law is well settled and the Supreme Court in exercise of its civil original jurisdiction in the matter of Bikram Chatterjee and others vs. Union of India and others in Writ Petition (c) No.940 of 2017 and other connected matters, MANU/SC/0947/ 2019 held that charge of the money paid by the home buyers must be treated as the highest priority. It also held that "the public trust doctrine enshrined under Article 21 of the Constitution of India is very much applicable upon the authorities and a duty is cast upon them to act fairly and reasonably in order to promote public good and public interest."
13. Supreme Court further noted that the authorities were bound to ensure that Builders act in accordance with the objective behind the acquisition of land and the conditions on which allotment has been made. It also held "that in the light of the present circumstances the principle "fraud vitiates" is clearly attracted and it is the duty of Court to act as parens patria not only to save home buyers but also to ensure that they are not cheated".
14. In case of Pioneer Urban Land Infrastructure Ltd., vs. Govindan Raghavan and others, AIR 2019 SC 1779, referring the judgment of Supreme Court in the case of Bangalore Development Authority vs. Syndicate Bank, it is held that when possession of allotted plot/flat/ house is not delivered within specified time, allottee is entitled to refund of amount paid, with reasonable rate of interest thereon from the date of payment till delivery date or refund.
15. Supreme Court in case of Nirmal Singh Kahlon vs. State of Punjab and others as reported in (2009) 1 SCC 441 held that "fairness of the investigation is meant not only for the accused but even for the victim". In paragraph 28 of the report the Supreme Court expounded :-
"28. An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation."
16. Further Supreme Court in case of Devendra Pal Singh Vs. State of NCT of Delhi and another, (2002) 5 SCC 234 has observed as follows :-
"Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law."
17. It has also quoted with approval as under :-
"Viscount Simon in Stirland v. Director of Public Prosecutor, 1944 (2) All. ER 13 has held as follows :
A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties."
18. It will not be out of place to mention that even a coordinate Bench of this Court in Criminal Misc. Writ Petition No.3508 of 2020, vide its order dated 06.03.2020 has refused to interfere in the exercise of its writ jurisdiction and has observed that the allegations made in the F.I.R. discloses commission of cognizable offences, the prayer of the petitioner to quash the F.I.R. cannot be accepted.
19. In view of the aforesaid facts and circumstances, and in the light of the law laid down in case of State of Haryana & others vs. Bhajan Lal & others, as reported in 1992 Supp (1) SCC 335, certain categories of cases by way of illustration have been mentioned in para 102, where extraordinary power under Article 226 can be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, they are reproduced as under :-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 noncognizable offence, no investigation is permitted by a police officer without an 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 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."
20. None of the above conditions are fulfilled. Court is duty bound to balance the rights of the accused vis-a-vis, victims.
21. Thus we hold that this petition is devoid of merits and deserves to be dismissed and is accordingly dismissed.
Order Date :- 12.10.2020 VS