Harbir Singh vs State (Delhi Administration) And ...
1994 Latest Caselaw 81 Del

JUDGMENT

Jaspal Singh, J.

(1) The petition is for the quashing of the First Information Report bearing No.2598 dated January 2, 1992 relating to offences under sections 405, 409 and 420 of the Indian Penal Code registered at Rajinder Nagar Police Station., New Delhi.

(2) Before I proceed to deal with the matter I may mention that the investigation is still in progress and that no challan has so far been put in. It may also be mentioned that during arguments the First Information Report was sought to be quashed only on the ground that the dispute was of civil nature.

(3) Before I come into grip with the arguments advanced, it would be profitable to reproduce the First Information Report itself as it holds the key to the entire matter. "FIRST Information Report (2598) (First Information of a cognizable Crime reports under section 154 Cr.P.C.) Police Station - Rajinder Nagar District Central Dated 2-1-1992 at 2.40 P.M. U/S 409/420 I.P.C. 161, New Rajinder Nagar New Delhi. The S.H.O.,P.S. Rajinder Nagar, New Delhi, Sub- Registration of a case u/s 405,409, against Harbir Singh s/o Iqbal Singh c/o 357, St. No.4, New Suraj Nagri Abohar, Distt. Ferozepur (Ph.). Sir, I Kiran Mehra d/u S.Om Parkash Mehra r/o 161, New Rajinder Nagar, New Delhi and as a duly confirmed attorney of my brother S./ Vijay Mehra Presently at Port Blair state as under:- (1) That both my brother and myself are 1 /4 share holders each of land measuring 187 K 17M in Khewat No. 88 Khatauni No.s 180 and 181 and 2 marlas under Khewat No. _____situated in V.Pakki Tibbi', Teh. Mukthsar, Distt. Faridkot (Pb) and that in Nov. 1988 Harbir Singh s/o Iqbal Singh visited me at any residence and introduced himself as an agriculturist/ landowner in the vicinity of my immovable property and said he had a customer and whether I and my brother were interested in selling our aforesaid property. 2) That at that time discussions were held between Harbir Singh and myself and during the discussions he revealed that he had been instrumental in helping some of my relatives to sell land in the same village Pakki Tibbi and the antecedents of Harbir Singh appeared to be clean. 3) That during the discussions I informed him that since I was residing in Delhi it had become difficult for me to manage my property and that both I and my brother Vijay Kumar who had expressed his desire to me to sell his share were interested to sell our share of the property. 4) That I informed Harbir Singh that before any discussions I would like to consult my brother and requested Harbir Singh to visit me in February 1989 when my brother would be visiting Delhi for a few days. 5) That I informed my brother and Harbir S'ngh again visited me when my brother who had been from Port Blair was also present. 6) That Harbir Singh repeated his earlier representations which were made to me on an earlier occasion in the presence of my brother. 7. That Harbir Singh also repeated his earlier representations that he had several persons would be willing to buy my share and my brothers share and induced my brother and me to believe that since and also that it would he difficult to sell and do any registry it would he both expedient as well as in our interest to appoint Harbir Singh as our General Attorney, his intentions at that time appeared to he bonafide. That Harbir Singh further induced us to believe that he would get a photo copy of Attorneys when executing for the purpose of Assessing any corrections before any preliminary negotiations which would be required to be done and that the original power of attorneys of my brother and me, till such time and final deal would be final and concluded with our assent and then when the occasion would so arise the original power of attorneys would be handed over to Harbir Singh for effectuating the requisite acts to conclude any proposed transaction of sale and was further agreed that on the conclusion of any sale transactions the entire sale considerations received by Harbir Singh for my and my brothers behalf would immediately be remitted by him to us at Delhi. 9. That since my brother had immediately returned to Port Blair, Harbir Singh was informed that a General power of Attorney would be executed by him .... .original at Port Blair and it was in view of these comments held out by Harbir Singh that both me and my brother were led to execute power of attorneys in his favor on 13th January, 1989. A photocopy of the power of attorney executed by my brother was sent to me and the original was kept by him and is still in his possession until date. In view of the said assurances and representations made to me and my brother by Harbir Singh that in .... ..inducing me to give him the photocopies of our respective G.P.A. whilst the originals were not given by us and are still in our possession. 10. That thereafter Harbir Singh visited me at Delhi on a number of occasions representing that he had offers for sale from some outstanding purchasers. However on each occasion the offer by him was not acceptable to me and my brother and also that Harbir Singh may attract me he had made all attractive offers till July, 1991. 11. I was shocked and surprised when one Singh visited me at my residence and informed me that Harbir Singh had sold both my brother's and my share in the said land on the basis of a G.P.A. to Smt. Guro w/o Dhian Singh r/o V.Pakki Tibbi, Muktsar (Pb.) vide sale deeds dated 21st March, 1989 for a sum of Rs.l,46,875.00 for each share. It becomes necessary to mention that G.A. was cancelled by me on 3.3.1989 and by. my brother on 28.7.1989. The said Harbir Singh has thus cheated my brother and myself and had thus committed breach of trust which we had refused in him in good faith. On receiving the above-said information from the said Dhian Singh, I immediately informed him that the said act by Harbir Singh was totally behind our back and by keeping us in the dark and the said acts were done without my brothers or my consent and tantamounts to fraud and cheating. 12. I also informed Dhian Singh that the acts were illegal malafide and fraudulent and that he should not treat the said sale as bonafide or genuine. That on acquiring the information from Dhian Singh I immediately tried my best and made several attempts to contact Harbir Singh however he avoided every attempt of mine. Having failed to trace him I was constrained to serve Harbir Singh with a legal notice. Despite the notice in view of the fact that Harbir Singh did not restitute the sale deeds nor he got the said sale deeds cancelled I lodged a police report in October, 1991. 13. That recently I visited V. Pakki Tibbi and enquiries made by me at various levels have revealed that Harbir Singh had by fraudulently misrepresenting himself and holding himself to be both my brother's and my G.A. he had executed documents in favor of Guro w/o Dhian Singh in March, 1989. I also understand that Harbir Singh in fact sold the land for a larger sale consideration than what was revealed by Dhian Singh in July, 1991. 14. That it is evident from the aforementioned conduct of Harbir Singh that all assurances and representations made to me and my brother were with ulterior motive which was throughout actuated by dishonest intentions aimed to cause wrongful loss to me and my brother by Harbir Singh by alluring and inducing both my brother and me in believing his assurances and representations had originally enriched himself to the desirement of my brother and me. The photo-copies of the G.P.A. were taken by Harbir Singh for a specific purpose and by misusing the same Harbir Singh has defined and has breached and fiduciary entrustment reposed in him and has thus cheated my brother and me and Harbir Singh has also illegally, fraudulently and dishonestly misappropriated the sum of money as stated above from Dhian Singh and/or Gura. 15. I also served him a legal notice by Regd. Post M.P.C. dt. 17.8.1991 through many advocate calling upon Harbir Singh to remit my brother's and my share w.e.f. 21.3.1989 till realisation at 18% within 10 days of receipt of the said notice but still he has failed to pay the said amount on expiry of notice period hence this complaint, in the light of above said facts. I, therefore request your good self to register a case under sections 405, 409,420 Indian Penal Code . against Harbir Singh since he is liable to be prosecuted for having committed aforesaid offences of breach of trust, cheating, misrepresentation and that since the inducement was given at Delhi as well as the fact that the photocopies of G.A. were taken by Harbir Singh from me at Delhi and I also that the sale consideration were handed over at Delhi the Delhi courts have jurisdiction to hear the present complaint is accordingly being, submitted and I will be grateful if Your goodself taken appropriate action. sd/- Sumeeta ASI/D.O. dt.22.1.1992"

(4) It was contended by the learned counsel for the petitioner that the petitioner had entered into the agreement of sale with the knowledge and active consent of the complainant Kiran Mehra and her brother Vijay Mehra and that they had even accepted the advance money amounting to Rs. 1,92,000.00 and in this respect my attention was drawn to a receipt alleged to have been executed by Kiran Mehra. It was further argued that a civil suit with regard to the sale transaction was still pending disposal and that the complaint resulting in the registration of the case had been lodged by Kiran Mehra only with a view to pressurise the petitioner and to extract more gain and that the facts as disclosed in the First Information Report constitute not a criminal offence but only a civil wrong at the most.

(5) Can I, at this stage, take into consideration the documents referred to by the learned counsel for the petitioner which are neither accompanying the First Information Report nor forming part of the investigation conducted so far? To my mind this would not be permissible. Though the learned counsel wants me to treat these documents as evidence and thereby to convert myself into a trial court and pronounce the petitioner to be innocent, I refuse to adopt any such approach as it would put an end to the process of investigation and trial provided under the law. In Union of India and others vs. B.R.'BaJaJ & Others, J.T. 1994 (1) Sc 103 the Supreme Court decried this approach as it "amounts to investigation by the court whether the offences alleged in the F. I. R. are made out or not. "

(6) In State of Hary'ana and others vs. Chaudhary Bhajan Lal and another, the Supreme Court dealt with the limitations in exercising the powers under Article 226 of the Constitution or under section 482 of the Code of Criminal Procedure to quash the criminal proceedings at the stage of the First Information Report. The matter came up again before the Supreme Court in Janta Dal vs. H. S. Chodhary and another 1992 (2) Scc 305. What is the dictum? It is that inherent power conferred by section 482 of the Code cannot be exercised to stifle a legitimate prosecution and that the High Court should normally refrain from giving a premature decision in case wherein the entire facts are extremely 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, cannot be seen in their true perspective without sufficient material.

(7) What is the test to be applied in the present case? The petitioner wants me to interfere as allegedly civil litigation is pending. However, I remain unpursuaded. The First Information Report cannot he interfered with merely on account of pendency of civil suits. Moreso, where the true nature of those suits is yet to be made bare.

(8) The petitioner seeks my intervention on yet another ground and it is that the First Information Report does not disclose commission of any criminal offence. The test to be applied would he as to whether the uncontroverter allegations as made prima facie establish the offence. There may, undoubtedly, he certain situations where the facts may point predominately towards the civil wrong rather than the commission of a criminal offence. I am, however, of the view that the present is a case where the ingredients of a criminal offence cannot be held to he wanting. The First Information Report, which I have taken the precaution of reproducing verbatim, shows how the present petitioner fraudulently or by dishonest inducement managed to get a power of attorney executed in his favor and thereafter, utilising the same, sold away the property surreptitiously causing wrongful gain to himself at the expense of the rightful claimants.

(9) It was further contended that the First Information Report was lodged by the complainant with a malafide intention to put pressure on the petitioner. I see nothing to substantiate this allegation. In any case, when Information is lodged at the police station and an offence is registered, the malafide of the informant would be of a secondary importance. It is the material collected during investigation which decides the fate of the accused person and thus even the allegations regarding malafides would be of little assistance to the petitioner, at least, at this stage.

(10) For what has been noticed by me above, I find no ground to allow the petition. The same is hereby dismissed. However, nothing said in this order shall be read as an expression of opinion on the merits of the case.