Nafed vs State & Ors.
2010 Latest Caselaw 5429 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL.M.C. No. 611/2008

                                   Date of Decision : 30.11.2010

NAFED                                           ... Petitioner
                              Through:    Mr. T.K.Ganju, Sr.Adv.
                                          with Mr.A.K.Thakur, Adv.

                               Versus

STATE & OTHERS                                  ...... Respondents
                              Through:    Mr. Pawan Bahl, APP for
                                          the State.
                                          Mr.Tarkeshwar Nath and
                                          Mr.P.K.Mishra, Advs. for
                                          respondent no.2.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

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 the judgment should be reported
       in the Digest ?                                      YES

V.K. SHALI, J.

1. This is a petition filed by the petitioner for quashing of

order dated 5.7.2007 passed by Sh.R.K.Singh, the learned

MM, New Delhi directing registration of an FIR under

Section 182/211/469/470/471/499/500/501/ 34 IPC by

P.S. Sriniwas Puri as well as FIR No.364/2007 and the FIR

so registered on the basis of the said order.

2. Briefly stated the facts leading to the filing of the present

petition are that the petitioner is a national level co-

operative society registered under the Multi State Co-

operative Societies Act, having its registered office at

NAFED HOUSE, 1, Sidharth Enclave, Ashram Chowk, New

Delhi -14. It has branches in different cities all over India.

The petitioner is carrying on business of trading in

agricultural and non-agricultural products namely food

grains, edible oil, dry fruits, spices, metal ores, metal

scraps, chemicals, petroleum products etc. The petitioner

also provides financial assistance to persons

/firm/company for the purpose of running their

businesses, if they approach with some proposal to the

petitioner company.

3. It is stated in the petition that vide letter dated 19.2.2004,

the respondent no.2 approached the petitioner and

represented that his company M/s Pylon Traders Pvt. Ltd.

was one of the leading traders of Asafoetida (Heeng) and

Pistachio (Kaju) apart from others. It expressed its desire

to import the aforesaid two items from CIS countries

especially from Kyrgystan and Tazakistan. The respondent

no.2 further vide letter dated 15.6.2004 is purported to

have introduced M/s Kripa Overseas, a proprietory concern

of Mr.Sandeep Khanna as the leading dealer of dry fruits

and Kirana items. It requested the petitioner to consider its

proposal of importing Heeng and rolling scraps from the

said two central CIS countries.

4. Acting on the representation and the promise made by M/s

Kripa Overseas company, the petitioner after negotiation is

stated to have extended the financial facility of providing an

advance of Rs.10 crores to M/s Kripa Overseas vide cheque

no.903517 dated 22.9.04 drawn on Union Bank of India.

It is alleged that M/s Kripa Overseas failed to comply with

its own commitment and contractual obligations. It also

failed to import the aforesaid two items and did not give the

requisite security amount of Rs.1 crore under the terms of

contract to the petitioner, while as the cheque of Rs.1 crore

which was given had bounced.

5. The petitioner on account of the aforesaid transaction

lodged a complaint dated 18.5.2006 with the DCP,

Economic Offences Wing, Crime Branch against M/s Kripa

Overseas and M/s Pylon Traders (P) Ltd. because of which

an FIR bearing No.474/06 dated 26.8.06 under Section

120-B/406/420 IPC was registered by P.S. Sriniwas Puri

against various persons including one Mr. Adarsh Bhushan

Mitra/respondent no.2.

6. It is further alleged that the respondent no.2 was arrested

and remanded to police/judicial custody after which he was

released on bail. The investigation in the said matter was

completed and the charge sheet has already been filed by

the investigating agency.

7. It is alleged by the petitioner that while investigation of the

said FIR No.474/06 was still pending, the respondent no.2

/complainant made a complaint to the police but on this

basis no action was taken and thereafter he lodged a

complaint with the learned MM which was marked to the

learned Metropolitan Magistrate Sh.R.K.Singh, New Delhi

who passed the impugned order dated 5.7.2007 directing

registration of an FIR against the petitioner along with

investigation of the same along with the previous FIR

No.474/06.

8. In the said FIR the allegation was made by the respondent

no. 2 that the letter dated 15.6.2004 by virtue of which

Mr.Adarsh Bhushan Mitra, the Director /partner of M/s

Pylon Traders (P) Ltd. had allegedly introduced M/s Kripa

Overseas, is forged by the plaintiff/company and its

Officers and therefore, the FIR be registered and

investigation may be done. The learned Magistrate directed

the investigation by the local police after registration of the

FIR. The exact language of the order passed on 5.7.2007

reads as under:-

"Submission heard. Case file perused.

In brief the grievance of the complainant Sh. Adarsh Bhushan Mitra is accused in FIR No.474/06 PS S.N.Puri is that latter dt. 15.06.4 addressed to Managing Director NAFED has been forged in his name and he has been falsely implicated in the case FIR no.474/06 PS S.N.Puri. On the allegations of the complainant in the present case there should be a separate FIR and investigation of FIR registered on the complaint of Sh.Adarsh Bhushan Mitra may be conducted with the investigation of the case FIR No.474/06.

SHO PS S.N.Puri is directed to register the FIR and investigation of the FIR so registered be given to EOW (Crime Branch, Delhi Police) for investigation with case FIR

No.474/06. A copy of order be given dasti to SI Anil Kr. For compliance of order.

At this stage SI Anil Kr. Submits that due to urgent work he has to go out of station and he seeks permission to get FIR registered for 09.07.2007. Allowed.

Put up on 16.7.2007 for compliance report."

9. The petitioner feeling aggrieved by the said order of

registration of an FIR by P.S. Sriniwas Puri and

investigation to be done on the said FIR No.474/06

preferred a criminal revision bearing No.277/2007 titled

National Agricultural Cooperative Marketing

Federation of India Vs. State & Ors.

10. The said revision petition was dismissed by the learned

ASJ, New Delhi on 5.12.2007. Feeling dissatisfied by the

said rejection order, the present petition has been filed by

the petitioner.

11. The learned Senior Counsel for the petitioner Mr.T.K.Ganju

has essentially raised two submissions during the course of

arguments. Firstly, it is contended by the learned Senior

counsel that the petitioner has already got an FIR

No.474/06 registered under various sections like

419/420/469/471/120B IPC. The respondent no.2

Mr.Adarsh Bhushan Mitra is the complainant in the cross

FIR. It is contended by him that the petitioner is a Co-

operative Society dealing in agricultural products and other

items. It had advanced a loan of Rs.10 crores to M/s Kripa

Overseas services which was given on the basis of the letter

dated 15.6.2004 written by the respondent no.2. After

advancing the said amount to M/s Kripa Overseas through

its partners Sandeep Khanna and Kamal Khanna, it

transpired that the said amount of Rs.10 lacs was

appropriated for purposes other than for which it was

advanced which amounted to the conspiracy or meeting of

minds on the part of the respondent no.2. It also came to

light that the funds were diverted to the account of

Mr.Adarsh Bhushan Mitra as well as a cheque for a sum of

Rs. 1 crore which was given as a security money by the

said M/s Kripa Overseas had also bounced. Obviously,

such a deceit of a public organization could not take place

without the meeting of minds on the part of these three-

four persons of which Sh.Adarsh Bhushan Mitra was an

important person, as it was he who had introduced M/s

Kripa Overseas vide letter dated 15.6.2004. The said letter

was already under examination and investigation by the

Economic Offences Wing of Delhi police were being

conducted and therefore, the present FIR which has been

registered by the respondent no.2 against the petitioner

and its officers is essentially actuated by ulterior

considerations with a view to wreak vengeance.

12. It was contended by the learned counsel that the law

regarding quashing of the FIR has been dealt with by the

Apex Court in State of Haryana and Ors. Vs. Ch.Bhajan

Lal and Ors. AIR 1992 SC 604, where seven contingencies

have been given by the Apex Court indicting that it is in

these contingencies apart from others that an

FIR/complaint can be quashed.

13. One of the contingencies which is laid down in the said

case is envisaged in clause 7 of para 102, which reads as

under:-

"(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

14. The second ground on which quashing of the FIR is prayed

is that the learned Magistrate while directing the

registration of the FIR in terms of Section 156 (3) Cr.P.C.

has not applied his mind at all before passing a direction to

the local police to register an FIR. The learned counsel has

contended that the settled legal position is that the learned

Magistrate has the power to refer the matter to the local

police for the purpose of investigation at two stages, one

under Section 156(3) Cr.P.C. before taking cognizance of

the complaint and secondly, even after taking cognizance

and recording the statement of the complainant under

Section 202 Cr.P.C., it can direct the police to make

investigation which will be in the nature of an inquiry. But

the scope and purport of these two investigations at two

different level would be different. Elaborating this

argument further, the learned Senior counsel for the

plaintiff has contended that even while directing the local

police to register an FIR the learned Magistrate must be

satisfied from prima facie reading of the complaint that

commission of a cognizable offence is made out as it is only

in such a contingency that an FIR under Section 156(3)

Cr.P.C.could be registered. Reliance in this regard was

placed on the case titled State Vs. Mohd. Iqbal Ghazi and

Ors. 154 (2008) DLT 481 and Division Bench judgment of

Karnataka High Court titled Gurudutt Prabhu & Ors. Vs.

M.S.Krishna Bhat & Ors. 1999 Cri. L.J. 3909. It has been

contended by the learned Senior counsel that in both these

judgments, it has been observed that the learned

Magistrate does not have the power to direct the police to

register an FIR under Section 156(3) without showing that

there is any application of mind by him before giving such a

direction. The learned Magistrate must apply his mind

and see whether such a necessary direction is warranted in

the facts of that particular case or not. It was respectfully

contended by the learned Senior counsel Mr.Ganju that if

one reads the order dated 5.7.2007 passed by the learned

Magistrate, it clearly shows that he has not applied his

judicial mind at all to direct the registration of an FIR by

the local police against the petitioner /company a Co-

operative Society whose employees are also public servants

within the definition of Section 21 of the IPC. The learned

Senior counsel has also relied upon the case titled

P.Sirajuddin, etc. Vs. State of Madras etc. 1970 (1) SCC

595 to urge since the public servants were involved against

whom the FIR was being registered the local police ought

to have made some preliminary primary inquiry before

directing the registration of an FIR which has not been

done. Accordingly on both these counts, the learned

counsel has contended that the FIR deserves to be

quashed.

15. So far as the learned APP is concerned, it was contended by

Mr. Pawan Bahl that the question of genuineness of the

impugned order 15.06.2004 by virtue of which Mr. Adarsh

Bhushan Mitra, the Director /partner of M/s Pylon Traders

(P) Ltd. had introduced M/s Kripa Overseas is concerned,

the said documents were sent for comparison to the Central

Forensic Laboratory after obtaining the specimen

signatures of different accused persons including that of B.

P. Singh an ex-employee of the petitioner/company as well

as the admitted signatures and hand writing of Mr. Adarsh

Bhushan Mitra. The Central Forensic Laboratory has

given its opinion on 28.05.2007, 31.08.2007 and

27.08.2008. The sum and substance of these

examinations is that although the signatures and

handwriting of other co-accused persons including that of

B. P. Singh were found to be matching but no definite

opinion with regard to Adarsh Bhushan Mitra could be

expressed by the Central Forensic Laboratory. It was

contended that the entire matter has been placed before the

Court of competent jurisdiction along with the relevant

documents in the final report filed in respect of FIR No. 474

dated 26.08.2006 by P.S. Sriniwaspuri, New Delhi. It is

urged that the Court which has taken cognizance of the

offence in respect of the said FIR must be permitted to

decide the matter.

16. Sh. P. K. Mishra, the learned counsel for the respondent

no. 2/Adarsh Bhushan Mitra who is the complainant in the

FIR bearing no. 364/2007 has alleged that the signatures

of Adarsh Bhushan Mitra were forged. It was contended

that no harm will be caused in case the present FIR is also

tried along with the same FIR because no definite finding

came from the Central Forensic Laboratory to the effect

that the signatures on the impugned letter dated

15.06.2004 were that of Adarsh Bhushan Mitra who is

alleged to have introduced the other co-accused persons to

the petitioner/company in the instant case.

17. I have considered the submissions made by the respective

sides.

18. The final report of FIR No. 474 dated 26.08.2006 of P. S.

Sriniwaspuri, New Delhi under Section 406, 420, 120 B IPC

against the various accused persons which include

Bhupender Pratap Singh an ex-employee of the

petitioner/company as well as the Adarsh Bhushan Mitra

who is purported to have written the letter dated

15.06.2004 has already been filed. If the said letter was

already in issue in the FIR no. 474/06 it was not open to

Adarsh Bhushan Mitra to have initiated a private complaint

under Section 156 (b) Cr.P. C. and that too after a lapse of

more than a year and much less for the learned Magistrate

to have given a straightaway direction to the police to

register an FIR against the officials of the petitioner namely

the Managing Director and the Secretary. The reason for

such an exercise on the part of the complainant Adarsh

Bhushan Mitra was not fair to seek. He wanted to use this

as a ploy to taint the official of the petitioner/company so

as to wriggle out of the difficult situation in which he was

put because of his alleged involvement in the FIR no.

474/06 where a case of conspiracy using forged document

as genuine, cheating and breach of trust was alleged

against them all.

19. The Apex Court in case titled P. Sirajuddin Vs. State of

Madras (1970) 1 SCC 595 has specifically observed that

where public servants are alleged to have committed

serious criminal offenses, some preliminary inquiry must

be held to prima facie establish the involvement of the

accused person as registration of an FIR straightaway is

bound to do incalculable harm to the reputation of not only

the high official against whom the FIR is registered but also

the organization to which he belongs, if ultimately such a

prosecution is going to fail.

20. In the instant case, there is no definite prima facie evidence

against the petitioners or against any of the employee

except B. P.Singh which warranted registration of an FIR

has come. Therefore, the registration of the FIR was not at

all called for because the letter in question was already

under investigation in the earlier FIR.

21. The signatures and handwriting of the

complainant/respondent no. 2 Adarsh Bhushan Mitra have

been sent for comparison to the Central Forensic

Laboratory, on number of occasions and it could not

express any definite opinion that the signatures on the

letter dated 15.06.2004 were tallying with the admitted

signatures of Adarsh Bhushan Mitra but the reasons

which have been given by the Central Forensic Laboratory

are very important and revealing. It has observed that the

specimen writings marked S-1 to S-3 and S-25 to S-32 do

not reflect true and complete written habits of the writer

namely Adarsh Bhushan Mitra. The specimen signatures

mark as S-4 to S-6, S-19 to S-24 are all different models

and as such are not comparable with the questioned

signatures and further specimen writings marked S-33 to

S-39 do not contain similar letters and contention for

comparison. In the light of these observations, it had

further opined for a thorough scientific observation, it is felt

that admitted signatures of Adarsh Bhushan Mitra

preferably of the contemporaneous period written by him in

normal course of routine of some existing documents be

sent for comparison. Accordingly, procurement of said

material was sought in its letter dated 27.08.2008. It is not

known as to whether the said material has been supplied to

the Central Forensic laboratory or not in any case the

question as to whether the letter dated 15.06.2004 which is

forming the basis of the present FIR is already under

judicial scrutiny in FIR no. 474/2006, therefore, there is

absolutely no reason as to why the present FIR should

continue as a democles sword on the head of the Managing

Director and the Secretary of the petitioner/company.

The case of the petitioner seems to be fully covered by the

illustrative guidelines of Bhajan Lal's case AIR 1992 SC 602

for one of the grounds for questioning the FIR is where the

said FIR has been registered with a view to wreck

vengeance against the accused persons.

22. I, accordingly, quash not only the summoning order passed

by the learned Magistrate but also the FIR No.364/07

under Section 182/211/469/471/500/501/34 IPC P.S.

Sriniwaspuri, New Delhi with the observation that the

learned Court dealing with the FIR No.474/06 under

Section 420/406/120B IPC of P.S. Sriniwaspuri, New Delhi

where Adarsh Bhushan Mitra is facing a trial in various

offences will give a clear finding with regard to the factum

as to whether the Adarsh Bhushan Mitra was a signatory to

the letter dated 15.06.2004 or not whether the said

document was forged on his behalf and once such a finding

is handed down at the end of the trial the necessary

consequence of the same will follow. This petition is

accordingly allowed in the light of the above-mentioned

observations. Copy of this order be sent to the learned

Trial Court.

V.K. SHALI, J.

NOVEMBER 30, 2010 RN/KP