Ibrahim Khan vs State Of M.P.
2023 Latest Caselaw 6084 MP

                                                          1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE VISHAL MISHRA
                                               ON THE 17 th OF APRIL, 2023
                                        MISC. CRIMINAL CASE No. 37369 of 2022

                          BETWEEN:-
                          IBRAHIM KHAN S/O INAYAT KHAN, AGED ABOUT 40
                          Y E A R S , OCCUPATION: PROPRIETOR OF A-ONE
                          ENTERPRISES BURHANPUR, R/O 22 OPPOSITE STADIUM
                          GROUND MUNICIPAL CORPORATION RAJIV NAGAR,
                          BURHANPUR (MADHYA PRADESH)

                                                                                       .....PETITIONER
                          (BY SHRI RAUNAK YADAV - ADVOCATE)

                          AND
                          1.    STATE OF M.P. THROUGH POLICE STATION STF
                                BHOPAL BHOPAL (MADHYA PRADESH)

                          2.    BHARAT    SINGH    S/O   SHIVRAJ    SINGH
                                OCCUPATION: PRESIDENT DILIP BUILTCON LTD.
                                ,PLOT NO. 05, CHUNA BHATTI INSIDE THE
                                GOVIND NARAYAN SINGH GATE, BHOPAL
                                (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                          (SHRI AMIT BHURRAK - PANEL LAWYER FOR RESPONDENT NO.1)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                           ORDER

The present petition has been filed under Section 482 of Cr.P.C. seeking quashment of an FIR dated 28.02.2020 registered at Crime No.137 of 2020 under Sections 420, 467, 468, 471 & 120-B of the Indian Penal Code at Police Station STF, Bhopal against the petitioner. Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 4/21/2023 6:39:08 PM

2. As per the prosecution story, President of Dilip Buildcon lodged a written report to the effect that he issued a cheque No.014746 amounting to Rs.26,737.90 in favour of M/s Unnati Motors, but some unknown person prepared cloning of the cheque and deposited in the account of M/s A-one Enterprises. Therefore, an FIR has been registered against the petitioner who is a proprietor of M/s A-one Enterprises.

3. It is a case of the petitioner that he has been falsely implicated in the case and he has not committed any offence in any manner. It is submitted that prima facie no case is made out against the petitioner as there is no allegation or material on record to show that the petitioner has prepared

and used the forged cheque. The cheque was presented in the Central Bank of India, Devaria District Uttar Pradesh by the co-accused and the same was returned on the same day by the bank. The petitioner has never visited to Devaria and has not filed any form. He has been made accused only on the basis of the fact that his account has been misused, that too, on the basis of the memorandum of the co-accused. The amount was credited on 25.02.2020 in the account of the applicant and the same was returned back to the owner immediately on the same day and, therefore, the entire criminal proceedings are liable to be quashed.

4. Per contra, state counsel has vehemently opposed the contentions stating that a cheque bearing No.014746 was issued by M/s Dilip Buildcon amounting to Rs.26,737.90 in favour of M/s Unnati Motors on 02.09.2019 and has been realized on 05.09.2019, but a clone of the cheque has been prepared and on the basis of forged and fabricated cheque an amount of

Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 4/21/2023 6:39:08 PM

Rs.50,00,000/- has been credited in the account of M/s A-One Enterprises on 25.02.2020, which is clearly reflected from the account statement of the petitioner. The involvement of the petitioner is clearly reflected from the material collected by the police authorities during investigation. Providing the account number itself is sufficient showing involvement of the petitioner in the commission of offence. As per the settled proposition of law, quashing of FIR cannot be done if prima facie material is available against an accused. Placing reliance upon the judgments of Hon'ble Supreme Court in the cases of State of Haryana Vs. Bhajanlal reported in 1992 Suppl. SCC 335, Niharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others reported in 2021 SCC Online 315 and State of Telangana v. Habib Abdullah Jeelani and Others reported in 2017 (2) SCC 779, he has prayed for dismissal of the petition.

5. Heard the learned counsel for the parties and perused the record.

6. From the perusal of the record, it is seen that there are specific allegation of preparing forged cheque, providing account number to the co- accused and accepting payment of Rs.50,00,000/- which is clearly reflected from the account statement of the petitioner as well as the memorandums of the co-accused. Therefore, the involvement of the

petitioner is clearly reflected from the material collected by the police authorities during investigation. If an element of offence is prima facie reflected from the FIR, there cannot be quashment of FIR and subsequent proceedings in terms of the settled proposition of law. The law with respect to quashment of an F.I.R. is settled by the Hon'ble Supreme Court

Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 4/21/2023 6:39:08 PM

in large number of cases and recently the Hon'ble Supreme Court in the case of Niharika Infrastructure Pvt. Ltd. (supra), specially paragraph 80 where guidelines have been framed by the Hon'ble Supreme Court, which read as under :-

"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted "during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or ''no coercive steps to be adopted'' during the investigation or till the final report/charge sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:-

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of death penalty);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 4/21/2023 6:39:08 PM

than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 4/21/2023 6:39:08 PM

merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or ''no coercive steps to be adopted and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or ''no coercive steps either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India; xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order;

xviii) Whenever an interim order is passed by the High Court of no coercive steps to be adopted within the aforesaid parameters, the High Court must clarify what does it mean by ''no coercive steps to be adopted as the term ''no coercive steps to be adopted can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

7. Considering the overall facts and circumstances of the case, Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 4/21/2023 6:39:08 PM

interference in the present petition for quashment of an F.I.R. is not made out. It is not a case where the name of petitioner is not being reflected anywhere, rather the involvement of the petitioner prima facie is reflected from the material collected by the police authorities during investigation. Providing the account number itself is sufficient, showing involvement of the petitioner in the commission of offence. Grounds which are raised are matter of trial. Therefore, no case for quashment of F.I.R. is made out.

8. The petition sans merit and is accordingly dismissed.

(VISHAL MISHRA) JUDGE sj

Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 4/21/2023 6:39:08 PM