Ajay Pundir vs State Of Uttarakhand And Others
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Uttarakhand High Court

Ajay Pundir vs State Of Uttarakhand And Others on 2 August, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

     HIGH COURT OF UTTARAKHAND AT NAINITAL

           Hon'ble Justice Sri Rakesh Thapliyal

                          2nd August 2024
         Writ Petition (Criminal) No. 851 of 2024

Ajay Pundir                                         ............... Petitioner
                           Vs.
State of Uttarakhand and others                      ............Respondent

Counsel for the Petitioner: Mr. Piyush Garg Counsel for the State: Mr. V.S. Pal, A.G.A. and Mr. Sandeep Sharma, Brief Holder Counsel for respondent no. 3: Mr. Pulak Raj Mullick, through V.C. and Mr. Lalit Sharma and Mr. Sahil Mullick

Upon hearing the learned Counsel, the Court made the following order:

1. The instant writ petition has been preferred by the petitioner for quashing of the FIR dated 10.07.2024, bearing FIR No. 0162 of 2024, registered at P.S. Rajpur, District Dehradun pursuant to the order dated 08.07.2024, passed by the 3rd Addl. Chief Judicial Magistrate, Dehradun, whereby the application moved by respondent no. 3 under Section 156(3) Cr.P.C., was allowed.

2. The petitioner moved an amendment application seeking quashing of the order dated 08.07.2024, passed by the 3rd Addl. Chief Judicial Magistrate in Miscellaneous Criminal Case No. 1640 of 2024, Shri Mukesh Kumar vs. Shri Jitendra Kharbanda and another. Since, the amendment, as sought, are formal in nature and not opposed by the learned counsel for the respondents, hence, the same is allowed. The necessary amendment be carried out in the body of the petition within a week.

3. Heard on the stay application.

4. Brief facts, of the case, are that an application was moved by the respondent/complainant under Section 156(3) of Cr.P.C., in the court of 3rd Addl. Chief Judicial Magistrate, Dehradun wherein a report was called from the concerned police station ,i.e., P.S. Rajpur District Dehradun. Thereafter, after perusing the report submitted by the P.S. Rajpur, the application moved under Section 156(3) Cr.P.C. was allowed on 08.07.2024, and the concerned S.H.O. was directed to register the FIR and to carry on with the investigation either himself or by any subordinate.

5. Thereafter pursuant to the order dated 08.07.2024, the FIR was registered at P.S. Rajpur on 10.07.2024 as FIR No. 0162 of 2024, for the offences punishable under Sections 120B, 420, 467, 468 and 471 IPC.

6. The allegation, as alleged in the application moved under Section 156 (3) Cr.P.C., is that one Jitendra Kharbanda in the year 2007 induced the complainant to make investment for purchasing land at Dehradun for developing a group housing society, and for this purposes a company, namely, "Anjani Infra Project Pvt. Ltd." was formed and incorporated on 13.12.2007, wherein the complainant and Mr. Jitendra Kharbanda were inducted as Directors. It is also alleged that the present petitioner told the complainant that in the State of Uttarakhand there is a restriction that land more than 250 Sq mts. cannot be purchased by an outsider, and, therefore, Mr. Kharbanda proposed that the land will be purchased in the name of the petitioner "Ajay Pundir" who will also be inducted as

one of the Director in the company, and thereafter, lands so purchased in the name of the petitioner will be transferred in the name of the complainant, and after giving some profit to the petitioner, the petitioner will be removed from the Directorship of the company and with such an understanding Mr. Kharbanda and the complainant start the project.

7. It is alleged that the complainant deposited at around 19 crores rupees in the account of the several persons including the petitioner for purchasing the lands at Dehradun, and the complainant being an illiterate person trust on Mr. Kharbanda for business transactions and later on when the complainant asked for the amounts and the investment Mr. Kharbanda did not give any satisfactory reply. It is further alleged that the accused persons sold the lands so purchased in the name of another company, namely, "M/s Balaji Infra Shines and others" and the land purchased in the name of the petitioner were too sold and cash money was deposited in the account of the private company.

8. Learned counsel for the petitioner submits that all the allegations are vague and frivolous, the actual facts are that the complainant and Mr. Kharbanda both are the Directors of "M/s Balaji Develop Well Pvt. Ltd.", and both of them are having equal share of 50% and not only this even the complainant and Mr. Kharbanda are also the Directors and share holders in the company, namely, "D.M.R. Developers Pvt. Ltd." where the complainant has 30% of share holding and Mr. Kharbanda is having 10% of share holding. It is submitted by the learned counsel for the petitioner that both the complainant as well as Mr.

Kharbanda were known to each other, having business dealing in the real estate with the petitioner through their other company "M/s D.M.R. Developers Pvt. Ltd.", which itself reflects from the accounts statement.

9. Learned counsel for the petitioner submits that the allegations, as alleged, is nothing but a business transaction in between the complainant and Mr. Kharbanda, and allegations with regard to the forged documents is absolutely vague and without any substance and evidence. He submits that primarily the dispute is nothing but a dispute in between partners of the company relating to the settlement of the accounts and there is no criminal intent. He submits that the entire allegations as reflected from the contents of the application moved under Section 156(3) Cr.P.C. is a commercial dispute and civil in nature and hence the impugned FIR is liable to be quashed. He submits that lodging of the FIR is nothing but a glaring example of malicious prosecution and only with ulterior purposes and motive the application under Section 156(3) cr.P.C., has been moved and as a matter of fact there was a long business relationship between the parties for a period of 17 years starting from 2007 when the first transaction took place and the last financial transaction was of 2017 which itself establishes that there was a long standing business relationship between the parties, and, as such, the disputes are purely of commercial in nature.

10. Learned counsel for the petitioner also submits that while allowing the application moved under Section 156 (3) Cr.P.C., the learned Judicial Magistrate totally failed to apply his judicial mind and this aspect is completely

overlooked by the Judicial Magistrate that, prima facie, the allegations appears to be of civil in nature and of a business transaction.

11. Learned counsel for the petitioner seriously attacked on the order passed by the 3rd Addl. Judicial Magistrate, Dehradun on 08.07.2024 in Criminal Case No. 1640 of 2024, which was registered on an application moved by the respondent/complainant under Section 156(3) Cr.P.C. He submits that before taking cognizance on the application moved under Section 156(3) Cr.P.C., the comments were asked from P.S. Rajpur and the concerned Police Station submitted its report that no such case has been registered in the concerned police station. Mr. Garg, learned counsel for the petitioner placed before this Court the certified copy of the report of the concerned police station Rajpur Dehradun and the same is also being reproduced herein as under:

fjiksVZ Fkkuk jktiqj tuin nsgjknwu lsok esa] Jheku ek0 U;k;ky; ,0lh0ts0,e0 r`rh; egksn; tuin nsgjknwuA fo'k; izkFkZuk i= vUrxZr /kkjk 156¼3½lh0vkj0ih-lh0 vkosnd eqds'k dqekj ls lEcfU/kr tkap vk[;kA egksn;] lknj voxr djkuk gS fd Fkkuk gktk ij izkFkZuk i= vUrxZr /kkjk 156¼3½ lhvkjihlh vkosnd eqds'k dqekj iq= Lo0 nsojkt fuoklh ,&108 foosd fogkj Qst 01 fnYyh dk ek0 U;k;ky; ls tkap gsrq izkIr gqvk gS izkFkZuk i= dh tkap dh x;h rks izkFkZuk i= ls lEcfU/kr izdj.k esa Fkkuk gktk ij dksbZ vfHk;ksx iathd`r ugh gSA fjiksVZ lknj lsok esa izsf'kr gSA Fkkuk/;{k Fkkuk jktiqj nsgjknwu Fkkuk/;{k 26-06-2024

By giving reference of the report, it is submitted that the said report does not give any reason that if any written complaint has been received then why the FIR has not been registered. Mr. Garg submits that there are two aspects of the matter in order to scrutinize the police report, i.e, (1) if a written complaint was made in the concerned police station then either the FIR should be registered or in other way the reason should be disclosed in the report why the FIR was not registered; (2) and if no such written complaint was made in the concerned police station then whether the concerned Magistrate was right in taking cognizance on the application moved under Section 156(3) Cr.P.C.

12. In support of his arguments learned counsel for the petitioner placed reliance in one of the judgment of the Hon'ble Apex Court in the case of Priya Srivastava vs. State of Uttarakhand and another (2015) 6 SCC 283. and submits that in fact in the present case the learned Judicial Magistrate has not applied its mind at all since while taking cognizance on a complainant under Section 156(3) Cr.P.C., it has to be examined whether any written complaint was made to the police for registration of the FIR as per the mandate of Section 154 Cr.P.C. He further submits that under Section 154 Cr.P.C., first of all the information should be given to the officer incharge of the police station in writing but here in this case as it appears from the report of the concerned police station easily an inference can be drawn that there was no such written complaint to the concerned police station for registration of the FIR, otherwise the police report should disclose the reasons why the FIR was not registered.

13. Mr. Garg raised an issue that if there was no such written complaint as per the mandate of Section 154 Cr.P.C., then whether 156(3) Cr.P.C. application is maintainable. Mr. Garg submits that this important aspect of the matter was completely overlooked by the learned Magistrate while taking cognizance on the complaint moved under Section 156(3) Cr.P.C. In reference to this learned counsel for the petitioner placed reliance on a judgment of the Hon'ble Apex Court in the case of Babu Venkatesh and others vs. State of Karnataka and another, (2022) 5 SCC 639 and particularly he placed reliance in para 26 of the judgment which is being reproduced herein below:

"26 This Court has further held that, prior to the filing of a petition under Section 156(3) CrPC, there have to be applications under Sections 154(1) and 154(3) CrPC. This Court emphasises the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally involving authority of the Magistrate, under Section 156(3) Cr.P.C. Inasmuch as if the affidavit is found to be false, the persons would be liable for prosecution in accordance with law."

I found force on the submissions of the learned counsel for the petitioner that the learned Magistrate while taking cognizance on the application under Section 156(3) Cr.P.C., has not applied its judicial mind and this aspect nowhere has been dealt that what is the effect of the report submitted by the concerned police station dated 26.06.2024, which does not contain any reason.

14. Law is well settled that prior to filing an application under Section 156(3) Cr.P.C., there has to be an

application under Section 154(1) and 154(3) of Cr.P.C., and that is the reason there is necessity to file an affidavit in support of 156(3) Cr.P.C. application so that persons making an application should be conscious and not to make false affidavit, and if such an affidavit is found to be false, a person would be liable to put on prosecution in accordance with law. All these aspect requires deep scrutiny and deliberation in the matter whether the learned Judicial Magistrate was right in entertaining the application moved by the complainant/ respondent under Section 156(3) Cr.P.C. particularly when the police report dated 26.06.2020, reveals that no such case is registered in the concerned police station, meaning thereby no written complaint was given to the police station otherwise in view of the principle as laid down in the judgment rendered by the Hon'ble Supreme Court in the case of Lalita Kumari vs. State of U.P. the police is under legal obligation to register the FIR provided the allegations appears to be genuine and from the contents thereof, prima facie, offences are made out.

15. The another argument which has been advanced by the learned counsel for the petitioner is that the allegations as alleged, in application moved under Section 156(3) Cr.P.C. appears to be a civil dispute and relates to a business transaction. In reference to this, he has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Naresh Kumar and another vs. State of Karnataka and another, 2024 SCC Online SC 268 and particularly he referred paras 4, 6 and 8 of the said judgment.

16. Apart from this, he has also referred the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana and others vs. Bhajan Lal and other, 1992 Supp. (1) 335, wherein the Hon'ble Apex Court has categorized seven categories of cases. Learned counsel for the petitioner submits that the present case falls under category (1), (5) and (7) of the categories of cases as categorized by the Hon'ble Apex Court.

17. He further submits that the law laid down by the Hon'ble Apex Court in the case of State of Haryana vs. Bhajan Lal (supra) is still holds a good law which was further followed in the case of Vineet Kumar vs. State of U.P. (2017) 13 SCC 369.

18. In support of his argument that the allegation appears to be civil in nature, he has referred the recent judgment of the Hon'ble Apex Court in the case of A.M. Mohan vs. State Represented by SHO and another, 2024 SCC Online SC 339, which is a three judges bench judgment and he particularly placed reliance in para 9(13) and para 10 of the said judgment which are being reproduced herein as below:-

"9 (13) While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 :

2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8)

"It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

10. The Court has also noted the concern with regard to a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court observed that this is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court also recorded that there is an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. The Court, relying on the law laid down by it in the case of G. Sagar Suri v. State of U.P.2 held that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. The Court also observed that though no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law."

Finally, learned counsel for the petitioner Mr. Garg submits that investigating agency should be restrained from the investigation pursuant to the impugned FIR, since, primarily the allegation appears to be civil in nature and furthermore he submits that learned Magistrate have not applied its judicial mind while taking cognizance on an application moved under Section 156(3) Cr.P.C. and the lodging of the FIR is nothing but a glaring example of malicious prosecution.

19. On the other side, the counsel for the complainant Mr. P.R. Mullick and Mr. Lalit Sharma submits that from the contents of the FIR, prima facie, offences are made out and once pursuant to the order passed by the learned Magistrate, the FIR has been registered the investigation should come to a logical conclusion.

20. In reference to their arguments, they placed reliance in the judgment of the Hon'ble Apex Court in the case of Siddharth Mukesh Bhandari vs. The State of Gujarat and anr., 2022 Live law SC 653.

21. This Court has gone through with the said judgment wherein reference has been made of a earlier judgment of Hon'ble Apex Court in the case of M/s Neeharika Infrastructure Pvt Ltd vs. State of Maharashtra and another (2021) SC 198. No doubt that the investigation should be stayed in rarest of rare cases and whether this case falls in the category of rarest of rare cases or not, this aspect is required to be scrutinized after calling counter affidavit from the respondents. However, this aspect cannot be ruled out that while taking cognizance on the application moved by the complainant/ respondent under Section 156(3) Cr.P.C. the learned Magistrate has not scrutinized at all the police report dated 26.06.2024 which does not contain any reason that if a written complaint was made why the FIR was not registered otherwise an inference can be drawn that no such written complaint was made under Section 154(1) and (3) Cr.P.C. and in that eventuality the Magistrate should reject the application under Section 156(3) Cr.P.C. out rightly by initiating a proceeding against the complainant

giving false affidavit in support of application under Section 156(3) Cr.P.C. as per the principle laid down by the Hon'ble Apex Court in the case of Babu Venkatesh (Supra).

22. Apart from this, it also appears from the order passed by the learned Magistrate that no attempts were made to examined the genuineness of the complaint particularly when there was a long business transaction in between the parties, i.e, from 2007 to 2017, and therefore while taking cognizance this aspect has to be examined and dealt with whether there is any criminal intent or not. The Court should not allow the application under Section 156(3) Cr.P.C. in a routine manner. There should be a judicial mind. The application under Section 156(3) Cr.P.C. was not allowed merely based on the allegation and at least the genuineness of the allegation has to be examined to ascertain whether it involves criminal intent or not.

23. Thus, after hearing arguments of the learned counsel for the parties, this Court is of the view that an application under Section 156(3) Cr.P.C warrants application of judicial mind, this is not the stage where the police is taking steps at the stage of Section 154 Cr.P.C. and herein the petitioner is before the Court, therefore, while taking cognizance on an application under Section 156(3) Cr.P.C., the Magistrate should apply its judicial mind.

24. Let respondents may file their counter affidavits within three weeks. One week thereafter is granted to the petitioner to file rejoinder affidavit.

25. List this matter on 18.09.2024.

26. Registry is directed to shown the name of Mr. V.S. Pal, learned A.G.A along with Mr. Sandeep Sharma, learned Brief Holder for the State in the cause list.

27. In the meantime, the investigation pursuant to the impugned FIR dated 10.07.2024 bearing FIR No. 0162 of 2024, registered at P.S. Rajpur pursuant to the impugned order passed by the IIIrd Addl. Chief Judicial Magistrate, Dehradun dated 08.07.2024, shall remain stayed.

(Rakesh Thapliyal, J.) Parul