Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1901/2011
% Judgment delivered on:18th November, 2011
RAJIV KUMAR & ANR. ..... Petitioner
Through : Mr. Jivesh Kumar Tiwari, Adv.
versus
STATE & ORS. ..... Respondent
Through : Ms. Rajdipa Behura, APP.
Mr. Pawan Kumar, Adv. for R2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers
may be allowed to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported
in the Digest? YES
SURESH KAIT, J. (Oral)
1 Learned counsel for the petitioner submits that on complaint of
Respondent No. 2 an FIR No. 553/3005 was registered against the
petitioners unde Section 409/419/420/465/468/471/120-B Indian Penal
Code, 1860 P.S. Shalimar Bagh. Thereafter, the investigation was
Crl.M.C.1901/2011 Page 1 of 6
transferred to P.S. EOW. Thereafter, the Chargesheet was filed in the
court and charges are yet to be framed.
2 Learned counsel for the petitioner submits that on 18.08.2008, the
respondent NO. 2 acknowledges that he has received an amount of
Rs.7,44,445/0 as full and final payment/settlement against HDFC Bank
as they recovered the said amount from the petitioners.
3 After receiving the said amount from HDFC Bank, respondent No.
2 authorised HDFC Bank Limited to deal with petitioner directly.
4 He further submits that HDFC Bank after satisfying the said
amount of giving it to respondent No. 2 has issued no objection
certificate to get the FIR quashed and on behalf of respondent No. 2.
5 Respondent No. 2 is personally present in the court today.
6 This court has specifically asked respondent No. 2 in which year,
this amount was misappropriated, he replied in the year 2005. I note the
total amount of Rs.7,44,445/- has been received under compulsion
against the principle amount Rs.7,12,355/- after 03 years. Thus, he has
not even received simple interest on the principle amount.
7 Though respondent No. 2 has no objection against the quashing of
the instant FIR, learned APP for State submits that the petitioners have
Crl.M.C.1901/2011 Page 2 of 6
cheated upon respondent No. 2 and petitioners are of the nature of
cheating as is clear from the order dated 24.10.2008, whereby the
Hon’ble Haryana and Punjab Court has quashed FIR No. 260/2006 dated
03.05.2006 registered under Sections 406/468/120B Indian Penal Code,
1860.
8 Learned APP has referred State of Haryana & Ors Vs. Bhajan
Lal, 1992 AIR 604 and submits that the principles laid down are as
under:-
“8.1. In the exercise of the extra-ordinary power under
Article 226 or the inherent powers under Section 482 of
the Code of Criminal Procedure, the following categories
of cases are given 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 guide- 3 myriad kinds of cases wherein such
power should be exercised:-
(a) 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
Crl.M.C.1901/2011 Page 3 of 6
entirety do not prima facie constitute any offence
or make out a case against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying
the F.I.R. 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;
(c) 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;
(d) where the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code;
(e) 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;
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(f) 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;
(g) 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. [305D-H; 306A-E]”
9 Learned APP further relied upon the judgment of Hon’ble
Supreme Court in State of A. P. Vs. Gourishetty Mahesh & Anr
Criminal Appeal No.1252/2010 decided on 15.07.2010 . She also relied
upon Sushil Suri Vs. CBI & Anr decided in Criminal Appeal
No.1109/2011 on 06.05.2011.
10 Relying upon the aforesaid decisions, she submits these petitioners
do not deserve any leniency from the court, they may again commit the
same offence after getting this FIR quashed.
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11 In view of the above discussion, I am not inclined to quash the
FIR.
12 Criminal M.C. 1901/2011 is accordingly dismissed.
13 No orders as to costs.
SURESH KAIT, J
NOVEMBER 18, 2011
j
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