CRIMINAL MISC. M NO.18176 OF 2007 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: MARCH 21, 2009
Karnail Singh
.....Petitioner
VERSUS
State of Punjab and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Sanjay Majithia, Sr.Advocate with
Mr. Shivraj Angi, Advocate,
for the petitioner.
Mr. Praveen Chander Goyal, Addl.A.G., Punjab,
for the State.
****
RANJIT SINGH, J.
This Criminal Misc. Petition was dismissed on
22.10.2008, when State counsel on instructions had pointed out that
challan in this case had been presented and charges framed. The
prayer for quashing was rejected and the liberty was given to the
petitioner to challenge the order framing the charge. Subsequently,
however, an application was filed for recall of this order by pointing
out that charges in this case have not been framed and the
statement made by the State counsel in this behalf was factually
inaccurate. This position was conceded in the reply filed and it was
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stated that the statement that the charge was framed was made
under mistaken belief. The order dismissing the petition accordingly
was recalled and the case was fixed for arguments.
Today submissions have been made for quashing the
FIR, which is registered under Sections 420, 120-B IPC.
Karnail Singh, petitioner, is alleged to have got an
electricity connection released without taking no objection certificate
from the complainant. In fact, the contents of the FIR would show
that Mohan Singh through his attorney Karnail Singh applied for
release of electric connection. As per the requirement of law, co-
sharers were required to submit No objection Certificate. When this
connection was released, the complainant went to enquire as to how
it was done without taking No objection Certificate from him. It then
transpired that an affidavit was submitted by all the co-sharers,
including by one Jaswinder Singh, who had gone abroad for the last
five years and had never returned. It is accordingly alleged that he
was impersonated by the executant of the affidavit dated 14.11.2005,
which was even got attested from the Executive Magistrate. It is on
this basis, the FIR was registered and is being investigated.
Learned Senior counsel appearing for the petitioner would
urge that the person impersonated has not come forward to file any
complaint. He would also say that the complainant has no locus to
file this complaint and accordingly the FIR should be brought to an
end. The counsel contends that even if the allegations made in the
FIR are taken at its face value, these would not prima facie constitute
an offence. As per the counsel, even the material collected in support
of the allegation would not go to show the commission of offence
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against the petitioner. He accordingly pleads that the FIR deserves to
be quashed.
In support of his submission, the counsel has referred to
large number of judgments. These would deserve a notice. The
counsel has referred to Subodh S. Salaskar Vs. Jayprakash
M.Shah & Anr., 2008 (3) RCR (Criminal) 875, Syngenta India
Limited and others Vs. State of Punjab and another, 2008 (3)
RCR (Criminal) 253, Sunita Bajaj Vs. Punjab and Sind Bank,
1998 (1) RCR (Criminal) 129, S.W.Palanitkar Vs. State of Bihar,
2001 (4) R.C.R. (Criminal) 572, Rajnish Lathar Vs. State of
Haryana, 2008 (1) RCR (Criminal) 801, M/s Deva Disc and Tiller,
Hissar and others Vs. Haryana Financial Corporation and
another, 2003 (1) P.L.R. 776 and V.Y.Jose & Anr. Vs. State of
Gujarat & Anr., 2009 (1) RCR (Criminal) 869.
The allegations made against the petitioner is for
impersonation of Jaswinder Singh, who was statedly not present in
the country. An affidavit on behalf of Jaswinder Singh was filed to get
the connection released, though Jaswinder Singh could not have
been present to sign this affidavit. Prima-facie allegation would reveal
commission of offence of cheating or impersonation. To say that no
offence is made out, even if the allegations made in the FIR are
taken to be true, thus, can not be accepted.
The learned senior counsel has referred to number of
judgments, which are apparently not attracted to the facts of the
present case. The case of Subodh S. Salaskar (Supra) was under
Negotiable Instrument Act and question of cheating was analysed by
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the Court in the background of issuance of cheque. Any observation
made in this case accordingly would not have any relevance in the
present case, which is of impersonation. Syngenta India Limited’s
case (supra) was a case where scheme was floated, which was
availed by the complainant but the benefit of the scheme was not
released. It was found that this is predominantly a civil action and the
complaint was quashed. This has no resemblance with the facts of
the present case. Similarly, in Sunita Bajaj ‘s case (supra) also,
there was a question between criminal and civil liability where the
accused had got loan from the bank. This also would not have much
relevance, considering the facts of the present case. In
S.W.Palanitkar’s case (supra), the question was concerning the
ingredients of offence of cheating. It is yet to be decided by the Trial
Court whether offence of cheating or any other offence would be
revealed from the allegations made in the FIR. Even in Rajnish
Lathar’s case (supra), the question was of criminal and civil liability
where the accused had taken loan after hypothecating plant and
machinery. So is the position in M/s Deva Disc and Tiller, Hissar’
case (supra).
In V.Y.Jose’s case (supra), the Hon’ble Supreme Court
has laid down the test which will govern the quashing of criminal
proceedings by saying that exercise of inherent powers under
Section 482 is where allegations set out in the complaint do not
constitute the offence for which cognizance is taken by the
Magistrate. There can not be any dispute with this proposition of law.
The reasons and the parameters for quashing an FIR are by now well
settled. Apart from other consideration, it is well settled that no
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criminal proceedings can be brought to an abrupt end at the stage of
investigation. The present FIR is under investigation and charges are
yet to be framed. The petitioner would have enough time to raise all
these pleas at the time of framing of charge. It is not be possible to
hold whether this allegation ultimately would be substantiated on the
basis of evidence given on oath or not. The factual position in regard
to the role played by the petitioner would have to be proved by
leading cogent evidence before the Trial Court. On the basis of
affidavit, it will not be appropriate to hold one way or the other. The
petitioner would get opportunity to raise all the defences that are
available to him. It would be for the Trial Court to see if the
complainant succeed in proving the allegations made in the
complaint or whether the petitioner is able to establish his
innocence. This Court can not assume the role of Trial Court to say
that the allegations made against the petitioner, on the basis of
material, would not ultimately stand proved or not. That will be the
role of Trial Court. It has been so observed by the Hon’ble Supreme
Court in State of Madhya Pradesh Vs. Awadh Kishore Gupta
and others, 2004 (1) RCR (Criminal) 233. Accordingly, it is not a fit
case for quashing the FIR.
Accordingly, the prayer made in the petition can not be
accepted. The investigation is in progress and must be allowed to be
brought to a logical conclusion. The prayer for quashing as made in
the petition is accordingly dismissed.
March 21,2009 ( RANJIT SINGH ) khurmi JUDGE