SURESH KUMAR MODI Vs. STATE OF U P

JUDGEMENT

(1.) CRIMINAL Misc. Writ Petition No. 6742 of 2006 (Suresh Kumar Modi v. State of U.P. and Ors.) and Criminal Misc. Writ Petition No. 6950 of 2006 (Mr. Amit Modi and Ors. v. State of U.P. and Ors.) have been filed regarding one criminal case, therefore, both the writ petitions are being disposed of by this common judgment. In both the writ petitions it has been prayed that issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report (hereinafter referred to as the F.I.R.) dated 10th May, 2006 lodged against the petitioner/s at Police Station Modi Nagar, District Ghaziabad as Case Crime No. 166 of 2006, under Sections 406 and 420 I.P.C.

(2.) HEARD Sri Gopal Swaroop Chaturvedi, learned Senior Counsel, assisted by Sri Udai Chandani and Sri Sikandar B. Kochar, learned (Counsel appearing for the petitioners and learned A.G.A. as well as the Sri Brijesh Sahai and Sri B.C. Rai, learned Counsel appearing for the respondent No. 4 and perused the records.

(3.) According to the petitioners, absolutely no offence of cheating in any manner whatsoever is made out against all the petitioners as the intention to cheat, which is necessary for the said offence, is totally lacking in case, which can be seen from the fact that :an amount of Rs. 1 Crore has already been returned by the petitioner to the company of the respondent No. 4 by way of pay -order, which has been admitted in the F.I.R. It is further contended that the impugned F.I.R. has been lodged only for the purposes of harassing and falsely implicating the petitioners. Absolutely no legal formalities were done by the company of the respondent No. 4, who is alleging to have given the said loan to the petitioner. It is further contended that the said amount was paid to the petitioner's company only for the purposes of securing a deal for the transfer of 6,58,000 shares of Modi Pon Limited held by the company “Aspen Developers Private Limited”, a group of companies of the petitioner, and when the said deal could not go the through, the present false F.I.R. was lodged against the petitioners. It is further contended that mala fides on behalf of the respondent No. 4 can further be seen from the fact that absolutely no security by way of assets, ownership papers or the signs of the guarantors was taken before giving the said amount to the petitioner's company. According to the petitioners entire for the dispute is of civil nature and present F.I.R. has been lodged only for the purposes of coercing the petitioners into giving away the control of 8 -1/2% shares of Modi Pon Limited, which are held by the Aspen Developers Limited. From the perusal of the F.I.R. itself it can be seen that the entire amount of Rs. 4,40,86,000/ - has been paid by way of five consecutive cheques. The details of the cheques as mentioned in the F.I.R. are as under: