SHER MOHD. KHAN Vs. MADAN LAL AND ANOTHER

JUDGEMENT

(1.) This petition under Article 215 of the Constitution of India read with Sections 482 and 340 of the Code of Criminal Procedure has been preferred by the petitioner for setting aside/declaration as nullity the order dated 14.08.2008 passed by this Court quashing FIR No. 470 dated 18.07.1995 registered under Sections 420, 467, 468, 471 and 120-B IPC at Police Station Sadar, Gurgaon having been obtained by fraud and misrepresentation and for initiation of proceedings under Section 340 Cr.P.C. against respondent No. 1 for having committed an offence referred in Section 194 Cr.P.C. against respondent No. 1. Briefly the facts of the case are that a Registered Co-operative Society by the name of Chanderlok Maruti Employees Co-operative House Building Society, Chakarpur (hereinafter referred to as 'the Society') was formed. The said Society was registered with the Assistant Registrar of the Co-operative Society, Gurgaon, under the provisions of Haryana Cooperative Societies Act, 1984. The Society in furtherance of its aims and objects got constructed 200 residential flats from D.L.F. within a short period of 2 years and the allotment of flats was made by draw of lots before its general body presided over by Assistant Registrar, Gurgaon on 27.02.1994. Out of 200 flats, possession of 192 flats was delivered and remaining 8 flats could not be handed over to the members of the Society as they failed to deposit the balance payment due to the Society. Some of these members of the Society filed complaints before the Deputy Registrar of the Co-operative Societies, Gurgaon against the Managing Committee of the Society. That apart, Complaint was filed by the petitioner-Sher Mohd. Khan along with two other members of the Society to the Deputy Commissioner, Gurgaon in an open public grievance meeting against the Managing Committee. He marked the enquiry to the Additional Deputy Commissioner, Gurgaon, who, after holding an enquiry, submitted his report dated 30.05.1995. In the said report, allegations against the Managing Committee, of which Madan Lal-respondent No. 1 was also a member, were found to be prima-facie correct. The Deputy Commissioner, Gurgaon forwarded the said enquiry report to the Senior Superintendent of Police, Gurgaon. On the basis of this enquiry report, FIR No. 470 dated 18.07.1995 under Sections 420 /467 /468 /471 IPC was registered at Police Station Sadar, Gurgaon. After completion of the investigation, challan was presented before the competent Court on 23.08.2006 and thereafter, charge was framed against respondent No. 1 - Madan Lal and other co-accused on 18.10.1996 and the trial was going on.

(2.) On 23.11.2007, respondent No. I filed Crl. Misc. No. 52302-M of 2007 titled as Madan Lal v. State of Haryana under Section 482 of the Code of Criminal Procedure praying for quashing of FIR No. 470 dated 18.07.1995 primarily on the ground that the Society filed a suit for permanent injunction seeking a decree of declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner, Gurgaon is illegal, null and void, without jurisdiction, arbitrary, discriminatory, unconscionable being against the principles of natural justice and without affording opportunity of hearing to the Society and further a decree of permanent injunction restraining the Deputy Commissioner, Gurgaon from getting dismissed the Managing Committee of the Society prior to expiry of its tenure on 14.06.1997 and also from getting the members of the Managing Committee of the Society arrested under FIR No. 470 dated 18.07.1995, Police Station Sadar, Gurgaon. This civil suit was partly allowed, wherein a decree for declaration to the effect that the report dated 30.05.1995 of the Additional Deputy Commissioner is illegal, null and void and without jurisdiction and not binding on the Managing Committee of the Society and that the Deputy Commissioner, Gurgaon was not entitled to take any action against the Managing Committee of the Society under the impugned report dated 30.05.1995. The said findings of the Civil Judge (Sr. Division), Gurgaon dated 28.02.2003 had attained finality as no appeal against the said decree was filed. The findings so returned by the Civil Court having attained finality are binding on the Criminal Court. Thus, the report dated 30.05.1995 of the Additional Deputy Commissioner, Gurgaon being not in accordance with law as per the decree dated 28.02.2003, which was the basis for registration of the FIR, could not be allowed to be sustained and thus prayed for quashing of the FIR. The State of Haryana was only impleaded as a party-respondent and none of the complainants, who had filed the complaints to the Deputy Commissioner, Gurgaon or the Additional Deputy Commissioner, Gurgaon, were impleaded as respondents.

(3.) Upon notice issued to the State of Haryana, reply was filed by the Assistant Commissioner of Police, Sadar, Gurgaon on behalf of the State of Haryana, wherein the factual assertions of the petitioner were not denied. The case came up for hearing before this Court on 14.08.2008 when the following order was passed:-