ARIT GUPTA AND ORS Vs. STATE OF J&K

JUDGEMENT

(1.) The petitioners, in this petition, preferred under Section 561-A of the Code of Criminal Procedure seek the allowance of this Court in quashing the FIR bearing No.97/2017 dated 21.07.2017 registered against them by the respondent No.1-State of Jammu and Kashmir, through SHO police Station Channi Himmat, Jammu, for the commission of offences punishable under Section 120-B, 420, 467, 468 and 471 RPC.

(2.) It has been delineated in the FIR that in a complaint of the complainant, namely, Rakesh Kumar Gupta S/o Kasturi Lal Gupta R/o Greenbelt Park, Gandhi Nagar, Jammu addressed to the Director General of the Police of Jammu and Kashmir and the Inspector General of Police, Jammu, it has been alleged that the complainant constructed a three storeyed building comprising of five shops in the year 1992 on land measuring seven marlas. In Shop No.3, located in the ground floor, the complainant carried his business under the name and style of "M/s ABLE Traders"; Shop No.2 was converted into a store and in the basement a Boutique and Gymnasium was being run by him besides a cement and spare parts store in the ground floor. The documents, it is stated bear testimony to this fact. The complainant has further stated that his mother owns land measuring 11 marlas in Khasra No.790 min, Khata No.162 min and Khewat No.4 situated at village Deeli, which has been purchased vide a deed of sale duly registered on 17.02.2002. The complainant has proceeded to state that during the night intervening between 7th and 8th May, 2005, the accused, named, Arit Gupta, Sumant Singh, Vinod Kher and Rakesh Kumar Bagotra along with some other persons entered into the building of the complainant with an intention to commit theft and cause his death. They caught hold of him, confined him illegally and threatened to kill him in case he tries to stop them. He raised a hue and cry but the accused persons removed the goods and the material from the building in three vehicles and thereby put him to a loss of more than 16 Lac. This was done by the accused persons at the behest of the accused No.1, a senior police officer who hatched a criminal conspiracy to deprive him from his landed estate as he had strained relations with the complainant. He used his influence to facilitate the commission of the above said crime and prepared fraudulent documents in connivance with the revenue officials and other accused persons. On his complaint, an FIR was registered in this regard but the accused managed to stall the investigation of the case. The accused prepared and managed to get the sale deed executed and registered by forging the signature of his mother and thereby committed fraud. The complainant has also stated that he has mortgaged his landed property with the Citizen Cooperative Bank and has obtained the loan from the said bank and there was no question of disposing of the said property in favour of the accused persons. He never sold the land to the tune of seven (07) marlas falling under Khasra No.131 min Khata No.36 min and Khewat No.1 situated at Channi Kamala along with the structure raised thereupon to Rajinder Singh, Varinder Singh and Jai Singh in equal shares as reflected in the fake documents dated 08.04.2005. The accused persons executed a sale deed 28.04.2005 in favour of Rakesh Kumar Bagotra which was registered on 03.05.2005. The complainant has further averred that the two shops were also directed to be attached by the learned Principal District Judge Jammu in the execution petition and the same have been handed over to the bank for auction as the complainant was not in a position to liquidate his liability and now after clearing the liability the said property has been released in his favour. The complainant has further articulated that it was at the instance of the accused persons, namely, Rajinder Singh, Varinder Singh and Jai Singh, that the concerned bank, with whom the property was mortgaged, filed a complaint against him to the effect that he has disposed of the mortgaged property but on an enquiry the Crime Branch vide its report dated 30.12.2006 concluded that the mortgaged property has not been disposed of by the complainant and the same does exist on the spot. However, what surfaced in the enquiry is that one Rakesh Kumar Bagotra and others in furtherance of a criminal conspiracy hatched with the concerned revenue officials got the document of sale registered on the basis of the false extracts. The complainant has elucidated that this property is still mortgaged with the bank, and, therefore, the question of selling the same to any other person does not arise. However, the accused persons in order to hide their deeds and in order to grab the landed property of the complainant fraudulently and in connivance with the revenue officials prepared another sale deed in favour of the accused Neeraj Kumar. The accused persons are trying to grab the property of the complainant on the basis of the fraudulent documents prepared by them in connivance with each other. They have prepared the sale deeds fraudulently to cheat the complainant and to deprive him of his landed property by hatching a criminal conspiracy with the accused No.3, who was holding a high position in the Police Department.

(3.) The petitioners, accused, have impugned the FIR registered against them on the grounds, inter alia, that the FIR registered against them by the respondent is illegal, arbitrary and contrary to the provisions of law and, therefore, the same deserves to be quashed. From the allegations leveled against them in the impugned FIR, no offence muchless the offences punishable under Sections 120-B, 420, 467, 468 and 471 RPC are made out against them. The petitioners have been wrongly and falsely involved in the FIR. The registration of the impugned FIR by the respondent against the petitioners is highly motivated in as much as the same has been registered by the respondent on the directions of his superior officer holding the rank of Inspector General of Police, Jammu Zone, Jammu. It is further submitted that the complainant being fully aware and having the knowledge that the earlier FIR registered against the petitioners on the basis of his complaint was closed as not proved, he instead of filing a complaint with the Police Station concerned routed the same through the offices of the Director General of Police and the Inspector General of Police. The IGP, Jammu Zone, Jammu, without associating and involving the petitioners with any enquiry conducted pursuant to the complaint filed by the complainant directed the respondent to register the FIR against the petitioners vide his office letter No.16.08.2017. The SHO Police Station, Channi Himmat, Jammu, being a subordinate officer was not even allowed to go through the contents of the complaint and hold a preliminary investigation or enquiry in the matter and he by succumbing to the pressure and the influence of the IGP Jammu Zone, Jammu registered the impugned FIR. The mode and manner in which the impugned FIR has been registered is highly perverse and contrary to the provisions of law and, therefore, the same cannot sustain the test of judicial scrutiny. None of the ingredients essential for the proof of the offences leveled against the petitioners is made out in the case. The lodging of FIR in the instant case is a result of a mala fide action and non application of mind. The FIR impugned is being used as a tool for harassing and victimizing the petitioners notwithstanding the fact that the petitioners are not involved in any of the offences. Viewed from any angle, the impugned FIR is contrary to the provisions of law and has been registered with the oblique motive of harassing and victimizing the petitioners at the hands of the respondents. The allegations contained in the impugned FIR if taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the petitioners; Added to it is that the FIR impugned is nothing but a lever used to cause harm to the otherwise well reputed image and reputation of the petitioners. At the end it has been urged that with a view to prevent the abuse of the process of law and to secure the ends of justice, the petitioners seek the indulgence of this Court to invoke its inherent jurisdiction under the provisions of Section 561-A Cr.P.C and quash the FIR impugned.