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TMI Blog2018 (10) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable before him. Petitioner certainly has right of fair investigation for which Investigating Officer is duty bound to conduct the fair investigation. However, FIR at this juncture cannot be quashed. Parties are directed to cooperate in the investigation. No case for interference is made out for quashment of FIR - petitions dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... y as well as order passed by the State Government, petitioner also filed a police complaint against the present petitioner with the allegation of manipulation in the record of society specially in respect of manipulation and interpolation in the list of membership. Since the authority did not take care of his complaint therefore, a petition under Section 482 of Cr.P.C. was preferred vide M.Cr.C. No.4215/2016. In the said petition, vide order dated 31/08/2016 in the light of the judgment rendered by the Hon'ble Apex Court in the case of Lalita Kumari Vs. State of U.P., (2014) 2 SCC 1, a direction was given in respect of consideration of the case therefore, offence has been registered against the present petitioner for the alleged offence as referred above. Registration of FIR has been challenged by way of present petition in M.Cr.C. No.1532/2017. 6. Petitioner has also preferred another case under Section 482 of Cr.P.C. vide M.Cr.C. No.1537/2017, in which the order dated 31/08/2016 passed in M.Cr.C. No.4215/2016 (Annexure A-11) is being sought to be recalled because according to the petitioner, the said order has been obtained through misrepresentation of facts and fraud and be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier the member of the society and a resolution was passed on dated 23/12/2009 to remove him from the executive committee therefore, it cannot be said that he is not a member. When 38 members were recorded on 10/07/2009 then how membership increased, is the question which needs to be investigated. He also referred an admit card dated 14/07/2009, which is issued under the signature of petitioner and as per the submissions of respondent No.2, petitioner was not the office bearer (Mantri) of Samiti on 14/07/2009. He became member on 19/12/2009 therefore, this is misrepresentation. He also referred certain documentary interpolations made in the record of the society to establish that petitioner has caused forgery in documents and manipulated them to gain the seat of secretary. It is further submitted that enquiry is to be conducted by the police thereafter, things would come with clarity. He relied upon the judgment of the Hon'ble Apex Court in the case of K. Ramakrishna and Others Vs. State of Bihar and Another, (2000) 8 SCC 547 and submits that once an order disposing of a criminal petition has been passed then the same cannot be modified, it amounts to review under Section 362 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this juncture no definite opinion can be given about the culpability or innocence of the petitioner. 16. Investigating authority is the agency equipped with such measures to take care of the allegations of respondent No.2 at this juncture. 17. The Hon'ble Apex Court in the case of Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and Another, (2012) 7 SCC 621, while dealing with the question of Double Jeopardy in respect of pendency of private complaint under Section 138 of Negotiable Instrument Act, 1881 vis a vis criminal prosecution has mandated as under:- "The fundamental right which is guaranteed under Article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy" i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraingned. The test is whether the former offence and the offence now charged have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjudicated to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary. " 19. Therefore, even if the dispute in respect of membership attained finality till the State Government level (although writ petition is still pending) but in the civil dispute, the issues were different. Here the elements of mens rea is involved and the intention to cheat or to receive wrongful gains or act of forgery are to be seen. Both move in different arena and therefore, at this juncture it could not be conclusively mandated that no mens rea is involved, which otherwise, petitioner wants through this writ petition. 20. Petitioner may produce all the documents before the Investigating Officer and may establish his part of truth and thereafter, Investigating Officer would decide on the basis of fact situation and documents available before him. Petitioner certainly has right of fair investigation for which Inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscloses commission of cognizable offence. 27. So far as plea of fraud and misrepresentation of facts is concerned, although it is the duty of a litigating party to produce all relevant documents on record before the Court before any order is passed and then petitioner (present respondent No.2) did not produce the documents in earlier round of litigation as referred by the present petitioner and such practice is deprecated by this Court but at the same time from perusal of the documents and submissions of the parties as well as perusal of the order dated 31/08/2016 passed in M.Cr.C. No.4215/2016, it appears that respondent No.2 only sought consideration of FIR in the light of the judgment rendered by the Hon'ble Apex Court in the case of Lalita Kumari (supra) and the said prayer was made in the light of the alleged mens rea displayed by the present petitioner. Therefore, the civil and criminal proceedings are different in nature and once this Court has already decided the matter earlier in M.Cr.C.1532/2017 whereby challenge has been made to registration of the FIR and this Court has dismissed the said petition therefore, no adversity would be caused to the petitioner. As submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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