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TMI Blog2020 (4) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... ction and infrastructure projects in various sectors such as water and wastewater, transportation, irrigation, industrial construction, power transmission and distribution, buildings both residential commercial and retail property since the year 1994 and has a reputation of delivering quality services over a period of 25 years. It is claimed that the petitioner company had placed purchase orders on 5th respondent in the present writ petition for supply of construction equipment during the year 2012. It is also claimed that in respect of the said purchase orders placed by the petitioner company on the 5th respondent and the supplies affected by the said respondent the petitioner company cleared all the payments due under the purchase orders placed in respect of the goods supplied by the said respondent promptly and closed the account of the 5th respondent. ii) It is claimed by the petitioner that some disputes arose over the quality of certain goods supplied by the 5th respondent which the petitioner did not accept and the last payment in respect of the admitted amounts due and payable was made by the petitioner on 27.05.2015. iii) It is the case of the petitioner that the 5th r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 5th respondent. Immediately, the petitioner company through its authorised representative sought to lodge a police complaint with the 4th respondent police authority with regard to the alleged act of forgery resorted to by the 5th respondent. As the said authorities refused to receive the complaint, the petitioner company lodged the same with the 4th respondent authority through email on 03.09.2019, which was duly acknowledged by the authorities by giving an ID number 1337. vii) It is claimed that the petitioner company had to lodge the above complaint by an email as the 4th respondent did not accept the criminal complaint stating that the matter is sub judice and consequently requiring a direction from the Honourable NCLT to lodge an FIR and investigate further. viii) It is also claimed that despite the petitioner company lodging a complaint with the 4th respondent by email dated 03.09.2019, the 4th respondent authority did not register the FIR based on the complaint made by the petitioner company, while the company petition filed by the 5th respondent is being proceeded with by the NCLT and hence, the petitioner is constrained to approach this Hon'ble court seeking a direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the main challenge in the present writ petition is to the inaction of the official respondent in not registering an FIR on the basis of the complaint made by the petitioner, this court felt that issue of notices to the respondents 5 to 7 unnecessary and took up the matter for hearing. 6. The substantial issue that needs consideration in the present writ petition is as to i) whether the action of the official respondents in not registering FIR on the basis of the complaint made by the petitioner can be said to be valid though such complaint discloses a cognizable offence of forgery being committed for filing a case into the court against the petitioner; and ii) whether the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can direct the official respondents to register an FIR on the basis of the complaint made by the petitioner. 7. Though elaborate arguments were advanced by both the learned counsel for the petitioner as well as on behalf of the official respondents as to whether the action of the 4th respondent in directing the petitioner to approach the NCLT for the redressal of the complaint is justified or not. It is submitted by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Lalitha Kumari (supra), the respondent police authorities are required to cause an enquiry and cannot register a case straightaway on the complaint when such complaint relates to commercial dispute. Since, the dispute of alleged act of forgery relates to commercial transaction between the petitioner and the unofficial respondent, the respondent authorities after conducting preliminary enquiry had issued notice to the petitioner with regard to the action taken on the complaint made, and informing the petitioner to approach the NCLT and if the petitioner is aggrieved by the said notice, it is open for the petitioner to approach appropriate forum to avail the remedies in accordance with law against the said action of the official respondent u/s. 340 of Cr. P.C. and the High Court cannot direct registration of an FIR based on the complaint so made under Article 226 of the Constitution of India. In support of the above submission, learned Government Pleader placed reliance on the judgement of the Hon'ble Supreme Court in the case of - Sakiri Vasu V. State of U.P. (2008) 2 SCC 409. 9. Having regard to the submissions made on either side, it is to be seen that the scope and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large. 26. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cognizable offence, registration of FIR is mandatory. The only leeway granted by the Hon'ble Supreme Court is with regard to certain matters, the authorities were permitted to cause preliminary inquiry only to ascertain whether the information reveals any cognizable offence or not, but not to verify the veracity or otherwise of the information received. 14. Further, a perusal of the notice dated 29.10.2019 as issued by the respondent police to the petitioner informing the action taken on the complaint made, though it is claimed is after preliminary inquiry, however does not record any reasons for the said authority coming to the conclusion that the complaint so made does not disclose commission of any cognizable offence. The reason as stated in the said notice is that the preliminary inquiry revealed there is a civil dispute pending between parties before the NCLT, as such the party is directed to approach the NCLT for redressal. The reason as stated in the notice can not be said to be valid and justiciable, since the main grievance of the petitioner in the complaint made is relating to the sign and stamp affixed in its name on the Ledger A/c statement being forged one and havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supra) on the aspect of power of police to investigate into a cognizable offence being circumscribed by Section 195 of the code, wherein it was observed that - "8. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh reported in 1998 (2) SCC 391. In this case it has been that as follows : "2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468, I. P. C. by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii), Cr. P. C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195, Cr. P. C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1), Cr. P. C; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified under Section 156 of the Code, instead of issuing notice claiming that a civil dispute is pending before NCLT and directing the petitioner to approach NCLT for redressal as noted herein above. 19. Having come to the above conclusion, this takes me to the other question, i.e., whether the High Court in exercise of jurisdiction under Article 226 of the Constitution of India, can direct the registration of FIR? 20. It is submitted by the learned AGP, that the respondent police authorities having issued a notice to the petitioner on 29.10.2019 informing the action taken on the complaint made after making an entry in the General Diary, it is always open for the petitioner to approach the competent Magistrate court by filing a private complaint under Section 200 of the Code, if he is aggrieved by the said notice and get the complaint referred to the police authorities for investigation and filing a report before the concerned Magistrate under Section 156 of Code. Further, he would also submit that this court cannot direct registration of an FIR in view of the settled position of law as explained in the case of Sakiri Vasu (Supra). 21. In the case of Lalita Kumari (Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Magistrate under Section 156(3). If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?" In the above decision it was further observed thus - "It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere." 24. Having regard to the position of law as enunciated by the Hon'ble Supreme Court, and having regard to the fact that a notice has been issued by the 3rd respondent, to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also ensure a proper investigation in the matter, and he can also monitor the investigation. 4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside." 25. Though this court having come to the conclusion that the respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner, this court cannot in a writ petition direct the respondent police authorities to register an FIR and investigate into the matter being complained of, in view of the authoritative pronouncements of the Hon'ble Supreme Court in the case of Sakiri Vasu (Supra), followed in Sudhir Bhaskarrao Tambe case and further as reiterated in the case M. Subramaniam and Another (Supra), which binds this court under Article 141 of the Constitution of India. Thus, the main relief sought for in the present writ petition of "directing the respondent official to register an FIR on the basis of the complaint" cannot be granted and since a notice has been issued to the petitioner informing the action taken on the basis of the complaint lodged, it is left open for the petitioner to approach the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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