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TMI Blog2024 (10) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CMM, Saket Courts, Delhi against Petitioner No. 2, Varun Kalra. 3. On 27th September, 2016, the aforesaid application under Section 156 (3) Cr.P.C. was withdrawn by Respondent No. 2. Subsequently, the ld. Metropolitan Magistrate vide order dated 09th November 2016 recorded that the abovementioned complaint was also dismissed as withdrawn at the instance of Respondent No. 2. 4. FIR No. 273/2016, which is the subject matter of the present case was registered at the instance of Respondent No. 2, Sh. Vishal Diwan at P.S. Chittaranjan Park on 18th October, 2016 under Sections 420/406/506 IPC. The allegations made in the FIR are set out as under: i. It is alleged by Respondent No. 2 that the Petitioners were well acquainted to him for more than 10 years, and claimed themselves to be the Directors of SPL Marketing Private Limited. Sometime in April 2014, Varun Kalra (Petitioner No. 2) had approached him to invest money in his company for the purpose of starting a new business venture of importing cooling towers and its components. ii. It is alleged that accused/Petitioner No. 2 induced Respondent No. 2 to firstly pay Rs. 10 lakhs by way of cash on 10th June, 2014. Later, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Private Limited avoided to accept the liability for the payment of money. He further states that he had been threatened by Petitioner No. 1 stating that if he does not withdraw his complaints against him and Petitioner No. 2, he would get the Complainant killed and his body will not be found by his family. 5. Respondent No. 2 had also filed a Complaint Case no. 632042/2016 under the Negotiable Instruments Act, 1881 before the Ld. MM (NI Act)-/SE/ND, Civil Judge, Saket Court, New Delhi. 6. It is stated that during the investigation the accused/Petitioner No. 2 was called for investigation after a notice was sent under Section 41-1(A) of the Cr.P.C., however, he did not join the investigation. Petitioner No. 1, who is the father of the accused/Petitioner No. 2 stated that his son was not present in India. Consequently, look out circular of Petitioner No. 2 was opened after which he returned to India and joined the investigation. 7. Upon completion of investigation, a chargesheet was filed qua the accused /Petitioner No. 2 on 18th October, 2018 under Section 420 of IPC and Petitioner No. 1 was not arrayed as an accused. SUBMISSIONS ON BEHALF OF THE PETITIONERS 8. Learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 12. According to the Complainant/Respondent No. 2, in the present case, he was induced by the accused to part with a considerable sum of money on, inter alia, the dishonest/false pretext of return (12-15%) besides assuring the repayment of principal amount. Being so deceived, the Complainant had paid the amount to the accused. Later, to return the amount, Petitioner No. 2, Varun Kalra had dishonestly issued two cheques, which are the subject matter of the present FIR, with different signatures. The cheques were returned unpaid/dishonoured for the reasons of "signature differ". He also places reliance on the bank opening form annexed with the chargesheet and states that there is sufficient material on record including the undisputed signatures of Petitioner No. 2 to show that he deliberately appended his incorrect signatures on the two cheques as he had every reason to believe that the cheques would be dishonoured. 13. Further, he submits that the accused/Petitioner No. 2 contemporaneously executed an agreement and a promissory note in favour of Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... renewed immediately thereon. Further, Petitioner No. 2 was advised by his attorney not to travel unless his visa was renewed, and therefore, Petitioner No. 2 joined the investigation at a later stage. ANALYSIS AND FINDINGS 18. The primary contention on behalf of the Petitioners is that the present FIR cannot be allowed to be continued and deserves to be quashed, in view of the fact that a similar complaint filed by the Complainant herein was dismissed as withdrawn vide order dated 09th November, 2016 by the ld. Metropolitan Magistrate, Saket Court. It is submitted that the complaints were identical in nature and that in fact in pursuance of order dated 27th February, 2023 passed by the Predecessor Bench of this Court, a report was placed by the Investigating Officer which demonstrates that except for the contents of allegations levelled against Petitioner No. 1 all the other allegations in the previous complaint as well as the present FIR are identical. It is further submitted that even as per the chargesheet, the allegations against Petitioner No. 1 could not be substantiated and therefore, he was not charge sheeted. 19. It is the contention on behalf of the Petitioners that si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence is made out. On 27th September, 2016, the application under Section 156 (3) Cr.P.C. was dismissed as withdrawn by the learned Metropolitan Magistrate, Saket Courts. On 18th October, 2016, the present FIR was registered at P.S. Chittaranjan Park and, thereafter, on 09th November, 2016, the complaint under Section 200 Cr.P.C. was dismissed as withdrawn by the learned Metropolitan Magistrate, Saket Courts. There is no dispute with regard to the fact that the allegations made in the complaint before the learned Metropolitan Magistrate as well as in the present FIR are similar except for an additional allegation qua Petitioner No. 1 for offence punishable under Section 506 IPC. 23. It is also now a matter of record that the complaint under Section 200 Cr.P.C. before the learned Metropolitan Magistrate was dismissed as withdrawn after the registration of FIR. Thus, the contention of learned counsel for the petitioners that the FIR was registered after the dismissal of the complaint is factually incorrect. What was withdrawn was the application under Section 156 (3) Cr.P.C. seeking direction for registration of FIR and, therefore, whether the same could be a bar for registration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge: "1. That a Magistrate can order investigation under Section 156 (3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156 (3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code. 2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code" 26. What is prohibited is a second FIR on the same cause of action, which is not a counter case as held by the Hon'ble Supreme Court in TT Anthony vs State of Kerala, (2001) 6 SCC 181. The provision of Section 210 of the Cr.P.C. provides for a procedure where the Magistrate shall enquire into trial in a complaint case as well as a case arising out of police report and treat both of them as cases instituted on a police report. However, in the present case, as pointed out hereinabove, Respondent No. 2 subsequently withdrew his complaint under Section 200 of the Code vide order dated 09.11.2016, i.e., after registration of the present FIR on 18.10.2016. 27. In Samta Naidu (supra), the Hon'ble Supreme Court was dealing with the situation wherein a complaint was filed and the same was dismissed by the learned Metropolitan Magistrate on merits under Section 203 of the Cr.P.C. The Complainant being aggrieved filed a revision before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that on the basis of such forged documents the benefit of "sale consideration of the vehicle" was derived by the accused. The order dated 5.7.2013 passed by the Judicial Magistrate First Class, shows that after considering the evidence and documents produced on behalf of the complainant, no prima facie case was found and the complaint was rejected under Section 203 of the Code of Criminal Procedure, 1973. The stand taken before the Revisional Court discloses that at that stage some new facts were said to be in possession of the complainant and as such liberty was sought to withdraw the Revision with further liberty to file a fresh complaint. The liberty was not given and it was observed that if there were new facts, the complainant, in law would be entitled to present a new complaint and as such there was no need of any permission from the Court. The Revisional Court was definitely referring to the law laid down by this Court on the basis of the principles in Taluqdar. Thereafter a complaint with new material in the form of a credit note and Registration Certificate was filed. The core allegations, however, remained the same. The only difference was that the second complaint re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptional circumstances. In case the first protest petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh protest petition is filed giving full details, we fail to understand as to why it should not be maintainable." (Emphasis supplied) 16. As against the facts in Shivshankar, the present case stands on a different footing. There was no legal infirmity in the first complaint filed in the present matter. The complaint was filed more than a year after the sale of the vehicle which meant the complainant had reasonable time at his disposal. The earlier complaint was dismissed after the Judicial Magistrate found that no prima facie case was made out; the earlier complaint was not disposed of on any technical ground; the material adverted to in the second complaint was only in the nature of supporting material; and the material relied upon in the second complaint was not such which could not have been procured earlier. Pertinently, the core allegations in both the complaints were identical. In the circumstances, the instant matter is completely covered by the decision of this Court in Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad affixed his signatures as well as thumb impressions. It is alleged that over the period of time, Respondent No. 2 had paid total sum of Rs. 21 lakhs to Petitioner No. 2. It is alleged that when Respondent No. 2 demanded his money back, Petitioner No. 2 transferred a sum of Rs. 2,50,000/- and also handed over two cheques of Rs. 9 lakhs and 10 lakhs each. The aforesaid two cheques which were post-dated, when presented were dishonoured for the reason "drawer signatures differ." It is the case of Respondent No. 2 that Petitioner No. 2 intentionally signed on the cheques in a manner which is different from his records on the bank, and thus during the course of the investigation, it has come on record that the signatures on cheques as well as the admitted signatures of Petitioner No. 2 on various documents were different. The said report has been filed by way of supplementary chargesheet before the concerned competent Court. 32. Petitioner No. 2, however, in his petition has taken a stand in the following manner: "6. That Respondent No. 2 (Sh. Vishal Diwan) along with his associates runs a racket of extortion and blackmailing, wherein, under the false pretext of and illegal Chit fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner No. 2 has shifted and has been residing in U.S.A since 5th May, 2015 with his family. It is also pertinent to mention that Petitioner No. 2 prior to moving abroad informed Respondent No. 2 about his immigration to the USA and showed his unwillingness to continue with the committee, on which Respondent No. 2 assured Petitioner No. 2 that his presence is not required and also asked him to issue some Signed, Blank Cheques; Blank papers. In furtherance to that Respondent No. 2 also assured Petitioner No. 2 that within a month, committee will pay him the entire sum which Respondent No. 2 has invested in the second committee which was drawn/issued in Petitioner No. 2 name. It is relevant to mention here that all the particulars of 10-11 cheques approx. issued by Petitioner No. 2 were left blank except the signatures and on two cheques amounts were filled of Rs. 20 Lacs and Rs. 40 Lacs, accordingly with signatures however, the same were undated and unnamed. 12. That after Petitioner No. 2 shifted to U.S.A., in the year 2015, aforementioned blank and signed cheques were distributed by Respondent No. 2 to his associates and on the basis of same cheques, false and frivolous cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not Charge sheeted. As per allegation money was given to Varun Kalra in cash and through cheques in the personal account of Varun Kalra. Original Loan Agreement along with Promissory Note along with admitted signature of Varun Kalra and specimen signature of Varun Kalra have been sent to RFSL, Chanakyapuri, New Delhi for expert opinion regarding the signature of Varun Kalra on the documents vide acknowledgement of case acceptance no. RFSL (CH.P)-2018/DOC-1012 dated:- 28.09.2018. After obtaining the result from RFSL, Chanakyapuri, New Delhi supplementary Charge sheet of the case will be filed u/s 173.8 СгPC. From the investigation conducted, statements of witnesses recorded, report/documents received from the Bank Manager of HDFC Bank there are sufficient evidences on record that accused Varun Kalra S/o Sh. Satpal Kalra R/o A-4/237, Konark Appartments, Kalkaji Extention, New-Delhi 110019, has intentionally signed the differ signature on the cheque no. 000012 and 000017 A/c no. 16621930003106 and handed over the same to the Complainant and on representation the cheques were returned unpaid. Accused Varun Kalra who has joined the investigation as and when he was called for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two-Judge Bench of this Court, observed that : (SCC pp. 547-48, para 8) "8. ... While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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