Delhi High Court
Sanaulla Zulfiqar Ahmed Khan vs State Of Delhi & Anr. on 29 October, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th OCTOBER, 2024
IN THE MATTER OF:
+ CRL.M.C. 1785/2022 & CRL.M.A. 7583/2022
SANAULLA ZULFIQAR AHMED KHAN .....Petitioner
Through: Mr. Himanshu Sharma with Ms.
Ankita, Advocates.
versus
STATE OF DELHI & ANR. .....Respondents
Through: Ms. Priyanka Dalal, APP
Mr. Rajan Raj, Mr. Pulkit Kamboj,
Advocates for R-2.
SI Manoj Kumar, SI Akshay Yadav,
PS Paschim Vihar West.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. This petition has been filed under Section 482 CrPC seeking to quash
FIR No.785/2020 dated 15.10.2020 registered at Police Station Paschim
Vihar, West, New Delhi for offences under Section 420 read with Section 34
IPC.
2. The facts, in brief, leading up to the filing of the petition are as
follows:-
a) It is stated that Respondent No.2 completed his pilot training and
got his license on 07.08.2013. On coming to know that respondent
No.2 was looking to join as a pilot, Accused No. 2 and Accused
No.3 approached Respondent No.2 and introduced themselves asSignature Not Verified
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By:SHAZAAD ZAKIR
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Directors of a company named ABC Aviation and Training
Services Pvt. Ltd.
b) It is stated that on 18.11.2014, Respondent No.2 was called by
Accused No.3 for a written test for appointment as a pilot. He was
then called by Accused No.5 who asked him to deposit Rs.
25,00,000 for the self training programme. On 22.11.2014,
Respondent No.2 visited the office of the accused persons at the
airport in Bangalore and handed over Rs. 25,00,000 to accused
No.3.
c) It is stated that after submitting the said amount, Rs. 35,000 was
further demanded to conduct the test and after conducting the test,
Accused No.3 further demanded Rs.10,00,000 for a change in
aircraft programme cum training. Accused No.5 in continuance of
the demand collected a demand draft of Rs. 5,00,000 from
Respondent No.2.
d) It is stated that Accused No.3 sent an offer letter through email for
a cost of Rs. 37,00,00 and further in pursuance of the above mail,
an additional amount of Rs. 2,00,000 was demanded by Accused
No.3 and 5 which was then deposited by Respondent No.2 in the
bank account of the accused persons.
e) It is stated that in the month of March and April 2015, the accused
persons did not answer the calls of Respondent No.2. It is stated
that the Respondent No.2 threatened to initiate legal proceedings
against the accused. It is further stated that on 13.11.2015 under
the fear of legal action, accused No.2 and 3 deposited Rs.33,000 in
the account of Respondent No.2.
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f) It is stated that after repeated requests and demands, accused No.2
on behalf of other accused persons issued two cheques dated
15.7.2017 amounting to Rs. 18,50,000/- each i.e. Rs. 37,00,000/-
in total which were then dishonoured by the bank. A case under
Section 138 Negotiable Instruments Act was filed by Respondent
No.2 against the accused persons and the same is pending before
the Ld. Metropolitan Magistrate.
g) It is stated that Respondent No. 2 on 27.8.2019 filed an
application under section 156 (3)Cr.PC before the Ld. Chief
Metropolitan Magistrate praying for registration of an FIR for
offences under Section 420, 406, 34 r/w 120B IPC. The Ld. Chief
Metropolitan Magistrate vide order dated 06.10.2020 in Complaint
Case No. 13613/2019, directed registration of an FIR, in
pursuance of which FIR No. 785 of 2020 was registered against
the petitioner and other accused persons for offences under section
420 r/w 34 IPC.
h) The petitioner has approached this court seeking to quash the FIR
No. 785 of 2020 on the ground that an earlier FIR, i.e., FIR No.
198 of 2017 was filed on 14.9.2017 in Bangalore on the same set
of facts and allegations by the Respondent No.2. It is further stated
that the factum of an earlier FIR was concealed from the Ld. Chief
Metropolitan Magistrate therefore the present FIR is to be quashed
on the ground that two FIRs cannot be filed for the same offence.
3. Learned Counsel for the petitioner submits that the present FIR at
Delhi was lodged without informing the Ld. Chief Metropolitan Magistrate
about the earlier FIR registered at P.S Cubbon Park, Bangalore filed by
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Respondent No. 2 and other persons. In the earlier FIR, i.e., FIR No.
198/2017 the allegations by the Petitioner are that the co-accused persons
have cheated the complainants of a sum of Rs 4 crore on the pretext of
providing them jobs in the airlines sector and chargesheet has been filed in
the earlier FIR.
4. Learned Counsel for the petitioner also submits that on the set of
facts, as stated in the Complaint, if an offence has taken place in Bangalore
then the complaint is not maintainable in Delhi.
5. Learned counsel for the petitioner also submits that there is a delay of
over 3 years in filing the application u/s 156 (3) CrPC which was not taken
into consideration before cognizance was taken by the Magistrate.
6. Learned Counsel for the petitioner places heavy reliance on the
Judgment of T.T Anthony vs. State of Kerala & Ors., 2001 (6) SCC 181, in
which the Apex Court has observed as under:-
“27. A just balance between the fundamental rights of
the citizens under Articles 19 and 21 of the
Constitution and the expansive power of the police to
investigate a cognizable offence has to be struck by the
court. There cannot be any controversy that sub-
section (8) of Section 173 CrPC empowers the police
to make further investigation, obtain further evidence
(both oral and documentary) and forward a further
report or reports to the Magistrate. In Narang case
[(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was,
however, observed that it would be appropriate to
conduct further investigation with the permission of the
court. However, the sweeping power of investigation
does not warrant subjecting a citizen each time to fresh
investigation by the police in respect of the same
incident, giving rise to one or more cognizable
offences, consequent upon filing of successive FIRsSignature Not Verified
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whether before or after filing the final report under
Section 173(2) CrPC. It would clearly be beyond the
purview of Sections 154 and 156 CrPC, nay, a case of
abuse of the statutory power of investigation in a given
case. In our view a case of fresh investigation based on
the second or successive FIRs, not being a counter-
case, filed in connection with the same or connected
cognizable offence alleged to have been committed in
the course of the same transaction and in respect of
which pursuant to the first FIR either investigation is
under way or final report under Section 173(2) has
been forwarded to the Magistrate, may be a fit case for
exercise of power under Section 482 CrPC or under
Articles 226/227 of the Constitution.”
7. The learned Counsel for the Petitioner while relying on the aforesaid
Judgment submits that in the present case, Respondent No.2 has registered a
second FIR on the same set of facts and for the same offence alleged, by
concealing material facts from the learned Chief Metropolitan Magistrate.
8. Per contra, learned Counsel for the Respondent states that in the
earlier complaint filed in Bangalore, the complainant in the present case is
not a complainant and his name figures as a victim.
9. Learned Counsel for the Respondent places reliance on Babubhai vs.
State of Gujarat, (2010) 12 SCC 254 in which the Apex Court has held that
in case of a subsequent FIR, the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of sameness is to be
applied to find out whether:-
(i) The FIRs relate to the same incident in respect of the same
occurrence or are in regard to incidents which are two or more
parts of the same transaction.
OR
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(ii) Where the version of the second FIR is different and they are in
respect of two different crimes/incidents.
In case of (ii), the second FIR is permissible.
10. Learned Counsel for the Respondent also relies on the case of Anju
Choudhary v. State of U.P., (2013) 6 SCC 384 in which the Apex Court has
observed that one can give an example of the same group of people
committing theft in a similar manner in different localities falling under
different jurisdictions. Even if the incidents were committed in close
proximity of time, there could be separate FIRs and institution of even one
FIR stating that a number of thefts has been committed would not debar the
registration of another FIR. When the offences alleged to be committed in
the two FIRs are different and distinct and lodged by different persons in
relation to occurrences which are alleged to have occurred at different points
of time, against different people and for different offences, the requirement
of proof in both cases was completely distinct and different.
11. Heard the learned Counsels for the parties and perused the material on
record.
12. The Status Report on record indicates that the learned ASJ was
directed to verify whether the complainant in the present case, i.e.,
Respondent No.2 made any statement before the Investigating Officer of
FIR 198/2017 registered at P.S. Cubbon Park, Bangalore. A notice was
served u/s 91 Cr.P.C to SHO/Cubbon Park. As per the reply of the said
notice it is revealed that statement of complainant/ Respondent No.2 u/s 161
CrPC was recorded by the IO and his name is mentioned in the list of
witnesses in the chargesheet. This means that the Respondent No.2 is not the
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Complainant. Furthermore, the complainant/ Respondent No.2 was
examined in the present case, states that he has never visited the said police
station or was examined by IO in the earlier case.
13. The Supreme Court in Shiji v. Radhika, (2011) 10 SCC 705, has
observed as under:-
“18. Having said so, we must hasten to add that the
plenitude of the power under Section 482 CrPC by
itself, makes it obligatory for the High Court to
exercise the same with utmost care and caution. The
width and the nature of the power itself demands that
its exercise is sparing and only in cases where the High
Court is, for reasons to be recorded, of the clear view
that continuance of the prosecution would be nothing
but an abuse of the process of law. It is neither
necessary nor proper for us to enumerate the situations
in which the exercise of power under Section 482 may
be justified. All that we need to say is that the exercise
of power must be for securing the ends of justice and
only in cases where refusal to exercise that power may
result in the abuse of the process of law. The High
Court may be justified in declining interference if it is
called upon to appreciate evidence for it cannot
assume the role of an appellate court while dealing
with a petition under Section 482 of the Criminal
Procedure Code. Subject to the above, the High Court
will have to consider the facts and circumstances of
each case to determine whether it is a fit case in which
the inherent powers may be invoked.”
14. In Gian Singh v. State of Punjab, (2012) 10 SCC 303, while dealing
with the power of High Court to quash criminal proceedings under Section
482 Cr.P.C., the Supreme Court observed as under:-
“61. The position that emerges from the above
discussion can be summarised thus : the power of theSignature Not Verified
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High Court in quashing a criminal proceeding or FIR
or complaint in exercise of its inherent jurisdiction is
distinct and different from the power given to a
criminal court for compounding the offences under
Section 320 of the Code. Inherent power is of wide
plenitude with no statutory limitation but it has to be
exercised in accord with the guideline engrafted in
such power viz. : (i) to secure the ends of justice, or (ii)
to prevent abuse of the process of any court. In what
cases power to quash the criminal proceeding or
complaint or FIR may be exercised where the offender
and the victim have settled their dispute would depend
on the facts and circumstances of each case and no
category can be prescribed. However, before exercise
of such power, the High Court must have due regard to
the nature and gravity of the crime. Heinous and
serious offences of mental depravity or offences like
murder, rape, dacoity, etc. cannot be fittingly quashed
even though the victim or victim’s family and the
offender have settled the dispute. Such offences are not
private in nature and have a serious impact on
society… ”
15. Coming to the facts of this case, the Petitioner-accused has
represented himself as the director of a company and on the pretext of
proving a job to the Respondent No.2-complainant and duped him of
Rs.37,00,000/-. The status report indicates that the earlier FIR was registered
by a different complainant.
16. The accused persons including the Petitioner have duped the
complainant and other persons of a large sum of money. This court in the
exercise of its power under Section 482 CrPC must proceed with utmost
care and caution. Each victim can file a separate complaint and separate FIR
can be registered as it is a separate offence qua the victim.
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By:SHAZAAD ZAKIR
Signing Date:04.11.2024
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17. This Court is not in a position to quash the FIR on the basis of an
earlier FIR filed on a similar set of facts and offences as the FIR was filed
by a different complainant. Applying the test of sameness as laid down by
the Apex Court in Babubhai v. State of Gujarat (2010) 12 SCC 254, the
complainant in the present case has not filed the earlier complaint.
18. A reading of the allegations in the FIR and the status report, it is
evident that petitioner along with other accused persons has been accused of
duping several persons of a substantial amount of money. The present FIR
cannot be quashed on ground of an earlier complaint being filed.
19. Accordingly, the present petition is dismissed along with pending
applications, if any.
SUBRAMONIUM PRASAD, J
OCTOBER 29, 2024
mp
Signature Not Verified
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By:SHAZAAD ZAKIR
Signing Date:04.11.2024
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