- (1.) VINOD Prasad, J. Petitioner Ajay Kumar Goyal has approached us by invoking our extraordinary jurisdiction under Article 226 of the Constitution of India with the prayer to issue a writ order or direction in the nature of certiorari quashing the impugned FIR dated 27. 10. 2007 lodged at the police station Kotwali, district Ghaziabad, registered at Crime No. 881 of 2007 under sections 406, 409, 420. 467, 468, 471 and 120-B IPC. The ancillary prayer is to pass any other writ, order or direction which this Court deems fit and proper on the facts and circumstances of the case.
(2.) BEFORE adverting to the contentions raised by the learned Counsel for the petitioner, a resume to the specific articulate facts generating this writ petition are briefed below. The petitioner is the nephew of the respondent No. 3 Mahesh Chandra informant as Mahesh Chandra is the Phoofa of the petitioner. Mahesh Chandra has got his abode and business place at 24 Naya Ganj Hall KH-2 Kavi Nagar, P. S. Kavi Nagar, district Ghaziabad. According to the allegations of the informant Ajai Kumar Goyal and his wife Smt. Prabha Goyal had got a proprietary Firm dealing in hardware business of steel in the name and style M/s. Ajay Steel at 220 Hapur Road, Ghaziabad of which Smt. Prabha Goyal is the side proprietor. In the month of February 1995 the present petitioner Ajay Kumar Goyal along with his wife Smt. Prabha Goyal approached Mahesh Chandra informant and asked for financial help and demanded Rs. 2 lakhs as they were unable to fulfill the demand regarding the supply of steel rods. They also convinced the informant that they will give 12 % interest on the amount to be advanced by the informant along with some share in the profit in accordance with the balance sheet. Informant relying upon their fraudulent deception and dishonest inducement parted with Rs. 2 lakhs and handed over the same to the petitioner and his wife vide cheque no. 866414 dated 1. 3. 1995 of Vaishya Bank Ltd. Navyug Market, Ghaziabad. The aforesaid cheque was in the name of the firm M/s. Ajay Steel. In return thereof the petitioner paid Rs. 2,20,000/- through cheque signed by Smt Prabha Goyal of Banaras State Bank Ghaziabad. According to the allegations this first transaction was a design and ploy to cheat the informant in future. On 2. 9. 1996 at 2 p. m. petitioner along with his wife again approached the informant respondent no. 3 and by fraudulently deceiving him induced him to pay Rs. 40 lakhs which amount they had no intention to repay at all from the very inception of the transaction. The informant on the said inducement and deception gave Rs. 40 lakhs through cheque No. 262930 dated 2. 9. 1996 from his Vaishya Bank Ltd. Ghaziabad to the petitioner and his wife. Since from the very inception of the said transaction the petitioner and his wife had no intention to repay the amount therefore they did not pay the same nor paid any heed to the demand for repayment. On 30. 8. 2007 at 7 p. m. informant along with his brother Satya Prakash and one Pankaj Sharma came to the house of the petitioner and requested him to pay back his money, interest and profit but was threatened for his life through mercenary in Rs. one lakh so that the dispute of the money comes to an end. Informant was assaulted by kicks and fists and was pushed out from the house by the petitioner. His wife also threatened the informant that he can not realise any amount from their firm M/s. Ajay Steel as in the transaction of Rs. 40 Lakhs the cheque, statement of account and the TDS certificates all were signed by the petitioner and not by Smt Prabha Goyal, the sole proprietor of the firm. According to the case of the informant this threat again amounted to breach of trust and fraud played by the petitioner and his wife upon the informant. Further allegations are that the act of the accused persons in getting the aforementioned document signed by the petitioner amounts to manufacturing of false document and thereby committing offences under sections 467, 471 and 120-B IPC. The informant was cheated to a tune of Rs. 40 lakhs by fabrication of false documents and by fraudulent deception therefore, he approached S. S. P. Ghaziabad through an application dated 6. 9. 2007 for getting his FIR lodged but his report was not taken down by the police consequently on the aforesaid allegations he invoked the power of the Magistrate under section 156 (3) Cr. P. C. On 12. 9. 2007 to get his FIR registered. According to the pleadings made in this writ petition the aforesaid application under section 156 (3) Cr. P. C. was registered as Misc. Case No. 113/9 of 2007. Vide order dated 24. 10. 2007 ACJM. I Ghaziabad ordered for registration of the FIR and resultantly armed with the said order, the police registered the FIR against the petitioner as Crime No. 881 of 2007, under sections 406, 409, 420,467, 468 and 471 IPC at P. S. Kotwali, district Ghaziabad on 27. 10. 2007 at 6. 15 p. m. vide Annexure No. 1 to this writ petition which FIR is impugned in this writ petition with the prayer that it be quashed.
(3.) IN this writ petition Sri Mangla Prasad Rai and Sri S. P. Srivastava Advocates have filed a counter affidavit on behalf of informant respondent which was taken on record. Filing of rejoinder affidavit however was forgone by the learned Counsel for the petitioner. On the aforesaid factual matrix we have heard Sri K. K. Arora learned Counsel for the petitioner in support of this writ petition and two learned Counsels on behalf of the informant respondent No. 3 and learned AGA on behalf of respondent Nos. 1 and 2 and have perused the impugned FIR and other documents on record.;