SATISH KUMAR MITTAL, J. - (1.) THE question for consideration in this case is whether on a complaint filed by a person, an FIR can be registered for the alleged offence if the said person had earlier filed a complaint before the Magistrate exactly on the same allegations, and the Magistrate after obtaining the report from the police under Section 202 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and after recording the preliminary evidence, had dismissed the same under Section 203 of the Code after observing that the complainant has failed to prove the alleged offence; and whether lodging of the FIR and continuation of the proceedings thereon on such complaint will be an abuse of the process of law and are liable to be quashed.
(2.) BEFORE considering the aforesaid question, it is necessary to give certain facts of this case. On 20.5.2002, Balbir Singh (respondent No. 2 herein) filed a complaint before the Judicial Magistrate Ist Class, Jagadhri against petitioners Jagir Singh and his son Raju under Sections 323/406/419/420/467/504/506 IPC. In the said complaint, it was alleged that the complainant had business dealing with petitioner No. 1, who was doing the business of electric repairs. In the year 1999, both the petitioners visited the house of the complainant at his village and allured him that his son Mohinder Singh could be sent abroad if he could arrange an amount of Rs. 3,00,000/-. Mohinder Singh was holding a passport. It was further alleged that the petitioners had taken the said passport besides obtaining the signatures of the complainant and Mohinder Singh on many blank forms and papers. Thereafter, the complainant paid an amount of Rs. 5,24,600/- to the petitioners on different occasions. This amount was arranged by the complainant after mortgaging his agricultural land besides borrowing some amount from his relatives and selling his jewellery. It was further alleged that the petitioners forged some papers and passport of one Sushil Duggal on which they affixed the photograph of Mohinder Singh. The accused arranged the visa and supplied a copy of the same to the complainant. When it came to the knowledge of the complainant that the said visa was a forged document and when he made a complaint to the accused, they assured him that his son would be sent abroad as soon as possible, but the accused could not send the son of the complainant abroad and when he protested, the petitioners started threatening him and also visited the house of the complainant and abused him. On these allegations, the complaint was filed.
(3.) THE aforesaid complaint was sent for investigation and report to the police under Section 202 of the Code by the Magistrate. SHO, Police Station, Khizrabad reported that there was some financial transaction between the parties, but the alleged offence in the complaint was not established. Thereafter, the complainant himself appeared as a witness in his preliminary evidence and also produced on record copy of the passport of Sushil Duggal as Mark-A, copy of visa as Mark-B and copy of the mortgage deed as Mark-C. The Judicial Magistrate after taking into consideration of the police report as well as the preliminary evidence led by the complainant dismissed the complaint while coming to the conclusion that the complainant has failed to prove that the petitioners had cheated him and they had committed any forgery as there was no cogent evidence in support of those allegations. While dismissing the complaint, the following observations have been made by the Judicial Magistrate :- "From the perusal of the records of the case, it is evident that the complainant and the two accused had spoken to each other as one of the sons of Jagir Singh was abroad. The complainant has alleged that the two accused had allured him into parting with Rs. 5,24,000/- on the pretext of sending his son Mohinder Singh abroad. They had taken the passport and had obtained their signatures on blank papers and documents. There is no evidence in support of this contention that the accused had obtained the signatures and passport of the son of complainant and/or his son. The allegations are that the accused had thereafter forged passport of one Sushil Duggal had given it to the complainant for sending his son abroad. The complainant has stated that he had taken the passport and visa but his son was not sent abroad. This submission is clearly made in para No. 8 of the complainant. This is clearly admitted by the complainant and despite being fully aware that the passport and visa were forged documents, the complainant still chose to accept them. In para No. 4 of the complaint, the complainant has mentioned that the passport number of his son is B-114465/98, whereas from the perusal of the Mark-A, it is seen that the said is a copy of passport of one Sushil Duggal and its number is B- 0561010. This is not the same passport as that Mohinder Singh. There is no evidence on record to show that the passport Mark-A or visa Mark-B were forged or fabricated by the two accused in order to send Mohinder Singh, the son of the complainant, to a foreign country. If at all, the version of the complainant is to be believed then the complainant has himself admitted that he was fully aware about the forgery committed by the two accused and has willingly accepted the forged documents. Therefore, also the complainant can not lay any claim against the accused. In any case, the complainant has failed to show that any forgery has been committed by the two accused. Even, the witness of the complainant examined by the police during the course of investigation only shows that a sum of Rs. 2,50,000/- had been collected by the wife of the complainant by mortgaging the agricultural property vide Mark-C. There is no evidence on record to show that the said amount was paid to the accused. PW-Mewa Singh has stated that any amount of Rs. 2,50,000/- was paid to the two accused on 4.1.1999 and a sum of Rs. 1,50,000/- was paid on 10.1.1999. Thereafter, a sum of Rs. 1,24,000/- was paid in the year 2001. Mortgage deed Mark-C is dated 7.1.1999 and as per this an amount of Rs. 2,50,000/- was obtained by Smt.Karamjit Kaur. Even if this amount is presumed to have been paid to the two accused only a sum of Rs. 1,50,000/- was paid on 10.11.1999. The remaining sum of Rs. 1,24,600/- was paid to the two accused allegedly in the year 2001. There is no evidence on record to actually prove the payment. The accused have also been examined and they have also stated that they had introduced the (AS PER SCHEDULE) to one Dinesh Kumar in New Delhi, who was an agent for sending people abroad. It was through the said Dinesh Kumar that the son of Jagir Singh had gone to Germany. The version of the accused seems more plausible that having heard about the son of accused Jagir Singh, complainant was tempted to send his own son abroad. The accused have denied taking any money from the complainant or his family such like huge transactions are seldom made in cash, if the dealing is straight forward. In the present case also, by the own admission of the complainant, the transactions were not done in any straight forward manner. Though, there are allegations of forgery, the same have not been proved. Even if it were to be believed that the complainant had made some payment to the accused and now wants to recover the same it can not be allowed. This is basically a dispute of civil nature and, therefore, no criminal liability is made out at this stage. In any case, the complainant has failed to prove that the accused have cheated him or they have committed any forgery." ;