1. Prayer in this petition is for quashing of FIR No.138 dated 08.06.2021 registered under Section 420 IPC at Police Station Kharar, District S.A.S. Nagar, Mohali.
2. Counsel for the petitioner has argued that the petitioner is a company engaged in the business of building and construction activity of multi-tower projects and is undertaking one such project in Sector 116, Mohali. It is further submitted that the complainant/respondent No.2 – Hari Om Paul Jalota, had booked 02 flats with the petitioner – company in the year 2011 and has made part payment of Rs.24 lacs on different dates. As per the stipulation, the possession of the flats was to be handed over in March, 2014 on making balance payment. Since the petitioner – company could not hand over the possession in time, the complainant/respondent No.2 approached the NRI Commission. On 24.07.2019, the NRI Commission marked an investigation to the Senior Superintendent of Police, S.A.S. Nagar, Mohali, and during the investigation, a compromise/settlement was arrived at between the petitioner and the complainant. It is further submitted that as per the Memorandum of Understanding (MOU) (Annexure P-3), the petitioner was to return the entire amount along with 8% simple interest as the complainant represented that he wanted his money back and was not interested in taking the flats, by making the balance payment.
3. Counsel for the petitioner has referred to Clause (e) of this agreement, which reads as under:-
“(e) The SECOND PARTY shall handover all original documents of the booking of the Flat/Unit and an agreement of cancellation of allotment/booking shall also be signed by the SECOND PARTY. It is made clear that the said cancellation of booking shall become effective only after getting the above mentioned compromise amount.”
Thereafter, the NRI Commission disposed of the said complaint on 04.09.2019. The complainant again approached the NRI Commission for revival on the ground that as per the MOU, the first payment made through demand draft was received, however, the second cheque was dishonoured, though, the petitioner cleared it through RTGS, however again, 03 subsequent cheques were dishonoured.
4. The NRI Commission vide order dated 18.12.2019 directed the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to take appropriate action and issued notice to the petitioner.
Thereafter, the petitioner appeared through its counsel on 13.02.2020 and stated that the petitioner has agreed to pay interest @ 8% for the delayed payment, till realization and the case was adjourned. On 17.08.2020, there was no representation by either of the parties due to lockdown, however, on the basis of an e-mail sent by the complainant, wherein it was requested that stern action be taken against Parkwood Developers Private Limited for disobeying the orders of the NRI Commission repeatedly. The e-mail was sent to the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to look into the matter and submit a report. On the adjourned date again, a request was made to provide more time to the petitioner.
5. In the meantime, the petitioner in response to the direction dated 17.08.2020 issued to the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to look into the matter for disobeying the order of the NRI Commission repeatedly, submitted a representation dated 26.04.2021 to the Deputy Superintendent of Police, Kharar, who was conducting the enquiry vide Annexure P11.
6. Counsel for the petitioner has further submitted that in para 6 of the representation, it is specifically stated that the entire amount, in lieu of cheques, has been paid to the complainant by way of RTGS. It was also stated that though some cheques were dishonoured but the complainant did not file any complaint under the Negotiable Instruments Act and due to financial hardship suffered by the petitioner – company, on account of the global pandemic COVID-19, the payment was delayed and the petitioner – company is not running away from its liability and undertake to pay the balance amount of interest within a reasonable period in installments.
7. Counsel for the petitioner has further argued that despite the fact that the entire amount stands returned and only part of the interest remains to be paid, the NRI Commission again passed an order on 02.06.2021, directing the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to submit the status report regarding the investigation before the next date of hearing and the case was adjourned for 27.09.2021.
8. Counsel for the petitioner has relied upon the order passed by the PIL Bench in CWP-PIL-77-2021, to submit that the instructions/guidelines have been issued to all the Courts/Tribunals, Judicial and Quasi- Judicial Authorities and referred to Guideline No. (viii), wherein it is stated that where an offence is cognizable prescribing sentence upto 7 years, the police should resist from arresting the accused without complying with the provisions of Section 41-A Cr.P.C. Counsel for the petitioner has, thus, submitted that now under the orders of NRI Commission, the FIR has been registered.
9. Counsel for the petitioner has further referred to the contents of the FIR to submit that after referring to the various orders passed by the NRI Commission directing the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to look into the matter and submit a report and subsequent order to complete the investigation and submit a report, in para 6 of the FIR, the following observation has been made:-
“6. Dated 23.02.2020. The Opposite Party had informed the Commission that due to agitation in Delhi, they cannot appear. On this, the Hon'ble Commission had directed the SSP, Mohali in writing to take legal action against the above said Company. The Opposite Party in their defence statement, has tried to take benefit of COVID-19 disease and tried to stretch long the payment of the amount and by bouncing of the cheque, the dispute is being tried to be made of a civil nature. The statement given by the Opposite Party is not clear and satisfactory. On the basis of the above said facts, it is clear that the Opposite Party M/s Parkwood Developers Ltd. Kharar Landra Road, Kharar had agreed to make part payment and later on, to cheat the applicant, got the cheques bounced. Thus, it is recommended to register a case U/s 420 IPC in Police Station, Kharar Sadar against M/s Parkwood Developers Ltd., Kharar Landra Road, Kharar. Report is submitted. The Hon'ble SSP has also agreed with the report submitted by Deputy Superintendent of Police, Sub- Division No.1, Kharar and the application sent for registration of the case of the above said offence against the above said.”
10. Counsel for the petitioner has also submitted that on the face of it, the FIR has been registered without holding how any cognizable offence is made out and it is registered on the ground that the petitioner has though, agreed to make the payment of interest, however, the cheque bounced and therefore, offence under Section 420 IPC is made out. It is further submitted that there is no 'mens rea' on the part of the petitioner to commit any such offence as despite COVID-19 situation and facing financial hardship in the intervening period, the petitioner has paid the entire principal amount and even 70% amount towards the interest is paid and therefore, there was no occasion to register the FIR.
11. Counsel for the petitioner has also submitted that NRI Commission has adopted a coercive method directing the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to conduct investigation and submit the report by repeatedly issuing orders, due to that reason, the FIR has been registered without there being any cognizable offence.
12. Counsel for the petitioner has further referred to the order dated 13.12.2019 passed in CRM-M No.41446 of 2017, wherein in similar circumstances, the Co-ordinate Bench of this Court has observed as under:-
“Though the last paragraph of the order of the Commission does not reflect that the Commission has recommended the State Government to register a case but the later part of the order shows that there is a direction to the police to investigate the matter expeditiously and file a police report, leaving no other option for the police department except to register an FIR against the petitioner. Thus, this Court finds that the Commission has exceeded its jurisdiction.”
13. Counsel for the petitioner has also referred to the judgment dated 11.07.2018 passed in CWP No.12405 of 2018 “Subhash Chander vs State of Punjab”, wherein the Co-ordinate Bench of this Court while relying upon the Division Bench judgment of this Court has observed that the NRI Commission cannot issue direction to the police for submission of challan to the Court, on completion of investigation expeditiously.
14. Counsel for the petitioner has relied upon the judgment “Punjab Tourism Development Corporation Limited and another vs the Punjab State Commission for NRIs and another”, 2017(2) Law Herald 1701, wherein the Division Bench of this Court has held as under:-
“3. In support of his contention he has referred to Subramanian Swamy v. Arun Shourie, (2014) 12 Supreme Court Cases 344 [LQ/SC/2014/746] with a particular reference to paras 23, 25 and 34 that a Commission such as the one in question does not have the powers of a court even though equipped with similar trappings and the part that it has to establish any complaint in an inquiry with appropriate recommendations to the Government as a follower.
4. Although this judgment was rendered with respect to the human right commission and its powers the discussion according to us would be relevant to the present case as well. We have examined the powers of the Commission as contained in the and are of the opinion that it is largely a recommendatory body to the Government in matters of complaints as also policy decisions affecting the Non-resident Indians.
5. Having said so we have also perused the order impugned in the writ proceedings and are of the opinion that the Commission did not transgress its powers and after establishing the complaint made before it merely made recommendations to the State of Punjab. Evidently, it was upto the State and its functionaries to accept these recommendations in whole or in part but for reasons best known to them they missed the plain language of the Commission to rush this Court in writ proceedings. The learned Single Judge in this regard has observed as follows :-
“...The interest of an NRI is to be safeguarded and protected by recommending suitable relief for the complainant. The NRI Commission thus has not exceeded jurisdiction in ordering refund of the amount deposited by the complainant along with interest.”
6. We may also note here that the grievance of the appellants is confined to this aspect of the judgment and not to any other portion of the same. After hearing the learned counsel for the appellants, we are of the view that the learned Single has merely approved the order of the Commission to hold that it has not exceeded its jurisdiction but we are also of the opinion that the words deployed by the learned Single judge “ordering refund” is capable of misinterpretation as the order of the Commission merely makes a recommendation to the Government and entails no mandate.
7. With this clarification we dispose of the instant appeal.”
15. It is submitted that the Commission can only make recommendations and therefore, the police was to apply its independent mind whether any offence is made out or not.
16. It is next argued that Section 12 of the Punjab State Commission for Non-resident Indians Act, 2011 (Act No.33 of 2011), provides that the Commission shall, while investigating any matter under this Act, have all the powers of a 'civil court' trying a suit in respect of the condition laid down under the.
17. Counsel for the petitioner has, then referred to Section 14 of this Act, which reads as under:-
“14. Power of the Commission to utilize the services of certain officers and investigating agencies for conducting investigation. – The Commission may conduct inquiry or investigation into the matters falling within its authority :-
(a) either directly; or
(b) through an investigating team constituted by the Commission; or
“(c) through the Deputy Commissioner of the district concerned; or”
(d) through the Government.”
18. It is submitted that ordinarily the investigation can be conducted by constituting a team or through the Deputy Commissioner of the district concerned whereas in the instant case repeated directions were given to the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to investigate the case. It is further submitted that under Section 154 Cr.P.C, when an information relating to the Commission of a cognizable offence is given to an Officer/Incharge of the Police Station, the same will be reduced in writing and in case, a person is aggrieved by refusal on the part of the Officer/Incharge of the Police Station under sub-section (1), may send such information to the Superintendent of Police concerned under sub-section (3), who if, satisfied shall either investigate the case himself or direct an investigation to be made by a police officer subordinate to him.
19. Counsel for the petitioner has also submitted that under Section 156 Cr.P.C, the Officer/Incharge of the Police Station without order of the Magistrate can investigate any cognizable case or a Magistrate exercising power under Section 156(3) Cr.P.C. being empowered under Section 190 Cr.P.C., may order such investigation as above mentioned.
20. Counsel for the petitioner has further argued that the NRI Commission has wrongly assumed the aforesaid powers while issuing directions to the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to investigate the case. Counsel for the petitioner has, thus, submitted that the FIR has been registered on the basis of the successive orders passed by the NRI Commission putting undue pressure on the police authorities to register the FIR, though, in all the orders, it is stated that the matter may be investigated however, there was nothing for the police officers to investigate the case except that some of the cheques have been dishonoured qua which the petitioner has already made the payment through RTGS.
21. Counsel for the petitioner has next argued that during the investigation, no statement of the complainant Hari Om Paul Jalota was recorded especially after the order dated 17.08.2020 passed by the NRI Commission and therefore, on one hand, the complainant is receiving the payment in part from the petitioner as the entire payment stands returned and even 70% of the interest amount is also paid and on the other hand, he has not made any such statement to the police to register an FIR and it is only the NRI Commission, which is pressurizing the police to register the FIR.
22. Counsel for the petitioner has also submitted that even in the representation given to the Deputy Superintendent of Police, before registration of the FIR (Annexure P11), the petitioner has highlighted that the repayment is made in terms of the MOU, wherein the complainant was required to return the original documents so that the petitioner may resell the two flats and raise money in order to refund the amount. It is also argued that since 2011, both the flats which were booked by the complainant were lying blocked as the complainant himself was failed to abide by Clause (e) of the M.O.U., as stated above. It is further argued that despite an objection raised in paras 4 and 6 of the representation (Annexure P11) in this regard, the complainant is not returning the original documents to the petitioner and therefore, there is no 'mens rea' on the part of the petitioner.
23. Counsel for the petitioner has further submitted that even before registration of the FIR, the police authority have not followed the procedure as the representation given by the petitioner was not considered in terms of judgment of “Lalita Kumari vs Govt. of U.P. and others”, 2013(4) RCR (Criminal) 979, wherein a Constitutional Bench of the Hon'ble Supreme Court has held that though registration of FIR is mandatory under Section 154 of the Code, if information discloses commission of a cognizable offence, however, if the information does not disclose a cognizable offence but indicates necessity for an enquiry, a preliminary enquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. It is also held by the Hon'ble Supreme Court that the category of cases where preliminary enquiry is to be conducted may be of “commercial offences” apart from other categories like matrimonial disputes. It is, thus, submitted that since the dispute between the petitioner and the complainant is primarily return of money, the police has not followed the proper procedure.
24. Counsel for the petitioner has further submitted that it is apparent that because of the repeated orders passed by the NRI Commission, the police authority had no option but to register a FIR as the NRI Commission opined that the petitioner is violating the orders of the Commission by not making the payment to the complainant, though, it has civil consequence and at no stage of time, the petitioner has denied its liability to repay the amount and has only sought time to make the payment because of financial hardship on account of COVID19 situation.
25. It is further argued that before registration of the FIR, no legal opinion was taken by the Deputy Superintendent of Police, Kharar or by the Senior Superintendent of Police, S.A.S. Nagar, Mohali, as it is apparent from the bare language of the FIR that the case has been registered only on the basis of the orders of the NRI Commission and therefore, the investigation was not carried in a proper manner prior to registration of the FIR.
26. Notice of motion.
27. Mr. Joginder Pal Ratra, DAG, Punjab who is present in the Court accepts notice on behalf of the respondent – State.
28. Counsel for the State, on the basis of the police file, has not disputed the various orders passed by the NRI Commission and the enquiry conducted by the Deputy Superintendent of Police, Kharar.
29. Counsel for the State also could not dispute that before registration of the FIR, no opinion from the office of District Attorney was obtained. It is also not disputed that after passing of the order dated 17.08.2020, directing the Senior Superintendent of Police, S.A.S. Nagar, Mohali, to look into the matter and submit a report, the complainant has not given any statement that the FIR be registered against the petitioner for default in making the payment.
30. Counsel for the State further could not dispute that in lieu of the cheques which were bounced, later on, the petitioner by way of RTGS has made the payment to the complainant and the complainant, at no point of time, filed any complaint under the Negotiable Instruments Act.
31. List again on 30.11.2021.
32. In the meantime, no coercive action be taken against the petitioner.
33. In the meantime, the petitioner and the complainant/respondent No.2 are directed to appear before the Mediation and Conciliation Centre of this Court on 10.08.2021 at 10:00 AM, as the petitioner has offered to return the balance amount subject to receiving the original documents from the complainant/respondent No.2 in terms of Clause (e) of the Memorandum of Understanding and in the event, if the complainant failed to hand over the original documents, it will be open for the petitioner to not to make the balance payment till all the original documents are handed over to the petitioner by the complainant. The complainant who is an NRI may appear through video conferencing or through his attorney.
34. In the meantime, the Director General of Police, Punjab is directed to issue necessary directions to all the Senior Superintendent of Police, in the State of Punjab, with a further direction to communicate all the Deputy Superintendent of Police and all the Station House Officers of the concerned Police Stations, that if any such direction is issued by any Commission in a dispute making out commercial offences (other than in cases where a direction is issued by a Magistrate under Section 156(3) Cr.P.C. or by High Court or Hon'ble Supreme Court of India), it will follow the judgment of the Hon'ble Supreme Court in Lalita Kumari's case (supra) and before registration of the FIR in a casual manner, they will obtain the opinion of the District Attorney/Deputy District Attorney (Legal) whether any offence is made out or not, in cases arising out of commercial dispute.
