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| HC refuse to quash FIR education consultancy for duping a man | | | Early Times Report
JAMMU, June 3: In a petition filed by one Fayaz Ahmed Rather Challenged FIR No.18/2023 for offence under Section 420 RPC registered with SHO Police Station, Economic Offence Wing, Srinagar.
As per the allegations made in the impugned FIR, the complainant/respondent No.2 approached the Crime Branch Kashmir with an application alleging therein that he had approached Fayaz International Education Consultancy, of which the petitioner happens to be the proprietor, for arranging MBBS admission of his son at ASCOMS Jammu. It had been further alleged in the complaint that all the relevant documents were handed over to the petitioner and an amount of Rs.36.00 lacs was paid to him for arranging admission of the son of the complainant.
On the basis of this complaint, the Crime Branch undertook preliminary verification of the same and found that the petitioner has duped the complainant of an amount of Rs.36.00 lacs on pretext of arranging MBBS admission of his son at ASCOMS Jammu. Thus, offence under Section 420 RPC has been disclosed against the petitioner and the impugned FIR has been registered.
Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court after hearing both the sides observed that So far as the contention of the petitioner that the impugned FIR could not have been registered against him because the petitioner is facing prosecution in respect of a complaint filed by the respondents for offence under Section 138 of the N.I Act is concerned, the same is without any merit. The transaction which is the subject matter of the impugned FIR and the transaction which is the subject matter of the complaint under Section 138 of the N.I Act pending against the petitioner, may be one and the same, but this transaction has given rise to two different offences and the causes of action for launching the prosecution against the petitioner for these two distinct offences are also different.
The cause of the action for filing the complaint under Section 138 of the N.I Act arises once drawer of a cheque fails to liquidate the cheque amount in favour of the payee within 15 days of service of demand notice after the dishonour of the cheque, whereas, the cause of action for offence under Section 420 IPC/RPC arises if it is shown that at the time of inception of transaction the accused was having a dishonest intention, as a consequence whereof he has perpetrated a fraud upon the complainant, thereby inducing him to part with property. Thus, the two offences viz the offence under Section 138 of the N.I Act and the offence under Section 420 IPC/RPC are distinct from each other and they arise from different causes of action. The contention of the petitioner that he has been vexed over twice on the basis of same allegations is, therefore, without any merit and is accordingly rejected.
So far as the other condition is concerned, it is true that the transaction between the parties dates back to the year 2019, but the complainant has lodged the report with the Crime Branch in the year 2021 itself. On the basis of said report the respondent/Crime Branch has proceeded to hold the preliminary enquiry prior to registration of the FIR. So there has been no delay on part of the complainant in lodging the FIR. Even otherwise, whether the delay in lodging FIR is fatal to the prosecution case is to be gone into by the Investigating Officer during the investigation of the case. This Court, at this stage, cannot go into all these issues.
For the foregoing reasons, the Court does not find any merit in this petition. The same is accordingly dismissed. —JNF |
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