Present:- Mr.P.K. Dutt Advocate Vs. Ut of Chandigarh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1061679
CourtPunjab and Haryana High Court
Decided OnMay-04-2013
AppellantPresent:- Mr.P.K. Dutt Advocate
RespondentUt of Chandigarh and Others
Excerpt:
crr no.2580 of 2012 [1].in the high court of punjab and haryana at chandigarh. crr no.2580 of 2012 (o&m) date of decision: may 4, 2013 iqbal singh sabharwal …..petitioner versus ut of chandigarh and others …..respondents coram: hon’ble mr.justice m.m.s.bedi. -.- present:- mr.p.k.dutt, advocate for the petitioner. mr.j.s.toor, advocate for ut chandigarh. -.- m.m.s.bedi, j.(oral) petitioner has challenged the legality and propriety of order dated june 15, 2012 filed by him for summoning the record of fir no.123 dated june 19, 2008 registered under sections 420, 120-b ipc at police station sector 3, chandigarh and to try with fir no.129 dated may 22, 2007 under section 302 ipc, registered at police station sector 36, chandigarh. the petitioner is a prosecution witness in fir no.129 of 2007, hereinafter referred to as the ‘murder case’ and is a complainant in case fir crr no.2580 of 2012 [2].no.123 of 2008, hereinafter referred to as a ‘cheating case’. petitioner claimed that he is a prosecution witness in the murder case and is aggrieved person at the hands of accused persons facing trial in the murder case. he has deep knowledge about the facts of the case as he had moved a representation followed by crm no.12126-m of 2008 before high court. he claims that the facts were further investigated by the police and the abovesaid fir in cheating case was registered at police station sector 3, chandigarh. both the investigations earlier were carried under fir no.129 (in murder case) and later on were carried in abovesaid cheating case, relating to one and the same transaction i.e.circumstances and motive for the act of murder of rajesh kumar goel. he claimed that the motive to commit the crime of murder was urge of the accused as well as the persons who hired them to commit the offence to embezzle the shares worth rs.500 lacs belonging to the petitioner which was being traded by rajan jain, sole proprietor of m/s satya investment whose employees kanav arora and shiv kumar are accused. petitioner further averred in his application that the correct statement made by him forms part of the investigation of later fir no.123 o 2008 i.e.in cheating case and he has brought to the notice of the court and the high court that motive for commission of the offence is the huge amount, and therefore, the cheating case was registered on the intervention of high court. challan has been presented in the court of sh.mahesh grover, judicial magistrate ist class, chandigarh in the cheating case which is most relevant for the just and fair trial of the murder case as crr no.2580 of 2012 [3].the matter in cheating case is part and parcel of the same transaction of the offence in murder case. both murder case and the cheating case registered at different police stations deserve to be tried together. shiv kumar who is an accused in murder case had filed reply claiming that he is innocent in the murder case but since he has not received any copy of the challan in cheating case in the court of sh.mahesh grover, judicial magistrate ist class, chandigarh and the allegations against him are false, the reply was also filed by the u.t.administration to the application of the petitioner admitting that murder and cheating case, as claimed by the petitioner, are pending. the charge-sheet has been presented in the court of judicial magistrate ist class, chandigarh against shiv kumar and kanav arora in the cheating case. learned trial court considered the abovesaid application and dismissed the application for the following reasons:- i) the fir in murder case and cheating case are registered at different police stations. the murder case was registered on the statement of an eye- witness kamlesh in which mandeep singh, ishwinder singh, kanav arora and shiv kumar are facing trial. the evidence of the prosecution is closed; certain statements of the accused also stand recorded. when the case was listed for defence and arguments, application under section 311 cr.p.c.was filed to summon pw iqbal singh crr no.2580 of 2012 [4].sabharwal i.e.the petitioner. instead of appearing before the court for his examination, he moved an application for adjourning the proceedings and to summon the record of investigation in cheating case registered at police station sector 3, chandigarh. as the fir was pending investigation in cheating case, vide order dated march 7, 2011 the trial court had dismissed the application. the petitioner filed a revision petition no.701 of 2011 which was disposed of on march 13, 2012 by high court giving liberty to the petitioner to file fresh application with a direction that said application should be decided in accordance with law. the criminal cases against four persons in murder case and against two persons in cheating case are different. ii) the court also formed an opinion that both the challans have not the same set of accused and that the criminal proceedings in murder case were pending for the last more than 4 years in which one of the accused is in custody; whereas in the cheating case the challan has been presented in the court of magistrate in which the trial has not yet crr no.2580 of 2012 [5].commenced. the complainants in both the cases are different. the investigating agency is also different. the trial court was of the opinion that there is no provisions of law in which both the cases could be ordered to be tried together. learned counsel for the petitioner mr.p.k.dutt has vehemently contended that both the murder case and cheating case are part of the same transaction and has drawn my attention to the fir in cheating case which has been registered at his instance. an attempt has been made by mr.dutt to establish that as a matter of fact shiv kumar and kanav arora are the employees of rajan jain who had been paid a sum of rs.5 crores by the petitioner for investment in the purchase of shares. shiv kumar was working as computer operator with rajan jain and he used terminal of computer of rajan jain. shiv kumar is merely operating at the hands of rajan jain who is the king pin and main culprit. in nut shell it is sufficient to observe that the allegations in the fir registered at the instance of petitioner have been reiterated to establish that deceased rajesh kumar goel who has been murdered was a friend of petitioner and was working as chartered accountant for his various business concerns. it was investment of the petitioner which had been embezzled by the accused and for suppressing the said crime the accused had killed rajesh kumar goel. petitioner has alleged that some of the co-conspirators of accused kanav arora, shiv kumar and others have been left untouched in the investigation crr no.2580 of 2012 [6].and have not been arraigned as an accused. one of the conspirators is rajan jain. petitioner claims that as an investment-cum-tax saving strategy he was advised to invest approximately rs.5 crores in the month of february 2007. in the middle of february 2007, the petitioner received a call from rajesh kumar goel asking him to meet him. rajesh kumar goel introduced the petitioner to mukal bansal informing him that he had earlier working with mukal bansal who is also a chartered accountant. rajesh kumar goel advised the petitioner that mukal bansal is also running business of brokerage for stock exchange investment and so it would be more safe and fruitful to make investment through him. mukal bansal introduced the petitioner to rajan jain who is running a business under the name of satya investment. rajesh kumar goel had introduced the petitioner to mukal bansal and rajan jain. rajan jain had allegedly assured the petitioner that he will personally deal with his investment. on the assurance of rajan jain the petitioner was advised to purchase hcl tech. shares. a draft of rs.5 crores was allegedly handed over to rajan jain for purchase of 77300 shares of hcl tech. the shares were duly purchased and credited in the demat account. after some days, hcl tech decided to issue another 77300 bonus shares. these were also received in the demat account. petitioner alleged in the cheating case that rajan jain had advised him that since the share price of hcl tech was going to rise he should immediately book profit and blank delivery instructions signed in advance so that in case of immediate need optimum profit at appropriate time could be earned, as there was crr no.2580 of 2012 [7].frequent fluctuation in the stock market rate. on the advise of rajesh kumar goel and mukal bansal, blank delivery instructions slips were handed over to rajan jain. the petitioner alleges that the said slips had been misused by kanav arora and shiv kumar in conspiracy with rajan jain and mukal bansal. during investigation, the investigating agency found that shiv kumar had opened a demat account in religare security services limited allegedly without the consent of the petitioner and his 77300 bonus shares of hcl tech had been transferred in his own account without the consent of the petitioner using the blank delivery instructions slips signed by the petitioner, in united bank of india, sector 17, chandigarh. the bonus shares worth rs.2,54,62,562/- were sold by shiv kumar and from this amount he had purchased share of jagjanni textile limited for rs.1,83,58,946/- and remaining amount of rs.77,87,000/- had been transferred in his own account vide different cheques. sum of rs.2 lacs from the said amount was transferred to kanav arora in his account in united bank of india, sector 17, chandigarh. the allegation against rajan jain is that it is stated that sum of rs.2 lacs after withdrawal from the account of kanav arora was delivered to rajan jain but both could not produce any documentary evidence regarding the delivery of said amount to rajan jain. the relevant part of the charge-sheet in cheating case reads as follows:- “but both shiv kumar and kanav arora could not produced any documentary evidence regarding the crr no.2580 of 2012 [8].delivery of above said amounts to rajan jain by them. during investigation, it has been found that accused shiv kumar was working as a computer operator with sh.rajan jain on salary basis rs.8000/- per month and shiv kumar used terminal of computer of sh. rajan jain for the transfer of shares 77300 of hcl tech (bonus) in his d-mat account not id no.10618738 in religare security services pvt.ltd.by using slip no.81124495 in conspiracy with rajan jain who was entrusted with the custody of transfer slips (dis) in conspiracy with one another and without the consent of sh.iqbal singh sabharwal share holder. during the cours.of investigation, shiv kumar and kanav arora has joined the investigation on 14.1.2012 on the direction of hon’ble punjab and haryana high court, chandigarh. during interrogation, shiv kumar has stated in his written statement that the amounts rs.77,87,000/- transferred in his account no.142140 of united bank sector 17, chandigarh and rs.2 lacs from this amount has also been transferred in the account no.130613 of united bank of india, sector 17, chandigarh of kanav arora and the remaining amount after withdrawal delivered to rajan jain by him. kanav arora was also crr no.2580 of 2012 [9].given in writing that amount of rs.2 lacs after withdrawal from his account delivered to rajan jain by him (kanav arora).but both shiv kumar and kanav arora could not produced any documentary evidence regarding the delivery of above said amounts to rajan jain by them. during investigation, it has been found that mr.mukul bansal has given his surety for opening the account of rajan jain in the master capital services ltd., sector 9, chandigarh. the record of opening account form was also taken into possession from the master capital service sector 9, chandigarh. from the investigation record taken into possession and the statements of the witnesses which were recorded u/s 161 cr.p.c., it has been established that sh.shiv kumar in connivance with mr.kanav arora and others have intentionally, dishonestly, knowingly and deliberately transferred the bonus shares 77300 from master capital services ltd., sector 9, chandigarh in his d-mat account not id no.10618738 in religare security services pvt.ltd.from the account of sh.iqbal singh sabharwal (complainant) without his consent. shiv kumar has further sold these shares of rs.2,54,62,562/- and from this amount he has purchased shares of jagjanni textiles crr no.2580 of 2012 [10].ltd.amounting to rs.1,83,58,946/- and remaining amount i.e.rs.77,87,000/- has been transferred in his account. shiv kumar, kanav arora and others have already been arrested in the murder case of sh.rajesh goel, ca of sh.iqbal singh sabharwal (complainant) in case fir not case fir no.129 date 22.5.2007 u/s 302, 452, 34 ipc p.s.36, chandigarh. the sho, police station sector 36, chandigarh has already been submitted a challan against them before the hon’ble court of sh.k.k.goel, session judge, chandigarh for trial. shiv kumar along with others co-accused had committed the murder of sh.rajesh goel, ca with the planning to usurp the huge amount which was taken by him to cause wrongful loss to the complainant sh.iqbal singh sabharwal which he is not legally entitled and this things is in the notice of sh.rajesh goel ca of the iqbal singh sabharwal. in addition to the earlier challan which was presented against the above mentioned accused by the sho, police station sector 36, chandigarh before the hon’ble court of session judge, chandigarh. the new things/ evidence against shiv kumar and kanav arora has been collected during the investigation of the present case. the challan u/s 173 crr no.2580 of 2012 [11].cr.p.c.against shiv kumar and kanav arora is prepared and being presented before the hon’ble court and clubbed with earlier challan for trial. there is no direct/ documentary evidence against rajan jain and mukul bansal came on the case file. however, mr.rajan jain be kept as suspect in column no.2 in the challan because during trial/ debate of the case, if anything/ evidence came against mr.rajan jain and he may be charge sheeted during the trial along with the other accused. the following witnesses will be summoned during the trial by the hon’ble court and accused may be punished as per law. the challan under trial before session court as case fir no.129/07, ps 36.chandigarh is also filed along for perusal transaction of offence in one and same. the challan is under trial before the hon’ble court of sh.s.k.goel, distt. and session judge, chandigarh.” a perusal of the above report indicates that the petitioner who is complainant in cheating case claims that he has been duped of the sale consideration of transfer of 77300 bonus shares by misusing his blank delivery instruction slips by kanav arora and shiv kumar. the petitioner seeks to establish that deceased rajesh kumar goel who was friend of petitioner had introduced the petitioner to mukal bansal and subsequently to rajan jain who used kanav arora and shiv kumar to misappropriate the crr no.2580 of 2012 [12].money of petitioner. counsel for the petitioner was questioned as to how murder of rajesh kumar goel could have benefited mukal bansal and rajan jain and as to whether on account of rajesh kumar goel being alive today, any harm could have been caused to mukal bansal and rajan jain. learned counsel could not justify as to how mukal bansal and rajan jain could be said to have motive to kill rajesh kumar goel when they were not going to derive any benefit on account of murder of rajesh kumar goel. the petitioner is alleged to have suffered loss of money on account of act of kanav arora and shiv kumar in whose accounts the misappropriated amount belonging to petitioner had been transferred. it is nowhere established even during the cours.of investigation in the cheating case that mukal bansal or rajan jain, the suspects, had cheated the petitioner as no amount belonging to the petitioner is established to have been transferred to mukal bansal and rajan jain from kanav arora and shiv kumar. kanav arora and shiv kumar are the two co-accused in the murder case also. it is the petitioner who might be having a grievance against deceased rajesh kumar goel for having been instrumental in the loss caused to him in share investment by introducing him to mukal bansal and rajan jain whereas no evidence in the shape of documents is available to indict mukal bansal and rajan jain. counsel for the petitioner, in the alternative has argued that the investigation in murder case so far as motive is concerned, is directly connected to the subject matter of the cheating case as cheating by mukal crr no.2580 of 2012 [13].bansal and rajan jain, through kanav arora and shiv kumar was the objective of the murder of rajesh kumar goel. as discussed hereinabove, neither the role attributed to mukal bansal and rajan jain of having any motive to kill rajesh kumar goel has been found during the cours.of investigation not they seem to have obtained any benefit as the transactions of petitioner are proved to be with kanav arora and shiv kumar. the intention of the petitioner is to extend the criminal liability to mukal bansal and rajan jain in the garb of attributions of motive to kanav arora and shiv kumar as the petitioner has allegedly suffered loss in the investment business. the suspicion can never take place of proof. the objective of the petitioner appears to be to indict additional accused on the allegation that they had a motive in the cheating case as well as in the murder case. learned counsel has also vehemently contended that the fir in the cheating case is improper and claimed that the investigation in cheating case should be considered as supplementary investigation to the murder case as the murder of rajesh kumar goel is part of the same transaction of the subject matter of cheating case. in support of his contention, he has placed strong reliance on amit bhai anil chandra shah versus central bureau of investigation, 2013 (2) rcr (crl.) 819. it was argued that in the said case the second fir and fresh charge-sheet in the second case was held violative of fundamental rights under articles 14, 20 and 21 of the constitution of india against the petitioner as the second fir related to the crr no.2580 of 2012 [14].alleged offence in respect of an fir which had already been filed and court had taken cognizance. i have carefully gone through the said judgment. in the said case petitioner had been arraigned as an accused in view of directions of the court, while issuing a direction to handover investigation to cbi in earlier case i.e.narmada bai versus state of gujarat, (2011) 5 scc 7.relating to death of tulsi ram prajapati, a material witness in two killings of sohrabuddin and his wife kausarbi. the cbi had reported that the larger conspiracy allegedly commenced in november 2005 and culminated into the murder of tulsi ram prajapati in december 2006 in a fake encounter. the alleged fake encounter of tulsi ram prajapati was a consequence of earlier false encounter of sohrabuddin and kausarbi and since tulsi ram prajapati was an eye-witness to the abduction and consequent murder of sohrabuddin and kausarbi and tulsi ram prajapati was allegedly kept under the control of accused police officers as part of the same transaction till the time he was allegedly killed in a fake encounter. in view of factual situation as projected by the cbi, the supreme court applied that “consequence test”. i.e.if an offence forming part of the second fir arises as a consequence of the offence alleged in the firs.fir then offences covered by both the firs are same and accordingly, the second fir will be impermissible in law. in other words, the offences covered in both the firs shall have to be treated as a part of firs.fir. the facts and circumstances of amit bhai anil chand’s case (supra) are absolutely distinguishable and the crr no.2580 of 2012 [15].observations made in the said judgment are not applicable in the present case especially when the firs.case is based upon the direct evidence of kamlesh, complainant who was present at the time of the occurrence. the statement of petitioner has been recorded regarding purchase of shares. one pw jaspal singh rawat, manager, master capital services has been examined in the case regarding the instructions slips regarding transfer of bonus shares of 77300/-. the financial statements have also been placed on the record. since the investigation conducted in the cheating case indicts kanav arora and shiv kumar on the basis of the documentary evidence regarding cheating and no evidence having been found against mukal bansal and rajan jain who are sought to be involved in the case by the petitioner on account of his suspicion that loss has been caused to him by them, it will be improper to issue a direction that the fir in cheating case was impermissible or that the allegations of cheating in cheating case registered at police station sector 3, chandigarh is part of the same transaction of murder case registered earlier in police station, sector 36, chandigarh. it is also pertinent to observe here that the trial in the murder case has been concluded and it is at the stage of arguments and is to be decided. one of the accused mandeep singh has been in custody for the last about 5 years.it is not out of place to observe here that vide interim order dated september 7, 2012 while observing that there is no ground to pass judicial order clubbing the trial in murder case and cheating case and vide order dated november 29, 2012, an interim direction was issued to crr no.2580 of 2012 [16].petitioner iqbal singh sabharwal to appear as a witness and would depose on oath whatever truth he believes to be correct by appearing in the court on november 30, 2012 leaving it open to the defence counsel to attribute improvements with permission to the trial court to summon the record and permit the copies of the relevant statements from the record of cheating case in cross-examination or otherwise, it has been informed that the petitioner has already been examined. his deposition is subject to final scrutiny at the time of appreciation of evidence. the cheating case is at initial stage and is pending before judicial magistrate ist class, being a magisterial trial; neither clubbing not passing an order to treat the fir and investigation in cheating case to be supplementary charge sheet to murder case will be in the interest of justice. in view of the above circumstances, finding no ground to interfere in the order, the petition is dismissed. may 4, 2013 (m.m.s.bedi) sanjay judge
Judgment:

CRR No.2580 of 2012 [1].IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

CRR No.2580 of 2012 (O&M) Date of Decision: May 4, 2013 Iqbal Singh Sabharwal …..Petitioner versus UT of Chandigarh and others …..Respondents CORAM: HON’BLE Mr.JUSTICE M.M.S.BEDI.

-.- Present:- Mr.P.K.Dutt, Advocate for the petitioner.

Mr.J.S.Toor, Advocate for UT Chandigarh.

-.- M.M.S.BEDI, J.(ORAL) Petitioner has challenged the legality and propriety of order dated June 15, 2012 filed by him for summoning the record of FIR No.123 dated June 19, 2008 registered under Sections 420, 120-B IPC at Police Station Sector 3, Chandigarh and to try with FIR No.129 dated May 22, 2007 under Section 302 IPC, registered at Police Station Sector 36, Chandigarh.

The petitioner is a prosecution witness in FIR No.129 of 2007, hereinafter referred to as the ‘murder case’ and is a complainant in case FIR CRR No.2580 of 2012 [2].No.123 of 2008, hereinafter referred to as a ‘cheating case’.

Petitioner claimed that he is a prosecution witness in the murder case and is aggrieved person at the hands of accused persons facing trial in the murder case.

He has deep knowledge about the facts of the case as he had moved a representation followed by CRM No.12126-M of 2008 before High Court.

He claims that the facts were further investigated by the police and the abovesaid FIR in cheating case was registered at Police Station Sector 3, Chandigarh.

Both the investigations earlier were carried under FIR No.129 (in murder case) and later on were carried in abovesaid cheating case, relating to one and the same transaction i.e.circumstances and motive for the act of murder of Rajesh Kumar Goel.

He claimed that the motive to commit the crime of murder was urge of the accused as well as the persons who hired them to commit the offence to embezzle the shares worth Rs.500 lacs belonging to the petitioner which was being traded by Rajan Jain, sole proprietor of M/s Satya investment whose employees Kanav Arora and Shiv Kumar are accused.

Petitioner further averred in his application that the correct statement made by him forms part of the investigation of later FIR No.123 o 2008 i.e.in cheating case and he has brought to the notice of the Court and the High Court that motive for commission of the offence is the huge amount, and therefore, the cheating case was registered on the intervention of High Court.

Challan has been presented in the Court of Sh.Mahesh Grover, Judicial Magistrate Ist Class, Chandigarh in the cheating case which is most relevant for the just and fair trial of the murder case as CRR No.2580 of 2012 [3].the matter in cheating case is part and parcel of the same transaction of the offence in murder case.

Both murder case and the cheating case registered at different police stations deserve to be tried together.

Shiv Kumar who is an accused in murder case had filed reply claiming that he is innocent in the murder case but since he has not received any copy of the challan in cheating case in the Court of Sh.Mahesh Grover, Judicial Magistrate Ist Class, Chandigarh and the allegations against him are false, the reply was also filed by the U.T.Administration to the application of the petitioner admitting that murder and cheating case, as claimed by the petitioner, are pending.

The charge-sheet has been presented in the Court of Judicial Magistrate Ist Class, Chandigarh against Shiv Kumar and Kanav Arora in the cheating case.

Learned trial Court considered the abovesaid application and dismissed the application for the following reasons:- i) The FIR in murder case and cheating case are registered at different Police Stations.

The murder case was registered on the statement of an eye- witness Kamlesh in which Mandeep Singh, Ishwinder Singh, Kanav Arora and Shiv Kumar are facing trial.

The evidence of the prosecution is closed; certain statements of the accused also stand recorded.

When the case was listed for defence and arguments, application under Section 311 Cr.P.C.was filed to summon PW Iqbal Singh CRR No.2580 of 2012 [4].Sabharwal i.e.the petitioner.

Instead of appearing before the Court for his examination, he moved an application for adjourning the proceedings and to summon the record of investigation in cheating case registered at Police Station Sector 3, Chandigarh.

As the FIR was pending investigation in cheating case, vide order dated March 7, 2011 the trial Court had dismissed the application.

The petitioner filed a revision petition No.701 of 2011 which was disposed of on March 13, 2012 by High Court giving liberty to the petitioner to file fresh application with a direction that said application should be decided in accordance with law.

The criminal cases against four persons in murder case and against two persons in cheating case are different.

ii) The Court also formed an opinion that both the challans have not the same set of accused and that the criminal proceedings in murder case were pending for the last more than 4 years in which one of the accused is in custody; whereas in the cheating case the challan has been presented in the Court of Magistrate in which the trial has not yet CRR No.2580 of 2012 [5].commenced.

The complainants in both the cases are different.

The investigating agency is also different.

The trial Court was of the opinion that there is no provisions of law in which both the cases could be ordered to be tried together.

Learned counsel for the petitioner Mr.P.K.Dutt has vehemently contended that both the murder case and cheating case are part of the same transaction and has drawn my attention to the FIR in cheating case which has been registered at his instance.

An attempt has been made by Mr.Dutt to establish that as a matter of fact Shiv Kumar and Kanav Arora are the employees of Rajan Jain who had been paid a sum of Rs.5 crores by the petitioner for investment in the purchase of shares.

Shiv Kumar was working as Computer Operator with Rajan Jain and he used terminal of computer of Rajan Jain.

Shiv Kumar is merely operating at the hands of Rajan Jain who is the king pin and main culprit.

In nut shell it is sufficient to observe that the allegations in the FIR registered at the instance of petitioner have been reiterated to establish that deceased Rajesh Kumar Goel who has been murdered was a friend of petitioner and was working as Chartered Accountant for his various business concerns.

It was investment of the petitioner which had been embezzled by the accused and for suppressing the said crime the accused had killed Rajesh Kumar Goel.

Petitioner has alleged that some of the co-conspirators of accused Kanav Arora, Shiv Kumar and others have been left untouched in the investigation CRR No.2580 of 2012 [6].and have not been arraigned as an accused.

One of the conspirators is Rajan Jain.

Petitioner claims that as an investment-cum-tax saving strategy he was advised to invest approximately Rs.5 crores in the month of February 2007.

In the middle of February 2007, the petitioner received a call from Rajesh Kumar Goel asking him to meet him.

Rajesh Kumar Goel introduced the petitioner to Mukal Bansal informing him that he had earlier working with Mukal Bansal who is also a Chartered Accountant.

Rajesh Kumar Goel advised the petitioner that Mukal Bansal is also running business of brokerage for stock exchange investment and so it would be more safe and fruitful to make investment through him.

Mukal Bansal introduced the petitioner to Rajan Jain who is running a business under the name of Satya Investment.

Rajesh Kumar Goel had introduced the petitioner to Mukal Bansal and Rajan Jain.

Rajan Jain had allegedly assured the petitioner that he will personally deal with his investment.

On the assurance of Rajan Jain the petitioner was advised to purchase HCL Tech.

shares.

A draft of Rs.5 crores was allegedly handed over to Rajan Jain for purchase of 77300 shares of HCL Tech.

The shares were duly purchased and credited in the Demat account.

After some days, HCL Tech decided to issue another 77300 bonus shares.

These were also received in the Demat account.

Petitioner alleged in the cheating case that Rajan Jain had advised him that since the share price of HCL Tech was going to rise he should immediately book profit and blank delivery instructions signed in advance so that in case of immediate need optimum profit at appropriate time could be earned, as there was CRR No.2580 of 2012 [7].frequent fluctuation in the stock market rate.

On the advise of Rajesh Kumar Goel and Mukal Bansal, blank delivery instructions slips were handed over to Rajan Jain.

The petitioner alleges that the said slips had been misused by Kanav Arora and Shiv Kumar in conspiracy with Rajan Jain and Mukal Bansal.

During investigation, the investigating agency found that Shiv Kumar had opened a Demat account in Religare Security Services Limited allegedly without the consent of the petitioner and his 77300 bonus shares of HCL Tech had been transferred in his own account without the consent of the petitioner using the blank delivery instructions slips signed by the petitioner, in United Bank of India, Sector 17, Chandigarh.

The bonus shares worth Rs.2,54,62,562/- were sold by Shiv Kumar and from this amount he had purchased share of Jagjanni Textile Limited for Rs.1,83,58,946/- and remaining amount of Rs.77,87,000/- had been transferred in his own account vide different cheques.

Sum of Rs.2 lacs from the said amount was transferred to Kanav Arora in his account in United Bank of India, Sector 17, Chandigarh.

The allegation against Rajan Jain is that it is stated that sum of Rs.2 lacs after withdrawal from the account of Kanav Arora was delivered to Rajan Jain but both could not produce any documentary evidence regarding the delivery of said amount to Rajan Jain.

The relevant part of the charge-sheet in cheating case reads as follows:- “But both Shiv Kumar and Kanav Arora could not produced any documentary evidence regarding the CRR No.2580 of 2012 [8].delivery of above said amounts to Rajan Jain by them.

During Investigation, it has been found that accused Shiv Kumar was working as a computer operator with Sh.Rajan Jain on salary basis Rs.8000/- per month and Shiv Kumar used terminal of computer of Sh.

Rajan Jain for the transfer of shares 77300 of HCL Tech (Bonus) in his D-Mat account not ID No.10618738 in Religare Security Services PVT.LTD.by using Slip No.81124495 in conspiracy with Rajan Jain who was entrusted with the custody of transfer slips (DIS) in conspiracy with one another and without the consent of Sh.Iqbal Singh Sabharwal share holder.

During the couRs.of investigation, Shiv Kumar and Kanav Arora has joined the investigation on 14.1.2012 on the direction of Hon’ble Punjab and Haryana High Court, Chandigarh.

During interrogation, Shiv Kumar has stated in his written statement that the amounts Rs.77,87,000/- transferred in his account No.142140 of United Bank Sector 17, Chandigarh and Rs.2 lacs from this amount has also been transferred in the account No.130613 of United Bank of India, Sector 17, Chandigarh of Kanav Arora and the remaining amount after withdrawal delivered to Rajan Jain by him.

Kanav Arora was also CRR No.2580 of 2012 [9].given in writing that amount of Rs.2 lacs after withdrawal from his account delivered to Rajan Jain by him (Kanav Arora).But both Shiv Kumar and Kanav Arora could not produced any documentary evidence regarding the delivery of above said amounts to Rajan Jain by them.

During investigation, it has been found that Mr.Mukul Bansal has given his surety for opening the account of Rajan Jain in the Master Capital Services Ltd., Sector 9, Chandigarh.

The record of opening account form was also taken into possession from the Master Capital Service Sector 9, Chandigarh.

From the investigation record taken into possession and the statements of the witnesses which were recorded u/s 161 Cr.P.C., it has been established that Sh.Shiv Kumar in connivance with Mr.Kanav Arora and others have intentionally, dishonestly, knowingly and deliberately transferred the bonus shares 77300 from Master Capital Services Ltd., Sector 9, Chandigarh in his D-Mat account not ID No.10618738 in Religare Security Services PVT.LTD.from the account of Sh.Iqbal Singh Sabharwal (complainant) without his consent.

Shiv Kumar has further sold these shares of Rs.2,54,62,562/- and from this amount he has purchased shares of Jagjanni Textiles CRR No.2580 of 2012 [10].LTD.amounting to Rs.1,83,58,946/- and remaining amount i.e.Rs.77,87,000/- has been transferred in his account.

Shiv Kumar, Kanav Arora and others have already been arrested in the murder case of Sh.Rajesh Goel, CA of Sh.Iqbal Singh Sabharwal (complainant) in case FIR not case FIR No.129 date 22.5.2007 u/s 302, 452, 34 IPC P.S.36, Chandigarh.

The SHO, Police Station Sector 36, Chandigarh has already been submitted a challan against them before the Hon’ble Court of Sh.K.K.Goel, Session Judge, Chandigarh for trial.

Shiv Kumar along with others co-accused had committed the murder of Sh.Rajesh Goel, CA with the planning to usurp the huge amount which was taken by him to cause wrongful loss to the complainant Sh.Iqbal Singh Sabharwal which he is not legally entitled and this things is in the notice of Sh.Rajesh Goel CA of the Iqbal Singh Sabharwal.

In addition to the earlier challan which was presented against the above mentioned accused by the SHO, Police Station Sector 36, Chandigarh before the Hon’ble Court of Session Judge, Chandigarh.

The new things/ evidence against Shiv Kumar and Kanav Arora has been collected during the investigation of the present case.

The challan u/s 173 CRR No.2580 of 2012 [11].Cr.P.C.against Shiv Kumar and Kanav Arora is prepared and being presented before the Hon’ble Court and clubbed with earlier challan for trial.

There is no direct/ documentary evidence against Rajan Jain and Mukul Bansal came on the case file.

However, Mr.Rajan Jain be kept as suspect in column No.2 in the challan because during trial/ debate of the case, if anything/ evidence came against Mr.Rajan Jain and he may be charge sheeted during the trial along with the other accused.

The following witnesses will be summoned during the trial by the Hon’ble Court and accused may be punished as per law.

The challan under trial before Session Court as case FIR No.129/07, PS 36.Chandigarh is also filed along for perusal transaction of offence in one and same.

The challan is under trial before the Hon’ble Court of Sh.S.K.Goel, Distt.

and Session Judge, Chandigarh.”

A perusal of the above report indicates that the petitioner who is complainant in cheating case claims that he has been duped of the sale consideration of transfer of 77300 bonus shares by misusing his blank delivery instruction slips by Kanav Arora and Shiv Kumar.

The petitioner seeks to establish that deceased Rajesh Kumar Goel who was friend of petitioner had introduced the petitioner to Mukal Bansal and subsequently to Rajan Jain who used Kanav Arora and Shiv Kumar to misappropriate the CRR No.2580 of 2012 [12].money of petitioner.

Counsel for the petitioner was questioned as to how murder of Rajesh Kumar Goel could have benefited Mukal Bansal and Rajan Jain and as to whether on account of Rajesh Kumar Goel being alive today, any harm could have been caused to Mukal Bansal and Rajan Jain.

Learned counsel could not justify as to how Mukal Bansal and Rajan Jain could be said to have motive to kill Rajesh Kumar Goel when they were not going to derive any benefit on account of murder of Rajesh Kumar Goel.

The petitioner is alleged to have suffered loss of money on account of act of Kanav Arora and Shiv Kumar in whose accounts the misappropriated amount belonging to petitioner had been transferred.

It is nowhere established even during the couRs.of investigation in the cheating case that Mukal Bansal or Rajan Jain, the suspects, had cheated the petitioner as no amount belonging to the petitioner is established to have been transferred to Mukal Bansal and Rajan Jain from Kanav Arora and Shiv Kumar.

Kanav Arora and Shiv Kumar are the two co-accused in the murder case also.

It is the petitioner who might be having a grievance against deceased Rajesh Kumar Goel for having been instrumental in the loss caused to him in share investment by introducing him to Mukal Bansal and Rajan Jain whereas no evidence in the shape of documents is available to indict Mukal Bansal and Rajan Jain.

Counsel for the petitioner, in the alternative has argued that the investigation in murder case so far as motive is concerned, is directly connected to the subject matter of the cheating case as cheating by Mukal CRR No.2580 of 2012 [13].Bansal and Rajan Jain, through Kanav Arora and Shiv Kumar was the objective of the murder of Rajesh Kumar Goel.

As discussed hereinabove, neither the role attributed to Mukal Bansal and Rajan Jain of having any motive to kill Rajesh Kumar Goel has been found during the couRs.of investigation not they seem to have obtained any benefit as the transactions of petitioner are proved to be with Kanav Arora and Shiv Kumar.

The intention of the petitioner is to extend the criminal liability to Mukal Bansal and Rajan Jain in the garb of attributions of motive to Kanav Arora and Shiv Kumar as the petitioner has allegedly suffered loss in the investment business.

The suspicion can never take place of proof.

The objective of the petitioner appears to be to indict additional accused on the allegation that they had a motive in the cheating case as well as in the murder case.

Learned counsel has also vehemently contended that the FIR in the cheating case is improper and claimed that the investigation in cheating case should be considered as supplementary investigation to the murder case as the murder of Rajesh Kumar Goel is part of the same transaction of the subject matter of cheating case.

In support of his contention, he has placed strong reliance on Amit Bhai Anil Chandra Shah versus Central Bureau of Investigation, 2013 (2) RCR (Crl.) 819.

It was argued that in the said case the second FIR and fresh charge-sheet in the second case was held violative of fundamental rights under Articles 14, 20 and 21 of the Constitution of India against the petitioner as the second FIR related to the CRR No.2580 of 2012 [14].alleged offence in respect of an FIR which had already been filed and Court had taken cognizance.

I have carefully gone through the said judgment.

In the said case petitioner had been arraigned as an accused in view of directions of the Court, while issuing a direction to handover investigation to CBI in earlier case i.e.Narmada Bai versus State of Gujarat, (2011) 5 SCC 7.relating to death of Tulsi Ram Prajapati, a material witness in two killings of Sohrabuddin and his wife Kausarbi.

The CBI had reported that the larger conspiracy allegedly commenced in November 2005 and culminated into the murder of Tulsi Ram Prajapati in December 2006 in a fake encounter.

The alleged fake encounter of Tulsi Ram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi and since Tulsi Ram Prajapati was an eye-witness to the abduction and consequent murder of Sohrabuddin and Kausarbi and Tulsi Ram Prajapati was allegedly kept under the control of accused police officers as part of the same transaction till the time he was allegedly killed in a fake encounter.

In view of factual situation as projected by the CBI, the Supreme Court applied that “consequence test”.

i.e.if an offence forming part of the second FIR arises as a consequence of the offence alleged in the fiRs.FIR then offences covered by both the FIRs are same and accordingly, the second FIR will be impermissible in law.

In other words, the offences covered in both the FIRs shall have to be treated as a part of fiRs.FIR.

The facts and circumstances of Amit Bhai Anil Chand’s case (supra) are absolutely distinguishable and the CRR No.2580 of 2012 [15].observations made in the said judgment are not applicable in the present case especially when the fiRs.case is based upon the direct evidence of Kamlesh, complainant who was present at the time of the occurrence.

The statement of petitioner has been recorded regarding purchase of shares.

One PW Jaspal Singh Rawat, Manager, Master Capital Services has been examined in the case regarding the instructions slips regarding transfer of bonus shares of 77300/-.

The financial statements have also been placed on the record.

Since the investigation conducted in the cheating case indicts Kanav Arora and Shiv Kumar on the basis of the documentary evidence regarding cheating and no evidence having been found against Mukal Bansal and Rajan Jain who are sought to be involved in the case by the petitioner on account of his suspicion that loss has been caused to him by them, it will be improper to issue a direction that the FIR in cheating case was impermissible or that the allegations of cheating in cheating case registered at Police Station Sector 3, Chandigarh is part of the same transaction of murder case registered earlier in Police Station, Sector 36, Chandigarh.

It is also pertinent to observe here that the trial in the murder case has been concluded and it is at the stage of arguments and is to be decided.

One of the accused Mandeep Singh has been in custody for the last about 5 yeaRs.It is not out of place to observe here that vide interim order dated September 7, 2012 while observing that there is no ground to pass judicial order clubbing the trial in murder case and cheating case and vide order dated November 29, 2012, an interim direction was issued to CRR No.2580 of 2012 [16].petitioner Iqbal Singh Sabharwal to appear as a witness and would depose on oath whatever truth he believes to be correct by appearing in the Court on November 30, 2012 leaving it open to the defence counsel to attribute improvements with permission to the trial Court to summon the record and permit the copies of the relevant statements from the record of cheating case in cross-examination or otherwise, it has been informed that the petitioner has already been examined.

His deposition is subject to final scrutiny at the time of appreciation of evidence.

The cheating case is at initial stage and is pending before Judicial Magistrate Ist Class, being a Magisterial trial; neither clubbing not passing an order to treat the FIR and investigation in cheating case to be supplementary charge sheet to murder case will be in the interest of justice.

In view of the above circumstances, finding no ground to interfere in the order, the petition is dismissed.

May 4, 2013 (M.M.S.BEDI) sanjay JUDGE