Quashing of FIR under Section 482 Cr.P.C. is not warranted when allegations are not inherently improbable, even if the complainant is unwilling to proceed.

JUDGMENT

Swarana Kanta Sharma, J.

1. The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR bearing no. 0093 dated 06.04.2018 under Section 379 of the Indian Penal Code, 1860 registered at Police Station Hauz Khas, New Delhi and the proceedings emanating thereon pending in the court of learned Metropolitan Magistrate, Saket Courts, New Delhi.

2. The case of the prosecution is that in the month of February, respondent no.5 who is an advocate by profession had gone towards Hauz Khas alongwith his clients and had left his mobile phone on the bonnet of a car. After sometime, he asked his client to make a phone call on his phone, after this call was made on his mobile phone, someone from the other side told him that he has taken the phone and was out of station. He also told that his case is pending before a Delhi Court and whenever he will come back to Delhi in April, 2016, he will return the same to him. In the year 2016, he told him that he will return phone in August or September, 2016. Since the phone was not returned. A complaint under Section 156(3) Cr.P.C. was filed for registration of case under Section 379 IPC, on the basis of which FIR No.93/2018 was registered at Police Station Hauz Khas.

3. It is stated by learned counsel for the petitioner no. 1 that petitioner no. 1 had filed a case under Section 376 IPC in District Court Saket against the then SHO, Police Station Hauz Khas wherein he was acquitted and an appeal is pending before the High Court of Delhi. It is stated that the petitioner no. 1 has been receiving threats from the said accused to withdraw the appeal. To falsely implicate the petitioners in some case in connivance with respondent no. 5, the present case was registered against petitioner no.1 and 2. It is stated that petitioner no.1 had found the mobile phone outside a washroom in the Saket Court complex and since no one had told her that they had lost their mobile phone, she had kept the same with her. Thereafter, she had left the mobile phone at Jhajjar at her mother's place. The brother of petitioner no.1 i.e. petitioner no.2 had used the said mobile phone. He was informed later on by police that he was using a stolen mobile phone. Thereafter, petitioner no.1 had contacted the police at Delhi, who had informed that the phone belonged to respondent no.5, who is the complainant in this case. In the year 2016, she had gone to the Police Station and respondent no. 4 had taken the phone from her on the pretext that he will return it to respondent no.5, the complainant. After about 11/2 years, she received a call that a case for stealing a phone had been registered against her. Respondent no. 4 again told her that he had returned the phone to respondent no. 5 in the year 2017. Petitioner no.1 had then made a written complaint on 25.04.2018 to the Commissioner of Police regarding the harassment by police. Petitioner no.1 and 2 were granted anticipatory bail. Chargesheet was filed in the present FIR under Section 411/34 IPC against the petitioners. It is stated that the petitioner had filed W.P. Crl. 1688/2018 before this Court wherein a status report was called and it was informed that petitioner no.1 had returned the mobile phone to respondent no. 4 i.e. the investigating officer which had been handed over to respondent no.5, who had given in writing that "I am very thankful to you. I states that my case be dropped and don't want to proceed with my case further". It is stated that the writ petition came up for hearing before this Court on 31.01.2020 and it was stated that the chargesheet has been f