Hon’ble Shiv Shanker, J.—Criminal Misc. Writ Petition No. 6742 of 2006 (Suresh Kumar Modi v. State of U.P. and others) and Criminal Misc. Writ Petition No. 6950 of 2006 (Mr. Amit Modi and others v. State of U.P. and others) have been filed regarding one criminal case, therefore, both the writ petitions are being disposed of by this common judgement. In both the writ petitions it has been prayed that issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report (hereinafter referred to as the F.I.R.) dated 10th May, 2006 lodged against the petitiones at Police Station Modi Nagar, District Ghaziabad as Case Crime No. 166 of 2006, under Sections 406 and 420, I.P.C.

2. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Counsel, assisted by Sri Udai Chandani and Sri Sikandar B. Kochar, learned Counsel appearing for the petitioners and learned A.G.A. as well as Sri Brijesh Sahai and Sri B.C. Rai, learned Counsel appearing for the respondent No. 4 and perused the records.

3. According to the petitioners, absolutely no offence of cheating in any manner whatsoever is made out against all the petitioners as the intention to cheat, which is necessary for the said offence, is totally lacking in the said case, which can be seen from the fact that an amount of Rs. 1 Crore has already been returned by the petitioner to the company of the respondent No. 4 by way of pay-order, which has been admitted in the F.I.R. It is further contended that the impugned F.I.R. has been lodged only for the purposes of harassing and falsely implicating the petitioners. Absolutely no legal formalities were done by the company of the respondent No. 4, who is alleging to have given the said loan to the petitioner. It is further contended that the said amount was paid to the petitioner’s company only for the purposes of securing a deal for the transfer of 6,58,000 shares of Modi Pon Limited held by the company “Aspen Developers Private Limited”, a group of companies of the petitioner, and when the said deal could not go through, the present false F.I.R. was lodged against the petitioner/s. It is further contended that malafides on behalf of the respondent No. 4 can further be seen from the fact that absolutely no security by way of assets, ownership papers or the signs of the guarantors was taken before giving the said amount to the petitioner’s company. According to the petitioners, entire dispute is of civil nature and present F.I.R. has been lodged only for the purposes of coercing the petitioners into giving away the control of 8/1/2% shares of Modi Pon Limited, which are held by the Aspen Developers Private Limited. From the perusal of the F.I.R. itself it can be seen that the entire amount of Rs. 4,40,86,000/- has been paid by way of five consecutive cheques. The details of the cheques as mentioned in the F.I.R. are as under :

Date Cheque No. Amount Drawn on

30.09.2004 395101 40,84,000.00 State Bank of Bikaner and

31.10.2004 395102 1,00,00,000.00 Jaipur, Karol Bagh, New

30.11.2004 395103 1,00,00,000.00 Delhi-110005.

31.12.2004 395104 1,00,00,000.00

21.01.2005 395105 1,00,00,000.00

4. From the aforesaid details of the cheques, it is clear that it started from 30.9.2004, 31.10.2004, 30.11.2004, 31.12.2004 and 31.1.2005, which goes to show that the total amount was paid to the petitioner’s company in five instalments and over a period of five months and during which the company of the respondent No. 4 had ample opportunity of insisting on getting the loan papers prepared and on refusing to disburse the alleged loan. It is further contended that from the perusal of the balance-sheet dated 31.3.2005 of company of the respondent No. 4, namely, Status Mark Finvest Limited, it can very clearly be seen that absolutely no amount has been shown as loan instead of an amount of Rs. 4,51,40,745/- has been shown in the head “advance recoverable in cash or any kind for value to be received, which goes to show that t