Delhi District Court
Of Gulab Chand Upadhyay vs . State Of Up. 2002 Crl. Lj 2907, It Has ... on 3 December, 2015
CC No. 76/1/15
M/s Vishwanath & Sons V. M/s Esjaypee Impex Pvt. Ltd & Ors.
PS Lahori Gate
03.12.2015
Present : Complainant with counsel.
Vide this order, I shall decide the application u/s 156(3) Cr.PC filed on behalf of
the complainant for registration of FIR against the proposed accused person as mentioned in
his complaint and to investigate the case.
The case of complainant is that complainant is a registered partnership firm and
accused no. 1 is a private limited company. Accused no. 2 to 4 approached the complainant
at Delhi office informed that accused no. 1 deals in spices and pulses and is a reputed
importer of spices and pulses and gives its best rate in the market. It was also represented by
them that accused no. 2 is managing director and accused no. 3 and 4 are directors of
accused no. 1. Accused no. 2 to 4 also represented that accused no. 1 can supply 5 fcl Tur
Lemon 2014 Crop as it was imported from Burma (Myanmar) and same is lying at the
Mumbai Port and same can be delivered to the complainant on advance payment of Rs.
56,50,000/-. Believing on the representation and assurances of the accused persons,
complainant made an advance payment of Rs. 56,50,000/- by RTGES on 30.10.2014 in the
bank account of accused no. 1, however, he did not receive any delivery even after making
the advance payment. Complainant received e-mail dated 20.11.2014 and written undertaking
dated 21.11.2014 from the accused persons pertaining to transactions in question but goods
were not delivered. Thereafter, accused no. 3 with the consent, knowledge and approval of
accused no. 2 and 4 for and on behalf of accused no. 1 issued certain cheques drawn on
Kotak Mahindra Bank to the complainant but aforesaid cheques were returned unpaid on their
presentations with the remarks "payment stopped by the drawer". Thereafter, complainant
had telephonic discussion in this regard with the accused persons whereupon accused
persons assured payments of dishonoured cheque within short span but again they failed to
make the payment and complainant issued legal demand notice dated 12.03.2015 to the
accused persons but of no avail. Thereafter, complainant lodged complaint dated 13.04.2015
with the SHO PS Lahori Gate but no action was taken by the police officials. Hence, the
CC No. 76/1/15 M/s Vishwanath & Sons v. M/s Esjaypee Impex Pvt. Ltd. & Ors. Page 1 of 6
present application.
ATR filed by the IO wherein it is stated after investigation it was revealed that
dispute is of civil nature and no police action is required.
I have given my thoughtful consideration to the contentions of the complainant
and have gone through the record as well as perused the report.
The Law in respect of application U/s 156 (3) Cr.P.C. is well settled. In the case
of Gulab Chand Upadhyay Vs. State of UP. 2002 Crl. LJ 2907, it has been held as under:
"the scheme of Cr.PC and the prevailing circumstances require that the option to
direct the registration of the case and its investigation by the police should be exercised
where some "investigation" is required, which is of a nature that is not possible for the private
complainant, and which can only be done by the police upon whom statute has conferred the
powers essential for investigation.
But where the complainant is in possession of the complete details of all the
accused as well as the witnesses who have to be examined and neither recovery is needed
nor any such material evidence is required to be collected which can be done only by the
police, no "investigation" would normally be required and the procedure of complaint case
should be adopted".
In M/s Skipper Beverages Pvt. Ltd. Vs. State 2001 IV AD (Delhi), it was held
that:
"It is true that Section 156(3) of the Code
empowers to Magistrate to direct the police to
register a case and intimate investigations but
this power has to be exercised judiciously on
proper grounds and not in a mechanical
manner. In those cases where the allegations
are not very serious and complaint himself is in
possession of evidence to prove his allegations
there should be no need to pass orders U/s
156 (3) of the Code. This discretion ought to be
exercised after proper application of mind and
only in those cases where the Magistrate is of
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the view that the nature of the allegations is
such that the complainant himself may not be
in a position to collect and produce evidence
before the court and interest of justice demand
that the police should step in the help of the
complaint.
The court is supposed to order investigation keeping in mind the guidelines
issued by the Hon'ble Delhi High Court in the case of Subh Karan Luharuka & anr Vs. State
& anr 2010 (3) JCC 1972, where it is laid down as under:
"52A. For the guidance of Subordinate
Courts, the procedure to be followed while
dealing with an application U/s 156 (3) of
the Code is summarized as under:-
(i) Whenever a Magistrate is called upon to
pass orders under Sec 156 (3) of the
code, at the outset, the Magistrate
should ensure that before coming to the
Court, the complainant did approach the
police officer in charge of the Police of
Station having jurisdiction over the area
for recording the information available
with him disclosing the commission of a
cognizable offence by the
person/persons arrayed as an accused
in the complaint. It should also be
examined as to what action was taken
by the SHO, or even by the senior officer
of the Police, when approached by the
complainant under Section 154 (3) of the
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Code.
(ii) The Magistrate should then form his own
opinion whether the facts mentioned in
the complaint disclose commission of
cognizable offence by the accused
persons arrayed in the complaint which
can be tried in his jurisdiction. He should
also satisfy himself about the need for
investigation by the police in the matter.
A preliminary enquiry as this is
permissible even by an SHO and if no
such enquiry has been done by the
SHO, then it is all the more necessary
for the Magistrate to consider all these
factors. For that purpose, the Magistrate
must apply his mind and such
application of mind should be reflected
in the Order passed by him.
Upon a preliminary satisfaction, unless
there are exceptional circumstances to
be recorded in writing, a status report by
the police is to be called for before
passing final orders.
(iii) The Magistrate when approached with a
complaint under Section 200 of the
Code, should invariably proceed under
Chapter XV by taking cognizance of the
complaint, recording evidence and then
deciding the question of issuance of
process to the accused.
In that case also, the Magistrate is fully
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entitled to postpone the process if it is
felt that there is a necessity to call for a
police report under Section 202 of the
Code.
(iv) Of course, it is open to the Magistrate to
proceed under Chapter XII of the Code
when an application under Section 156
(3) of the Code is also filed alongwith a
complaint U/s 200 of the Code if the
Magistrate decides not to take
cognizance of the complaint. However,
in that case, the Magistrate, before
passing any order to proceed under
Chapter XII, should not only satisfy
himself about the pre requisites as
aforesaid, but, additionally, he should
also be satisfied that it is necessary to
direct Police investigation in the matter
for collection of evidence which is
neither in the possession of the
complainant nor can be produced by the
witnesses on being summoned by the
Court at the instance of the complainant,
and the matter is such which calls for
investigation by a State agency. The
Magistrate must pass an order giving
cogent reasons as to why he intends to
proceed under Chapter XII instead of
Chapter XV of the Code."
Perusal of complaint reveals that there are allegations of not delivering goods
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ever after taking advance money. Neither goods were delivered nor advance money was
refunded to complainant by accused.
In the light of the facts and circumstances of the present complaint, there is no need to
invoke section 156(3) Cr.PC for issuing direction to register FIR against the respondent as:
1. The identity of alleged accused persons are ascertained.
2. No fact are needed to be unearthed as the same are well within the knowledge of the complainant.
3. Custodial interrogation of alleged accused persons are not necessary.
4. The evidence is well within the reach of complainant & no assistance of police is required to gather the same.
5. The facts of the case is not such that would warrant a detailed and complex investigations to be carried out by the State Agency.
Hence, there is no need for investigation by the Police u/s 156 (3) Cr.PC in this case. Application is hereby dismissed.
However, the cognizance on the complaint is taken, Complainant is at liberty to lead pre-summoning evidence. In case any requirement of investigation arises at later stage qua some disputed facts the provision of section 202 Cr.PC could be resorted to.
List for PSE on 20.02.2016 .
(Shilpi Jain) MM-01(Central)/THC/Delhi 03.12.2015 CC No. 76/1/15 M/s Vishwanath & Sons v. M/s Esjaypee Impex Pvt. Ltd. & Ors. Page 6 of 6