Delhi District Court
Dimple Mahna vs . State on 2 July, 2018
CR No. 41/18
Dimple Mahna Vs. State
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA:
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
Criminal Revision No. 41/18
Dimple Mahna,
D/o Sh. Rajinder Kumar Mahna
R/o A75, Sector8A, Third Floor,
Dwarka, New Delhi - 110 075. ..... Petitioner/
Revisionist
Versus
State
Through SHO
PS Dwarka South,
New Delhi. ..... Respondent
Date of Institution : 24.01.2018 Date of conclusion of arguments : 26.05.2018 Date of Order : 02.07.2018 Page No. 1 of 19 CR No. 41/18 Dimple Mahna Vs. State JUDGMENT :
1. Vide this order, I shall dispose of this revision petition against the impugned order dated 04.01.2018 whereby the application u/s 156 (3) Cr.PC of the petitioner was dismissed. (The complainant / petitioner & accused / respondent are hereinafter referred to as the petitioner and respondents respectively).
2. Briefly stated facts relevant for disposal of revision petition are like this. That the petitioner met with the respondent at Gold Gym situated at Ramphal Chowk, Sector7, Dwarka, New Delhi and developed a friendship with the respondent. Respondent represented the petitioner that he is Managing Director of one firm namely Lamba Construction and de als in all kind of construction work, sale purchase of plots and buildings, etc. Petitioner was having plot no. 7206 situated at Sunny Enclave at Kharar, Punjab and Page No. 2 of 19 CR No. 41/18 Dimple Mahna Vs. State respondent induced the petitioner to sell the said plot at Kharar, Punjab and buy some property in Delhi. Respondent convinced the petitioner to further construct the plot and the petitioner sold the property at Punjab for Rs.28 lacs approximately and purchased another plot in Chander Vihar, Delhi bearing no. 7 & 8A2, portion 7 & 8 measuring 50 sq. yds. out of total area admeasuring 200 sq. yds. bearing khasra no. 33/8, located at Village Nilothi, Extn. known as Chander Vihar (Vikas Vihar), Nilothi Extn., New Delhi (hereinafter referred to as the said property), against a total consideration of Rs.19.85 lacs on 25.09.2014. The petitioner on the same day transferred the said property in the name of respondent but for the purpose of taking approvals on her behalf from concerned authorities for construction work only. Respondent on the same day transferred three floors (First, second and third with roof rights) of the said property in the name of the petitioner.
Page No. 3 of 19 CR No. 41/18
3. It is further alleged that the respondent induced the petitioner to create a new company in the name and style of Body Sterone Foods Pvt. Ltd. with 40% shareholding to the petitioner and remaining 60% shareholding with the respondent. The respondent sexually assaulted the petitioner by administering some stupefying substance and petitioner lodged an FIR No. 0639 u/s 376/328/506 IPC. The respondent moved a bail application in the above said FIR. The documents annexed with the application contained certain forged and fabricated Pamphlets about some alleged Chit Fund Scheme named as "DMP Finance" imputing therein that the petitioner was running some Finance schemes, wherein the name, mobile number, residential address and email id of the petitioner was detailed whereas the petitioner had no concern with the said pamphlets of DMP Finance. The petitioner filed an application u/s 156 (3) Cr.PC against the respondent for having committed the offence of forging and fabricating false documents of DMP Finance in as much as the police Page No. 4 of 19 CR No. 41/18 Dimple Mahna Vs. State failed to carry out necessary and appropriate investigation upon the complainant moved by the petitioner before the police authorities.
4. The Ld. Trial Court after hearing the arguments dismissed the said application through impugned order dated 04.01.2018.
5. Feeling aggrieved by the impugned order of the ld. trial court, the petitioner has filed the present revision petition.
6. Ld. Counsel for the petitioner has contended that FIR No. 0126/17 was got registered on the complaint of the respondent against the petitioner as per the order of the court on the complaint dated 27.01.2017, whereas the petitioner has filed a complaint with the local police on 13.01.2017 but police had not taken any action on the said complaint of the petitioner. The petitioner has filed an application u/s 156 (3) on 01.02.2017, whereas the respondent and the police officials Page No. 5 of 19 CR No. 41/18 Dimple Mahna Vs. State took advantage and got the FIR registered against the petitioner on 16.03.2017 by concealing the material facts. The FIR got lodged by respondent is a clear bundle of lies and contains many errors which are writ large on the bare perusal of the FIR.
7. The Ld. Trial court has failed to appreciate that the prima facie cognizable offence of fraud, forgery and fabrication of documents is committed by the respondent whereas respondent's allegation in the FIR are to the effect that he was cheated by DMP Finance in bogus chit fund scheme, therefore, the contents of FIR got lodged by the respondent and the complainant filed by the petitioner are poles apart and has no overlapping of the allegations of the complaint of the petitioner and FIR got lodged by respondent. Therefore, the investigation conducted in FIR No. 0126/17 of the respondent, viewed from any angle would not cover allegations, levelled in the complaint filed by the petitioner as such the legal bar of Page No. 6 of 19 CR No. 41/18 Dimple Mahna Vs. State two FIRs on the same incident would not apply to the present case.
8. It is further submitted that respondent has used a forged document to obtain bail in case FIR registered against the respondent by the petitioner and respondent has got lodged the FIR regarding cheating committed by the petitioner, therefore, the forging of documents in the name of petitioner by respondent is having entirely different scope so far as the commission of different offence in terms of the complaint filed by the petitioner and FIR lodge against the petitioner. So the complaint made by the petitioner cannot be termed as second complaint in respect of the same incident. In this regard reliance is placed upon Upkar Singh Vs. Ved Prakash & Ors. (2004) 13 SCC 292, Surender Kaushik & Ors. Vs. State of U.P. & Ors., (2013) 5 SCC 148, P.Sreekumar Vs. State of Kerala & Ors. (Crl. Appeal No. 408/2018 in judgment passed by Hon'ble Supreme Court Page No. 7 of 19 CR No. 41/18 Dimple Mahna Vs. State and Manju Devi Vs. Sate of UP & Ors. 2012 Crl. L.J. (NOC) 197.
9. It is further submitted that even for the sake of arguments, it is presumed that case of the petitioner is not fit for issuance of directions u/s 156 (3) Cr.PC, the complaint of the petitioner could not have been disposed off without holding an inquiry u/s 202 Cr.PC. In this regard reliance is placed upon Arvind Gaur Vs. State of NCT of Delhi (Crl. M.C. No. 623/2013).
10. Per contra Ld. Counsel for the respondent has contended that there is evidence in this regard that alleged forged documents were given by the petitioner to the respondent and forgery, if any, was committed by the petitioner. The investigation in the FIR got lodged by respondent against the petitioner would verify the falsity of the claim of the petitioner regarding the forged and fabricated documents Page No. 8 of 19 CR No. 41/18 Dimple Mahna Vs. State in respect of the DMP Finance scheme were prepared by the respondent and the police has conducted the investigation in this regard, therefore, the Ld. Trial court has rightly dismissed the application u/s 156 (3) Cr.PC.
11. Ld. State Counsel duly assisted by IO has submitted that the petitioner got lodged a FIR against the respondent u/s 376 IPC and respondent got lodged a FIR No. 126/17 against the petitioner through order passed by Ld. Trial Court. The petitioner also filed an application against the respondent for forging the pamphlets of DMP Finance which was dismissed by the Trial court on the ground that two FIR's regarding one incident cannot be registered.
12. It is further submitted that respondent got lodged the FIR on the allegation that petitioner had run various finance schemes in which one can earn Rs.30 lacs, Rs.50 lacs and Rs.100 lacs by paying lesser Page No. 9 of 19 CR No. 41/18 Dimple Mahna Vs. State amount as the returns are very high. That believing, the said representation as true, the respondent agreed to take scheme of Rs.30 lacs under which he had to pay Rs.25 lacs in EMI of Rs.50,000/ for 50 months and was to get Rs.3,30,000/ after every six months besides Rs.30 lacs on completion of the scheme and accordingly paid Rs.50,000/ by account payee cheque number 317440 dated 20.01.2016 drawn on State Bank of India, Janakpuri Branch, New Delhi, which was got encashed. Thereafter respondent was asked to take the scheme of Rs.50,00,000/ (Rupees fifty lacs only), in which he have to pay Rs.1,00,000/ (Rupees one lac only) each month for 50 months and in return would get Rs.7,00,000/ (Rupees seven lac only) after interval of every six months i.e. on commencing of every 7 th months and Rs.50 lacs after 50 months and would also be entitled to participate in draw for Hyundai Creta. That, believing all the above said representation as true, the scheme of Rs.30 lacs was changed to scheme of Rs.50,00,000/ (Rupees fifty lacs only). The respondent Page No. 10 of 19 CR No. 41/18 Dimple Mahna Vs. State was asked to handover 51 signed post dated cheques of Rs.1,00,000/ (Rupees one lac only) each for payment of 50 EMI commencing from 25.01.2016 and ending on 25.03.2020 on which the respondent handed over 51 signed postdated cheques bearing nos. 207345 to 317441 dated 25.02.2016 to 25.03.2020 of amount of Rs.1 lakh each. The respondent had become entitled to receive a sum of Rs.7,00,000/ in the month of July on payment of the above said 6 EMIs from January to June'2016 but when ever respondent asked the alleged for the payment of Rs.7,00,000/ the petitioner did not pay the amount. Later on the respondent informed the petitioner that respondent is no more interested in the scheme. He made several requests to the petitioner to pay him Rs.7 lacs or at least refund his Rs.6.5 lacs and return his balance 44 cheques but the petitioner has declined to pay the said amount.
13. It is further submitted that the investigation was conducted Page No. 11 of 19 CR No. 41/18 Dimple Mahna Vs. State by the police regarding pamphlets of DMP Finance so far as the name and email id of Proprietor as Dimple Mahna is concerned. The name of the printer is not written on the said pamphlet, therefore, in order to verify the details of email id [email protected] notice has been sent to the Cyber Cell, SouthWest District and after investigation it will be clear that this id belong to the petitioner or it has been fabricated by the respondent.
14. He further submitted that this if said id is found forged and fabricated by the respondent. There is no prohibition under law not to array said complainant Hemant Lamba as an accused, if anything surfaced regarding his complicity in forging the said pamphlets of DMP Finance scheme, therefore, there is no need to lodge the separate FIR and no purpose would be served by keeping the complainant pending. Ld. Trial court has rightly dismissed the application by keeping in view the settled principle of law with regard to issuance of Page No. 12 of 19 CR No. 41/18 Dimple Mahna Vs. State directions u/s 156 (3) Cr.PC. This petition is devoid of merits and deserves to be dismissed.
15. I have heard counsel for the parties and have gone through the trial court record.
16. Law with respect to issuance of directions of section 156 (3) Cr.PC is well settled that if evidence is not in possession of the complainant and State agency is required to collect the said evidence, issuance of directions under section 156 (3) Cr.PC. are mandatory. Otherwise, if the evidence is within the reach of complainant / petitioner then there is no need of issuance of directions for registration of FIR against the accused. The ratio of Manju Devi (supra) and Arvind Gaur (supra) is also to the effect that if allegation warrants to be investigated by police then directions u/s 156 (3) Cr.PC are to be issued by the Ld. MM for registration of the FIR. Page No. 13 of 19 CR No. 41/18
17. With the above settled principle of law, I would like to advert to the facts of the present case. The first contention of the counsel for the petitioner is to the fact that the allegations contained in the application u/s 156 (3) Cr.PC filed by the petitioner is having the different version from that of the complaint of the respondent contained in the FIR bearing no. 126/17, PS Dwarka South, therefore, the observation of the trial court while dismissing the application that on the basis of same incidents two FIRs cannot be lodged is unwarranted. In this regard, it may be noted that the ratio of Upkar Singh (supra), Surender Kaushik (supra) were reiterated in para 30 of P.Shree Kumar (supra) and are reproduced as under : "24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counterFIR relating to the same or connected cognizable Page No. 14 of 19 CR No. 41/18 Dimple Mahna Vs. State offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint.
As is further made clear by the three Judge Bench in Upkar Singh, the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIR's is permissible."
18. Therefore, the ratio of above said case laws is that second FIR can be lodged in respect of the same incident for which the FIR was lodged if the second FIR happens to be in the nature of counter complaint. In the present case case, the petitioner has got lodged the FIR against the respondent for commission of offence of rape upon the petitioner. The respondent while seeking bail in said FIR has relied Page No. 15 of 19 CR No. 41/18 Dimple Mahna Vs. State upon certain pamphlets which are under investigation in FIR no. 126/17 PS Dwarka South and status report has been filed by the IO showing the progress of the investigation in the said FIR detailing therein that the alleged id of the email which has been shown in the pamphlets of DMP Finance is yet to be ascertained. It is submission of Ld. State Counsel that after verification of the said id investigation will be conducted in this regard and action will be taken against the person who has allegedly forged and fabricated the said id, therefore, the alleged forged and fabricated documents of DMP Finance showing the connectivity of the said company with the petitioner cannot be termed as a counter complaint. Further more, the said fact cannot be termed as rival version in terms of the same incident having different scopes so as to justify the lodging of section FIR under law. The factum of fabrication of the alleged fake id of the petitioner by the respondent is under investigation and if the respondent, who is complainant in FIR no. 126/17, is found to have forged the alleged id Page No. 16 of 19 CR No. 41/18 Dimple Mahna Vs. State of the petitioner can also be arrayed as accused, therefore, viewed from any angle, allegation contained in the application of the petitioner cannot be termed as a different version of the incident which is detailed in the FIR No. 126/17 PS Dwarka South so as to warrant lodging of the second FIR. The case law relied upon by the petitioner in this regard has no relevance to the facts of the present case, therefore, stands distinguishable and has no applicability to the facts of the present complaint of the petitioner.
19. So far as the pendency of the complaint after dismissal of the application u/s 156 (3) Cr.PC is concerned, suffice is to say that in this application no averments were made by the applicant that complaint has also been filed alongwith the application u/s 156 (3) Cr.PC. Furthermore, even if for the sake of arguments, it can be presumed that the contents of the application u/s 156 (3) Cr.PC warrant that any complaint u/s 200 Cr.PC is allegedly detailed therein, Page No. 17 of 19 CR No. 41/18 Dimple Mahna Vs. State even then as discussed in the forgoing paras, the alleged fabrication and forging of the pamphlets in the name of DMP Finance which allegedly contained id of email of the petitioner is part and parcel of the investigation of the FIR No. 126/17 got lodged by the respondent, therefore, this contention is also rejected.
20. From the above said discussion, I am of the opinion that the impugned order did not suffer any illegality in as much as the ld. trial court has exercised his judicial discretion in a judicious manner. Ld. trial court has taken a plausible view of the material on record and I found no ostensible reason to take a different view which has already been taken by trial court. This petition is devoid of merits and deserves to be dismissed and is hereby dismissed.
21. Needless to say that nothing stated herein shall tantamount to any expression of my opinion on the merits of the case. Page No. 18 of 19 CR No. 41/18
22. Copy of this order be sent to the ld. trial court for the purposes of record. Trial court record be sent back immediately and this file be consigned to record room.
Digitally signed
VIJAY by VIJAY KUMAR KUMAR DAHIYA Date: DAHIYA 2018.07.07 Announced in the Open Court. 13:04:48 +0530 Today i.e. on 02.07.2018 (DR. V.K. DAHIYA) SPECIAL JUDGE : CBI (P.C. ACT) DWARKA COURTS, NEW DELHI. Page No. 19 of 19