Delhi District Court
Devesh Kumar Sharma vs . The State on 3 November, 2015
CR No: 02/2014
Devesh Kumar Sharma Vs. The State
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBI1
DWARKA COURTS: NEW DELHI
Devesh Kumar Sharma
S/o Sh. Ramesh Sharma
R/o Plot No. 2, Om Vihar,
PhaseIII, Uttam Nagar,
New Delhi 110059. .......... Revisionist
VERSUS
1. State of NCT of Delhi
2. Ms. Sapna Gagneja
First Floor, Plot No. 88,
Shyam Nagar Extension
Vishnu Garden,
New Delhi110018. ........Respondents
CR No. : 02/2014
Date of Institution : 24/07/2014
Police Station : Bindapur
Reserved for orders on : 19.10.2015
Order announced on : 03.11.2015
JUDGMENT
1. This revision petition under Section 397 Cr.P.C. r/w Section 399 Cr.P.C. is directed against the order dated dated 24.06.2014 of Ld. MM03 (SW) Delhi whereby application under Section 156 ( 3) Cr.P.C. of the revisionist was dismissed.
2. Briefly stated facts relevant for disposal of revision petition are as under:
3. The revisionist had filed a complaint under Section 200 Cr.P.C. before the court of Ld. MM stating therein that Respondent No.2 Ms. Sapna Gagneja was working with revisionist CR No: 02/2014 Page 1 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State as his batch mate in Convergys' in Gurgaon and after leaving Convergys, Respondent No.2 Ms. Sapna Gagneja took up job in Jet Airways, Delhi. In the month of December, 2012, the complainant/revisionist received a call from Respondent No. 2 Ms. Sapna Gagneja who informed the complainant that she has been posted in HR department of Jet Airways and Jet Airways is recruiting new staff and the complainant was told by Respondent No. 2 Ms. Sapna Gagneja to deposit a sum of Rs. 2,65,000/ as interest free security refundable after six months. Respondent No. 2 Ms. Sapna Gagneja also offered job of loader to Sh. Naveen Mehra, brother in law of complainant and demanded Rs. 1,10,000/ for the said post as interest free refundable deposit. Complainant was informed by Respondent No. 2 Ms. Sapna Gagneja that amount has to be deposited in installments and first installment of Rs. 20,000/ has already been deposited by her on behalf of complainant and the said amount was paid by complainant to Respondent No. 2 Ms. Sapna Gagneja but no receipt for the said amount was issued. Thereafter complainant told Respondent No. 2 Ms. Sapna Gagneja that he will deposit the money only in her account to which she agreed and gave to the complainant her account number 4851050040028 with HDFC Bank Ltd., B1, Vanijya Kunj, Enkay Tower, Udyog Vihar, PhaseV, Gurgaon, Haryana122001 and another account number 53110787271 of Standard Chartered Bank, Janak Puri Branch, New Delhi. Subsequently Respondent No. 2 Ms. Sapna Gagneja kept on asking for more money in installments, which the complainant deposited in her account from time to time. In the CR No: 02/2014 Page 2 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State month of August, 2013, the complainant and his brother in law Sh. Naveen Mehra received message regarding demand by the airlines to deposit Rs. 45,000/ from the complainant and Rs. 20,000/ from Sh. Naveen Mehra. The complainant contacted Respondent No. 2 Ms. Sapna Gagneja who asked him to deposit the said amount in her account and the complainant and his brother in law followed Respondent No. 2 Ms. Sapna Gagneja's instructions. The complainant asked Respondent No. 2 Ms. Sapna Gagneja about the status of his job application and she told him that it will take at least six more months to which complainant objected and asked for refund of the money on which Respondent No. 2 Ms. Sapna Gagneja stated that she has already deposited the amount with the Airline and refused to refund the same. It is further stated that after much persuasion , Respondent No. 2 Ms. Sapna Gagneja finally gave two post dated cheques i.e. cheque no. 458060 in the sum of Rs. 2,65,000/ and cheque no. 458059 dated in the sum of Rs. 1,10,000/, both dated 20.02.2014 and drawn on HDFC Bank Ltd., B1, Vanijya Kunj, Enkay Tower, Udyog Vihar, PhaseV, Gurgaon, Haryana 122001. The complainant deposited the said cheques of Rs. 2,65,000/ and Rs. 1,10,000/in his bank but the same were dishonored with remarks 'Account closed'. The complainant went to the house of Respondent No. 2 Ms. Sapna Gagneja and came to know that she was already shifted from there. Respondent No. 2 Ms. Sapna Gagneja had malafide intentions right from the beginning and she has cheated the complainant and his brother in law in a well planned manner.
CR No: 02/2014 Page 3 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State
4. Along with the complaint, the revisionist /complainant had filed an application under Section 156 ( 3) Cr.P.C. for direction to SHO to register the case under Sections 406/420/471 IPC and to conduct proper investigation.
5. Vide order dated 24.06.2014 Ld. MM was pleased to decline the request of complainant for directions to SHO concerned for registration of FIR and was pleased to dismiss the application under Section 156 (3) Cr.P.C.. Vide the said order dated 24.06.2014 Ld. MM was pleased to direct the complainant to proceed with his complaint under Section 200 Cr.P.C. and the case was listed for PSE.
6. Notice of revision petition was issued to parties but Respondent No. 2 Ms. Sapna Gagneja did not appear to address arguments.
7. I have heard Ld. Counsel for the revisionist and Ld. Addl. PP for the State and perused the record.
8. The contention of Ld. Counsel for the revisionist is that revisionist was induced by Respondent No. 2 Ms. Sapna Gagneja in a well planned manner by offering job to revisionist and his brother in law in Jet Airways and on that pretext the Respondent No. 2 Ms. Sapna Gagneja obtained Rs. 2,65,000/ for employment of complainant and Rs. 1,10,000/ for employment of brother in law of complainant but the employment was not provided and to discharge the liability, the respondent no. 2 Ms. Sapna Gagneja issued cheques for the sum of Rs. 2,65,000/ and Rs. 1,10,000/ which were dishonored with remarks 'Account closed', which clearly shows that intention of Respondent No. 2 Ms. Sapna CR No: 02/2014 Page 4 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State Gagneja was to cheat the complainant/revisionist.
9. Ld. Counsel for the complainant has further contended that IO did not bother to search and locate the accused persons and status report as filed by the police would reveal that police did not take any action despite knowing that the complainant has been cheated.
10. Ld. Addl. PP for the State has contended that this is a case wherein monetary transaction have taken place between the complainant and Respondent No. 2 Ms. Sapna Gagneja and in discharge of liability, Respondent no. 2 Ms. Sapna Gagneja had issued cheques which subsequently get dishonored and under 138 of NI Act is made out and for the said offence, registration of FIR was not required as the complainant could have proved the case on the basis of evidence in his possession.
11. As per allegations of revisionist/complainant, he had given a sum of Rs. 2,65,000/ to Respondent no. 2 Ms. Sapna Gagneja as security deposit for getting employment in Jet Airways and another sum of Rs. 1,10,000/ as security deposit was paid by complainant/revisionist to Respondent no. 2 Ms. Sapna Gagneja for employment of Sh. Naveen Mehra , brother in law of complainant/revisionist in Jet Airways and they did not get employment. Thereafter they contacted Respondent No. 2 Ms. Sapna Gagneja who stated that process of employment will take at least six more months to which complainant objected and asked for refund of amount. Respondent No. 2 Ms. Sapna Gagneja gave a cheque bearing no. 458060 in the sum of Rs. 2,65,000/ and cheque no. 458059 dated in the sum of Rs.
CR No: 02/2014 Page 5 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State 1,10,000/, both dated 20.02.2014 drawn on HDFC Bank Ltd., B1, Vanijya Kunj, Enkay Tower, Udyog Vihar, PhaseV, Gurgaon, Haryana 122001 to the complainant which according to the complainant were dishonored with remarks 'Account closed' .
12. The complainant/revisionist is aggrieved by the impugned order dated 24.06.2014 of Ld. MM whereby his application under Section 156 ( 3) Cr.P.C. for registration of FIR was dismissed.
13. In the impugned order dated 24.06.2014, Ld. MM has been pleased to observe :
The transaction between the complainant and accused were purely monetary transaction and in discharge of that transaction accused has already given cheques to the complainant. The fact that cheques got dishonoured also makes an offence under Section 138 NI Act for which complainant has separate cause of action. However, for registration of FIR against accused under Section 156 (3) Cr.P.C., there must have some reason, specially, if the accused is unknown or if the recovery or discovery has to be effected or any custodial interrogation is required for any purpose. However, in this case accused is known to the complainant, all the evidences are within his reach and there is no other evidence to be collected. The allegations can be proved by the complainant himself and the other witness, who is his brother in law, is within his own reach. In these circumstances, I do not find it to be a fit case for registration of FIR. Hence, the application under CR No: 02/2014 Page 6 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State Section 156 (3) Cr.P.C. is dismissed.
14. Chapter XII of the Code deals with information to the police and their power to investigate the offences. This chapter provides an alternative as well as additional remedy to a complainant whose complaint is either not entertained by the police or who does not feel satisfied by the investigations being conducted by the Police.
15. Section 156 reads as :
156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable which Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned.
16. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted.
17. Even though Section 156 Cr.P.C. empowers the Magistrate to issue directions to the police to register the FIR but this provision cannot be permitted to be misused by the complainant CR No: 02/2014 Page 7 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State and the Magistrate is to apply his mind to the fact of each case before passing orders under Section 156 (3) Cr.P.C. and not to act in a mechanical manner.
18. In M/s Skipper Beverages Pvt. Ltd., Vs. State, 2001 IV AD Delhi 625, Hon'ble High Court of Delhi was pleased to hold:
7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate 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 the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of 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 interests of justice demand that the police should step in to held the complainant. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 20001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors."
8. In case Arvindbhai Rajivbhai Patel Vs. Dhirubhai Sambhubhai reported in 1998(1) Crimes 351, an Hon'ble CR No: 02/2014 Page 8 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State Judge of Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that Magistrates should act under Section 156(3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusations.
9. In the case in hand the allegations in regard to the theft of the cheque could be proved by oral or other evidence. The allegations regarding the forging of the cheque by typing out certain portions therein could also be proved by summoning the original cheque from the bankers and leading required evidence. Therefore, it was not at all a case where the police assistance was required for breaking the case and discovering some evidence which the complainant was unable to collect of his own.
This Court, therefore, is of the considered view that learned Trial Judge was justified in declining the request of the complainant to issue directions to Police under Section 156(3) of the code as prayed.
19. The allegations of complainant are that he had paid the amounts of Rs. 2,65,000/ and Rs. 1,10,000/ to Respondent No. 2 Ms. Sapna Gagneja as security deposit for getting employment in CR No: 02/2014 Page 9 of 10 D.O.O. 03.11.2015 CR No: 02/2014 Devesh Kumar Sharma Vs. The State M/s Jet Airways but after not getting employment, he contacted Respondent No. 2 Ms. Sapna Gagneja who informed him that process of employment will take at least six months which was not to the liking of the complainant and on that account he demanded the money which was paid by him to Respondent No. 2 Ms. Sapna Gagneja and the same was returned to complainant by way of cheques by Respondent no. 2 Ms. Sapna Gagneja which subsequently were dishonoured.
20. In the impugned order dated 24.06.2014, Ld. MM has arrived at conclusion that accused is known to the complainant and all evidences are within the reach of complainant and there is no other evidence which is to be collected and the allegations can be proved by the complainant himself and other witness who is brother in law of the complainant.
21. Looking at the nature of allegations as made in the complaint filed before Ld. MM, I am of the view that judicial discretion has been exercised by Ld. MM properly and in accordance with provisions of law. I find no infirmity in the impugned order dated 24.06.2015. The revision petition is devoid of merits and same is dismissed.
22. TCR be sent back to the court concerned along with copy of this order and revision file be consigned to record room.
Announced in the open (HARISH DUDANI)
Court on 03.11.2015 Special Judge, (PC Act) CBII
Dwarka Courts, New Delhi.
CR No: 02/2014 Page 10 of 10 D.O.O. 03.11.2015