Delhi District Court
Shri Vijay Malik vs Shri Raman Bhatia on 19 August, 2020
IN THE COURT OF SH. PARVEEN SINGH,
ADD L. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 530/2017
Shri Vijay Malik,
s/o Sh. Dalel Singh,
R/o C6, Village Masudpur,
New Delhi. ....Revisionist.
Versus
1. Shri Raman Bhatia,
S/o Sh. Ramesh Bhatia,
R/o 1627, First Floor,
Rani Bagh, Delhi34
2. Shri Vipin Bhatia,
S/o Sh. Ramesh Bhatia,
R/o 1627, First Floor,
Rani Bagh, Delhi34
3. Shri Mahesh Kumar,
S/o Sh. Jagdish Chand,
R/o H. No. 58, Ward No. 3,
Gol Kothi, Hansi,
Tehsil Hansi, Distt Hisar (Haryana). .....Respondents.
CR No. 530/17 (Parveen Singh)
Page No. 1 of 16 ASJ03/NDD/PHC: 19.08.2020
Date of Institution : 25.11.2017.
Date of Arguments : 17.08.2020.
Date of Pronouncement : 19.08.2020.
JUDGMENT
The present is a revision petition u/s 397/399 Cr.P.C for setting aside the order dated 24.08.2017 passed by Ld. MM, PHC whereby the complaint u/s 200 Cr.P.C filed by the revisionist/ complainant against the respondents was dismissed.
2. The brief facts of the revisionist's case are, that the revisionist was running a restaurant in the name and style of New South Delhi Restaurant at Village Masudpur. The revisionist used to keep his signed cheque book in the drawer of his office. In the third week of March 2013, revisionist found that certain cheques i.e. cheque nos. 300107, 300108 and 300109 had been stolen from the cheque book. He immediately informed this fact to his bankers and stopped the payment of the stolen/ lost cheques. After some time, revisionist received summons from two different courts in cases filed by respondent Raman Bhatia and Mahesh Kmar. During the proceedings, he came to know that the third cheque had gone into the hands of respondent Vipin Bhatia, brother of revisionist Raman Bhatia. It is further alleged that cheque no. 300108 had been misused by Raman Bhatia, cheque no. 300109 had been misused by Vipin Bhatia and cheque no.
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300107 had been misused by Mahesh Kumar. It is further alleged that respondent Raman Bhatia was having friendly relations with revisionist. Raman Bhatia used to have lunch with revisionist at the restaurant of revisionist. It is further alleged that the respondent with common intention and active connivance and collusion with each other had stolen the cheques and misused them. It is further submitted that the revisionist had never issued the cheques mentioned above to the respondents for any legal debt or liability. The respondents have hatched a criminal conspiracy and have stolen the cheques from the office of the revisionist. The revisionist had filed a complaint of stolen cheques in PS Vasant Kunj vide DD No. 73B. However, no action was taken by the police. Hence, the revisionist had filed a complaint u/s 200 Cr.P.C against the respondents. After filing this complaint, a status report from the police was called by the court. IO had filed status report alongwith the statement of the revisionist and the complaint filed by the respondent no. 1.However, vide order dated 24.08.2017, the complaint of the revisionist was dismissed. Hence, the present revision petition.
3. The grounds taken for filing the revision petition are, that the Ld. MM has not applied his judicial mind to the facts and circumstances of the case. The impugned order has been passed in haste without applying the principles of natural justice. The order of ld. trial court is based on surmises and conjectures. The ld. trial court failed to appreciate the fact that upon CR No. 530/17 (Parveen Singh) Page No. 3 of 16 ASJ03/NDD/PHC: 19.08.2020 getting the knowledge of the theft of the cheques, the revisionist had already stopped the payment of the cheques and had informed his bank. Ld. trial court failed to appreciate that all the three accused persons/ respondents, in active connivance and collusion with each other, had stolen the cheques of the revisionist and then presented them for encashment at different places. Ld. trial court failed to appreciate the fact that revisionist had placed on record the complete set of complaints filed by the respondents against him despite the fact that there were no dealings between the revisionist and the respondents. Raman Bhatia had categorically admitted that he was in possession of all the three cheques. Ld. trial court failed to appreciate the documents placed on record and the evidence led by the revisionist. Ld. trial court failed to appreciate the fact that when the revisionist came to know about the theft of the cheques, he filed a complaint at PS Vasant Kunj vide DD No. 73B. Thus, the revisionist was quite vigilant. However, ld. trial court wrongly held that revisionist did not bother to report the matter to the police.
4. In the reply filed by the respondents, it is submitted that respondent no. 1 is a close friend of revisionist. Respondent no. 1 used to work in India Bulls which was nearby to the restaurant of the revisionist. Respondent no. 2 and 3 came to know revisionist through respondent Raman Bhatia. It is further submitted that in the year 2013, the revisionist was in urgent need of money and he approached the respondents for money.
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The respondents, being friends of the revisionist, had extended a friendly loan of Rs.10 lacs to the respondent. Out of Rs.10,00,000/, Rs.4 lacs were given by Raman Bhatia and Mahesh Kumar each and Rs.2 lacs were given by Vipin Bhatia. In order to repay the loan, the revisionist had issued three cheques i.e. cheque no. 300107 for an amount of Rs.4 lacs, cheque no. 300108 for Rs.2 lacs and cheque no. 300109 for Rs.4 lacs, in favour of the respondents. Thereafter, the payment of the above said cheques was stopped by the revisionist. It is further submitted that when the revisionist came to know that his cheques had bounced, he filed a false complaint with police. It is further submitted in that in the complaint filed with the police, the revisionist had claimed that the stolen cheques were only bearing his signatures and the remaining portions were blank. However, in his defence given in notice u/s 251 Cr.P.C, the revisionist had stated that except the signatures and the amount in words and figures, the remaining cheques were not in his hand writing. The revisionist failed to preserve CCTV footage of his restaurant to show the entry and exit of the respondent. It is further submitted that when the revisionist came to know about missing of the cheques, he should have immediately intimated the police but the revisionist filed a complaint with the police after one year in order to take a shabby defence.
5. I have heard ld. counsels for the parties and perused the record very carefully.
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6. Ld. counsel for the revisionist has contended that the ld. trial court had committed patent illegality in dismissing the complaint on the basis of its own assumptions, which are visible from the order, and completely ignored the relevant facts which were before it. He has further contended that the ld. trial court could have only passed an order on the basis of the evidence and documents before it and not on its own beliefs. He has further contended that as per the case of the revisionist before the trial court, on discovering that the three cheques had been lost or stolen, he had immediately stopped the payment of the cheques. The revisionist had done so on 22.03.2013 whereas, as per the claim of the respondents, the revisionist had issued these cheques in April 2013. It could not have been presumed that the revisionist in advance had planned to give these cheques and before even giving these cheques, he had stopped the payment of these cheques. He has further contended that although it has been claimed by the respondents that they had separately given friendly loans to the revisionist who in respect of those loans, had given the cheques in question but when the status report was called by ld. MM, respondent Raman Bhatia had clearly stated to the police that it was only he who had given the loan to the revisionist after arranging the money from his near and dear ones and at the time of taking the loan, he had taken the cheques in question as security. Therefore, the revisionist could not have issued these cheques in April i.e. much after taking of the alleged loan as per the complaint u/s 138 NI Act.
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He has further contended that the circumstancial evidence pointed towards the commission of offence by the respondents in connivance with each other and therefore, ld. MM on his own assumptions could not have dismissed the complaint of the revisionist. He has further contended that the revisionist did not file the police complaint on discovering that the cheques were missing because as a prudent man, he thought that stopping the payment of the cheques would suffice and he was not aware of the criminal intent of the respondents.
7. Per contra, ld counsel for respondents has contended that there is no evidence that the respondent had any access to the office of the revisionist wherefrom they could have stolen these cheques. He has further contended that ld. MM had rightly observed that the testimony of the revisionist before the trial court was based on assumptions and could not have been believed. He has further contended that if these cheques were stolen, the revisionist could have written to the bank that the cheques were stolen but he had stated to the bank that the cheques were lost which shows that the revisionist was planning in advance to cheat the respondents. He has further contended that in police complaint which was given by the revisionist on 12.04.2014, he had mentioned one Jatin as one of the suspects but in the present complaint, he has completely omitted this Jatin, which shows that the revisionist has been improving upon his story. He has further contended that the present revision petition was only moved after the CR No. 530/17 (Parveen Singh) Page No. 7 of 16 ASJ03/NDD/PHC: 19.08.2020 revisionist had received the summons from the court which shows that it was done merely to defeat the case u/s 138 NI Act.
8. I have considered the rival submissions and gone through the trial court record.
9. The impugned order of Ld. MM dismissing the complaint is an order u/s 203 Cr.P.C. Section 203 Cr.P.C is as under:
203. Dismissal of complaint: If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
10. A bare reading of section 203 Cr.P.C would show that Ld. MM in order to pass an order of dismissal of the complaint has to consider the statements of the complainant witnesses on oath and the result of any inquiry or investigation which was conducted u/s 202 Cr.P.C. Therefore, this section provides the basis on which a Magistrate can dismiss the complaint and beyond that MM cannot use any other material to dismiss a complaint u/s 203 Cr.P.C. Law in this regard had been laid down by Hon'ble Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose @ Chabi Bose & Anr, AIR 1963 SC 1430 wherein hon'ble Supreme Court had held as under:
8. Coming to the second ground, we have no hesitation in holding that the test propounded by the learned single judge CR No. 530/17 (Parveen Singh) Page No. 8 of 16 ASJ03/NDD/PHC: 19.08.2020 of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for the conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under HYPERLINK "https://indiankanoon.org/doc/1149595/" s. 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor (2); Radha Kishun Sao v. S. K. Misra (3); Ramkisto Sahu v. The State of Bihar(4) ; Emperor v. J. A. Finan(5) and Baidya Nath Singh v. Muspratt(6). In all these cases, it has been held that the object of the provisions of s. 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that be may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether +,here is evidence in support of the allegations, of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned judges in some of these cases have been at pains to observe that an enquiry under s. 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in subs. (1) of s. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality, of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.
11. Hon'ble Supreme Court in Chandra Deo (supra) had further held as under: CR No. 530/17 (Parveen Singh) Page No. 9 of 16 ASJ03/NDD/PHC: 19.08.2020
10. The power to dismiss a complaint rests only with a Magistrate who has taken cognizance of it. If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for making the enquiry, he has the power to dismiss the complaint, if in his judgment, there is no sufficient ground for proceeding. One of the conditions, however, requisite for doing so is the consideration of the statements on oath if any made by the complainant and the witnesses and of the result of the investigation of the enquiry which he had ordered to be made under s. 202, HYPERLINK "https://indiankanoon.org/doc/445276/"Cr.P.C. In the case before us, an investigation by a police officer was not ordered by the learned SubDivisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. It was not open to him to consider in this connection the statements recorded during investigation by the police on the basis of the first information report lodged by Panchanan Roy or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by Mahendra Singh. All these were matters extraneous to the proceedings before him. of course, as we have already stated, the learned Magistrate has not given any reasons for dismissing the complaint and, therefore, we do not know what exactly weighed with him when he dismissed the complaint, but the learned single judge of the High Court who has dealt with the case elaborately has not kept the evidence adduced in the two complaints separate but appears to have been influenced in deciding one case on the basis of what was stated by the witnesses in the other case. The High Court has relied upon the evidence of Pannalal Saha and Sankar Ghose who ought never to have been examined by the enquiring Magistrate. The High Court has further relied upon the investigation made by the police in the complaint of Panchanan Roy. All this Will be clear from the following passage in its judgment :
"The version of these two witnesses (Pannalal Saha and Sankar Ghose) is supported by the fact that the police when CR No. 530/17 (Parveen Singh) Page No. 10 of 16 ASJ03/NDD/PHC: 19.08.2020 they went to the locality found a dead bird and a pair of shoes and a pair of black half pants in wet condition. This find of the dead bird and the pair of shoes etc. has not explained on the version given by Panchanan Roy, Upendra Mondal and Tarapado Naru. Mr. Ajit Kumar Dutt stated that the inquiring Magistrate was not right in examining Pannalal Saha and Shankar Ghose at the suggestion of an advocate for the accused Chabbi Bose and that the latter should not have been allowed at the inquiry. When however there had already been 'a full investigation into the case by the officers under the supervision of the' Superintendent of Police, it was desirable and proper for the inquiring magistrate to make a careful inquiry and not merely an one sided inquiry by examining such witnesses as might be produced by an interested party. Moreover, in this case, the learned magistrate was inquiring into both the complaints simultaneously and necessarily be could look at the evidence as a whole. In fact, two separate cases ought not to have been started at all, even though there were two separate complaints giving two different versions. These complaints were more or less Naraji petitions against the final report submitted by the police. There was only one incident in the course of which Nageswar Singh has lost his life. Therefore on the basis of the two Naraji petitions it would have been proper to hold one inquiry rather than two separate though simultaneous inquiries."
12. Further, Hon'ble Supreme Court in Niramljit Singh Hoon v. State of West Bengal and Anr, (1973) 3 SCC 753 had held as under:
22. Under sec. 190 of the Code of Criminal Procedure, a magisitrate can take cognizance of an offence, either on receiving a ,complaint or on a police report or on information' otherwise received. Where a complaint is presented before 'him, he can under sec. 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses. The object of such examination is to ascertain whether there is prima facie case 'against the person accused of CR No. 530/17 (Parveen Singh) Page No. 11 of 16 ASJ03/NDD/PHC: 19.08.2020 the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under sec. 202, a magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry lo be made by a magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under sec. 203, he may dismiss the complaint; if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under sec. 202, there is in his judgment "no sufficient ground for proceeding". The words 'sufficient ground used also in sec. 209 have been construed to mean ,the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. [see R. G. Ruia v. Bombay(1)]. In Vadilal Panchal v. Ghadigaonkar(2) this Court considered the scheme of sees. 200 to 203 and held that ,he inquiry envisaged there is for ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The section does not say that a regular trial of adjudging the truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Sec. 203 consists of two parts. The first part lays down the materials which the magistrate must consider, and the second part says that if after considering those materials there is inhis judgment no sufficient ground for proceeding, 'he may dismiss the complaint. In Chandra Deo Singh v. Piokash Chandra Bose,(1) where dismissal of a complaint by the Magistrate at the stage of sec. 202 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p.
653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a CR No. 530/17 (Parveen Singh) Page No. 12 of 16 ASJ03/NDD/PHC: 19.08.2020 defence, the matter had to be left to be decided by the appropriate form at the appropriate stage and issue of a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. In a revision against such a refusal, the High Court also has to apply the same test. The question, therefore, is whether while applying this test the Chief Presidency Magistrate was right in refusing process and the High Court in revision could confirm such a refusal.
13. Therefore, the legal position as settled by Hon'ble Supreme Court is that an MM can only base his decision upon the material before him either in the form of statements recorded on oath or evidence collected in inquiry u/s 202 Cr.P.C.
14 Ld. MM, while dismissing the complaint, had observed as under: This court has observed that the entire allegations against the accused persons are based on conjectures and surmises of the complainant. The complainant has not seen the accused persons commit the theft of the said cheques. He has presumed that the "theft" of the ground that accused persons initiated proceedings against him u/s 138 NI Act in different courts. The most important point to be noted here is that the complainant left signed blank cheques in his restaurant. Being a businessman, he must be aware of the perils of keeping signed blank cheques unattended. But he did so allegedly for the smooth running of business. This explanation seem very weak. Moreso when the complainant did not bother to report the loss to the police. In the facts and circumstances, this court is not inclined to act upon the bald testimony of the complainant. Moreso in view of the fact that the complainant is facing trial for dishonour of the said cheques in the different Courts of Law.
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15. A reading of the aforesaid order would show that Ld. MM had observed that the case of the revisionist was based on conjectures and surmises because he had not seen respondents/ accused persons committing the theft of the cheques and had merely presumed that they had stolen the cheques because they had initiated proceedings against him u/s 138 NI Act. The aforesaid observation does not stand the test of reason because for proceeding any case of theft, it is not necessary that there should be an eye witness to the theft. On the contrary, theft by definition is committed without the knowledge of the person whose property has been stolen. Had it been done in the presence of the revisionist, he would have certainly been in a position to stop them.
16. The next observation of ld. MM is completely presumptive where he has observed that being a businessman, the revisionist must have been aware of the perils of keeping the signed blank cheques unattended but he did so allegedly for the smooth running of business. Ld. MM had found this explanation to be very weak.
17. However, here again ld. MM instead of giving finding as to how he did not find the testimony of the revisionist believable, has gone on to raise an assumption which is not permissible at the stage of section 203 Cr.P.C. The observation of ld. MM seems to suggest that if a person is negligent or reckless with his property, he does so at his own peril and for CR No. 530/17 (Parveen Singh) Page No. 14 of 16 ASJ03/NDD/PHC: 19.08.2020 his recklessness and negligence, the said person, in the present case the revisionist, will be left remediless.
18. Another ground which seems to has weighed in the mind of Ld. MM is the pendency of cases u/s 138 NI Act which have been filed by the respondents against the revisionist. Whatever be the fate of those cases, that will depend upon the trial of those cases and ld. MM on that basis could not have completely ignored the circumstances which had been put up by the revisionist and to that extent, ld. MM has completely remained silent in his order as to why he was not believing the circumstancial evidence brought out by the revisionist.
19. Certain circumstances have been raised before me during the course of arguments by ld. counsel for the revisionist. However, at this stage, I refrain to express my views on the contentions of both the sides lest my view may effect the decision of this complaint case or the cases u/s 138 NI Act filed on behalf of the respondents.
20. However, the circumstances which were before the ld. MM were, that even before the alleged date on which these cheques were issued or handed over, the revisionist had stopped the payment of those cheques. Merely because the revisionist had not made any police complaint, there could not be any presumption raised against the revisionist that he did so because these cheques were not stolen. Hence, the circumstancial evidence which was before the Ld. MM should have been considered by him instead CR No. 530/17 (Parveen Singh) Page No. 15 of 16 ASJ03/NDD/PHC: 19.08.2020 of giving his decision u/s 203 Cr.P.C on assumptions.
21. I accordingly find that the impugned order of ld. trial court cannot be sustained. The impugned order of ld. MM is hereby set aside. Ld. MM is hereby directed to summon the accused / respondents u/s 380/411/120B IPC. Revision file be consigned to record room. Copy of this order alongwith TCR be sent back.
Announced in open court (Parveen Singh) today on 19.08.2020 ASJ03, New Delhi Distt., (This order contains 16 pages Patiala House Court, Delhi. and each page bears my signatures.) CR No. 530/17 (Parveen Singh) Page No. 16 of 16 ASJ03/NDD/PHC: 19.08.2020