Delhi District Court
Naseem Ahmad vs The State on 2 November, 2020
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE5, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
REVISION PETITION NO. 204210 OF 2016
IN THE MATTER OF:
Naseem Ahmad
S/o Sh. Abdul Gaffar,
R/o H. No. 110, Mohalla Kot,
Basti Hazrat Nizamuddin, New Delhi
.......Revisionist
Versus
1. The State,
2. Faqruddin,
3. Mehruddin,
(Respondent no.2 & 3, both sons of Sh Yameen,
R/o Wooden Arts, D154/2,
Abul Fazal Enclave, PartII,
Saheen Bagh, Okhla, New Delhi)
........Respondents
Instituted on : 05.09.2013
Reserved on : 27.10.2020
Pronounced on : 02.11.2020
JUDGMENT
1. Vide instant petition, revisionist assails the order dated 26.07.2013 passed by Ld MM07, SouthEast in complaint Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 1 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:26:07 +0530 No.77/11/11 titled as "Naseem Ahmad Vs Faqruddin & Anr", whereby revisionist's complaint was dismissed by Ld Trial Court under section 203 Cr.P.C. It would be relevant to mention here that during the pendency of instant petition, revisionist expired and on an application, his wife was impleaded as his Legal Representative.
2. Brief facts may be taken note of : A complaint under section 200 Cr.P.C. was filed by the complainant/revisionist alleging offences u/s 420/406/506/34 IPC alongwith an application u/s 156(3) Cr.P.C. Vide order dated 05.09.2011, application u/s 156(3) Cr.P.C. stood dispose off as dismissed by the Ld Trial Court and matter was fixed for presummoning evidence.
3. As per averment made in the complaint, complainant/revisionist was a building contractor and he was having expertise in painting and decoration work. He had worked for accused persons at different sites at Roorki, Uttarakhand, Haridwar, Rajasthan, Delhi and did painting and decoration work. It is further averred that work was completed to the satisfaction of the respondents/accused and latter had also made some payment towards the work executed by the revisionist. As per complaint, work was duly reflected in various bills raised by him in this regard and a sum of Rs.58 lacs approximately is still due towards said work. It is further averred that desite demand, respondents Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:26:15 +0530 did not make payment on one pretext or other and on 08.07.2011, they had extended threat to kill the revisionist and his family members. On these grounds, complainant alleges commission of offences u/s 420/406/506/34 IPC.
4. Complainant examined three witnesses in support of his averments. PW1 is Anish Ahmad, one of the labourers who had worked for complainant at different sites of the accused. He deposed that revisionist used to take work on contract from respondent Faqruddin and he had worked for revisionist at different sites. He further deposed that an amount of Rs.58 lacs is still pending with respondent Faqruddin and due to said reason, he and other workers had not been paid by the complainant/revisionist. He further deposed that on 08.07.2011, he alongwith revisionist went to the office of Faqruddin where he started quarreling with them and threatened to kill them.
5. PW2 is Aslam who worked as Painter at different sites of the accused for complainant. He deposed that revisionist had requested the respondent for making of payment for work done by him and an amount of Rs.58 lacs is still pending against them.
6. PW3 is revisionist/complainant himself. He deposed on the lines of averments made in the complaint.
7. After conclusion of presummoning evidence, arguments on summoning were heard and vide detailed order Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:26:23 +0530 dated 26.07.2013, Ld Trial Court dismissed the instant complaint filed by the complainant/revisionist. The relevant observations of the Ld Trial Court is reproduced hereinbelow:
" ..................
8. It seems that only point of dispute between the parties is regarding the payment to be made to the complainant for the work done by him. It is also transpired from the perusal of the ATR and the order dated 05.08.2011 that the accused is ready to pay the amount and the complainant had no objection on the same. The only allegation of the complainant is that the accused persons had extended threats to him if he demanded any payment. ......................
.....................
12. In the case at hand, it appears that the present complaint is only an attempt of the complainant to turn a purely civil dispute into criminal offence and thereby exert pressure on the accused to make the remaining payment. Thus, it seems that the present complaint is nothing but an afterthought of complainant to take revenge on the accused persons. The courts cannot be used by anyone as a tool for seeking revenge or teaching lesson to any one.
13. In view of the above discussion, the court is of the view that the present complaint is without any merit and totally frivolous. Accordingly, the complaint is dismissed. File be consigned to record room."
8. The revisionist is aggrieved with the said order of the Ld. Trial Court and assailed the impugned order on the following grounds:
(i) Because order dated 26.07.2013 passed by Ld Trial Court dismissing the complaint of the revisionist is not sustainable either in law or on facts;
(ii) because Ld Trial Court has not appreciated this fact Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 4 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:26:31 +0530 while passing the impugned order that the respondent no.2 & 3 in furtherance of their common intention have cheated the revisionist and misappropriated his money illegally and unauthorizedly as such the respondent no.2 & 3 committed offence u/s 420/406/34 IPC;
(iii) because Ld Trial Court has not appreciated this fact while passing the impugned order that the respondent no.2 & 3 in futherance of their common intention have criminally intimidated the revisionist as such they committed offence punishable u/s 506/34 IPC;
(iv) because Ld Trial Court has not appreciated this fact while passing the impugned order that the revisionist has lodged a complaint with the police authority but no appropriate action was taken upon the same;
(v) because Ld. Trial Court has failed to appreciate the fact that present case is not a simple case of some transactions rather the respondent no.2 & 3 had dishonest intention from the very beginning and this is the reason that they did not make payment of the balance amount after completion of the work and induced the revisionist to complete the entrusted work by spending his own money on assurance that respondents shall pay the said amount to him later on and never fulfilled their promise;
(vi) Because respondents had deceitful intention and this is the reason they had missappropriated the money of the revisionist and thus they had committed offences u/s 406/420 IPC Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:26:39 +0530 but Ld Trial Court had ignored said facts and came to a wrong conclusion that present matter is of a civil nature and hence, impugned order is liable to be dismissed.
9. Ld. Legal Aid Counsel for wife of the deceased revisionist has argued on the similar lines as mentioned in the instant revision petition.
10. Ld counsel for respondents has vehemently argued that no case for summoning is made out as the matter is purely of civil nature. He further argued that a civil litigation is already pending between the parties and Ld Trial Court has rightly dismissed the complaint of the revisionist.
11. I have heard rival contentions of the parties and perused the record.
12. Before proceeding further, it would apt to recall the note of caution that was voiced by the Apex Court in M/s. Pespi Foods vs. Special Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128. The Apex Court held that summoning of an accused in a Criminal case is a serious matter. The relevant observations at para 26 of the judgment is reproduced hereunder: "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:26:48 +0530 summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
13. In my considered view, even if the whole case of complainant is taken as true on its face value, then also no offence is made in the present case. The present case is purely civil in nature and it seems that present complaint has been filed by complainant as a pressure tactics. There is nothing on record to suggest that accused was having any intention to cheat the complainant since beginning. Rather as per revisionist himself, certain payments were made to him by the respondent towards the work meaning thereby that there was no intention to cheat since beginning on the part of respondents. In Hridya Ranjan Prasad Verma Vs. State of Bihar (2000) 4 SCC 168, in para 15 it was observed as under : "15. In determining the question it has to be kept in kind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:26:55 +0530 test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed..................."
14. Further, in State of Kerala Vs. A Pardeed Pillai and Anr., AIR 1973 SC 326, Hon'ble Supreme Court had held that to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention can not be inferred from the mere fact that he could not subsequently fulfill the promise.
15. If the present case is tested upon the principles of law as laid down by Apex Court in aforesaid cases, then it is evident that no offence for cheating is made out in the present case and act of the accused can at the most be termed as breach of contract only. The revisionist has also alleged commission of offence under section 405 IPC, however, it is evident from record that no allegations regarding entrustment of any kind of property by the revisionists and its subsequent misapproriation by respondents have been made in the instant case. In my view, the revisionist is having a grievance of not receiving his pending dues from the respondents and appears to have filed the criminal complaint for recovery of same. Failed obligation and frustrated expectations cannot give rise to any criminal liability.
16. Even, Superior Courts have time and again deprecated the initiation of false criminal proceedings in cases having the Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:27:09 +0530 elements of civil dispute. The quick relief offered by a criminal prosecution as opposed to a civil dispute incentivizes the litigant to initiate false and vexatious proceedings. Moreover, in a country suffering the scrourge of world's largest backlog of cases, litigants often view criminal proceedings as a tool to pressurize and obtain a favourable settlement from other side. The Hon'ble Apex Court in G. Sagar Suri Vs State of UP, Crl Appeal No.91/2000, date of decision 28.01.2000 has categorically observed as under : "It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under section 482 Cr.P.C. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice".
17. Further, in case titled as M/s Indian Oil Corporation VS M/s NEPC India Ltd & Ors, in Appeal (Crl) No. 834/2002 date of judgment 20.07.2006, Hon'ble Apex court has observed as under: "While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:27:16 +0530 and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.
18. Revisionist has also alleged that respondents had extended threats to kill him and his family members. However, it is evident from record that the allegations have been made in a very bald manner and there is nothing to suggest that revisionist got alarmed with the alleged threats. Therefore, no offence under section 506 IPC is made out in the present case (Ref. Noble Mohan Dass Vs. State Madras High Court 1988).
19. It is settled law that summoning of accused is a serious matter and complainant should bring on some material before an accused can be summoned in the court. In the present complaint, there is nothing on record on the basis of which respondents could have been summoned by Ld Trial Court as the matter is purely civil in nature. In my considered view, Ld Trial Court was justified in dismissing the complaint of revisionist. Therefore, there is no illegality in the impugned order and the present petition is devoid of any merit hence stands dismissed.
20. TCR be sent back to the Ld. Trial court along with copy of this order. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2020.11.02 13:27:24 +0530 Announced in the open (ANUJ AGRAWAL) Court on 02.11.2020 Additional Sessions Judge05, South East, Saket Courts, New Delhi Crl Rev. No. 204210 of 2016 Naseem Ahmad Vs The State & Ors Page No, 10 of 10