Delhi District Court
Ramesh Kumar vs Mukta Nanda on 25 January, 2023
IN THE COURT OF SHRI SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 238/2022
CNR No. DLCT01-007221-2022
Ramesh Kumar
S/o Late Sh. Bhola Jha,
R/o H No. 3, Gali No. 3,
Sarai Peepal Thala,
Adarsh Nagar, Azadpur,
Delhi-110033. .....Revisionist
Versus
Mukta Nanda
W/o Late Sh. V.K. Nanda
R/o H No. B-19, Rana Pratap Bagh,
Delhi-110007
Ashok Nanda
S/o Late Sh. L.C. Nanda
R/o C-43, Pamposh Enclave,
Greater Kailash, Part-1,
New Delhi
Surender Nanda
S/o Late Sh. L.C. Nanda
R/o C-43, Pamposh Enclave,
Greater Kailash, Part-1,
New Delhi ....Respondents
Reserved on : 17.11.2022
Pronounced on : 25.01.2023
JUDGMENT
The revision has been filed by the revisionist-complainant under section 397 read with 399 of the Code of Criminal Procedure, 1973 (in short 'CrPC') against the impugned order dated 10.03.2022 passed by the learned Additional Chief CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 1 Metropolitian Magistrate-02, Central District, Tis Hazari Courts, Delhi, whereby the accused-respondents were not summoned and the complaint under Section 200 of the CrPC was dismissed.
2. I have heard Mr. Shubham Asri, learned counsel appearing for the revisionist-complainant. No notice of revision has been issued to the respondents.
Arguments
3. Mr. Shubham Asri, learned counsel appearing for the revisionist-complainant has submitted that learned Trial Court failed to appreciate that as many as three witness have been examined and out of three, the version of complainant of removing the articles and belongings of the complainant is corroborated from the testimony of CW-2 i.e. Anil Kumar Singh. The said chamber was purchased by CW-2 from respondent no. 1, Mukta Nanda, as a vacant possession and there was none of the fixtures fittings, computer, printer, library books, documents of the complainant i.e. matriculation certificate and intermediate certificate. The testimony of the said witness prove that the respondent No. 1 was the whole sole incharge of the said chamber after the demise of Sh. V. K. Nanda and She had removed the articles, fixtures and handed over the vacant possession to CW-2.
4. Mr. Asri has further submitted that CW-3 Jagat Pal has admitted the revisionist was working as clerk/steno in the office of Shri V. K. Nanda and that he has given typing work of his office several times and at that time the revisionist used to charge rupees 10 to 15 per page. The revisionist was the owner of the computer installed in chamber of late Shri. V. K. Nanda.
CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 2
5. Mr. Asri has further submitted that section 405 of the IPC speaks about dominion over property and dishonestly misappropriation of that property or disposal of that property. The learned Trial Court has wrongly appreciated the fact of entrustment whereas it is a case of implied entrustment/dominion over property by the respondent No 1. The make and model of the computer installed could only be ascertained on the basis of documents lying in the office of Late Shri V. K. Nanda. The ID Card connects the revisionist to late Shri V. K. Nanda and mere gap of two years doesn't disentitles him from claiming his articles. Moreover, the testimony of CW-3 Jagat Pal makes it clear that the revisionist was the only steno till the death of Shri V. K. Nanda. The revisionist approached several times and the notice dated 07.12.2015 was sent to the respondents but they did not bother to hear the grievances of the revisionist.
Facts
6. The revisionist had filed complaint under section 156(3) read with section 200 of the CrPC against the respondents herein before learned Trial Court.
7. Briefly stated, the case of the revisionist-complainant is that he was working as a clerk for 25 years with advocate Shri V. K. Nanda at Chamber No. 190, Civil Side, Tis Hazari Courts, Delhi. The last drawn salary of the revisionist was rupees 11000/- per month. During the course of his employment , the revisionist also started providing computerized typing assistance to his employer Shri V. K. Nanda and for the said purpose, he had installed his own computer and other equipments in the chamber of Shri V. K. Nanda. Shri V. K. Narida has expired on 19.04.2014 and at that CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 3 time, an outstanding amount of rupees 99,000/- towards salary and an amount of rupees 27000/- towards other expenses were liable to be paid by Shri V. K. Nanda to the revisionist. The educational certificates of the revisionist, his computer and other infrastructure were also lying in the chamber of the Shri V. K. Nanda at the time of his death. The revisionist approached the family members. The revisionist informed the respondents about the said dues to which the respondent no. 1 informed that as soon as she would dispose off the chamber, she would clear his dues. However, a close relative of the revisionist became ill, due to which he had to visit his native village. When the revisionist returned back in the month of July 2014, he was shocked to see that the respondents had disposed off the said chamber alongwith the articles of the revisionist lying therein, behind his back. The respondents failed to pay the outstanding amount and to return his articles despite several requests. A written notice to this effect was also issued by the revisionist on 07.12.2015, but the respondents failed to do the needful.
Pre-summoning Evidence
8. In pre-summoning evidence, the revisionist got examined three witnesses, namely, himself as CW1, Anil Kumar as CW2 and Jagat Singh as CW3.
9. The revisionist (CW1) has deposed on the lines of his complainant. CW-2 stated that he had taken the vacant possession of the chamber in question from Smt. Mukta Nanda. He further stated that there were no articles as alleged by the complainant in the chamber at the time of taking possession by him and that he had built the chamber afresh after demolishing CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 4 the previously existing structure. CW-3 deposed that he was working as clerk of advocate, Mr. R. D. Mahant in Chamber no. 186, Civil Side; that he knew the respondent for last 20 years and that he had given typing work of their office to the revisionist several times; that the revisionist was working as clerk/steno in the office of Shri. V. K. Nanda, Advocate, Chamber No. 190, Civil Side, Tis Hazari Courts; that the respondent was the owner of said computer which was installed in the said Chamber No.
190. Analysis and Conclusion
10. In respect of summoning of accused, Hon'ble Apex Court in case of S.W. Palanitkar and Ors. v. State of Bihar and Anr., (2002) 1 SCC 241 held/observed:
23. Many a times, complaints are filed under Section 200 CrPC by the parties with an oblique motive or for collateral purposes to harass, to wreck vengeance, to pressurize the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on the criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on the criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out.
Maybe parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Sections 200-203 CrPC keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in a routine manner."
[underlines are mine] CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 5
11. In case of Mehmood Ul Rehman v. Khazir Mohammad Tunda and others, Ciminal Appeal No. 1347/2010, the Hon'ble Apex Court held on 31.03.2015:
8. In Pepsi Foods Limited and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 this Court has held that exercise under Section 204 of CrPC of summoning an accused in a criminal case is a serious matter and that the process of criminal law cannot be set into motion in a mechanical manner. It was also held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law governing the issue. To quote:
"28. 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 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 would that 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. The Magistrate has to carefully scrutinise 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."
xxx xxx xxx xxx
17. In Jagdish Ram v. State of Rajasthan and another, (2004) 4 SCC 432 the law was restated holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction. To quote:
"10. ... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 6 whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
xxx xxx xxx xxx
20. In Bhushan Kumar and another v. State (NCT of Delhi) and another, (2012) 5 SCC 425 the requirement of application of mind in the process of taking cognizance was reiterated. It was further held that summons is issued to notify an individual of his legal obligation to appear before the Magistrate as a response to the alleged violation of law. It was further held that in the process thus issued, the Magistrate need not explicitly state the reasons -------.
21. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter.
22. Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) of CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of CrPC, he has only a complaint before him. The Code hence specifies that ... "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of CrPC. The complaint is simply to be rejected.
23. The steps taken by the Magistrate under Section 190(1) (a) of CrPC followed by Section 204 of CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 7 the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage.
The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
[underlines are mine]
12. Hence, summoning of an accused in a criminal case is a serious matter and therefore, criminal law cannot be set into motion as a matter of course. But, it is also correct to say that the words "sufficient ground" used under section 203 of the CrPC have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.
13. As per the allegations of the revisionist, he was working as a clerk to Late Shri V. K. Nanda, Advocate having the Chamber No. 190, Civil Side, Tis Hazari Courts, Delhi and he had installed his computer and other equipments in the said chamber to provide computerized assistance to his employer shri V. K. CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 8 Nanda, but after his death, said computer and other equipments were disposed off by the respondents and further his 10 th and 12th original marksheets were also lying in the said chamber which were also not returned to him and therefore they have committed offence of criminal breach of trust punishable under section 406 of the IPC.
14. Hon'ble Apex Court in case of Prof R K Vijayasarathy & Anr v. Sudha Seetharam & Anr, Criminal Appeal No. 238 of 2019, decided on 15.02.2019, observed:
"13 Section 405 of the Penal Code reads thus:
"Section 405.- Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion 5 over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:
i) A person should have been entrusted with property, or entrusted with dominion over property;
ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 9 use or dispose of that property or willfully suffer any other person to do so; and
iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code."
15. On perusal of the Trial Court records shows that revisionist (CW1) has stated in his pre-summoning evidence that he had installed his personal computer, printer and UPS at his own expenses, but he has not filed any cash memo/bill etc. to show/prove that he has purchased the said computer, printer and UPS. He has filed only copy of refilling bill (Ex. CW1/F). Further, the installation of computer etc. by revisionist, if any, in the chamber of Mr. V. K. Nanda, cannot be said to be entrustment or dominion over the property to the respondents. The revsionist has not stated as to which year, he had installed the said computers etc. in the said chamber of shri V. K. Nanda. There is no averments in the complainat or in deposition of revisionist that said alleged computers etc. was installed by him at the request of his employer Shri V. K. Nanda or his own his own. Further to prove his employment with Shri V. K. Nanda, Advocate, he has filed copy of identity card issued by the Delhi CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 10 Bar Association which is Ex. CW1/D. Said idnetity card was issued 14.11.2011 and was valid upto two years and therefore, same was expired in the month of November, 2013 but Shri V. K. Nanda has expired on 19.04.2014. There is no identity card showing his employment with Shri V. K. Nanda after the month of November, 2013.
16. The revisionist (CW1) has deposed that the entire chamber was sold by the respondents to Mr. Anil Singh and Ms. Seema Singh, Advocates alongwith articles and goods lying in the chamber; that his 10th and 12th class original marksheets were also being taken into possession by the said advocates. But said Mr. Anil Singh has been examined as CW2 who has stated that after the death of Shri V. K. Nanda, he had taken the vacant possession of the chamber from his wife Smt. Mukta Nanda (respondent no. 1 herein). He has further deposed that the chamber was vacant and the said articles i.e. fittings and fixtures, computer, printer, furniture, library/books, documents of the complainant i.e. marticulation certificate and intermmediate certificate were not there. Hence, as per the revisionist his articles i.e. computer etc. were taken into possession by the Mr. Anil Singh, Advocate but Mr. Anil Singh has denied in pre- summoning evidence.
17. Jagat Pal (CW3) has deposed that he was the clerk of Mr. R. D. Mahant, Advocate, Chamber No. 186, Civil Sides, Tis Hazari Court and he had given typing work of his office to the revisionist several times and further the revisionist was the owner of the computer which was installed in the Chamber No. 190, Civil Side, Tis Hazari. The complainant has not examined said CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 11 Mr. R. D. Mahant, Advocate to show that CW3 was his clerk and he had asked CW3 for typing work of his office to be done by the revisionist.
18. Further, the Learned Trial Court has rightly observed in impugned order that the revisionist herein has failed to even specify the make or model of the computer which was allegedly installed by him at the Chamber of Late Shri V. K. Nanda and apart from his bald claim, there is no material on record to show that said alleged articles were indeed lying in the chamber at the time of death of Shri V. K. Nanda.
19. In view of above discussion, I am of the view that the learned Trial Court has not committed any illegality etc. in dismissing the complaint and therefore, the revision is dismissed.
Dated: 25.01.2023 SANJEEV Digitally signed by
SANJEEV KUMAR
KUMAR Date: 2023.01.25
15:24:23 +0530
(Sanjeev Kumar-II)
Special Judge, (NDPS)-02,
Central District, Tis Hazari Courts, Delhi
CR No. 238/2022 Ramesh Kumar Jha v. Mukta Nanda & Ors. 12