Delhi District Court
Sh. V.K. Jha vs State (Nct Of Delhi) on 1 September, 2022
IN THE COURT OF SH. RAKESH KUMAR-IV: ADDL.
SESSIONS JUDGE -02-CUM-SPECIAL JUDGE-NDPS
ACT, NORTH WEST DISTRICT, ROHINI COURTS,
DELHI
Criminal Revision No. 38/22
SH. V.K. JHA
S/o Sh. Ram Balak Jha,
R/o House No. 272, Naharpur,
Sector-7, Rohini,
Delhi-110085. .... Petitioner/Revisionist
Vs.
STATE (NCT OF DELHI)
Through SHO, P.S. North Rohini,
Delhi. .... Respondent
Date of Institution : 19.02.2022
Date when judgment was reserved : 22.08.2022
Date when judgment is pronounced : 01.09.2022
JUDGMENT
1. This revision petition under Section 397399 of Cr.P.C. has been preferred by revisionist against the order dated 04.02.2022 passed by the Court of Ms. Mansi Malik, Ld. M.M, North-West, Rohini Courts, Delhi (herein after called the impugned order) in a Complaint case bearing No. 10006/2021 titled as "V.K. Jha Vs. The State NCT of Delhi" whereby the application dated 22.09.2021 under Section 156 (3) Cr.P.C filed by the revisionist/complainant was dismissed.
2. The brief background leading to the present revision is that C.R No. 38/22 Sh. V.K. Jha Vs. State Page 1 of 12 on 30.07.2021 while online searching a mobile phone on Paytm Mall online shopping portal due to corona pandemic period, the revisionist received a call from Paytm mall number and offered him a heavy discount on online mobile shopping and assured him a excellent grade mobile with new brand and only after his assurance, the revisionist booked an online new Samsung mobile model A50s, 128 GB from Paytm Mall online portal vide order N. 1491353477 dated 30.07.2021 for an amount of Rs.24,999/- and got allurement of heavy discount of 64% for instant online payment, as requested by Paytm mall executive to pay immediately, only just Rs.8,999/- to Paytm mall with allurement to free shipping of this new Samsung mobile phone at the address of the revisionist and it was delivered within 02 days of booking on Sunday I..e 01.08.2021 through its courier partner authorized by Paytm mall company at the address of the revisionist, however the said mobile was sold by Carbon Entertainment Pvt. Ltd. as printed on the receipt of the phone dated 30.07.2021 and above said company provided him six months seller warranty.
3. It is further contended that on the same date i.e. 01.08.2021 after delivery of the said mobile phone, after opening it, the revisionist found that the said mobile phone was automatically shut down/auto off/auto on and hanging problem and it was neither properly started nor functioning properly. Then he immediately contacted the customer care number of Paytm Mall and requested online to return the same on 01.08.2021.
4. It is further contended that on the next date morning i.e. 02.08.2021, one of the courier boy of blue dart company came C.R No. 38/22 Sh. V.K. Jha Vs. State Page 2 of 12 and inspected the phone and refused to return/replace the said mobile phone and asked the revisionist to contact the supplier company i.e. Carbon Entertainment Pvt. Ltd. Or Phone Pro Company run by the name of M/s. Manak Waste Management Company. Since the number of Carbon company was not available with the revisionist, he contacted the Phone Pro Company over its phone number, Whatsapp number and also through e-mail to replace the fake/defective mobile phone who assured him to return the said mobile phone within 2-3 days but the aforesaid companies refused to return back and blamed each other company to replace the said phone.
5. It is further contended that on the next date i.e. 02.08.2021, the revisionist went to Samsung mobile Service Centre at Sector- 7, Rohini, Delhi for checking the defect in the said mobile phone and they told him that this mobile was purchased in the year 2019 I..e 25.102.2019 by some one else and it is used mobile and its mother board is defective and this mobile is out of warranty, so the Service Centre of Samsung mobile demanded Rs.9000/- from him for replacing the mother board of the said defective mobile phone. The revisionist did not pay Rs.9000/- and just paid Rs.177/- as checking charges to them and waited for replacing his used mobile phone.
6. It is further contended that at the time of online booking, the revisionist was assured by Paytm mall company executive that the fake/defective/used Samsung mobile will be returned/replaced within 07 days as per their return police and his money will be credited in his paytm account but despite several C.R No. 38/22 Sh. V.K. Jha Vs. State Page 3 of 12 calls and e-mails sent by revisionist to these companies, the company officials have neither replaced his fake/defective mobile phone nor Rs.8999/- was returned to him on his paytm account. Thus, the Paytm Mall and its allied companies have provided the fake/defective/refurbished used A-50s Samsung mobile phone to the revisionist fraudulently and duped him of his hard earned money of Rs.8,999/- and also cheated a number of people by doing the same practice during the Corona pandemic.
7. It is further contended that the revisionist lodged a police complaint vide complaint No. 89590112100653 dated 10.08.2021 at P.S North Rohini which was marked to SI Vikas Kumar for enquiry but till date, neither any FIR has been lodged nor any action has been taken on his complaint by SI Vikas Kumar and when the revisionist filed RTI qua status of his complaint, it was replied that the complaint is pending enquiry with SI Vikas Kumar P.S North Rohini.
8. It is further contended that on the revisionist also sent complaint via e-mail to the Commissioner of Police on dated 10.08.2021, hence, duly complied the provision of section 154 (3) Cr.P.C.
9. It is further contended that prima facie, the complaint of revisionist is alleged to be cognizable offence and the accused persons and their address are not known to the revisionist which require registration of FIR and investigation of the case as per Cr.P.C and as per directions issued by Hon'ble Supreme Court in "Lalita Kumar v. Govt. of U.P." IX (2013) SLT 1 where C.R No. 38/22 Sh. V.K. Jha Vs. State Page 4 of 12 registration of FIR is held mandatory for cognizable offences and enquiry cannot exceed more than 15 days. However, in the present case, the enquiry is pending for more than 50 days which is not permissible in law.
10. The revisionist has preferred the present revision petition on the following grounds :
(i) Because the Ld. MM has wrongly held that there is no offence made out, only there is civil nature of dispute for deficiency of service.
(ii) Because the Ld. MM has wrongly held that there is no cognizable offence is made out. It is submitted that Section 420 IPC and Section 67 of IT Act, 2000 is cognizable offence and hence, as per Lalita Kumar's judgment, FIR must be registered if any cognizable offence is made out. Hence, the impugned order dated 04.02.2022 is liable to be set aside.
(iii) Because the Ld. MM has overlooked the law of equity and violated the principle of natural justice. Reliance is placed on the judgment of Hon'ble Supreme Court in "S.W. Panitkar & Ors. Vs. State of Bihar & Ors." AIR 2001 SC 2960.
(iv) Because the Ld. MM has overlooked the fact that prima facie documents related to the revisionist are determinable to the liability of the offence committed by accused persons and liable for prosecution who have cheated the revisionist. It is not only the case of deficiency of service only but duping the revisionist by sending wrong product and refused to replace the same.
(v) Because the Ld. MM did not examine the revisionist under Section 200 Cr.P.C and dismissed the complaint/application without appreciating the evidence which is prima facie gross C.R No. 38/22 Sh. V.K. Jha Vs. State Page 5 of 12 violation of basis provision of Cr.P.C. although the revisionist has not filed complaint under Section 200 Cr.P.C which is supposed to be converted the application under Section 156 (3) Cr.P.C to 200 Cr.P.C in view of the judgment of Suresh Chan Jain v. State of M.P AP 2001 (1) SCC 129. Thus, the impugned order is liable to be set aside.
(vi) Because the Ld. MM cannot dismiss the complaint without examination of complainant under Section 200 Cr.P.C as held by Hon'ble Supreme Court in number of cases.
(vii) Because the Ld. MM failed to appreciate that the documents filed by the revisionist should have been considered at the time of examining the revisionist under Section 200 Cr.P.C and it should not be dismissed in limine.
(viii) Because the Ld. MM has overlooked the law of equity and violated the principle of natural justice.
It was, therefore, prayed to call the Trial Court record, set aside the impugned oder passed by Ld. M.M. and issue appropriate directions to SHO P.S North Rohini to register FIR against the accused persons.
11. I have heard Ld. Counsel for the parties and have carefully perused the entire record.
12. While dismissing the application under Section 156 (3) of Cr.P.C vide impugned order, Ld. Trial MM observed that :
"it becomes imperative to keep in consideration the circumstances, when an application or prayer u/s 156 (3) Cr.P.C should be entertained by the Court. It is settled proposition of law that the power of Magistrate to give directions under Section 156 (3) Cr.P.C is discretionary and the same has to be C.R No. 38/22 Sh. V.K. Jha Vs. State Page 6 of 12 exercised only when there is requirement of investigation/custodial interrogation by the police. If the evidence is within the reach of the complainant, usually the directions u/s 156 (3) Cr.P.C are not given. The word used in the Section 156(3) Cr.P.C is "may" whereas the word used in Section 154 Cr.P.C. is "shall". The wording of this section clearly implies that the police is bound to register an FIR when an information regarding the cognizable offence is given to the police, whereas the Magistrate is not bound to give directions u/s 156 (3) Cr.P.C, even though the complaint discloses the commission of a cognizable offence as the Magistrate has to see whether the investigation by the police is required or not".
In M/s. Skipper beverages P. Ltd Vs. State 2002 Crl. L.J. NOC 333 (Delhi), the circumstances when the powers of Magistrate u/s 156 (3) Cr. P.C should be exercised, has been explained.
"7. it is true that Section 156 (3) of the Code empowers a Magistrate to direct police to register case and initiate investigations but this power has to be exercised judiciously 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 order 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 nature of allegation is such that the complainant himself may not be in a position to collect and produce evidence before Court, and interest of justice demand that police should step into help 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 complainant under Chapter XV of the Code as held by Apex Court in 2001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors".
13. Before proceeding further, it is important to note here that there are certain acts which are civil wrong as well as criminal C.R No. 38/22 Sh. V.K. Jha Vs. State Page 7 of 12 wrong, but to prove the same, means during the civil proceedings and criminal proceedings/trial, the parameters are altogether different i.e. in the civil proceedings, the facts can be said to be proved, if it is established its probability of existence, whereas in a criminal trial, facts has to prove beyond its reasonable doubts.
If the facts/alleged acts have both in nature (civil wrong/criminal wrong), then whether it can be said that the act is purely civil in nature. Similarly, a person can be prosecuted for the acts under Section 340 Cr.P.C., if it is expedient in the interest of justice and moreover, such proceedings under Section 340 Cr.P.C has to be decided at the end of civil proceedings.
On the other hand, an FIR can be registered under Section 154 Cr.P.C upon giving information to the SHO concerned. If the information discloses qua the commission of cognizable offence. Further, it is settled law that finding of Civil Court are not binding upon criminal Court and vice versa. Similarly, there is no embargo to register an FIR if the alleged act subject to civil proceedings if it is also falling within the nature of criminal wrong.
14. Here it is pertinent to note here that primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precisions in the FIR. The FIR itself is not the proof of a case, but it is a piece of evidence which could be used for corroborating the case of prosecution. FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relied. It only has to C.R No. 38/22 Sh. V.K. Jha Vs. State Page 8 of 12 state the basic case; Jitender Kumar v. State of Haryana, AIR 2012 SC 2488.
15. Further, the Hon'ble Supreme Court as well as Legislature has already been held and enacted that how the power of arrest can be exercised and manner of investigation, if the punishment of the alleged offence/act is up to the seven years or above as clear from the judgment of Hon'ble Supreme Court in the matter of "Arnesh Kumar v. State of Bihar & Anr., Crl. Appeal No. 1277/14 decided on 02.07.2014 and in the recent case of Hon'ble Supreme Court passed on 11.07.2022 in a case bearing SLP (Crl.) No. 5191/2021 titled as "Satender Kumar Antil v. CBI & Anr." wherein it has been held :
"We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under :
(A) Categories/Types of Offences punishable with imprisonment of 7 years or less not falling in category B & D. (B) Offences punishable with death, imprisonment for life or imprisonment for more than 7 years.
(C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S. 45), UAPA (S. 43D (5), Companies Act 212 (6), etc. (D) Economic offences not covered by Special Acts.
Requisite Conditions :-
.Not arrested during investigation;
.Cooperated through out in the investigation including appearing before Investigating Officer wherever called.C.R No. 38/22 Sh. V.K. Jha Vs. State Page 9 of 12
(no need to forward such an accused alongwith the chargesheet (Siddharth v. State of UP, 2021 SCC online SC 615).
and under Section 41A Cr.P.C. Similarly, the standing guidelines also passed by the Commissioner of police/DCP qua the registration of FIR in case of offence which are both in nature civil as well as criminal like cheating and nuisance etc.
16. Since there are two kinds of evidence in nature i.e. ocular (statement) and documentary evidence (digitally record/electronic record as well as the hand written documents and hard copy), in the catena of judgments, it has been held that where the evidence are ocular in nature and within the knowledge of complainant, then it would not be appropriate to give directions to the SHO mechanically to register the FIR under Section 156 (3) Cr.P.C and to get conduct the investigation from the police, but where the evidence are documentary as well as not entirely in the possession of the complainant, which may only collected through the agency like police then the directions can be given to the SHO/Police to register the FIR and investigate the matter by the police for the collection of evidence and investigate the matter. Therefore, it is necessary for the Court while exercising the discretion under Section 156 (3) Cr.P.C, that it should be exercised judicially with judicial application of mind.
17. All such type of determination, findings and observations which have been made by Hon'ble Apex Court to check and C.R No. 38/22 Sh. V.K. Jha Vs. State Page 10 of 12 balance all the power and discretion of registration of FIR and one can be protected from being harassed, but surely it was because the Hon'ble Apex Court/Higher Authority observed these things i.e. the FIR are being registered on the basis of whims and fences and mostly on the basis of opinion without considering the actual information, contents, facts which discloses the commission of cognizable offence, which are further may be related to the ocular statement as well as based on documentary evidence. Now it is clear that a accused can not be arrested for the offence alleged if the punishment is provided up to 7 years or above as per the judgment of Hon'ble Supreme Court in the case titled "Arnesh Kumar v. State of Bihar" as well as Section 41 A Cr.P.C and how an accused can be called for joining the investigation as clear by the judgment of Hon'ble High Court of Delhi passed in the matter of Amandeep Singh Johar v. State of NCT. Further, the police can file charge sheet/final report even without arrest as per the judgment passed by Hon'ble High Court of Delhi in the case titled as "Tejender Khanna v. Govt. of NCT".
18. In view of above discussion, I am of the considered view the Ld. MM has dismissed the application under Section 156 (3) Cr.P.C while observing that no criminal offence let alone a cognizable offence appears to be made out prima facie, as matter seems to be civil in nature on the basis of report of SHO dated 13.01.2022 that the enquiry into the matter was conducted that the matter was found deficiency in service and civil in nature, C.R No. 38/22 Sh. V.K. Jha Vs. State Page 11 of 12 being the mobile phone purchased by complainant from the alleged accused persons/through PayTM Mall but without explaining how the dispute can be said to be purely civil in nature keeping in view the averment made in the application. Moreover, how a person/complainant can gather or collect the evidence as it is come up on record that the supplier or dealer address i.e. Carbon Entertainment (Plot No. 94), Basement, Sector 44, Gurgaon, Haryana-122003 did not find there (Gurgaon). Further, until and unless the customer open the sealed box of goods allegedly sent through courier from the manufacturer through online purchases as well as all the invoices along with annexures A1 to A4 are the subject matter of investigation which can be done through police.
19. In view of the above discussion and in the interest of justice, I am of the considered opinion that the impugned order dated 04.02.2022 is liable to be set aside and is accordingly set aside. The SHO concerned is directed to register an FIR on the basis of allegations made by the complainant in the complaint dated 10.08.2021.
20. With these observations, the present revision petition is allowed and disposed of accordingly.
TCR be sent back with the copy of this judgment. File be consigned to record room.
(Rakesh KumarIV) Announced in Open Court ASJ02cumSpecial Judge, on 01st Day of September, 2022 (NDPS), NorthWest District, Rohini, Delhi.
C.R No. 38/22 Sh. V.K. Jha Vs. State Page 12 of 12