Delhi District Court
Smt. Monika Sharma vs The State on 18 September, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE
HEAD QUARTERS, TIS HAZARI COURTS, DELHI.
Cr. REVISION No. 299/2020
Smt. MONIKA SHARMA
W/o SHRI VINEET SHARMA
R/o H. No. 194/A, GALI No. 7,
SANT NAGAR, BURARI, DELHI 110084
... REVISIONIST
VERSUS
1. THE STATE
GOVT. OF NCT OF DELHI
2. Smt. BABALJEET KAUR
W/o Shri HARDEEP SINGH
R/o H. No. 19, GALI No. 9
A-1 BLOCK, BENGALI COLONY
SANT NAGAR, BURARI
DELHI 110084
3. Shri HARDEEP SINGH
R/o H. No. 19, GALI No. 9
A-1 BLOCK, BENGALI COLONY
SANT NAGAR, BURARI
DELHI 110084
...RESPONDENTS
Date of filing : 19.12.2020
First date before this court : 21.12.2020
Date of arguments : 16.09.2021
Date of Decision : 18.09.2021
APPEARANCE : Ms. Raveen K. Kashyap, counsel for revisionist
Shri Gyan Prakash, substitute APP for State
JUDGMENT
1. By way of this revision petition brought under Section 397 CrPC, the revisionist has assailed order dated 19.10.2020 of the CR No. 299/2020 Monika Sharma vs State & Ors. Page 1 of 12 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.18 12:06:15 +05'30' learned magistrate whereby application under Section 156(3) CrPC of the revisionist was dismissed, granting her an opportunity to lead pre-summoning evidence in her complaint case. The proposed accused persons have been impleaded as private respondents in this revision petition. I heard learned counsel for revisionist as well as learned prosecutor on behalf of State and counsel for the private respondents.
2. Briefly stated, case set up by the revisionist in magisterial court is as follows. In the month of May 2019, the private respondent no. 2 approached the revisionist with the request for friendly loan of Rs. 30,00,000/-, assuring to pay back the loan within three months, for which the revisionist agreed after initial reluctance. In discharge of her liability to pay back the loan amount, the private respondent no. 2 issued two cheques but requested the revisionist not to present those cheques. In the month of September 2019, the private respondent no. 2 offered the revisionist to purchase her immovable property in Bengali Colony, Burari in lieu of repayment of the loan. The revisionist agreed to purchase the said immovable property for a total consideration of Rs. 35,00,000/-. When the revisionist demanded the chain of title deeds, the private respondent no. 2 stated that she had misplaced the same. On 05.09.2019, the private respondent no. 2 executed agreement to sell and attendant documents including the possession letter pertaining to the said immovable property in favour of the revisionist. The private respondent no. 2 also executed Will dated 05.09.2019 pertaining to the said immovable property in favour of the revisionist and got the CR No. 299/2020 Monika Sharma vs State & Ors. Page 2 of 12 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.09.18 12:05:48 +05'30' same registered on the same day. After adjusting the amount of Rs. 30,00,000/-, the balance amount of Rs. 5,00,000/- also was paid by the revisionist to the private respondent no. 2, and possession of the said property was handed over by the private respondent no. 2 to the revisionist. Thereafter, the private respondent no. 2 requested the revisionist to let out two shops in the said immovable property to her at a monthly rent of Rs. 8,000/- and accordingly, a rent agreement was executed between the parties. On 09.12.2019, when the revisionist went to the electricity office for getting the electricity connection transferred in her name, she found that the electricity connection in the said immovable property was in the name of private respondent no. 3, who is husband of respondent no. 2. Despite repeated requests, the private respondent no. 2 has not been executing transfer documents pertaining to the said immovable property. Thereby, the private respondents have committed fraud on her, according to the revisionist. Since the local police as well as concerned DCP did not take any action on complaint dated 20.12.2019 of the revisionist, she filed a complaint case and application under Section 156(3) CrPC before the learned Magistrate. After hearing the learned counsel for revisionist, the learned magistrate dismissed the application under Section 156(3) CrPC holding that prima facie the case set up by the revisionist is a civil dispute, so the revisionist must establish her allegations by leading pre summoning evidence. Hence, the present revision petition.
3. As reflected from record, ever since filing of this revision petition, counsel for revisionist appeared only twice. On CR No. 299/2020 Monika Sharma vs State & Ors. Page 3 of 12 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.09.18 12:04:53 +05'30' 22.02.2021, after addressing partly learned counsel for revisionist took adjournment on the ground of illness to address further arguments on the question as to whether the dispute set up by the revisionist before the magisterial court is a civil dispute or cheating. Thereafter, for few dates none appeared for revisionist and finally matter was listed on 16.09.2021 to conclude final arguments, on which date learned counsel for revisionist appeared but in the name of final arguments, quite surprisingly and in completely unethical manner, counsel for revisionist continued to repeat her submission that the revisionist has not been paying her professional remuneration and that it is the duty of this court to ensure that litigant is not able to avoid payment to the counsel. So much so that the learned counsel for revisionist also sent to this court by email dated 30.08.2021 a copy of the notice issued by her to the revisionist for payment of Rs. 70,0000/- towards her professional remuneration.
4. On the other hand, learned prosecutor as well as learned counsel for private respondents argued that the dispute set up by the revisionist in magisterial court is only a civil dispute which is being given colour of the offence of cheating. Learned prosecutor specifically pointed out that the admitted position to the effect that the private respondent no. 2 had executed sale documents, itself shows that there was no dishonest intention, so no offence is made out. It was further argued by learned prosecutor that since the entire evidence required to establish her case is in possession of the revisionist, it is not a fit case to direct investigation under Section 156(3) CrPC.
CR No. 299/2020 Monika Sharma vs State & Ors. Page 4 of 12 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.18 12:04:27 +05'30'
5. At the outset, it would be apposite to traverse through the legal position relevant for present purposes.
5.1 In the case of G. Sagar Suri & Anr. vs State of UP & Ors. (2000) 2 SCC 636, the Hon'ble Supreme Court of India held that it must be seen as to whether a matter which is essentially of a civil nature has been given a cloak of criminal offence, as criminal proceedings are not a shortcut of other remedies available in law, therefore the court has to exercise a great deal of caution.
5.2 In the case of Indian Oil Corporation vs M/s NEPC India Ltd., AIR 2006 SC 2780, the Hon'ble Supreme Court of India observed thus :
"10. ...it is necessary to take notice of a growing tendency in the business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil 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 breakdown 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 and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."
(emphasis supplied) 5.3 As held by the Hon'ble Delhi High Court in the case of Shri Shubhkaran Luharuka and Anr. vs State & Anr., 170 (2010) CR No. 299/2020 Monika Sharma vs State & Ors. Page 5 of 12 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.18 12:04:01 +05'30' DLT 516, in order to constitute an offence under Section 420 IPC, there has to be a clear case of the complainant that the accused person had tried to deceive him either by making false or misleading misrepresentation or by any other action and in the absence of such allegation, the impugned act of the accused would constitute only a civil wrong and not an offence.
5.4 In the case of Hira Lal Bhagwati vs CBI, New Delhi (2003) 5 SCC 257, the Hon'ble Supreme Court of India reiterated that it is a settled law by a catena of decisions that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation.
5.5 In the case of Smt. Ira Juneja vs State, 108 (2003) DLT 761, after elaborate discussion, the Hon'ble Delhi High Court held thus :
"7. A bare reading of these provisions makes it abundantly clear that the existence of guilty intention (mens rea) at the initial stage when the inducement is offered is the crux of the matter. If the inducement referred to in Section 415 and 420 is offered honestly without any intention to deceive the other party, the offence of cheating is not made out even though subsequently the person offering inducement may develop oblique motives. Reference in this connection may be had to Hridaya Ranjan Pd. Verma & others vs State of Bihar & Another, III (2000) SLT 526=II (2000) CCR 62 (SC)=2000 CRI. L.J.2983; The State of Kerala vs A. Pareed Pillai & another, AIR 1973 Supreme Court 326; 2000 CRLJ 974; Ajay Mitra vs State of M.P. & Ors., I (2003) SLT 672=I CR No. 299/2020 Monika Sharma vs State & Ors. Page 6 of 12 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.09.18 12:03:39 +05'30' (2003) CCR 306 (SC) = JT 2003 (1) SC 418. In all these cases FIR did not contain any allegation to the effect that the accused had any dishonest intention at the time of making inducement. In the case of Hridaya Ranjan Pd. Verma and Others (supra), Supreme Court observed that in determining the question as to whether the offence of cheating is made out the court has to keep in mind the fine distinction between mere breach of contract and the offence of cheating. 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 test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. Thus it is the guilty intention at the initial stage which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. To the same effect are the observations of the Supreme Court in the case of The State of Kerala (supra) and in other decisions cited above. In the present case there is no allegation in the FIR whatsoever to the effect that accused persons viz the petitioners had guilty intention from the very beginning. The main grievance of the complainant is that some goods manufactured by the partnership were exported but instead of putting sale proceeds in the partnership firm account, accused diverted the same to her personal account. The status report filed by the police also indicates that during the subsistence of the partnership agreement the accused opened a separate account in her own name as sole proprietor of M/s Samsaur Impex and diverted some of the sale proceeds to the said account.
Besides duty draw back received on the export of goods of the firm were also collected in the said proprietorship account. The Status Report further CR No. 299/2020 Monika Sharma vs State & Ors. Page 7 of 12 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.09.18 12:03:13 +05'30' shows that total amount credited in the proprietorship firm during the period August 1998- December 1998 was to the tune of Rs.46 lakhs whereas amount credited in the partnership account from September 1997 to September 1998 is about Rs.65 lakhs. On the basis of these averments or findings it cannot be said that the accused persons had guilty intention from the very beginning. It may be that subsequently some funds were diverted from the partnership account to sole proprietorship account. From this it cannot be said that accused had the intention to deceive the complainant even at the time when partnership was initially entered into. Therefore, in view of the observation of the apex court in various cases cited above, it must be held that in this case the complaint does not make out the ingredients of the offence of cheating as even the averments to that effect are missing from the complaint". (emphasis supplied) 5.6 In the case of Anil Mahajan vs Bhor Industries Ltd., (2005) 10 SCC 228, the Hon'ble Supreme Court of India held that it is the substance of the complaint which has to be seen and not mere use of expressions like "cheating" in the complaint. In that case, except mention of the words "deceive" and "cheat" in the complaint, there was no averment about the deceiving or cheating or fraudulent intention of the accused at the time of entering into MoU wherefrom it could be inferred that the accused had intention to deceive the complainant.
6. Falling back to the present case, as per legal position quoted above, merely because in the complaint case the revisionist used the words like "inducement", "misrepresentation", "wrongful loss" and "dishonest intention" etc, simply picking them up from the CR No. 299/2020 Monika Sharma vs State & Ors. Page 8 of 12 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.18 12:02:42 +05'30' relevant provisions of the Penal Code, it cannot be said that prima facie offence of cheating is made out. As mentioned above, it is not the expressions used in the complaint but the overall content of the complaint that has to be seen by the court.
7. I am in complete agreement with the learned prosecutor and learned counsel for private respondents that the dispute set up by the revisionist in magisterial court is only a civil dispute. It is the substance of the dispute which has to be considered. As mentioned above, in order to make out a prima facie case of cheating, the circumstances must establish a dishonest intention at the time of inception of transaction. In the present case, the admitted position being to the effect that the private respondent no. 2 had executed agreement to sell and attendant documents including a registered Will pertaining to the said property in favour of the revisionist and had even handed over possession of the said property to the revisionist, it cannot be said that the private respondent no. 2 had dishonest intention when she offered to sell her said immovable property in lieu of repayment of loan of Rs. 30,00,000/-.
8. However, I must add rider of caution that so far as the question whether grounds sufficient to proceed and summon the respondents to face trial for offence of cheating exist or not, the learned magistrate shall decide the same at appropriate stage without getting influenced by the above observations.
9. Further, while adjudicating upon an application under CR No. 299/2020 Monika Sharma vs State & Ors. Page 9 of 12 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.09.18 12:02:23 +05'30' Section 156(3) CrPC, the court has also to keep in mind certain clear parameters including the requirement of custodial investigation.
9.1 In the case of Devarapalli Lakshminarayana Reddy vs V Narayana Reddy, (1976) 3SCC 252, the Hon'ble Supreme Court held that if upon reading of the complaint, the Magistrate finds that the allegations levelled therein disclose a cognizable offence and that forwarding of the complaint to police for investigation under Section 156 (3) CrPC would be conducive to justice and would save the valuable time of the Magistrate from being wasted in enquiring into the matter, which was primarily the duty of the police, the Magistrate would be justified in adopting that course as an alternative to taking cognizance of the offence himself.
9.2 In cases titled Suresh Sahu vs State, 2014 (3) JCC 1836; Subhkaran Luharuka vs State, 2010 (3) JCC 1972; Brahm Prakash Gupta vs State, 2008 (106) DRJ 199; M/s Skipper Beverages Private Limited vs State, 2001 IV AD (Delhi) 625; and Himanshu Bhalla vs State, 2016 SCC Online Del. 5493, criteria were laid down on the basis whereof an order under Section 156(3) can be passed by Magistrate, keeping mainly in mind that these powers are to be exercised primarily in those cases where allegations are quite serious or the evidence is beyond reach of the complainant or custodial interrogation is necessary for recovery of some article or discovery of some fact.
10. The overall scheme of the Criminal Procedure Code and CR No. 299/2020 Monika Sharma vs State & Ors. Page 10 of 12 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.18 12:02:04 +05'30' prevailing circumstances require that the option to direct investigation under Section 156(3) CrPC should be exercised by the magistrate where some investigation is required and that investigation is of the nature which is not possible for a private individual to carry out. Circumstances which require investigation as contemplated by Section 156(3) of the Code can be numerous, for example : where complete identity of the proposed accused is not known; or where recovery of an abducted person or stolen property is required by way of raids and searches; or where some physical piece of evidence like blood soaked earth or some case property have to be collected and seized; or where the complainant is unable to name the witnesses required to be examined in support of his charge. Where such kind of investigation is not required to be conducted, denial to issue directions for registration of FIR by the magistrate is legally sustainable.
11. Falling back to the present case, admittedly identity of the respondents as proposed accused persons is fully within the knowledge of the revisionist. Also, admittedly, the entire evidence which the revisionist wants to be adduced before the trial court, being the documentary evidence related to the money and property dispute, is in her pocket. Also, admittedly, there is not even a whisper in the complaint of the revisionist disclosing any fact which is not in the knowledge of the revisionist but which is crucial in order to prove her allegation of cheating. So, on this anvil also the impugned order is perfectly sustainable.
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12. In view of above discussion, I am unable to find any infirmity in the legality, correctness or propriety of the impugned order dated 19.10.2020 of the learned magistrate, so the same is upheld. The revision petition is devoid of merits and is frivolous, so dismissed with cost of Rs.10,000/- to be paid by the revisionist to the respondent no.2 towards her litigation cost of these proceedings, estimated on conservative estimate.
13. A copy of this judgment be sent to learned trial court and revision file be consigned to records.
Announced through videoconference on this 18th day of September, 2021 GIRISH Digitally signed by GIRISH KATHPALIA KATHPALIA Date: 2021.09.18 12:01:24 +05'30' (GIRISH KATHPALIA) Principal District & Sessions Judge (HQs) Tis Hazari Courts, Delhi.
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