Delhi District Court
Sandeep Khanna vs State on 16 April, 2015
IN THE COURT OF SH LOKESH KUMAR SHARMA ADDITIONAL SESSIONS
JUDGE04 & SPECIAL JUDGE SOUTH EAST
SAKET COURTS: NEW DELHI
Criminal Revision No. 111 of 2015
ID No. 02406R0101532015
Sandeep Khanna,
S/o Sh. P. N. Khanna,
R/o D45, Naraina Vihar,
New Delhi 28 ..... Petitioner
Versus
State
Govt. of NCT of Delhi
IFCI Factors Ltd.,
IFCI Towers, Nehru Place,
New Delhi .....Respondents
Instituted on : 27.03.2015
Argued on : 16.04.2015
Decided on : 16.04.2015
O R D E R
1 This is a revision petition preferred by the petitioner against the impugned order dated 18.3.2015 passed by the court of Ms. Veena Rani, Ld. CMM(SE) Saket Courts, New Delhi, in CC No. 37/01, whereby the Ld. CMM was pleased to issue directions under section 156(3) CrPC to the SHO EOW to register an FIR against the petitioner for the various offences as complained of in the complaint and to investigate the same.
2 Feeling aggrieved from the aforesaid order and the directions of Ld. CMM, the petitioner has filed the present revision petition wherein the impugned order has been challenged on the following amongst other grounds:
That the entire evidence pertaining to the alleged transactions was well within in the power and possession of the complainant and no police Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 1/11 investigation was required and thus any direction issued in this regard was bad in law as well as on facts of the present case.
3 It was further taken as plea by the petitioner that from the various status reports and the action taken reports filed before the court of Ld. CMM, it had become an established fact on record that no cognizable offence was found involved in the present transaction which was purely a commercial transaction between the parties which could have been redressed through civil courts of law as well and no criminal element was required to be introduced into the facts and circumstances of the present case.
4 Brief facts giving rise to the present revision petition are succinctly given as under:
As per the contents of the complaint being CC No. 37/01 titled " IFCI Factors Limited v. Prtan Nath Khanna & Ors" filed before the Ld. Trial Court, respondent no. 2 being a financial institution had granted various domestic sales bill factoring facilities to the firm of the petitioner from time to time and initially the credit facility was of Rs. 2 crores and lastly it was raised to 7.5 crores and since the firm of the petitioner had defaulted in repaying some of the amount and various forged and fabricated invoices and bills of exchange were used in the transactions by the petitioner whereby the respondent no. 2 was cheated.
It was further stated that on an internal inquiry conducted by the complainant, it was revealed that company M/s Max International had never been in existence and it was being run only on papers for the purpose of sham transaction and an amount around 7 crore was outstanding qua M/s Adigear Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 2/11 International. It was further stated that a police complaint dated 02.06.14 vide DD No. 9485 dt. 06.06.14 for registration of FIR was given to the police but no action was taken thereon, hence an application under section 156(3) CrPC seeking direction to the police (EOW) was filed before the court of Ld. CMM, upon which the impugned order dated 18.3.2015 has been passed by the Ld. CMM, which order has been challenged by the petitioner before this court in the exercise of its revisional powers and jurisdiction.
5 I have heard Sh. P S Singhal, Ld. Counsel for the petitioner as well as Sh. Suresh Sharma, Ld. Counsel for the respondent, who has stated that the impugned order as passed by the Ld. CMM is fully perfect and justified to unearth the criminal conspiracy hatched by the petitioner in cheating the respondent no. 2 on the basis of false and fabricated invoices and hence the petitioner/complainant was left with no other option but to take the recourse of police investigation, as only the police could have established the falsehood and forgery in respect of the invoices by taking up specialized investigation in this regard. 6 In support of his contentions, Ld. Counsel appearing for the respondent has also placed reliance on the ratio of judgment reported as "H S Bains v. State ( Union Territory of Chandigarh), (1980) 4 SCC 631, particularly para 6 to 8 of this judgment. He has also relied upon the ratio of judgement reported as "
Gangadhar Janardan Mhatre v. State of Maharashtra & Ors, 2004(8) JT (SC) 208. However, at the very out set, I have no hesitation in holding that the citations, as relied upon by Ld. Counsel for the respondent, are not applicable to the facts of the present case, being distinguishable on facts, as it deals with the powers of the Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 3/11 Magistrate under section 200 CrPC as compared to those under section 156(3) CrPC.
7 Moreover, the law in respect of section 156(3) has developed a lot subsequent to the passing of judgment in H.S. Bains Case (Supra) and in today's era after a comprehensive judgment in the case of "Subhkaran Luharika vs. State" had come in this regard, as well as the recent pronouncement dated 19/3/2015 of the Hon'ble Apex Court in "Mrs. Priyanka Srivastava & Anr. v. State of UP & Ors" Crl. Appeal No. 781/2012, as relied upon by Ld. Counsel for the petitioner. 8 A perusal of the record reveals that prior to approaching the court under section 156(3) CrPC, a complaint dated 2.6.2014 was also filed by respondent no. 2 herein which was addressed to Addl. Commissioner of Police which was received at his office on 6.6.2014 vide diary no. 9485. In the light of the single complaint being placed on record on behalf of respondent no. 2, it has been argued by Ld. Counsel appearing for the petitioner that that it cannot be considered as proper compliance of either section 154(1) CrPC or 154(3) CrPC because despite there being a designated officer of the rank of Inspector appointed as SHO for PS EOW, the complaint was never addressed to the SHO at the initial stage and was directly addressed to the Addl. Commissioner of Police. Hence, in the absence of a proper compliance of provisions of section 154 (1) having been made by the respondent no. 2 herein, it was not justified for the court of Ld. CMM to have issued such directions to the SHO EOW in exercise of her powers under section 156(3) CrPC, after treating it to be a due compliance of the mandatory provisions of section 154(3) of the Code alone but without resorting to the prior compliance of Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 4/11 provisions of section 154(1) Cr.PC which was mandatory in nature. 9 In his arguments Sh. Suresh Sharma, Ld. Counsel for the respondent no. 2 has stated that action of the complainant in this regard was completely justified and a layman is not supposed to know the law and procedure to set the criminal justice administration machinery into motion to bring forth his grievance. However, I do not find myself in agreement with these submissions of Ld. Counsel for the respondent no. 2, as the respondent no. 2 herein is not a lay man, rather it is a company constituted under the provisions of Companies Act, who was the complainant before the Ld. Trial Court. Further, it is a matter of fact of which this court can also take judicial notice that each and every company has different departments which are manned by well qualified and specialized officers and staff and even the companies including respondent no. 2 herein also maintain their respective legal departments as well having specialized services of legal professionals. Hence, addressing the present complaint by the complainant, which is a company, directly to the Additional Commissioner of Police, instead of addressing it to the SHO, has to be essentially considered as a procedural lapse on its part and hence, it cannot be said to be a valid compliance of section 154(1) of the Code of Criminal Procedure because though a mistake of fact is excusable under the law, a mistake of law is always non excusable.
10 Even if assuming though not admitting for the sake of this argument itself, it is presumed to be a valid compliance of section 154(1) of the Code, then also, I have no hesitation in holding that in the absence of a proper and due compliance of section 154(3) of the Code, no such directions could have been Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 5/11 issued by the Ld. CMM, as had been done in the impugned order because the action under section 154(3) Cr.P.C has to essentially follow the action under section 154(1) CrPC and hence neither it can precede the later nor it could be simultaneous in nature.
11 Sh. Suresh Sharma, Ld. Counsel for the respondent no. 2 has further stated that single complaint can be duly considered as proper compliance of both subsections (1) and (3) of section 154 of the Code and it was the only duty of the complainant to have brought his grievances to the notice of the law enforcing agency and the complainant was not concerned with the internal arrangement of the law enforcing agency to adjudicate upon its complaint. 12 However, I do not even find any merits in this submission as well, because it has been categorically provided in section 154(3) of CrPC that resort to said section can be taken only once the officerincharge of the police station has refused to register a case or had taken no action on the complaint though it discloses commission of cognizable offences.
13 If the impugned order is examined in the light of the aforesaid legal prepositions, then, I have no hesitation in holding that as per the admitted facts of the case, initially the respondent no. 2 had provided a domestic sales bill factoring facility to the petitioner to the extent of Rs.2 crore. However, later on, considering the paying capacity and the frequent payments made by the petitioner, aforesaid facility was further enhanced to Rs. 4 crores and thereafter to Rs. 4.8 crores and lastly to the extent of Rs. 7.5 crores. It was only after enhancement of limit till Rs. 7.5 crores that the disputes in question had allegedly arisen between the parties Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 6/11 and from the contents of the petition itself, it does not appear to me that petitioners had anywhere denied their liabilities to make payments in totality. 14 Although, Ld. CMM, in the impugned order had mentioned about the judgement of the Hon'ble Apex Court in case titled as Hridaya Ranjan Prasad Verma v. State of Bihar, reported in (2000) 4, SCC 168, wherein it was held that fraudulent or dishonest intention of deception has to be present in the transaction right from its beginning, to constitute an offence under section 420 IPC. However, while issuing the aforesaid directions, Ld. CMM herself had forgotten the ratio of law cited by her in the impugned order because, had it been the case of a dishonest or fraudulent intention of cheating the respondent no. 2 in the mind of the petitioner right from the beginning of the transaction, then there would have been no occasion or opportunity available with the respondent no. 2 to have enhanced their limit from Rs. 2 crores to Rs. 7.5 crores.
15 Further, Ld. CMM, in her impugned order had though mentioned in para 11 thereof that police had not made efforts to thoroughly investigate the case from a "larger angle" and no investigation was carried out on the aspect as to how the accused persons themselves were the guarantors of their own transactions by floating a company.
However, be that as it may, very criptive language has been used by the Ld. CMM in the aforesaid order where she had failed to explain as to what larger angle was required to be investigated by the police as per her perspective. Moreover, once the guarantor aspect was not even in question in the present case, then, what kind of offence, the aforesaid guarantors had commitedd by floating Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 7/11 another company because there is no legal bar in having same persons to be the promoters or to be on board of directors of more than one company. 16 Perusal of the impugned order further reveals that in para 12 thereof, at page 12, Ld. CMM was further pleased to observe that in the present case more than sufficient circumstances existed suggesting the hatching of a criminal conspiracy and forgery of several documents leading to commission of the offences under aforementioned sections. However, again, she had failed to give any account of existence of those so called "more than sufficient circumstances" which in her opinion had given any such suggestion related to forgery of documents or hatching of any criminal conspiracy by the petitioner herein. The impugned order has again remained silent on this aspect as well.
17 As is reflected from the perusal of the trial court record that complainant before the Ld. CMM, who is respondent no. 2 herein, had kept on suggesting the ways, manners and modes in which it wanted the case to be investigated by the police and it seems that even the Ld. CMM without applying her judicial mind had kept on issuing directions to the police to investigate the matter as per the whims and fancies of the complainant and the police had not only investigated those facts as per directions issued to it, but had also filed due compliance report in this regard as well.
18 Action taken report dated 16.10.2014 filed on record shows that when enquiry was conducted into the matter as per the directions of the Ld. CMM, the firm M/s Max International was found running at 11, Ground Floor, Ansal's Classique Tower, J Block, Community Centre, Rajouri Garden, New Delhi27 and Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 8/11 one Ms. Ritu Sahni, Officeincharge of the said firm had also confirmed about the genuineness and authenticity of the invoices in question received by the said firm M/s Max International. This enquiry and investigation conducted into the matter by the officials of EOW had clearly falsified the claim of the respondent no.2 herein related to the forged invoices and nonexistence of the said firm as was alleged by it in the complaint filed before the Ld. CMM(SE). Therefore, the conclusions drawn by the Ld. CMM were solely drawn on the basis of so called alleged internal enqiry conducted by the complainant at their own end, while totally brushing aside and ignoring the said action taken report filed before it by the investigating agency. 19 Not only this, but also, on 24.12.2014, again, an application was filed by the complainant before the Ld. CMM to issue directions to police to conduct enquiry in respect of the actual status and possession of the goods in question, which fact was again investigated by the EOW as per directions of Ld. CMM (SE) and reply dated 14.1.2015 was filed by it before the court of Ld. CMM, wherein the IO had confirmed existence of all the goods having worth of more than Rs. 8.5 crores lying in the godown at plot no. 189, Phase4, Manesar, Gurgaon, Haryana. However, all these reports, which had not suited to the whims of the complainant/respondent no.2 herein were clearly ignored and not considered or discussed at all by the Ld. CMM (SE) while passing the impugned order and without assigning any particular reasons, transactions which were purely civil in nature, were given the colour of criminal offences, completely ignoring the law laid down by Hon'ble Mr. Justice M C Garg, J in Subhkaran Luharuka's case, wherein it has been categorically held that once the complainant is found to be in power and Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 9/11 possession of entire evidence, then, there is no need to refer the case for a police investigation in a mechanical manner.
Not only this, but also it is also to be noted here that in the entire body of the impugned order, Ld. CMM (SE) had not even cited or whispered about a single reason for disagreeing with the report so filed before her by the officials of EOW and quite ironically though their findings submitted before the Court in the form of ATR were either rejected or not considered by the Ld. CMM(SE) in implied terms, but again by way of impugned order she had directed the same agency to register the FIR and investigate the same case again despite knowing fully well that even the subsequent result of the said investigation was also not going to be a different one from the earlier results.
20 In the light of the above mentioned admitted facts on record and the observation of our own Hon'ble High Court, I have no hesitation in holding that the entire case in hand purely rests upon the documentary evidence and there is nothing in particular which required any police investigation or counter verification.
21 In view of the aforesaid observations, I have no hesitation in holding that the Ld. CMM while passing the aforesaid impugned order had categorically ignored the factual position available on record in the form of police report and the Ld. CMM had acted in a hasty manner by culminating a purely commercial transaction into a criminal act after giving it a colour of criminal offence while passing the impugned order. Accordingly, the revision petition is allowed and the impugned order is set aside.
Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 10/11 22 However, it is hereby made clear that this setting aside of the
impugned order shall not in any manner be taken as an obstacle in exercise of the powers and jurisdiction of Ld. CMM under section 200 CrPC, if the same is invoked before it subject off course to all just legal and procedural exceptions. 23 TCR be sent back to the Ld. Trial Court alongwith copy of the order. 24 Revision petition be consigned to record room after completion of all other necessary formalities, in this regard.
announced in the
open court on (LOKESH KUMAR SHARMA)
16th April, 2015 Additional Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Sandeep Khanna Vs. State & Anr. CR No. 111 of 2015 11/11