Delhi District Court
Mrs. Satesh Bhati vs State ( Nct Of Delhi ) on 25 July, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS)
ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CR No. 313 of 2018
Mrs. Satesh Bhati
R/o C17, South Extension Part1
Second Floor, South East
New Delhi110048 ..........Revisionist
Vs.
1 State ( NCT of Delhi )
2 Vipin Verma
S/o Sh. Jai Prakash Verma
Add.: Extron Electronics, 4 C & D
4th Floor, Uppal's Jasola
New Delhi ..........Respondents
Instituted on : 01 05. 2018 Argued on : 19.07.2018 Decided on : 25.07.2018 O R D E R 1 The revisionist has impugned the order dated 31.03.2018 passed by the Ld. Trial Court vide which application u/s 156(3) Cr.PC of the respondent no. 2 was allowed and SHO, PS, K. M. Pur has been directed to register FIR.
Satesh Bhati v. State & Anr. - CR No. 313 of 2018 1/11 2 The revision has been filed on the grounds that order has been passed in a mechanical manner as no cognizable case is made out against her. The allegations on its face value do not make out any case against her. The transaction is civil in nature for which criminal prosecution does not lie. The Ld. Trial Court has totally ignored the status report filed by the police. There is no element of deceit of fraud as respondent no. 2 has himself played fraud upon the Court by concealing the agreement dated 31.08.2016. The blank agreement taken from alleged email is not a valid document as same is not signed by her. The order in question should be set aside. Hence, this revision. 3 Notice of the petition is given to the respondents. 4 The facts of the case are like this: 5 The respondent no. 2 has filed a complaint u/s 119/120B/168/403/406/409/415/418/420 IPC r/w Section 13 of Prevention of Corruption Act with the allegations that revisionist is Inspector in Delhi Police and presently posted in Delhi Traffic Police. He came to know from commercial web site www.99acres.com where her property bearing Flat No. 1, Ground Floor, constructed on Plot No. 3, Block3, Erose Garden, village Charmwood, situated at village Lakkarpur, Suraj Kund Road, Tehsil and District Faridabad was listed for sale. The mobile No. +918750871486 was Satesh Bhati v. State & Anr. - CR No. 313 of 2018 2/11 given to discuss about purchase of the property. On 16.8.2016 he alongwth his wife met the revisionist at Police Beat, Traffic Signal, Hamdard, New Delhi. It was agreed that sale consideration of the said property would be Rs. 1,45,00,000/. On 20.8.2016 he visited the house of the revisionist at C17, Amrit Nagar, Kotla Mubarakpur, New Delhi. He carried with him the agreement wherein sale amount was shown as Rs.1,45,00,000/. The advance amount of Rs. 5 lac including Rs. 1 lac in cash and cheque No. 049752 of Rs. 4 lac was paid to her. The revisionist did not sign the agreement to sell and instructed him to leave it with her. The revisionist called a meeting with him and forced him to increase the advance amount from 10% to 20% of the total sale consideration. He was forced to pay a sum of Rs. 29 lac in advance. The revisionist has again increased the advance amount to Rs. 50 lac. The revisionist told him that she has loan of Rs. 50 lac from SBI. She will pay the same to SBI and papers will be released otherwise she will not be able to finalize this deal. He was shocked but he has no option but to agree as he has already paid Rs. 5 lac in advance. He requested her to sign agreement to sell who refused to do the same. He has agreed to pay Rs. 50 lac as an advance payment and requested her to sign the papers. He has received a new draft sale agreement through email from dksharma 306 @gmail.com, unknown Satesh Bhati v. State & Anr. - CR No. 313 of 2018 3/11 accused on 1.9.2018. The revisionist called him and told to insert the payment in the draft sales agreement sent through email. He has filled the payment details and replied back on the same email. The revisionist was having hard copy of the agreement to sell wherein he noticed that details of post dated cheque reflected in the draft sale agreement are contrary and changed by the revisionist from 22.9.2016 instead of 1.9.2016(two cheques bearing No. 049754 of Rs. 15 las drawn OBC and cheque No. 000047 of Rs. 20 lac drawn on HDFC Bank.) He confronted the revisionist who told that he has no option but to accept the condition. The revisionist made correction by pen in the sale agreement at his request and changed the date from 1.9.2016 to 22.9.2016 which was counter signed by him.
6 The revisionist again came up with a new demand for the payment and asked for the payment of Rs. 95 lac out of which Rs. 50 lac will be in cash. A loan of Rs. 87 lac has been sanctioned on 31.8.2016. The condition imposed by revisionist is against the basic condition of the sale of property. There is breach of trust as there was never such a condition. It shows that revisionist has intention to cheat him. The property in question was mortgaged which could not have been sold without permission of the bank. The factum of mortgage was concealed from him. He requested the Satesh Bhati v. State & Anr. - CR No. 313 of 2018 4/11 revisionist to return the advance amount who started threatening him with dire consequences and implication in the false and fabricated cases. The conversation was recorded in CD by him. He has full apprehension that he may be implicated in a false case. He has given complaint to ACP, Traffic, HQ, upon which a legal notice dated 20.12.2016 was given by the revisionist to him in order to save herself. The revisionist is a public servant who is legally bound not to engage in any trade. The revisionist has dishonestly misappropriated and converted to her own use the advance loan paid by him. Hence, this complaint.
7 An application u/s 156(3) CrPC was also filed by R2. 8 Ld. Trial Court has called the status report from the Police, PS, KM, Pur. The status report dated 27.2.2018 was filed which shows that matter is civil in nature which relates to property transaction. 9 On 31.3.2018 Ld. Trial Court has directed the SHO, PS, KMPur to register FIR as cognizable offence is made out against the revisionist. 10 Ld. Counsel for the revisionist submitted that it is a case of sale and purchase of the property owned by the revisionist where no criminality is involved. He further submitted that agreement to sell dated 31.8.2016 bears the signature of revisionist and R2. He further submitted that R2 can file a Satesh Bhati v. State & Anr. - CR No. 313 of 2018 5/11 civil suit in order to recover the advance amount, if any, paid by him. 11 Ld. Counsel for R2 submitted that revisionist has not signed the agreement to sell though she the same was given to her. He further submitted that revisionist has taken a sum of Rs. 5 lac from him and thereafter kept on increasing the advance money and payment schedule time and again. He further submitted that the revisionist has threatened him to implicate in a false case and also with dire consequences qua which he has prepared a CD. He further submitted that intention of the revisionist was to cheat and misappropriate his money that is why she has kept on changing the terms and conditions of the agreement of the sale of the property in question. 12 Heard and persued the record.
13 In Subhkaran Luharuka & Anr v. State and Anr., 170 (2010) DLT 516 certain guidelines were issued for the guidance of subordinate courts while dealing with the application u/s 156(3) CrPC which are like this: "52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application u/s 156(3) Cr.PC is summarized as under:
(i) Whenever a Magistrate is called upon to pass orders u/s 165(3) CrPC at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer incharge of the police station having jurisdiction over the area for recording the information Satesh Bhati v. State & Anr. - CR No. 313 of 2018 6/11 available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complaint. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant u/s 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SAHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.
(iii) The Magistrate, when approached with a complaint u/s 200 CrPC should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is necessity to call for a police report u/s 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application u/s 156(3) CrPC is also filed alongwith a complaint u/s 200 CrPC if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy Satesh Bhati v. State & Anr. - CR No. 313 of 2018 7/11 himself about the perrequisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of the complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
14 In Lalita Kumari v. State of UP, (2014) 2 SCC 1, it was held by their lordship it is mandatory for the police register FIR u/s 154 CrPC in the cases where complaint discloses commission of a cognizable offence. A preliminary inquiry is envisaged in certain type of cases like matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, cases where there is abnormal delay/latches in initiating criminal prosecution, e.g. over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. 15 In Mohd. Salim v. State, 175 (2010) DLT 473 it was held by their Lordships as under: "11. The use of the expression "may" in Subsection (3) of Section 156 of the Code leaves no doubt that power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the police even if the allegations made in the complaint disclose commission of a Satesh Bhati v. State & Anr. - CR No. 313 of 2018 8/11 cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightway take cognizance of the alleged offence and proceed u/s 200 of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightway proceed further in the matter, instead of passing the buck to the Police u/s 156(3) of the Code. Of court, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the police."
16 It is clear that police is bound to register FIR in every cognizable offence. The cognizable offence is sufficient to move the investigating machinery into action.
17 The status report filed by the police shows that dispute pertains to Satesh Bhati v. State & Anr. - CR No. 313 of 2018 9/11 property transaction which is civil in nature.
18 The revisionist has allegedly not signed the agreement to sell. She has allegedly taken a sum of Rs. 5 lac from the respondent. She allegedly kept on changing the terms and condition for the sale of the property. She has allegedly changed the details of post dated cheques given by the respondent to her in the sale agreement. The said property was already lying mortgaged with the bank which allegedly created an impression that the intention of the revisionist is to cheat the respondent No.2.
19 The respondent No. 2 has allegedly demanded the refund of his advance money given to the revisionist. The respondent No. 2 was allegedly threatened by her to allegedly implicate in a false case qua which a CD has been prepared by the respondent. The CD alongwith certificate u/s 65B of the Indian Evidence Act is on record.
20 All these facts show that a cognizable offence is allegedly made out against the revisionist. Ld. Trial Court is not bound by the opinion given by the police in the Status report. Ld. Trial Court has formed its opinion after perusing the entire material available on record. 21 There can be a civil liability coupled with criminal liability qua the offence contemplated by the respondent No. 2. FIR has been registered. Satesh Bhati v. State & Anr. - CR No. 313 of 2018 10/11 The investigation is going on. The culpability, if any, of the revisionist would emerge during the course of investigation. The police will file the final report u/s 173 CrPC after collecting the evidence.
22 Keeping in view the above discussion, I do not find any infirmity in the order of the Ld. Trial Court.
23 The revision petition is dismissed. Copy of this order be sent to Ld. Trial Court.
24 Revision file be consigned to records.
Announced in the
open court on
26th July, 2018 (SURESH KUMAR GUPTA)
Add. Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Satesh Bhati v. State & Anr. - CR No. 313 of 2018 11/11