Delhi District Court
Revisionist vs State on 9 August, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Revision No.204213/16
Modicare
(Through Anil Kumar Seth,
its Associate Vice President)
5, Community Centre,
New Friends Colony,
New Delhi - 110025
. . . . Revisionist
Versus
1. State . . . . Respondent No.1
2. Anant Singh (Proprietor of M/s A2 Distribution Services) MB59A, Ground Floor, Street No.2, Shakarpur, Delhi - 110092 . . . . Respondent No.2 Date of Institution : 02.07.2016 Date of transfer of the case to this court : 06.11.2017 Date of Arguments : 04.08.2018 Date of Order : 09.08.2018 O R D E R
1. The present revision petition under Section 397 of The Code of CR No.204213/16 Page 1 of 10 Criminal Procedure (hereinafter to be referred as "Cr.P.C") has been filed for setting aside the impugned order dated 01.03.2016 in Criminal Complaint Case No. 40/1 of 2014 titled "Modi Care Ltd. Vs State ".
2. The brief submissions of the revisionist/petitioner are that:
a) The petitioner is a company Incorporated under the provisions of the Indian Companies Act, 1956 having its registered office at 5, Community Centre, New Friends Colony, New Delhi and branch office at E369, 2nd floor, Nirman Vihar, New Delhi carrying on the business of direct selling.
b) The petitioner requires agents/distributors for the purpose of delivery of goods and collection of cash from its customers. In November, 2010, Mr. Anant Singh, respondent No.2, proprietor of M/s A2, Distribution Services, Delhi approached the petitioner for being engaged for carrying out the services of distribution, claiming to have vast experience and good reputation in the field. Impressed by his representations, the petitioner engaged Mr. Anant Singh, respondent No.2 in December, 2010 to carry out the activities of distribution of goods of the petitioner company for the order received from its customers.
c) As per the contract between the parties, the goods of the particular company were interested to Mr. Anant Singh, respondent No.2 who was to deliver them to the customers and the cash CR No.204213/16 Page 2 of 10 collected on the delivery of the goods to the customers and consultant the company was to be deposited the very next day after reconciliation.
d) Mr. Anant Singh, respondent No.2 collected an amount of ₹63,48,661/ out of which an amount of ₹19,51,507/ has been misappropriated by him and not deposited with the petitioner. The petitioner has given the transaction details in the tablet form.
e) The petitioner has submitted that Mr. Anant Singh, respondent No.2 approached the company with the intention to usurp and misappropriate the funds of the company. Mr. Anant Singh, respondent No.2 had cheated the company by making false and dishonest representations that he would collect the cash on deposit but have misappropriated the cash/goods entrusted to him by the company.
f) The company in order to settle the issues amicably, made endeavours to speak to Mr. Anant Singh, respondent No.2 and invited him for a discussion. Mr. Anant Singh, respondent No.2, after ignoring many calls made by the officials of the company, finally agreed to meet the company on 07.03.2014 at his Nirman Vihar Office. Mr. Anant Singh, respondent No.2 was accompanied by one Mr. Sanjeet Jha who was described as partner in the firm. The matter was discussed at length and Mr. Anant Singh, respondent No.2 was requested to deposit the money with the petitioner company as per CR No.204213/16 Page 3 of 10 the terms of the Memorandum of Understanding dated December 2010. Mr. Anant Singh, respondent No.2 Singh had also to submit a statement of accounts on 11th March, 2014 to the applicant company to examine the same on 12th March, 2014 and final reconciliation of accounts was to be completed on 13 th March, 2014 in the joint meeting.
g) Mr. Anant Singh, respondent No.2 instead of coming on 11th March, 2014 sent an email message giving certain information which was actually not correct. The applicant company called him and reminded him of the meeting of 13th March as agreed, which forms part of the minutes of the meeting of 7 th March 2014 and advised him to comment finalise the statement of accounts. However in at disregard to the request and also to the minutes of meetings so signed by him, Mr. Anant Singh, respondent No.2 did not turn up. This fact gives a clear indication of the mala fide of Mr. Anant Singh, respondent No.2 to play fraud on the company.
h) Mr. Anant Singh, respondent No.2 has committed criminal breach of trust and cheated the applicant company at the series of offences committed by him are required to be investigated and misappropriated amount is to be recovered.
i) The company made a complaint about the offences committed by Mr. Anant Singh, respondent No.2 to the SHO, New Friends Colony Police Station on 24.03.2014.CR No.204213/16 Page 4 of 10
j) Despite repeated requests, the SHO, New Friends Colony Police Station failed to take any action. As the company filed a complaint before the DCP Sarita Vihar police station on 01.10.2014.
k) Since despite having filed the abovementioned complaints, no action has been taken by the police and thus the petitioner then approached the learned trial court seeking directions in the section 156 (3) Cr.P.C. to the SHO, New Friends Colony Police Station to register an FIR u/s 403, 406, 409 and 420 of the IPC.
l) IO filed status reports dated 05.08.2015 and 07.12. 2015 in which it was reported that Mr. Anant Singh, respondent No.2 admitted that he had misappropriated the money of the complainant, however the said application under section 156 (3) Cr.P.C. was dismissed vide the impugned order and hence the present revision petition has been filed.
3. Grounds for filing the revision petition:
a) Learned trial court did not take into consideration that it is a settled principle of law that once a cognizable offence is disclosed, FIR has to be resisted. Reliance has been placed for the same on the law laid down in Lalita Kumari versus Government of UP and others, (2014) 2 SCC 1.
b) The impugned order is incorrect and contrary to the settled law.
CR No.204213/16 Page 5 of 10Once the court had found that the cognizable offence has been committed, it should have directed that the SHO to register an FIR. Learned trial court erroneously dismissed the application by holding that no police investigation is required.
c) The case law relied upon by learned MM has no application in the present case. The present case is not based on documentary evidence alone. Statements of various witnesses have to be recorded and cash and goods belonging to the company have also to be recovered.
d) Learned trial court unduly relied upon Arvindhai Ravjibhai Patel versus Dhirubhai Sambhubhai and M/s Skipper Beverages P.Ltd. versus State, by holding that the petitioner company has all the evidence available with it and therefore no investigation by the police is required in the matter. It has been submitted that the present case is not covered by the aforesaid cases as the petitioner does not have necessary evidence to prosecute the accused because the present case involves commission of offence over a long period of time from April 2013 to February 2014 and there are various transactions which are required to be investigated.
e) The petitioner has prayed for allowing the present petition and direct the SHO concerned to register an FIR against revisionist No. 2.
4. The notice of the petition was sent to the respondent No.2.
CR No.204213/16 Page 6 of 10However, the same was received back unserved and the respondent No.2 was served through publication in the newspaper "Veer Arjun"
Hindi edition and "The Statesman" English edition dated 10.10.2017. However none appeared for Respondent No. 2 and the arguments have been advanced by learned counsel for petitioner alone.
5. Learned counsel for petitioner argued that since the respondent No.2 had admitted his liability by signing the Memorandum of Understanding dated December 2010, the respondent No.2 has admitted his liability and the nonpayment of the cash collected by the respondent No.2 as well as nonreturn of the goods entrusted to Respondent No.2 by the company proves that he has committed offence under section 405 and 407 IPC and since that proves commission of cognizable offence, learned trial court should have directed the SHO to register an FIR against respondent No.2.
6. Trial court record as well as the impugned order has been perused carefully.
7. Learned trial court has nowhere observed that no cognizable offences made out in the facts of the case. It is a settled principle of law that when criminal complaint is filed before the Magistrate and he finds that it discloses a cognizable offence having been committed, two courses are open to Magistrate. He may choose to enquire into the complaint himself by taking cognizance in exercise of powers under section 190 Cr.P.C. and proceed to enquire into it in CR No.204213/16 Page 7 of 10 accordance with the procedure laid down in sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to the police and direct for investigation. In case the Magistrate give direction for investigation of the matter, he will stay his hand till report in the section 173 CrPC is filed by the police and thereafter further process of law would follow.
8. In the case titled as Devender Kumar Vs. State (Govt. of NCT of Delhi) and others, Crl. M. C. 2116/13, decided by Hon'ble High Court of Delhi on 28.10.2014, it was held that "The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that the allegations are serious enough and establish the commission of cognizable offence requiring thorough investigation by the police, an FIR should be ordered to be registered."
9. The law governing the choice to be exercised from amongst the two options has been settled by Hon'ble Delhi High Court in 'M/s Skipper Beverages Pvt. Ltd. Vs. State', 2001 IV AD (Delhi). In the said case, it was held that a Magistrate must apply his mind before passing an order under section 156 (3) Cr.P.C. and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of CR No.204213/16 Page 8 of 10 the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.
10. I concur with the observations of learned trial court that in the case in hand, the entire evidence of the case is within the knowledge and reach of the revisionist. The amount to be recovered by revisionist from respondent No.2 is also known to it. Learned counsel for revisionist has argued that statements of various witnesses have to be recorded and cash and goods belonging to the company have also to be recovered and the same is possible only by the help of investigation by the police authorities. However, the details of these witnesses are in the knowledge of Respondent No. 2 and it is only he who can give those details and no assistance of police authorities is required for the same. The assurance given by respondent No.2 to revisionist is also known to it. The case of revisionist is based on its oral testimony as well as documentary evidence which can be easily produced before the court. There is nothing which is beyond the reach of revisionist. Hence ,in the given facts and circumstances of the case, FIR is not at all necessary.
11. For the foregoing reasons, in my view, the learned Metropolitan Magistrate has rightly exercised the jurisdiction vested in her. I do not find any illegality, impropriety or infirmity in the impugned order dated 01.03.2016 which calls for interference by this court. Revision deserves to be dismissed. Accordingly, same is hereby dismissed.
CR No.204213/16 Page 9 of 1012. A true copy of the order alongwith TCR be sent back to court concerned.
13. Revision file be consigned to record room.
Announced in the open court on 09.08.2018 (Dr. Neera Bharihoke) ASJ06/SouthEast/Saket/ND 09.08.2018 Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2018.08.10 21:45:40 +0530 CR No.204213/16 Page 10 of 10