Delhi District Court
Smt. Anita Nagar vs Sho on 23 December, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 740/2022
CNR No.: DLCT01-017245-2022
Smt. Anita Nagar
W/o Sh. Devender Singh
R/o H. No. 32, Khasra No. 19/26
Gali No. 6, Darshan Vihar, Burari
Delhi-110084
..... Petitioner
VERSUS
1. SHO
PS Burari
2. Kanwar Pal Singh
S/o Not Known
3. Smt. Rekha
W/o Sh. Kanwar Pal Singh
4. Vikrant
S/o Sh. Kanwar Pal Singh
All three residents of:
H. No. 46, Gali No. 20, B-Block
Kaushik Enclave, Burari
Delhi-110084
..... Respondents
Date of Institution : 17.12.2022
Date of Arguments : 21.12.2022
Date of Judgment : 23.12.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 17.11.2022 (In short 'the impugned order') in complaint case vide CC No. 3206/2021 titled as 'Smt. Anita Nagar vs. Kanwar Pal Singh & Ors.' whereby Ld. MM-09, Central, Tis Hazari Courts, Delhi (In Crl. Rev. No. 740/2022 Smt. Anita Nagar vs. SHO & Ors. Page No. 1 of 12 short 'the trial Court') dismissed an application under Section 156 (3) Cr.P.C. seeking direction to SHO, PS Burari to register FIR against the respondent No. 2 to 4 and investigate the case. BRIEF FACTS:
2. The petitioner filed a complaint under Section 200 Cr.P.C. alongwith an application under Section 156 (3) Cr.P.C. seeking registration of FIR against the respondent No. 2 to 4 alleging commission of offences under Section 406/420/ 425/467/468/471/506/120B/34 of 'The Indian Penal Code, 1860' (In short 'IPC').
3. According to the petitioner, the respondent No. 2 to 4 are her neighbours. The petitioner had friendly relation with the respondent No. 2 to 4. The petitioner's husband is in Delhi Police. The respondent No. 2 is employed with MCD. The respondent No. 2 availed loan from the petitioner from time to time.
4. The case of the petitioner is that in the month of July, 2020, the respondent No. 2 to 4 approached the petitioner and her husband and requested for financial help in the sum of Rs. 10,00,000/-. The respondent No. 2 to 4 represented that they will mortgage their property bearing khasra No. 19/26, in Gali No. 20, B-Block, Kaushik Enclave, Burari-110084 measuring 250 sq. yards (In short 'the said property') and they will handover original title documents of the said property as security and will repay the loan amount within stipulated period and obtain the said documents.
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5. It is further case of the petitioner that the petitioner's husband arranged a loan in the sum of Rs.
7,90,000/- from Axis Bank, Darya Ganj, Delhi-110006 and the petitioner arranged an amount of Rs. 3,00,000/- from her relatives. On 27.09.2020, the petitioner advanced loan of Rs. 10,00,000/- to the respondent No. 2 to 4 against mortgage of the said property. The respondent No. 2 to 4 handed over original title documents of the said property and represented that they will return the entire loan amount within six months on or before 30.03.2021. As transaction was a friendly loan, no formal agreement pertaining to loan transaction and mortgage was reduced into writing. In April, 2021, the petitioner approached the respondent No. 2 to 4 and demanded loan amount of Rs. 10,00,000/-. However, the respondent No. 2 and 3 refused to return the said amount and threatened to implicate the petitioner's husband in a false case. The petitioner learnt that the respondent No. 2 to 4 constructed flats on the said property and sold some of the said flats. The petitioner lodged a complaint with PS Burari vide DD No. 48A dated 19.11.2021. However, local police did not take any action. Thereafter, the petitioner sent a reply to legal notice dated 20.11.2022 issued by the respondent No. 2 to 4. Feeling aggrieved with inaction of local police, the petitioner filed the said application under Section 156 (3) Cr.P.C.
Crl. Rev. No. 740/2022 Smt. Anita Nagar vs. SHO & Ors. Page No. 3 of 12 IMPUGNED ORDER:
6. The relevant part of the impugned order is as under:
"6. From the careful scrutiny of the record it appears that all the facts constituting the alleged crime are within the knowledge and the reach of the complainant. There is no requirement of a scientific and technical investigation in the matter. Furthermore, in complainant's own words, there was no written agreement qua the grant of loan between the complainant and the proposed accused. Further, the complainant and the proposed accused are neighbours and known to each other and there is no concern of non-traceability of the accused. There is no requirement of collection evidence by the investigating agency, the necessary and cogent evidence are either in the reach of the complainant or can be summoned, through the court. Keeping in mind the totality of the fact and the circumstances, I am not inclined to invoke the discretionary power vested in the court by virtue of section 156(3) Cr.P.C. Reference is made to the Judgment of the Hon'ble Delhi High Court in the case titled as Shub Karan Luharuka & Anr. vs. State & Anr. 2010 (3) JCC 1972.
7. In my considered opinion, the complainant is required to prima facie establish the allegations by leading pre summoning evidence u/s 200 Cr.P.C. The relief claimed u/s 156(3) Cr.P.C. is declined.
8. If at all there shall be any need for investigation then the provisions u/s 202 Cr.P.C. may be resorted to.
9. In view of the above, the present application u/s 156 (3) Cr.P.C. is hereby dismissed."
CRIMINAL REVISION PETITION:
7. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred criminal revision petition.
Crl. Rev. No. 740/2022 Smt. Anita Nagar vs. SHO & Ors. Page No. 4 of 12 APPEARANCE:
8. I have heard Mr. Parveen Tyagi, Advocate for the petitioner and examined trial Court record. CONTENTIONS OF LD. COUNSEL FOR THE PETITIONER:
9. Ld. Counsel for the petitioner contended that the trial Court passed the impugned order in a mechanical manner without application of judicial mind. He contended that the trial Court did not consider that the respondent No. 2 to 4 mortgaged the said property and handed over original title documents to the petitioner at the time of availing loan. He contended that the trial Court did not consider that the respondent No. 2 to 4 forged title papers in order to cheat the petitioner. He contended that the respondent No. 2 to 4 entered into a criminal conspiracy by forging title documents of the said property and availed loan from the petitioner against mortgage of the said property. He contended that the trial Court did not consider reply to legal notice sent by the respondent No. 2 to 4 wherein they stated that they had advanced a loan of Rs. 8,00,000/- to the petitioner and handed over title documents of the said property to the petitioner to search a buyer of the said property. He contended that the respondent No. 2 to 4 did not ask for return of their title documents from the petitioner. He contended that status report filed by Enquiry Officer would show that the respondent No. 2 to
4 had taken loan and delivered original title documents as security to the petitioner and they failed to repay the loan amount.
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10. Ld. Counsel for the petitioner contended that the trial Court did not consider bank statement filed by the petitioner pertaining to withdrawal of an amount of Rs. 7,90,000/- from Axis Bank by the petitioner's husband on 05.09.2020. He contended that the trial Court did not consider that the allegations made in the complaint disclosed commission of cognizable offences and therefore, the trial Court committed gross error of law in declining prayer for registration of FIR against the respondent No. 2 to 4.
LAW AND DISCUSSION:
11. Section 156 Cr.P.C. is as under:
"156. Police officer's power to investigate cognizable case.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-
mentioned."
12. A direction for registration of FIR cannot be issued mechanically, without applying judicial mind to facts and circumstances of the case.
13. Jurisdictional Magistrate has power to apply his mind to the allegations made in the complaint and accompanying material while dealing with an application seeking registration of FIR.
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14. In Ramdev Food Products (P) Ltd. vs. State of Gujarat, (2015) 6 SCC 439, Hon'ble Apex Court held, as under:
"20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705, it was observed: (SCC p. 711, para 11)
11. "The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge / Magistrate cannot refer the matter under Section 156 (3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.....
22. Thus, we answer the first question by holding that:
22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued."
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15. In Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others, (2015) 6 SCC 287, Hon'ble Supreme Court of India held, as under:
"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same."
16. In Babu Venkatesh and Others vs. State of Karnataka and Another, (2022) 5 SCC 639, Hon'ble Supreme Court of India held, as under:
"23. After analysing the law as to how the power under Section 156(3) CrPC has to be exercised, this Court in Priyanka Srivastava v. State of U.P. has observed thus: (SCC p. 306, paras 30-31)
30.....
31.....That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute / family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay / laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
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25. This Court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The Court has noted that, applications under Section 156(3) CrPC are filed in a routine manner without taking any responsibility only to harass certain persons."
17. Precisely, the case of the petitioner is that on 27.09.2020, she had advanced friendly loan of Rs. 10,00,000/- to the respondent No. 2 to 4 against equitable mortgage of the said property. In that regard, she has filed bank statement pertaining to withdrawal of an amount of Rs. 7,90,509/- from account of her husband on 05.09.2020 and title documents of the said property. However, there is no document pertaining to loan transaction or equitable mortgage of the said property to secure the loan amount. It is further case of the petitioner that the respondent No. 2 to 4 constructed floors on the said property and sold some of the floors. However, there is no document pertaining to sell of any of the said floors by the respondent No. 2 to 4. Precisely stated, besides original title documents of the said property, there is no material on record to substantiate the allegations made in the complaint.
18. The allegations made in the complaint do not disclose commission of any offence.
19. Where the complaint does not disclose commission of any offence, the Magistrate must postpone issuance of process and ask the complainant to lead evidence to establish existence of sufficient grounds to proceed.
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20. In Ramdev Food Products (P) Ltd. vs. State of Gujarat (supra), Hon'ble Supreme Court of India held, as under:
"22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed".
21. Primarily, the nature of dispute is pertaining to return of the loan amount.
22. The trial Court rightly dismissed an application under Section 156 (3) Cr.P.C., after taking note of allegations made in the complaint.
23. The petitioner was rightly given opportunity to lead pre-summoning evidence to bring prima facie material on record disclosing commission of any offence and issuance of process against the respondent No. 2 to 4. CONCLUSION:
24. Therefore, this Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set- aside.
25. Accordingly, the criminal revision petition filed by the petitioner is dismissed.
26. A copy of judgment alongwith trial court record be sent to trial Court.
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27. The criminal revision file be consigned to record room.
Announced in the open Court SANJAY SHARMA-II on this 23rd December, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 740/2022 Smt. Anita Nagar vs. SHO & Ors. Page No. 11 of 12 Smt. Anita Nagar vs. SHO, PS Burari & Ors.
CNR No.: DLCT010172452022 Crl. Revision No. 740/2022 23.12.2022 Proceedings convened through Video Conferencing. Present : Mr. Parveen Tyagi, Advocate for the petitioner.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The criminal revision file be consigned to record room.
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
NK 23.12.2022
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