Delhi District Court
Shri Vijay Pal vs Shri Gyan Vats on 30 January, 2017
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CR No: 440237/2016
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE, (PC ACT) (CBI)-1
DISTRICT COURTS(SW), DWARKA, NEW DELHI.
In the matter of :-
CR No. : 440237/2016
Shri Vijay Pal
S/o late Sh. Sis Ram,
R/o : WZ-49B, Palam Village,
New Delhi - 110 045.
......... Revisionist
VERSUS
1. Shri Gyan Vats
S/o late Shri Girjadhar Vats,
R/o : WZ - 500, Palam Village,
New Delhi - 110 045.
2. Shri Ravinder
S/o Sh. Rajender Kumar
R/o : WZ-806, Palam Village,
New Delhi - 110 045.
3. Shri Sube Singh
S/o Sh. Amar Singh
R/o : Palam Village,
New Delhi - 110 045.
4. The State (NCT of Delhi)
.........Respondents
CR No: 440237/2016 Page No.1 of 30 DOO 30.01.2017
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CR No: 440237/2016
CR No. 440237/2016
Date of Institution 10.07.2015
Reserved for orders on 21.01.2017
Judgment announced on 30.01.2017
JUDGMENT
1. This revision petition under section 397 Cr.PC is directed against order dated 20.06.2015 passed by Ld. MM-1, South-West, Dwarka Courts, New Delhi whereby the Ld. M.M. has been pleased to dismiss the application under section 156(3) Cr.PC filed by the revisionist. Briefly stated relevant facts for disposal of the revision petition are as under :-
2. The revisionist has filed a criminal complaint under section 200 Cr.PC for the offence punishable under section 380, 384,420, 467, 468, 471, 506, 120B, 34 IPC against accused no.1 Gyan Vats (respondent No. 1 herein), accused no.2 Ravinder Kumar (respondent No. 2 herein) and accused no.3 Sube Singh (respondent No.3 herein) stating that complainant(revisionist herein) and the accused persons (respondents No.1 to 3 herein) are the native of village Palam, New Delhi and are acquainted with each other.
3. In the complaint under section 200 Cr. PC. the complainant(revisionist herein) has stated that accused CR No: 440237/2016 Page No.2 of 30 DOO 30.01.2017
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CR No: 440237/2016 persons are involved in various types of illegal and unlawful activities and the complainant (revisionist herein) came to know that accused no.1 Gyan Vats (respondent No. 1 herein) in connivance with his mother Smt. Shakuntala Devi and accused no.2 Ravinder Kumar (respondent No. 2 herein) forged and fabricated the documents relating to the government land i.e. Johar measuring approximately 257 sq. yards situated in the revenue estate of Palam Village, New Delhi and accused no.1 Gyan Vats (respondent No.1 herein) alogwith his mother Smt. Shakuntala Devi and accused no.2 Ravinder Kumar (respondent No. 2 herein) has forged the documents for sale of plot No. WZ-193A, WZ-193A/1 measuring 200 sq. yards each in village Palam New Delhi and further encroached the area measuring 57 sq. yards of plot No.WZ-193A out of Khasra No.71/22/2 situated in the revenue estate of Village Palam, New Delhi.
4. In the complaint under section 200 Cr. PC the complainant(revisionist herein) has further stated that the accused persons(respondents No.1 to 3 herein) have committed cheating with the public persons by selling the government land on the basis of false and fabricated documents. The complainant(revisionist herein) served legal notice dated 24.10.2013 upon accused No. 1 & 2 and on Smt. Shakuntala Devi, mother of accused No. 1 and called upon to demolish the construction from the CR No: 440237/2016 Page No.3 of 30 DOO 30.01.2017
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CR No: 440237/2016 government land and vacate the same for public purposes. However, accused No. 1 & 2 and Smt. Shakuntala Devi sent a reply dated 30.10.2013 stating that they have not encroached the government land and have not forged and fabricated documents of the said government land. The accused persons have hatched criminal conspiracy to commit criminal offences against the complainant.
5. It is further stated in the complaint under section 200 Cr.PC that the complainant (revisionist herein) is carrying the business of iron bars and hardware store at village Palam and doing the business of property estate agent and respondent No. 2 and 3 used to visit the office of the complainant(revisionist herein) very frequently. It is further stated that the complainant(revisionist herein) was in the habit of keeping blank signed cheques of his bank account in his office in order to meet his bonafide needs from time to time and during the year 2013 he kept several blank signed cheques of his bank account No. SB/1/3412 with Corporation bank, Palam, New Delhi at his office and the complainant found that the said blank signed cheques were missing/stolen from his office and he informed his banker on 09.09.2013 and 26.10.2013 for stopping of payment of all the said blank signed cheques, which were found missing from his office. It is further stated that the CR No: 440237/2016 Page No.4 of 30 DOO 30.01.2017
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CR No: 440237/2016 complainant(revisionist herein) learnt that accused No. 2 & 3, who were frequent visitor of the said office had stolen the said blank signed cheques in conspiracy with accused No. 1 with the intention to blackmail and to extort money from the complainant(revisionist herein). Accused no.1 Gyan Vats (respondent No. 1 herein) illegally presented the blank signed cheque no.075279 after filling the date of 10.10.2013 and a sum of Rs.30 lakhs and name of the accused no.1 Gyan Vats (respondent No. 1 herein) in the said cheque and the complainant(revisionist herein) came to know about the presentation of the same after receipt of the notice dated 06.01.2014 under section 138 NI Act from advocate of accused No.1. The complainant (revisionist herein) sent reply dated 21.01.2014 through his advocate to the notice of accused no.1 Gyan Vats (respondent No. 1 herein) stating that accused no.1 Gyan Vats (respondent No. 1 herein) has never entered into any type of financial transactions with the complainant (revisionist herein) and no rejoinder was filed to the reply of the complainant by the accused No. 1. It is stated that in reply dated 30.10.2013 of the notice dated 24.10.2013 of the revisionist, the accused No. 1 had stated that he has no concern whatsoever with the revisionist except being a resident of the same village. The accused persons have committed theft of his blank signed cheques and have CR No: 440237/2016 Page No.5 of 30 DOO 30.01.2017
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CR No: 440237/2016 forged and fabricated the same with the intention of extorting money from the complainant(revisionist herein). The complainant (revisionist herein) made a complaint to SHO, PS Palam, New Delhi vide DD No.42B dated 25.02.2014.
6. It is further stated in the complaint under section 200 Cr. PC that accused No.1 issued another notice dated 02.08.2014 in conspiracy with accused No. 2 & 3. Accused No.1 in the said notice dated 02.08.2014 issued in connivance of the accused No. 2 & 3 alleged that in the first week of March, 2013, the complainant represented to the accused No.1 to see the property No. WZ-44D, Old Lal Dora, Palam Village, New Delhi and asked the accused No.1 to invest money to the tune of Rs.1.5 crores in the said property and accused No.1 decided to invest a sum of Rs.1.2 crores in cash and about Rs.30 lakhs in cheque when proper documents are executed and it was further alleged in the said notice that accused No. 1 paid a sum of Rs.30 lakhs each in cash in the month of March 2013 and thereafter paid another amount of Rs. 30 lacs each in cash in April 2013, June 2013 and August 2013 to the complainant. In the notice dated 02.08.2014, accused No. 1 has further alleged that after receipt of the amount, the complainant (revisionist herein) became evasive and did not respond to the requests of the accused No. 1 and thereafter a CR No: 440237/2016 Page No.6 of 30 DOO 30.01.2017
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CR No: 440237/2016 meeting was held in September 2013 and the complainant(revisionist herein) sought forgiveness and stated that it was not possible to go ahead with the deal of investment in the property and he will hand over the amount by giving four separate cheques which were allegedly filled by the complainant and at the request of the complainant the cheques were kept undated.
7. It is stated that in the notice dated 02.08.2014, accused No.1 has further alleged that in the first week October, 2013, the complainant called the accused No. 1 and told him to get the date of 10.10.2013 filled on the cheque bearing no.075279 and to present the said cheque as he has arranged the funds in the said account and in other cheque bearing No. 075278, the complainant asked to fill the date 07.04.2014 and in cheque no.423199 to fill the date 28.06.2014 and in cheque No. 423200 to fill the date 28.06.2014.
8. It is further stated in the complaint under section 200 Cr. PC that in the notice dated 02.08.2014, accused no. 1 has stated that the complainant sought forgiveness after dishonour of cheque No.075279 on 04.11.2013 and 16.12.2013 and for the said cheque accused No.1 has sent legal notice dated 06.1.2014 which was replied by the complainant vide reply dated 21.01.2014. It is further stated in the complaint under CR No: 440237/2016 Page No.7 of 30 DOO 30.01.2017
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CR No: 440237/2016 section 200 Cr. PC that in the notice dated 02.08.2014 accused No. 1 has alleged that he presented other three cheques bearing no.075278 dated 07.04.2014, 423199 dated 28.06.2014 and 423200 dated 28.06.2014 each for Rs.30 lakhs and the same were returned dishonored on 05.07.2014 by the banker of the complainant and in the said notice, accused No. 1 has alleged that in the month of July, 2014 he discovered that the property which was shown to him for the purpose of investment, was already encumbered and a sale deed had been executed in favour of owners in December, 2012 and accused No. 1 has alleged that the complainant has forged and fabricated the documents of title only for the purpose to induce Accused No. 1 and to part with his money based on forgery of agreement to sell with Girish Mittal and it is further stated that complainant sent reply dated 7.08.2014 to the notice dated 02.08.2014.
9. It is further stated in the complainant under section 200 Cr. PC that the complainant (revisionist herein) had entered into transactions for the purchase of the said property No.WZ-44D, Old Lal Dora, Palam Village with Shri Girish Mittal vide agreement to sell dated 21.07.2012 and the complainant had made the total payment of Rs.2.85 crores to the shri Girish Mittal on different dates but said Girish Mittal illegally executed the registered sale deed dated 23.11.2012 in favour of M/s CR No: 440237/2016 Page No.8 of 30 DOO 30.01.2017
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CR No: 440237/2016 Earth Builders & Developers through its partners, namely accused no.2 Ravinder Kumar(respondent No. 2 herein), Gyanender, Sachin Solanki(son of the complainant), accused no. 3 Sube Singh (respondent No. 3 herein) and Jai Karan Sehrawat without the knowledge and consent of the complainant. It is stated that on coming to know of crime committed against him, the complainant lodged an FIR No.453/2014 dated 22.09.2014 under sections 420/406/120B/34 IPC at PS Palam.
10. It is further stated in the complaint under Section 200 Cr.P.C. that accused No.1 & 2 had sent reply dated 30.10.2013 to the legal notice dated 24.10.2013 and in the said reply accused No. 1 & 2 have not whispered about alleged amount of Rs.1.20 crores paid by accused no.1 to the complainant. It is stated that accused No.1 has made false and frivolous complaint under section 138 NI Act against the complainant which is pending before MM. It is stated that the complainant has made a complaint dated 14.08.2014 to the Deputy Commissioner of Police, South West Distt., to SHO, PS Palam vide DD No.45B dated 14.08.2014 and the complainant further made complaint dated 20.11.2014 to Joint Commissioner of Police (South & West) however, police has failed to take any action.
11. Alongwith complaint under section 200 CR No: 440237/2016 Page No.9 of 30 DOO 30.01.2017
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CR No: 440237/2016 Cr.PC, the complainant(revisionist herein) also filed an application under section 156(3) Cr.PC for direction to SHO, PS : Palam, New Delhi to register FIR against the accused persons. However, the said application under section 156(3) Cr.PC was dismissed vide impugned order dated 20.06.2015 by Ld. MM-01, Dwarka Court, New Delhi.
12. Feeling aggrieved by the impugned order dated 20.06.2015, by which the application of the complainant(revisionist herein) was dismissed, the revisionist has filed the present revision petition thereby stating the Ld. MM after seeking action taken report passed the impugned order and dismissed the application under section 156(3) Cr.PC and after taking cognizance of evidence listed the matter for petitioner/complainant evidence.
13. The revisionist has challenged the impugned order dated 20.06.2015 on the ground that the same is based on conjectures and surmises and the impugned order has been passed without appreciating the facts and the law. It is stated in the revision petition that Ld. Trial court has committed mistake by observing that the complainant (revisionist herein) is in possession of evidence and he can very well produce the same in the court and the allegations can be proved by leading CR No: 440237/2016 Page No.10 of 30 DOO 30.01.2017
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CR No: 440237/2016 pre-summoning evidence. Ld. Trial court has not considered that all the incriminating documents and evidence including the blank signed cheques were/are in the custody and possession of the accused persons and the revisionist is not in position to bring the said documents and evidence from the possession of the accused persons and police investigation is necessary. It is stated that trial court has failed to take note of the legal propositions of law and verdict of the Hon'ble High Court and Hon'ble Supreme Court of India. It is stated that impugned order dated 20.06.2015 is liable to be set aside.
14. I have heard the Ld. Counsels for the parties and carefully perused the record.
15. The contention of Ld. Counsel for the revisionist is that revisionist had issued notice dated 24.10.2013 to the respondents regarding their illegal activities of encroaching upon the Government land and the reply dated 30.10.2013 was sent to the said notice by the respondents wherein they stated that they have no concern with the revisionist which shows that the respondents have stolen the blank signed cheques of the revisionist and have filled the contents of the same in order to extort money from the revisionist.
16. Ld. Counsel for the revisionist has CR No: 440237/2016 Page No.11 of 30 DOO 30.01.2017
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CR No: 440237/2016 contended that if there was transaction between the parties then in the reply dated 30.10.2013, the same would have been mentioned by the respondents which shows that the cheques in question were stolen by the respondents and they have used the same illegally by filing false complaint case under Section 138 NI Act against the revisionist.
17. Ld. Counsel for the revisionist has further contended that Ld. Trial Court has wrongly arrived at the conclusion that field investigation by the police is not required. The cheques in question are not in possession of the complainant and he shall not be able to produce the same and in the circumstances , FIR was liable to be registered against the respondents.
18. Ld. Counsel for the revisionist has relied upon the following decisions :
(i) Ramesh Kumari Vs. State ( NCT of Delhi), 2006 Legal Eagle ( SC) 121.
(ii) Abhay Tyagi Vs. State NCT of Delhi & Anr , 2009 Legal Eagle ( Del) 448.
(iii) Lallan Chaudhary & Ors. , 2006 Legal Eagle (SC) 843
(iv) Vipul Kumar Gupta Vs. Vipin Gupta, Crl. L.P. 461/2011 decided on 24.08.2012 by Hon'ble High Court of Delhi.
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19. Ld. Counsel for the respondent No. 1 to 3 has contended that this is a revision petition under Section 397 Cr.P.C. and not an appeal under Section 374 Cr.P.C. and it is not open for the revisionist to prove his defence of the case under Section 138 NI Act in which he has been summoned as an accused, by way of investigation by the police under Section 156(3) Cr.P.C..
20. Ld. Counsel for the respondent No. 1 to 3revisionist has further contended that allegations of revisionist are that respondents have stolen the blank signed cheques of the revisionist and have filled the contents of the same and thereafter on the basis of said cheques, a complaint case under Section 138 NI Act has been filed against the revisionist and this defence has to be proved by the revisionist by leading appropriate evidence in the said complaint case in which he has been summoned as an accused.
21. Ld. Counsel for the Respondent No. 1 to 3has further contended that field investigation in this case is not required as it has already come on record that on the basis of cheques in question which are alleged to have been stolen by the respondents, the revisionist has been summoned as an accused and the said record and the documents can be summoned by the revisionist for proving the contents of his complaint.
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Ld. Counsel for the respondents has contended that there is no illegality or infirmity in the impugned order dated 20.06.2015 and the revision petition is liable to be dismissed.
22. Ld. Addl. PP for the State has contended that there is no infirmity in the impugned order dated 20.06.2015 and the revision petition is liable to be dismissed.
23. Ld. Counsel for the respondent No. 1 to 3 has relied upon the following decisions :
(i) Ramdev Food Products Private Limited v. State of Gujarat, (2015) 6 Supreme Court Cases 439.
(ii) Gurmeet Singh Vs. State of Haryana and Another 2012 Legal Eagle ( P & H) 184
(iii) Manoj Kumar Vs. Anil Aggarwal, 2012 Legal Eagle ( Del) 868
24. The complainant ( revisionist herein) has filed the complaint under Section 200 Cr.P.C. alleging that the respondents have committed theft of his signed blank cheques and after filling the contents of the same, the same were presented for payment but returned dishonoured with remarks 'insufficient fund' and thereafter a complaint case under Section 138 NI Act has been filed against the revisionist on the basis of cheque CR No: 440237/2016 Page No.14 of 30 DOO 30.01.2017
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CR No: 440237/2016 no. 075279.
25. The complainant/revisionist is aggrieved by the impugned order dated 20.06.2015 of Ld. MM-01 whereby his application under Section 156 ( 3) Cr.P.C. for registration of FIR was dismissed.
26. In the impugned order dated 20.06.2014, Ld. MM-01 has been pleased to observe :
After going through the entire material on record, this court is of the considered view that field investigation by police is not required in this case as complainant is in a possession of evidence. The allegations levelled by complainant can be proved by leading his pre- summoning evidence. Since complainant is in possession of evidence and he can very well produced the same in Court, accordingly, application 156(3) Cr.P.C. to register the FIR against the accused persons is dismissed.
27. Chapter XII of the Code of Criminal Procedure, 1973 deals with information to the police and their powers to investigate the offences. This chapter provides an alternative as well as additional remedy to a complainant whose complaint is either not entertained by the police or who does not feel satisfied by the investigations being conducted by the Police.
28. Section 156 reads as :
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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 which 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.
29. In Lalita Kumari v. Govt. of UP & Ors. 92014) 2 SCC 1, Hon'ble Supreme Court of India has been pleased to observe that:
91) In Madhu Bala (supra), this court held:
6. ...............
9. ..............
10. From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how CR No: 440237/2016 Page No.16 of 30 DOO 30.01.2017
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CR No: 440237/2016 the direction of a Magistrate asking the police to register a case makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable case and the Rules framed under the Indian Police Act, 1861 it (the police) is duty-bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be to register a case at the police station treating the complaint as the first information report and investigate into the same.
.................................... .................................... ....................................
111) In view of the aforesaid discussion, we hold:
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i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered.
In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to
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verify the veracity or otherwise of the
information received but only to ascertain
whether the information reveals any
cognizable offence.
vi) As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of CR No: 440237/2016 Page No.19 of 30 DOO 30.01.2017
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CR No: 440237/2016 it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
30. In Ramdev Food Products Private Limited v. State of Gujarat, (2015) 6 Supreme Court Cases 439, Hon'ble Supreme Court was pleased to hold:
12. It is further submitted that in the present case, the civil proceedings are pending between the parties where the question of genuineness or otherwise of the partnership deed is an issue. The process of criminal law cannot be used when a dispute is primarily of civil nature. Simultaneously initiation of criminal proceedings may be permitted where an offence is shown to have been committed.
Thus, the Magistrate was entitled to satisfy himself as to whether any cognizable offence had been committed before proceeding further. The Magistrate CR No: 440237/2016 Page No.20 of 30 DOO 30.01.2017
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CR No: 440237/2016 was not satisfied from the material available that any cognizable offence had been committed and he rightly decided to conduct further enquiry under Section 202. Having regard to the limited nature of inquiry under Section 202 which option had been rightly chosen by the Magistrate, direction to the police to investigate and give a report was limited by the very purpose for which the limited inquiry was to be held, as against procedure for investigation in cases not covered under Section 202 of the Code. The purpose was to enable the Magistrate to decide whether there was ground to proceed further. The Magistrate having taken cognizance of the offence and the police having not registered a criminal case nor the Magistrate having directed registration of criminal case, procedure and power of the police in the matter are different and in such a situation police did not have the power to arrest without permission of the Magistrate as was the view of the Gujarat and other High Courts.
XXXXXXXXXXXX XXXXXXXXXXXX
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, it was observed: (SCC p.711 CR No: 440237/2016 Page No.21 of 30 DOO 30.01.2017
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CR No: 440237/2016 para 11) "11. The scope of Section 156 (3) Cr.P.C. 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. We have already extracted the order passed by the learned Special Judge which , in our view, has stated no reasons for ordering investigation."
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CR No: 440237/2016 The above observations apply to category of cases mentioned in para 120.6 in Lalilta Kumari. Xxxxxxxxxx xxxxxxxxxxx
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. 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". Category of cases falling under para 120.6 in Lalita Kumari may fall under Section 202.
22.3 Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.
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CR No: 440237/2016 Xxxxxxxxxxxxxx xxxxxxxxxxxxxx
32. We now come to the last question whether in the present case the Magistrate ought to have proceeded under Section 156(3) instead of Section
202. Our answer is in the negative. The Magistrate has given reasons, which have been upheld by the High Court. The case has been held to be primarily of civil nature. The accused is alleged to have forged partnership. Whether such forgery actually took place, whether it caused any loss to the complainant and whether there is the requisite mens rea are the questions which are yet to be determined. The Magistrate has not found clear material to proceed against the accused. Even a case for summoning has not yet been found. While a transaction giving rise to cause of action for a civil action may also involve a crime in which case resort to criminal proceedings may be justified, there is judicially acknowledged tendency in the commercial world to give colour of a criminal case to a purely commercial transaction. This Court has cautioned against such abuse.
33. In Indian Oil Corpn v. NEPC India Ltd., it was observed: ( SCC pp. 748-49,para 13) "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert CR No: 440237/2016 Page No.24 of 30 DOO 30.01.2017
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CR No: 440237/2016 purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law 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. In G. Sagar Suri v. State of UP this Court observed: ( SCC p. 643, para 8) '8. ......It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
34. In Pepsi Foods Ltd. v. Judicial Magistrate, it CR No: 440237/2016 Page No.25 of 30 DOO 30.01.2017
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CR No: 440237/2016 was observed: ( SCC p. 760, para 28) "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
31. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police CR No: 440237/2016 Page No.26 of 30 DOO 30.01.2017
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CR No: 440237/2016 authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted.
32. Even though Section 156 (3) Cr.P.C. empowers the Magistrate to issue directions to the police to register the FIR but this provision cannot be permitted to be misused by the complainant and the Magistrate is to apply his mind to the fact of each case before passing orders under Section 156 (3) Cr.P.C. and not to act in a mechanical manner.
33. In M/s Skipper Beverages Pvt. Ltd., Vs. State, 2001 IV AD Delhi 625, Hon'ble High Court of Delhi was pleased to hold:
7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code.
The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not CR No: 440237/2016 Page No.27 of 30 DOO 30.01.2017
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CR No: 440237/2016 be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to held the complainant. The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code as held by Apex Court in 20001 (1) Supreme Page 129 titled "Suresh Chand Jain Vs. State of Madhya Pradesh & Ors."
8. In case Arvindbhai Rajivbhai Patel Vs. Dhirubhai Sambhubhai reported in 1998(1) Crimes 351, an Hon'ble Judge of Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that Magistrates should act under Section 156(3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusations.
9. In the case in hand the allegations in regard to the theft of the cheque could be proved by oral or other evidence. The allegations regarding the forging of the cheque by typing out certain portions therein could also be proved by summoning the original cheque from the CR No: 440237/2016 Page No.28 of 30 DOO 30.01.2017
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CR No: 440237/2016 bankers and leading required evidence. Therefore, it was not at all a case where the police assistance was required for breaking the case and discovering some evidence which the complainant was unable to collect of his own. This Court, therefore, is of the considered view that learned Trial Judge was justified in declining the request of the complainant to issue directions to Police under Section 156(3) of the code as prayed.
34. The allegations of the complainant( revisionist herein) are that his blank signed cheques were stolen by the respondents and respondents have filled the contents of the said cheque and cheque bearing no. 075279 was presented to the bank and after dishonour of the cheque, case under Section 138 NI Act has been filed against the complainant.
35. In the impugned order dated 20.06.2015, Ld. MM-01 has arrived at conclusion that accused persons ( respondent No. 1 to 3 herein) are known to the complainant ( revisionist herein) and all evidence is within the reach of complainant and there is no other evidence which is to be collected and the allegations can be proved by the complainant himself by leading pre- summoning evidence.
36. In view of the aforesaid discussions, the authorities CR No: 440237/2016 Page No.29 of 30 DOO 30.01.2017
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CR No: 440237/2016 as relied by the revisionist are not applicable to the facts of the present case.
37. Looking at the nature of allegations as made in the complaint filed before Ld. MM, I am of the view that judicial discretion has been exercised by Ld. MM properly and in accordance with provisions of law. I find no infirmity in the impugned order dated 20.06.2015. The revision petition is devoid of merits and same is dismissed.
38. TCR be sent back to the court concerned along with copy of this order. Revision file be consigned to record room.
Announced in the open Court (HARISH DUDANI) today on 30.01.2017 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
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