Delhi District Court
Manmeet Singh vs The State on 12 May, 2017
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Criminal Revision No. 32/2017
CNR No. DLNW01-001926-2017
Manmeet Singh
S/o late S. Tarvnder Pal Singh,
Chamber no. 1323, Chamber Complex,
Rohini Court, Delhi-110085
...............Revisionist
Versus
1. The State
........ Respondent No. 1
2. Kunal Sharma
Cell Guru, G-25,
Vikas Surya Mall,
M2K Rohini, Delhi
........ Respondent No. 2
3. Pankaj
At present at MP-8,
Pitam Pura, Delhi.
(Old Address:-A28/5, Kamla Nagar,
Near Bank of India, Delhi
........ Respondent No. 3
Date of allocation of revision: 01/03/2017
Date of conclusion of arguments: 12/05/2017
Date of judgment: 12/05/2017
Present: Sh. Manmeet Singh, Revisionist.
Sh. K.D. Pachauri, learned Substitute Addl. PP for
State/respondent No.1.
JUDGMENT
1 Revisionist is a practicing Advocate. He has taken exception to impugned order dated 05/10/2016 whereby his request for directing investigation Revision Petition No. 32/2017 (Manmeet Singh Vs State & Ors) page 1 of 7 u/s 156(3) Cr.P.C. did not find favour with the learned Trial Court.
2 Trial Court record has been requisitioned.
3 I have carefully gone through the same and given my thoughtful consideration to the contentions made by the revisionist.
4 As per revisionist, he had purchased one mobile phone i.e. I-phone 5S (IMEI number 3S2044060263045) on 06/10/2014. It was purchased from respondent No. 2 Kunal Sharma against sale consideration of Rs. 37,500/-. Such amount was duly paid to respondent No.2. According to revisionist, at the time of such purchase, he made another payment of Rs. 3,700/- vide separate receipt. Such amount was towards insurance of said mobile for a period of two years. According to him, respondent No.3 Mr. Pankaj was owner of such insurance firm. The insurance period of said mobile phone was for two years as per the terms of insurance.
5 According to revisionist, during the warranty period, screen of the mobile phone got damaged and the glass of the mobile phone developed cracks and therefore, he made call to respondent No. 3 on his mobile phone on 13/01/2016 and requested him to repair or replace the same. He also went to MP- 8, Pitam Pura, Delhi on 15/01/2016 and requested for repair/replacement as the mobile phone was within the warranty period but respondent No. 3 refused to honour the warranty/insurance and claimed that he was not liable while admitting that the 'insurance receipt' was issued from his office. Revisionist reported the matter to the police. However, since police did not take any action, he filed a complaint u/s 200 Cr.P.C. and also prayed that the matter may be referred to police for investigation.
6 Learned Trial Court did not find it to be a fit case where investigation was required. It observed that the matter pertained to contractual transaction and moreover, the evidence, on which, the complainant was relying upon, was well Revision Petition No. 32/2017 (Manmeet Singh Vs State & Ors) page 2 of 7 within his knowledge and control and no material evidence was required to be collected or examined and accordingly, the learned Trial Court took cognizance of the matter and fixed the matter for pre-summoning evidence.
7 Sh. Manmeet Singh, revisionist, has contended that the learned Trial Court did not appreciate the facts in its entirety and that it was a fit case where investigation should have been ordered as the 'custodial investigation' was must because of the fraud played upon him. He has contended that since he was able to disclose a cognizable offence, the Court should not have, even otherwise, refused to give direction to police to register an FIR. Revisionist has also relied upon Lalita Kumari Vs Government of U.P. & Ors., IV (2013) CCR 369 SC. On the strength of the aforesaid judgment, he has argued that registration of FIR was mandatory u/s 154 Cr.P.C., if the information disclosed commission of cognizable offence. Said case essentially related to registration of FIR u/s 154 Cr.P.C. with incidental reference to Section 156 Cr.P.C. also. By virtue of said judgment given by Constitutional Bench of Hon'ble Apex Court, it was held that registration of FIR u/s 154 Cr.P.C. was mandatory, if the information disclosed commission of a cognizable offence. It also held that if the information received did not disclose commission of a cognizable offence, a preliminary enquiry might be conducted to simply ascertain whether any such cognizable offence stood disclosed or not. If it stood disclosed, FIR should be registered or else the complaint should be closed and the copy of such closure should be supplied to informant forthwith. Even as per said judgment, preliminary enquiry might be permissible in matters related to commercial offences.
8 Undoubtedly, in the case in hand, revisionist had first lodged report with the police but police did not take any action and when the Court called for action taken report, it was informed by the police that the matter related to consumer court and no criminal offence was made out. Such report given by SI Lichman of PS South Rohini is dated 27/02/2016.
9 Be that as it may, fact remains that any person who feels that he has Revision Petition No. 32/2017 (Manmeet Singh Vs State & Ors) page 3 of 7 been wronged and that there is a commission of an offence, has two remedies. Such aggrieved person can either go to the police with request for registration of FIR. Or, he can come to Court with a complaint u/s 200 Cr.P.C. and can lead evidence before the court. In the present case, the revisionist has eventually chosen the second forum as he filed a complaint u/s 200 Cr.P.C.. Undoubtedly, he also prayed for investigation by the police and moved application u/s 156(3) Cr.P.C.,but keeping in mind the peculiar facts of the present case, the Court, instead of ordering investigation, directed him to lead evidence before the Court.
10 I have carefully gone through the averments made in the complaint. Alongwith the complaint, complainant/revisionist annexed two letters which he had addressed to the police. These letters are dated 15/01/2016 and 20/01/2016. He also annexed photocopy of invoice no. 16926 dated 06/10/2014. Such invoice shows sale of I-phone 5s to him by Cell Guru. He has also relied upon one receipt bearing No. 59386 dated 06/10/2014 purportedly issued by M/s Platinum Mobilecare Pvt. Ltd. This receipt is claimed as 'insurance note' whereby, policy was issued in favour of Manmeet Singh, valid from 06/10/2014 to 06/10/2016 i.e. for a period of two years. To me, it would rather be a case of extended warranty as well as insurance against theft etc. However, detailed terms of policy were not placed on record and it is not clear whether accidental physical damage is also covered in warranty or not. Sh. Singh, however, showed the original insurance receipt. Such original receipt also contains terms and conditions on the reverse and these terms and conditions also include what is covered and what is not covered. These are as under:
What is covered:- Plan only covers devices for 1 or 2 years (depending on the plan chosen by customer) against accidental damage (water damage and internal physical breakdown) & in 2 nd year (only in case of 2 year plan) extends the manufacturer warranty by one year from 365 th day of purchasing the plan. Theft covering is for 1 st year only.
What is not covered:- Theft or damage of battery, charger, hands-free, mounting kits, memory card, external aerials, any damage due to moisture/rain and natural calamities. Other specific exclusions can be found below. Negligence Revision Petition No. 32/2017 (Manmeet Singh Vs State & Ors) page 4 of 7 is not covered. Body cover is not covered. Loss of data in device and memory card is not covered. Damages caused by animals/pets are not covered.
11 Said aspect is also very material and it would be required on the part of the revisionist to clearly show that the damage in question was covered within the extended warranty and that the concerned service provider/insurance company with a deliberate intention to dupe and defraud the revisionist avoided the payment. It has been argued by Sh. Singh that since his mobile phone got damaged during the insurance period, the concerned firm should have automatically either repaired or replaced the mobile. He has argued that such insurance receipt has to be assumed a fraudulent document as he was made to part with a sum of Rs. 3,700/- as 'premium amount'.
12 I am, however, of the opinion that the present case does not require any investigation as such. Wherever, there is a insurance policy and the concerned service provider does not honour the terms and conditions as per insurance note or extended warranty, it has to be, generally, understood as 'breach of contract' giving rise to a civil action and, normally, the matter may not even come under the domain of criminal jurisdiction. Moreover, it needs to be firmly established as to what was the role of the alleged accused persons. As far as respondent No.2 Kunal Sharma is concerned, he happens to be the mere seller of I-phone. Respondent No. 3 Pankaj has been arraigned as accused in his individual capacity. As per the information available on internet, it seems that M/s Platinum Mobilecare Pvt. Ltd. is a private company which was incorporated on 26/09/2014 and is having its office at A-28/5, Kamla Nagar and its Directors are Pankaj Dod and Vanita Maheshwari. Merely because one Pankaj Dod happens to be the Director of said company would not ipso facto make him accused and, therefore, the complainant needs to lead cogent and inspiring evidence before the Court indicating that he had been duped and that such Mr. Pankaj is vicariously liable. Nonetheless, since the revisionist feels that there was a fraudulent misrepresentation, the learned Trial Court, instead of dismissing the complaint, has given him a full chance to substantiate the allegations and has accordingly Revision Petition No. 32/2017 (Manmeet Singh Vs State & Ors) page 5 of 7 taken cognizance and has listed the matter for pre-summoning evidence.
13 Any Magisterial Court is required to exercise its discretion in such type of matters in a very judicious manner. Such power is not to be exercised in a mechanical manner. The police is normally directed to register FIR only when it is found that it may not be possible for complainant to collect and produce the evidence before the Court. Guidelines have been issued by Hon'ble High Court of Delhi in the case of Subhkaran Luharuka & Anr. Vs. State & Anr. 2010 (3) JCC 1972 and even according to such guidelines, court needs to be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which was neither in the possession of the complainant nor could be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter was such which called for investigation by a State agency.
14 I would mince no words in commenting that even if allegations made in the complaint disclose commission of cognizable offence, in such eventuality also, Magisterial Court is not bound to direct investigation. Complainant cannot, as a matter of right, claim that since he has been able to disclose commission of cognizable offence, court has no option but to ask police to register FIR. Similar proposition came up for consideration before the Apex Court in Raghu Raj Singh Rousha V/s Shivam Sundaram Promoters Private Limited & Another, (2009) 2 Supreme Court Cases 363 wherein it was held that a Magistrate was not bound to exercise his jurisdiction under Section 156 (3) Cr. P. C. The Court held that where the Magistrate, after applying the mind, comes to the conclusion that the dispute was a private dispute in which police investigation was not necessary, he may direct examination of the Complainant and his witnesses in order to initiate and complete the procedure laid down under Section XV of the Code.
15 On a careful perusal of the trial court record, I have no hesitation in holding that learned trial court has come to a right decision by not ordering investigation.
Revision Petition No. 32/2017 (Manmeet Singh Vs State & Ors) page 6 of 7 16 I do not find any infirmity or impropriety in the impugned order. Revision petition is accordingly dismissed. I must hasten to supplement that if during recording of pre-summoning evidence, learned trial court feels that there is any real requirement of ordering investigation, it will be at liberty to resort to its power envisaged under Section 202 Cr.P.C.
17 A copy of this order be sent to learned trial court along with trial court record.
18 File pertaining to revision petition be consigned to Record Room.
Announced in the open Court (MANOJ JAIN)
On this 12th day of May 2017 Addl. Sessions Judge (FTC)
North-West District, Rohini: Delhi
Revision Petition No. 32/2017 (Manmeet Singh Vs State & Ors) page 7 of 7