Delhi District Court
Sachin Sehgal vs The State (Nct Of Delhi) on 15 January, 2014
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
(I) Criminal Revision No. 170/13
ID No.: 02406R0137432013
Sachin Sehgal
s/o Sh. Jagdish Sehgal
R/o C1004, Sispal Vihar,
Sector49, Sohna Road,
Gurgaon, Haryana. .... Petitioner.
Versus
The State (NCT of Delhi). .... Respondent.
(II) Criminal Revision No. 215/13
ID No.: 02406R0180232013
Rohit Gupta
son of Sh. Raja Ram Gupta
R/o H. No. 18, Chinar Drive,
DLF Chhattarpur,
New Delhi. .... Petitioner.
Versus
The State (N.C. T. of Delhi)
New Delhi. .... Respondent
Instituted on: 31.05.2013 & 17.07.2013 respectively.
Judgment reserved on: 15.01.2014
Judgment pronounced on: 15.01.2014
Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 1 of 19
J U D G M E N T
1. Both these revision petitions challenge the same order which was passed on 15.04.2013 by Sh. Sandeep Garg, Metropolitan Magistrate (South)07 on the file of criminal case registered vide no. 1547 of 2012 on the basis of charge sheet submitted on 07.01.2012 on conclusion of investigation into FIR No. 187/2011 under Sections 406/506/34 IPC Police Station Mehrauli.
2. In the aforesaid State case, petitioner Rohit Gupta (of Criminal Revision No. 215/13) is shown as accused no.1 (A1). The petitioner Sachin Sehgal (of Criminal Revision No. 170/13) is shown in the same case as accused no.2 (A2). Both were summoned by the Metropolitan Magistrate vide order dated 07.01.2012, as per which cognizance was taken on the charge sheet for offences under Sections 406/506/34 IPC.
3. Vide the impugned order, the Magistrate found charge to be made out for offence under Section 406/34 IPC against both the petitioners. Vide the same order, charge under Section 506 IPC was found additionally made out against the petitioner Rohit Gupta. Aggrieved against the said view taken by the learned Magistrate, the petitioners have come through the revision petitions at hand.
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4. Since they arise out of the same case and give rise to common questions of fact and law, the two petitions have been clubbed and heard together and are being disposed of through this common judgment.
5. On notice, respondentState has appeared to contest the revision petitions on the basis of trial court records.
6. I have heard Sh. Falak Mohammad, advocate for the petitioner Rohit Gupta, Sh. Robin Tyagi, advocate for the petitioner Sachin Sehgal and Sh. B. S. Kain, Additional Public Prosecutor for the state. I have gone through the trial court record.
7. It may be mentioned here that the complainant of the case had also filed a complaint case under Sections 200/199/156(3) Cr.P.C. alleging offences under Sections 406/420/506/34 IPC on the same set of facts on 01.02.2011. The said complaint case registered as No. 22/2011 and has also been kept pending by the Magistrate parallel to the proceedings in the State case. This, even when vide order dated 26.04.2011, the magisterial court had directed investigation into the alleged offences, pursuant to which the police had registered the FIR of the case at hand on 27.04.2011 (though founding it on the basis of complaint dated 15.03.2011 addressed to the Commissioner of Police, Delhi). Strictly speaking, Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 3 of 19 when the matter agitated through the private complaint (as presented on 01.02.2011) was subject matter of investigation with the police (to the knowledge of the Magistrate), the proceedings in the complaint case should have been stayed under Section 210 Cr.P.C. Be that as it may, the file of the said criminal complaint case has also been called for and perused.
8. The complainant of the matter at hand is one Mr. Islamuddin @ Munna. Over the period, he had made a number of complaints, reference to each of which is necessary. The record would show that on 22.12.2010, DD no. 17A, was recorded in police station Mehrauli (hereinafter referred to as "the police station") at 01.21 PM on the basis of information which appears to have been received through police control room (PCR) on the wireless network. The matter pertained to some dispute at gate No. 3 of Tivoli Garden. The same was entrusted to ASI Girish for inquiry. ASI Girish returned to the police station and logged DD no. 46B at 05.15 PM. According to this daily diary entry, when ASI Girish had reached at gate No.3 of Tivoli Garden, he was met by the complainant, who had told him that he had given certain utensils and open oven (bhatti) on rental basis but the same were not being returned nor hire charges being paid. The DD entry indicates that Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 4 of 19 ASI Girish had advised the complainant to give his complaint in writing.
9. On 22.12.2010, the complainant addressed a communication to SHO PS Mehrauli. This handwritten complaint running into two sheets is part of the trial court record. It is indicated that DD no. 67B was recorded thereupon at 08.40 PM. According to the complaint, the complainant was in the business of supplying utensils (to hotel industry). He claimed that on 28.11.2010, on telephonic communication from A2, he had supplied certain utensils on rental basis to Tivoli Garden against proper receipts. He claimed he had been paid the charges for the period 28.11.2010 to 10.12.2010 but his dues for the subsequent period, i.e. 11.12.2010 to 22.12.2010 were withheld. He alleged that he had contacted A2 on 22.12.2010 for the charges to be paid and his utensils to be returned but the same was complied with as neither the amount was paid nor utensils returned. Instead, he was allegedly told that his articles had been confiscated and he was also cautioned that he would not be allowed to enter into Tivoli Garden with the security guards having been instructed that if he were to enter into the premises he would be implicated in case of theft.
10.Apparently, no action was taken on the complaint lodged vide DD Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 5 of 19 no. 67B on 22.12.2010. The complainant filed a criminal complaint under Sections 200/199/156(3) Cr.P.C. in the court of Additional Chief Metropolitan Magistrate (South) on 01.02.2011, gist of which is substantially the same as was the case set up through the complaint presented on 22.12.2010. What were, however, pleaded as additional facts are the allegations concerning role of A1( described as managing director) and one Mr. Vikas B. Lal (described as general manager) in M/s Tivoli Garden Resort & Hotel, they having been impleaded as respondents no. 1 & 3 respectively. A2, concerning whom some averments had been made in the earlier complaint, was shown as respondent no.2 (described as executive chef). In the complaint presented before the Additional Chief Metropolitan Magistrate, the complainant referred to supply of certain articles, utensils etc. on several dates including 28.11.2010, 29.11.2010, 02.12.2010, 04.12.2010, 10.12.2010, 11.122010 and 12.12.2010.
11. The file of the private complaint case indicates that the Metropolitan Magistrate called for report from the SHO. Some reports were received resulting in certain further directions to the SHO and the superior police officers. While the complaint case was still at initial stages, the complainant addressed a complaint Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 6 of 19 dated 15.03.2011 to the Commissioner of Police. This complaint eventually reached SHO of the police station on 21.03.2011. The sum and substance of the allegations made in this complaint are virtually the same as were stated in the complaint submitted before the Additional Chief Metropolitan Magistrate on 01.02.2011.
12.On 26.04.2011, the Additional Chief Metropolitan Magistrate observed in the private complaint case that police investigation was necessary. He, thus, directed the SHO of concerned police station to register FIR and investigate. This direction resulted in endorsement in the hand of SI Vishal on the complaint dated 15.03.2011 (which had been addressed to the Commissioner of Police) and registration of the FIR for offence under Section 406 on 27.04.2011
13. The investigation was concluded and charge sheet was submitted before the Magistrate on 07.01.2012 seeking trial of A1 and A2. As per the charge sheet, sufficient evidence could not be brought out against Mr. Vikas B. Lal (third person against who allegations had been made and action was sought through the private complaint case referred to earlier). Neither the complainant nor the police has pressed for action against Mr. Vikas B. Lal till date. The Magistrate took cognizance and issued process under Section 204 Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 7 of 19 Cr.P.C. only against A1 and A2.
14.The Magistrate considered the question of charge on 15.04.2013. The main contention raised before him on behalf of the two petitioners was that there was no evidence of entrustment and, therefore, charge under Section 406 IPC could not be held to be made out. In rejecting this contention, the Magistrate has referred, interalia, to the allegations that the order for supply of utensils was placed by A2. He also referred to the statements of three witnesses namely Mobin Khan, Jairath and Amit Kumar whose version indicates that after the dispute arising, instructions had been issued that the complainant was not to be permitted to take away any utensils that had been earlier supplied. It may be mentioned here that as per the material on record the said three witnesses Mobin Khan, Jairath and Amit Kumar were security guards deputed at the relevant time by security agency M/s Superior Security, a fact confirmed in writing by Mr. Khushi Ram Yadav, for and on behalf of the said agency, on 18.07.2011 in answer to the notice under Section 91 Cr.P.C. issued by investigating officer on 18.07.2011 during the investigation.
15.During investigation, the complainant was also examined under Section 161 Cr.P.C. and called upon to furnish proof of supply of Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 8 of 19 utensils. He is shown to have handed over photo copies of 9 receipts which appear on five leaves (at page nos. 155 to 163 of the trial court record). All these receipts appear to have been prepared in hand and seem to bear endorsements under the signatures of either of the said three security guards. Barring one of the said receipts, all of them also bear the round seal impression of Tivoli Garden Resort indicating the date and time of entry of the articles into the premises. Some receipts indicate only entry of articles while in some others the security guard in question would also add the expression "received" indicating formal acknowledgement of delivery.
16.Arguments were raised before the Magistrate, as indeed before this court in the revisional jurisdiction, as to the discrepancies between the above mentioned receipts. It does appear that there are discrepancies between the said documents, in that there are more than one receipt bearing the same date and concerning the same set of articles, though differently worded. The Magistrate declined to give any credence to this factor by terming them as minor discrepancies.
17. The Magistrate found the petitioners liable for prosecution for the offences mentioned earlier observing, interalia, that the petitioner Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 9 of 19 Rohit Gupta (A1) being the managing director of the company was "deemed" to be in possession of the utensils.
18. The law on the question of consideration of charge is well settled. If the criminal court, on consideration of the material submitted with the charge sheet finds that a grave suspicion exists about the involvement of the accused in the crime alleged, it is expected to frame the charge and put the accused on trial. At such initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not required to be meticulously judged, nor is any weight to be attached to the probable defence of the accused.
19.In the case of State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 Hon'ble Supreme Court observed as under :
"It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 10 of 19 that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
XXXXX Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.
XXXXX If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it s so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227."
20. In Union of India Vs. Prafulla Kumar Samal 1979 Crl. L. J. 154, Hon'ble Supreme Court made the following observations Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 11 of 19 regarding the test to be applied at the stage of consideration of the case for charge :
"Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
The test to determine a primafacie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
In exercising his jurisdiction under Section 227 the Judge which under the present Code is senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
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21.Similar observations were made in State of M.P Vs. S. B. Johari 2000 Crl. L. J. 944(SC) in the following words :
"The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial."
22. In P. Vijayan Vs. State of Kerala 2010 Crl. L. J. 1427 while observing that the criminal court is not a mere post office to frame the charge at the behest of the prosecution, Hon'ble Supreme Court has observed that the court is required to exercise judicial mind to the facts of the case in order to determine whether a case for trial has been made out or not. In this context, the following observations indicate the manner of assessment :
Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 13 of 19 "In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of S. 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
23. I have given my considered thoughts to the submissions made on both sides in light of material on record.
24.The petitioners have been charged with offence of criminal breach of trust punishable under Section 406 IPC. The offence of criminal breach of trust is defined in Section 405 IPC which reads as under: "405 Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 14 of 19 property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits, "criminal breach of trust".
X X X "
25.Noticeably, the entrustment of the property which is subject matter of gravamen of such charge is an essential ingredient. The learned Additional Public Prosecutor has fairly conceded that in the entire evidence presented before the Magistrate, there is not a shred or iota of material which would support the allegations of entrustment. In fact, the complaint no where mentions that the complainant had entrusted the articles at any stage to either of the two petitioners.
26.It is clear from the material on record that M/s Tivoli Garden Resorts is a company. The premises of Tivoli Garden Resorts falls in the area of Police Station Mehrauli. It is a large complex. A number of employees are engaged by the company which include the two petitioners.
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27.As has been shown from record by the learned counsel for the petitioners, when called upon during the investigation, Mr. Mukesh Chaudhary, authorised signatory of the company had submitted letter dated 28.05.2011 indicating that there has never been a direct contract or agreement between the company and the complainant at any stage. The company, for the purposes of running its business, has outsourced certain businesses. The agencies, thus engaged include a contractor M/s Annapurna Chaat, which is given a contract of chaat vendor. The company's version has been that the supply of utensils would always be a matter between the vendor and the complainant. One could have ignored the above as a material which could be an after thought, but for the fact that on 27.12.2010, the General Manager of the company had submitted a complaint against the complainant of the case before the SHO Mehrauli accusing him of involvement in theft of gas cylinders from the premises of the company.
28.The order for supply of utensils may have been communicated by A2 on 28.11.2010 as alleged by the complainant. But, this does not mean that A2 would automatically become the recipient of the articles. The receipts at the most show entry of certain articles into the premises of Tivoli Garden. The person(s) to whom the articles Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 16 of 19 were actually handed over, or entrusted, was required to be clearly spelt out. In the complaint, the complainant has kept this part of his allegation vague and unspecific. Same applies to the entry of articles/utensils on all the above mentioned dates as reflected by the various receipts. In criminal law, there is no vicarious liability.
It is not permissible to invoke "deeming" as assumed by the Magistrate. It is not fair or just to impute to the petitioner Rohit Gupta that he would be "deemed" to be in the custody or control of the articles only because some such articles actually entered the premises of the company in which he has been working.
29.The learned Magistrate has, thus, wrongly assumed the element of entrustment against the two petitioners. The statements of the three security guards, as indeed that of the complainant, no where imputes any such entrustment specifically to these two individuals.
The absence of evidence about entrustment itself is sufficient to hold that the charge under Section 406 IPC could not have been framed.
30.I am also not satisfied with the conclusions reached by the learned Magistrate for framing charge under Section 506 IPC against A1.
The premises of the Tivoli Garden is a private place in the control of the company which owns it. The owner of the premises is Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 17 of 19 always within his right to restrict or regulate entry of visitors. It has the right to prohibit the entry of the person who it finds to be working against its interests treating him persona non grata. There is no right of entry into private place of this nature. The caution addressed to the complainant essentially was that he being not welcome would not be permitted to enter into the premises. The allegations of the caution being qualified by a threat that he would be implicated in a theft case, in these circumstances, is per se not credible.
31.For the foregoing reasons, the impugned order cannot be sustained.
The revision petitions are allowed. The impugned order is set aside. Both the petitioners are discharged.
32.The counsel for the petitioners submitted that their sureties are willing to continue for the purposes of Section 437A Cr.P.C. The bail bonds shall accordingly remain valid for a further period of six months.
33.This judgment has been passed on the file of criminal revision petition no.170/2013. The reader is directed to place an attested copy of the judgment on the file of the connected criminal revision petition no. 215/2013.
34.The trial court record along with a copy of this judgment be sent Crl. Rev. Nos. 170/2013 & 215/2013 Page No. 18 of 19 back.
35.The files of the criminal revision petitions be consigned to record room.
Announced in open Court today on this 15th day of January, 2014. (R.K. GAUBA) District & Sessions Judge (South) Saket/New Delhi.
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