Delhi District Court
India Flysafe Aviation Ltd vs State (Nct Of Delhi) on 27 February, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/
SPECIAL JUDGE(NDPS)
DWARKA COURT, NEW DELHI
Crl. Revision No.26/12
India Flysafe Aviation Ltd.
Through its Authorized Representative
Mr. Jugesh Ahuja
Having its Corporate/operation office at 313
G+5 Building
IGI Airport, New Delhi
....Revisionist
Vs.
State (NCT of Delhi)
...... Respondent
Revision Filed on :06.02.2012
Reserved for order on: 23.02.2012
Order pronounced on : 27.02.2012
ORDER
The present revision petition u/s 397 Cr.PC has been preferred for setting aside the order dated 23.11.2011 passed by Sh. Rajesh Kumar Goel, Ld. ACMM in CC no. 4/1/11 titled as India Flysafe Aviation Ltd. Vs. Shobhit Srivastava & Ors. India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.1 of 18 whereby an application u/s 156(3) Cr.PC for registration of F.I.R against the accused Shobhit Srivastava had been declined.
2. Briefly stated the facts for giving rise to this revision petition are that the revisionist had filed a complaint case against the accused alongwith an application u/s 156(3) of Cr.PC for getting a case registered against the accused Shobhit Srivastava and Rajesh Dubey U/s 408/418/420/467/468/471 r/w sec.120B/34 IPC before the Ld. Trial court. It has been alleged in the complaint that complainant is a group concern of M/s Jindal Steels & Power Ltd (JSPL) and is engaged in the business of nonscheduled Air Craft Operations and accordingly imports aircrafts, its equipments, parts and other consumables. Accused no.1 Shobhit Srivastava was appointed as Dy.Technical Manager w.e.f 01.12.2008 and he was responsible for handling the works, related to Logistic, parts procurement for the company and the work of liasoning with different agencies. It is further stated that JSPL entered into a contract with Agusta S.P.A, a company based in Italy, for import of AW139 Helicopter. Accused no.1 was given responsibility for handling the shipment of the said Helicopter from Milan to India. For this purpose, services of M/s C.G.Logistic represented by Sh Rajesh Dubey, accused no.2 were India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.2 of 18 to be taken for the consideration of US $ 4,15,000 (Rs. 1,95,05,000/). A purchase order dated 3.3.2010 was placed with accused no.2 and advance payment of Rs.97,52,500/ was made to them. The aforesaid charges were revisable subject to fluctuation in fuel prices only. It has further been alleged that accused no.1, in connivance and conspiracy with accused no.2, fraudulently revised the cost of shipment to Rs.2.95 crores from the original agreed price of Rs.1.95 crores vide proforma invoice dated 13.09.2010 and dishonestly and fraudulently got approved and released a further payment of Rs.1,97,47,500/ to accused no.2. It is further alleged that on subsequently inquiry it came to light that there was actual no escalation in fuel prices and the said imaginary hike was only the result of the conspiracy between accused no.1 and accused no.2.
3. It has further been alleged that in furtherance of the said criminal conspiracy with accused no.1, accused no.2 raised a further bill in the sum of Rs.3,02,38,185/ against certain services knowing fully well that such payments were never the part of the purchase order. Accused no.1 misused his position and obtained the approval by placing the forged and fabricated documents in the invoice dated 24.9.2010. Some of the charges were highly India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.3 of 18 escalated. Both the accused persons submitted forged airway bills to the complainant company claiming excess amount on account of air freight. Thus accused no.1&2 entered into criminal conspiracy to cheat the complainant and have committed forgery and dishonestly submitted forged bills/invoices by raising the actual amount of air freight. A complaint was lodged to the SHO/DCP concerned but no action was taken by them. Hence the complainant/revisionist preferred the complaint case alongwith an application u/s 156(3) Cr.P.C for registration of FIR against the accused persons. Upon receipt of complaint, Ld. Trial court called for status report which was filed on 17.10.2011. Thereafter, after hearing the arguments on the application, Ld. MM had declined the request for referring the matter to Police for investigation u/s 156(3) Cr.PC and fixed the case for presummoning evidence. Feeling aggrieved by the said order, the present revisionist has preferred the present revision petition.
4. The present revision petition was received by this court on 06.02.2012 and on 23.02.2012 trial court record was received and on the same day I have heard the arguments on this revision petition from the Ld. Counsel for the revisionist. India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.4 of 18
5. During the course of arguments it has been submitted by the Ld. Counsel for the revisionist that the ld. Trial court has failed to take into consideration any of the allegations and supporting documents relating to fraud and cheating. During the course of arguments, Ld. Counsel has drawn my attention on various bills/invoices and documents available one file and submitted that the Ld. Court has not appreciated that investigation in the present matter is necessary and inevitable to recover original airway bills from the custody and possession of accused no.2, recover the originals of forged, fabricated and manipulated airway bills from the custody and possession of accused no.2, compare such original airway bills with the originals of forged airway bills, get checked/tested the forged documents and get identified the author of forgery from FSL, unearth the criminal conspiracy between the accused persons responsible for causing wrongful loss to the petitioner, identify other unknown accused persons, ascertain the actual value of the invoices/purchase orders/airway bills, ascertain and recover the misappropriated amounts from accused no.1&2 and interrogate and record statements of the persons connected. Ld. Counsel has further argued that recovery of each document/evidence is necessary and essential to identify and establish the forgery as well as the use of India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.5 of 18 forged documents to commit the offence of cheating, fraud and criminal breach of trust. It has been submitted that Ld. Trial court has erred in law by inferring that all the documents to substantiate the allegations in the complaint are in possession of the petitioner and ignored the specific allegation that almost 30 other airway bills, in respect of which forgery and forgery have also been committed by accused no.2 in collusion with accused no.1 and these are neither in possession of petitioner nor could be obtained by the petitioner from the concerned airline/carrier. Ld. Counsel has submitted that the allegations in this case are serious and petitioner/revisionist itself may not be in a position to collect and produce the evidence to establish the commission of offence. It is further submitted that custodial interrogation of accused is necessary and only after registration of FIR and investigation the true facts can be brought before this court. It has been submitted that the Ld. Trial court has prejudged the allegation that too either without getting done the investigation from the police or without recording the pre summoning evidence that matter pertains to commercial transaction. It has further been argued that Ld. Trial court has misapplied the judgment of Hon'ble Supreme Court of India in the matter titled M/s Indian Oil Corporation Vs. M/s NEPC India Ltd., AIR 2006 SC 2780 as the present case is the India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.6 of 18 case of fraud and cheating by forging the documents while the facts of said case related to a civil dispute, which was given the colour of criminality. It has further been submitted that Ld. Trial court has erred in relying upon the action taken report dated 17.10.11 as the police has neither collected the actual airway bills from the concerned airline/custom authorities nor forged airway bills from the accused nor sent such documents to FSL for opinion. He has stated that police did not place any statement or document alongwith the action taken report. Ld. Counsel for the revisionist has drawn my attention on one admission made by accused no.1 in writing as regards to the misdeeds and collusion and criminal conspiracy with accused no.2. Ld. Counsel for the revisionist has drawn my attention on the case laws Radha Vs. State, 179 (2011) DLT 810, Acharya Arun Dev Vs. State, 2005(2) SCC 897, Amit Khera Vs. Govt of NCT of Delhi & Ors., 2011 (1) 129 Del. And Mohd. Yusuf Vs. Afaq Jahan, 2006(Cri LJ 788. It has been prayed that the impugned order dated 23.11.2011 passed by the Ld. Trial court in complaint case no.4/1/11 titled India Flysafe Aviation Ltd. Vs. Shobhit Srivastava & Ors may kindly be set aside.
India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.7 of 18
6. Ld.APP for the State has argued that Ld. MM has passed the order after considering each and every document and averments made in the complaint. The order passed by the Ld. MM does not call for any interference by this order as the order does not suffer from any illegality or impropriety. She has stated that the revision petition may kindly be dismissed with exemplary cost.
7. In consideration of the arguments advanced by the Ld. Counsel for the revisionist, I have also perused the trial court file and the provisions contained in sec. 156(3) Cr.PC.
156. Police Officer's Power to investigate cognizable case (1) Any officer in charge of a police station may, without the order of the 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 proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.8 of 18 was one which such officer was not not empowered under this section to investigate.
(3) Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.
The words `as abovementioned' obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.
8. Section 156 (3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr .P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
9. The power of the Magistrate to order further investigation under Section 156 ( 3 ) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. A.C. Saldanna AIR 1980 SC 326.
India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.9 of 18
10. In my opinion Section 156 ( 3 ) Cr .P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 ( 3 ) Cr .P.C., though briefly worded, in my opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
11. It is wellsettled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. Section 190. Congnizance of offences by Magistrate (1) Subject to the provisions of this chapter, any magistrate of the India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.10 of 18 first class, and any magistrate of the second class specially empowered in this behalf under sub section (2), may take cognizance of any offence: a. upon receiving a complaint of facts which constitute such offence;
b. upon a police report of such facts;
c. upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub section (1) of such offences as are within his competence to inquire into or try.
12. In case law Ashok Vs. State of U.P., 1994 Cr.LJ 2132 (All) it has been observed that : 'The Magistrate has the power to take congnizance u/s 190(i)
(b), if he is satisfied that there is sufficient material to make out a prima facie case against the accused irrespective of the police report to the contrary but straightway he cannot take cognizance on the basis of the protest petition, duly supported by the affidavits of the witnesses, without following the procedure prescribed under Chapter XV for a complaint case and since in the instant case Magistrate has not recorded the statements of the complainant and the witnesses before passing the orders, taking cognizance on protest petition, the said order is liable to be set aside. Thus, India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.11 of 18 whenever a protest petition is filed it is to be treated as a complaint and the Magistrate will have to proceed in accordance with the procedure laid down in sec.200, 202 and 204 Cr.PC'.
13. The information under section 154 of Cr.P.C is generally known as F.I.R. It is pertinent to see that the word ''first'' is not used in Cr.P.C in section 154 of Cr.P.C. Yet, it is popularly known as FIRST INFORMATION REPORT. Nevertheless a person,who has a grievance that police officer is not registering FIR under section 154 of Cr.P.C, such a person can approach Superintendent of Police (SP), with written application, under subsection 3 of section 154 of Cr.P.C. In case of SP also does not still register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of Cr.P.C. If that be so, it is very essential and interest to know the powers conferred on Magistrate under section 156 (3) of Cr.P.C.
14. Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in section 156 (3) of Cr.P.C. If that be so, a paucity will be crept mind that whether there is an implied power in the Magistrate under Section 156(3) India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.12 of 18 Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same or not. That too, an aggrieved person has right to claim that the offence he alleges be investigated properly. However, The Hon'ble Supreme Court held in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency.
15. In consideration of above discussions and now reverting back to the facts of the present revision petition it is revealed that the revisionist had approached the court of Ld. Magistrate for registering the FIR against the respondents as Respondents have forged and fabricated certain airway bills/invoices and cheated the revisionist. I have perused the copies of bills available on file. On perusal of the file it is revealed that there is on note written by accused Shobhit Srivastav dated 24.11.2010 wherein he has admitted that he had received Rs.51.00 lac from Mr. Rajesh Dubey of Team Aviation in connection with spares/Airway bills movement. He admitted his guilt for this action and promised that India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.13 of 18 he will refund the amount to the company. He has written that he did this mistake and in future he will aways do his work faithfully and asked for forgiving him. There is also one copy of affidavit cum bond signed by accused Shobhit Srivastav in this respect. The revisionist has also taken the plea that accused has cheated the company. The airway bills raised by the revisionist may be in the possession of the revisionist but the original bills may not be in the possession of the company. The transaction were done through accused no.2 who may be in possession of certain significant information. The information is also required from C.G. Logistics Pvt. Ltd. in this case. There is certain information related to bills required in this case from Airline/Custom Deptt. I have perused the case laws relied by the Ld. Counsel for the revisionist. In case Law Amit Khera Vs. Govt. of NCT of Delhi, 2011(1) 129 Del. it has been held that : On receipt of the complaint, the duty of the police is not only to do scientific investigation and make recoveries, it has to take action against the offenders as per law. The investigation is done by police even by the recording statements of witnesses. Moreover, in the present case, the petitioner was having only phone number of the caller and police had resources to find out the name of the caller and other particulars of the caller by approaching service India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.14 of 18 providers which the petitioner himself could not have done.
In case law Radha Vs. State, 2011 (2) JCC 1414 it is stated that: 'It is the absolute obligation and duty upon officer incharge of Police Station to register an FIR once information related to commission of cognizable offence is laid before him.' 'It is also stated that it is a settled legal position that the reliability, genuineness and creditability of the information is not to be tested by the I.O at the stage of lodging of a complaint. The concerned police officer cannot embark upon an inquiry so as to ascertain whether the information laid before him is truthful, reliable, genuine or credible. Any officer who refused to register an FIR even in a case where the information laid before him prima facie disclosed commission of cognizable offence undoubtedly violates the statutory duty cast upon him and deserves suitable punishment as held in Lalita Kumari Vs. Govt. of Uttar Pradesh (2008 14 SCC 337.
It has further been stated that it is incumbent upon the police officer to make strict compliance of the provisions of sec 154 Cr.PC rather than to embark upon a kind of preliminary enquiry in order to ascertain the correctness and veracity of the allegations made in the complaint.
India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.15 of 18 In case Acharya Arun Dev Vs. Govt of NCT of Delhi & Ors., 2011 (1) 129 Del it has been stated that: The complainant, inter alia, wanted to trace the cheated money and if possible to recover the same which was possible only for the police to do -
Further the complainant wanted the police to discover the previous and subsequent conduct of the accused so as to procure evidence to prove the dishonest intention........
It has further been stated that in this case cheating had been alleged in a commercial transaction. The Supreme Court, inter alia, observed that although a commercial transaction of money was involved, there was no reason for holding that offence of cheating would elude from such transaction.
16. In view of my above discussions and case laws mentioned above, I have also given my thoughtful consideration on the order dated 23.11.11. In the operative para no.14, ld. Trial court has held that the complainant company itself is in possession of the India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.16 of 18 evidence to prove the allegations and in para 12 Ld. Trial court has held that the matter pertains to commercial transaction and is essentially of civil nature. In this case transaction was done between two company by their deputed officers. Allegedly both have conspired and cheated the revisionist by raising inflated forged and fabricated bills. All the documents may not be available with the complainant and certain documents are needed to be obtained from Customs/Airline office which the revisionist is unable to procure itself without the assistance of the police. There is one note allegedly written by accused Shobit Srivastav which needs to be investigated. The complaint available on file manifestly show a cognizable offence as there are clear cut allegations against the accused persons. Ld. Trial court, therefore went wrong in declining the application u/s 156(3) Cr.PC.
17. In my opinion, this is not a case in which no offence of any kind was made out. Further as mentioned above the complainant may not be able to collect the entire documents and evidence. The revision petition is allowed as the impugned order passed by Ld. MM suffers from illegality and the same is hereby set aside. Ld. Trial court is directed to reconsider the application u/s 156(3) Cr.PC of the revisionist and pass order afresh. India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.17 of 18
18. Trial court file be sent back with the copy of this order and appeal file be consigned to record room.
19. Revisionist is directed to appear before the Ld. Trial court on 05.03.2012.
Announced in the Open Court on 27.02.2012.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI India Flysafe Vs.State Crl.Rev. no.26/2012 Page No.18 of 18