Delhi District Court
Sh. Isher Singh & Ors vs State (Govt. Of Nct) & Ors on 5 March, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI
Criminal Revision No.221/13
In the matter of:
Sh. Isher Singh & Ors ....Petitioners
Versus
State (Govt. of NCT) & Ors. ....Respondents
Date of Institution: 18.11.2013
Date of Judgment: 05.03.2014
J U D G M E N T
By way of present revision petition, order dated 27.08.2013 passed by learned Metropolitan Magistrate in complaint case no. 05/01/13 has been challenged.
2. Vide impugned order, learned Metropolitan Magistrate has dismissed application U/s 156(3) Cr.P.C. filed by the petitionerscomplainants in the aforesaid criminal complaint.
3. Application has been dismissed while observing that names and addresses of the accused persons are known to the complainants; that the entire prospective evidence to be led by the complainant is within knowledge and reach of complainants and that therefore, there is no requirement of investigation by the police. Learned Metropolitan Magistrate has further 1 observed that at appropriate stage, resort may be made by the Courts to powers under Section 91 and 202 CrPC in case the need arise. While dismissing the application, learned Metropolitan Magistrate has relied on decision in M/s Skipper Beverages Pvt. Ltd. v. State 2001 (3) RCR (Criminal) 514 and Subhkaran Lukharuka & Anr. v. State & Anr. 2010 [3] JCC 1972.
4. Learned counsel for complainants - petitioners has submitted that complainant is not aware of the IP address of the computer, on which Dmat account were opened, and by whom. Further, it is submitted that complainant does not know as to who created email IDs on behalf of complainants - petitioners and as to at whose instructions respondent no.2 company indulged in trading on behalf of complainants during the period from 04.08.09 to 02.09.09 i.e. even prior to the execution of power of attorney by the complainants in favour of respondent no.12.
So, the contention is that when learned Metropolitan Magistrate observed in the impugned order that all the evidence to be led is well within the knowledge and reach of the complainant, the impugned order suffers from illegality and irregularity and as such, the same deserves to be set aside. The submission is that in the given facts and circumstances application U/s 156 (3) deserves to be allowed with a direction for registration of the case.
In support of his contention, learned counsel has referred to decision in 2 Lalita Kumari V. Govt. of U.P.& Ors., 2013 (8) LRC 1 (SC).
5. On the other hand, learned counsel for respondents no.2 to 10 and learned counsel for respondents no.11 & 12 h ave submitted that respondent no.2 - company is competent to open accounts on receipt of KYC and start trading. Further, it has been submitted by learned counsel for respondents no. 2 to 10 that trading can be commenced as and when amount invested is received in the account opened by the investors.
As regards collection of evidence, the contention of learned counsel for respondents is that the concerned service providers can be summoned to provide requisite information regarding creation of email ID. Therefore, the submission is that learned Metropolitan Magistrate has rightly observed that there is no requirement of any investigation by the police.
In support of his contention, learned counsel has referred to decision in Sh. Ram Avtar Tyagi V. State (NCT) of Delhi & Ors., Crl. Rev. No.146/09, decided on 15.12.09 by Hon'ble High Court of Delhi.
6. The case of the complainantspetitioners as put forth in their compliant is that respondent no. 2 is trading member of National Stock Exchange of India. Respondents no. 3 to 9 are its Directors of respondent no. 2. Respondent no. 10 is Assistant Manager of respondent no. 2. Respondent no.11 is Branch Manager of respondent no. 1 whereas respondent no. 12 is brother of respondent no. 11 and associated with respondent no. 2. 3
In the month of August 20092012, respondents no. 10 and 12 approached complainantpetitioner no. 1 and allured him to invest money securities market as they would manage good return. Thereupon, complainantpetitioner no. 1 and his family membersother complainants signed some blank documents (KYC kit) on the misrepresentation that forms were required to be filled in by the staff to be appointed by respondent no. 2 at head office. Further it is case of the complainant that respondent no. 2 company, in connivance and collusion with other respondents conducted transactions in their accounts illegally, unauthorisedly and contrary to clause
3..1 of NSE F&O Regulations and clause 3.2.1 of NSE CM Regulations with sole purpose to generate brokerage and other charges.
In para no. 2.4 of the complaint, complainants have depicted brokerage and other charges levied by respondent no. 2 company in accounts of complainants. It is also case of the complainants that fake email ID in their names were created. Details of email ID have been given in para 2.5 of the complaint.
As further alleged by the complainants, they never authorized anyone to do trading on their behalf, but respondent no. 2 in connivance with its employees/ representatives misused blank documents got signed from the complainants. Some basic informations filled in KYC kit do not belong to the complainants and are rather wrong.
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Matter was reported to the Commissioner of Police vide complaint dated 17.02.2011, but police did not initiate any action.
Vide application under Section 156 (3) CrPC annexed to the complaint, complainants prayed for directions to the police for recording of FIR and investigation in accordance with law. As noticed above, application has been dismissed.
In the case of Subhkaran Luharkuka & Anr. V State (Govt. of NCT of Delhi) & Anr. 2010 [3] JCC 1972, Hon'ble Apex Court has laid down certain guidelines for the Magistrate while dealing with application under Section 156 (3) CrPC. One of the guidelines is reads as under: "Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed alongwith a complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the prerequisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
In M/s Skipper Beverages P. Ltd v. State 2001 IV AD (Delhi) 625=2001 (3) RCR (Criminal) 514, our Hon'ble High Court has observed that powers under Section 156 CrPC are to be exercised judiciously and that where 5 allegations are not serious and complainant himself is in possession of evidence to prove allegations, there is no need to exercise these powers.
So far as registration of FIR on complaints to the police is concerned, directions have been issued by Hon'ble Apex Court in Lalita Kumari's case (supra) as to recording of FIR and as to where the preliminary inquiry is or is not required.
In the course of arguments, when it has been pointed out by learned counsel for respondents no.2 to 4 that as a result of arbitration proceedings award came to be passed in favour of the company; that the award for upheld by the NSC and thereafter by the court of learned Addl. District Judge. Learned counsel for petitioners submits that during pendency of arbitration proceedings no such averments, as put forth in the complaint, were put forth but it is not being disputed that matter on civil side is coming up before Hon'ble High Court for hearing.
As regards allegation of creation of email IDs in the name of the complainants, complainants can easily summon service providers with requisite record so as to find out as to when the same were created and what was the IP address of the concerned computer. So far as the allegation of commencement of trading by respondent no.2 company, when even not consented to the complainants, during the period from 04.08.09 to 02.09.09 complainant can lead evidence before the trial court on the basis of material 6 already made available to them during arbitration proceedings, or by summoning the requisite record from respondent no.2 company. Similarly complainant can lead evidence before the Trial Court as to the transactions / trading by respondent no.2 without their consent. For production of any document or thing necessary for inquiry, Learned Trial Magistrate can also be requested to exercise powers U/s 91 Cr.P.C. whenever so required. Furthermore, if learned Metropolitan Magistrate, after closing of the evidence by the complainant, deems it appropriate to order inquiry / investigation U/s 202 Cr.P.C., the court shall be at liberty to exercise the same, as already finds observed in the impugned order itself.
Having regard to the facts & circumstances and the above discussion, this court finds that the impugned order does not suffer from any illegality or irregularity as regards dismissal of the application U/s 156(3) Cr.P.C. is concerned. Therefore, this revision petition is dismissed.
Trial Court record be returned. Complainants to appear before Trial Court on 11.03.2014. File of revision petition be consigned to Record Room.
Announced in Open Court
on 05.03.2014 (Narinder Kumar )
Additional Sessions Judge(Central)/Delhi.
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