Delhi District Court
Syed Ahmer vs Mahmood Malik on 24 May, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
REVISION PETITION NO. 216 of 2022
CNR No. DLSE01-004588-2022
IN THE MATTER OF:
Syed Ahmer,
S/o Sh Syed Abdullah,
R/o H. No. 180, Gali No.22,
Zakir Nagar, Okhla,
New Delhi-110025
.......Revisionist
Versus
1. Mahmood Malik,
S/o Sh Akhlaq Malik,
R/o 14A, Bharat Nagar,
New Delhi-110065
2. Mansoor Malik,
R/o 14A, Bharat Nagar,
New Delhi-110065
........Respondents
Instituted on : 24.05.2022
Reserved on : Not reserved
Pronounced on : 24.05.2022
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.24
16:24:23 +0530
JUDGMENT
1. Vide instant petition, revisionist takes exception to the order dated 08.04.2022, whereby his application under section 156(3) Cr.P.C in case bearing Ct No. 691/2021 titled as Syed Ahmer Vs Mahmood Malik, stood dismissed by Ld. Addl Chief Metropolitan Magistrate (ACMM), South East District, Saket Court, New Delhi.
2. Brief facts as noted by Ld. ACMM in the impugned order are not in dispute and the same are being reproduced for the sake of convenience:-
"It is case of complainant that accused no.1 along-with his brother accused no.2 contacted the complainant in May/June2017 and informed that they were doing business of meat export to middle east countries and allured and induced the complainant to invest an amount of Rs.50 lacs against an income of approximately Rs. 3.5 to 4 lacs per month. It is stated that on the basis of repeated allurement, assurances and representation made by accused persons,complainant agreed to invest in the said business. Complainant shared the aforesaid information with his brother-in-law Aslam Khan who also met accused persons and agreed to invest in the said business. It is the case that on 14.02.2018, written agreement was executed between complainant and accused wherein accused has admitted investment of Rs.50 lac by complainant and has repeated the promise of profit of Rs.3.5 to 4 lacs every month. A similar document was executed between Aslam Khan and accused where an investment of Rs.30 lacs has been admitted against monthly profit of Rs.2.25 to 2.50 lac.It is the allegations that accused persons failed to honour their commitments and failed to pay the monthly returns as promised. Complainant also visited Dubai and met the accused and asked him to return the invested amount with profit, however,accused sought some time vide a written document dated30.04.2019. It is the case that pursuant to agreement dated14.02.2018, accused handed over two cheques bearing no.768773& 768774 for Rs.25 lacs each drawn on Yes Bank, New Friends Colony as security. A similar security cheque was issued in favour of Aslam Khan. It is admitted that accused paid only Crl Rev. No. 216 of 2022 Syed Ahmer Vs Mahmood Malik & Anr Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.24 16:24:31 +0530 a meagre amount of Rs.10 lacs towards part profit and failed to pay any other amount either against principal investment or the profit amount. It is alleged that intention of accused from the very beginning was to cheat the complainant and Aslam Khan. Due to unprofessional and dishonest conduct of accused, complainant sent a letter dated24.12.2020 to accused asking return of his entire money. On failure of accused to respond to the said letter, complainant presented the two security cheques which got dishonoured with remarks funds insufficient. It is stated that accused is raising false pleas in his reply to the legal notice U/s 138 N. I. Act. Complainant lodged a complaint dated 16.01.2021 with SHO PS. NFC and dated 16.03.2021 with DCP, South East,however, no action was taken."
3. Pursuant to the directions of Ld. ACMM, Action Taken Report came to be filed by concerned Inquiry Officer, Police Station New Friends Colony before Ld ACMM wherein it was reported that the matter is civil in nature. After considering the ATR and after hearing the revisionist, the application of revisionist under section 156(3) Cr.PC was dismissed by Ld ACMM. The relevant observations of the impugned order are being reproduced for the sake of convenience :-
"On the basis of aforesaid facts and circumstances,Court is of the opinion that it is not expedient in the interest ofjustice to order registration of FIR in the present case because of the following reasons :
a) The dispute alleged by complainant is not so complex in nature so as to require any kind of investigation through the intervention of police authorities;
b) The complainant does not require the support of any technical documentary evidence to prove his case and as such the assistance of police machinery to recover anything is not warranted. It is observed that investigation cannot be ordered merely to facilitate recovery of money allegedly invested by complainant in the business of accused;
c) The order of registration of FIR shall not serve any useful purpose particularly in the present set of facts, where dispute has arisen out of a purely commercial transaction. The terms of business were duly reduced into writing vide Crl Rev. No. 216 of 2022 Syed Ahmer Vs Mahmood Malik & Anr Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.24 16:24:39 +0530 agreement dated14.02.2018 and the investment allegedly made by complainant was secured by issuance of two security cheques. Complainant has already initiated appropriate proceedings against accused for dishonour of cheques;
d) The complainant can very well prove his case against the accused persons by leading his evidence and that of other witnesses, if any and does not require any active / passive support of State machinery in the form of police investigation /interrogation;e) The order of registration of FIR cannot be made merely to pressurize the other party.
6.As such application of complainants U/s 156(3) Cr.P.C stands dismissed. However, on the basis of allegations in complaint U/s 200 Cr.P.C, this Court hereby takes cognizance of offence in exercise of its judicial power U/s 190(1) (a) Cr.P.C.7.
Put up for pre-summoning evidence on 30.07.2022."
4. Revisionist is aggrieved with the said order and has assailed the same on various grounds which can be summarized as under :-
(i) That the impugned is against the settled principle of law and as such same is bad as well as based on conjectures, surmises and imaginations;
(ii) That Ld Trial Court erred in law by declining the prayer of revisionist for registration of FIR as the facts alleged disclosed commission of cognizable offences;
(iii) That Ld Trial Court erred in holding that the revisionist does not require the support of any technical documentary evidence and as such, police machinery to recover anything is not warranted;
(iv) That Ld Trial Court failed to appreciate that respondents induced and lured him to invest money in their business of meat export;
(v) That Ld Trial Court failed to appreciate the fact that respondents in discharge of their legal liability, issued two cheques which got dishonoured upon presentation;
(vi) That Ld Trial Court passed the impugned order in haste and ignored the facts available on record;
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5. Ld. counsel for the revisionist has advanced arguments on the line of grounds as taken in the instant revision petition. He has forcefully argued that the impugned order is not sustainable in the eyes of law as Ld ACMM was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It is urged that all the evidence is not within the possession of revisionist and assistance of police would be required for effective investigation, for ascertaining the voice sample of respondents and for recovery of invested amount. It is further argued that mere pendency of criminal complaint under section 138 NI Act is no bar for prosecution against the respondents for offence u/s 420 IPC. It is further urged that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case. Ld counsel has relied upon judgment of Hon'ble Karnataka High Court in Rashmi Tandon Vs Rajesh G, Crl Petition No. 6638/2021 dated 10.05.2022 in support of his contentions.
6. I have heard contentions of Ld counsel for revisionist and perused the record.
7. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
8. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held:-
"58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
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(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
9. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 :-
"13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
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10. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
11. After going through the records and hearing the arguments, I am of the view that Ld ACMM has rightly observed that the assistance of police machinery is not required in the facts and circumstances of the present case more so when the dispute between the parties have arisen out of the commercial transaction. The identity of respondents is well established and in my view, the entire evidence is within possession of revisionist and no investigation by police is required for collection of any evidence. If assistance of police would be required at any stage, same can be had by resorting to provisions of section 202 Cr.PC by the Ld ACMM.
12. In Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble 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 accusation".
13. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very Crl Rev. No. 216 of 2022 Syed Ahmer Vs Mahmood Malik & Anr Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.24 16:25:11 +0530 serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified''.
14. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre-summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
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15. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
16. This view has been reiterated by Hon'ble Apex Court in New India Assurance Co. Ltd. Vs. Krishna Kumar Pandey, 2019 SCC OnLine SC 1786, in the following words :
"8. The scope of the revisional jurisdiction of the High Court (or Sessions Court) under Section 397 Cr.P.C, is limited to the extent of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. The revisional Court is entitled to look into the regularity of any proceeding before an inferior Court. As reiterated by this Court in a number of cases, the purpose of this revisionsal power is to set right a patent defect or an error of jurisdiction or law."
17. Similar are the observations of Hon'ble High Court in Rajender Singh Thakur Vs State & Anr, Crl Rev. P. No. 155/2022, decided on Crl Rev. No. 216 of 2022 Syed Ahmer Vs Mahmood Malik & Anr Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.24 16:25:38 +0530 22.03.2022.
18. Therefore, in my considered opinion, the Ld. ACMM has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary powers vested in the Ld ACMM.
19. In the case at hand, I find that the Ld. ACMM has rightly exercised the discretionary power vested in him. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 08.04.2022. The instant revision petition stands dismissed accordingly. The judgments relied upon by Ld. Counsel for revisionist does not come to his aid in the factual matrix of present case.
20. TCR be sent back to Ld Trial Court along with copy of this judgment.
21. Revision file be consigned to Record Room after due compliance.
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.05.24
16:25:45 +0530
Announced in the open (ANUJ AGRAWAL)
Court on 24th May 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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