Delhi District Court
Sanjeev Jain vs Ajay Jain on 28 February, 2022
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE04: SHAHDARA:
KARKARDOOMA COURT: DELHI.
Crl. Revision No.45/2019
Unique Case ID/CR No.240/2019
CNR No.DLSH010060002019
1. Sanjeev Jain
S/o. Sh. M.K.Jain
R/o. A74, Surajmal Vihar,
Delhi10092.
............... Revisionist
Versus
1. Ajay Jain
S/o. Not Known
R/o. A16, Suraj Mal Vihar,
Delhi110092
2. Smt. Asha Jain
W/o. Sh. Ajay Jain
R/o. A16, Suraj Mal Vihar,
Delhi110092
3. M/s. A.N.Securities
CR No.240/2019 Page 1 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
R/o. A16, Suraj Mal Vihar,
Delhi110092.
4. Also State of NCT Govt. of Delhi
............... Respondents
ORDER
1. This revision petition is preferred u/s. 397 (3) Cr.P.C.
against the order dated 01.08.2019, passed by Sh. Vijay Kumar Jha, Ld. ACMM, Shahdara, KKD Courts, Delhi, in complaint case No. 5604/18, PS. Anand Vihar, titled as Sanjeev Kumar Vs. Ajay Jain & Ors. whereby an application u/s 156 (3) Cr.P.C. as filed on behalf of revisionist was dismissed, however, while taking the cognizance of the offence, matter was listed for presummoning evidence.
2. Arguments have been advanced by Sh. Vivek Sawhney, Ld. Counsel for revisionist as also by Sh.Vineet Kumar, Ld. Addl. PP for the State and Sh. Arun Sharma, Ld. Counsel for respondents through video conferencing using 'CISCO Webex' App. I have also perused written submissions as filed on behalf of revisionist as well as on behalf of respondents no.1 to 3.
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3. It is relevant to note here that initially the revision petition was filed against respondents no.1 to 3 and later on rectified memo of parties was filed by Ld. Counsel for revisionist on 25.11.2020 thereby impleading State also as one of the respondent.
4. Ld. Counsel for revisionist argued that respondents induced the revisionist to open a Dmat account and to invest an amount of Rs.30,000/ and later on, for change of client code he made further payment of Rs. 1,50,000/ on 12.06.2013 but as revisionist suffered heavy losses, he asked respondents that he is no more interested in the business of shares and commodities etc. and that his account should be closed but respondents continued with the business of more than Rs. 400 Crores through the account of revisionist, which fact he came to know when he received a notice from Income Tax Department u/s. 143 (2) of Income Tax Act for the financial year 201516. Ld. Counsel for revisionist further argued that revisionist received one another notice on 04.06.2018 and thereupon, he made a complaint to NSE and from reply filed before NSE revisionist was shocked to know that his signatures on the KYC form, Rs. 50/ Non Judicial Stamp Paper and his bank statement were forged and even accused persons had given wrong Email address of the revisionist in order to transact the business themselves. Ld. Counsel for revisionist submits that Ld. Trial Court has wrongly observed in the impugned order that no investigation is CR No.240/2019 Page 3 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
to be required as all the material facts are within the knowledge of the revisionist. Ld. Counsel for revisionist vehemently contended that the facts as mentioned in the complaint discloses commission of cognizable offence and investigation is required for recovery of documents bearing forged signatures of revisionist. My attention is drawn in respect of authorities reported as Kalabharati Advertising Vs. Hemant Vimalnath Narichania & Ors. decided on 06.09.2010 in Civil Appeal of 2010 (Arising out of SLP (C) Nos. 2504325045 of 2008) by Hon'ble Supreme Court of India; Shreenath & Anr. Vs. Rajesh & Ors. decided on 13.04.1998 by Hon'ble Supreme Court of India; Lalita Kumari Vs. Govt. of U.P. & Ors. decided on 12.11.2013 in Writ Petition (Crl.) No. 68 of 2008 by Hon'ble Supreme Court of India, with SLP (Crl.) No. 5986 of 2006, SLP (Crl.) No. 5200 of 2009, Crl. Appeal No. 1410 of 2011, Crl. Appeal No. 1267/2007 and Contempt Petition (C) No. D26722 of 2008 in Writ Petition (Crl.) no. 68 of 2008 and Amit Khera Vs. Govt. of NCT of Delhi & Ors. decided on 11.08.2010 in Writ Petition (Crl.) No. 804 of 2008 by Hon'ble Delhi High Court.
5. Ld. Counsel for respondents argued that there is no illegality or impropriety in the impugned order. It has been argued that revisionist has business enmity with the respondents and after receipt of the notice from Income Tax Department, in order to shift CR No.240/2019 Page 4 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
the liability he has filed the false and concocted complaint. Ld. Counsel for respondents further argued that revisionist opened a share trading account with respondent no.3 for which a client code S 8 was provided and later on at the request of revisionist, new client code S11 was given and revisionist was using both the accounts simultaneously and as such, no separate client registration form was required. Ld. Counsel for respondents further argued that non judicial stamp paper was purchased on 11.09.2012 and the same was signed by the revisionist and the bank statement was also provided by the revisionist and respondents have not committed any wrong at all. Ld. Counsel for respondents vehemently contended that even in the IGRP (Investor Grievance Resolution Panel) proceedings initiated by revisionist, it was observed that matter does not have any amount of claim involved in monetary term. It has been submitted that all the documents are in the possession of NSE and copies of same are lying on page no.33 to 36 of the complaint i.e bank statement, copy of stamp paper of Rs.50/, cancelled cheque etc.
6. Ld. Addl. PP for the State argued that as per case of the complainant, the respondents carried out the business activities through the client code of the complainant without his consent and the documents such as KYC, non judicial stamp paper, bank statement etc. which were used by the respondents while opening/continuing the said account are bearing forged signatures of CR No.240/2019 Page 5 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
the complainant and as such, complaint prima facie, discloses commission of a cognizable offence.
7. In brief, facts are that revisionist filed a complaint u/s.
200 Cr.P.C for offence punishable u/s. 419/420/467/468/470/471/34 IPC alleging that complainant and respondent no.1 are frequent visitors to the Jain Mandir at Surajmal Vihar, Delhi and as such, got acquainted with each other. It is stated that respondent no.1 asked the complainant that it would be better if he invests in Shares and Commodities and for that purpose he would have to open a Dmat account with Rs.30,000/. Complainant gave an account payee cheque of Rs.30,000/ on 19.11.2011 for opening the Dmat account and for said purpose respondent no.1 also got 30 blank papers signed from complainant and also provided the details of ITRs, bank statements and blank crossedcheque. The complainant was allotted client code bearing no. CS8 and he carried out the online business for 56 months but he suffered losses and it came in the mind of complainant that 8 is not a suitable numerical number and thus, he requested accused persons to close the account CS8 and to allot a new number. On 12.06.2013, complainant again paid Rs. 1,50,000/ for change of client code but complainant again suffered heavy losses and he asked the accused persons that he is no more interested in the business of Shares and commodities and that his account should be closed and thereafter, he did not carry out any transaction CR No.240/2019 Page 6 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
in the said account. It is case of the complainant that on 28.09.2017, he received a notice from Income Tax Department pertaining to financial year 20152016 u/s. 143 (2) of Income Tax Act and was shocked to know that there was a derivative transaction in the account and at his request, accused persons gave a copy of statement of account of CS11 showing loss of Rs.6,829.20/. Complainant asked the accused persons that when he was not doing any business, how he suffered the loss but no proper reply was given. Again on 04.06.2018, complainant received another notice from Income Tax department, in which he was asked by Income Tax Authority about the source of investment and transactions made during the said financial year and thereupon, he filed a complaint to the NSE and from reply received from NSE alongwith the annexed documents i.e statement of account, copy of KYC form, copy of Rs.50/ non judicial stamp paper, he came to know that accused had forged his signatures on his bank statement, KYC form, Rs.50/ non judicial stamp paper and that accused persons had given a wrong Email address of complainant before the NSE in order to transact the business themselves using the client code of the complainant hence, the complaint case was filed.
8. The impugned order has been assailed mainly on the grounds that impugned order is based on surmises and conjectures and is liable to be set aside; that Ld.Trial Court has failed to apply its CR No.240/2019 Page 7 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
judicial mind at the time of passing of impugned order and has merely relied upon the status report filed by IO; that Ld.Trial Court has failed to appreciate the documents annexed with the application as respondents have forged the signatures of revisionist on the bank statement of Jain Cooperative Bank Ltd; Ld. Trial Court has erred in holding that there is no merit in the application; and that Ld. Trial Court has failed to appreciate the evidence/documents produced by the revisionist in the complaint and has not even mentioned an iota of word in respect of the said document in the entire order.
9. Hon'ble Supreme Court in case titled as Sakiri Vasu Vs. State of U.P & Ors., AIR 2008 SC 907 held as under:
"17. In our 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 FIR 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 our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation."
10. As per revisionist after receipt of notice u/s. 143 (2) of CR No.240/2019 Page 8 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
Income Tax Act, he filed a complaint on 13.09.2018 before NSE and from the reply he came to know that respondents had submitted documents such as, KYC form, Rs.50/ Non Judicial Stamp Paper & bank statement of M/s. Jain Cooperative Bank Ltd. bearing his forged signatures. It is further case of the revisionist that although after suffering heavy loss in the business of Shares he told the respondents to close his accounts but they continuously carried out transactions from those accounts of complainant. Ld.Trial Court vide impugned order has observed that all the material facts on which the complainant is alleging the commission of offence are within the knowledge of complainant and no fact by way of investigation is to be ascertained and therefore, dismissed the application u/s. 156 (3) Cr.P.C. In this regard, perusal of para no. 14 sub clause (c) of the written submissions as filed on behalf of respondents shows that respondents have stated that they are still in possession of the original stamp papers, KYC form and both the bank statements supplied by the revisionist. Whether these documents are bearing forged signatures of revisionist or not is matter of investigation and as admittedly, these documents are not in possession of revisionist but still lying with the respondents, I am of the considered opinion that Ld. Trial Court has committed an error while observing that no fact by way of investigation is to be ascertained. Accordingly, impugned order dt.01.08.2019 is set aside. In result, SHO, PS. Anand Vihar is directed to register an FIR on the basis of complaint received by DCP on 05.11.2018 and to investigate the matter in CR No.240/2019 Page 9 of 10 Sanjeev Jain Vs. Ajay Jain & Ors.
accordance with law. Accordingly, revision petition stands allowed.
11. Copy of this order along with TCR be sent to Ld. Trial Court. A copy of this order be also sent to concerned SHO for compliance. Revisionist/complainant is directed to appear before Ld. Trial Court on 08.04.2022. Revision file be consigned to record room. SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR MALHOTRA Announced in the open court Location: Shahdara District, Karkardooma Courts through VC on 28.02.2022 Date: 2022.02.28 14:39:38 +0530 (Sanjeev Kumar Malhotra) ASJ04/Shahdara/KKD Courts Delhi.
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