Delhi District Court
P.K. Sharma vs State (Nct Of Delhi) on 9 May, 2016
Unique ID No. 02401R0165192016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 15/2016
Unique ID No. 02401R0165192016
P.K. Sharma
S/o Late Sh. Deep Chand Sharma
R/o S-32, Greater Kailash Part-1,
New Delhi-110048 .....Petitioner
Versus
State (NCT of Delhi) ..... Respondent
Instituted on : 4th March 2016
Argued on : 27th April 2016
Decided on : 9th May 2016
ORDER
1. This revision petition U/S 397 r/w 399 of the Code of Criminal Procedure (Cr.P.C.) is preferred by accused (petitioner herein) against order on charge dated 8th December 2015 for the offence punishable U/S 409/420 IPC, passed by the Court of Sh.Babru Bhan, Metropolitan Magistrate-02, (Central) Tis Hazari Courts, Delhi in a case arising out of proceeding arising out of FIR No.213/07, P.S.Subzi Mandi.
2. In brief, facts leading to the filing of this revision petition are as under:
Accused (petitioner herein) is Managing Director/Chairman and Proprietor of several Kuber Group Companies. In the year 1997-98, he obtained funds from several investors. Complainant Balraj also invested funds with the companies of petitioner and was issued FDRs/Deposit Certificates. Accused could not repay the amount at the time of their maturity. Complainant filed a civil suit for recovery. Suit was decreed but decree could not be enforced. In 2004, accused published an advertisement in the newspaper and offered a scheme, to the investors to sort out C.R. No. 47/15 Page 1 out of 6 Unique ID No. 02401R0165192016 disputes and return of amount to the investors. Complainant met the accused, who allegedly was misrepresented and assured safe return of his invested amount and all the documents and certificates issued by the accused company were received back, apart from 25% additional amount of the investment and promised to make regularly and timely payment complainant. Charge sheet noted that certain post dated cheques (PDC) were issued after collecting additional amount of 25% by the petitioner. Allegations are that petitioner repaid few installments but thereafter stopped repayment to the investors and induced the investors including complainant to enter into a compromise dated 29 th June 2005 pursuant to which, Post dated cheques were issued to the complainant, which on presentation, were dishonoured. Cases u/s 138 N.I. Act were filed by the complainant for dishonourment of the cheques. On 2nd May 2007, FIR No. 213/07 at PS Sabzi Mandi was registered for commission of offence u/s 409/420 IPC against the petitioner. Charge sheet noted that after registration of the FIR on 2 nd May 2007, but before charge sheet was filed in November 2008, accused entered into another compromise deed with the complainant and started paying Rs.50,000/- per month pursuant to the second compromise. As per supplementary charge sheet filed in the year 2012-13, accused paid a sum of Rs.15,17,551/- to the complainant.
3. Sh. Asim Naeem, Ld counsel appearing for the petitioner submitted that no offence u/s 420 or 409 IPC is made out as a breach of contract does not amount to cheating or breach of trust and that it was a purely civil transaction. It is submitted that pursuant to the decree passed by the learned Commercial Civil Judge, the bank C.R. No. 47/15 Page 2 out of 6 Unique ID No. 02401R0165192016 account of accused was seized and thereafter, accused entered into a compromise deed with complainant. It is submitted that the cheques given by the accused to the complainant pursuant to compromise deed were dishonoured. Sh. Naeem, Ld counsel for petitioner submitted that since the complainant had entered into a compromise with the petitioner and the matter had been settled with the complainant pursuant to compromise deed dated 20th December 2007 and all the cases except one had been withdrawn and complainant had received amount back, therefore, this case could not be allowed to proceed further against the petitioner. It is submitted that complainant was left with no grievance and that it will be a misuse of the process of the court, if complainant or state at the instance of complainant is allowed to proceed further with the trial as there is no dispute about the facts. It is submitted that in view of the observation made in G. Sagar Suri's case, Ld trial court ought not to have proceeded to frame charges u/s 409/420 IPC as cases u/s 138 N.I. Act filed by the complainant had been settled by way of second compromise deed dated 20th December 2007 and as per supplementary charge sheet a sum of Rs.15,17,551/- has been paid by the accused to the complainant. It is submitted that ingredients of 409 IPC are not attracted. In support, Ld counsel relied upon Veer Kumar Sharma vs Anoop Kumar and Ors. 1, State of Maharashtra vs Syed Mohd. Masood and Ors2, M. Shamim and Anr. Vs Smt. Nahid Begum & Anr. 3 and Dalbir Singh vs State and Ors.4
4. Per contra, Sh. Himanshu Garg, Ld Addl. PP for State submitted that it is not 1 2007(7)SCC 373 2 2009(4) JCC 3025 3 2005 (3) SCC 302 4 184 (2011) DLT 18 C.R. No. 47/15 Page 3 out of 6 Unique ID No. 02401R0165192016 a civil matter as argued by the Learned counsel as in the present case payment was initially received which was not returned on the date of maturity due to which complainant filed a civil suit which was decreed and decree could not be executed and then, complainant was allured by publishing an advertisement and instead of returning the amount, accused received back all the receipts/FDRs and also 25% more amount which was not returned after paying the few installments and PDC issued by the accused were dishonoured after again promising and assuring timely payment. Therefore, factual matrix attracts Section 420 IPC. It is further submitted that as per Section 220(3) Cr.P.C. "If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences." and thus merely because complainant filed cases u/s 138 N.I. Act would not mean that he cannot be tried for commission of offence u/s 420/409 IPC. It is submitted that in G. Suri case, proceedings were quashed by Hon'ble Supreme Court and that, trial court or this court cannot quash the proceedings u/s 482 Cr.P.C. as these courts are not having inherent powers u/s 482 Cr.P.C. and at this stage, this court has to prima-facie see if the ingredients of the provisions are made out or not. It is submitted that as far as compounding of the offence is concerned u/s 420/406 IPC can be compounded by the complainant but permission of the court is required u/s 320 (2) Cr.P.C. and only after, complainant compounds the offence with the accused, accused stands acquitted as per the provisions of Code.
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Unique ID No. 02401R0165192016
5. Essential ingredients for an offence under Section 420 IPC is that there has to be dishonest intention to deceive another person and it has to be considered from the entirety of factual matrix and the question whether there is a breach of contract only or whether there is a grave suspicion about the existence of criminal breach of trust and cheating is to be inferred from factual matrix. In order to gather dishonest intention or (to see whether there is) breach of trust, not only allegations in the complaint, but also entire transaction and the documents on record relied upon by the complainant and or prosecution have to be considered. Grave suspicion founded upon material before the Magistrate, which leads the court to from a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify framing of the charge against the accused in respect of the commission of the offence. If on basis of material on record, trial court could come to the conclusion, that commission of the offence is probable consequence, a case for framing of charge exist. At the stage of framing of charge, probative value of the material on record can not be gone into and the material brought on record by the prosecution has to be accepted.
6. This court is not persuaded by the arguments advanced by the Ld counsel for petitioner and finds merit in the submission advanced by learned Additional PP that by entering into a compromise with the complainant after recording of the FIR, this court cannot discharge accused and in any case, complainant has not compounded the offences with permission of the court. Indisputably complainant Balraj Singh had invested movey with M/s Kuber Group, whose chairman/Managing Director is P.K. C.R. No. 47/15 Page 5 out of 6 Unique ID No. 02401R0165192016 Sharma (petitioner herein) Investment certificates/FDRs were issued in lieu of deposits made by complainant in 1998 and on maturity, amount was not refunded to the complainant by the accused and civil Suit filed by the complainant was decreed, but the said decree could not be executed. An advertisement was published by the accused in the newspaper Dainik Jagran on 25.08.2004, and prima-facie investors were again induced by the scheme of repayment and were mis-represented. Accused allegedly deceived the complaint by falsely inducing the complainant to deliver his original certificates and receipts and collected further additional amount of Rs.25% as so-called contribution charges from the complainant and accused promised repayment regularly and issued PDC and cash voucher during the period November 2004 to July 2005. Thus, Complainant and other investors deposited more money but accused stopped repayment of investment and the cheques were dis-honoured.
7. To sum up, having regard the totality of facts and circumstances of the present case, this court find that a prima facie offence U/S 420 IPC and in the alternative U/S 409 IPC is made out against the accused. Therefore, this court find no illegality, procedural irregularity and impropriety in the impugned order. In the result, revision petition is dismissed. TCR be sent back along with copy of this order. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
on 9th May, 2016 Special Judge-CBI (PC Act)-06
THC/Delhi
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