Delhi District Court
M/S Blue Coast Infrastructure ... vs Sanjay Kumar on 31 July, 2017
IN THE COURT OF
SHRI BALWANT RAI BANSAL ADDITIONAL SESSIONS
JUDGE01, SPECIAL COURT (POCSO), SOUTH, NEW DELHI
CIS Criminal Revision No. 146/17
In the matter of:
M/s Blue Coast Infrastructure Development Pvt. Ltd.
Having Corporate Office At:
415417, Antriksh Bhawan,
22 K. G. Marg, New Delhi110001.
(Through its Authorized Representative)
............ Revisionist/Petitioner
VERSUS
Sanjay Kumar
S/o Sh. Naveen Garg
R/o: E233, Sarita Vihar,
New Delhi110076.
..............Respondents
Date of Institution : 26.04.2017. Date of Order : 31.07.2017. ORDER :
1. The present Revision Petition filed under section 397 of Cr.P.C., is directed against the impugned order dated 02.03.2017 passed by the court of Ms. Niharika Kumar, Ld. MM (N.I. Act)04, South, CIS Criminal Revision No. 146/17. Page No. 1 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
Saket, New Delhi, by which the application u/s 210 of Cr.P.C. seeking stay on the proceedings of the complaint filed u/s 138 of NI Act was dismissed.
2. The brief facts giving rise to the filing of the present Revision are briefly discussed as under:
3. The Respondent has filed a complaint u/s 138 of NI Act against the petitioner and others stating that the petitioner has portrayed a very deceiving picture with regard to their proposed project, namely, "Asset Area 3", situated at Delhi International Airport, Delhi. On seeing the offer given by the petitioner, the complainant decided to invest his hard earned money and accordingly, Assured Return and Space Agreement dated 11.08.2011 were executed between the complainant and the petitioner. The Silver Resort Hotel India Pvt. Ltd. signed the said agreement as a confirming party. The complainant had paid substantial consideration, i.e, Rs.81,55,000/ at the time of execution of both the contracts. As per the terms and conditions, the project was to be completed on or before 1st of April, 2014. The construction was not completed and in fact not even commenced by the accused No. 1. A cheque bearing no. 241813 dated 31.12.2014 for Rs.2,17,00,000/ was issued and the accused no. 2 assured and represented to the complainant, inter alia, other investors that the construction for entire project will be commenced on or before 30.09.2014. It is further averred that the said CIS Criminal Revision No. 146/17. Page No. 2 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
cheque was issued by accused no. 1 through accused 2 in favour of the complainant towards discharge of their legal liability. However, when the complainant presented the said cheque in his bank, the same was returned dishonoured by the complainant's bankers on 03.03.2015 with remarks "payment stopped by the drawer". Therefore, the complainant filed the complaint u/s 138 of NI Act.
4. The petitioner, after being summoned by the Ld. Trial Court, moved an application u/s 210 of Cr.P.C. on the ground that the petitioner had brought to the notice of Ld. MM that FIR No. 163/15 u/s 406/420/120B of IPC has been registered at PS EOW, upon the complaint of complainant against the petitioner. It was contended that the investigation by the police in relation to the said offence, which is the subject matter of the trial, being held by the Magistrate and therefore, being both the matters are based on the similar facts, the complaint case u/s 138 NI Act was liable to be stayed till the outcome of the FIR No.163/15. However, the Ld. MM did not find favour with the contention of the petitioner and dismissed the application vide impugned order.
5. Feeling aggrieved by the impugned order, the petitioner has challenged the same by way of present revision petition on the grounds that the Ld. MM has passed the impugned order in violation of section 210 (1) of Cr.P.C. The Ld. MM has wrongly relied upon the judgment titled as "Peter Methew vs. Betty John" and has ignored the various CIS Criminal Revision No. 146/17. Page No. 3 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
other judgments. The Ld. MM should have waited the verdict of the Hon'ble High Court before proceeding in the matter in terms of the judgment titled as "Uttar Pradesh Power Corporation Limited vs. Rajesh Kumar". The impugned order is contrary to the provisions of Article 20 (2) of the Constitution of India and section 300 (1) of Cr.P.C. The Ld. MM has not considered the facts and circumstances of the police case and complaint case, which are related to the same transaction. Ld. MM failed to appreciate that the witnesses, documents and other material available on record in both the complaint case u/s 138 of NI Act and the FIR are quite similar. The Ld. MM failed to consider that the cheques given by the petitioner which are subject matter of the complaint u/s 138 NI Act are also the subject matter of the FIR No.163/15 and it is also contended that it was mandatory provision of law that where there is an investigation by the police is in progress in relation to an offence, which is a subject matter of the trial being held by the Magistrate, the Magistrate shall stay the proceeding of such inquiry or trial or call for the report on the matter from the police conducting the investigation.
6. I have considered the submissions made on behalf of the Revisionist and the Respondents and perused the records of the trial court carefully.
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7. The Ld. counsel for the petitioner, has relied upon the following judgments:
(1) "State vs. Har Narain", 1976, Cri.L.J. 562.
(2) "Joseph vs. Joseph", 1982 Cri. L.J. 595.
(3) "Namathoti Sankarammna vs. State of A. P. and others", 2000 CRI. L.J. 4831.
(4) "Rajat Mittal vs. State and Ors.", 94 (2001) DLT 162. (5) "G. Sri Hari vs. Nandkishore Lahoti", 2003 Cri. L. J.643.
(6) "Dashrath Rupsingh Rathod vs. State of Maharashtra and Anr.", 2014 [9] SCC 129.
(7) "Ushaben vs. Kishorbhai Chunilal Talpada", (2010) 6 SCC 353.
8. The Ld. counsel for the respondent has relied upon the following judgments:
(1) "State of Bihar vs. Murad Ali Khan and Ors." passed by the Hon'ble Supreme Court of India.
(2) "Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Anr." (2012) 7 Supreme Court Cases 621.
(3) "V. Kutumba Rao vs. M. Chandrasekhar Rao and Anr." 2003 Cri. L. J. 4405.
(4) "Smt. Poonam vs. Parminder Singh Walia", passed in Criminal Revision No. 261 of 2011 by the Hon'ble PunjabHaryana High Court.
(5) "Peter Methew vs. Betty John" passed by the Hon'ble High Court of Kerala.
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9. Before proceeding further, let us examine the relevant provisions of law. Section 210 of Cr.P.C. which reads as under:
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
10. As is apparent from the perusal of the aforesaid provisions that in order to stay the proceedings u/s 210 (1) Cr.P.C. the offence must be the same in respect of which the proceedings are pending before the Ld. Metropolitan Magistrate by way of complaint and also the investigation which is being conducted by the police.
11. Section 210 (2) of Cr.P.C. does not relate to the stay of the proceedings. It provides for the joint trial of the offences as mentioned in CIS Criminal Revision No. 146/17. Page No. 6 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
the final report filed by the police alongwith those, which are already pending before the Ld. MM.
12. It has been held by the Hon'ble Supreme Court in the judgment titled as "Sangeetaben Mahendrabhai Patel vs. State of Gujarat and Anr." (2012) 7 Supreme Court Cases 621, that "ingredients of offence under section 138 NI Act are entirely different from offence under section 420 IPC. For offences under IPC there is no legal presumption of antecedent liability against drawer of cheque and no fine is imposed to meet a legally enforceable liability (as is presumed and done for an offence under section 138 NI Act)." In para no. 38 of the said judgment, it is held that "in the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under the NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under the NI Act can only be initiated by filing a complaint. However, in a case under IPC such a condition is not necessary." In para no. 39 of this judgment, it is held that "there may be some overlapping of facts in both the cases but the ingredients of the offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory CIS Criminal Revision No. 146/17. Page No. 7 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
provisions."
13. I have also gone through the judgment titled "V. Kutumba Rao vs. M. Chandrasekhar Rao and Anr." 2003 Cri. L. J. 4405, wherein, in para no. 11 of the said judgment, it is held that "in my considered opinion the offences under sections 420, IPC and 138 of the Act are distinct and separate offences. If a person fraudulently or dishonestly induces another person to deliver any property or to do or omit to do anything which he would not do or omit if he were not deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property commits an offence of cheating. Such a person commits the offence punishable under section 420, IPC. In a prosecution under section 138, Negotiable Instruments Act any inducement so as to make the other person to deliver any property etc. as defined in section 415, IPC, is not an ingredient. If a person issues a cheque and subsequently if the cheque was dishonoured by the bank for want of funds, etc. and thereafter even after issuance of demand notice, the said person fails to pay the amount covered by the cheque within the time stipulated by the Negotiable Instrument Act, that person commits an offence punishable under section 138 of the Act. The question of inducement to other person to part with any property to do or omit to do anything does not at all arise for a decision in a prosecution under section 138 of the Act. The offence CIS Criminal Revision No. 146/17. Page No. 8 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
under section 138 of the Act is not committed on the date of issuing the cheque. The offence happens after it was dishonoured by the bank for specified reasons and therefore, even after demand, the person concerned fails to pay the amount covered by the cheque to the other persons. These facts do not fall for a decision in a prosecution under section 420, IPC. Sometimes, at the time of issuing the cheque, a person may induce the other person to part with property, etc. if such inducement is dishonest or fraudulent he may be committing the offence of cheating and thereby he becomes liable for prosecution." "If such a person later within the time stipulated under the provisions of Negotiable Instruments Act repays the other person amount covered by the cheque he will not be liable for prosecution for the offence under section 138 of the Act but still he can be prosecuted for the offence of cheating if at the time of issuing the cheque he had fraudulently or dishonestly induced the other person to party with property etc. In a prosecution under section 138 Negotiable Instruments Act, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However, in a prosecution under section 420, IPC mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under section 420, CIS Criminal Revision No. 146/17. Page No. 9 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
IPC. Therefore, the two offences covered by section 420, IPC and 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, section 300 Cr.P.C. is not a bar for separate prosecution for the offences punishable under section 420, IPC and 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estopple does not come into play. The acquittal of the accused for the charge under section 420, IPC does not operate as estopple or res judicata for a finding of fact or law to be given in prosecution under section 138 of the Negotiable Instruments Act. The issue of fact and law to be tried and decided in prosecution under section 420, IPC are not the same issue of fact and law to be tried in a prosecution under section 138 of the Act."
14. In "Peter Methew vs. Betty John" passed by the Hon'ble High Court of Kerala, it is held that "the question for consideration is whether the proceedings in C.C. 686/1999 are liable to be stayed under section 210 of the Cr.P.C. Section 210 of the Cr.P.C. deals with the procedure to be followed by the Court when there is a complaint case and police investigation in respect of the same offence. As per this section, when a complaint case is pending before a Magistrate and an CIS Criminal Revision No. 146/17. Page No. 10 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
investigation is pending before a Magistrate and an investigation is pending before the police in relation to the very same offence which is the subject matter of the complaint case before him, the inquiry or trial whichever may be pending before the Magistrate shall be stayed and a report called for from the police. In this case, the complaint case pending before the Magistrate is the one filed by the first respondent herein against the petitioner accordingly, S. 210 of the Cr.P.C. has no role to play. In this case, S. 210 (1) of the Cr.P.C. would not be attracted since cognizance of the offence under S. 138 can only be taken on a complaint filed by the payee or the holder in due course of the cheque. The ingredients of an offence under S. 138 of the Negotiable Instruments Act are not part of the offences under sections 409 and 420 of the IPC."
15. In "State of Bihar vs. Murad Ali Khan and Ors." passed by the Hon'ble Supreme Court of India, it is held that "what emerges from a perusal of these provisions is that cognizance of an offence against the "Act" can be taken by a Court only on the complaint of the officer mentioned in section 55. The person who lodged complaint dated 23.06.1986 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210 (1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even CIS Criminal Revision No. 146/17. Page No. 11 of 13 "Blue Coast Infrastructure Development Pvt. Ltd. vs. Sanjay Kumar"
where a Magistrate takes cognizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or, occasion for taking cognizance more than once and accordingly, Section 210 has no role to play. The view taken by the High Court on the footing of Section 210 is unsupportable."
16. In view of the aforesaid discussions and the law laid down by the Hon'ble Supreme Court, the ingredients of both the offences are entirely different as Section 420 of IPC talks about the dishonest intention and fraudulent means to constitute an offence of cheating, whereas the Negotiable Instruments Act specifically debarred the defence taken by the drawer that he had no reasons to believe about dishonour of cheque at the time of its issuance which takes away the elements of intention out of purview of valid defence of an offence u/s 138 NI Act as provided u/s 140 of the said Act.
17. In the overall facts and circumstances and keeping in view the aforesaid discussions, I do not find any merit in the present Revision Petition, and the same is hereby dismissed.
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18. The file called from the court of the the Ld. Metropolitan Magistrate, be sent back alongwith a copy of this order.
19. The Revision File be consigned to Record Room.
(Pronounced in the open Court (Balwant Rai Bansal) on 31st of July 2017) Additional Sessions Judge01, Special Court (POCSO), South District:Saket Courts:
New Delhi.
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