Delhi District Court
State vs . : Mewa Ram on 23 July, 2012
1
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN
MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS
NEW DELHI
State Vs. : Mewa Ram
FIR No : 400/00
U/s : 420/406/506/120B IPC
PS : Okhla Industrial Area
Date of Institution 14.05.2003
Date of Judgment reserved for 21.07.2012
Date of Judgment 23.07.2012
Brief details of the case
A. Sl. no. of the case 1000/2/03
B. Offence complained of
or proved U/s 406/420/120 B IPC
C. Date of Offence May 1997
D. Name of the complainant Sh Ram Raj
s/o Kallu r/o B75,
Gola Kuan, Tehkhand,
New Delhi.
E. Name of the accused Mewa Ram
s/o Sh Devjeet
r/o B181, Gola Kuan,
Tehkhand, New Delhi
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 23.07.2012
Judgment
The accused Mewa Ram has been sent up to face trial for
committing offences punishable under Section 406/420 IPC read with
Section 120 B of IPC. The case of the prosecution is that some where
FIR No 400/00 1/15
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between 22.05.1997 to 24.05.1997, Mewa Ram cheated the complainant
Ram Raj by dishonestly inducing him to part with a sum of Rs 51,000/
(Fifty One Thousand Only) and invest the said amount in a plantation
project of Greenways Projects Ltd Company.
Brief facts as unfolded during the trial
2. In the year 1997, accused Mewa Ram, who is a doctor by
profession, used to run a clinic at Gole Kuan, Tehkhand, Okhla Industrial
Area (OIA), New Delhi. He was on good terms with Ram Raj, who was
also residing in the same locality. Mewaram induced Ram Raj to deposit
a sum of Rs 51,000/ (Fifty One Thousand Only) in a plantation project
launched by Greenways Project Ltd company by painting a rosy picture
that company would be paying huge returns on the investment. He
further told the accused that company would be accepting the deposit
only in the form of cheques. Ram Raj expressed his inability to arrange
cheques for making investment. On this, Mewa Ram took a sum of Rs
11,000/ (Eleven Thousand Only) from Ram Raj and deposited a sum of
Rs 51,000/ (Fifty One Thousand Only) with the company on his behalf.
He issued three cheques bearing no 764109, 764110 and 764111 from
the account of M/s Rahul International, in favour of Greenways Projects
Ltd. M/s Rahul International was a proprietorship concern owned by
Mewa Ram. Subsequently, the complainant paid the balance sum of Rs
40,000/ (Forty Thousand Only) to Mewa Ram and the transaction
FIR No 400/00 2/15
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completed. Greenways Projects Ltd issued certificates of plantation in
favour of Ram Raj in respect of the investment made by him wherein
assured high rate of return was projected.
3. The allegations against the accused Mewa Ram are that he
was acting as an agent of the plantation company and he induced the
complainant to invest the amount with an intention to cheat him. After
about six months, Mewa Ram handed over nine post dated cheques,
spreading over the year 19982000 to Ram Raj as return on his
investment. All the cheques were dishonored on presentation and the
plantation company also disappeared. The complainant approached local
police for taking action against the accused as well as the officials of the
company but the police officials did not respond. Aggrieved by the
inaction of police, the complainant approached the court by moving an
application under Section 156 (3) Cr PC. On the directions issued by the
Ld Predecessor, the present FIR bearing number 400/00 under section
420/406/506/120 B IPC was registered at PSOIA.
4. The necessary investigation was carried out and efforts were
made to trace the officials of the company but no clue was found.
Accused Mewa Ram joined investigation after securing anticipatory bail.
On completion of investigation, the chargesheet was put to the Court.
The copies of the chargesheet were supplied to the accused and charges
under Section 406/420/471 IPC read with Section 120 B IPC were
FIR No 400/00 3/15
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framed against him to which he pleaded 'not guilty' and claimed trial.
Witnesses examined
5. In order to establish its case, the prosecution examined five
witnesses. Two defence witnesses have also been examined.
PW1 Sh Jyotirmay Jain (Senior Manager, Bank of India)
has deposed about the dishonored cheques which were deposited by the
complainant. He mentioned that Ram Raj deposited nine cheques of
various amounts which were dishonored. The details of the cheques have
been given by him in the form of debit vouchers Ex PW1/A and Ex
PW1/B.
PW2 HC Sheo Ram (Duty Officer) has proved the
registration of FIR. The copy of FIR is Ex PW2/A.
PW3 V. P. Ghai (Branch Manager, State Bank of Patiala) has
deposed about cheques issued on behalf of the complainant by the
accused Mewa Ram, in favour of Greenways Projects Ltd. He stated that
cheques bearing number 764109, 764110 and 764111 were issued in
favour of Greenways Projects Ltd by M/s Rahul International. The
certificate to the said effect is Ex PW3/A.
PW4 Ram Raj (Complainant) has given a detailed account
of the investment made by him. He has supported the prosecution's
version stating that accused induced him to invest the amount in
plantation project.
FIR No 400/00 4/15
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PW5 SI Chhotu Singh (Investigating Officer) has deposed
about the investigation part.
Defence Witnesses
DW1 Tej Singh (Neighborer of complainant and the
accused) has mentioned that complainant Ram Raj used to prepare
banners for Greenways Project Ltd company. He stated that cheques of
invested amount were issued in favour of Greenways Project Ltd
company by the accused Mewa Ram only at the instance of the
complainant.
DW2 Ram Lakhan (Second Neighborer) has deposed on the
lines of DW1. He also mentioned that it was the complainant, who
requested the accused Mewa Ram to issue cheques of investment. He
stated that Ram Raj paid cash to the accused and in lieu of the said cash,
cheques were issued by the accused in favour of the company.
6. Accused was examined under Section 313 Cr. PC. He
admitted that he issued cheques on behalf of the complainant. He
mentioned that he issued three cheques in favour of Greenway Projects
Ltd and received a sum of Rs 51,000/ (Fifty One Thousand only) from
the complainant. He denied his alleged familiarity with the officials of
the company and stated that it was the accused who used to paint
boards of the company. He mentioned that he had never induced the
FIR No 400/00 5/15
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complainant to invest money in the project.
Arguments
7. I have heard Ld. APP for State and Ld. Defence Counsel and
carefully gone through the entire material available on record.
8. Ld. APP has contended that charges against the accused
have been established beyond reasonable doubt. He has contended that
Ram Raj has categorically stated that he was induced by the accused to
invest money in the project. He has argued that there is sufficient
evidence on record to prove beyond reasonable doubt that complainant
was cheated by the accused.
9. On the other hand, Ld. Defence Counsel has argued that
there is nothing on record which may establish that there was any
criminal conspiracy between the accused and the officials of the
company. He has contended that there is nothing on record, on the basis
of which, one may arrive at a conclusion that accused committed
cheating. Counsel has submitted that accused issued the cheques in
favour of the company only on the request of Ram Raj and the
inducement part is missing. Ld counsel has placed reliance upon the
judgment titled as Ram Nath Marethia Vs Shashin Bhavsar and Another
2003 (1) Criminal Court Cases 423 Gujarat wherein it has been held that
in order to constitute an offence of cheating, dishonest inducement must
be present at the initial stage and mere failure to keep up promise
FIR No 400/00 6/15
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subsequently cannot be presumed as an act leading to cheating. Ld
counsel has further placed reliance upon Ajay Mitra Vs State of MP 2003
(2) Supreme Today 602 wherein it was reiterated that a guilty intention
is an essential ingredient of the offence of cheating.
Brief reasons for the decision
10. I have given my thoughtful consideration to the rival
contentions and carefully perused the entire material available on
record.
11. Facts are not in dispute. Accused Mewa Ram has admitted
that he issued three cheques in favour of Greenways Projects Ltd. He has
categorically stated so in his statement recorded under Section 313 Cr
PC. The details of the cheques have been mentioned in the certificate Ex
PW3/A. In the said document, it has been mentioned that cheques
bearing number 764109 for an amount of Rs 30,000/(Thirty Thousand
Only), 764110 for an amount of Rs 15,000/ (Fifteen Thousand Only)
and 764111 for an amount of Rs 6,000/ (Six Thousand Only), all dated
22.05.1997, were issued in favour of Greenway Projects Ltd. These
cheques were issued in favour of the company by M/s Rahul
International. Accused has admitted that he was the proprietor of M/s
Rahul International and he issued these cheques. He has also admitted
that Ram Raj gave him a sum of Rs 51,000/ (Fifty One Thousand) in
cash. He stated that initially, Ram Raj gave him a sum of Rs 11,000/
FIR No 400/00 7/15
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(Eleven Thousand Only) and remaining amount of Rs 40,000/ (Forty
Thousand Only) was paid by him later on. PW2 Sh V. P. Ghai, Branch
Manager of State Bank of Patiala has mentioned that all the cheques
were duly honoured and the amount was duly credited to the account of
Greenway Projects Ltd Company.
12. The accused has put forward a defence that these cheques
were issued by him on the request of the complainant probably because
he was not having the cheque book or bank account. The defence
witnesses have also stated so. The defence part would be examined later
on but the admission of the accused coupled with the testimony of the
bank official establishes ; (a) That accused Mewa Ram issued three
cheques on behalf of the complainant, (b) That these cheques were duly
honoured and the amount was credited to the account of Green way
Projects Company, (c) That complainant Ram Raj handed over a sum of
Rs 51,000(Fifty One Thousand) to the accused.
13. The fact that the cheques issued by the company as return
on the investment were dishonoured is also not disputed. The
complainant, PW4 Ram Raj has deposed that accused handed over to
him nine post dated cheques as return on his investment. Admittedly,
these cheques were dishonoured on presentation. PW1 Jyotirmay Jain,
Senior Manager, Bank of India has deposed that all the nine cheques,
deposited by Ram Raj, were dishonoured. The accused has not disputed
FIR No 400/00 8/15
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the said fact. It is his own defence that the officials of the company fled
away after defrauding complainant as well as many other investors. The
fact that loss to the tune of Rs 51,000/ (Fifty One Thousand) was
caused to the complainant is also not disputed.
14. Now, the material on record is to be examined to conclude
whether the accused has cheated the complainant. Cheating has been
defined under Section 415 IPC. Section 415 IPC reads as under :
"Cheating - Whoever, by deceiving any
person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any
person, or to consent that any person shall retain
any property, or intentionally induces the person so
deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause
damage or harm to that person in body, mind,
reputation or property, is said to "cheat.".
Explanation - A dishonest concealment of facts is a deception within
the meaning of this Section."
Section 415 IPC is required to be read with the definition of the
expression dishonestly as contained in Section 24. The Section states that
whosoever does anything with an intention of causing wrongful gain to
one person or wrongful loss to another person, is said to do that thing
"dishonestly". Now, the record is to be appreciated to see; (i)whether the
accused has dishonestly induced the complainant to make the
investment? and (ii) Whether the complainant was induced by the
alleged inducement to part with his money?
FIR No 400/00 9/15
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15. In order to prove the inducement part, the prosecution has
relied upon the testimony of the complainant PW2 Ram Raj. Let us
examine his statement. He mentioned that he gave a sum of Rs 11,000/
(Eleven Thousand Only) to the accused at his clinic in the presence of
officials of Greenways Ltd Company. He stated that he paid the
remaining amount of Rs 40,000/ (Forty Thousand Only) after
withdrawing it from his bank. He has admitted that certain investment
papers were handed over to him by the accused. These investment
papers were in the form of plantation certificate which are Ex PW4/G,
Ex PW4/H and Ex PW4/I. The witness has deposed about the
inducement part. He stated that accused gave him assurance that he
would get high rate of return on the investment. He has deposed that
accused also gave him the name and addresses of other investors who
had invested and benefited from the investment. He stated that accused
further assured him that he would be fully responsible for the
investment. He mentioned that he approached accused after the first
three cheques of the return on the investment were dishonoured but he
assured him that he would take care of every thing. It is his version that
after making inquiries on his own, he came to know that office of the
company has been closed.
16. Ld defence counsel has attacked the testimony of Ram Raj
on two aspects. Firstly, on the ground that the witness has not withstood
FIR No 400/00 10/15
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the test of crossexamination and secondly, on the ground that his
testimony does not establish the dishonest intention to cheat on the part
of the accused. Ld counsel has contended that initially, the witness was
examined and discharged on 18.12.2010 but subsequently, he was
summoned again by the Ld Predecessor on an application filed under
Section 311 Cr PC. Counsel has contended that vide order dated
03.02.2011, PW4 Ram Raj was recalled but he did not appear to
withstand the test of crossexamination. He has argued that the
testimony of Ram Raj is incomplete and it cannot be read in evidence.
Further, it has been argued by the counsel that even if the entire version
of the complainant is taken to be correct, still, it cannot be concluded
that accused cheated him.
17. I have perused the statement of PW4 Ram Raj in the light of
submissions made by Ld defence counsel. The arguments of the defence
find support from the record. An application under Section 311 Cr PC
preferred by the accused was allowed by the Ld Predecessor and liberty
was granted to crossexamine the witness. The order was conditional
wherein it was mentioned that only one opportunity shall be granted to
crossexamine the witness. Subsequently, the prosecution evidence was
closed by the Ld predecessor with an observation that the witness was
not traceable.
18. Ld APP has contended that the earlier testimony of the
FIR No 400/00 11/15
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witness cannot be treated as incomplete as he could not be traced. He
has mentioned that the testimony of the complainant is admissible and it
cannot be discarded on this ground.
19. On appreciation of record, I am of the considered opinion
that even if the entire testimony of the complainant is accepted as
correct, still, the charges under Section 406/420 IPC are not proved. The
complainant has deposed that he was induced by the accused to invest
money with Greenways Project Ltd. Admittedly, the company had issued
certificate of plantation to him in respect of the investment made by him.
The said certificate are Ex PW4/G, Ex PW4/H and Ex PW4/I. It is a
matter of common knowledge that every prudent man would make some
preliminary inquiry before investing money in a project. There is nothing
on record to suggest that accused Mewa Ram was acting as an agent of
the Greenways Project Company. Taking the prosecution's case at its
best, even if, it be presumed that accused Mewa Ram had made a
representation in the manner deposed by the complainant, there is no
evidence to show that accused had any knowledge that Greenways
Project Ltd company would commit fraud with the investors or that the
officials of the company would fled away after misappropriating the
money of investors. There is no evidence to show that accused
knowingly made any false representation much less dishonestly or
fraudulently. The basic ingredient of the offence of cheating are missing.
FIR No 400/00 12/15
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Reliance in this regard is placed upon Abdul Fazal Siddique Vs Fateh
Chand Hirawat and Ors 1996 (6) SCC 32 wherein it has been held that a
mere representation, which is neither claimed nor alleged to be
dishonest or fraudulent would not attract the charge of cheating only
because complainant parts with his money on the basis thereof. There is
even no evidence to suggest that the money was entrusted by the
complainant to the accused. It is the version of the prosecution itself that
the amount was credited to the account of Greenways Projects Ltd. The
ingredients of Section 406 IPC are also missing.
20. A guilty intention is an essential ingredient of the offence of
cheating. In other words 'mens rea' on the part of the accused must be
established before he can be convicted of an offence of cheating. The law
only punishes the guilty mind. In Hari Prasad Chamaria Vs Bishun Kumar
Surekha and Ors AIR 1974 SC 301, it has been held that unless the
complainant showed that accused had dishonest or fraudulent intention
at the time the complainant parted with the money, it would not amount
to an offence under Section 420 IPC. It was held that dishonest intention
to cheat at the inception of the transaction is essential. The position has
been reiterated in G.V.Rao Vs L.H.V. Prasad and Ors 2000 (3) SCC 693
and Ajay Mitra Vs State of MP and Ors 2003 (2) Supreme 602.
21. Adverting to the facts of the present case, there is no
evidence to suggest that accused Mewa Ram was having a criminal
FIR No 400/00 13/15
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intention to cheat the complainant. There is nothing on record to
demonstrate that he was acting as an agent of the company. There is no
evidence to prove that he induced the complainant for causing wrongful
gain to the company or wrongful loss to the complainant. It is a cardinal
principle of criminal law that charges against the accused must be
proved beyond reasonable doubt. On the other hand, the accused has to
put forward only a probable defence. He is presumed to be innocent
unless his guilt has been proved. The defence put forward by him shall
be rejected only if it is unbelivable or improbable. Accused has put
forward a version that he issued cheques in favour of the company at the
instance of the complainant. DW1 Tej Singh and DW2 Ram Lakhan
have also stated so. They have categorically mentioned that the cheques
were issued on the request of the complainant. The witnesses have
deposed that Ramraj used to prepare banners for Greenways Ltd
company and he knew the officials of the company. The defence raised
by the accused cannot be rejected as improbable.
22. In view of the discussions made in the abovesaid paras, I
have reached a conclusion that prosecution has miserably failed to
establish charges against the accused. Accused Mewa Ram stands
acquitted of the charges under Section 406/420 read with Section 120 B
IPC.
23. Bail Bond stands cancelled. Surety stands discharged.
FIR No 400/00 14/15
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Endorsement placed on the documents of the surety be cancelled and
the same be returned to him, if retained on record.
24. File be consigned to record room after necessary
compliance.
Announced in open Court (Sudhanshu Kaushik)
on this day of 23th July, 2012 Metropolitan Magistrate
Saket Courts, Delhi
FIR No 400/00 15/15
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FIR No 400/00 16/15
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Babu Lal Vs Rakesh Verma
CC No- 407/1/07
PS-OIA
22.03.2012
Present: Complainant in person alongwith counsel
Arguments heard. Record perused.
The complainant has done a construction work for M/s Opera
Global House having its office at D-12/2, Okhla Industrial Area Ph-II, New
Delhi. The payment of the construction work was made to the complainant by
means of various cheques. The details of the cheque have been mentioned in
the para 5 of the complainant. All the said cheques were dishonoured on
presentation. A legal notice dated 06.10.2007 was issued by the complainant
but the amount was not paid by the respondents. The respondent no 1 Sh
Rakesh Verma is stated to be the authorised signatory of M/s Opera Global House while respondent no 2 Sushil Verma is stated to be the proprietor.
In support of the allegations, the complainant has examined himself as CW-1. CW-2 Samim Ahmed is the concerned clerk from J&K Bank where the complainant is holding an account and the cheques were presented. CW-3 Jagdish Sharma has mentioned that he was working as a supervisor under the complainant. The complainant has supported the contents of the complaint. CW-3 Jagdish Sharma has also supported the contents of the complaint.
Admittedly, an oral contract came into existence between the complainant and the respondents. The complainant has himself stated so during his examination. The Section 420 IPC provides punishment for the offence of cheating. There must be some material to prima facie suggest that the respondent had an intention to cheat the complainant. A breach of contract has been committed by the respondents as they failed to make the payment of the FIR No 400/00 17/15 18 bills of the construction work carried out by the complainant.
The fraudulent intention to cheat, at the inception of the contract must be there to demonstrate that the respondent has committed a criminal breach of contract. Every breach of contract cannot be termed as a criminal breach. The record prima facie does not demonstrate the commission of the offence under section 420 IPC. However, there is sufficient material to demonstrate that the respondent no 1 has committed an offence punishable under section 138 of NI Act. The cheques were presented to the bank within the period of validity and they were dishonoured with the remarks refer to the drawer. A legal notice was issued by the complainant but respondent no 1 failed to pay the amount. The criminal complaint is within the period of limitation. Respondent no 1, who has signed the cheques be summoned subject to deposit of PF and RC. However, summoning order qua respondent no 2 (SUDHANSHU KAUSHIK) MM-02/SE/SC/ND 22.03.2012 FIR No 400/00 18/15 19 CC No-103/1/09 23.03.2012 Present: Complainant Sardara Singh in person alongwith the counsel Arguments heard. Record perused.
The complainant Sardara Singh has instituted the present complaint alleging that his mother Smt Surender Kaur (respondent no 3) alongwith her associates (respondent no 4 to 9) committed trespass into a dhaba located at the ground floor of property bearing no D-7/2, OIA Ph-II, New Delhi. The said property was allotted to the father of the complainant (late Sh Gyan Singh), who was a partner in the firm M/s Perfect Steel Industries, which was being run by him and his younger brother Sh Gurdeep Singh (uncle of the complainant).
After the untimely demise of Sh Gyan Singh, his wife Smt Surinder Kaur (mother of the complainant) solemnised marriage with Sh Gurdeep Singh and a male issue was born out of the wedlock. The complainant did not approve the said relationship and on account of the said reason, his mother became vindictive towards him and she tried to sell the property to M/s Ellora Creations without the complainant' s consent. However, a dispute arose between the parties and the deal could not mature because of the timely intervention of complainant. A civil suit bearing no 2617/2000 was instituted by M/s Ellora Creations against Smt Surinder Kaur wherein she sough specific performance of the agreement to sell. The complainant moved an application under order 1 rule 10 for impleading him as a party but before the matter come up for hearing, the said suit was withdrawn.
The son Harpal Singh born out of the second marriage of Smt Surinder Kaur and the complainant are on inimical terms. The complainant has alleged that Harpal Singh attempted to kill him and a case FIR number 354/2001 was registered against him at PS-OIA. Another FIR bearing number FIR No 400/00 19/15 20 500/04 is also stated to have been registered against Harpal Singh and his associates at the same police station.
The complainant has alleged that certain officials of MCD (respondent no 10,11 and 12) have colluded with his mother and they mischievously sealed his dhaba on 11.11.2005 by filing false and fictitious complaint against him. The complainant moved an application for desealing for said premises but no action was taken. On 17.12.2005, certain associates of Smt Surinder Kaur in collusion with MCD officials desealed the said premises and gained illegal possession. A writ petition was preferred by the complainant before the Hon' ble High Court bearing no 1937/06 but the same was dismissed as it was not found maintainable.
The complainant has further alleged that he himself has been falsely implicated in a criminal case bearing FIR no 821/07 under section 452/324/34 IPC by the respondents. He has mentioned that one Vishnu Sharma (respondent no 4), who is an associate of Smt Surinder Kaur is presently in illegal possession of his dhaba. He had stated that local police his hand in glove with the said person and his life has made miserable. The allegations have been levelled that the officials of MCD have illegally collided and connived with Smt Surinder Kaur for desealing of the dhaba. He has alleged that by doing so, the respondents have been able to achieve their illegal motive and he has been dispossessed from the said portion of his property. He has submitted that he is in possession of the entire property apart from the portion of dhaba whose possession has been illegally gained by the respondents. Based on the abovesaid allegations, the complainant has sought directions that the concerned SHO be directed to register FIR in the present matter.
I have perused the entire record.
It has been held by Hon'ble High Court of Delhi in M/s Skipper Beverages Pvt. Ltd. Vs. State reported in 2001 IV AD (Delhi) 625 that " A Magistrate must apply his mind before passing an order u/s 156 (3) of the FIR No 400/00 20/15 21 Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact."
Admittedly, the identity of the respondents is welly established. The complainant has submitted that the respondent Smt Prema is working as a maid at the house of Sh Nalini Ranjan. The said Nalini Ranjan is stated to be residing on the second floor of the same property where the complainant is residing on the ground floor. On perusal of the record, I am of the considered opinion that the matter do not call for any further investigation warranting the indulgence of police officials. In such circumstances, the prayer for issuance of directions for registration of the FIR is declined. The complainant is directed to lead evidence.
Put up for CE on 05.03.2012.
(Sudhanshu Kaushik) MM-02/SE/SC/ND 25.11.2011 FIR No 400/00 21/15 22 Rajender Das Vs Dharmender Yadav etc CC No-23/1/10 23.03.2012 Present: Complainant in person alongwith the counsel Arguments heard. Record perused.
The brief facts as enumerated in the complaint are that complainant Rajender Das and one Heera Singh are property dealers doing sell/purchase of immovable property. On 18.05.2010, one Smt Manju and Sunil Kumar approached the complainant and introduced one Rajesh Dutt Mahay as an intending seller of a plot bearing no C-173 measuring 300 sq yard situated at G.K. Part-I, New Delhi. The complainant verified the ownership documents produced by Rajesh Dutt Mahay and introduced him to an intending purchaser, Sh Dharmender Yadav (respondent no 1). It is stated that the said Dharmender Yadav wanted to purchase the property in the name of his employee Rajender Wadhwa (respondent no 2).
A deal was struck between the parties for a sum of Rs 3 crores 60 lakhs. An agreement to sell was executed by the owner Rajesh Dutt in favour of Rajender Wadhwa and a sum of Rs 36,00,000/- was paid to the owner as earnest money and it was agreed that the balance amount would be paid by Dharmender Yadav at the time of execution of the sale deed. It has been mentioned that a sum of Rs 2 lakhs was paid by Dharmender Yadav in cash and an amount of Rs 9 lakh was paid by means of two cheques dated 22.05.2010. The complainant has stated that at the time of execution of the agreement to sell, all the original documents were handed over to Dharmender Yadav. It has been mentioned that Dharmender Yadav requested the owner to return the cheque of Rs 25 lakhs which was paid towards the earnest money on the pretext of making the payment in cash. 3.
The allegations made in the complainant are that the respondents FIR No 400/00 22/15 23 have revoked the agreement to sell submitting that Rajesh Dutt is not the recorded owner of the property. The complainant has also narrated an incident dated 15.06.2010, submitting that on the said date the respondent had entered his office and abused him as well as his partner Heera Singh.
It has been held by Hon'ble High Court of Delhi in M/s Skipper Beverages Pvt. Ltd. Vs. State reported in 2001 IV AD (Delhi) 625 that " A Magistrate must apply his mind before passing an order u/s 156 (3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact." Admittedly, the identity of the respondents is well established. The complainant himself has mentioned in the complaint that Dharmender Yadav wanted to purchase the plot in the name of his employee Rajender. It appears from the contentions in the complaint that a benami transaction was taking place between the parties and the complainant was also a party to it. On perusal of the record, I am of the considered opinion that the matter do not call for any further investigation warranting the indulgence of police officials. In such circumstances, the prayer for issuance of directions for registration of the FIR is declined. The complainant is directed to lead evidence.
Put up for CE on 05.03.2012.
(Sudhanshu Kaushik) MM-02/SE/SC/ND 25.11.2011 FIR No 400/00 23/15