Delhi District Court
Additional Sessions Judge (North) : ... vs Anil Grover on 25 August, 2009
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
Criminal Revision No. 11/09
State ...REVISIONIST
Vs.
1 Anil Grover
S/o Sh. Agya Ram
R/o H.No. 85,Sham Nagar, Delhi
2. Deepak Kouchia
S/o Sh. Om Prakash
R/o VI, F-69, Nand Nagri, Delhi
3 Raj Kumar @ Rajesh
S/o Sh. Agya Ram
R/o H.No. 85, Sham Nagar, Delhi
4 Santosh Tandon
S/o Sh. Jugal Kishore
R/o 2891, Chait Puri
Chandni Chowk, Delhi
5 M/s. Raj International Consultant
103, Magnum House No. 1,
Karam Pura Complex, House No. 1
Delhi. ...RESPONDENTS
Arguments heard: 11.08.09
Judgment announced: 25.08.09
ORDER
By the present order, I shall dispose of the revision petition filed by the State against the order dated 14.11.07 passed by ld. ACMM, Delhi. Vide the said order, the ld. trial court had discharged all the respondents in respect of offences they were chargesheeted vide FIR No. 205/93, P.S Moti Nagar.
22 Brief facts of the case are that in the year 1992, the complainant Ramu Lal read an advertisement of Raj International Consultant, Magnam House No. 1, Karampura Complex, Delhi in the newspaper regarding the vacancy for foreman in Dubai and UAE. After reading the advertisement, he visited the office of the respondents on 15.02.92, where he met the respondent Anil Grover and Deepak Kochar alongwith his colleagues Mange Ram, Mahadev Prasad and Nar Singh. The respondents/accused persons Anil Grover and Deepak Kochar told them that masons were urgently required for Dubai and there was vacancy of more than 100 persons for sending them to Dubai. They further stated that many persons were interested to go for the job. Therefore, the person who deposited the money first would be sent abroad. The respondents promised them that within one and half months they would be sent for job. The respondents also stated to them that they would charge Rs. 15000/- per person as advance. On the next day, i.e. on 16.02.92, the complainant alongwith Mange Ram, Nar Singha and Mahadev visited the office of Raj International and in the presence of respondent Anil Grover they paid an amount of Rs. 5000/- per person to the respondent Deepak Kochar. The respondent Anil Grover assured them and stated to come after one month. He (Anil Grover) also took their passports. After one month, all the four persons met respondent Deepak Kochar, who told them to come after fifteen days. In this manner about five months passed but the respondents did not send them abroad. 3 They again visited the office, where respondent Raj Grover met them, who promised that they would be sent to Dubai for job as the respondents had licence for man-power supply. He (Raj Grover) also stated to them that they got the demand of job for Qatar and they could go to Qatar in stead of Dubai. He also stated to them that they (complainant and three others) would have to go to Mumbai for flight where Deepak would meet and make all the arrangement for them. The respondent Raj Grover gave them the address of Deepak of Bombay. The complainant alongwith three colleagues went Bombay and met Deepak. They stayed there and returned to Delhi on fourth day as Deepak told them that it was difficult to get a flight for Qatar from Bombay and they would get it only from Delhi. After reaching Delhi, the respondent Raj Grover showed them the air ticket for Delhi to Qatar, booked in the name of complainant and Mange Ram but the tickets were not confirmed. Deepak demanded Rs. 10,000/- to be paid by the complainant and Mange Ram for getting the tickets confirmed. The complainant and Mange Ram paid Rs. 10,000/- to the respondent Deepak in the presence of respondent Anil Grover. Respondent Deepak Kochar asked the complainant and Mange Ram to come on next day for getting the tickets and VISA. The complainant and his colleagues went to the office of the respondents but neither the tickets nor the VISA were given to them. The accused persons neither sent them abroad for job nor returned their money. The respondents have deliberately cheated 4 them on the pretext of sending them abroad for job and misrepresented the facts to them. The respondents have grabbed the hard earned money of the complainant and others.
3 The ld. ACMM discharged above respondents on 14.11.07 by holding that the alleged act of cheating by the accused persons falls squarely within the purview of Section 24(g) of Emigration Act and would not attract the provisions of IPC. The accused cannot be charged under the Emigration Act for want of sanction U/S 27 of the Act. 4 The State has challenged that order of ld. ACMM on the grounds; that ld. ACMM failed to appreciate the fact that the respondents have cheated and grabbed the hard earned money of approximately 24 persons; that the ld. ACMM failed to appreciate that the provisions, contained in Sub Section (2) of Section 39 of Emigration Act, 1983, wherein it is clearly mentioned that the provisions of Sub Section(1) of Section 39 are in addition to and not in derogation of any other law for the time being in force; that the accused were liable to be charged for commission of offence U/S 420 and 120B IPC even if there was no sanction U/S 27 of the Emigration Act; that the ld. ACMM failed to appreciate the fact that in pursuance of deception, the victims had paid hard earned money to the accused persons and the case was covered U/S 420 IPC; that the ld. ACMM failed to appreciate that the law laid down by the Hon'ble Delhi High Court in Cr. Revision No. 300/83 titled as C.K Gutpa V. Baljit Singh Sood & Anr., wherein it was held that the 5 Magistrate should not discharge the accused at the stage of framing of charge by attaching weight to the probable defence of the accused. The Magistrate should not weigh the whole material in a fine scale as if he was recording a judgment of acquittal; that the ld. ACMM failed to appreciate the fact that the intention of the accused was dishonest from the very beginning itself as revealed from the statements of victims because the accused persons had demanded different amount of money from different victims; that the ld. trial court failed to appreciate the law laid down by the Hon'ble Supreme Court in State of Bihar V. Ramesh, AIR 1977 SC 2018 and the view taken by the Hon'ble High Court of Delhi in Manjeet Kaur V. Delhi Administration 1985 (7) DLT33; that the ld. trial court ought to have simply look at the broad facts of the case to find out as to whether a prima facie case of cheating was made out or not; that the ld. trial court totally ignored the nature of offence committed by the respondents/accused persons.
5 I have heard arguments from ld. Addl. PP and ld. counsel for all the respondents/accused persons.
6 During the arguments, ld. Addl. PP for State has conceded that no charge could be framed against the respondent/accused persons for the offences U/S 24 & 25 Emigration Act for want of necessary sanction. He has submitted that the offences U/S 24 and 25 of Emigration Act were subsidiary offences, allegedly committed by the respondents/accused persons and the main offences were U/S 420/120B 6 IPC.
7 Ld. trial court in order dated 14.11.07 inter-alia observed as follows:-
"A well settled principle of interpretation of statues is that the provision of a special act would over ride the provision of a general act to the extent of applicability of the special act to the circumstances. Thus, if an immigrant or intending immigrant is cheated by an outsider in an incident totally out of the purview of the Emigration Act, section 24(g) of the Act made not bar the applicability of section 420 IPC. However, in the case on hand, the offence of cheating is alleged to be committed by the accused persons in the process of recruiting them for jobs abroad. The accused persons are admittedly recruiting agents U/s. 10 of the Act and are duly registered with the registering authority appointed U/s 9 of the Emigration Act. This fact itself is no where disputed by the alleged victims in their statements or by the investigating agency in the charge-sheet. The allegations against them is that they issued an advertisement in the News Papers for recruiting for jobs in UAE and Dubai which they are authorised to do under the act. Cheating is sought to be imputed to them only on the ground that they finally did not recruit the victims for the said jobs.
In my considered view the above act alleged against the accused persons falls squarly within the purview of section 24(g) only and therefore, would not attract the provisions of IPC. The Ld. APP has also cited several judgments to contend that inducement for delivery of money amounts to cheating. He has also read out statements of some of the victims recorded U/s. 161 Cr.PC to show that the accused persons had quoted different amounts of fees to 7 different victims and has argued that this amounts to dishonest intention and consequently, to cheating said victims. However, as already mentioned above, all these acts have been done in the process of recruiting people in jobs which the accused persons were authorised to do, being registered recruiting agents and therefore, even if they amount to cheating, this would be 'cheating' as covered by section 24(g) of the Emigration Act and not section 420 IPC."
8 It is stated in the present revision petition that Ld. ACMM failed to appreciate Sub-Section (2) of Section 39 of the Emigration Act, 1983. The said provision provides as below-
"Same as provided in Sub-Section (1) the provisions of this Act shall be in addition to an not in derogation of any other law for the time being in force".
9 I am of the considered view that Section 39(2) of Emigration Act is not applicable in respect of a subject specially covered by the said Act. Since offence of 'cheating any immigrant' is specifically covered by Section 24(g) of Emigration Act, 1983, section 39(2) of the said Act is not relevant in this regard. Hence, Section 420 IPC is not applicable in the present case.
10 Ld. trial court in its order dated 14.11.07 inter-alia observed as follows "I am therefore, satisfied that the provisions of Section 420 IPC is not attracted in the present case. The accused cannot be charged under the Emigration Act for want of sanction u/s. 27 of the Act. Accordingly, all accused are hereby discharged." 8 11 Section 27 of the Emigration Act, 1983 provides as below:-
" No prosecution shall be instituted against any person in respect of any offence under this Act without the previous sanction of the Central Government or such officer or authority as may be authorised by that Government by order in writing in this behalf:
Provided that no sanction shall be required when an offence has been committed in respect of an emigrant or an intending emigrant and the complaint is filed by such emigrant or intending emigrant, or on behalf of such emigrant or intending emigrant, by the father, mother, husband, wife, son, daughter, brother, sister or guardian of such emigrant or intending emigrant, or if such emigrant or intending emigrant is a member of a joint Hindu family, by the manager of that family. "
12 It is worth noting that in the present case, the complainant is Ramu Lal. It must be the prosecution case that he is an intending emigrant as defined under Section 2 (d) of Emigration Act. In view of proviso to Section 27 of the Emigration Act, no sanction is required when offence has been committed in respect of an Emigrant or an intending imigrant and the complaint is filed by such emigrant or intending Emigrant.
13 Before ld. trial court, it was one of the arguments of the accused persons that offence U/S 24 (g) of the Emigration Act is punishable with imprisonment for two years and, therefore, the limitation prescribed for the same U/S 468 CrPC is only three years. The charge sheet, filed after ten years of the commission of offence is, therefore, beyond period of 9 limitation.
14 Before ld. trial court, ld. Addl. PP argued that limitation of two years (should be three years) will not apply even if it is held that Section 420 IPC is not made out, because the matter has been investigated and charge sheet has been filed under the provisions including Section 420 IPC. The Section 468 Cr.PC bars the cognizance beyond the period of limitation. However, once cognizance is taken of an offence for which Section 468 CrPC does not provides any period of limitation the subsequent deletion of said offence will not affect the validity of cognizance or of subsequent proceedings.
15 Ld. trial court observed as below:
"Be that as it may, in case it is held that the offence U/s. 420 IPC is not made out, the accused persons cannot be tried in this case since trial of the remaining offences u/s. 24/25 of the Emigration Act is barred for want of sanction as observed in the preceedings paragraph."
16 I am of the considered view that period of limitation will have to be considered only in reference to offences, which are attracted in the facts of a case and not in reference to offences in respect of which charge sheet has been filed. I am also of the considered view that issue of validity of cognizance re-opens if the offences in respect of which accused are charged by the court and offences, in respect of which charge sheet has been filed are different and if the said difference materially affects the question of limitation in taking cognizance. 10 17 In view of above discussion, it is held that in the facts of present case offence under Section 24(g) of Emigration Act is attracted. Since, the charge sheet has been filed beyond period of limitation as prescribed under Section 468 CrPC, cognizance of the offence could not be taken by ld. trial court. Accordingly, the present revision petition filed by State is dismissed.
Trial court record with copies of this order be sent back. Revision file be consigned to Record Room.
Announced in the open court today.
(Smt. Bimla Kumari) Additional Sessions Judge(North) Tis Hazari Courts, Delhi.