Delhi District Court
Sh.Prem Chand vs M/S. Cool All Beverages Pvt. Ltd on 17 April, 2013
1
IN THE COURT OF SH. NAROTTAM KAUSHAL, SPECIAL JUDGE
(PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Crl. Complaint Case No.8/2012
Case ID No. (02401R0447362012)
In the matter of :
Sh.Prem Chand
S/o Shri Suraj Bhan
R/o 1800, Gulabi Bagh, Delhi .......Complainant
VERSUS
1 M/s. Cool All Beverages Pvt. Ltd.
Plot No.242 (Ground Floor), Industrial Area,
PatparGanj, Delhi
2 Sh. Farhad Suri (All Directors of M/s. Cool
3 Sh.P.S.Sareen All Beverages Pvt. Ltd., Plot No.242
4 Sh.Dhiren Naulakha Industrial Area, Patparganj, Delhi)
6 DHO (Shahdara South Zone)
MCD, Karkardooma, Delhi
7 Assistant Commissioner,
Factory License Department
MCD, Kashmere Gate, Delhi
..........Accused persons
Appearance: Sh.Suraj Bhan, counsel for the complainant with
complainant in person
JUDGEMENT
1.1 Present complaint seeks investigation of the case after registration of the FIR. Complaint is also accompanied by an application u/sec.156 (3) Cr.P.C. with a prayer to seek investigation after registration of case in the PSAnti Corruption Branch.
Page 1 of page 7 2 1.2 Allegations as set out in the complaint entail a story of relations between landlord and tenant, getting sour. Complainant Prem Chand rented out his premises to respondent nos.1 to 4 @ Rs.20,000/ per month, vide agreement dated 25.05.2003 for a period of 5 years, expiring on 31.05.2008. The rent agreement was registered. The premises was let out for industrial and commercial activities. Advance rent of Rs.1,00,000/ was paid by the tenants, presumably for a period of 5 months. However, the relations were strained within a short time and tenancy was sought to be terminated by notices dated 27.10.2004 and 22.12.2004. Respondent nos.1 to 4 in the meantime sought permission from MCD and Delhi Pollution Control Committee for setting up an Ice Cube Manufacturing Unit. Electricity connection was also sought from BYPL. License was granted by MCD on 10.05.2005. Similarly, electricity connection was allowed by BYPL. The respondents nos.1 to 4 submitted forged NOC/ affidavit and Rent receipts to the concerned authorities. Suit for eviction and possession, filed by the landlord, stands decreed; though there is a stay operating thereon.
1.3 It is the case of the complainant that license by MCD and connection by BYPL were procured by respondents nos. 1 to 4 using forged documents, indicating 'no objection' from the landlord. The tenancy having already been terminated. Complainant/ landlord had expressed his objection to MCD as well as BYPL for grant of license/ connection. An FIR for offences punishable u/sec.420, 461, 463, 468, 471, r/w/sec.120B of IPC bearing no.371/05 PSAnand Vihar was registered against respondents nos.1 to 4 having submitted forged documents to MCD/ BYPL. Respondents No. 1 to 4 were running ice cubes manufacturing unit without Health Trade Licence. A complaint was made to MCD u/s 417 of MCD Act against respondent No. 1, DHO ( respondent No. 5) directed challan of the respondent's factory. A closure notice was also served on 3.2.2005 u/s 423 of the MCD Act. However on 9.5.2005 an illegal licence u/s 417 of MCD was issued by respondent No. 6. Respondents No. 5 and 6 did not take appropriate action u/s 417 of the MCD Page 2 of page 7 3 Act intentionally or by corrupt & illegal means by abusing their official position as public servant to obtain pecuniary advantage for themselves. Thus they committed an offence punishable u/s 13(2) of PC Act r/w various provisions punishable under IPC.
2 A status report was sought from the SHO, PSACB. It was reported that affidavit/ NOC and rent receipts disputed by the complainant were sent to Examiner of Questioned Documents. As per the report submitted by FSL, signatures of present complainant on affidavit/ NOC dated 07.02.2004 and the rent receipt dated 10.06.2004 matched with his admitted signatures. It is, further, reported that MCD had not relied upon NOC for granting license to the respondents nos.1 to 4, reliance was placed by MCD on stipulations in rent agreement dated 25.05.2003. The disputed NOC was, also, not used by respondents nos.1 to 4 in obtaining the license for MCD or the electricity connection. It was reported that as per prevailing policy Health Trade Licence was required to be obtained for sale of ice; the trade for manufacturing ice cubes was not covered.
3.1 Sh. Suraj Bhan, ld. Counsel for the complainant has argued that the MCD granted Factory License to the respondents nos.1 to 4 despite termination of tenancy by complainant. The documents furnished by respondents no.1 to 4 to MCD & BYPL were forged and fabricated. Suit for possession filed by complainant/ landlord was decreed. An appeal was filed by tenants, wherein, decree of possession has been stayed. Respondent no.2 being a Municipal Counselor/ Mayor had hatched conspiracy with the MCD officials for issuance of a Factory License. Respondents No. 5 and 6 challaned the respondents No. 1 to 4 for violation of Health Trade Licence and also issued closure notice but failed to take the action of closure of unit. They had apparently misconducted others and abuse their position as public servant for pecuniary gain for not closing the unit of respondents No. 1 to 4.
3.2 It was further submitted, at bar, by Sh.Suraj Bhan - Adv. that the matter is Page 3 of page 7 4 his personal dispute. The complainant is his son and an employee of Delhi District Courts. Counsel is a retired judicial officer, who is being victimised by the tenants in collusion with various public authorities.
4 I have heard the ld. Counsel and perused the complaint, documents furnished and the status report. There is no dispute with the preposition of law that on the basis of information disclosed, if a cognizable offence is made out FIR ought to be registered. However, before issuance of direction for registration of FIR or for conducting investigation u/sec.156 (3) Cr.P.C.; it is incumbent upon the court to look into the allegations and find out if the allegations constitute any cognizable offence to have been committed. A Division Bench of the Karnantaka High court, in the decision reported as 1999 Cri LJ 3909 Guruduth Prabhu and Ors. Vs. Krishna Bhat and Ors. observed as under: "If every complaint filed u/sec.200 Cr.P.C. is referred to the Police u/sec.156 (3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complainants, in order to harass the alleged accused named by them in their complaints, making bald allegations just to see that the alleged accused are harassed by the police, who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police."
Relying upon the aforesaid judgment, Honbe High Court of Delhi in State Vs. Mohd. Iqbal Ghazi reported as (2008) 154 DLT 481 held as under: "It is apparent that the principle that every information relateable to the commission of a cognizable offence must lead to the registration of a FIR has to be understood in its correct perspective, being that, if the information is prima facie credible; is definite and has a substance, the Page 4 of page 7 5 FIR must be registered. But where the information is vague and prima facie lacks credibility, an FIR need not be registered and some preliminary inquiry would be permissible to find out whether the information sought to be lodged has any substance therein or not."
5.1 Directing investigation or lodging of FIR against a public servant for offences under the PC Act has serious implications. It may adversely impact his career, reputation, recognition, selfesteem and social life. The allegations might be preposterous, absolutely false or half truths. The motive of vendata, in making the allegations, can also not be ruled out. Thus, it becomes imperative to evaluate the allegations.
5.2 In the present case, apparently there is breach of faith between the landlord and tenant. They are pitched against each other in multifarious litigations. A suit for permanent injunction has been filed by the tenants. Suit for possession had been filed by the landlord, which was decreed. Appeal is now pending before the Hon'ble High Court of Delhi. Landlord also lodged FIR bearing nos.371/05, PSAnand Vihar, alleging cheating and forgery against the tenants; which FIR was investigated and sought to be closed. The alleged violation by respondents No. 1 to 4 for running the ice cubes manufacturing unit without Health Trade Licence is perse misconceived. There is no licence required to be obtained from MCD for running the aforesaid unit. Licence is required to be obtained only for sale of ice. Respondents No. 1 to 4 who are engaged in the business of manufacturing ice cubes were thus not violating any of the provision of DMC Act. They had been wrongly challaned by respondents No. 5 and 6 and subsequent action was aparently not taken as there was no violation found. Thus the action of respondents No. 5 and 6 was perfectly in consonance with law. Allegation of corruption is totally misconceived and uncalled for. If all cases, which are decided by a public servant against the interest of a party are alleged by such party, to be coloured with misconduct, it will be impossible for a public servant to discharge his/ her Page 5 of page 7 6 duties fearlessly. Making bald allegations of corrupt practice is extremely easy. In the absence of any detailed, explicit and unequivocal allegations of demand and acceptance of illegal gratification, I find absolutely no sufficient reasons to direct registration of FIR or investigations to be conducted.
5.3 It will not be out of place to mention here that present complaint is one of the 10 (ten) complaints filed by the complainant, before this court against officials of various institutions which have granted sanctions to complainant's tenants. All the complaints contain same allegations against the tenants and similar allegations of abuse of powers by the officials of respective institutions. This pattern suggests the hypothesis that complaints are vindicative towards the officials of institutions which have allowed the tenants to continue with trade in the tenanted premises. Without recording any finding on the termination of tenancy; this court shall, however, observe that rent agreement was entered for a period of 5 years and it permitted the premises to be used for industrial and commercial activities.
5.4 The application u/sec.156 (3) Cr. P.C. is, therefore, dismissed.
6. As regards, the complaint, this court can not take cognizance as the same is explicitly barred u/sec.19 of the PC Act. There is no averment in the complaint that sanction u/sec.19 of the PC Act from the competent authority has been sought or granted for prosecuting respondents no.6 & 7 under the PC Act. For ready reference, Section19 of the PC Act is reproduced herein below: "19.Previous sanction necessary for prosecution: (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13, and 15 alleged to have been committed by a public servant, except with the previous sanction....................................."
7 In view of absence of mandatory sanction for prosecuting respondents no.6 & 7 for offences punishable under the PC Act, the complaint is also Page 6 of page 7 7 dismissed. As regards the offences punishable under IPC, this court being a special court can not take cognizance. The application and the complaint are accordingly dismissed.
File be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 17.04.2013. SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
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