Delhi District Court
Ms. Pushpa Chaudhary vs State on 6 April, 2023
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision625/2022
CNR No. DLND010102202022
Ms. Pushpa Chaudhary
D/o Sh. Sevaram Nain
R/o 11th Floor, Gym View Building
Khar, Mumbai400052 ...... Revisionist
Versus
1. State
of NCT of Delhi
2. Mr. Vinod Khetawat
S/o Late Sh. Kishan Lal Khetawat
President, Tirmula Seven Hills (P) Ltd.
40, Strand Road 3rd Floor,
Kolkata700001 ...... Respondents
Date of institution : 24.11.2022
Date of hearing arguments : 22.03.2023
Date of order : 06.04.2023
Appearances:
Sh. Arshdeep Singh and Sh Aditya Chopra, Advocates for the revisionist.
Sh. Ravinder Khandelwal, Addl. PP for the State/ respondent No.1
Sh. Yash Anand, Sh. Sunil Dahiya and Ms. Ravipreet Kaur, Advocates for
the respondent No.2.
ORDER:
1. This order shall decide the present Criminal Revision filed in terms of Section 397 read with Section 399 of the Code of Criminal Procedure, 1973, moved at the behest of the revisionistaccused(A2) assailing impugned order dated 16.11.2022 passed by Ms. Snigdha Sarvaria, Ld. CMM, New Delhi District, Patiala House Courts, New Delhi in Criminal Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 1 of 26 Complaint bearing CC No. 1338/2020 vide FIR No. 23/2018 PS Crime Branch titled as 'State v. Prashita Chaudhary and Ors.', whereby the application moved by the respondent No.2/complainant and the Investigating Officer for further investigation was allowed.
2. Notice of the present Criminal Revision was served upon the respondent No.1/State as also respondent No.2/complainant Vinod Khetawat and a detailed reply has been filed opposing the revision petition on behalf of the respondent No.2/complainant. The Trial Court record has been summoned and made available as well.
FACTUAL MATRIX:
3. In order to appreciate the pith and substance of the controversy raised in the Criminal Revision, it would be expedient to elucidate the factual matrix of the case. A complaint was filed by the respondent No.2/complainant Vinod Khetawat on 12.12.2016, the gist of which is that he had come in contact with a group of family from Delhi/Mumbai represented by Prashita Chaudhary (A1) alongwith her husband Mr. Kamal Taneja, Ms. Pushpa Chaudhary (A2), Mr. Khitij Chaudhary (A3, Mrs. Manish Chaudhary, Mrs. Geetanjali Chaudhary and Mrs. Ruchika Sharma, who cheated him by making him believe about several Media projects and reposing his trust in their promises, he advanced a sum of Rs.26.57 Crores through RTGS from time to time during the period 30.01.2013 to 07.03.2015, which amount was directly deposited in the newly promoted company M/s. Cinemorphic Pvt. Ltd. ('CPL') promoted by Mr. Parshita Chaudhary(A1) as well her personal bank account, which company was being run by A1 with her mother Ms. Pushpa Chaudhary (A2) along with other Directors Mr. Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 2 of 26 Khitij Chaudhary, Mrs. Geetanjali Chaudhary, Mrs. Ram Kumari Anandlal Mandal and Kamal Taneja.
4. It was alleged by the complainant that initial payments were made more as project investment towards Media project with promise of 500% profit and later on A1 informed that since the project investment has increased, he was offered to convert project investment into 30% equity of 'CPL' but neither any shareholder's agreement nor transfer of shares were effected and for several months after chasing A1 no accounts were rendered and his money was not refunded, so much so that money around 60 crores from profit and sale of equity shares were not given to him; and it was finally revealed that both A1 and A2 are fraudsters and have been cheating several persons in the country and abroad.
5. On the basis of said complaint dated 12.12.2016, the present FIR was recorded on 06.02.2018 and after investigation, final police report/chargesheet was filed on 25.11.2019 by SI Kulbeer. In a nutshell, the IO concluded that no evidence was found against Kamal Taneja, Khitij Chaudhary, Manish Chaudhary, Geetanjali Chaudhary, Ram Kumari Anandalal Mandal, Ruchika Sharma and D.N. Taneja and the chargesheet was filed thereby arraigning A1 and A2 for commission of offence punishable under Section 406/34 IPC. It is a matter of record that cognizance of offence was taken by the then Ld. CMM, New Delhi District, Patiala House Courts, New Delhi vide order dated 28.11.2019, and accordingly summons were ordered to be issued to the accused persons viz., A1 & A2, which order was assailed by the accused persons viz. Prashita Chaudhary (A
1) and her mother Pushpa Chaudhary (A2) before the Hon'ble High Court of Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 3 of 26 Delhi in W.P. (Criminal) 2046/22 and Crl MA7711/2022, which was disposed off vide order dated 11.10.2022 by the Hon'ble Judge of the High Court of Delhi, New Delhi observing that "the impugned order dated 28.11.2019 was wholly a cryptic without any reasons and did not even mention offences qua which cognizance had been taken by the Ld. CMM. Accordingly, the impugned order dated 28.11.2019 was setaside with direction to the Ld. Trial Court to pass a speaking order qua cognizance to be taken, specifying also the offences in relation to which cognizance is taken and it was directed that the said aspect be considered by the Ld. Trial Court on 13.10.2022".
6. It is pertinent to mention here that in the interregnum, the complainant/respondent No.2 had filed an application under Section 156(3) read with Section 173(8) of the Cr.P.C dated 22.02.2021 in the nature of a Protest Petition and seeking further investigation/re investigation into his grievances on the primarily on the ground that investigation had not been carried out on his complaint and the IO had not collected the evidence against the other accused persons for commission of offence under Section 120B/34/420/406/409 IPC; and that it was a specific objection vide paragraph (3) at page 2 of the application that no investigation had been carried out against accused D.N. Taneja who had allegedly allured him into investing funds for the Media business and no efforts were made by the IO to trail the money siphoned off in the accounts of the other accused persons.
7. It appears that on moving the said application, Ld. CMM called for reply of the IO vide order dated 01.03.2021, which reply was filed by SI Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 4 of 26 Dhiraj Kumar, SectionIV/EOW on 06.09.2022 bringing to the fore that in view of the representation made by the complainant and the Protest Petition, the EOW has initiated 'further investigation' into the matter and conducting detailed examination of the witnesses so as to find out the aspect of siphoning of the funds and its ultimate destination. It appears that during the course of such investigation accused Khitij Chaudhary was summoned by the IO for investigation and he assailed further investigation into the matter by the IO by filing Writ Petition No. 144/2022 titled as Kitij Chaudhary v. State and the Hon'ble Judge of the High Court of Delhi, New Delhi vide order dated 05.07.2022 inter alia made observations about the prayers made by the complainant in the application under Section 156(3) read with Section 173(8) of the Cr.P.C. viz. about the grievance that accused D.N. Taneja has not been arraigned as an accused and for not filing chargesheet for commission of offence under Section 120/420/409 IPC and further investigation qua all other accused persons including D.N. Taneja. Suffice to state that Addl. Standing Counsel conceded before the Court that in view of pendency of application seeking permission for formal investigation by the IO, State should have waited for further directions by the Ld. Trial Court, and therefore, it was directed that "till disposal of the application filed by the respondent No.2 i.e. the complainant before the Ld. Trial Court under Section 156(3) read with Section 173(8) Cr.P.C. the petitioner i.e. accused Kitij Chauhdary shall not appear before the IO but shall not leave the country without permission of the Ld. Trial Court".
8. In the said background, the matter came up to be heard by the Ld. CMM, New Delhi District, Patiala House Courts, New Delhi on Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 5 of 26 16.11.2022 and it appears that the Court considered previous orders dated 05.07.2022 as also 11.10.2002 and the operative portion of the impugned order dated 16.11.2022 goes as under: "Considering that in the table at page No.9 and 10 of the charge sheet, transactions have been shown from the account of accused company Cinemorphic Pvt. Ltd. into the account of accused Pushap Chaudhary, Parashita Chaudhary, K.C. Production and Kshitiz Chaudhary. For identifying the money trial investigation qua bank accounts of all the abovesaid should have been carried out by the IO which he has not done, merely because other named accused in the complaint of the complainant were not directors of Cinemorphic Pvt. Ltd. did not mean that IO could not have investigated them and without investigation mentioning that there is no evidence qua other named accused persons as mentioned by the complainant is not sufficient. Clearly, investigations on these aspects need to be carried out to ascertain role of other named accused persons, if any, as well as to ascertain offences under any other Section of IPC, if attracted.
In view of the aforesaid, application filed by the complainant and the IO for further investigation is allowed.
IO is directed to expeditiously investigate the matter and file police report/supplementary chargesheet by the next date of hearing.
IO is at liberty to move appropriate application for taking the original file/record for the purpose of further investigation.
GROUNDS OF REVISION:
9. The impugned order dated 16.11.2022 passed by the Ld. CMM, New Delhi District, Patiala House Courts, New Delhi has been assailed in the present Criminal Revision primarily on the ground that same has been passed in violation of the last order of the Hon'ble Judge of the High Court of Delhi, New Delhi dated 11.10.2022 whereby Ld. CMM had been directed to consider the issue of taking cognizance and pass a reasoned order as to the offences committed; and that the Ld. CMM failed to appreciate that the dispute between the parties was purely of civil nature since petitioner's Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 6 of 26 daughter Prashita Chaudhary had agreed to sell her 30% share holding the 'CPL' to the respondent No.2/complainant and there were exchanged several emails between the parties including the draft MoU sent by the complainant and after several parleys a MoU dated 22.11.2014 was executed between the parties but respondent No.2/complainant backed out of his commitment; and that it was the complainant who failed to complete the transaction by failing to pay the entire consideration and failing to execute required documents to the satisfaction of both the parties; and that the Ld. CMM failed to appreciate that emails exchanged between the parties as also MoU dated 22.11.2014 clearly brought out that the complainant had exercised extensive due diligence while deciding to enter into the said transaction; and that the impugned order which is disguised as an order for 'further investigation' but in all practical legal effect an order thereby calling upon the police to reinvestigate or conduct denovo investigation which is impermissible in law; and that the Ld. CMM wrongly observed that any further investigation was required in respect of table at pages (9) and (10) of the chargesheet so as to unearth the trail of money and failed to consider the chargesheet whereby the IO had pointed out that measures for production of few movies were indeed undertaken during the relevant period but turned out to be not successful or profitable; and that in any case Rs. 81,50,312/ had been refunded to the complainant; and that the IO had categorically reported in the chargesheet that there was no evidence to arraign D.N. Taneja as an accused and Ms. Ram Kumari Anandalal Mandal became Director only from 29.06.2016 whereas Khitij Chaudhary was Director for a short period of 26.07.2014 to 28.07.2014 i.e. for three day only and the Ld. CMM failed to Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 7 of 26 ignore that the IO in the charge sheet dated 25.11.2019 had finally concluded that there was unearthed no evidence that the funds had been siphoned or transferred to the bank account of the other accused persons except for A1 and A2.
ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE PARTIES:
10. Mr. Arshdeep Singh, Ld. Counsel for the petitionerrevisionist vehemently urged that the respondent No.2/complainant had filed an application under Section 156(3) read with Section 173(8) of the Cr.P.C. on 22.02.2021 i.e. after more than one and half years of filing of the charge sheet on 25.11.2019 and that in the initial complaint dated 12.12.2016 no allegations have been levelled against members of the family of A1 and A2 and it was during the course of investigation that for the first time respondent No.2/complainant tried to rope all the family members in order to indulge in 'arm twisting technique' so as to coerce and force them into submissions. It was vehemently urged that the impugned order dated 16.11.2022 passed by the Ld. CMM amounts to directing the police to conduct denovo or re investigate the matter, which is not permissible in law and could only be done on the directions of the Superior Courts. In order to canvass that this Criminal Revision is maintainable, reliance was placed on decision in the case of Nishu Wadhwa v. Siddharth Wadhwa,MANU/DE/0043/2017, decision in Crl. Rv. P. 197/2018 titled as Surender @ Tannu @ Tanva v. State of NCT of Delhi dated 13.06.2022; Rajinder Prasad v. State, (1995) 101 Crl.L.J. 2879 (Delhi) and in order to buttress his submissions that the impugned order was amounting to reinvestigation or denovo investigation which is not permissible, reliance is placed on decisions in Ram Lal Narang Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 8 of 26 v. State (Delhi Administration), (1979) 2 SCC 322, Vinod Tyagi v. Irshad Ali @ Deepak &Ors., (2013) 5 SCC 762.
11. Per contra Mr. Yash Anand, Ld. Counsel for the respondent No.2/complainant vehemently urged that the impugned order dated 16.11.2022 cannot be questioned in Criminal Revision, for which heavy reliance is placed on decision in the case of Union of India v. W.N. Chadha, 1993 SCC (Crl.) 1171; Girish Kumar Suneja v. CBI, (2017) 14 SCC 8096;
Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. & Ors., (1999) 5 SCC 740. It was then vehemently urged that the IO did not conduct a fair and honest investigation into the matter and to be precise the main IO while conducting investigation into the matter failed to collect and inquire into the income tax returns of the accused persons; the ROC records of the companies for the years 20102011, 2011 2012 and 20122013 till date ; and IO failed to inquire into the aspect of siphoning of funds/ monies transferred in the companies run by other accused persons, failing to inquire if there were any agreement for such transfers, and failing to collect copies of such agreements, the list of directors of the companies and failing to collect evidence about the purpose for which the monies were utilized besides failing to summon the other accused persons with their financial statements and not examining their bank accounts etc. DECISION:
12. I have given my thoughtful consideration to the vociferous submissions made by the learned Counsel for the rival parties at the Bar. I have perused the record of the present revision petition as also the trial Court record. I have also gone through the case law as also the written submissions Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 9 of 26 filed by the learned Counsel for the parties.
MAINTAINABILITY OF THE CRIMINAL REVISION
13. First thing first, there is no merit in the plea canvassed by the ld Counsel for the respondent no. 2/complainant about the maintainability of the instant criminal revision. Section 397 of the Cr.P.C. provides as under: "397. Calling for records to exercise powers of revision.(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation. All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub section and of section 398.
(2 ) The powers of revision conferred by sub section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
14. Considering the aforesaid provision at the back of our mind, to be precise, this revision poses an issue about the correctness, legality or propriety of the proceedings before the ld Trial Court by virtue of the impugned order and the issue that begs a response is" whether such order is interlocutory in nature? In the case of Amit Kapoor v. Ramesh Chander , (2012) 9 SCC 460, the Hon'ble Supreme Court elucidated on the revisional power of the Court under Section 397 of the Cr.P.C and it was held:
Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 10 of 26"Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a wellfounded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. {paragraph 12} (bold italics emphasized)"
15. A careful reading of the aforesaid dictum would show that the revisional jurisdiction can be invoked when a decision under challenge is grossly erroneous and the judicial discretion is exercised in an arbitrary manner thereby resulting in gross miscarriage of justice or patent illegality. That being the legal provision, the issue in the instant case is :whether or not an order passed under Section 156(3) read with section 173(8) of the Cr.P.C. is an 'interlocutory order' and whether no revision is permissible? The issue was directly answered in the cited case of Nishu Wadhwa v. Siddharth Wadhwa (supra) by the Hon'ble Judge, High Court of Delhi, wherein it was categorically held that term 'interlocutory' in Section 397(2) of the Cr.P.C. has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 11 of 26 decide or touch the important rights or the liabilities of the parties. It was categorically held that "an order passed under Section 156(3) Cr.P.C. is amenable to Criminal Revision by the prospective accused, or as the case may be, by a person who is suspected of having committed the crime since it goes without saying that disposing of an application under Section 156(3) Cr.P.C. along with permission under section 173(8) of the Cr.P.C. amounts to adjudication of valuable rights whether in favour of the accused or against the complainant or viceversa". It was further held that "in case the aggrieved person happens to be a prospective accused, it is but inevitable that once an order is passed under Section 156(3) Cr.P.C. in conjunction with 173(8) of the Cr.P.C. for further investigation, the police can summon him for investigation, arrest him without warrant for allegations of having committed a cognizable offence and in the said situation fundamental right and liberty of the said person are inevitably affected, and thus it cannot be said that such orders are in the nature of an interim or temporary orders".
16. In so far as decision in the case of Girish Kumar Suneja v. CBI (supra) is concerned, as cited by the ld counsel for the complainant, it was in relation to the cases under the Prevention of Corruption Act wherein the Hon'ble Judges of the Supreme Court held that "an interlocutory order is by itself very nature an intermediate order but when reversed it has the effect of terminating the proceedings and thereby resulting in final order", and therefore, vide paragraph (21) it was observed that an "intermediate order is one which if passed in certain way, proceedings would terminate but if passed in another way, the proceedings would continue". The issue in the Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 12 of 26 case of Girish Kumar Suneja v. CBI was altogether in a different context where the petitioners challenged the directions in the earlier case of Manohar Lal Sharma v. UOI, (2015) 13 SC 35, whereby the Hon'ble Judges of the Supreme Court transferred all the pending cases in the infamous 'Coal Block matters' to a Special Judge and the grievance of the petitioners related to directions that any prayer for stay or impeding the progress in the investigation/trial in the said cases could only be addressed before the Supreme Court thereby bypassing the revisional powers vested with the High Court under 397 Cr.P.C.
17. In so far as decision in the case of Asian Resurfacing of Road Agency Private Ltd. & Anr. v. CBI, (2018) 16 SCC 299 is concerned, it was also rendered in the context of the Prevention of Corruption Act and it was held that an order framing charge may not be held to be purely an interlocutory order and in a given situation it can be interfered under Section 482 of the Cr.P.C. or under Article 227 of the Constitution of India.
18. Hence, this Court has no hesitation in holding that in the peculiar facts and circumstances of the instant case, as would be discussed hereinafter, this Court can exercise revisional jurisdiction to test the correctness/propriety or legality of the impugned order.
LAW ON FURTHER INVESTIGATION, OR REINVESTIGATION OR DENOVO INVESTIGATION ON FILING OF CHARGE SHEET
19. Having put the issue of maintainability of this criminal revision at rest, avoiding long academic discussion, it is settled that under section 190 of the Cr,P.C a Magistrate may take cognizance of any offence--(a)upon Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 13 of 26 receiving a complaint of facts which constitute such offence;(b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. In the case of Devendra Nath Singh v. State of Bihar, (2023) 1 SCC 48, it was held that "It is indisputable that as per the scheme of Cr.P.C, formation of an opinion as to whether the person is to be put on trial has been left to the officer in charge of a police station; and where the Magistrate is of the opinion that the result of investigation in the form of report filed before him is not satisfactory, he may also order investigation in terms of Sections 156(3) and/or 173(8)CrPC or he may straightaway take cognizance under Section 190(1)(c)". It would expedient to reproduce the relevant provisions which go as under:
"156.Police officer's power to investigate cognizable case.--(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.
173.Report of police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 14 of 26 the State Government, stating--
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under Section 170;
(h) ********** not relevant and hence skipped
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub section (2).
20. On a careful perusal of the aforesaid provisions, there is no gainsaying that fair and proper investigation is the backbone of the criminal jurisprudence. The investigation must be unbiased, honest, just and in accordance with law and whole purpose of fair investigation is to bring out the truth of the case before the court of competent jurisdiction. If such Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 15 of 26 requirement of fair investigation is satisfied, there will be the least requirement for the court of law to interfere with the investigation. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. In the case of Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1, it was held that:
"It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over CrPC that must needs inform the interpretation of all the provisions of CrPC, so as to ensure that Article 21 is followed both in letter and in spirit. {paragraph 18}
21. It is settled legal position that the Code of Criminal Procedure contemplates various stages and vests various powers in the Magistrate to proceed against the persons not named in the chargesheet like the provision contained in Section 190(1)(c) Cr.PC. In Vinay Tyagi v. Irshad Ali, (supra), the Hon'ble Judges discussed the legal distinction between 'further investigation' and 'reinvestigation'. it was held that the expressions "further investigation", "fresh" or "de novo" and even "reinvestigation".
"Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. It was held that while the superior courts are even vested with the power of transferring investigation from one agency to another, if the ends of justice so demand such action, such powers Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 16 of 26 can be exercised sparingly and with great circumspection. It was further held that.
"The power to order/direct "reinvestigation" or "de novo"
investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct "further investigation", or even on the basis of the record of the case and the documents annexed thereto, summon the accused.
22. In the cited case of Vinay Tyagi v. Irshad Ali, (supra), it was also observed that:
"Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct "further investigation" or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct "further investigation" and file "supplementary report" with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct "further investigation" and/or to file a "supplementary report" will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process."
{paragraph 49} (emphasis supplied) Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 17 of 26
23. Thus, suffice to state that the requirement of seeking prior leave of the court to conduct "further investigation" and/or to file a "supplementary report" is ingrained into, and is a necessary implication of the provisions of Section 173(8) of the Code. In the case of Vinod Tyagi vs Irshad (supra) their lordships concluded that "It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding."
{bold italics emphasized}
24. Making further attempt to cut short long academic discussion on the subject, in a recent case titled Devendra Nath Singh v. State of Bihar, (2023) 1 SCC 48 , the whole gamut of law was discussed on the exercise of powers under section 173(8) of the Cr.P.C and inter alia it was held that:
"45.3. Even when the basic power to direct further investigation in a case where a chargesheet has been filed is with the Magistrate, and is to be exercised subject to the limitations of Section 173(8)CrPC, in an appropriate case, where the High Court feels that the investigation is not in the proper direction and to do complete justice where the facts of the case so demand, the inherent powers under Section 482CrPC could be exercised to direct further investigation or even reinvestigation. The provisions of Section 173(8) Cr.P.C do not limit or affect such powers of the High Court to pass an order under Section 482CrPC for further investigation or reinvestigation, if the High Court is satisfied that such a course is necessary to secure the ends of justice.
45.4. Even when the wide powers of the High Court in terms of Section 482CrPC are recognised for ordering further investigation or reinvestigation, such powers are to be exercised sparingly, with circumspection, and in exceptional cases.
25. The sum result of the aforesaid discussion is that the police have a legal mandate to investigate into any crime in accordance with law as per Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 18 of 26 the procedure prescribed in the Code of Criminal Procedure. While investigation is the exclusive privilege and prerogative of the police which cannot be interfered with, it is equally true that if the police does not perform its statutory duty in accordance with law or is found to have conducted a tainted, biased or meaningless investigation, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. However, in the cited case of Ram Lal Narang v. State (Delhi Administration) (Supra), relied upon by the Ld. Counsel for the revisionist, it was observed as under: "As observed by us earlier, there was no provision in the Cr.P.C. 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigation on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further information, the police could express their regard and respect for the court by seeking its formal permission to make further investigation."
26. The decision in the case of Rajinder Prasad v. State (supra) was one where after filing of the chargesheet and commencement of trial, permission was sought by the police for further investigation in the nature of Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 19 of 26 taking up second samples for further forensic/analysis. The request for further investigation was disallowed, holding that the prosecution cannot be allowed to improve its case in the absence of any new material as envisaged under Section 173(8) of the Cr.P.C. In the recent case of Surender @ Tannu @ Tanva v. State of NCT of Delhi (supra), relied upon by the learned Counsel for the revisionist, Hon'ble Judge of the High Court of Delhi, New Delhi cited with approved the earlier decision in the case of Rajinder Prasad v. State (supra) to the effect that further investigation could always be ordered or done by the Police on its own if there come about some fresh evidence or material so as to find truth of the matter but cannot be allowed to conduct roving and fishing enquiry or to fish out evidence against the accused after the chargesheet has been filed. It was a case where after two years of the filing of the chargesheet, an application was moved for further investigation, which was allowed and the supplementary chargesheet was filed, which orders were assailed by the petitioners. Examining the whole scope and gamut of Section 173(8) of the Cr.P.C. and the decision in the case of Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685 as also Vinay Taygi v. Irshad Ali @ Deepak &Ors. (supra), it was held that the Investigating Officer may exercise his statutory power of further investigation in a situation where new fact come to his notice and it was reiterated that the Magistrate and superior Courts can direct further investigation if the investigation is found to be tainted and/or unfair or is otherwise necessary in the ends of justice. Setting aside the order for further investigation and filing of the supplementary chargesheet, it was categorically held as under: Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 20 of 26 "28. The interpretation by the Hon'ble Supreme Court suggests that there needs to be some form of development or scope of development in a case which gives way for the Investigating Agency to look further into the matter. Although further investigation has been distinguished from fresh investigation and reinvestigation, however, the provision for further investigation could not have been introduced solely to provide for reappreciation or reconsideration of the old or primary evidence and other material which was already on record before the Magistrate. There has to be an extent of novelty in the, report or Supplementary Chargesheet filed by the Investigating Agency, which leads to discovery of material or evidence in a manner which was not before the Court in the primary report or Chargesheet. {italics emphasized}
31. The abovementioned precedents certainly establish the principle that where further investigation has been ordered and a report has been submitted, there has to be certain fresh material, or appreciation of old material from a different perspective, that brings on record facts and evidence which was not which was not available to the prosecution or the Court earlier. Where no such new material or evidence, whatsoever, has been discovered by the further investigation, any cognizance taken by the Magistrate may be said to be in contravention to the provision under Section 173 of the Cr.P.C." {bold italics emphasized} CONCLUSIONS:
27. In view of the aforesaid discussion, reverting to the instant Criminal Revision, Ld. CMM vide the impugned order strangely came to the conclusion that the IO had not investigated into the transactions, which are depicted in the "Table at page 9 and 10" of the charge sheet, and the observations that the IO had not identified the money trail and it was also observed that no investigation qua the bank accounts of the aforesaid accused persons was carried out. I am afraid the said observations are belied from a bare reading of the chargesheet & material wherein it was brought forth by the IO that during relevant time A1 and A2 were only main functioning Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 21 of 26 Directors whereas suspect Khitij Chaudhary was Director for the period 26.07.2014 to 28.07.2014 i.e., merely for three days whereas Ram Kumari Anandalal Mandal became Director w.e.f. 29.06.2016. The IO reports in the chargesheet that during the investigation, he examined two bank statements of M/s. CPL as also one account of A1 and although there was a finding that Rs. 26.57 crores were indeed paid into the said three accounts, examination of the transactions through such bank accounts found no trace, illegal diversion or siphoning of funds to other accused persons except as between A1 and A2. It was finding of the IO that during investigation he found that the amount of Rs. 11.63 crores had been utilized in connection with media business of M/s. CPL but on interrogation, A1 had failed to account for certain payments and the final conclusion of the IO are reproduced herein for our better understanding: "It is given that Rs. 9.05 Crore was utilized and given to Sikhya Entertainment Pvt. Ltd. However, on perusal of the copy of the ledger of accused company and bank statement, only Rs. 3.4 Crore had been paid to Sikhya Entertainment Pvt. Ltd after the receipt (after 30.01.2013) of the payment from the complainant. Rests of the entries with regards to Sikhya Entertainment Pvt. Ltd. are only before the receipt of the payments from the complainant. It was submitted in the reply that more documents would be arranged with in 1015 days. But no further documents have been provided.
Moreover, entries of Rs. more than Rs. 5.5 Cr of utilized money is before the payments made by complainant. Thus, the accused failed to show the money Utilized by her or her company.
From the investigation conducted so far it is revealed that the complainant paid. Rs.26,57,09,001 Crore to the company M/s. Cinemorphic Pvt. Ltd as well in the personal account of Prashita Chaudhary on several occasion for 30 % equity of the company. But she neither gave shares of the company nor refunded the money paid by the complainant. On 07.03.15 Rs. 30 lacs were received from the complainant to the account of accused company which was transferred to her account on the same day. She was authorized signatory of the accounts of accused company and transferred money to her mother, brother and others from the Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 22 of 26 account of the accused company. On 26.12.13, Rs. 1 Crore was received in the account of accused company from complainant. On the same day Rs. 50 lac were transferred to the account of accused Pushpa Chaudhary. On 03.09.13, Rs. 2 crores were received in the account of accused Prashita Chaudhary from the complainant and on the same day Rs. 45 lac were transferred to the account of accused Pushpa Chaudhary. Rs. 1.7 Crore was also transferred to account of accused Pushpa Chaudhary from the account of accused Prashita Chaudhary wherein the money was received from the complainant.
As alleged in the complaint, Geetanjali Chaudhary and Kamal Taneja were not the directors of the accused company at any point of time. Further, there is not a single specific allegation against Kamal Taneja, Mr. Khitij Chaudhary, Mrs. Manish Chaudhary, Mrs. Geetanjali Chaudhary and Mrs. Richika Sharma other than that they have cheated and under trust the complainant paid them huge amount. As per the bank accounts of complainant, no money was paid them by him. Further it is alleged against Rajkumari Anand Mandal that she is director of the accused company. As per the information obtained from ROC, she is director of the accused company from 29.06.2016 only. However, the payments were made by the complainant from 30.01.2013 to 07.03.2015. Even she is not authorized signatory to the two bank accounts of the accused company. Further, it is alleged by the complainant that in the first week of June 2012, on the verbal. assurance of Mr. D.N. Taneja, he agreed to invest Rs. 40 Crores in film business handled by Ms. Prashita Chaudhary & Ms. Pushpa. Chaudhary. However, D.N. Taneja told that he doesn't know or met any person named Vinod Khetawat or Manoj and not assured Vinod Khetawat to invest to agree to invest in the film business handled by Prashita Chaudhary As per bank statements, no money was paid to D.N. Taneja by the complainant. As per bank statements, no money was paid to D.N. Taneja by the complainant. Further the complainant made payments to accused Prashita Chaudhary/company in January 2013 after a long time of more than 6 months from June 2012.
There is no evidence on record against Kamla Taneja, Mr. Khitij Chaudhary, Mrs. Manish Chaudhary, Mrs. Geetanjali Chaudhary, Ram Kumari Anand Mandal, Mrs. Ruchika Sharma and D.N. Tanjea.
The complainant paid Rs. 26,57,00,000/ Crore to the company M/s Cinemorphic Pvt. Ltd as well in the personal account of Prashita Chaudhary for 30 % equity of the company. Only Rs. 81,50,3121/ was refunded to the complainant. The accused neither Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 23 of 26 gave shares of the company nor refunded the while money paid by the complainant. There are sufficient evidences on record against accused Prashita Chaudhary and Pushpa Chaudhary and their company M/s. Cinemorphic Pvt. Ltd. for charge sheeting them u/s 406/34 IPC. They have joined the investigation. They are being chargesheeted without arrest."
28. The aforesaid conclusions drawn on completion of almost three years of investigation tell its own tale. It would bear repetition that the complainant filed the present application under Section 156(3) read with Section 173(8) of the Cr.P.C. after a gap of more than two and a half years. While, the complainant may be given some concession for filing the application belatedly owing to the COVID19 pandemic period, what is clearly discernible from the complaint is that no fresh facts have been brought out by the complainant that would require further investigation. If the case of the complainant is seen in a proper perspective, he wants investigation with regard to Income Tax Returns of the accused persons for the years 20132020; and that he wants a roving and fishing enquiry into the transfer of monies in various companies in which the accused persons are Directors or otherwise connected with daytoday affairs including examination of various documents so as to elicit the purpose for which funds have been utilized by various companies associated with the accused persons. The complainant further wants the IO to summon all individuals including the company directors to submit financial statement & bank records in order to unearth the trail of money besides records of the Registrar of Companies for the year 20102011 till date and detailed account of properties/assets held, owned or belonging to the accused persons.
29. I am afraid it does not lie in the mouth of the complainant to Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 24 of 26 dictate to the police about such line of further investigation, or rather re investigation. It goes without saying that the application moved by the IO/Inspector Rahul Sonu, SectionIV, EOW seeking permission for further investigation dated 20.07.2022 is reiteration of facts unearthed during the investigation by the previous Investigating Officer. The application by the IO dated 22.03.2022 fails to reveal or bring out any fresh material or appreciation of whole material from different perspective, nor it reveals about any further evidence which was earlier not in the knowledge or not handed over to the investigator and it simply refers about the receipt of the email that was sent to the Economic Offences Wing by the complainant and entrustment of investigation to him on 10.06.2022. Interestingly, the IO in the present application is giving a new perspective that A1 with malafide and criminal intend offered 30% equity shares of a loss making company in lieu of investment of 25.5 crores despite knowing that net worth of the company was negative (equal to minus 1.14 crores and the turnover was Zero for the financial year 201415 but then said the perspective smacks over indulgence on the part of the IO who is failing to take note that the company run by A1 & A2 was admittedly a new venture and it is apparent that few films/media projects were indeed undertaken engaging with third parties but the project did not prove to be fruitful or financially advantageous. The bottom line is that prima facie A1 & A2 failed to account for the funds invested by the complainant, and thus, have been chargesheet for committing offences under section 406 read with section 34 of the IPC. Mere fact that part of the money trail has not been found does not ipso facto lead to a conclusion that the investigation by the previous Investigating Officer was unfair and not Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 25 of 26 bringing out truth of the matter.
30. In view of the aforesaid discussion I find that the impugned order dated 16.11.2022 passed by the learned CMM, New Delhi District, Patiala House Courts, New Delhi cannot be sustained in law as it appears to have been passed in a mechanical manner merely on the ipse dixit of the complainant who has been trying to improve upon his case all the time by trying to rope in all the family members of A1 and A2 so as apparently indulge into arm twisting ; and that the impugned order virtually amounts to giving free hand to the police to conduct a roving and fishing enquiry into the entire episode, and thus the impugned order operates ostensibly for allowing the police to reinvestigate the matter, allowing which is not in the domain of the ld CMM but only in the domain of the Superior Courts. The present Criminal Revision is accordingly allowed and the impugned order dated 16.11.2022 is set aside. The matter is remanded back to the Ld. CMM, New Delhi District, Patiala House Courts, New Delhi to consider the facts disclosed in the chargesheet/final police report and proceed to decide the issue of cognizance in terms of directions passed by the Hon'ble Judge of the High Court of Delhi, New Delhi in W.P. (Criminal) 2046/2022 dated 11.10.2022. Nothing contained in this order shall tantamount to an expression of opinion on the merits of the matter.
31 Trial Court record alongwith copy of order be sent back forthwith. This file of the Criminal Revision be consigned to the Record Room. DHARMESH Digitally signed by DHARMESH SHARMA SHARMA Date: 2023.04.06 17:08:30 +0530 Announced in the open Court (DHARMESH SHARMA) on 6th April , 2023 Principal District & Sessions Judge (NDD) Patiala House Courts, New Delhi Criminal Revision No625/2022 Pushpa Chaudhary v. State & Anr. Page 26 of 26