Delhi District Court
Criminal Revision No. 31/14 D.O.D ... vs Bma Wealth Creators Ltd & Others on 11 April, 2014
Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
IN THE MATTERS OFF:
Cr. Revision no : 31/14
Unique Case ID No : 02404R0302082013
Dalip Kumar
Proprietor of
M/S Sai Enterprises
S7, Suraj Nagar, Delhi ....... Revisionist
VERSUS
1. BMA Wealth Creators Limited
Office : 107, New Delhi House,
27 Barakhamba Road,
New Delhi.
2. Mr. Avinash Agarwalla
Director,
BMA Wealth Creators Limited
Office : 107, New Delhi House,
27 Barakhamba Road,
New Delhi.
R/O P.O Salanpur, Dist Burdwan,
Salanpur , 713357 , West Bengal, India
Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 1 of 15 )
Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others
3. Mr. Shiv Kumar Damani
Director,
BMA Wealth Creators Limited
Office : 107, New Delhi House,
27 Barakhamba Road,
New Delhi.
R/O 493/B/3 G.T Road(South)
Sadar, Howrah, Kolkata, 711101
4. Mr. Anubhav Bhatter
Director,
BMA Wealth Creators Limited
Office : 107, New Delhi House,
27 Barakhamba Road,
New Delhi.
R/O 17/1 D Alipore Road,
Nandaan Apartment, Kolkata, 700027
5. Mr. Asit Kumar Ghosh
Director,
BMA Wealth Creators Limited
Office : 107, New Delhi House,
27 Barakhamba Road,
New Delhi.
R/O 1 A, Rup Chand Mukherjee Lane,,
Kolkata, 700025
Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 2 of 15 )
Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others
6. Mr. Kapil Dev Pasricha
Authorized representative/employee
BMA Wealth Creators Limited
Branch office Delhi Preet Vihar
Office : 107, New Delhi House,
27 Barakhamba Road,
New Delhi.
7. Mr. Dinesh Singh.
Authorized representative/employee
BMA Wealth Creators Limited
Branch office Delhi Preet Vihar
Office : 107, New Delhi House,
27 Barakhamba Road,
New Delhi. .....Respondents
Date of institution : 17.10.2013
Date of arguments heard : 11.04.2014
Date of order : 11.04.2014
ORDER____________________________________________________
1. Revisionist Dilip Kumar has questioned the legality of the order dated 5.8.2013 ( hereinafter referred as "impugned order") passed by Sh Deepak Dabas , ld MM , Rohini , Delhi in a complaint case titled as Dalip Kumar VS Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 3 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others BMA wealth Creators Limited & Ors , whereby application of the present revisionist u/s 156(3) CrPC was dismissed and the revisionist /complainant was given opportunity to lead evidence .
2. Brief facts of the case as made out in the complaint are that:
a) Revisionist/complainant filed a case before the Ld Trial Court u/s 200 CrPC making a request to proceed against the proposed accused persons for offences u/s 380/406/409/465/468/471/120 B/34 IPC .
b) In the complaint it is averred that the accused no.1( respondent no.1) is a limited company and governed by the Securities Contract Regulation Act, Securities Contract Regulation Rules and SEBI Rules, etc.,
c) It is stated that revisionist/complainant is distressed victim of highly manipulative broking scam. As per the case of the revisionist/complainant, accused no.1 ( respondent no.1) through accused no.6 ( respondent no.6) and accused no.7( respondent no.
7) lured the revisionist /complainant for assured return in the investment portfolio scheme through stock market. Accused no.6 (respondent no.6) contacted the revisionist/complainant and convinced him to transfer an amount of Rs Two crore in a span of one month time to the account of accused no.1( respondent no.1) Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 4 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others for portfolio investment purpose. Revisionist/complainant signed a blank booklet alongwith the certain loose leaflets purportedly member client agreement booklet and accordingly , revisionist/complainant transferred Rs Two Crore in the account of accused no.1 company ( respondent no.1) during the period from 22.9.2009 to 16.10.2009.
d) It is further stated that in order to gain the confidence the present complainant /revisionist, accused no.1 made a payment of Rs around 20 lacs ( Approx) on the pretext that the said amount is the income of the investment of Rs Two Crore which impressed the revisionist/complainant. It is further alleged that accused no.6 and accused no.7 further lured the complainant /revisionist to invest more money and on their inducement complainant/revision invested further amount of Rs Two Crore on 23.2.2010 . It is averred that during the period from 13.1.2010 till 3.3.2010, complainant/revisionist has received a sum of Rs fifty Lacs approximately .
e) It is also alleged that the accused no.1 and their representatives kept on assuring the revisionist/complainant that the Port Folio Investment Scheme of accused no.1( respondent no.1) are going well yielding good return. There is a reference about the change of office of accused no.1( respondent no.1) company from one place to another. It is alleged that when revisionist/complainant contacted the accused no.1 (respondent no.1) in the month of June 2012, to his utter shock it was informed to him by the official of accused no. 1 that his entire money has been wiped off . It is alleged that it has been done by accused no. 6 & 7 ( respondent no.6 & 7) in connivance, collusion with accused .1 .
f) Complaint was made to the police station Adarsh Nagar on Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 5 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others 29.10.2012 but no action was taken. Hence complaint case was filed.
3. It is evident that vide order dated 5.8.2013, the request of the revisionist/complainant u/s 156(3) CrPC for giving directions of registration of an FIR was declined and complainant was given the option to lead CE.
4. The revisionist has assailed the impugned order mainly on the following grounds:
a) That the ld MM has erred in not considering the fact that respondents are libale to be punished for cheating, criminal breach of trust as they obtain the funds from petitioner through misrepresentation .
b) That the ld MM has erred in not considering the fact that the respondent had conducted unauthorized and illegal trading in the account of petitioner without his authority and prior instructions and never invested his funds in any investment portfolio scheme.
c) That the Respondents in connivance and collusion with each other dishonestly misappropriate the funds of petitioner given by him.
d) That all the alleged transactions in the accounts of Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 6 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others revisionist were done even without executing valid agreement.
e) That respondents are responsible for forgery as they used to mislead the petitioner by dishonestly misrepresenting and wrongly showing statement of account of petitioner.
5. It has been prayed that impugned order dated 5.8.2013 , may kindly be set aside and SHO may kindly be directed to register an FIR and to investigate the matter.
6. I have heard the ld counsel for the revisionist and have also perused the impugned order as well as the TCR .
7. Vide impugned order, the request of the revisionist u/s 156(3) CrPC was declined . As far as power of the court u/s 156(3) CrPC is concerned, the power of the court is discretionary in nature . Clause 3 of section 156 CrPC says that " any Magistrate empowered under section 190 "
may " order such an investigation...." . The section 156(3) CrPC Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 7 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others has reference of the power of the court u/s 190 CrPC also.
The power to direct investigation u/s 156 (3) is to be read with 190 CrPC. In this regard, help can be taken from decision of a popular case Muthiah vs State reported as (2006) 7 SCC 296.
8. Further, on completion of investigation u/s 156(1) , the officer incharge of the police station is required u/s 173(2) to forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State government containing all the particulars mentioning therein. Chapter XIV of the code laid down the conditions requisite for initiation of proceedings by the magistrate . Under sub section (1) of 190 appearing in that chapter , any magistrate of first class and any magistrate of second class specially empowered may take cognizance of any offence :a) upon receiving the complaint of facts which constitute such offence b) upon a "police report" of such facts or c)upon information received from any person other than police officer or upon his knowledge that Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 8 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others such offence has been committed d) Chapter XV prescribed the procedure the Magistrate has to initially follow if it takes cognizance of an offence on a complaint under section 190(1)(a) .
9. From a combined reading of the above provisions , it is abundantly clear that when a written complaint disclosing of cognizable offence is made to a Magistrate, he may take cognizance of the same under section 190(1) (a) of the code and proceed with the same in accordance with the provision of chapter XV. The other option available before the Magistrate in such cases is to send the complaint to the appropriate police station u/s 156 (3) for investigation .
10. Now, let me advert to the case in hand .
While passing the impugned order , ld MM has relied upon
a) Devarapalli Lakshminarayan Reddy vs Narayana Reddy , AIR 1976 SC 1672 , b) Nirmal Jit Singh Hoon vs State of West Bengal, ( 1973) 3 SCC 753 , c) Jamuna Singh vs Bhadai Shah , AIR 1964 SC 1541 , d) Gopal Dass Sindhi vs State of Assam , AIR 1961 SC 1986 , e) Smt Meenakshi Anand Sootha vs State , 2007 (4) JCC Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 9 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others 3230 ( Delhi ), f) M/s Skipper Beverages pvt ltd vs state , 2001 IV AD ( Delhi ) 625 , g) Pawan Verma vs SHO P.S Model Town & Others , 2009 (2) JCC 1000 Delhi , h) Mohd Salim Vs State , 175 (2010) DLT 473 and came to the conclusion that :
".... There is no requirement of police
investigation in the present case as the complainant is in
possession of all the documents required by him to prove his case. The name addresses and other particulars of the accused persons are very well known to the complainant and the same have been mentioned in the complaint. The custodial interrogation of the accused persons is also not required in the present case as nothing is to be recovered from or at the instance of the accused person.
Even otherwise if the assistance of police is required for any purpose for the proper adjudication of the present case, then directions can be given to the police u/s 202 CrPC.
In view of the facts and circumstances, I am of the considered view that no order u/s 156(3) CrPC to the SHO , P.S Adarsh Nagar is called for in the present case. I find no merits in the application u/s 156(3) CrPC.Hence, the same is hereby dismissed and is disposed off accordingly."
11. The main grievance of the petitioner is that ld MM ought to have issued directions u/s 156(3) CrPC for registration of FIR instead of taking cognizance of the Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 10 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others complaint and adjourning the case for pre summoning evidence. But magistrate need not order any such investigation u/s 156(3) CrPC, if he proposes to take cognizance of the offence . Once he take cognizance of the offence , he has to follow the procedure envisaged in chapter XV CrPC. In this regard help can be taken from the decision of a case titled as Mohd Yusuf versus Afaq Jahan, AIR 2006 SC 705 and Zubair Ul Abidin ( Dr.) versus State (NCT of Delhi), 2014 III AD (Delhi ) 61.
12. Further, It is settled position of law that the court exercising revisional jurisdiction cannot examine the evidence in detail and may interfere only when there is any impropriety or material irregularity in the order passed by the lower Court and further that revisional court cannot sit as a court of appeal.
13. In the case of Jagannath Choudhary vs Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 11 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others Ramayan Singh reported as (2002) 5 SCC 659, it was held :-
"Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction , in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of (sic or) apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals ....... The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal , the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the Court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction."
" while it is true and now well settled in a long catena of cases that exercise of power under section 401 cannot but be ascribed to be discretionary- this discretion, however, as is popularly informed has to be a judicious exercise of discretion Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 12 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others and not an arbitrary one. Judicial discretion cannot but be a discretion which stands 'informed by tradition, methodised by analogy and disciplined by system'. Resultantly only in the event of a glaring defect in the procedural aspect or there being a manifest error on a point of law and thus a flagrant, miscarriage of justice, exercie of revisional jurisdiction under this statute ought not to be called for. It is not to be lightly exercised but only in exceptional situations where the justice delivery system required interference for correction of a manifest illegality or prevention of a gross miscarriage of justice..... It is not an appellate forum wherein scrutiny of evidence is possible ; neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible. It is restrictive in its application though in the event of there being a failure of justice there can be said to be no limitation as regards the applicability of the revisional power.
14. In the present case it is not in dispute that there was an agreement between the present revisionist and the proposed accused persons. Though as per the contention of the revisionist/complainant , he had signed the said agreement when it was blank. At this stage, it would not be appropriate to give opinion on the merits of the case as to if any offence is made out or not. The only question which falls consideration before this court is if the impugned order is Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 13 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others sustainable or not .
15. I am of the considered opinion that evidence to be produced by the revisionist/complainant are within his reach and knowledge . No technical investigation is to be carried out . The copy of the agreement in question is lying on record which has been signed by the revisionist and it also bears the stamp of the firm of revisionist. Complainant has already been given option to lead evidence . Not only that, ld trial court in the impugned order has observed that if assistance of police is required for any purpose for adjudication of the present case, then directions can be given to the police u/s 202 CrPC. Meaning thereby, the ld trial court is conscious of the fact that even if at a later stage, assistance of police is required then the trial court may pass invoke the provision of section 202 CrPC.
16. I do not find any defect in the procedural aspect Dalip Kumar vs BMA Wealth Creators Ltd & Others (Page 14 of 15 ) Criminal Revision no. 31/14 D.O.D 11.4.2014 Dalip Kumar vs BMA Wealth Creators Ltd & Others as adopted by the ld Trial Court . The impugned order does not require any interference by this court . The ld Trial Court have not committed any illegality or irregularity while declining the request of the present revisionist made u/s 156(3) CrPC.
17. The present revision petition is devoid of merits and the same is dismissed.
18. TCR alongwith the copy of this order be sent back to the ld Trial court.
19. Revision file be consigned to record room.
Announced in the open (Rajesh Kumar Goel)
court today i.e 11.4.2014 ASJ-5, North /Rohini
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