Delhi District Court
State vs Ankur Arora on 26 March, 2012
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ASJ02/SE/SAKET COURT
NEW DELHI
IN RE: Criminal Appeal No. 55/09
ID No: 02403R0239052009
State ..... Appellant/State
VERSUS
1. Ankur Arora
S/o Sh. Ramesh Chand
R/o G4/3, Sector11,
Rohini, New Delhi.
2. Ms. Preeti Trehan
D/o Haridev Trehan,
R/o Flat No.180, Pocket24,
Rohini, Delhi.
3. Kamal Singh Yadav
S/o Manohar Lal,
R/o H. No. 812, Sector 17,
Gurgaon, Haryana. ..... Respondents
__________________________________________________________
Date of Institution : 05.06.2009
Date when the arguments were heard : 17.03.2012
Date of judgment : 26.03.2012
CA No. 55/09 1/11
O R D E R
This is an Appeal under Section 397 of The Code of Criminal Procedure directed against order dated 04.03.2009 passed by ACMM, New Delhi, whereby the accused/respondents were discharged.
On 19.12.2003, one Sh. Surinder Suneja (complainant) lodged a complaint addressed to DCP, Crime Branch, Police Head Quarters, New Delhi. A compendium of same is produced here for ready reference: "I am residing at J12, Jangpura Extension, New Delhi with my family. I had taken a credit card from ABN Amro Bank along with add on cards for my wife. Said credit card was lost on 10.10.2003. A report was lodged with the bank in this regard on 11.10.2003. I got a call from one person, who claimed himself to be S. K. Sinha from Crime Branch, Delhi Police. I received call at my phone no. 24314601 and other on mobile phone no.
9820083636. Said Sh. S. K. Sinha times and again threatened me posing as DCP/Crime Branch either to deposit a sum of Rs.15,000/ or face the consequences. Said person also threatened me using abusive and filthy language. I again received a call at my mobile phone mentioned above from the same person. During the conversation, that person again impersonated himself as DCP/Crime Branch.
Yesterday I got a call at my phone no.
9811721217 from a lady posing herself as Mallika Chopra @ Gunjan Bhatia. The caller used abusive language and threatened me of my life and CA No. 55/09 2/11 property, if I do not deposit an amount of Rs.
15,000/. She identified herself as Crime Branch Inspector. The caller also threatened me of kidnapping my kids, in case, I failed to deposit the amount. On being contacted, Sh. Nitin of ABN Amro Bank, Noida admitted that those persons were their people (employees) and were acting on his instruction."
On the basis of said complaint, FIR No. 657/2003 was registered in PS Hazrat Nizamuddin.
After investigation, police filed charge sheet indicting respondents for offences punishable under Section 419/506/120B/34 IPC.
All accused persons were discharged by Ld. ACMM vide impugned order dated 04.03.2009. Aggrieved by said order, the prosecution has approached this court, by filing Appeal in hands.
It is submitted by Ld. Addl. PP that Ld. Trial Court erred in appreciating the complaint lodged by Sh. Surinder Suneja (complainant) and also statements of the complainant and his wife Smt. Ranjana Jha, recorded U/s 161 Cr.P.C as well as material collected by the IO. Respondents No.1 and 2 were correctly identified by complainant and his wife Ms. Ranjana Jha, when the latters visited office of respondents/ accused. Contending that there was sufficient material against all three respondents to charge for offences punishable U/s 506/170/411/419 IPC, Ld. Addl. PP requested for settingaside impugned order. CA No. 55/09 3/11
On the other hand, as per Ld. Counsel representing the respondents, there was no illegality in the impugned order. Ld. Counsel harped on the judgments cited by him before the trial court and relied by the latter in the impugned order. It is reiterated by Ld. Counsel that the complainant did not mention the actual words allegedly spoken by the accused and hence, no charge could be framed U/s 506 IPC and that the conversation between complainant and the offender was not recorded in any tape and hence, it cannot be presumed that it were respondents/ accused No.1 and 2, who had actually threatened the complainant.
The facts, which weighed in the mind of trial court appears to be that the complainant did not record voice of the callers on telephone allegedly being respondents No.1 and 2, which was essential to constitute an offence punishable U/s 506 IPC. When no offence was made out U/s 506 IPC, consequently charge U/s 419/34 IPC could not have been framed. Relevant portion of order is reproduced here as under: "It is pertinent to mention here that IO or the complainant have no voice recording of the said calls. Even the complainant has not mentioned the exact wording allegedly used by the accused persons on the telephone, which in view of above mentioned judgment, are essential for constituting the offence U/s 506 IPC. Mere allegation without actual word is not sufficient to CA No. 55/09 4/11 frame charge U/s 506 IPC and if charge U/s 506 IPC is not made out, consequently charge U/s 419/34 IPC also cannot be made out, as they were based on the basis of those threatening calls itself." Ld. ACMM relied upon three judgments which are also cited here as follow:
1. Ashok Kumar vs. State of Haryana, 2003 (1) JCC 276, wherein it is held that:
No actual words of threats have been mentioned by the complainant. Mere allegations without actual words is not sufficient to frame charge U/s 506 IPC.
2. Usha Bala vs. State of Punjab, 2002 (3) RCR (Cri.) 445, wherein it is held that:
Facts show she has been named only due to some jealously or misunderstanding, empty threats do not prima facie mean that case U/s 506 IPC is made out.
3. Noble Mohandass vs. State, 1989 Crl.LL 669, wherein it is held that: The threats should be real one and not just a mere word when person uttering it does exactly mean what he says and also when person at whom threat is launched, does not feel threatened actually.
Trite it to say that case is at the stage of charge. It is well settled by a plethora of authorities that it is enough to frame a charge CA No. 55/09 5/11 against a person, if there is reasonable suspicion about involvement of that person, in crime in question. Even if the complainant did not reproduce the actual words, which he heard from the callers i.e. respondent No.1 and 2. Same had narrated the conversation in brief such as: "The said S.K. Sinha times and again threatened me posing as DCP Crime Branch and asked me to deposit a sum of Rs. 50,000/ or else face the consequences ............. since yesterday I was getting a call from a lady who posed herself as Mallika Chopra @ Gunjan Bhatia from mobile No. 9811721217, I was stunned when she also used an abusive language and threatened me of my life and property and desired that I should at once deposit the amount of Rs. 50,000/ or face consequence. She identified herself as a Crime Branch Inspector. She even went to an extent of kidnapping of my kids in case I fail to deposit the amount."
Dealing with a case of criminal intimidation, it was held by Himachal Pradesh High Court in case Prem Pal Singh 1981 Crl.LJ 1208 (HP) that in the absence of actual words used by the accused "or even a gist of it" in the complaint, it is not possible to say, if the case falls within the ambit of Section 504 IPC. Similar was finding given by Allahabad High Court in case Jodh Singh vs. State of U.P, 1991 Crl.LJ 3226 (Allahabad). In this way, it was enough at least for framing of charge, that complainant had given a gist of incident which CA No. 55/09 6/11 took place between him/ her and the accused.
Ld. ACMM apparently erred in holding that there is no other material available on the record against accused, except disclosure statement of accused No.2 and 3. It is averred by the complainant that same was holder of credit card from ABN Amro Bank alongwith add on cards for his wife vide No. 5415383383300062005. The recovery was assigned by ABN Amro Bank to M/s Scrut Scan Pvt. Ltd., of which respondent Kamal Singh Yadav was a Director and respondent Ankur Arora and Preeti Trehan were employees. The latter respondents i.e. respondents No.1 and 2 are alleged to have threatened the complainant on phone to deposit the amount, otherwise to face consequences. Same are also alleged to have threatened complainant to kidnap his kids, in case he fails to deposit the amount. During investigation, police collected photocopies of Form No. 32, Certificate of incorporation, Memorandum of Association and form of Annual Returns of a company i.e. M/s Scrut Scan Pvt. Ltd. from the office of Registrar of Companies. Sh. Kamal Singh Yadav has been shown as one of Directors. IO has also collected list of employees of said M/s Scrut Scan Pvt. Ltd., who stood on its parole on the date of incident. On perusal, the names of Ankur Arora and Preeti Trehan were found mentioned at Serial No. 19 and 82 respectively. IO also recovered photocopies of list of cases of recovery given by ABN Amro Bank to M/s Scrut Scan Pvt. Ltd in the month of December 2003 as well as photocopy of agreement dated CA No. 55/09 7/11 07.01.2003 executed between said bank and M/s Scrut Scan Pvt. Ltd. It was found that case of Mr. Surinder Suneja (complainant) was figured at Serial No. 409 in the list of recovery cases handed over by the bank to M/s Scrut Scan Pvt. Ltd. in the month of December 2003 and a sum of Rs. 19,566.58/ paisa was shown as 'current balance' against his name. It was also verified by the IO that the complainant was holder of said credit card and his wife Ms. Ranjana Jha was holder of two credit cards No. 5415383300062054 and 5415383300364708. IO also verified that a forwarding letter dated 24.12.2003 signed by Mandeep Grewal stating that complainant had verbally reported the bank about lost of his credit card.
Call details of mobile No. 9811812023 were collected from Hutchisons Essar Telecommunications Ltd. On perusal, it was found that two telephone calls were made at mobile phone of complainant mentioned above from phone No. 9811721217 on 11.12.2003. This mobile phone is stated to be issued in the name of Kamal Singh Yadav (respondent No.3). The mobile phone was recovered at the instance of respondent Ankur Arora, who admitted that it was given by co respondent Kamal Singh Yadav to him. Other number from which calls are alleged to have been made to the complainant is stated to be of the office of M/s Scrut Scan Pvt. Ltd., of which the respondents are Director and employees.
The complainant and his wife are stated to have identified the CA No. 55/09 8/11 voice of respondent No.1 and 2 after meeting them in their office. Ruminating the material on record, in my opinion, there was enough evidence on record to show involvement of all three respondents, in crime in question.
Ld. ACMM has misconstrued the law by holding that: "For constituting offence U/s 503 IPC, there should be any injury coupled with threatening."
Section 503 IPC prescribed 'criminal intimidation' as under: "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act, which he is not legally bound to do, or to omit to do any act, which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."
To attract said provision, it is not necessary that there should be actual injury, coupled with threatening. It was sufficient if a person threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested. Apart from such threatening, it was necessary that threatening was given with intention to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to CA No. 55/09 9/11 omit to do any act which that person is legally entitled to do.
If the case of complainant is taken as true, though the same had taken a credit card, he never used it having been lost. An information in this regard was also given to the bank. In this way, the complainant was not bound to make payment of the dues which were shown against him. By advancing threats on the phone, respondent No. 1 and 2 induced him to make payment, which he was not bound to pay. He was threatened him for his life and also to kidnap his kids. It is surprising how Ld. ACMM came to conclusion that such were empty threats or not enough to threaten the receiver i.e. complainant. From the facts as stated above, a prima facie case U/s 503 IPC was made out.
I also differ with Ld. ACMM in coming to conclusion that if charge U/s 506 IPC was not made out, consequently charge U/s 419/34 IPC could not have been framed, as same was based on threatening calls. Section 415 IPC defines the cheating as: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property."
CA No. 55/09 10/11 In the facts mentioned above, if the complainant was not liable to pay anything to the respondents and the latters induce the former to deliver the property i.e. cash to the respondent, it was nothing but a fraudulent and dishonest inducement to pay the amount, which the complainant was not legally bound i.e. cheating. Although, the threatenings are stated to have been advanced by respondent No.1 and 2, but by using phone belonging to respondent No.3, which indicates that there was a criminal conspiracy among all these respondents or at least common intention.
On the basis of above discussion, impugned order appears to be apparently illegal. Same is thus, setaside.
Let trial court record be sent back to the trial court, with direction to rehear the parties and decide the matter in the light of this order. Respondents are directed to appear before Ld. ACMM, District Courts Saket, New Delhi on 02.04.2012.
File of this case be consigned to Record Room.
Announced in the open court (RAJENDER KUMAR SHASTRI)
on 26th March 2012 ASJ02/SE/ SAKET COURT
NEW DELHI
CA No. 55/09 11/11