Delhi District Court
M/S. Royale Brass House Pvt Ltd vs The State (Govt. Of Nct Of Delhi) on 20 March, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDLL. SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CR No. 500 of 17
( In CR No. 99/17)
M/s. Royale Brass House Pvt Ltd.
Through its Directors Mr. Yogesh Ahuja
688, Nai Basti, Devli Village
New Delhi110062 ..........Revisionist
Vs.
1 The State (Govt. of NCT of Delhi)
2 Sourabh Kumar Gupta
S/o Sh. Kamlesh Kumar Gupta
R/o E165, Greater KailashIII
Masjid Moth, New Delhi110048 ..........Respondents
Instituted on : 13.10.2017 Argued on : 09.03.2018 Decided on : 20.03.2018 O R D E R 1 The revisionist has impugned the order dated 10.10.2017 passed by Ld. Trial Court vide which application u/s 156(3) Cr.PC of R2 was allowed and directions have been given by the Court to SHO, PS K. M. Pur to lodge an FIR against the revisionist.
Royal BraSS CR No. of 2018 1/10 2 The revision is filed on the grounds that impugned order is bad in the eyes of law. The order is hit by Section 210 Cr.PC. The issue in question relates to the issue involved in the pending investigation in the FIR registered against R2 at the instance of the Director of the revisionist. Two FIRs have already been registered against R2 in respect to the offences regarding the affairs of the companies of S. M. Brass House Ltd. & Royalee House Brass Pvt. Ltd. The present FIR will unnecessary create confusion and conflict of laws. The order in question should be set aside.
3 Notice of the revision is given to the respondents. 4 The facts of the case are like this. The R2 has filed a complaint against the revisionist and others on the grounds that he is Director of M/s. S. M. Brass House Ltd., 97 DSIDC complex, Bapu Park, Kotla Mubarakpur, New Delhi. In February, 2014 all the plant and machinery, assets, furnitures and fixtures, computers and pattern and industrial plot of M/s. Royalee Brass House Pvt. Ltd. have been purchased by M/s. S. M. Brass House Ltd. after making payment through cheque by him as well as Mrs. Parul Kapoor. M/s S. M. Brass house Ltd. has used the said machinery, assets and furniture. He came to know that plant, machinery and other items are at premises no. 688, Nai Basti, Village Devli,New Delhi. The said premises is used by both the Royal BraSS CR No. of 2018 2/10 firms. The said plant, machinery and other items are put into unlawful use by the revisionist even after the sale and receipt of payment by Royalee Brass House Pvt. Ltd. All the machineries are mortgaged with Andhara Bank, Connaught Place, New Delhi as a security by Royale Brass House Pvt. Ltd. and its Directors. The agreement was executed by the Royalee Brass House Pvt. Ltd. and its Director Yogesh Ahuja for taking the loan from Andhara Bank. On 04.10.2014, the loan of Rs. 9 Lacs was taken by Royale Brass House Pvt. Ltd. by mortgaging / hypothicated the machinery of M/s. S.M. Brass House Ltd. without the written and knowledge consent of the R2 and company. The revisionist has played a fraud upon him and his company. Mrs. Parul Kapoor, who was Director in his company, has cheated him and his company by conniving with the revisionist.
5 The application u/s 156(3) Cr.PC was filed alongwith complaint by the R2 upon which Status Report was called from the police. The Status Report dated 28.06.2017 shows that a cognizable offence is made out. Another FIR No. 287/2016, PS K. M. Pur between the same parties is under investigation. Ld. Trial Court after considering the status report as well as facts of the case has directed SHO to register FIR. 6 Ld. Counsel for the revisionist submitted tha the subject matter of Royal BraSS CR No. of 2018 3/10 case in hand is similar to the subject matter of case FIR No. 287/2016, PS K. M. Pur and Police can investigate the entire matter in FIR No. 287/2016 so there was no need for the Ld. Trial Court to direct the SHO to register separate FIR. He further submitted that two FIRs for the same offence cannot be lodged. He further submitted that lodging of second FIR will create more confusion rather than solving the issue in question. 7 Ld. Counsel for R2 submitted that subject matter of both the FIRs is not the same. He further submitted that new facts have cropped in as revisionist has mortgaged the property after selling the same to M/s SM Brass House Ltd. He further submitted that there is no bar to lodge second FIR. 8 Heard and perused the record.
9 The submissions of the parties have to be seen in the light of law laid down by Hon'ble Apex Court as well as by Hon'ble High Court. 10 In Subhkaran Luharuka & Anr v. State and Anr., 170 (2010) DLT 516 certain guidelines were issued for the guidance of subordinate courts while dealing with the application u/s 156(3) CrPC which are like this: "52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application u/s 156(3) Cr.PC is summarized as under:
(i) Whenever a Magistrate is called upon to pass orders u/s Royal BraSS CR No. of 2018 4/10 165(3) CrPC at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer incharge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complaint. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant u/s 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SAHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.
(iii) The Magistrate, when approached with a complaint u/s 200 CrPC should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is necessity to call for a police report u/s 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application u/s 156(3) Royal BraSS CR No. of 2018 5/10 CrPC is also filed alongwith a complaint u/s 200 CrPC if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the perrequisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of the complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
11 In Lalita Kumari v. State of UP, (2014) 2 SCC 1, it was held by their lordship it is mandatory for the police register FIR u/s 154 CrPC in the cases where complaint discloses commission of a cognizable offence. A preliminary inquiry is envisaged in certain type of cases like matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, cases where there is abnormal delay/latches in initiating criminal prosecution, e.g. over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. 12 In Mohd. Salim v. State, 175 (2010) DLT 473 it was held by their Lordships as under: "11. The use of the expression "may" in Subsection (3) of Section 156 of the Code leaves no doubt that power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the police even if the allegations made in the complaint disclose commission of a cognizable offence. In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightway take cognizance of the alleged offence and proceed u/s 200 of the Code by Royal BraSS CR No. of 2018 6/10 examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightway proceed further in the matter, instead of passing the buck to the Police u/s 156(3) of the Code. Of court, if the allegations made in the complaint require complex and complicated investigation of which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the police."
13 It is clear that police is bound to register FIR in every cognizable offence. The cognizable offence is sufficient to move the investigating machinery into action.
14 It is also clear that directions for investigation u/s 156(3) CrPC cannot be given by the Magistrate in a mechanical manner. Such a direction can be given only on the application of mind by the Magistrate. The Magistrate can direct investigation by the police if it feels that evidence is required to be collected with police assistance. Royal BraSS CR No. of 2018 7/10 15 The Ld. Trial Court has called the status report from the police on the application u/s 156(3) CrPC of R2. The status report dated10.6.2017 shows that a prima facie case u/s 420 IPC is made out. The approval of the Sr. Officers is required to register FIR.
16 The status report 28.6.2017 filed by the police shows that a cognizable offence has been made out.
17 Ld. Trial Court has directed the police to register FIR on the basis of status reports.
18 The perusal of the file shows that FIR No. 287/16, PS, KM Pur has been registered on the complaint of Yogesh Ahuja, Director of the revisionist. The perusal of FIR shows that R2 has induced the revisionist for business tie up and managed to get all the machineries Royale Brass House Pvt Ltd. transferred to SM Brass House Ltd at a throw away prices on the assurance that expenses and profits shall be shared by both the companies which has never happened. This is one of the allegations. FIR also contain other allegations.
19 It is clear even from the FIR No. 287/16 that there are two different firms i.e. M/s Royale Brass House Pvt Ltd and M/s SM Brass House Ltd. It is clear from the contents of FIR that all the machineries of the Royale Royal BraSS CR No. of 2018 8/10 Brass House Pvt Ltd has been transferred to M/s SM Brass House Ltd. It is another matter whether the price by respondent no. 2 to Royale Brass House Pvt Ltd. was a genuine price or not. This is not the subject matter of the case in hand.
20 The machinery of M/s Royale Brass House Pvt Ltd has been allegedly transferred to M/s SM Brass House Pvt Ltd. The ownership stands transferred. The perusal Trial Court file shows that payment by SM Brass House Ltd has been given to M/s Royale Brass House Pvt Ltd. The copies of the cheques regarding payment are on the record. The perusal of the record shows that M/s Royale Brass House Pvt Ltd has executed an agreement dated 4.10.2014 vide which machinery of Royale Brass House Pvt Ltd has been mortgaged for a sum of Rs. 9 lacs with Andhra Bank, Connaught Place, New Delhi. The charge has been created over the assets by M/s Royale Brass House Pvt Ltd. which is also clear from Form No. CHG1. 21 M/s SM Brass House Pvt. Ltd is the owner of the machinery of M/s Royale Brass House Pvt Ltd. M/s Royale Brass House Pvt Ltd. Has allegedly no right to mortgage the said machinery with the bank without the consent and knowledge of M/s SM Brass House Pvt Ltd. The facts are new which are not the subject matter of FIR no. 287/16, PS, KM Pur. The police report Royal BraSS CR No. of 2018 9/10 also shows that a cognizable case has been made out for offence u/s 420 IPC. The police have to register an FIR once a cognizable offence is made out. Moreover, the complainants in both the FIRs are different. 22 Ld. Trial Court has rightly exercised the jurisdiction by directing the police to register an FIR and investigate the case. 23 I do not see any infirmity in the order dated 10.10.2017 passed by Ld. Trial Court.
24 The revision petition is dismissed.
25 TCR alongwith copy of this order be sent back to Ld. Trial Court.
26 Revision file be consigned to record room.
Announced in the
open court on
20th March, 2018 (SURESH KUMAR GUPTA)
Add. Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Royal BraSS CR No. of 2018 10/10