Delhi District Court
Bal Krishan Bhatia vs State on 23 February, 2018
IN THE COURT OF SH. JAGDISH KUMAR
ADDITIONAL SESSIONS JUDGE (WEST-02), DELHI.
Criminal Revision No.268/2017
IN THE MATTER OF :
Bal Krishan Bhatia
S/o Late Ram Prakash Bhatia
R/o H. No. M-35, Rajouri Garden, Delhi- 110 027
.............. Revisionist
Versus
1. State
Through SHO, PS- Rajouri Garden
2. N. S. Bhatia
S/o Avtar Singh Bhatia
Secretary General,
Mai Kamli Wali Jan Kalyan Charitable Trust Society,
V-51, Rajouri Garden, New Delhi.
........Respondents
Date of filing : 12.07.2017
Date of Institution : 12.07.2017
Date of Argument : 23.02.2018
Date of Judgment : 23.02.2018.
JUDGMENT:
1. The present revision petition under section 397/399 of Cr.P.C. assails the order dt. 22.06.2017 (hereinafter called impugned order), as passed by Ld. MM-02/West/Delhi, (hereinafter called the Ld. Trial Court), vide which Ld. Trial court has directed U/s 156(3) Cr. P. C. for the registration of FIR C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.1/11 against the revisionist as well as other persons.
2. Brief facts of the case are that Mai Kamli Wali Jan Kalyan Trust Society (herein after called the Trust) has got allotted the land measurng 375 Sq. Mtr. from DDA, for construction of a hospital. As the Trust wanted to provide free medical aid and services to the poor as well as needy persons. Accordingly, a hospital was constructed at the land being allotted to the trust, from the donations being contributed by various persons. The hospital was came into fully operational for all intents and purposes from the year, 1998-99.
3. The Trust felt the need for providing better equipment and infrastracture to provide care to the poor and needy patients. The efforts were made to collect more funds and consequently, Satya Narain Prakash Punj came forward and pursuaded the Trust on the pretext that he would, without any motive, wants to establish a hospital with all apparatuses and machinerty at his own cost and expenses. A agreement dated 07.02.2001 was executed accordingly, between the Trust through its President Sh. Ram Nath Bakhshi and Pt. Kanhayia Lal Dayawanti Punj Charitable Society.
C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.2/11
4. It was agreed that an advisory committee will be constituted of 20 or more members and out of 20 members, 3 members shall be from the side of the Trust. These three members shall have right to participate in the meetings of advisory committee. It is also alleged by the respondent no. 2 that it was agreed in the agreement dated 07.02.2001 that a second party would render the accounts regarding the income and expenditure from time to time. The respondent no. 2 alleged that the Satya Narain Prakash Punj and his son Atul Punj in connivance with revisionist and other doctors at the hospital became dishonest. They have failed to form the advisory committee and in case they have formed the advisory committee. The Trust had no knowledge as Trust has never been invited to attend the meeting of Advisory Committee. It is alleged that no account was rendered at any point of time to the Trust.
5. It is alleged in the complaint that as per agreement dated 07.02.2001, the second party would pay 20% of the income derived from the said hospital but, unfortunately, the second party has not paid a single penny to the first party. It is also alleged that the proposed accused till date have not allowed the Trust to see the books of account and to inspect the same despite the Trust having right to see the books of account. It is alleged that the revisionist along with co-accused are maintaining some C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.3/11 duplicate books of account and manipulating the books of account with the object to cheat and defraud the Trust as well as government agencies. It is also alleged that the Satya Narain Prakash Punj has subletted a portion of the hospital premises to one Dr. Seema in which a ferterlity centre by the name of "Its My Baby IVF Centre" has been opened. It is alleged that the revisionist along with other persons have intended to grab the property of Trust. Consequently, a complaint dated 12.12.2015 was filed with the police station Rajour Garden but, the concerned police has not taken any action. Thereafter, on 24.02.2016, the copies of the complaint was sent to higher police official but still, no action has been taken. Thereafter, a complaint U/s 156(3) Cr. P. C. has been filed which has been allowed by impugend order.
6. Being aggrieved from the impugned order, the present revision petition has been filed by the revisionist. It is alleged in the revision petition that Ld. Trial Court has not applied its mind while passing the impugned order. It is submitted that impugned order has been obtained by concealing the material facts from the court as the respondent no. 2 has not disclosed the pendency of Civil Suits between the Trust and other party, even including case for rendition of account. It is submitted that on one hand, the respondent no. 2 has challenged the agreement dated 07.02.2001 C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.4/11 and sought the relief in a civil suit that the agreement be declared as null and void. It is submitted that as per agreement dated 07.02.2001, it was agreed that 20% of the agreed surplus income shall be given and not the 20% of gross income. It is submitted that even, the impugned order has obtained on 22.06.2017 by concealing the fact that on 18.05.2017, in civil suit no. 718/14 (6717/16) the parties were referred to National Lok Adalat for compromise.
7. It is also alleged by the revisionist that Ld. Trial court has ignored the three status reports being filed by the police officials in which police officials have categorically stated that the dispute between the parties is of civil nature. The prayer has been made accordingly to set aside the impugned order.
8. I have heard the Ld. Sr. Counsel Sh. Hari Haran for the revisionist and Ld. Substitute Addl. P. P. for State as well as Ld. Counsel Sh. Lokesh Ahlawat for respondent no. 2. I have also perused the entire record. I have given my thoughtful consideration to the submission being made by Ld. counsels.
9. The Ld. Senior Counsel for the revisionist argued on the same lines as C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.5/11 has been alleged in the revision petition. The Ld. Addl. Substitute PP for the state has argued that impugned order is correct which needs no interference. Ld. Counsel for respondent no. 2 has argued that on legal aspect once FIR is registered then, investigation can not be stopped. It is also argued that Ld. Trial Court has passed the correct order which needs no interference.
10. Considering the arguments, before further adverting the facts of the case, I would like to mention here certain proposition of law. Hon' ble Supreme court of India in case titled as Anil Kumar Vs. M. K. Aiyapp & Ors. (2003) 10 SCC 705 has observed that the Magistrate is required to apply his mind while giving direction U/s 156(3) Cr. P. C. for regsitration of FIR. The applicability of mind should be reflected in the order.
11. The Hon' ble Supreme Court of India in case titled as HDFC Securities Ltd. & Ors. Vs. State of Maharashtra & Ors. AIR 2017 SC 61 has observed that "However, it appears to us that this order U/s 156(3) of Code of Criminal Procedure requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.6/11 that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage, the Hon' ble High Court has correctly assessed the facts and the law in this situation and held that filing of the petition under Article 227 of the Constitution of India or U/s 482 of the Code of Criminal Proccedure, at this stage, are nothing but, premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherit power of the courts U/s 482 of Code of Criminal Proccedure should be sparingly used".
12. The Hon' ble Supereme Court in case HDFC Securities Ltd. & Ors. Vs. State of Maharashtra & Ors. AIR 2017 SC 61 has further oberved that " The accused under Indian Criminal Legal System, unless proved guilty shall always be given a reasonable space and liberty to defend himself in accordance with the law. Further, it is always expected from a person accused of an offense pleading not guilty that he shall co- operate and participate in criminal proceedings or proceedings of that nature before a court of law, or other tribunal before whom he may be accused of an 'offence' as defined in Section 3(38) of the General Clauses Act, i. e. , an act punishable under the penal code or any special or local law. At the same time, courts, taking cognizance of offence or conducting a trial while issuing any order are expected to apply their C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.7/11 mind and the order must be a well reasoned one".
13. The Hon' ble Supreme Court of India in case titled as Tilly Gifford Vs. Michel Floyd Eshwar and Anr. AIR 2017 Supreme Court 3823 has observed that once FIR is registered, it should be fully investigated in accordance with law.
14. On perusal of impugned order, the Ld. Trial Court has given the directions of registration of FIR and investigation, on relying upon the judgment of Hon' ble High Court of Delhi in case titled as Shubhakaran Luharuka Vs. State Crl. M.L. No. 6122-23/2005.... by observing that all the documents are exclusively in possession of accused (in main complaint) and the respondent no. 2 is not in a position to access the documents.
15. Now, question is whether the Ld. Trial Court has applied its mind while directing the registration of FIR or not. Here in the present case, there are allegations that one of the portion of hospital has been given to Dr. Seema by violating the terms and conditions of the agreement dated 07.02.2001. The Ld. Sr. Counsel for revisionist has argued that the documents could be summoned in civil suit pending between the parties C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.8/11 to the dispute. On perusal, the allegations are there in the complaint that the co-accused and revisionist are maintaining duplicate books of account and manipulating the books of account. In that eventuality, the police investigation is required. The allegations are also there in the complaint that a part of the hospital has been subletted to Dr. Seema but revisionist is denying the same. To get recover that subletting documents, if any, are required to be searched in the given circumstances which has to be done by the investigating agency. Suppose, the revisionist produce any documents being manipulating that documents, in that eventuality, it will be not possible for the respondent no. 2 to ascertain authencity of those documets. Similar is the situation with the books of account.
16. So far as the submissions of Ld. Sr. Counsel for the revisionist that the Ld. Magistrate ignored the report filed by the police official declaring the dispute in civil nature, is concerned. In this regard, I am of the view that there is thin gap between the nature of civil dispute and criminal intend. The conspiracy is always hatched behind the curtain. It is very difficult to reveal the conspiracy in the facts and circumstances of the case. Here in the present case, the circumstances are of such nature that the investigation is required and giving status report by the investigating C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.9/11 agency does not make any difference, and at this stage, I am not commenting upon the Status Report filed by the Investigating Agency which may be detrimental to either party.
17. I am also not commenting much upon the merits of the case at this stage because it may cause prejudice either of the parties. Moreover, in the present case, FIR has already been registered and same is under investigation. Even Hon' ble High Court vide order dated 09.11.2017 has opined that investigation must be continued till disposal of present revision petition.
18. The submission of Ld. Counsel for revisionist that the respondent no.2 has obtained the impugned order by concealing the fact i.e. not mentioning the pendency of civil cases between the parties. In this regard, I am of the view that the concealment, if any, cannot effect the investigation. If the offence is committed, it will be revealed from the investigation and it cannot be said that no offence has been committed due to concealment of pendency of civil cases.
19.No doubt, the registration of an FIR causes some consequences for the revisionist and other co-accused persons but in view of observation of C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.10/11 Hon'ble Supreme Court of India in case titled as HDFC Securities Ltd. & Ors. (supra), the revisionist and co-accused persons have legal remedies against those consequences.
20. It is settled proposition of law that revisional court should generally not interfere in the descritionary power of Ld. Trial Court, until-unless, a gross miscarriage of justice had not happenned. I am of the view that the investigation is under progress and the Investigating Agency must given a free hand to investigate the investigation. Merely, registration of FIR is not miscarriage of justice and in view of observation of Hon'ble Supreme Court of India in case titled as HDFC Securities Ltd. & Ors. (supra), the revisionist and co-accused persons have legal remedies against those consequences of registration of FIR.
21. So in the given facts and circumstances, I find no illegality or infirmity in the order of Ld. Trial Court. Revision of the revisionist stands dismissed. Trial Court record be sent back with copy of this order. ANNOUNCED IN THE OPEN COURT ON THIS 23.02.2018 (JAGDISH KUMAR) ADDITIONAL SESSIONS JUDGE (WEST-02):DELHI/23.02.2018 C.R. No.268/2017 Bal Kishan Bhatia Vs. State & Anr. Page No.11/11