Delhi District Court
Having Office At 303 vs State Of Nct Of Delhi on 22 September, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Revision No. 6/18
Amit Kumar Gupta,
S/o Late Sh. S.K. Gupta,
R/o Gupta Farm No. 4,
Church Road, Vasant Kunj,
New Delhi 110070.
Having office at 303,
Ashok Bhawan 93,
Nehru Place,
New Delhi - 110019. . . . . Revisionist
Versus
1. State of NCT of Delhi
2. Satender Kumar Gupta,
S/o Late Sh. Vijay Kumar Gupta
R/o D17, Ground Floor,
Green Park Extension,
New Delhi.
3. M/s R.R. Singh & Brothers
Through its Proprietor
Having Office at : World Trade Centre,
Connaught Place,
New Delhi - 110001. . . . Respondents
CR No.06/18 Page 1 of 10
Date of Institution : 05.01.2018 Date of Arguments : 10.09.2018 Date of Judgment : 22.09.2018 O R D E R
1. The present revision petition under Section 397/399 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C") has been filed for setting aside the impugned order dated 25.10.2017 in Criminal Complaint Case No. 9542/2017 titled "Amit Kumar Gupta Vs Satender Kumar Gupta and others".
2. The brief submissions of the petitioner/complainant are that:
a) The respondent no.2, Satender Kumar Gupta, is the cousin brother of the revisionist and residing at D17, Ground Floor, Green Park Extension, New Delhi. Respondent No.3 is a travel agency having its office at World Trade Centre, Connaught Place, New Delhi.
b) On 25.07.2017, the employee of the petitioner received a telephone call at the office of the petitioner from an unknown person namely Sanjay Soni, who was inquiring about the petitioner and CR No.06/18 Page 2 of 10 informed the employee of the petitioner that he is working with the travel agency namely M/s R.R. Singh and Brothers, operating from World Trade Centre, Connaught Place, New Delhi. Sanjay Soni asked for some payment due. Employee of the petitioner informed that unknown person Sanjay Soni that the payment is not to be made by the petitioner but by his accountant Narender Bhatia and gave the number of Narender Bhatia to Sanjay Soni. Sanjay Soni called Narender Bhatia and informed about Satender Kumar Gupta.
He disclosed that Satender Kumar Gupta had got issued some foreign currency equivalent to ₹3,50,000/ by misrepresenting himself to be Amit Kumar Gupta i.e. the petitioner. Photocopy of the passport of the petitioner/complainant and that of Mrinalini Thakur was furnished by him. He also informed that Satender Kumar Gupta also gave him cheque of M/s S.K.G. Consultants drawn on Vijaya Bank which got dishonoured later.
c) The petitioner further alleged that officials from M/s R.R. Singh and Brothers i.e. respondent No.3 have been calling his office and are demanding ₹3.50 Lakh and threatening him either to pay the same or face dire consequences.
d) Complaint dated 02.08.2017 was given to the SHO Police Station Kalkaji but no action was taken. The complaint was also given to the DCP, SouthEast, PS Sarita Vihar 10.08.2017 but no action has been initiated against respondent No.2 and 3.
CR No.06/18 Page 3 of 10e) The petitioner/complainant has submitted that illegal acts of respondent No. 2 and 3 deserve to be punished as they have committed the offences under section 419/468/471/506 Indian Penal Code, 1860 (in short "IPC") among others of IPC and the petitioner/complainant approached the learned trial court for the complaint under section 200 of Cr.P.C. alongwith an application under section 156 (3) Cr.P.C. which was dismissed vide the impugned order dated 25.10.2017 and hence feeling aggrieved, the present revision petition has been filed.
3. Grounds for filing the revision petition:
a) Learned trial court failed to read and observe that IO ASI Raja Ram filed a wrong and false status report in which he mentioned that he called the petitioner to join the enquiry which was wrong as no such attempt was made by him.
b) Learned trial court failed to consider the status report in which IO ASI Raja Ram filed mentioned that respondent No.2 and 3 did not join the enquiry which reflected their malafide intention and they deliberately avoided to join or reply to IO ASI Raja Ram.
c) It was improper for learned trial court to take the version of IO ASI Raja Ram to be gospel truth and dismissing the application under section 156 (3) Cr.P.C. filed by the petitioner.CR No.06/18 Page 4 of 10
d) Learned trial court failed to consider that a bare reading of the complaint revealed that the complaint discloses cognizable offence and allegations leveled by the petitioner against the accused persons/respondent No. 2 and 3 cannot be proved without the registration of FIR and consequent investigation.
e) Learned trial court failed to consider that the complaint discloses cognizable offences i.e. 419/468/471/506 IPC.
f) Learned trial court did not take into consideration that it is a settled principle of law that once a cognizable offence is disclosed, FIR has to be registered. Reliance has been placed for the same on the law laid down in Lalita Kumari versus Government of UP and others, (2014) 2 SCC 1. The impugned order is incorrect and contrary to the settled law. Once the court had found that the cognizable offence has been committed, it should have directed the SHO of Police Station Kalkaji to register an FIR.
g) Learned trial court erroneously dismissed the application by holding that no police investigation is required.
h) Learned trial court has erred grossly while not considering the prima facie case against respondent No. 2 and 3 where the substratum or material part of the complaint and the evidence are believable and are correct.CR No.06/18 Page 5 of 10
4. It has been argued that learned trial court has dismissed the application of the petitioner/complainant on the ground that in the present case, all the facts and circumstances of the case are within the knowledge of the petitioner/complainant. The said observation of learned trial court is contrary to the records of the case. The documents, statement of account and other better particulars are in the power and possession of the accused persons/respondent No.2 and 3 and their procurement and production is essential to discover the truth and they can only be gathered and collected by the police during investigation after registration of FIR.
5. Learned counsel for petitioner has argued that true identity of all/other accused persons is to be established and recovery is to be affected and also proceeds of crime have to be attached. He also argued that spot investigation is required and investigation cannot be done without registration of FIR.
6. The petitioner has prayed for allowing the present petition and direct the SHO of Police Station concerned to register an FIR against respondent No.2 and 3.
7. The notice of the revision petition was sent to the respondent no.
2 and 3. However, none appeared for respondent No.2 and Sanjay Soni appeared on behalf of respondent No.3 but no arguments have been advanced on their behalf.
CR No.06/18 Page 6 of 108. Trial court record as well as the impugned order has been perused carefully.
9. Learned trial court has nowhere observed that no cognizable offence is made out in the facts of the case. It is a settled principle of law that when criminal complaint is filed before the Magistrate and he finds that it discloses a cognizable offence having been committed, two courses are open to Magistrate. He may choose to enquire into the complaint himself by taking cognizance in exercise of powers under section 190 Cr.P.C. and proceed to enquire into it in accordance with the procedure laid down in sections 200 and 202 Cr.P.C. In the alternative. he may refer the complaint to the police and direct for investigation. In case the Magistrate gives direction for investigation of the matter, he will stay his hand till report in the section 173 Cr.P.C. is filed by the police and thereafter further process of law would follow.
10. In the case titled as Devender Kumar Vs. State (Govt. of NCT of Delhi) and others, Crl. M. C. 2116/13, decided by Hon'ble High Court of Delhi on 28.10.2014, it was held that "The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that the allegations are serious CR No.06/18 Page 7 of 10 enough and establish the commission of cognizable offence requiring thorough investigation by the police, an FIR should be ordered to be registered."
11. The law governing the choice to be exercised from amongst the two options has been settled by Hon'ble Delhi High Court in 'M/s Skipper Beverages Pvt. Ltd. Vs. State', 2001 IV AD (Delhi). In the said case, it was held that a Magistrate must apply his mind before passing an order under section 156 (3) Cr.P.C. and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.
12. Learned trial court has observed that the employees of the petitioners themselves did not join the enquiry despite repeated notices and reminders. The petitioner did not disclose as to how respondent No.2 came in possession of his passport. He did not also show as to what impersonation/forgery, if any, has been committed. Learned trial court has also observed that as per submissions of petitioner, identity of the accused persons is known to the petitioner / complainant but has not brought anything on record to suggest as to what evidence is required to be collected through police investigation.
CR No.06/18 Page 8 of 1013. I concur with these observations of learned trial court. All the submissions made by the petitioner/complainant fully support the observation of learned trial court that in the case in hand, the entire evidence of the case is within the knowledge and reach of the petitioner/complainant. The petitioner/complainant has taken contrary stands as on one hand, the petitioner has relied on the status report filed by IO ASI Raja Ram that nonjoining of the enquiry by respondent No.2 and 3 despite receiving notice of IO ASI Raja Ram shows their malafide and on the other hand, the petitioner/complainant has stated that the report of IO ASI Raja Ram is wrong and false and he has wrongly stated that the petitioner did not join the enquiry whereas no such notice was given to him.
14. Learned counsel for petitioner/complainant has argued that true identity of all/other accused persons is to be established and recovery is to be affected and also proceeds of crime have to be attached and the same is possible only by the help of investigation by the police authorities. However, the case of petitioner/ complainant is based on documentary evidence which can be easily produced before the court. There is nothing which is beyond the reach of petitioner/complainant.
15. Learned trial court has rightly observed that at this stage, there is no requirement of collection of evidence by the police as the CR No.06/18 Page 9 of 10 complainant can lead evidence in the case. Hence in the given facts and circumstances of the case, registration of an FIR is not at all necessary. However, if further evidence is required at a later stage, then section 202 Cr.P.C. can be resorted to.
16. For the foregoing reasons, in my view, the learned Metropolitan Magistrate has rightly exercised the jurisdiction vested in him. I do not find any illegality, impropriety or infirmity in the impugned order dated 25.10.2017 which calls for interference by this court. Revision deserves to be dismissed. Accordingly, same is hereby dismissed.
17. A true copy of the order alongwith TCR be sent to court concerned.
18. Revision file be consigned to record room.
Announced in the open court on (Dr. Neera Bharihoke) 22.09.2018 ASJ06/SouthEast/Saket/ND Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2018.09.24 16:52:57 +0530 CR No.06/18 Page 10 of 10