Delhi District Court
Jeetendra Kumar Singh vs Dev Samaj Modern School No. 2 & Ors on 23 March, 2015
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No. 27/15
ID No. 02406R0017792015
Jeetendra Kumar Singh
S/o Ram Pravin Singh
C/o Balram Yadav,
A446, Jaitpur Extn., Part I,
New Delhi110044. . . . . Revisionist
Through: Shri Amit Kumar Singh,
advocate.
versus
Dev Samaj Modern School No. 2 & Ors.
Sukhdev Vihar, New Delhi25 . . . . . Respondent
__________________________________________________________
Date of Institution : 17.01.2015
Date when arguments were heard : 11.03.2015
Date of Judgment : 23.03.2015
JUDGMENT :
The present Criminal Revision filed under Section 397/399/401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") is directed against the orders dated 17.12.2014 CR No. 27/15 1 of 8 and 19.12.2014 passed by learned ACMM, SouthEast, Saket Courts, New Delhi on the application under Section 156 (3) Cr.P.C. in the matter titled as Jeetendra Kumar Singh Vs. Dev Samaj Modern School No. 2 & Others.
2. Brief facts of petitioner's case are that he was appointed as a TGT teacher on adhoc basis in Dev Samaj Modern School No. 2, Sukhdev Vihar, New Delhi25 in the month of November 2006 at a monthly consolidated salary of Rs.4,500/. He was not provided any appointment letter. Respondent no. 2 Shri Manoj Madan is the Principal and respondent no. 3 Shri K. L. Vohra is the Manager of respondent no. 1 school.
3. Petitioner has stated that his monthly consolidated salary was Rs.4,500/ from July 2007 to September 2007. He was issued appointment letter dated 03.07.2007 and pursuant to which, his salary was revised and he was paid Rs.5,500/ per month w.e.f. October 2007 to April 2008. As per the terms of the appointment letter, he was appointed TGT teacher on probation of nine months, which could be extended by one year at the discretion of the management. Vide appointment letter dated 03.07.2008, petitioner states that he was in the grade of Rs.5,5009,000/ besides usual allowances but he was paid Rs. 7,000/ per month till October 2008. He enquired regarding the difference in his salary and the actual amount paid to him. On enquiry, CR No. 27/15 2 of 8 he was informed that balance amount was deducted from his salary for EPF account. The management of the school further informed that PF was being deducted from his salary. Petitioner alleges that the EPF account was never provided to him. In the month of March 2013, petitioner is stated to have received a slip of EPF, annual statement of account for the year 20102011 dated 18.01.2013. He found that the amount which was deducted from his salary was not clear in the statement of account.
4. Petitioner through RTI got the information and came to know that the management of the school deposited the EPF contribution only from August 2008 to April 2009 and thereafter, EPF was not deposited in his account, which is alleged to have been deducted from his salary. Petitioner made complaint in this regard to the SHO of police station New Friends Colony but no action was taken. He has alleged that he was threatened by SI Darpan Singh, during the course of enquiry to withdraw the complaint, otherwise to face the dire consequences. Petitioner states that the respondents have committed the offence of criminal breach of trust and of criminal intimidation.
5. Along with the complaint, petitioner also filed an application under section 156 (3) Cr.P.C. On the application of petitioner, learned ACMM called Action Taken Report from SHO of police station concerned. The police filed the Action Taken Report CR No. 27/15 3 of 8 wherein it is stated that regarding the EPF deduction, enquiry was conducted. The Assistant Provident Fund Commissioner gave his report which showed that if the employer fails to deposit the PF dues, then an enquiry under section 7A of EPF and MP Act, 1952 may be initiated for recovery of PF dues. Opinion from prosecution branch was also sought, which opined that as per section 14AB of The Employees Provident Funds, the offence was cognizable and as per section 14AC, the complaint was to be filed for nondeposition of EPF. Considering the opinion of APP and the approval of DCP, SouthEast, the original complaint filed by petitioner along with other related documents have been transferred for legal action to the Provident Fund Commissioner, EPF, Dwarka, New Delhi vide diary no. 1884/SHONFC dated 11.06.2014.
6. After hearing learned counsel for petitioner and perusing the record of the case, learned ACMM was pleased to dismiss the application of petitioner under section 156 (3) Cr.P.C. Petitioner was given liberty to pursue his complaint under section 200 Cr.P.C.
7. Feeling aggrieved of the impugned orders, petitioner has preferred the present revision petition.
8. Learned counsel for petitioner after drawing the attention of the court to the averments made in the complaint, documents annexed along with the complaint and relying upon the judgment titled as Lalita CR No. 27/15 4 of 8 Kumari Vs. State of U.P. & Others 2013 V AD (Crl.) (SC) 509 and Radha Vs. State Crl. Misc. (C) No. 3494/2008 of Hon'ble High Court of Delhi decided on 18.05.2011, submitted that prima facie a cognizable offence is made out and learned trial court failed to exercise the power under section 156 (3) Cr.P.C. vested in him by not giving the direction to the SHO of police station NFC for registration of FIR and investigation of the matter. He further submitted that the evidence is beyond the reach of the petitioner and same can be collected only by taking the help of police machinery. He prayed to set aside the impugned order of the trial court and direct the police for registration of the case and investigation of the matter.
9. I have carefully considered the submissions advanced by learned counsel for petitioner and perused the material on record.
10. It is a well settled principle of law that when criminal complaint is filed before the Magistrate and after perusing the same, he finds that it discloses a cognizable offence having been committed, two courses are open to the Magistrate. He may choose to enquire into the complaint himself by taking cognizance in exercise of his powers under section 190 Cr.P.C. and proceed to enquire into it in accordance with the procedure laid down in sections 200 & 202 Cr.P.C. In the alternative, he may refer the complaint to police under section 156 (3) Cr.P.C. for investigation. In case the Magistrate gives direction for investigation of CR No. 27/15 5 of 8 the matter, he will stay his hand till report under section 173 Cr.P.C. is filed by the police and thereafter, further process of law would follow.
11. In the case titled as Devender Kumar Vs. State (Govt. of NCT of Delhi) and Others 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 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 enough and establish the commission of cognizable offence requiring thorough investigation by the police, an FIR should be ordered to be registered."
12. I have gone through the impugned order of the trial court. Learned ACMM has rightly appreciated the judgment passed by Hon'ble High Court of Delhi in the case titled as M/s Skipper Beverages P. Ltd. Vs. State 2002 Cri.L.J. NOC 333 (Delhi) and judgment titled as Arvindbhai Rajeevbhai Patel Vs. Dhirubhai Shambhubhai 1998 (1) Crimes 351 passed by Hon'ble Gujarat High Court.
13. Hon'ble Apex Court in case titled as Aleque Padamsee Vs. Union of India, 2007 Crl.J 3729 (SC) observed that when the information is laid with the police, but no action is taken in that behalf, CR No. 27/15 6 of 8 the complainant can file complaint under section 190 read with section 200 Cr.P.C. before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code.
14. In the case in hand, the entire case of the petitioner is based on documentary as well as oral evidence, which is well within the knowledge and access of the complainant, and the same can be produced by him during the course of his deposition as well as of his witnesses. The documents which are not in the power and possession of petitioner, may be summoned from the office of Provident Commissioner or the school concerned or some other sources wherever they are. There is nothing which is beyond the reach of petitioner and which cannot be produced in the court. In the course of proceedings, if it appears to the trial court to get the matter enquired or investigated, he may take help of the police or other authority in exercise of powers under section 202 Cr.P.C. The trial court is not precluded from making any enquiry or investigation, if there is any requirement.
15. In view of foregoing reasons, I do not find any illegality, impropriety or infirmity in the impugned orders dated 17.12.2014 and 19.12.2014 passed by learned Additional Chief Metropolitan Magistrate, SouthEast, Saket Courts, New Delhi. The petition deserves to be dismissed and same is dismissed accordingly.
CR No. 27/15 7 of 8
16. A true copy of the judgment along with TCR be sent back to court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e 23rd March, 2015 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No. 27/15 8 of 8