Delhi District Court
Balbir Singh vs The State (Govt. Of Nct Of Delhi) on 27 May, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 646/2019
CNR No.: DLCT01-013670-2019
Balbir Singh
S/o Late Hukum Singh
R/o A-6, Gali No. 1, Dipanshu Colony,
Jharoda Majra, Burari, Delhi-110084
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Kishore
S/o Late C.L. Soni
R/o C-48, 1st Floor, Hardev Nagar,
Jharoda Majra, Burari, Delhi-110084
3. Deepak Malhotra
C/o GRAS Education & Training Services Pvt. Ltd.
F-0, Ground Floor
The Meera Corporate Suites,
Plot No. 1 & 2, Ishwar Nagar, Mathura Road,
New Delhi-110065
4. Ashfaq
C/o GRAS Education & Training Services Pvt. Ltd.
F-0, Ground Floor
The Meera Corporate Suites,
Plot No. 1 & 2, Ishwar Nagar, Mathura Road,
New Delhi-110065
..... Respondents
Date of Institution : 04.10.2019
Date of Arguments : 02.05.2022
Date of Judgment : 27.05.2022
JUDGMENT
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1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against an order dated 26.08.2019 (In short 'the impugned order') in complaint case vide Case No. 17580/2018 titled as 'Balbir Singh vs. State' whereby Ld. MM- 09, Central District, Tis Hazari Courts, Delhi (Hereinafter referred to as 'the trial Court') dismissed an application under Section 156 (3) Cr.P.C. seeking direction to SHO, PS Burari to register FIR against the respondent No. 2 to 4. BRIEF FACTS:
2. The petitioner filed an application under Section 156 (3) Cr.P.C. seeking registration of FIR against the respondent No. 2 to 4 on averments that the petitioner's organization, namely, Hanuman Yuvraj Dhanraj Samiti (In short 'HYDS') established a teaching institution for providing free education to local children in Burari, Delhi. The case of the petitioner is that in September, 2016; the respondent No. 2 represented the petitioner that he would secure a project for the petitioner, if the said teaching institution satisfied criteria of Pradhan Mantri Kaushal Vikas Yojana (In short 'PMKVY') and he would pay an amount of Rs. 20,00,000/- to HYDS in four months. The respondent No. 2 represented that he would pay salary to teachers. The petitioner was required to arrange teachers. The respondent No. 2 secured a project for the said teaching institution through an organization, namely, GRAS Education & Training Services Pvt. Ltd.
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3. According to the petitioner, the respondent No. 2 induced him to sign an agreement on the pretext that the said agreement was required to be submitted on that day. The petitioner is an illiterate and he asked the respondent No. 2 to prepare an agreement in Hindi. However, he trusted the respondent No. 2 and signed the said agreement. The respondent No. 2 asked the petitioner to arrange children for the said centre. The petitioner had no responsibility to arrange the children. However, the petitioner enrolled 171 children in first batch. On completion of first batch, the respondent No. 2 stopped visiting the said centre. On completion of the course, the respondent No. 2 refused to pay an amount of Rs. 20,00,000/- to him on the pretext that the said amount was not mentioned in the said agreement. The petitioner performed his part of contract as there was a penalty clause of Rs. 10,00,000/- in the said agreement. On being approached, the respondent No. 3 and 4 threatened to discontinue the said project and get his institution sealed. The petitioner made a complaint in this regard to PS Burari. On 14.03.2018, examination of final batch was conducted. On 09.04.2018, the petitioner went to office of NSDC and learnt that entire payment was credited into account of GRAS Education & Training Services Pvt. Ltd. The respondent No. 2 to 4 refused to transfer the amount to the account of HYDS. The petitioner made complaint to local police and senior officers of police on 17.04.2018 and thereafter, he filed the said application under Section 156 (3) Cr.P.C.
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4. On 25.11.2018, the respondent No. 2 made a complaint to PS Burari that there was an agreement regarding sharing of amount in the ratio of 37% and 63% between him and the petitioner. He stated that he incurred expenses in the sum of Rs. 4,78,343/- in execution of the said project. He stated that GRAS Education & Training Services Pvt. Ltd. transferred an amount of Rs. 3,26,341/- to the account of HYDS.
5. In reply dated 07.12.2018, GRAS Education & Training Services Pvt. Ltd. Stated as under:
"8. That on 20.07.2018, the representative of Grass Education (Mr. Deepak Malhotra) submitted in front of Investigating Officer that Grass Education is ready to pay due amount as per agreement to Hanuman Yuvraj after deducting amount of Rs. 3,26,146/- (which had already been paid to Hanuman Yuvraj). The representative of Grass Education (Mr. Deepak Malhotra) had taken time from Investigating Officer and Hanuman Yuvraj to inspect / calculate the due amount to which Investigating Officer and Hanuman Yuvraj had not objected.
9. That the representative of Grass Education (Mr. Deepak Malhotra) when inspected its accounts it had been found that the Grass Education received amount of Rs. 34,40,141/- @ Rs. 42.40/- base cost from Government after deducting TDS i.e. Rs. 4,28,705/-. Further as per agreement Hanuman Yuvraj had a share of Rs. 24/- i.e. 56.60% of base cost.
As per 56.60% the share amount of Hanuman Yuvraj came into place is Rs. 19,47,250/- which is to be paid as per schedule in 4 installments as mentioned above. True copy of statement is annexed as Annexure-R2.
10. That the Hanuman Yuvraj is not eligible for 3 rd and 4th installment from Grass Education as per agreement as the Hanuman Yuvraj had not fulfilled placement parameters.
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11. That as per 1st and 2nd installment Hanuman Yuvraj will be eligible for 20% and 40% of Rs. 19,47,250/- i.e. Rs. 3,89,450/- and Rs. 7,78,900/-. Further after deducting TDS from both the amount the total amount comes to Rs. 10,51,515/- from which Rs. 3,26,146/- (the amount already paid to Hanuman Yuvraj). Further the net amount comes to Rs. 7,25,369/-, which the Grass Education has ready to pay.
12. That as per conversation, Grass Education had prepared a Mediation cum Settlement Agreement and sent an email to Hanuman Yuvraj mentioning all the facts and agreeing to pay net amount of Rs. 7,25,369/-, to which no reply had been received."
ACTION TAKEN REPORT:
6. SI Jagdish Singh, PS Burari submitted report, as under:
"In this regard, it is submitted that the complaints of the complainant were received at PP Jharoda and enquired in depth by undersigned. During the course of enquiry, the statement of the complainant as well as alleged persons obtained. During the course of enquiry, it revealed that an agreement was prepared between both the parties i.e. M/s. Hanuman Yuvraj Dhanraj Samity (HYDS) and M/s. Gras Education & Training Service Pvt. Ltd. On 05.02.2016. M/s. Gras Education & Training Service Pvt. Ltd. is ready to pay his amount as per agreement, but the complainant is not agree. The complainant wants all amount which have been drawn by Govt. in favour of M/s. Gras Education & Training Service Pvt. Ltd. in this regard. No criminal offence is made out. The complaint is civil in nature. The complainant has been advised to approach in Civil Court in this regard and complaint has been filed.
In view of the above facts and circumstances, it is humbly prayed that the application filed by the complainant Balbir may kindly be disposed off. Moreover, undersigned is ready to abide all the directions / orders passed by this Hon'ble Court in this regard."
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7. Relevant part of the impugned order is as under:
"From the careful scrutiny of the record, it appears that all the facts constituting the alleged crime are within the knowledge and the reach of the complainant. There is no requirement of a scientific and technical investigation in the matter. There is no requirement of collection of evidence by the investigating agency, the necessary and cogent evidence are either in the reach of the complainant or can be summoned, through the court. Keeping in mind the totality of the fact and the circumstances, I am not inclined to invoke the discretionary power vested in the court by virtue of section 156(3) Cr.P.C. Reference is made to the Judgment of the Hon'ble Delhi High Court in the case titled as Shub Karan Luharuka & Anr. vs. State & Anr. 2010 (3) JCC 1972.
In my considered opinion, the complainant is required to prima facie establish the allegations by leading pre summoning evidence u/s 200 Cr.P.C. The relief claimed u/s 156 (3) Cr.P.C. is declined.
If at all there shall be any need for investigation then the provisions u/s 202 Cr.P.C. may be resorted to.
In view of the above, the present application u/s 156 (3) Cr.P.C. is hereby dismissed."
GROUNDS OF REVISION:
8. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred criminal revision petition on grounds, as under:
(a) The trial Court did not appreciate that the respondents, with premeditated approach, cheated the petitioner by using the name of his organization;
(b) The trial Court did not consider that the respondents committed a serious offence punishable upto 7 years;
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(c) The trial Court did not appreciate that the petitioner is an illiterate and the respondents taken his signature on an agreement where figure '24,00,000/-' is mentioned as Rs. 24/-;
(d) The trial Court did not consider the status report filed by SI Jagdish on 10.12.2018 that M/s GRAS Education & Training Services Pvt. Ltd. was ready to pay amount to the petitioner as per agreement. The respondents defrauded the petitioner with an amount of Rs. 26,52,642/-;
(e) M/s GRAS Education & Training Services Pvt. Ltd.
already received an amount of Rs. 26,52,642/-. However, the said amount was not paid to the petitioner;
(f) The trial Court did not consider that police assistance is required to recover the amount and ascertain the persons involved in conspiracy;
(g) The trial Court did not consider statutory mandate under Section 154(1) Cr.P.C.;
(h) The trial Court did not apply direction of Hon'ble Apex Court given in Lalita Kumari vs. State of U.P., Writ Petition (Criminal) No. 68/2008 decided on 12.11.2013; and
(i) The trial Court did not consider the case law relied by the petitioner i.e. Paradise Credit P. Ltd. & Ors. vs. State of NCT of Delhi, Lalmuni Devi vs. State of Bihar & Ors. and Rajesh Bajaj vs. State of NCT of Delhi & Ors.
APPEARANCE:
9. I have heard Mr. Aditya Agarwal, Advocate for the petitioner and Mr. Mukesh Bhardwaj, Advocate for the respondent No. 3 and 4 and examined trial Court record.
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10. Ld. Counsel for the petitioner contended that the allegations made in the complaint disclose commission of a cognizable offence. He contended that it is the duty of the Court to direct registration of FIR. He relied on judgments in M/s.
Hero Fincorp Limited vs. The State (NCT of Delhi) & Anr., Crl. M.C. 736/2021 decided on 04.01.2022, Paradise Credit Ltd. & Ors. vs. State of NCT of Delhi, Crl. M.C. 2936/2012 decided on 20.12.2013, Lalmuni Devi vs. State of Bihar & Ors., (2001) 2 SCC 17 and Rajesh Bajaj vs. State NCT of Delhi & Ors., (1999) 3 SCC 259. He contended that the respondents, in furtherance of criminal conspiracy, induced the petitioner to enable them to use his infrastructure and defrauded him by obtaining his signature on an agreement in English. He contended that the respondents obtained signature of the petitioner on an agreement where figure of 'Rs. 24/-' in place of 'Rs. 24,00,000/-' was mentioned. He contended that the entire payment is credited to the account of GRAS Education & Training Services Pvt. Ltd. and they have not paid him his amount. He contended that there is need of police investigation for ascertaining identity of the persons involved in conspiracy as well as for recovery of the amount. He contended that the trial Court neither considered mandate of law envisaged under Section 154 Cr.P.C. nor followed law in Lalita Kumari vs. State of U.P. He contended that the impugned order should be set-aside and local police should be directed to register FIR.
Crl. Rev. No. 646/2019 Balbir Singh vs. State & Ors. Page No. 8 of 15 CONTENTIONS OF LD. COUNSEL FOR THE RESPONDENT NO. 3 AND 4:
11. Ld. Counsel for the respondent No. 3 and 4contended that the respondent No. 2 expired on 09.05.2021, after filing of criminal revision petition on 04.10.2019. He placed on record a copy of death certificate of the respondent No. 2, namely, Kishore Kumar. He contended that there is no allegation against the respondent No. 3 and 4. He contended that it is the precise case of the petitioner that the respondent No. 2 had approached him for bringing a project for HYDS, if it fulfilled criteria prescribed under PMKVY. He contended that the respondent No. 2 represented him that he will pay salary of the teachers. He contended that the respondent No. 2 had obtained signature of the petitioner on the agreement. He contended that the respondent No. 3 and 4 had no role in any representation made by the respondent No. 2. He contended that in any case, the allegations made in the complaint do not disclose commission of any cognizable offence. He contended that GRAS Education & Training Services Pvt. Ltd. was entrusted with task to set-up training centres for providing training and placement to unskilled youth under PMKVY scheme. He contended that HYDS was appointed as a business partner by GRAS Education & Training Services Pvt. Ltd. vide agreement dated 05.02.2016. He contended that GRAS Education & Training Services Pvt. Ltd. already paid an amount of Rs. 3,26,146/- to the petitioner. He contended that the petitioner did not receive balance amount, as per the said agreement.
Crl. Rev. No. 646/2019 Balbir Singh vs. State & Ors. Page No. 9 of 15 ANALYSIS OF THE IMPUGNED ORDER:
12. The trial Court passed the impugned order on grounds, as under:
(a) The petitioner could not show that GRAS Education & Training Services Pvt. Ltd. had agreed to pay an amount of Rs. 24,00,000/- to the petitioner;
(b) The facts are within knowledge and reach of the petitioner;
(c) There is no requirement of a scientific and technical investigation;
(d) There is no need of police investigation for collection of evidence; and
(e) The petitioner is required to prima facie establish the allegations by leading pre-summoning evidence under Section 200 Cr.P.C.
ANALYSIS AND DISCUSSION:
13. A direction for registration of FIR cannot be issued mechanically, without applying judicial mind to facts and circumstances of the case.
14. The trial Court has jurisdiction to apply its judicial mind to facts and circumstances of the case while dealing with an application seeking registration of FIR.
15. In Ramdev Food Products (P) Ltd. vs. State of Gujarat, (2015) 6 SCC 439, Hon'ble Supreme Court of India held as under:
"20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705, it was observed: (SCC p. 711, para 11) Crl. Rev. No. 646/2019 Balbir Singh vs. State & Ors. Page No. 10 of 15
11. "The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyad case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge / Magistrate cannot refer the matter under Section 156 (3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
The above observations apply to category of cases mentioned in para 120.6 in Lalita Kumari."
16. The petitioner entered into 'Business Associate Agreement' with GRAS Education & Training Services Pvt. Ltd. on 05.02.2016 whereby the petitioner was appointed as 'Business Associate' for setting up 'Skill Development Centre' in his institution for providing training to youth and other training programmes for a period of 2 years w.e.f. 20.09.2016. Rights and obligation of the petitioner and GRAS Education & Training Services Pvt. Ltd. are enumerated in the said agreement.
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17. Mode of payment of the amount is also mentioned in the said agreement. Therefore, it is evident that rights and liabilities of the petitioner and GRAS Education & Training Services Pvt. Ltd. are governed by terms and conditions of the said agreement. The case of the petitioner is that the respondent No. 3 and 4 had not made payment of the amount despite the fact that NSDC credited the entire amount into account of GRAS Education & Training Services Pvt. Ltd. The case of the respondent No. 3 and 4 is that the petitioner was entitled to 1st and 2nd instalment as per agreement and an amount of Rs. 7,25,369/- was due to the petitioner. The respondent No. 3 and 4 were ready to pay the said amount of Rs. 7,25,369/-.
18. On examination of the allegations made in the case, the grievance of the petitioner is that the respondent No. 3 and 4 have not transferred the amount to his account.
19. In the complaint, the petitioner had not made any allegation against GRAS Education & Training Services Pvt. Ltd. and the respondent No. 3 and 4 that they made any false representation to him or dishonestly induced him to enter into the said agreement.
20. There was no credible material on file of trial Court disclosing commission of any cognizable offence against the respondent No. 2 to 4.
21. The trial Court rightly asked the petitioner to substantiate allegations by leading pre-summoning evidence.
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22. The case law relied by the petitioner is not applicable to the case of the petitioner.
23. In M/s. Hero Fincorp Limited vs. The State (NCT of Delhi) & Anr. (supra), the respondent No. 2 had taken loan of substantial amount for purchase of machines. The respondent No. 2 did not purchase the machines and misappropriated the said amount. In that context, Hon'ble High Court of Delhi held that the complaint disclosed a cognizable offence which warranted police investigation.
24. In Paradise Credit Ltd. & Ors. vs. State of NCT of Delhi (supra), the accused had sold shares hypothecated with him by the complainant as security. In that case, the trial Court dismissed an application under Section 156 (3) Cr.P.C. without waiting for status report of EOW seeking time to verify the facts. Hon'ble High Court of Delhi restored the application under Section 156 (3) Cr.P.C. for hearing after complete status report is obtained from EOW.
25. In Lalmuni Devi vs. State of Bihar & Ors. (supra) and Rajesh Bajaj vs. State NCT of Delhi & Ors. (supra), Hon'ble Supreme Court of India held that because civil action can be taken, it does not mean that a criminal complaint is not maintainable.
26. In Ramdev Food Products (P) Ltd. vs. State of Gujarat (supra), Hon'ble Supreme Court of India held as under:
"22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed".
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22.3. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."
CONCLUSION:
27. This Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set-aside. This criminal revision petition is dismissed. TCR alongwith copy of judgment be sent back to trial Court. The criminal revision file be consigned to record room. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2022.05.27 18:50:47 +0530 Announced in the open Court SANJAY SHARMA-II on this 27th May, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 646/2019 Balbir Singh vs. State & Ors. Page No. 14 of 15 Balbir Singh vs. State & Ors. CNR No.: DLCT010136702019 Crl. Revision No. 646/2019 27.05.2022 Proceedings convened through Video Conferencing.
Present : Mr. Aditya Agarwal, Advocate for the petitioner.
Mr. Mukesh Bhardwaj, Advocate for the respondent No. 3 and 4.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The criminal revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.05.27
18:50:59 +0530
Sanjay SharmaII
ASJ03, Central District,
Tis Hazari Courts, Delhi
NK 27.05.2022
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