Delhi District Court
Vipan Singh Wazir vs The State (Govt. Of Nct Of Delhi) on 1 April, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 133/2022
CNR No.: DLCT01-004200-2022
Vipan Singh Wazir
S/o Late Sahdev Singh Wazir
R/o F-27, Lane No. 6, Talab Tillo,
Jammu-180 002
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Subhash Chander
S/o Sh. Veer Singh
R/o K-20, Amar Colony, Nangloi,
Delhi-110041
3. Pushpa Rani
W/o Sh. Ramniwas Jindal
R/o Pushpanjali Enclave,
Pitampura, Delhi
4. Ramniwas Jindal
S/o Not Known
R/o Pushpanjali Enclave,
Pitampura, Delhi
5. Unknown Persons
..... Respondents
Date of Institution : 08.03.2022
Date of Arguments : 08.03.2022
Date of Judgment : 01.04.2022
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 16.02.2021 (In short 'the impugned order') in complaint case vide CC No. 6142/2020 titled as 'Vipan Singh Wazir vs. Subhash Chander & Ors.' whereby Ld. MM-07, 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 Subzi Mandi to register FIR against the respondent No. 2 to 5.
BRIEF FACTS:
2. The petitioner filed a complaint under Section 200 Cr.P.C. alongwith an application under Section 156 (3) Cr.P.C. seeking registration of FIR against the respondent No. 2 to 5 for offences, inter alia, conspiracy for committing theft, cheating, forgery, use of forged cheque and fabrication of false evidence, on the ground that the petitioner and the respondent No. 3 were partners in a firm 'M/s. Super Plast (India)' having its office at 265, Swarn Park, Udyog Nagar, Mundka, Delhi-110041 since 2002. The petitioner's younger brother, namely, Vikram Singh Wazir (since deceased) had started a proprietorship firm 'M/s. Wazir Sultan Amalgamation' from the said office in the year 2005. The petitioner was an authorized signatory for bank accounts. The petitioner and his deceased brother used to keep all important documents, signed and unsigned cheque books in the said office.
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3. In the year 2009, a dispute arose between the petitioner and the respondent No. 3 and 4 which adversely affected business and functioning of 'M/s. Super Plast (India)' as well as 'M/s. Wazir Sultan Amalgamation'. In October, 2009; the respondent No. 3 and 4 levelled allegations of theft etc. against the petitioner, his deceased brother and their employee, namely, Ashwani in their absence. The said Ashwani informed the said incident to the petitioner and his deceased brother. Thereafter, the respondent No. 3 and 4 ousted the said Ashwani from the said office and snatched keys from him. The respondent No. 3 and 4 taken possession of the said office and the petitioner's belongings, furniture, electronic items, documents, papers, signed and unsigned cheque books. The petitioner and his deceased brother made efforts to settle the account. However, the respondent No. 3 and 4 sold the said office and did not settle the account. After the said incident, the petitioner and his deceased brother shifted to Jammu.
4. The case of the petitioner is that he received summons in a complaint case under Section 138 NI Act titled as 'Subhash Chander vs. Vipin Singh Wazir', vide CC No. 587/1/13, issued by Sh. Manish Khurana, Ld. Metropolitan Magistrate, Rohini Courts, Delhi regarding dishonour of Cheque No. 707051 dated 05.03.2013 for Rs. 3,00,000/- drawn on 'Syndicate Bank, Aggarwal Chambers, Pitampura, Delhi- 110088' issued by 'Wazir Sultan Amalagmation' in favour of the respondent No. 2 (In short 'the said cheque').
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5. The case of the petitioner is that the said cheque is one of the cheques stolen by the respondent No. 3 to 5 and presented by the respondent No. 2 by forging date as '05.03.2013' and the name of the drawee 'Subhash Chander'. The respondent No. 3 and 4 had stolen the said cheque from the said office while ousting the said Ashwani and taking illegal possession of the said office. The said account was not operational since long. The petitioner and his deceased brother never handed over the said cheque to anyone. The petitioner and his deceased brother do not know the respondent No. 2. The petitioner earlier lodged a complaint dated 26.04.2014 with PS Prashant Vihar as the case was pending in Rohini Courts, Delhi. The petitioner filed a fresh complaint with PS Subzi Mandi as the case is now assigned to Tis Hazari Courts, Delhi.
6. The case of the petitioner is that the respondent No. 2 and 3, in furtherance of criminal conspiracy, stolen the said cheque and handed it over to the respondent No. 2 and they forged the said cheque to extort money from the petitioner by filling 'date' and 'name of the drawee' and used the said forged cheque as evidence against the petitioner. The petitioner has not taken any loan from the respondent No. 2. The petitioner never issued the said cheque to anyone. The petitioner lodged a complaint dated 17.01.2020 with PS Subzi Mandi. The petitioner sent a copy of the said complaint to Senior Officers of Police. As police did not register FIR, the petitioner filed the complaint alongwith application under Section 156 (3) Cr.P.C.
Crl. Rev. No. 133/2022 Vipan Singh Wazir vs. State & Ors. Page No. 4 of 16 IMPUGNED ORDER:
7. Relevant part of the impugned order is as under:
"To the specific query of the court, Ld. Counsel for the complainant submits that no complaint was made either to the police or to the bank when the cheque in question was stolen. To the another query of the court, Ld. Counsel for the complainant submits that the cheque in question bears the signatures of the complainant. If the cheque bears the signatures of the complainant then the holder of the cheque was authorized to fill the other particulars and that cannot be said to be forgery. Further, the complainant came to know about the alleged forgery in the year 2013 but did not pursue the matter diligently. After giving one complaint in the year 2014, no further steps were taken till 2020. This conduct on the part of the complainant raises several question marks.
In the light of the facts and circumstances of the present complaint, there is no need to invoke section 156(3) Cr.P.C. for issuing direction to register FIR against the respondents as:
1. The identity of alleged accused persons are ascertained.
2. No facts are needed to be unearthed as the same are well within the knowledge of the complainant.
3. Custodial interrogation of alleged accused persons are not necessary.
4. The evidence is well within the reach of complainant & no assistance of police is required to gather the same.
5. The facts of the case is not such that would warrant a detailed and complex investigations to be carried out by the State Agency.
Hence, there is no need for investigation by the Police u/s. 156(3) Cr.P.C. in this case. Application is hereby dismissed.
However, the cognizance on the complaint is taken. Complainant is at liberty to lead pre-summoning evidence. In case any requirement of investigation arises at later stage qua some disputed facts the provision of section 202 Cr.P.C. could be resorted to."
Crl. Rev. No. 133/2022 Vipan Singh Wazir vs. State & Ors. Page No. 5 of 16 GROUNDS OF REVISION:
8. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition on the grounds, as under:
(a) The impugned order is based on conjectures and surmises;
(b) The trial Court did not consider Section 154 Cr.P.C. which mandate registration of FIR;
(c) The trial Court committed manifest illegality and did not direct police to register FIR, as held in Lalita Kumari vs. State of U.P., (2014) 2 SCC 1;
(d) The trial Court did not consider complaints lodged by the petitioner with local police while reaching to conclusion that no complaint was made either to the police or the bank when the said cheque was stolen;
(e) The trial Court did not consider Section 468 Cr.P.C. providing limitation for prosecution for commission of offences;
(f) The trial Court did not consider gravity of offence committed by the respondent No. 2 to 5 and that the petitioner was not having knowledge of extent of theft of his belongings and he immediately lodged complaint with police when he acquired knowledge of theft of the said cheque;
(g) The trial Court did not consider that the said cheque was a stolen cheque and a person stealing a signed cheque is not authorized to fill particulars and present it for encashment;
(h) The trial Court erred in observing that the said cheque bears signature of the petitioner and holder of a cheque is authorized to fill particulars therein and it is not a forgery;
(i) The trial Court did not consider that the petitioner and his younger brother were forced to leave Delhi due to fear of the respondent No. 2 to 5;
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(j) The trial Court did not consider that the petitioner was not in a position to make any complaint against the respondent No. 2 to 5 as his office was illegally taken and slight delay in initiation of criminal proceeding would not absolve the respondent No. 2 to 5 from offences committed by them;
(k) The trial Court erred in observing that there is no need for invoking Section 156 (3) Cr.P.C. for issuing direction to register FIR;
(l) The trial Court erred in observing that custodial interrogation of the respondent No. 2 to 5 is not required. There is need of custodial interrogation;
(m) The trial Court erred in observing that evidence is within reach of the petitioner and no police assistance is required for collection of evidence. There is need of custodial interrogation for recovery of stolen articles of the petitioner and his younger brother;
(n) There is need of police investigation for unfolding conspiracy and ascertainment of conspirator and their unknown associates;
(o) The trial Court did not exercise jurisdiction vested in it;
(p) Hon'ble Supreme Court of India has held that registration of FIR is mandatory where commission of cognizable offence is disclosed and the trial Court is bound by provisions of law and not by its subjective satisfaction;
(q) The trial Court did not consider that local police failed to register FIR in complete disrespect to law laid down by Hon'ble Supreme Court of India in Lalita Kumari's case (supra);
(r) The trial Court ought to have directed registration of FIR;
(s) The impugned order suffers from non-application of judicial mind; and
(t) The impugned order would occasion injustice, if it is not set-aside.
Crl. Rev. No. 133/2022 Vipan Singh Wazir vs. State & Ors. Page No. 7 of 16 APPEARANCE:
9. I have heard Mr. Ravish Chandra Pathak, Advocate for the petitioner and examined trial Court record. CONTENTIONS OF LD. COUNSEL FOR THE PETITIONER:
10. Ld. Counsel for the petitioner contended that the allegations made in the complaint disclose commission of cognizable offences. He contended that once commission of cognizable offences is disclosed, the Magistrate is under a legal duty to direct registration of FIR. He contended that Hon'ble Supreme Court of India in judgment in Lalita Kumari vs. State of U.P. (supra) held that FIR must be registered when commission of a cognizable offence is disclosed. He contended that the trial Court has no jurisdiction to satisfy himself before issuing direction for registration of FIR. He contended that the impugned order is in contravention of Section 154 Cr.P.C. He contended that the trial Court did not exercise jurisdiction vested in it. He contended that the respondent No. 2 to 5 dis- possessed the petitioner and stolen his belongings including signed and unsigned cheque books and the said cheque is one of the stolen cheques used for institution of a complaint case under Section 138 NI Act. He contended that the petitioner made complaint to local police immediately when he came to know about forgery of the said cheque stolen from him. He contended that forgery of a stolen cheque for filing a case under Section 138 NI Act is a grave offence and the respondent No. 2 had no authority to fill and use the said cheque.
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11. Ld. Counsel for the petitioner contended that the petitioner and his younger brother were forced to leave Delhi due to fear instilled in them by the respondent No. 2 to 5 and therefore, they could not initiate any action against them. He contended that there is need of custodial interrogation for recovery of stolen articles and ascertainment of particulars of unknown persons involved in commission of the said offence and the manner in which the said cheque found its way to the respondent No. 2. He contended that the petitioner had never taken any loan from the respondent No. 2. He contended that the petitioner does not know the respondent No. 2. He contended that the respondent No. 2 made use of a cheque stolen from the petitioner's office for filing a case under Section 138 NI Act. He contended that the trial Court, vide impugned order, had taken cognizance on the complainant and it shows that commission of cognizable offences was disclosed. He contended that the impugned order should be set-aside and local police should be directed to register FIR and investigate the case.
ANALYSIS OF THE IMPUGNED ORDER:
12. The trial Court taken note of non-filing of complaint to police or bank at the relevant time. The trial Court declined to issue direction to register FIR on the ground that identity of the accused persons is established, the facts and evidence are within knowledge and reach of the petitioner and there is no need of custodial interrogation.
Crl. Rev. No. 133/2022 Vipan Singh Wazir vs. State & Ors. Page No. 9 of 16 DISCUSSION:
13. The case of the petitioner is that he was partner of the respondent No. 3 in a firm 'M/s. Super Plast (India)' having its office at 265, Swarn Park, Udyog Nagar, Mundka, Delhi-110041 since 2002. However, he has not filed any partnership-deed. There is no document that such partnership ever functioned from 265, Swarn Park, Udyog Nagar, Mundka, Delhi-110041. It is further case of the petitioner that his younger brother, namely, Vikram Singh Wazir (since deceased) had started a proprietorship firm 'M/s. Wazir Sultan Amalgamation' from the said office in the year 2005. However, there is no document that any proprietorship firm 'M/s. Wazir Sultan Amalgamation' ever functioned from the said address. It is further case of the petitioner that around October, 2009; the respondent No. 3 and 4 ousted Ashwani, employee of the petitioner from the said office and snatched keys from him, and the respondent No. 3 and 4 taken possession of the said office and the petitioner's belongings, furniture, electronic items, documents, papers, signed and unsigned cheque books.
However, there is no police complaint regarding the said incident. The petitioner or his brother never communicated their banker that the cheque books issued to them were stolen from their office. The petitioner filed complaint with PS Rohini on 26.04.2014 on receipt of summons in case under Section 138 NI Act. He did not pursue the said complaint. He filed another complaint with PS Subzi Mandi on 17.01.2020 after 6 years.
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14. In Lalita Kumari's case, the nature of cases wherein preliminary inquiry may be conducted are as under:
"120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes / family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay / laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
15. It is, therefore, evident that preliminary inquiry can be conducted in cases where there is abnormal delay / laches in initiating criminal prosecution.
16. In the present case, there is delay of around 11 years in lodging complaint with police for investigation of the case.
17. A direction for registration of FIR cannot be issued mechanically, without applying judicial mind to facts and circumstances of the case.
18. 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.
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19. 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)
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."
20. In the present case, the trial Court rightly applied its judicial mind and declined prayer for registration of FIR.
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21. As regards contention that the trial Court has taken cognizance of offence and its amount to a prima facie opinion that the allegations made in the complaint disclosed commission of cognizable offences and therefore, the impugned order declining registration of FIR is not correct, it can be stated that 'taking cognizance' does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence (R.R. Chari vs. State of Utter Pradesh, AIR 1951 SC
207).
22. A Magistrate is said to have taken cognizance of any offence under Section 190(1)(a) Cr.P.C., when he applies his mind to the contents of the petition with a view to taking action under Section 200 Cr.P.C. and thereafter, for inquiry and report under Section 202 Cr.P.C. It does not mean that the trial Court has formed opinion that the respondent No. 2 to 5 have committed cognizable offences.
23. In Tula Ram & Ors. vs. Kishore Singh, (1977) 4 SCC 459, Hon'ble Supreme Court of India held as under:
"8.....It seems to us that there is no special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The Court prescribes several modes in which a complaint can be disposed of after taking cognizance.
Crl. Rev. No. 133/2022 Vipan Singh Wazir vs. State & Ors. Page No. 13 of 16 In the first place, cognizance can be taken, on the basis of three circumstances: (1) upon receiving a complaint of facts which constitute such offence; (2) upon a police report of such facts; and (3) upon information received from any person other than the police officer or upon his own knowledge, that an offence has been committed. These are the three grounds on the basis of which a Magistrate can take cognizance and decide to act accordingly.....
10.....Once cognizance was taken by the Magistrate under Section 190 of the Code it was open to him to choose any of the alternatives:
(1) Postpone the issue of process and enquire into the case himself; or (2) direct an investigation to be made by the police officer; or (3) any other person."
24. The cases of the present nature where the trial Court has yet to determine existence of sufficient ground to proceed against the accused persons, the Magistrate takes cognizance and postpone issue of process.
25. 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". Category of cases falling under para 120.6 in Lalita Kumari may fall under Section 202.
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."
Crl. Rev. No. 133/2022 Vipan Singh Wazir vs. State & Ors. Page No. 14 of 16 CONCLUSION:
26. Therefore, 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. Accordingly, the criminal revision petition filed by the petitioner is dismissed.
27. Trial Court record alongwith a copy of judgment be sent to trial Court. Revision file be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2022.04.01
16:24:51 +0530
Announced in the open Court SANJAY SHARMA-II
on this 01st April, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
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Vipan Singh Wazir vs. State & Ors.
CNR No.: DLCT010042002022
Crl. Revision No. 133/2022
01.04.2022
Present : Mr. Ravish Chandra Pathak, Advocate for the petitioner
(Video Conferencing).
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room. SANJAY Digitally signed by SANJAY SHARMA SHARMA Date: 2022.04.01 16:25:22 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi NK 01.04.2022 Crl. Rev. No. 133/2022 Vipan Singh Wazir vs. State & Ors. Page No. 16 of 16