Delhi District Court
Rahul Rathi vs State on 17 August, 2023
IN THE COURT OF SH. SATISH KUMAR
ADDITIONAL SESSIONS JUDGE - 03, NORTH DISTRICT
ROHINI COURTS, DELHI
CNR No. DLNT01-006232-2023
Crl. Revision No. 187/2023
Rahul Rathi
R/o AB-51, 3/F,
Mian Wali Gali,
Paschim Vihar,
Delhi-110087. ........Petitioner
Versus
1. State
2. Hariram Khatri
R/o A-2/6, Shivaji CGHS Ltd.
Sector-4, Rohini, Delhi-110058. ........Respondents
Date of filing of revision petition : 06.06.2023
Date on which arguments were heard : 10.08.2023
Date of pronouncement of judgment : 17.08.2023
ORDER ON REVISION PETITION UNDER SECTION 397
CR.P.C. AGAINST THE IMPUGNED ORDER DATED
05.06.2023 PASSED BY LD. MM-04, NORTH DISTRICT,
ROHINI COURTS, DELHI WHEREBY THE APPLICATION
U/S 156(3) CR.P.C. PREFERRED BY THE RESPONDENT NO.2
WAS ALLOWED AND DIRECTIONS HAVE BEEN ISSUED TO
SHO PS PRASHANT VIHAR, DELHI TO REGISTER AN FIR
U/S 420/467/468/471 IPC AGAINST THE REVISIONIST UNDER
THE PROVISIONS OF INDIAN PENAL CODE.
1. Vide this order, this court shall dispose off the revision petition
Rahul Rathi vs State. Page No. 1 of 28
Crl. Revision No. 187/2023
preferred against the impunged order dated 05.06.2023 passed
by the court of Ld. MM-04, North District, Rohini Courts, Delhi
whereby the application u/s 156(3) Cr.P.C. preferred by the
respondent no.2 was allowed and directions have been issued to
SHO PS Prashant Vihar, Delhi to register an FIR u/s 420/467/
468/471 IPC against the revisionist under the provisions of
Indian Penal Code.
2. Succinctly, the brief background relevant for the disposal of the
revision petition is that the respondent no.2 has filed an
application u/s 200 Cr.P.C. r/w Section 156(3) of Cr.P.C. for
taking cognizance u/s 190(1)(a) & (c) of Cr.P.C. and for
issuance of directions to the SHO/DCP concerned of PS
Prashant Vihar for registration of FIR against the accused
persons/revisionist.
3. It has been mentioned in the said application filed by the
respondent no.2/complainant before the ld. MM that respondent
no.2 is residing in Delhi and holding a post of Directorcum
Authorized Signatory of a company registered as 'Sakriya Pvt.
Ltd.CINU33110DL2013PTC26272'. The respondent no.2/
complainant as well as Rahul Rathi, Sunil Kumar and Ram
Niwas are also the Directors of the same company but the
respondent no.2/complainant alongwith other two Directors
Rahul Rathi vs State. Page No. 2 of 28
Crl. Revision No. 187/2023
namely Sunil Kumar and Ram Niwas are the only authorized
signatories of the company namely 'SAKRIYA
TECHNOLOGIES PVT. LTD.' which was incorporated in the
year 2013 and deals in the sale of medical equipments and later
on, the Article of Association of Company was amended to do
the business of sale of liquor as 'Retailed Traders' and
subsequently, on dated 13.08.2021, the company had
participated in a tender organized by the Department of Excise,
Entertainment & Luxury Tax, Govt. of NCT of Delhi. The
company has got the tender for the same and license has been
granted for the year 20212022. The tender amount was huge in
numbers and the company was required the substantial amount
of investment for the same and Rahul Rathi/revisionist has
proposed the offer of investment through its Transportation
Company 'M/s INTACT TRANSPORT PVT. LTD.' and the said
company was managed by Rahul Rathi alongwith Ram Niwas.
Since the proposal seems to be meaningful to all the investors,
the investment of about 50 crores (approx.) has been made by
the respondent no.2/complainant and Others and in return, the
shareholding was alloted accordingly.
4. That, initially the business was well and all the shareholders has
received the profit. Subsequently, Delhi Government has
Rahul Rathi vs State. Page No. 3 of 28
Crl. Revision No. 187/2023
withdrawn the liquor policy w.e.f. 31.08.2022 and the company
went out of business. Pursuant to this, there was an oral
agreement between all the shareholders that the company will
buy back the shares of its investors after calculating the losses
incurred by the company and in pursuant to this agreement, the
company has initiated the process of returning the money
against the shareholding of investors and majority of the
shareholders has been returned the money as per their allotment.
5. That, after the withdrawal of the liquor policy, Rahul Rathi
(revisionist herein) had sent a mail dated 21.12.2022 through its
company 'M/S INTACT TRANSPORT LTD.' demanding
payment of unpaid loan from 'M/S SAKRIYA
TECHNOLOGIES PVT. LTD.' Subsequently, the company has
refused to make the payment of any unpaid loan.
6. That, the allegations against Rahul Rathi (revisionist herein) are
that on dated 26.12.2022, he hatched a conspiracy in connivance
with other persons namely Ram Niwas and Sunil Kumar and
they had fraudulently impersonated the signature of the
complainant on the company's cheque no.022943, worth
Rs.2,40,00,000/ (Rupees Two Crores and Forty Lakhs Only)
and transferred the money in the account of 'M/S INTACT
Rahul Rathi vs State. Page No. 4 of 28
Crl. Revision No. 187/2023
TECHNOLOGIES PVT. LTD.'. It is a rule of the company that
to clear any cheque from the company's bank account, the
signature of all the signatories on the cheque is mandatory. Ram
Niwas and Sunil Kumar alongwith Rahul Rathi has forged the
signatures of the third signatory who is respondent
no.2/complainant and when the respondent no.2/complainant
came to know about the alleged fraudulent transaction, he had
submitted a letter to the Branch Manager of Company's Bank
(ICICI Bank, Prashant Vihar) requesting to mark the account
number 349005500431 of INTACT TRANSPORT PVT. LTD.
as 'LIEN'.
7. That, Rahul Rathi has tried the alleged fraudulent transfer of
Rs.2,40,00,000/ (Rupees Two Crores Forty Lakhs Only) has
been made under his knowledge and supervision and he is not
an authorized signatory of the company.
8. That, a written complaint by respondent no.2 Sh. Hariram Khatri
was filed before the SHO/ACP/DCP on 28.12.2022, 26.02.2023
and 27.02.2023 respectively which discloses a cognizable
offence i.e. Forgery, Cheating, Forgery of Valuable Security,
Using a Genuine Forged Documents or Electronic Record,
Criminal Breach of Trust and a Criminal Conspiracy but the
Rahul Rathi vs State. Page No. 5 of 28
Crl. Revision No. 187/2023
police did not register the FIR and vide impugned order dated
05.06.2023, the ld. MM04, NorthDistrict, Rohini Courts, Delhi
was pleased to allow the application u/s 156(3) of Cr.P.C. and
directions were issued to the SHO concerned to register the FIR
within 24 hours of receipt of this order and the copy of the same
was also given dasti to the Naib Court for being supplied to
SHO concerned for necessary compliance. Aggrieved against
the said impugned order, the revisionist has preferred the present
revision petition on the following grounds:
a) That, the cheque no.022943 belonging to the company i.e.
'M/S SAKRIYA TECHNOLOGIES PVT. LTD.' was duly
cleared by the bank after verifying the genuiness of the
signatures of the signatory i.e. Hari Ram Khatri and after the
clearance of the cheque, the amount was duly transferred into
the bank account of 'M/S INTACT TRANSPORT PVT. LTD.'
and only after clearance of the said cheque, the respondent
intimated to the bank and got LIEN marked upon the transferred
amount.
b) That, besides Hari Ram Khatri, there are two other signatories
of M/S SAKRIYA TECHNOLOGIES PVT. LTD. namely Ram
Niwas and Sunil Kumar and both the signatories have intimated
to their banker i.e. ICICI Bank, Prashant Vihar vide letter dated
Rahul Rathi vs State. Page No. 6 of 28
Crl. Revision No. 187/2023
28.12.2022 on their company letter head declaring that the
cheque no.022943 issued to the company M/S INTACT
TRANSPORT PVT. LTD. is duly endorsed by them and under
their knowledge and its clearance is also under their supervision.
c) That, there is no forgery of the signatures of all the
signatories i.e. Hari Ram Khatri, Ram Niwas and Sunil Kumar
on the cheque 022943 and the same are genuine and not forged
and the same is evident from the fact that cheque was cleared
and amount was transferred from the bank account of M/S
SAKRIYA TECHNOLOGIES PVT. LTD. by their banker into
the bank account of M/S INTACT TRANSPORT PVT. LTD.
But the transferred money which is the subject matter of the
application u/s 156(3) Cr.P.C. is still lying in the bank account
of M/S INTACT TRANSPORT PVT. LTD. and LIEN has been
marked upon it and there is no wrongful gain to the petitioner
and wrongful loss to the respondent no.2.
d) That, the ld. MM court has failed to take into consideration
the fact that the FIR No.0089/2023 on the similar facts has
already been registered u/s 406/420/34 IPC PS Palam Village,
Delhi against the Hari Ram Khatri and the same is under
investigation.
e) That, the ld. MM court has also failed to take note of the fact
Rahul Rathi vs State. Page No. 7 of 28
Crl. Revision No. 187/2023
that against the registration of the FIR 0089/2023 dated
26.01.2023 registered against the Hari Ram Khatri was
challenged before the Hon'ble High Court of Delhi in Crl. Misc.
No.2683 of 2023 for quashing of the said FIR and respondent
no.2 Sh. Hari Ram Khatri seeking stay of investigation of the
said FIR but the same has been withdrawn vide order dated
26.04.2023 passed by the Hon'ble High Court of Delhi in the
matter of 'Hari Ram Khatri Vs. State & Ors.' Crl. Misc. No.2683
of 2023.
f) That, since the Hon'ble High Court of Delhi did not grant any
stay of the FIR 0089/2023 u/s 406/420/34 IPC PS Palam Village
but the ld. Trial court did not take notice of this fact.
By way of the present revision petition, it is prayed for stay of
the order dated 05.06.2023 passed by ld. MM04, North
District, Rohini Courts, Delhi in the matter titled as 'Hari Ram
Khatri Vs. Rahul Rathi & Ors.' and also made the prayer to set
aside the order dated 05.06.2023 passed by the ld. MM04,
NorthDistrict, Rohini Courts, Delhi.
9. That, the notice of the revision petition was served upon the
respondent no.2 and the respondent no.2 appeared with his
counsel. Ld. Counsel for the respondent no.2 has submitted that
Rahul Rathi vs State. Page No. 8 of 28
Crl. Revision No. 187/2023
he does not want to file the reply of the revision petition and
will argue straightaway.
10. It is argued by Ld. counsel for the respondent no.2 that there is
no illegality or irregularity in the impugned order passed by the
ld. Court of MM04, NorthDistrict, Rohini Courts, Delhi and in
support of his argument, he has referred certain case laws.
11. Ld. counsel for the revisionist has argued that there is a patent
illegality in the impugned order passed by the ld. MM04,
NorthDistrict, Rohini Courts, Delhi inasmuch as it was within
the knowledge of the ld. MM court that on the same facts, the
FIR has already been registered in PS Palam Village, Delhi and
on the same facts, two FIRs cannot be registered.
12. Having heard the submissions made by Ld. counsel for the
revisionist as well as Ld. counsel for the respondent no.2 and
after gone through the averments of the revision petition and the
impugned order and after gone through the trial court record,
this court is of the considered view that an application u/s 200
Cr.P.C. r/w Section 156(3) of Cr.P.C. has been filed by the
respondent no.2 herein/complainant alleging that he is holding
the post of DirectorcumAuthorized signatory of the company
Rahul Rathi vs State. Page No. 9 of 28
Crl. Revision No. 187/2023
registered as SAKRIYA PVT. LTD. and Sh. Rahul Rathi, who
managed the affairs of the company M/S INTACT
TRANSPORT PVT. LTD. has proposed the offer of investment
through its transport company M/S INTACT TRANSPORT
PVT. LTD. to do the business of sale of liquor as 'Retail traders'
and subsequently on 13.08.2021, the company has participated
in a tender organized by the Department of Excise,
Entertainment & Luxury Tax, Govt. of NCT of Delhi and the
company had got the tender for the same and license has been
granted for the year 20212022. Since the tender amount was
huge in numbers and the company was required the substantial
amount of investment and the investment of about 50 crores
(approx.) has been made by the respondent no.2/complainant.
Initially, the business was well but subsequently, Delhi
Government has withdrawn the liquor policy and the company
was out of the business. That, on dated 26.12.2022, the
revisionist hatched a conspiracy in connivance with other
persons namely Ram Niwas and Sunil Kumar and had
impersonated the signature of the respondent no.2 on the
company's cheque bearing no.022943 worth Rs.2,40,00,000/
and transferred the money in the account of M/S INTACT
TRANSPORT PVT. LTD.
Rahul Rathi vs State. Page No. 10 of 28
Crl. Revision No. 187/2023
13. That, the said application u/s 200 r/w Section 156(3) of Cr.P.C.
was filed with the prayer that directions may kindly be issued to
the SHO PS Prashant Vihar for registration of the FIR against
the proposed accused persons namely Rahul Rathi, Ram Niwas
and Sunil Kumar.
14. The ld. MM has called the Action Taken Report of the
complaint filed by the respondent no.2/complainant in the PS
Prashant Vihar. The Action Taken Report was filed by SI
Sudeep Phougat of P.S. Prashant Vihar and in the said Action
Taken Report, it has been mentioned that during the inquiry, a
written statement was made by the respondent no.2/complainant
on 01.02.2023 and he alleged that proposed accused Rahul Rathi
stole the cheque of the company M/s SAKRIYA
TECHNOLOGIES PVT. LTD. and committed the forgery in
collusion with two other Directors and Authorized signatories
namely Ram Niwas and Sunil Kumar and a notice was sent to
ICICI Bank to confirm the allegations of respondent
no.2/complainant about the alleged transaction of
Rs.2,40,00,000/.
15. It is worth mentioning that in the Action Taken Report, it has
also been mentioned that during the course of inquiry, the
Rahul Rathi vs State. Page No. 11 of 28
Crl. Revision No. 187/2023
proposed accused Rahul Rathi/revisionist herein has joined the
inquiry and made his written submissions mentioning that Mr.
Hariram Khatri/respondent no.2 herein, Director of M/S
SAKRIYA TECHNOLOGIES PVT. LTD. and also a Director
in M/S INTACT TRANSPORT PVT. LTD. approached M/S
INTACT TRANSPORT PVT. LTD. for the financial help of
Rs.4 crores to support the business of M/S SAKRIYA
TECHNOLOGIES PVT. LTD. and a loan amount of Rs.4 crores
was disbursed from M/S INTACT TRANSPORT PVT. LTD. to
M/S SAKRIYA TECHNOLOGIES PVT. LTD. on 21.04.2022
via RTGS (ref. no.HDFCR52022042162841260). First
instalment of loan repayment of Rs.1.20 crores was transferred
from M/S SAKRIYA TECHNOLOGIES PVT. LTD. to M/S
INTACT TRANSPORT PVT. LTD. on 30.10.2022 via RTGS
(ref. no.ICICR52022102000568966). Second instalment of loan
repayment of Rs.40,00,000/ was transferred from M/S
SAKRIYA TECHNOLOGIES PVT. LTD. to M/S INTACT
TRANSPORT PVT. LTD. on 26.10.2022 via RTGS (ref.
no.ICICR2022102600806102). Out of Rs.4 crores taken by M/S
SAKRIYA TECHNOLOGIES PVT. LTD., Rs.1.60 crores were
returned and Rs.2.40 crores alongwith the interest were
remaining. An Email was sent from M/S INTACT
TRANSPORT PVT. LTD. to M/S SAKRIYA
Rahul Rathi vs State. Page No. 12 of 28
Crl. Revision No. 187/2023
TECHNOLOGIES PVT. LTD. and Hariram Khatri on
02.12.2022 demanding repayment of balance loan amount. The
another reminder through Email dated 21.12.2022 for repayment
of the balance loan amount was sent. A cheque was issued for
repayment of the remaining loan amount of Rs.2.40 crores and
the same was encashed on 26.12.2022 and amount was
transferred to the account of M/S INTACT TRANSPORT PVT.
LTD. but a communication was made by Sh. Hariram Khatri
and the said amount of Rs.2.40 crores was kept by the bank as
LIEN.
16. The point for determination before the ld. Trial court was that
whether any loan of Rs.4 crores was disbursed by M/S INTACT
TRANSPORT PVT. LTD. To M/S SAKRIYA
TECHNOLOGIES PVT. LTD. through written loan agreement
and the another point for determination was that whether the
cheque bearing no.22943 of M/S SAKRIYA TECHNOLOGIES
PVT. LTD. issued in favour of M/S INTACT TRANSPORT
PVT. LTD. was issued by making a signature of Authorized
Signatory and whether the signature of Hariram Khatri were
forged by Sh. Rahul Rathi and all these facts has been
mentioned by SI Sudeep Phougat of PS Prashant Vihar in the
Action Taken Report called by the ld. MM but it appears that
Rahul Rathi vs State. Page No. 13 of 28
Crl. Revision No. 187/2023
the Action Taken Report had been rejected outrightly by the ld.
MM court and the impugned order dated 05.06.2023 was passed
in haste and without applying the judicial mind whereby the
directions were issued to the SHO PS Prashant Vihar to register
an FIR u/s 420/467/468/471 IPC against the revisionist.
17. That, during the course of the argument, ld. Counsel for the
revisionist has argued that on the same facts, the FIR
No.0089/2023 u/s 420/406/20 IPC PS Palam Village, Delhi was
registered on 26.01.2023 against Mr. Hariram Khatri and Ors.
for cheating and defrauding his own company M/S INTACT
TRANSPORT PVT. LTD. and the same is pending investigation
and on the same facts, one FIR has been registered and the
investigation of the said FIR is in progress, then, on the same
facts, the another FIR cannot be registered and he has relied
upon the Case Law 'T.T. Anthony v. State of Kerala & Ors.'
(2001) 6 SCC 181; 'BabuBhai v. State of Gujrat' (2010) 6 SCC
348; 'Amit Bhai Anichlchandra Shah v. CBI' (2013) 6 SCC 348;
'Maksud Saiyed v. State of Gujrat & Ors.' (2008) 5 SCC 668;
'Anil Kumar & Ors. v. MK Aiyappa & Anr. (2013) 10 SCC 705;
'Shri Subhkaran Luharuka & Anr. v. State & Anr.' ILR (2010)
VI Delhi 495; 'Skippers Beverages Pvt. Ltd. v. State' 2001 (59)
DRJ 129; 'Alok Kumar v. Harsh Mander & Anr.' 2023 SCC
Rahul Rathi vs State. Page No. 14 of 28
Crl. Revision No. 187/2023
Online Del 4213.
18. Ld. Counsel for the respondent no.2 has argued that there is no
bar for registration of the second FIR on the same facts and the
fact that the FIR has already been registered against the
complainant/respondent no.2 was not within the knowledge of
Sh. Hariram Khatri and the order passed by the ld. Trial court
for issuance of directions to the SHO PS Prashant Vihar for
registration of the FIR u/s 420/467/468/471 IPC is a justified
order and the said order was also passed in accordance with the
provisions of law and he has also relied upon a Case Law 'Upkar
Singh Vs. Ved Prakash' CrA No.411/2002 decided on
10.09.2004 passed by Hon'ble Supreme Court of India and
'Surender Kaushik Vs. State of Uttar Pradesh' Crl. Appeal
No.305/2013 (Arising out of S.L.P. (Crl.) No.9276/2012),
decided on 4.02.2013 passed by Hon'ble Supreme Court of
India.
The argument of ld. Counsel for the respondent no.2 that it was
not within their knowledge of FIR No.0089/2023 u/s 420/406/34
IPC PS Palam Village, is not sustainable inasmuch as they have
filed a quashing petition before the Hon'ble High Court of Delhi
against the said FIR vide Crl. Misc. No.2683/2023 & Crl. Misc.
Rahul Rathi vs State. Page No. 15 of 28
Crl. Revision No. 187/2023
Appl.10116/2023 and vide order dated 26.04.2023, the ld.
Counsel for the petitioner in the said quashing petition before
the Hon'ble High Court of Delhi has withdrawn the application
and the order of dated 26.04.2023 passed by the Hon'ble High
Court of Delhi is as under :
3. "The present application under Section 482
of the Cr.P.C. seeks following prayer:
"In the light of the aforesaid, it is
therefore, prayed that the Hon'ble Court
may be pleased to pass an order staying
the proceeding arising out of the FIR
No.0089/2023, P.S. Palam Village, Delhi,
Dis 420/406/34 IPC and/or, Pass any
further order/order(s) as the Hon'ble
Court may deem fit and proper under the
facts and circumstances of the case"
4. Learned counsel for petitioner seeks to
withdraw the present application.
5. The present application stands dismissed as
withdrawn."
It has also been submitted by Ld. counsel for the respondent
no.2/complainant that in case 'Surender Kaushik Vs. State of
Uttar Pradesh', it has been held by the Hon'ble Supreme Court of
India that after scrutinizing involvement of the number of
accused persons and the nature of the allegations, every FIR
found having a different spectrum. The facts as mentioned in the
said Case Law as relied upon by ld. counsel for the respondent
Rahul Rathi vs State. Page No. 16 of 28
Crl. Revision No. 187/2023
no.2 are altogether different from the facts as mentioned in the
present revision petition. It is settled law that there can be two
FIRs of the same incident but the allegations made in both the
FIRs must be made as distinct and separate and in the said case
law, it has been held by their Lordship that the second FIR
relating to same cause of action and the same incident and there
is sameness of occurrence and an attempt has been made to
improve the case is not correct but in the present revision
petition, the only allegation that the cheque bearing no.022943
of the amount Rs.2.40 crores was impersonated and the forged
signatures of Hariram Khatri alleged to have been put by the
Rahul Rathi on the said cheque and this is only the subject
matter and on the same subject matter in which the FIR has
already been registered, then, the impugned order of ld. MM for
registration of the second FIR is not sustainable. Therefore, the
argument advanced by Ld. counsel for the respondent no.2 is
also not sustainable.
19. This court is also of the considered view that the arguments of
ld. Counsel for the respondent no.2 Sh. Hariram Khatri that the
previous FIR No.0089/2023 u/s 420/406/34 IPC at PS Palam
Vihar of dated 26.01.2023 was not within his knowledge and as
he was cheated by impersonating his signatures on the cheque of
Rahul Rathi vs State. Page No. 17 of 28
Crl. Revision No. 187/2023
the amount of Rs.2,40,00,000/ and police did not take any
action on his complaint and therefore, he has filed a application
u/s 156(3) of Cr.P.C. with the prayer for registration of the FIR
against Sh. Rahul Rathi, Ram Niwas and Sunil Kumar.
20. This argument of ld. Counsel for the respondent no.2 is
immaterial and unsubstantiated in the eyes of law inasmuch as
after filing the application u/s 156(3) of Cr.P.C., the ld. MM
court has called the Action Taken Report and all the material
relevant facts was mentioned by SI Sudeep Phougat of PS
Prashant Vihar in the said Action Taken Report and the fact that
FIR No.0089/2023 of dated 26.01.2023 u/s 420/406/34 IPC PS
Palam Vihar has already been registered against Sh. Hari Ram
Khatri and the investigation of the same is in progress and
therefore, the fact of the registration of the FIR against Hariram
Khatri was within the knowledge of respondent no.2.
21. That, during the course of the argument of this revision petition,
the court has asked to the respondent no.2 as to whether his
company i.e. M/S SAKRIYA TECHNOLOGIES PVT. LTD.
has taken the loan of Rs.4 crores from M/S INTACT
TRANSPORT PVT. LTD., then, he has refused the same and
again the court has asked if the said amount of Rs.4 crores was
Rahul Rathi vs State. Page No. 18 of 28
Crl. Revision No. 187/2023
not taken as loan by his company M/S SAKRIYA
TECHNOLOGIES PVT. LTD. from M/S INTACT
TRANSPORT PVT. LTD., then, why his company has made the
payment of Rs.1.2 crores through RTGS (ref. no.
ICICR52022102000568966) and Rs.40 lakhs through RTGS
(ref. no.ICICR2022102600806102) but no satisfactory reply was
given by the respondent no.2.
On the other hand, ld. Counsel for the revisionist has placed on
record the photocopy of the loan agreement of dated 14.05.2022
which was executed between M/S INTACT TRANSPORT
PVT. LTD. and M/S SAKRIYA TECHNOLOGIES PVT. LTD.
and perusal of the said loan Agreement, it reveals that Rs.4
crores were disbursed in the account of M/S SAKRIYA
TECHNOLOGIES PVT. LTD. from the account of Intact
Transport Pvt. Ltd. through RTGS (ref. no.
HDFCR52022042162841260) and the said loan agreement has
been duly signed by one Ram Niwas as Director M/S INTACT
TRANSPORT PVT. LTD. and the same has also been signed by
Hariram Khatri as Director for Sakriya Technologies Pvt. Ltd.
22. That, during the course of the argument, it has also come to the
notice of this court that the only allegation of respondent no.2
Rahul Rathi vs State. Page No. 19 of 28
Crl. Revision No. 187/2023
Sh. Hariram Khatri that the revisionist Rahul Rathi in
connivance with other persons namely Ram Niwas and Sudhir
Kumar hatched a conspiracy and put the signature of Hariram
Khatri fraudulently by making forgery on the cheque bearing
no.022943 of M/S SAKRIYA TECHNOLOGIES PVT. LTD.
Current Account no.082705500417 in ICICI Bank and the said
cheque was presented with the bank and an amount of Rs.2.40
crores was transferred in the account of M/S INTACT
TRANSPORT PVT. LTD. but on making the correspondence by
Sh. Hariram Khatri, the said amount was kept by the bank as
LIEN and could not be withdrawn by the M/S INTACT
TRANSPORT PVT. LTD. and a complaint was made in this
regard to the SHO PS Palam Village but no action was taken
and thereafter, the FIR was registered and during the course of
investigation, the said cheque was taken into possession by the
Investigating Officer in case FIR No.0089/2023 PS Palam
Village and notice has already been issued to Sh. Hariram
Khatri to give his specimen signature so that the specimen
signature and the alleged signature affixed on the cheque
bearing no.022943 amounting to Rs.2.40 crores alleged to have
been forged could be sent to FSL for Handwriting Expert
opinion. Perusal of the impugned order passed by the ld. Court
of MM reveal that in the said order, it has been categorically
Rahul Rathi vs State. Page No. 20 of 28
Crl. Revision No. 187/2023
mentioned by the ld. MM whether the offence of forgery has
been committed or not can also be examined through Police
investigation by sending the cheque for forensic examination or
through any other means and it appears that the ld. MM court
has not considered the Action Taken Report being filed by the
SI of PS Prashant Vihar and since the matter is already under
investigation, then, on the same facts, the another FIR cannot be
registered and the impugned order passed by the ld. MM court is
not sustainable in the eyes of law inasmuch as in case 'Alok
Kumar Vs. Harsh Mander & Anr.' Crl. Misc. 1463/2020 and
Crl. Misc. Appl. 5732/2020 decided by the Hon'ble High
Court of Delhi, published as 2020 SCC Online Del 4213
wherein it has been categorically guidelines were issued for the
Magistrate Court to use the power u/s 156(3) of Cr.P.C. :
"WHEN CAN A MAGISTRATE DIRECT
REGISTRATION OF FIR
27. While deciding this case, this Court had
the occasion to re-visit the jurisprudence of
Section 156(3) Cr. P.C. and examine as to how
the power under Section 156(3) Cr. P.C. needs
to be exercised.
I. Law of Section 156(3) Cr. P.C.
28. At the outset, a reference can be made to
Section 156 Cr. P.C., which reads as under:
"156. Police officer's power to investigate
cognizable case.--
(1) Any officer in charge of a police station
may, without the order of a Magistrate,
Rahul Rathi vs State. Page No. 21 of 28
Crl. Revision No. 187/2023
investigate any cognizable case which a Court
having jurisdiction over the local area within
the limits of such station would have power to
inquire into or try under the provisions of
Chapter XIII.
(2) No proceeding of a police officer in any
such case shall at any stage be called in
question on the ground that the case was one
which such officer was not empowered under
this section to investigate.
(3) Any Magistrate empowered under
Section 190 may order
29. The Hon'ble Apex Court in case of
Priyanka Srivastava v. State of Uttar Pradesh,
(2015) 6 SCC 287 had discussed the law of
Section 156(3) Cr. P.C. Some of the relevant
portion of the said decision is extracted as
under:
"20. The learned Magistrate, as we find,
while exercising the power under Section
156(3) Cr. P.C. has narrated the allegations and,
thereafter, without any application of mind, has
passed an order to register an FIR for the
offences mentioned in the application. The duty
cast on the learned Magistrate, while exercising
power under Section 156(3) Cr. P.C., cannot be
marginalized. To understand the real purport of
the same, we think it apt to reproduce the said
provision:
"156. Police officer's power to investigate
cognizable case.
(1) Any officer in charge of a police station
may, without the order of a Magistrate,
investigate any cognizable case which a Court
having jurisdiction over the local area within
the limits of such station would have power to
inquire into or try under the provisions of
Rahul Rathi vs State. Page No. 22 of 28
Crl. Revision No. 187/2023
Chapter XIII.
(2) No proceeding of a police officer in any
such case shall at any stage be called in
question on the ground that the case was one
which such officer was no empowered under
this section to investigate.
(3) Any Magistrate empowered under section
190 may order such an investigation as above-
mentioned."
21. Dealing with the nature of power
exercised by the Magistrate under Section
156(3) CrPC, a three-judge Bench in
Devarapalli Lakshminarayana Reddy v. V.
Narayana Reddy, had to express thus :
(SCC p. 258, para 17)
"17... It may be noted further that an order
made under subsection (3) of Section 156, is in
the nature of a peremptory reminder or
intimation to the police to exercise their plenary
powers of investigation under Section 156(1).
Such an investigation embraces the entire
continuous process which begins with the
collection of evidence under Section 156 and
ends with a report or charge-sheet under
Section 173."
***
30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being Rahul Rathi vs State. Page No. 23 of 28 Crl. Revision No. 187/2023 filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law..."
In the said, Case Law, it has also been mentioned as to how the judicial mind is to be applied while dealing with the application u/s 156(3) Cr.P.C. :-
ii) Application of Judicial Mind
34. It is no more res integra that power under Section 156(3) Cr.P.C. is to be exercised judiciously and direction for registration of FIR is to be given only after due application of judicial mind.
35. In this regard, this Court, at the outset, Rahul Rathi vs State. Page No. 24 of 28 Crl. Revision No. 187/2023 takes note of the observations of Hon'ble Apex Court in Priyanka Srivastava (supra) wherein it was held that power under Section 156(3) Cr.P.C. warrants application of judicial mind.
The pertinent excerpt from the judgment reads as under:
"27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.... to be adhered to.
29. At this stage, it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."
23. It has also been mentioned in Para 40 of Case Law 'Alok Kumar Vs. Harsh Mander & Ors' that :
"40. To summarise, a conspectus of the above- mentioned judicial precedents reveal the following :
(i) Power under Section 156(3) Cr.P.C.Rahul Rathi vs State. Page No. 25 of 28 Crl. Revision No. 187/2023
necessitates application of judicial mind.
(ii) Such power is to be exercised in a judicious manner, and cannot be exercised mechanically or arbitrarily.
(iii) Magistrate cannot direct registration of FIR on mere asking of complainant."
24. That, there is a specific purpose of holding the inquiry by the police before registration of the FIR and the police has made the inquiry in accordance with the provisions of Code of Criminal Procedure. The Hon'ble Apex Court of India in Case 'Lalita Kumari Vs. State of Govt. of Uttar Pradesh' (2014) 2 SCC 1 and also in the Case 'Priyanka Srivastava', it has been observed by the Hon'ble Apex Court that Section 156(3) of Cr.P.C. wants application of judicial mind since it not a Police Officer who is taking steps u/s 154 Cr.P.C. The purpose behind the enactment of Section 156(3) of Cr.P.C. was to offer a recourse to citizens by providing a judicial remedy in situations where the police fails to take appropriate action upon a complaint disclosing cognizable offence. This provision enables an ordinary individual to approach a criminal court, which, after careful examination the contents and material placed before it by the complainant, can request a status report or an Action Taken Report from the Police. This mechanical serves to remind and question the Police about their duty and inquire as to why no action has been taken on the complaint in question. Furthermore, it is evident from the scheme of Cr.P.C. that a Rahul Rathi vs State. Page No. 26 of 28 Crl. Revision No. 187/2023 Police complaint should be first lodged by a complainant as per Section 154 before seeking recourse u/s 156(3) of Cr.P.C. Therefore, directing registration of an FIR u/s 156(3) of Cr.P.C. is a serious judicial function. In case, the case is informed that the police has failed to do its duty and an application is moved u/s 156(3) of Cr.P.C. seeking direction to register an FIR, the concerned court is duty bound to apply its judicial mind to the facts of the case before it prior to directing registration of the FIR.
It has also been held by the Hon'ble Apex Court of India that, while having emphasized upon the need to apply judicial mind while deciding an application u/s 156(3) of Cr.P.C. It is also imperative to highlight the necessity of passing a reasoned order so as to exhibit the application of judicial mind in unambigous terms.
25. The registration of the FIR on the subject matter of the cheque bearing no.022943 was disclosed by the Police official of PS Prashant Vihar in the Action Taken Report being called by the court of ld. MM and all the facts has been specifically narrated in the Action Taken Report with the copy of the FIR no.0089/2023 dated 26.01.2023 u/s 420/406/34 IPC and the Action Taken Report as well as the said FIR must have been perused by the court of ld. MM before passing the order of Rahul Rathi vs State. Page No. 27 of 28 Crl. Revision No. 187/2023 giving the direction for registration of the FIR but it appears that the order of registration of FIR on the same facts was passed by the ld. MM court without application of judicial mind and it also appears that the filing of the application u/s 156(3) Cr.P.C. by respondent no.2 against the revisionist and others was based upon some story may have been cooked up against the revisionist for some ulterior motive and in order to settle personal score against the revisionist and others. Thus, it is a fit case where this court needs to interfere in exercise of its revisional jurisdiction, in order to do justice to the parties concerned. Hence, the impugned order of dated 05.06.2023 passed by the ld. MM in case titled as 'Hariram Khatri Vs. Rahul Rathi' is found to be not sustainable on the touch stone of the relevant provisions of law and for the reasons mentioned hereinabove. Consequently, the impugned order dated 05.06.2023 in case titled as 'Hariram Khatri Vs. Rahul Rathi' is hereby set-aside by holding that no prima facie offence is made out for the offence punishable u/s 420/467/468/471 IPC. Resultantly, the revision petition stands allowed.
26. Revision petition file be consigned to record room.
Announced in the open court (Satish Kumar) on 17.08.2023 Addl. Sessions Judge-03, (North) Rohini Courts, Delhi Rahul Rathi vs State. Page No. 28 of 28 Crl. Revision No. 187/2023