Delhi High Court - Orders
Siddhartha Srivastava vs State Of Nct Of Delhi, Through The ... on 2 March, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 937/2022 & CRL.M.As. 4001-02/2022
SIDDHARTHA SRIVASTAVA ..... Petitioner
Through: Mr. Ramesh Kumar Mishra,
Advocate
versus
STATE OF NCT OF DELHI, THROUGH THE STANDING
COUNSEL (CRIMINAL), GOVT OF NCT OF DELHI & ANR.
..... Respondents
Through: Ms. Kusum Dhalla, APP for State
along with SI Vaishali Kaushik, P.S.
Tilak Nagar
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 02.03.2022 CRL.M.A. 4000/2022 Exemption allowed subject to all just exceptions. The application stands disposed of.
CRL.M.C. 937/20221. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C."), the petitioner prays as follows:-
(a) "Quash FIR No. 214/17 dated 28.4.2017 u/s. 406/420/34 of the IPC as lodged with P.S.:- Tilak Nagar, Delhi; and
(b) set aside the process u/s 82 of CrPC against the Petitioner dated 30.11.2021 issued by learned Metropolitan Magistrate-07, Shir Puneet Nagpal, Room No. 289, 2nd Floor, Tis Hazari Courts, Delhi u/s 82 of Signature Not Verified CRL.M.C. 937/2022 Page 1 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:47 CrPC in connection with FIR No. 214/17 dated 28.04.2017 registered with Tilak Nagar Police Station, Delhi."
2. As per the FIR, prosecution case is:
a) On 13th February, 1989, Skytel Networks Limited, was incorporated with the primary objective, inter-alia, of design, develop, alter, manufacture, import, export, produce, process, assemble, market deal in electronic products, computers and computer-based products and systems. It is submitted that petitioner was a salaried employee of the company.
b) In the month of December, 2013 and January, 2014, respondent no. 2/complainant was approached by „Skytel‟ at his office at Ganesh Nagar, New Delhi and lucrative offers of investment/business were given to him. It is also alleged that after rounds of meeting with employees and representatives, and detailed telephonic conversations with petitioner and the Board of Directors, respondent no. 2/complainant entered into an agreement on 8th January, 2014.
c) As per the agreement, respondent no. 2/complainant has to deposit a sum of Rs. 30,00,000/- (Rupees Thirty Lakhs Only) as refundable security to the accused company. Respondent no.
2/complainant has to also arrange for a proper product of the accused company. It is submitted that as per the agreement, the accused company will have to arrange for staff/advertisements for selling goods in the market.
d) As per the terms and conditions of the agreement, respondent no.
Signature Not Verified CRL.M.C. 937/2022 Page 2 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:472/complainant has paid the amount of Rs. 30,00,000/- (Rupees Thirty Lakhs Only) to the accused-company by RTGS mode on 11th January, 2014.
e) The accused-company failed to pay its part of the agreement and neither appointed workforce to get the business, nor kept any stock of goods with respondent no. 2/complainant and at the same time, did not provide for business promotion or did anything incidental and/or ancillary to the aforesaid agreement dated 8th January, 2014.
f) On the non-compliance of the conditions of the said agreement, the accused company and its representative was approached by respondent no. 2/complainant, but nothing has been done by the accused company on the said complaints.
g) Even after several emails and telephonic conversations to the accused company and its representatives, they only made false promises and false assurances of claiming the payment.
h) Respondent no. 2/complainant has left with no option but to visit the office of the accused company and met several officials and employees of it.
i) The respondent no. 2/complainant was shocked to know that the accused company was not authorized to do the agreed business with respondent no. 2/complainant as per the objective clause of their memorandum of association of their institution. The said agreement was signed by the accused company on false and fabricated documents and the said frivolous documents were made with the intention to cheat respondent no. 2/complainant.
j) It has been further revealed that the accused company has also Signature Not Verified CRL.M.C. 937/2022 Page 3 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:47 changed its address. Several employees and the Directors of the accused company have gone underground and the accused company had defrauded other persons also and public at large. With the aforesaid allegations, the FIR in question was lodged.
3. Learned counsel appearing on behalf of petitioner submitted that petitioner has not been alleged in the FIR as a Director or shareholder of the accused company and also, has not been attributed any role in the day-to-day affairs of the accused company. It is submitted that petitioner is only a salaried employee of the accused company. It is also, vehemently submitted that the entire allegations made in the FIR pertain to only civil dispute relating to refund and security deposited by respondent no. 2/complainant.
4. Learned counsel appearing on behalf of petitioner submitted that the allegations made in the FIR that the accused company had defrauded other persons and public at large, is completely erroneous and false. It is submitted that petitioner was not aware of any proceeding pertaining to the FIR in question i.e. issuance of NBW‟s and proceeding under Section 82 of the Cr.P.C. It is also submitted that no notices under Section 41A of the Cr.P.C has been served upon the petitioner.
5. In view of the abovesaid facts and circumstances, learned counsel appearing on behalf of petitioner submitted that the instant FIR is lodged only to harass the petitioner and therefore, it is a gross misuse of process of law and the same may be quashed by invoking the extraordinary jurisdiction under Section 482 of the Cr.P.C. It is also prayed that since no notices have been served on the petitioner under Section 41A of the Cr.P.C., therefore, the proceeding under Section 82 of the Cr.P.C. may also be quashed.
6. Per contra, Ms. Kusum Dhalla, learned APP for State, appearing on Signature Not Verified CRL.M.C. 937/2022 Page 4 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:47 advance notice, submitted that the concerned Investigating Officer present before this Court, on instructions, made the papers available to the learned APP for State. It is submitted that the instant FIR was lodged in the year 2017 and since then, petitioner is avoiding the investigation and not cooperating with the Investigating Agency.
7. It is also submitted by learned APP for State that the petitioner has approached this Court after five years by filing the instant petition under Section 482 of the Cr.P.C. for quashing the FIR as well as the proceeding under Section 82 of the Cr.P.C. against the petitioner is nothing, but gross misuse of process of law. It is further submitted that on bare reading of the FIR, cognizable offence were made for offences punishable under Sections 406/420/34 of the Indian Penal Code, 1860. It is a pre-mature stage for interference of this Court while invoking the extraordinary jurisdiction under Section 482 of the Cr.P.C.
8. It is also submitted that petitioner has approached this Court after initiation of proceedings under Section 82 of the Cr.P.C. and has not come with clean hands. There are no grounds available in the instant petition for invoking the power under Section 482 of the Cr.P.C. at this stage and the petition is devoid by merit and may be dismissed with cost.
9. Heard learned counsel for the parties and perused the record including the FIR and the proceeding under Section 82 of the Cr.P.C.
10. It is an admitted fact that the FIR in question was lodged in the year 2017 against the petitioner and petitioner has approached this Court after initiation of Section 82 of the Cr.P.C. Therefore, this Court finds force in the arguments advanced on merit by the learned APP for State, that the petitioner has not approached this Court with clean hands and not Signature Not Verified CRL.M.C. 937/2022 Page 5 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:47 cooperating with the Investigating Agency.
11. While perusing the FIR, there are specific allegations against the accused company as well as their employees. Petitioner is admittedly, an employee of the said company. The arguments which have been advanced by learned counsel appearing on behalf of petitioner that, he has nothing to do with the day-to-day affairs of the company is a matter of the investigation and these facts cannot be seen or adjudicated at this stage. This is a pre- mature stage to look into the facts stated by learned counsel appearing on behalf of petitioner.
12. In the case of M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors., 2021 SCC Online SC 315, the Hon‟ble Supreme Court held that : -
" 80....while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i. Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii. Courts would not thwart any investigation into cognizable offences;
*** vii. Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
*** Signature Not Verified CRL.M.C. 937/2022 Page 6 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:47 xii.... it would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;"
16. The Hon‟ble Apex Court has given its finding on prima facie satisfaction while deciding a quashing Petition on merit. In the matter of Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728, the Hon‟ble Supreme Court observed as under: -
"14. Further, the legal position is well settled that if an offence is disclosed the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. [State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561: 1982 SCC (Cri) 283] It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash an FIR Signature Not Verified CRL.M.C. 937/2022 Page 7 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:47 or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations. [Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370, 395 : 1985 SCC (Cri) 180]"
17. In view of the aforesaid law laid down by the Hon‟ble Supreme Court, contentions and the arguments advanced by the learned counsel for the parties, this Court does not find any merit in the instant petition.
18. Accordingly, the petition stands dismissed.
19. Pending applications, if any, also stand disposed of.
CHANDRA DHARI SINGH, J MARCH 2, 2022 Dy/ct Signature Not Verified CRL.M.C. 937/2022 Page 8 of 8 Signed By:GAURAV SHARMA Signing Date:03.03.2022 20:48:47