Delhi District Court
R K Bagrodia vs Sho on 5 January, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 532 of 2017
CNR No. DLSE01-007908-2017
IN THE MATTER OF:
R K Bagrodia,
S/o Sh. M P Bagrodia,
R/o S-521, GK-1,
New Delhi-110048
.......Revisionist
Versus
1. SHO, C R Park
Through PP State
2. Mr. Ramji Arora,
S/o Sh Kedarnath Tehri,
1, Aggrasen Colony, Asand Road,
Panipat, Haryana - 123103
........Respondents
Instituted on : 25.10.2017
Reserved on : Not reserved
Pronounced on : 05.01.2022
JUDGMENT
1. By way of the instant revision, revisionist takes exception to the order dated 28.07.2017 whereby his application moved u/s 156(3) Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 1 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:20:40 +0530 Cr.P.C in case No. 626763/16 bearing CC No.235/1/15 titled as R K Bagrodia Vs SHO PS CR Park & Ors, stood dismissed by Ld. Metropolitan Magistrate-04, South East District, Saket Court, New Delhi. For the sake of convenience, parties shall be referred as per their respective status before concerned court of Ld MM.
2. Brief facts as noted by Ld Trial Court in the impugned order are being reproduced for the sake of convenience :-
"Briefly stated, the averments of the complaint are that the complainant claims himself to be a reputed businessman engaged in the business of manufacturing and trading of chemicals and coating chemical solution. It has been averred that the proposed accused Mr Ramji Arora approached the complainant at his office in the month of August 2011 and represented himself to be having the expertise in the business of manufacturing and trading of chemicals. It has been further averred that the complainant was thereon induced by Mr Ramji Arora to set up a partnership business by promising him to make his partner in the said business. It has been alleged that on being induced by the fraudulent representation made by the proposed accused, the complainant entered into a partnership business in the name and style of M/s Innovative Enterprises and a MOU dated 05.09.2011 was signed and executed beween the parties in this regard. Allegedly, it was agreed that the partnership business would carry out the manufacturing and trading of anti corrosion coating and construction chemical solution and to take up turnkey projects for corrosion control and waterproofing. It has been alleged that the accused promised and agreed to keep himself actively engaged in conducting the affairs of the partnership business vide the aforesaid MOU and on basis of his fraudulent representation, the complainant even made him one of the director in his another company namely M/s Corrkil Solution (I) Pvt Ltd. The complainant claims to have got induced on the basis of alleged fraudulent representations and tall claims made by the accused and has alleged to have entrusted huge sum of money amounting to Rs.28,02,242/- with the proposed accused. However, the accused regularly demanded money from the complainant from time to time with a promise and assurance to utilize the same for the partnership business, but, he allegedly misappropriated the money of the complainant so entrusted to him for his own individual business of similar nature being carried out in the name and style of M/s Wizman Construction Company. It has been also Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:20:54 +0530 alleged that various machines were also entrusted to the accused by the complainant for promoting the partnership business, but, the same were also misappropriated by him for running his own business. The complainant further claims to have removed the proposed accused from the directorship of his company M/s Corrkil Solution (I) Pvt Ltd vide letter dated 15.11.2014. However, it has been alleged that the accused threatened the complainant with dire consequences on being asked to not come to the office of the complainant and being confronted with his alleged illegal and dishonest deed. A criminal complaint was thereafter lodged by the complainant against the proposed accused, but, no action was taken by the police, hence, the present complaint/application came to be filed u/s 156(3) Cr.P.C."
3. Action Taken Report was filed by concerned Inquiry Officer, Police Station C R Park before concerned Court and after consideration of same, the application under section 156(3) Cr.PC stood dismissed by concerned court. The relevant observations of Ld MM is follow :-
"After going through the complaint and hearing the arguments, it is seen that all the evidence is within the reach and knowledge of the complainant and nothing new is to be collected for which the assistance of the police agency is required. Even the identity of accused person is known to complainant. Besides, the court has the power to direct police inquiry U/s 202 Cr.PC in case after examination of complainant and his witnesses, any assistance of the police is required.
Therefore, in view of the aforesaid facts and circumstances, there is no ground for this court to exercise jurisdiction u/s 156(3) Cr.P.C.. Hence, application U/sec 156 (3) Cr.P.C. is hereby dismissed.
The complainant is nevertheless hereby granted opportunity to substantiate his contentions by leading pre summoning evidence in the present complaint case u/s 200 Cr.PC on 03.11.2017."
4. The revisionist is aggrieved with the said order of the Ld. Trial Court and has assailed the impugned order on various grounds which can be summarized as under:-
Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:21:04 +0530
(i) That the impugned order is against the settled principle of law;
(ii) That the impugned order is bad in law as the same has been passed ignoring the material available on record;
(iii) That Ld Trial Court failed to whisper about the judgments relied upon by revisionist in the impugned order;
(iv) That Ld Trial Court wrongly come to the conclusion that no police investigation is required as all the evidence is within reach and knowledge of revisionist;
(v) That Ld Trial court failed to appreciate the complaint of revisionist which disclose commission of cognizable offence;
5. None appeared on behalf of revisionist to argue the instant petition.
6. Per contra, it is vehemently argued by Ld counsel for respondent no.2 that the instant revision petition is not maintainable as the impugned order is purely interlocutory in nature. It is argued that Ld Trial Court has rightly dismissed the application of revisionist as the dispute between the parties is purely civil in nature. It is further submitted that no offence much less any cognizable offence is made out in the instant matter. It is argued that Ld MM has rightly exercised his discretion power by dismissing the application of the revisionist. On the strength of these arguments, respondent no.2 seeks dismissal of instant revision petition.
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ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.01.05
15:21:18 +0530
7. I have heard contentions of Ld counsel for respondent no.2 and perused the record.
8. Before deciding the present revision petition, it would be relevant to reproduce the relevant provisions of law which are as under :
"Section 397 : Calling for records to exercise powers of revision :
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
9. Before testing the case of the revisionist on merits, the issue of the maintainability of the instant revision ought to be resolved first.
10. Full Bench of Allahabad High Court in the decision reported as AIR 2014 All 214 Jagannath Verma v. State of U.P. dealing with the issue of maintainability of a revision petition against the order rejecting an application under Section 156(3) Cr.P.C. held:-
"58. xxx In view of the discussion above and for the reasons which we have furnished, we have come to the following conclusion:
(i) Before the Full Bench of this Court in Father Thomas, the controversy was whether a direction to the Police to register a Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:21:33 +0530 First Information Report in regard to a case involving a cognizable offence and for investigation is open to Revision at the instance of a person suspected of having committed a crime against whom neither cognizance has been taken nor any process issued. Such an Order was held to be interlocutory in nature and, therefore, to attract the bar under sub-section (2) of Section 397. The decision in Father Thomas does not decide the issue as to whether the rejection of an application under Section 156(3), would be amenable to a Revision under Section 397, by the Complainant or the informant, whose Application has been rejected;
(ii) An Order of the Magistrate rejecting an Application under Section 156(3) of the Code for the registration of a case by the Police and for investigation is not an Interlocutory Order. Such an Order is amenable to the remedy of a Criminal Revision under Section 397; and (iii) In proceedings in Revision under Section 397, the prospective Accused or, as the case may be, the person, who is suspected of having committed the crime is entitled to an opportunity of being heard before a decision is taken in the Criminal Revision."
11. Further, Hon'ble Delhi High Court in Nishu Wadhwa vs Siddharth Wadhwa & Anr on 10 January, 2017 observed at para 13 :-
"13. The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable."
Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:21:42 +0530
12. Thus, in light of the aforesaid legal position, it is held that the instant revision petition is maintainable. Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits.
13. After going through the records and hearing the arguments, I am of the view that Ld Magistrate has rightly observed that all the evidence is within the reach and knowledge of revisionist and nothing new is to be collected for which the assistance of police agency is required. In my view, the entire evidence is within possession of revisionist and no investigation by police is required for collection of any evidence. If assistance of police would be required at any stage, same can be had by resorting to provisions of section 202 Cr.PC by the Ld Magistrate.
14. Reliance is placed upon the judgment titled as Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai reported in 1998 (1) Crimes 351, Hon'ble Gujarat High Court took strong exception to the growing tendency of asking the police to investigate cases under Section 156(3) of the Code and advised the Magistrates not to pass orders mechanically. It was held that:-
"Magistrates should act under Section 156 (3) of the Code only in those cases where the assistance of the police is essentially required and the Magistrate is of the considered view that the complainant on his own may not be in a position to collect and produce evidence in support of the accusation".
Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 7 of 10 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:22:09 +0530
15. Further, it was held by Hon'ble Delhi High Court in M/s. Skipper Beverages P. Ltd Vs. State 2002 CRI. L. J. NOC 333(Delhi) that :-
''Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order U/s156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken. Thus, where allegations of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police under Section 156(3) would be justified''.
16. In my considered view, once an application under section 156 (3) Cr.P.C. is moved before a Magistrate, he has two options. He can either send the case for investigation to concerned Police Station in the facts and circumstances of a particular case or instead of doing so, he may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre-summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once, the Magistrate has opted to exercise his discretion of not sending the matter for investigation, this court, while exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:22:21 +0530 extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
17. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
18. Therefore, in my considered opinion the Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of the discretionary Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:22:29 +0530 powers vested in the Ld Magistrate.
19. In the case at hand, I find that the Ld. Magistrate has rightly exercised the discretionary power vested in him. I do not find any malafide or arbitrary exercise of discretion. Accordingly, this court finds no valid reasons to interfere in the order dated 28.07.2017. The revision petition stands accordingly dismissed.
20. TCR be sent back to Ld Trial Court along with copy of this judgment.
21. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.01.05 15:22:38 +0530 Announced in the open (ANUJ AGRAWAL) Court on 5th January 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 532 of 2017 R K Bagrodia Vs SHO, C R Park Page No. 10 of 10