Delhi District Court
M/S. Rayal Seema Commodities Ltd vs State Of Delhi on 2 May, 2014
IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ05 : WEST
DISTRICT, TIS HAZARI COURTS, DELHI
C.R. No.9/14.
02.05.2014
IN THE MATTER OF:
M/s. Rayal Seema Commodities Ltd.
Shivam House, Karampura Community
Complex, New Delhi 110 015 ............ Revisionist
VERSUS
State of Delhi
Through its Addl.Public Prosecutor
At - Department of Prosecution
Tis Hazari Court, Delhi. ............. Respondent
Date of Institution : 29.09.2010
Date of reserving the order : 01.05.2014
Date of decision : 02.05.2014
ORDER
1. The present revision petition has been filed against the order dt. 27.04.2010 passed by Sh. Ashish Aggarwal, Ld.M.M.vide which the application filed by the petitioner u/s 156(3) Cr.P.C. was dismissed.
2. I have heard the counsel for the petitioner at length.
3. I have also perused the record carefully.
4. In the complaint, it is mentioned that the petitioner company is engaged in the business of export in agricultural products. In the year 2008, the complainant desired to purchase Cans for packing of Mango and Guava pulp. The accused nos. 1 to 5 approached the complainant company as they were the Directors and Controllers of CR No. 9/14 M/s Rayal Seema Vs. State Page No. 1 of 7 M/s Western Cans Pvt. Ltd.and the complainant company placed a order for supply of Cans. Lateron, in March, 2009, again the complainant company placed an order for supply of Cans on the assurance of the accused persons that they would be made the order in time and they would maintain a high standard of quality of the Cans. On assurance of accused persons, Purchase Agreements dt. 20.03.2009 and 08.04.2009 were executed between the parties, however the accused persons failed to comply with the terms and conditions of the agreement. The Cans which were supplied were not according to the agreed quality, agreed rate and within the agreed period of time. It is further mentioned in the complaint that Excise duty was also charged by the accused persons although this was not agreed upon.
5. Thereafter, complainant company came to know that accused nos. 1 to 5 had colluded with the former Director of the complainant company Mr.Parminder Rana (accused no.6). They also came to know that accused no. 6 had stolen certain blank cheques of the complainant company and had handedover the said cheques to accused nos. 1 to 5. It is further alleged in the complaint that accused no. 6 had agreed with accused nos. 1 to 5 that they will send inferior quality of Cans and accused no.6 would get their invoices cleared in lieu of a share in the profit earned therefrom. Accused no.4 & 6 advanced threats to the Marketing Manager of the complainant. It is further mentioned in the complaint that accused persons also threatened to kill the officials of the complainant company and to level false accusations against them. According to the complainant accused persons thus committed CR No. 9/14 M/s Rayal Seema Vs. State Page No. 2 of 7 offences punishable U/s 379,385,387,415,420,506,120B r/w Section 34 IPC.
6. The Ld.M.M. has dismissed the application u/s 156 (3) Cr.P.C. and given liberty to the complainant to prosecute his complaint U/s 200 Cr.P.C. r/w Section 190(1) (A) of the Cr.P.C.
7. Aggrieved by the said order, the petitioner has filed the present revision petition on the ground that Ld.M.M. is required to make an opinion as to whether any cognizable offence is made out or not, which the Ld.M.M. has failed to appreciate. The application U/s 156(3) Cr.P.C. was filed before the Ld.M.M. for a limited purpose to see whether any cognizable offence is made out or not. The Magistrate has taken cognizance U/s 190 (1)(a) of the code which falls under separate chapter.
The complainant has clearly mentioned in para no.5 point a to m of application U/s 156(3) Cr.P.C as to how distinct offences complained of are made out in the case. It is prayed that order be set aside and the directions be given to the SHO to register a case against the above mentioned accused persons and to further investigate the matter and to file their report in this regard.
8. First of all, in the complaint, the petitioner has made these respondents as a party but in the present petition, the petitioner has not made the respondents as party and only made 'the State' as respondent.
9. Vide detailed reasoned order, the Ld.trial court has dismissed the application u/s 156(3) Cr.P.C. holding that the allegations levelled in the complaint are of civil dispute. When a complaint is filed before the Magistrate, the Magistrate has two options; one to CR No. 9/14 M/s Rayal Seema Vs. State Page No. 3 of 7 proceed u/s 190(1)(a) Cr.P.C. or to send the complaint to the police for investigation u/s 156(3) of the Cr.P.C.
10.The Ld.counsel for the petitioner has vehemently contended and has relied upon the Judgment titled as Lalita Kumari Vs. Govt. of U.P. & others, wherein it is held that in every cognizable case, it is the bounded duty of the police to register a FIR and the Magistrate can not dismiss the application u/s 156(3)of Cr.P.C. In the abovesaid Judgment, directions were given to the police to register a FIR.
11.The Hon'ble Supreme Court of India in this judgment has held that Registration of FIR is mandatory U/s 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in a such situation.
The Hon'ble Apex Court has also held that :
The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
As to what type and in which cases preliminary enquiry 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) Medial 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.
CR No. 9/14 M/s Rayal Seema Vs. State Page No. 4 of 7
12.He has also placed reliance on the Judgment titled as Surinder Singh Sobti Vs. The State & others 1999 (1) JCC (SC)107. However, this judgment is not helpful to the petitioner).
13.In the present case, admittedly the complainant has executed Agreements dt. 20.03.2009 and 08.04.2009 with M/s.Western Cans Pvt. Ltd. and the said company agreed to supply the Mango Cans. Both the Agreements stipulate that the complainant himself agreed to examine the Cans before using the same. The complainant did not blindly accept the goods supplied by the Western Cans Pvt.Ltd. regarding their purity.
14.Further since the complainant did not allow itself to be swayed by the representations of the accused persons, there is no question of any inducement from the assurance of the accused persons as it was the responsibility of the complainant to itself examine the Cans during acceptance. It is not open to the complainant to contend that it was cheated on account of the misrepresentations of the accused persons as to the quality of their products. For the poor quality of products and consequent losses, it is not the accused persons but the complainant who must take the blame since it was the duty of the complainant to check the product before its use, as explicitly agreed upon. The grievance of the complainant that the cans were of poor quality which resulted in losses and amounts to the offence of cheating, appears to be unfounded and without any basis. I am also agree with the Ld.M.M. that the dispute is of Civil nature.
15. The Ld.M.M.has also held in para 7 of the order that the grounds on which the cheating was alleged and none of the grievances of CR No. 9/14 M/s Rayal Seema Vs. State Page No. 5 of 7 the complainant suggest the commission of offence of cheating. It is also held that even if it is assumed that the above allegations are correct, that only implies breach of contract. Mere failure to abide by the terms of contract does not amount to cheating. Reference may also be made in a case 2002 Crl. L.J. 2907 Gulab Chand Vs. State, wherein it has been held as under: " The Scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation.
xxx xxx xxx But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted."
Reference may also be made to the case of M/s Skipper Beverages Pvt. Ltd. Vs. State 2002 Crl. LJ NOC 333(Delhi), in which it has been held as under: "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 CR No. 9/14 M/s Rayal Seema Vs. State Page No. 6 of 7 serious and complainant himself in possession of evidence of prove allegation, there should be no need to pass order under Section 156."
In the case of Sukwasi Vs. State of Uttar Pradesh 2008 Crl. L.J. 472 Division Bench of Hon'ble Allahabad High Court has held that merely because a complaint discloses a cognizable offence, application under Section 156(3) of Code of Criminal Procedure, 1973 is not bound to be allowed.
The following observations are relevant.
16."22. Applications under Section 156(3) of Code of Criminal Procedure, 1973 are now coming in torrents. Provisions under Section 156(3) of Code of Criminal Procedure,1973 should be used sparingly. They should not be used unless there is something unusual or extra ordinary like miscarriage of justice, which warrants a direction to the Police to register a case. Such applications should not be allowed because the law provides them with an alternative remedy of filing a complaint, therefore, recourse should not normally be permitted for availing the provisions of Section 156(3) of Code of Criminal Procedure.
17. The Ld.M.M. has given liberty to the complainant to prosecute his complaint U/s 190(1)(a) of Cr.P.C. In view of above discussion, I am of the view that the Ld.M.M. has rightly passed the order and there is no illegality or infirmity in the order of Ld.M.M. Hence, the present revision petition is dismissed.
Copy of this order be sent alongwith the TCR.
Revision file be consigned to Record Room.
Announced in the Open Court on 02.05.2014 (Naresh Kumar Malhotra) Additional Sessions Judge05 West/THC/Delhi CR No. 9/14 M/s Rayal Seema Vs. State Page No. 7 of 7 CR No. 9/14 M/s Rayal Seema Vs. State Page No. 8 of 7