Delhi District Court
Mrs. Manpreet Kaur Chawla vs Ms. Honey Sharma on 16 September, 2017
IN THE COURT OF SHRI SANJEEV KUMAR,
ADDITIONAL SESSION JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO. 204495/2016
IN THE MATTER OF:
Mrs. Manpreet Kaur Chawla,
Director,
M/s. G.N. Builderes Pvt. Ltd.,
D-300, Defence Colony,
New Delhi. ........ Revisionist
VERSUS
1. Ms. Honey Sharma,
W/o Sh. Vipin Sharma,
D-111, Defence Colony,
New Delhi
2. Mr. Babar Chopra,
S/o Sh. T.R. Chopra,
E-336, East of Kailash,
New Delhi.
3. Mr. Vipin Handa,
S/o Sh. N.C. Handa,
C-4/33, Safdarjung,
Development Area,
New Delhi.
CR No. 204495/2016 Manpreet Kaur Chawla v. Honey Sharma & Ors. 1
4. M/s. Manik Builders (P) Ltd.,
Through its Directors
Manoj Gupta and Pramod Gupta,
A-328, Defence Colony,
New Delhi
5. State
(Govt. Of NCT of Delhi) ............Respondents
Date of arguments : 16.09.2017
Date of Order : 16.09.2017
JUDGMENT
1. This criminal revision has been filed by the revisionist under Section 397 of the Code of Criminal Procedure, 1973 (in short the "Code") against the order dated 28.03.2014 passed by the learned Metropolitan Magistrate-06, South East District, Saket Courts, New Delhi whereby application under Section 156 (3) of the Code was dismissed.
2. Sh. J.K. Sharma, learned counsel appeared for Manoj Gupta and Pramod Gupta. He has submitted that he is not appearing for company i.e. M/s Manik Builders Privated Limited and he is appearing only Manoj Gupta and Pramod Gupta as the said company has been impleaded through its directors Manoj Gupta and Pramod Gupta.
3. I have heard arguments advanced by learned counsel for the revisionist and learned counsel for Manoj Gupta and Pramod Gupta.
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4. The revisionist filed criminal complaint against the respondent no. 1 to 4 for committing the offences under Section 420, 448, 468, 471, 120 B/34 of the Indian Penal Code (in short "IPC"). Vide impugned order, application under Section 156(3) of the Code was dismissed by the learned Metropolitan Magistrate. Hence, this revision petition.
5. Learned counsel for the revisionist has submitted that accused persons have committed offence of cheating etc and investigation is required by the police and therefore, revision petition may be allowed.
6. On the other hand, learned counsel appearing for the Manoj Gupta and Pramod Gupta has opposed the revision petition. He has placed reliance upon the decisions i.e. Pooja Taneja v. The State of NCT of Delhi & Ors., 2017 (236) DLT 12 in support of his contention that no investigation is required by the police.
7. In M/s Skipper Beverages Pvt. Ltd. v. State, 2002 Crl.LJ NOC 333 (Delhi) and Gulab Chand Upadhyay v. State of UP & Ors., 2002 Crl.LJ 2907, it has been held that the powers under Section 156 (3) of the Code ought to be exercised judiciously and not in mechanical manner and can be exercised primarily in those cases where the allegations are quite serious or evidence is beyond that reach of the complainant or custodial interrogation appears to be necessary for recovery of some articles or discovery of facts and further in those cases where the allegations are not very serious and complainant himself is in possession of evidence to prove allegations, there should be no need to pass order under Section 156 (3) of the Code.
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8. In Mrs. Priyanka Srivastav & Anr. v. State of UP & Ors., Criminal Appeal no. 781 of 2012 decided on 19.03.2015, Hon'ble Supreme Court has observed that 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 and he has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order and further the learned Magistrate should take the note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It was further observed that power under Section 156(3) warrants application of judicial mind and a court of law is involved. It was also observed that it is not the police taking steps at the stage of Section 154 of the Code of Criminal Procedure and in a litigant at his own whim can not invoked the authority of the Magistrate. It was also observed that there has to be prior application under Section 154(1) and 154(3) while filing a petition under Section 156(3) and both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. It was also observed that an application under Section 156(3) be supported by an affidavit and the veracity of the complaint can also be verified by the learned Magistrate, regard being had to the nature of the allegations of the case.
9. In Subhkaran Luharuka v. State (Govt. of NCT of Delhi) MANU/DE/1646/2010, Hon'ble Supreme Court has reproduced the judgment passed in Suresh Chand Jain v. State of Madhya Pradesh wherein it has been observed that in those cases where the allegations CR No. 204495/2016 Manpreet Kaur Chawla v. Honey Sharma & Ors. 4 are not serious and the complainant himself is in possession of evidence to prove his allegations, there should be no need to pass orders under Section 156 (3) of the Code; that the discretion ought to be exercised after proper application of mind and only in those cases where the magistrate of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interests of justice demand that the police should step in to held the complainant.
10. In para no.51A of the case Subhkaran Luharuka case (supra), the procedure to be followed while dealing with an application under Section 156(3) of the Code for the guidance of subordinate courts has summarized as under:
"(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the police, when approached by the complainant under Section 156(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction.
He should also satisfy himself about the need for CR No. 204495/2016 Manpreet Kaur Chawla v. Honey Sharma & Ors. 5 investigation by the police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.
(iii) The Magistrate, when approached with a complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if is felt that there is a necessity to call for a police report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but additionally, he should also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the court at the instance of complainant, and the matter is CR No. 204495/2016 Manpreet Kaur Chawla v. Honey Sharma & Ors. 6 such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
11. Hence, it is clear from the above judgments/authorities that if complaint discloses commission of cognizable offences and investigation is required by the police and prior complaint under Section 154(1) and 154(3) of the Code have filed before the SHO and the DCP respectively and affidavit has been filed alongwith the complaint filed before learned trial court, the order of registration of FIR can be passed under Section 156(3) of the Code by the Magistrate. This Court has to consider as to whether complaint discloses commission of cognizable offence/s and an investigation is required by the police in given facts and circumstances of the case and other conditions are fulfilled in the present case.
12. The allegations of the revisionist-complainant are that the property D-111, Defence Colony, New Delhi by the revisionist-complainant from Vipin Handa and after developing the ground floor of the said property and the same was sold to Honey Sharma and Vipin Sharma in two parts, front portion and back portion of the ground floor. Due to lack of fund, Honey Sharma represented that money paid for her portion may be adjusted towards the purchase of back portion and assured for the rest of the payment to be made before the registration of sale deed, however, no payment was made and even the cheques which were given towards the sale consideration was bounced and thereafter, Honey Sharma and her husband went missing. The complainant moved to Hon'ble High Court CR No. 204495/2016 Manpreet Kaur Chawla v. Honey Sharma & Ors. 7 seeking possession of the ground floor of the property and also for the termination of agreement to sale.
13. The further allegations are that the Honey Sharma in order to defeat the claim of the revisionist had entered into an agreement to sale with Babar Chopra. That Babar Chopra filed suit for specific performance against Honey Sharma and same was decreed ex-parte, however, Honey Sharma could not succeed in her nefarious design in getting the property registered in the name of Babar Chopra as she has no titled. Therefore, another ploy was invented wherein Babar Chopra, Vipin Handa, Honey Sharma, Vipin Sharma, Manoj Gupta and Pramod Gupta in collusion with each other entered into criminal conspiracy and without any authority from the revisionist, the accused persons in order to cause wrongful loss to the revisionist, Vipin Handa executed a register deed in favour of Honey Sharma and Honey Sharma executed a sale deed in favour of Manik Builders.
14. Power under Section 156 (3) of the Code can be exercised by the learned Metropolitan Magistrate judiciously and not in mechanical manner and can be exercised primarily in those cases where the allegations are quiet serious or evidence is beyond that reach of the complainant or custodial interrogation appears to be necessary for recovery of articles and only in those cases where the complainant himself may not be in a position to collect and produce evidence before the court. The learned Metropolitan Magistrate has rightly obeserved in the impugned order that judgment of Lalita Kumari only deals with the duties of the police and does not direct the Magistrate to order registration of FIR under Section CR No. 204495/2016 Manpreet Kaur Chawla v. Honey Sharma & Ors. 8 156 (3) of the Code even if cognizable offence is made out from the complainant. In Priyanka Srivastava's case (supra) after considering the Lalita Kumar's case, Hon'ble Supreme Court has observed that power under Section 156 (3) of the Code warrants application of judicial mind and a court of law is involved and it is not the police taken steps at the stage of Section 154 of the Code and in a litigant at his own whim cannot invoked the authority of the Magistrate. It is also observed in said case that the veracity of the complaint can also be verified by the learned Magistrate, regard being had to the nature of the allegations of the case. I am also agree with the observation of learned Magistrate that identity of the accused is known to the complainant ; that documents are easily available with the complainant and there is no requirement of police investigation in this case for the purpose of collection of evidence ; that case, if any, can be proved by the evidence of the complainant ; if any, further evidence would be required, the same can be summoned by the court at the required stage.
15. In view of above discussion, I do not find any illegality, irregularity etc. in the impugned order passed by learned Metropolitan Magistrate and therefore, revision petition is dismissed.
Announced in the open court on 16.09.2017 (Sanjeev Kumar) Additional Session Judge-05, South East,Saket Courts New Delhi CR No. 204495/2016 Manpreet Kaur Chawla v. Honey Sharma & Ors. 9