Delhi District Court
Hemco Rsj vs M/S Instapower Ltd As Company on 22 November, 2018
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS
NEW DELHI
Criminal Revision No.: 455/2018
In the matter of:
Hemco RSJ, JV,
C/o Hindustan Electrical Mechanical Company,
Shop No. G-26, Ground Floor,
Plot No. 07, Pankaj Plaza,
Sector-12, Dwarka,
New Delhi-110078. ...... Applicant
versus
1. M/s Instapower Ltd as company,
S-19, Panchsheel Park,
New Delhi-110017.
2. H.R. Vaish,
Managing Director.
3. Smt. Alka Vaish,
Director.
4. A.R. Vaish,
Executive Director,
5. S.R. Vaish,
President,
All R/o S-19, Panchsheel Park,
New Delhi-110017.
6. State of NCT. ..... Respondents
Date of institution of Application : 18.10.2018
Date of conclusion of arguments : 22.11.2018
Date of decision : 22.11.2018
CR No. 455/2018 Hemco RSJ, JV v. M/s Instapower Ltd & Ors. Page 1 of 7
ORDER
1. This application under section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C.), made by the applicant Hemco RSJ, JV (hereinafter referred to as 'the complainant') against the respondents is directed against the order dated 18.07.2018, passed by the court of Metropolitan Magistrate- 02, South Saket Courts, New Delhi, whereby, in complaint case no. 8927/2017 entitled Hemco RSJ, JV v. M/s Instapower Ltd & Others, the Learned Metropolitan Magistrate dismissed the application under section 156(3) Cr.P.C filed alongwith the complaint.
2. The circumstances giving rise to the application are that the complainant made a complaint under section 200 Cr.P.C. against the accused for the offence under section 420/406/409/467/468/471/506/120B/34 IPC with the view to take cognizance of the offence and to summon, try and punish him for having committed the said offence. The allegations made in the complaint, in detail, are not necessary for the disposal of this application.
3. A status report/reply to the application under section 156(3) Cr.P.C. as required by the Court was filed by the inquiry officer wherein it was, inter-alia, stated that no cognizable offence was made out as the matter related to CR No. 455/2018 Hemco RSJ, JV v. M/s Instapower Ltd & Ors. Page 2 of 7 payment of money and no offence had occurred within the territorial jurisdiction of PS Malviya Nagar.
4. On 18.07.2018, the Learned Magistrate, having heard the complainant, dismissed the application under section 156(3) Cr.P.C.
5. Feeling aggrieved of the impugned order, the applicant has made the present application.
6. I have heard counsel for the parties and have gone through the record of the complaint case no. 8927/2017 entitled Hemco RSJ, JV v. M/s Instapower Ltd & Others, pending before the Learned Magistrate.
7. Having drawn my attention on the contents of the application, the impugned order dated 18.07.2018 and the record of complaint case no. 8927/2017, pending before the Learned Metropolitan Magistrate, it is submitted by learned counsel for the applicant that the order passed by the learned trial court is wrong, illegal, improper, unjustified, against the basic provision of law as well as against the established law laid by Hon'ble Higher Court including the Hon'ble Supreme Court of India. It is submitted by counsel for the applicant that the learned Magistrate has failed to appreciate the fact CR No. 455/2018 Hemco RSJ, JV v. M/s Instapower Ltd & Ors. Page 3 of 7 that the respondents have cheated the Government of India by giving the contract to the revisionist without any approval of the AAI and same can only be ascertained after the police investigation is conducted. It is submitted by counsel for the applicant that the learned Magistrate has failed to appreciate that the respondent has cheated and concealed the material facts from the revisionist and given the contract for the Tezu Airport without any approval from the AAI to the revisionist which is the most important aspect of the present matter.
8. Per contra, it is submitted by learned counsel for the respondents no. 1 to 5 that the complaint is nothing but a civil dispute. It is submitted by learned Addition PP for State that the application does not have any merit and is liable to be dismissed.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties.
10. Under section 397 of Cr.P.C., any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any CR No. 455/2018 Hemco RSJ, JV v. M/s Instapower Ltd & Ors. Page 4 of 7 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.
11. Under the Cr.P.C., a Metropolitan Magistrate may take cognizance, inter-alia, on a complaint made by an aggrieved person. Upon such complaint being made, the Metropolitan Magistrate, instead of proceedings under section 200 of Cr.P.C. may, in exercise of powers under section 156(3) of Cr.P.C., forward such complaint to the officer in- charge of the police station for registration of FIR and investigation as per law. Thus, in respect of a complaint both options are available with the Metropolitan Magistrate.
12. In the present case, after entertaining the complaint, the Learned Metropolitan Magistrate called a report from the police station concerned and after hearing the complainant and going through the documents, formed the opinion that all the facts and circumstances are within the knowledge of the complainant including identity of accused persons and documentary evidence, as well as the names and addresses of concerned witnesses, thus, there is no ground on CR No. 455/2018 Hemco RSJ, JV v. M/s Instapower Ltd & Ors. Page 5 of 7 which assistance of police is required, therefore, declined the plea of the complainant to pass direction for registration of FIR. Even otherwise, the learned Magistrate has specifically observed that if at any stage the court was of the opinion that investigation in the matter was required, the court would be within its power to order investigation under Section 202 of Cr.P.C. The production of any document, if required, can be sought by way of the court's order.
13. In the circumstances, before her, the Learned Magistrate had two options, namely, without taking cognizance of offence on the basis of the complaint, to forward the complaint to the SHO concerned, or after taking cognizance of the offence on the basis of the complaint, to proceed under section 200 and subsequent provision of Cr.P.C. The Learned Metropolitan Magistrate, in the light of relevant case law, having taken into account all the facts and circumstances, including the status report filed by the police, formed the opinion that at this stage there is no justification for directing the police for registering the FIR and opted to proceed under section 200 of Cr.P.C. The judicial discretion exercised by the Learned Metropolitan Magistrate is in consonance with the scheme postulated by the Cr.P.C. There is no material on record to indicate that the judicial discretion exercised by the Learned Metropolitan Magistrate was either CR No. 455/2018 Hemco RSJ, JV v. M/s Instapower Ltd & Ors. Page 6 of 7 arbitrary or perverse.
14. In view of above discussion, I find no illegality and irregularity in the impugned order dated 18.07.2018, passed by the court of Learned Metropolitan Magistrate. Said impugned order dated 18.07.2018, passed by Learned Metropolitan Magistrate is hereby upheld. This application under section 397 Cr.P.C is without merit and same is, accordingly, dismissed.
15. File be consigned to the Record Room. The record of the complaint case no. 8927/2017 entitled Hemco RSJ, JV v. M/s Instapower Ltd & Others, called from the court of the Learned Magistrate be sent back along with a copy of this order. The revisionist is directed to appear before the Learned Trial Court on 26.11.2018 at 2.00 PM.
Announced in the open court (DR. RAKESH KUMAR) on 22nd November 2018 Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
2018.11.22 15:33:28 +0530 CR No. 455/2018 Hemco RSJ, JV v. M/s Instapower Ltd & Ors. Page 7 of 7