Delhi High Court
Sonali Verma vs Ranbir Sharma & Anr. on 3 December, 1999
Equivalent citations: 2000IAD(DELHI)868, 83(2000)DLT412, 2000(56)DRJ60
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
ORDER M.S.A. Siddiqui, J.
1. By this petition under Section 482 Cr. P.C., petitioner seeks quashing of the order dated 17.12.1998 passed by Smt. Renu Bhatnagar, M.M. New Delhi directing issue of process against her.
2. Briefly stated, facts giving rise to this petition are that the re- spondent No.1 filed a complaint under Sections 406/420/120-B/506/499 IPC against the petitioner and others on the allegations that on 7.2.1998, he purchased a 'Speed Shim card' from M/s. Setterling Cellular Ltd. for his cellular phone; that on 8.2.1998, he misplaced the said cellular phone containing the Shim card, and that on 9.3.1998, he approached the petitioner to issue a fresh Shim card after deducting the used amount of the Shim card lost by him. As per the prosecution case, the petitioner not only declined to issue the fresh Shim card but threatened him with dire consequences. On the complaint being filed, the learned Magistrate took cognizance of the offences under Sections 406/506/34 IPC and issued process against the petitioner and the other persons arraigned as accused. Aggrieved thereby, the petitioner has come up before this Court under Section 482 Cr.P.C.
3. Assailing validity of the impugned order, learned counsel for the petitioner contended that the averments made in the complaint do not con- stitute any offence against the petitioner and the learned Magistrate has committed a manifest illegality in taking cognizance of the offences under Sections 406/506/34 IPC. In M/s. Pepsi Foods Ltd. Vs. Special Judicial Magistrate, AIR 1988 SC 128 it was held that :
"Summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused."
4. As noticed earlier, it is the case of the respondent No.1 that on 7.2.1998, he had purchased a speed Shim card from M/s. Setterling Cellular Ltd. for his cellular phone which was misplaced by him on 8.2.1998. On 9.3.1998, the respondent No.1 approached the petitioner to issue a fresh Shim card after deducting the used amount of the card misplaced by him. In my opinion, the aforesaid averments made in the complaint do not constitute an offence punishable under Section 406 IPC. It is well settled that a mere transaction of sale cannot amount to an entrustment within the meaning of Section 405 IPC (State of Gujrat Vs. Jaswant Lal, ). I am constrained to observe that the learned Magistrate appears to be blissfully ignorant about the ingredients of Section 406 IPC. So far as the offence under Section 506 IPC is concerned there is not even a whisper in the complaint that the threat alleged to have been given by the petitioner caused any alarm to the respondent No.1. Consequently, averments made in the complaint do not satisfy the requirements of Section 506 IPC. Thus, in my opinion, the learned Magistrate has committed a patent illegality in taking cognizance of the offences punishable under Sections 406/506/34 IPC on the basis of the complaint filed by respondent No.1.
5. For the foregoing reasons the petition is allowed. The impugned order dated 17.12.1988 is set aside and the proceedings emanating from the com- plaint filed by the respondent No.1 are quashed.