Delhi District Court
Shri Ravinder Verma vs The State (Govt. Of Nct Of Delhi) on 20 February, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
Crl. Revision No.1/18
Unique Case ID No.17/2018
Shri Ravinder Verma
S/o Sh. Lalchand Verma
R/o 1/2241, 1st Floor,
Subhash Marg, Ram Nagar,
Shahdara, Delhi ............... Revisionist
Versus
The State (Govt. of NCT of Delhi)
............... Respondent
Date of Institution : 16.01.2018
Date of Arguments : 01.02.2018
Date of Order : 20.02.2018
O R D E R
1. This revision petition is preferred u/s 397/400 Cr.P.C. against the order dated 13th September 2017, passed by Sh. Pankaj Arora, Ld. MM - 02, Shahdara, KKD Court, Delhi, in complaint case No.174/2016 titled as Sh. Ravinder Verma vs. Sh. Nitin Sharma & Ors., whereby an application u/s 156(3) Cr.P.C. as filed on behalf of revisionist was dismissed and revisionist is provided with an opportunity to prove his case by adducing his evidence.
C.R. No.1/18 Ravinder Verma vs. The State Page 1/62. Arguments have been advanced by Sh. R.S. Goswami, Ld. Counsel for revisionist as also by Sh. Ashok Kumar, Ld. Addl. PP for State. I have perused the Trial Court record.
3. Ld. Counsel for revisionist argued that accused persons neither executed the title document nor returned the amount paid by the revisionist. It has been submitted that a cheque for a sum of Rs.40 lacs, which was given in lieu of the amount paid by the revisionist, has also been dishonoured due to insufficient funds and even accused is not traceable. Ld. Counsel for revisionist further argued that police is duty bound to register an FIR, if complaint discloses a cognizable offence.
4. In brief, relevant facts are that revisionist entered into an agreement dated 28.11.2015 in respect of purchase of two flats, out of property bearing No.1/5075, Gali No.2, Subhash Nagar, Shahdara. Sh. Kapil Sharma (accused No.3 in the complaint case) came in contact of the revisionist and disclosed him that his father Sh. Shyam Mohan Sharma is the absolute owner of the property and Sh. Nitin Sharma (accused No.1) had to construct the building as per collaboration agreement. It is case of the complainant that revisionist paid a sum of Rs.40 lacs i.e. Rs.20 lacs on 28.11.2015 and further Rs.20 lacs on 15.06.2016 but accused Nitin Sharma failed to handover the flats as construction was not completed by 30th July 2016. When revisionist/complainant asked them to return his money, on which Nitin Sharma issued a post dated cheque No.000099 dated 01.08.2016 for a sum of Rs.40 lacs but the said cheque was dishonoured with the remarks "Funds Insufficient". It is thus claimed that the accused C.R. No.1/18 Ravinder Verma vs. The State Page 2/6 persons cheated the revisionist/complainant by way of written agreement and by way of bogus cheque for which a written complaint was made to SHO, PS Shahdara.
5. The impugned order has been assailed on the grounds; that the order passed by Ld. Trial Court is based on conjecture and surmises; that Ld. Trial Court has not appreciated the record along with case file; that Ld. Trial Court has not appreciated that the complaint was made to the SHO and DCP; that Ld. Trial Court has not appreciated the judgment passed by Hon'ble High Court of Delhi as well as Hon'ble Apex Court i.e. Lalita Kumari vs. State of U.P., G.C. Nautiyal & Ors. vs. The State, Suresh Chand vs. State of M.P., Mahendro vs. The State of Punjab and Surender Singh Sobti vs. The State; that Ld. Trial Court has not appreciated that by way of agreement dated 28.11.2015, the accused persons succeeded to cheat the revisionist; that accused Nitin Sharma served with the legal notice but he did not bother to reply the same.
6. When a criminal complaint is filed before the Magistrate and upon perusal it is found that it discloses a cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such direction would stay his hand till report under section 173 Cr.P.C. is submitted by the police, on which further process of law would follow.
C.R. No.1/18 Ravinder Verma vs. The State Page 3/67. The law governing the choice to be exercised from the two options has been settled by Hon'ble High Court in M/s Skipper Beverages Pvt. Ltd. vs. State, 2001 IV AD (Delhi). In the said case it was held that a Magistrate must apply his mind before passing an order under Section 156(3) Cr. P.C. and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.
8. Ld. Trial Court after considering the law as settled by Hon'ble High Court in case of M/s Skipper Beverages Pvt. Ltd. vs. State (Supra) and the guidelines provided in Shubhkaran Luharuka & Anr. vs. State & Anr., Crl. M.C. No.612223/2005, observed that it does not appear to be a case where the police assistance is required for the purpose of collection of evidence. None of the evidence in the present case is beyond the reach of the complainant. In Lalita Kumari vs. Government of Uttar Pradesh &Otrs. (Supra), Hon'ble Apex court held that the registration of FIR is mandatory u/s 154 Cr.P.C., if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation. However, it cannot be said that there is any direction that a Magistrate is also duty bound to direct registration of FIR u/s 156 (3) Cr.P.C. without applying judicial mind on the facts of the complaint filed before him.
C.R. No.1/18 Ravinder Verma vs. The State Page 4/69. In an authority reported as Priyanka Srivastava and Another (Mrs.) vs. State of U.P. and Others 2015 IV AD (S.C.) 242, it was held by Hon'ble Supreme Court: "At this stage it is seemly to state that power under section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same".
10. Thus, on merits Ld. Magistrate had to consider the factual matrix and the need or necessity of police investigation in the case before. The main plea of the revisionist as mentioned in Para No.3 of the complaint is that accused No.1 i.e. Nitin Sharma could not complete the construction of floors upto extended time and ultimately till 30 th July 2016 i.e. date fixed for registration of sale document, the construction was not completed and when revisionist demanded his money, accused issued a post dated cheque which was dishonoured due to insufficient funds. It is not the case of the complainant that the intention of the accused persons was dishonest at the time of entering into the agreement. In State of Kerala Vs. A.Pareed Pillai and another (AIR 1973 SC 326), Hon'ble Apex Court ruled that to hold a person guilty of the offence of C.R. No.1/18 Ravinder Verma vs. The State Page 5/6 cheating, it has to be shown that his intention was dishonest at the time of making the promise and such a dishonest intention cannot be inferred from a mere fact that he could not subsequently fulfill the promise.
11. In the instant case, Ld. trial court has not dismissed the complaint but called upon the revisionist to bring persummoning evidence. The revisionist has all liberty to prove his complaint by leading evidence thereto and in case, any such need arises recourse can had to section 202 Cr.P.C. In view of aforesaid, this court is of the considered view that Ld. Trial Court was justified in declining the request of the complainant to issue direction to police u/s 156(3) of the Code. This court finds no procedural irregularity or illegality in the impugned order passed by Ld. Trial Court. No interference thus is called for by this court, in the result revision petition is dismissed.
12. Copy of this order be sent to Ld. Trial Court along with TCR. Revisionist is directed to appear before Ld. Trial Court on date already fixed.
Revision file be consigned to record room. SANJEEV
KUMAR
MALHOTRA
Digitally signed by SANJEEV
KUMAR MALHOTRA
Location: Karkardooma
Courts, Delhi
Date: 2018.02.20 04:52:03
+0530
Announced in the open court (Sanjeev Kumar Malhotra)
on 20.02.2018 ASJ/FTC/ECOURT
Shahdara/KKD/Delhi.
C.R. No.1/18 Ravinder Verma vs. The State Page 6/6