Delhi District Court
Hon'Ble High Court In M/S. Skipper ... vs . State, Cited on 5 May, 2016
Gurdeep Kaur and others v. Sakshi Kathuria and others CC No. 08/1/16 PS Moti Nagar 05.05.2016 Present : None. 1.
Brief facts of the case are that complainant no. 2 and 3 were the owner and in possession of property number B-533 situated in the area of Basai Dara Pur. It is stated that the accused approached the complainants to purchase the said property and they entered into an agreement to sell for consideration of Rs. 38,50,000/-. However, the accused only paid a sum o fRs. 13,50,000/-. The accused got the sale deed executed vide sale deed dated 21.10.2013 due to the influence. It is stated that at the time of execution of the sale deed accused persons pressurized the complainant party to accept the lessor amount. It is further stated that thereafter, a rent agreement was executed between the same parties which was also executed by the complainant party as it was represented by the accused persons that the same was mere formality. Thereafter, the memorandum of understanding was also executed between the parties regarding the return of the property. After execution of the said memorandum of understanding accused Sakshi Kathuria filed a civil case against the complainant. On that the complaint was made to the police however, no action was taken by the police officials. On these facts it is argued that accused persons have committed offence u/s 209/406/420/467/468/471/120-B/34 IPC.
2. Reply was sought from the SHO concerned wherein it is reported that matter is of civil nature. No police action required. It is reported that no cognizable offence was made out, hence, no FIR was registered.
3. It is settled law that U/s 156 (3) Code of Criminal Procedure, a magistrate has power to direct the police to register a case and investigate the matter, but this power is to be exercised judiciously and not in a technical manner. In the matters where the complainant has in his possession all the evidence required to CC no. 8/1/16 PS Moti Nagar Page 1 of 5 prove his allegations, there should be no need to pass an order U/s 156 Code of Criminal Procedure. In this regard, reliance is placed on the decision of our own Hon'ble High Court in M/s. SKIPPER BEVERAGES PVT. LTD. Vs. STATE, Cited as 2001 IV AD (Delhi), wherein it has been held as under:
"It is true that Section 156(3) of the Code empowers the Magistrate to direct the police to register a case and initiate investigation but his power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very 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. This discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is 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 interest of justice demand that the police should step in the help the complainant".
4. Hon'ble Supreme Court of India has laid down guidelines to decide applications u/s 156(3) Cr.P.C. in a case titled as Priyanka Srivastava and Another v. State of U.P. and Others (CRIMINAL APPEAL NO.781 OF 2012 ) DOD. 19.03.15, wherein it was held "26. 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.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported CC no. 8/1/16 PS Moti Nagar Page 2 of 5 by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial CC no. 8/1/16 PS Moti Nagar Page 3 of 5 offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR".
5. To hold a person guilty of cheating, it is necessary to show that he had fraudulent and dishonest intention at the time of making the promise. From his mere failure to keep up the promise subsequently, a culpable intention right at the beginning, that is, when he made the promise cannot be presumed (reliance being placed on the judgment of Hon'ble Delhi High Court titled as "Subhkaran Laharuka & Anr. Vs. State & Anr"). Thus the element of mensrea is totally missing in the present case. In Indian Oil Corpn. v. NEPC India Ltd. (2006) 6 SCC736 , it was observed by Hon'ble Supreme Court:-
"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
6. The dispute appears to be civil in nature. All the evidences are in the reach of complainant. From the facts of the case, the undersigned is of the opinion that the assistance of investigating agency is not required in the present case for the collection of evidence. The facts and circumstances of the present case are such that the complainant is in possession of entire evidence, further he can summon the witnesses. Thus it does not appear to be a case where the police assistance is required for the purpose of collection of evidence. Further if in future any need CC no. 8/1/16 PS Moti Nagar Page 4 of 5 would arise police assistance can be taken U/s 202 Cr.P.C. None of the evidence in the present case is beyond the reach of the complainant. Accordingly, the present application u/s 156 (3) of Code of Criminal is dismissed. In the facts of the present case, the undersigned deem it appropriate that the complainant be directed to prove the allegations made by her on the oath.
7. Therefore, the undersigned takes cognizance of the complaint and complainant is called upon to bring pre-summoning evidence on 18.07.2016.
(GAJENDER SINGH NAGAR) MM-04:West:THC:Delhi:05.05.2016.
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