Gurcharan Singh vs Suresh Kumar Jain And Others
1987 Latest Caselaw 94 Del

ORDER

1. The complainant, Major Gurcharan Singh Sodhi (Retd.) is the owner of house No. C-80, defense Colony, New Delhi. The construction of this house was completed in the year 1962. On account of his military service at various family and non-family stations, he never occupied his house. He retired from the military service on 1-7-1970. After his retirement, he went to Madhya Pradesh and engaged himself for transport purposes in the mining area.

2. In July, 1979, respondent No. 1, Shri Suresh Kumar Jain approached the complainant and offered to take his house on rent for a limited period of three years at at rental of Rs. 1300/- p.m. besides Rs. 100/- per month as hire charges for fittings and furniture. A limited tenancy under Section 21 of the Delhi Rent Control Act was created by the order of Shri J. D. Kapoor, Rent Controller, Delhi on 4-7-1979. This limited tenancy was to expire on 3-7-1982.

3. During the course of the tenancy, the complainant had instructed Shri Suresh Kumar Jain to deposit the amount of Rs. 1400/- per month in his Savings Bank account with the Bank of India, Rajindra Place, New Delhi. Those instructions were duly complied with. It is the case of the complainant that by letter dated 29-6-1982, he informed Shri Suresh Kumar Jain that the tenancy period would expire on 3-7-1982 and that he should vacate and hand over the possession of the house to him on or before the date fixed. Shri Suresh Kumar Jain failed to hand over the vacant possession of the house and after the fixed period, the complainant filed an application under Section 21(5) of the Delhi Rent Control Act, 1958 in the court of the Rent Controller, Delhi. Shri Jain contested the application. However, on his request, he was granted time till 30-6-85 to vacate the house. To this effect, he gave an undertaking to the court and also agreed not to transfer the premises in question to anybody else.

4. As per the complainant, after making the statement in Court on 23-12-83, Shri Suresh Kumar Jain turned dishonest and wanted to create such type of false excuse to hold on to the premises even after 30-6-85. He contrived of a plan to create a false evidence of a fresh tenancy inasmuch as he agreed to and created between the complainant and his father Shri Des Raj Jain a new tenancy at an enhanced rate of Rs. 2000/- per mensem of which he had no knowledge. On 1-3-84, the complainant contacted Shri Suresh Kumar Jain and asked for the pay-in-slip for the payment of rent for the months from December 1983 to March, 1984, Shri Suresh Kumar Jain handed over two pay-in-slips for the months of December 1983 and January 1984, each for a sum of Rs. 1400/- and agreed to pay the remaining two pay-in-slips on the next day which were lying at his office. Those pay-in-slips were collected by the complainant from the office but later, on verification, he found a cheque for Rs. 2000/- bearing the signature of Des Raj Jain. On 6-3-1984, the complainant went to the bank and there he discovered that on 11-2-84, an amount of Rs. 2000/- stood credited to his account. Thereafter, he closed his bank account with a view to stop the respondents from depositing further amount.

5. On these facts, Gurcharan Singh Sodhi lodged a complaint to the Home Secretary, Delhi Administration, praying for the registration of a case under Section 420 read with S. 34, I.P.C. against Shri Suresh Kumar Jain and his father Shri Des Raj Jain. From the perusal of the record, I find that this complaint was forwarded to Police Station Cannaught Place and a case FIR No. 630, under S. 420, I.P.C. was registered and marked to Roshan Lal, Sub-Inspector for investigation.

6. The Police immediately swung into action and numerous documents concerning this case including the lease deed, the undertaking given by Suresh Kumar Jain as well as the order of the Addl. Rent Controller, the notice given by the complainant and the reply received through the counsel for the respondent, were taken into possession. Statements of number of witnesses were also recorded after the completion of the investigation and challan under Section 173, Cr.P.C. was filed in court of Shri K. S. Khurana, Metropolitan Magistrate, New Delhi. The learned Metropolitan Magistrate took cognisance of the case and issued summons to the accused persons for their appearance. The accused were supplied the copies of the documents as required under Section 107, Cr.P.C. The learned lower court on consideration of the material before him and after hearing argument of the learned counsel for the accused and A.P.P. for the State, came to the conclusion that prima facie no case against any of the accused persons under Section 420, I.P.C. read with S. 120-B, I.P.C. is made out. As such both the accused persons were discharged and their bail bonds and surety bonds were cancelled. It is against this order the complainant has filed the present revision petition.

7. The first and the foremost contention of the learned counsel for the petitioner is that in case the learned Metropolitan Magistrate to whom a report has been forwarded under sub-section (2) of S. 173 decides not to take cognizance of the offence or to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate should have given notice to the complainant and provide him an opportunity to be heard at the time of the consideration of the report. This mandatory requirement as per the Judgment reported as Bhagwat Singh v. Commr. of Police, , has not been complied with. The order of discharge under such circumstances is liable to be quashed. His further submission is that the learned Metropolitan Magistrate has not applied his mind to the evidence which clearly brings the case of the complainant within the four corners of S. 420, read with S. 120-B of the Penal Code against the accused persons. None of those arguments are to the liking of the counsel for the respondents who points out that even if the contents of the complaint are taken on their face value, it is a case of civil nature for which the complainant has already initiated action before the Rent Controller, Delhi. The impugned order in these circumstances does not call for any interference.

8. I have given my careful consideration to the rival contentions of the parties. In order to bring the case within the four corners of S. 420, I.P.C., the complainant is required to prima facie cross the hurdle of 'cheating' as defined in S. 415, I.P.C. It has to be shown by the prosecution that there was some inducement on the part of the accused persons and that the said inducement was made fraudulently or dishonestly with a view to deceive the complainant. It has also to be shown by the prosecution that due to deception practiced by the accused persons, the person so deceived had delivered the property to the accused persons or had given consent that the accused person shall retain that property. The learned lower Court after due deliberation has come to the conclusion that none of the ingredients of cheating are applicable to the facts of the case with which I fully concur. There is no material on record to show that the accused persons had induced the complainant with a fraudulent or dishonest intention in accepting the rent. The mode of payment of rent agreed to between the parties was by means of deposit of cheques in the account of the complainant. This mode has always been adhered to.

9. The only question that required going into is as to whether the deposit of a sum of Rs. 2000/- in the account of the complainant will create a new tenancy in favor of Des Raj or not. The complainant does not admit Des Raj Jain as his tenant and for that purpose he has already moved the Court of the Rent Controller, Delhi. This very question of creation of new tenancy is now under consideration of the competent Court. Besides that, the complainant has also filled a petition for initiation of contempt proceedings against the accused persons which is still pending. These are the matters to be decided by the Rent Controller but certainly the essential ingredients of criminal conspiracy and cheating are missing. It is purely a civil dispute and is likely to be settled by a Court of competent jurisdiction in the near future.

10. On the legal aspect also, the complainant, to my mind, is not entitled to a notice after the Metropolitan Magistrate has taken cognisance of the report under Section 173, Cr.P.C. The judgment of the Supreme Court relied upon by the learned counsel for her petitioner, , is quite distinguishable from the facts of the present case. The ratio of the above said judgment is that after the police report is filed and the learned Magistrate is not inclined to take cognisance, he is required to issue notice to the informant and/or complainant and provide him an opportunity of being heard at the time of the consideration of the report. But once the learned Metropolitan Magistrate takes cognizance of the offence, issues process to the respondent in terms of S. 204, Cr.P.C., and subsequently, under S. 207, Cr.P.C. supplies the copies of the relevant documents to the accused persons, then the responsibility to pursue the complaint rests on the State. In such like situations, the informant cannot be said to have been prejudicially affected by the order of discharge if due opportunity of hearing had been afforded to the State to pursue the complaint. In fact, such a distinction has been drawn in the aforesaid judgment itself. Para No. 4 of the Judgment is relevant on this aspect. It reads as under :-

"Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of the three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of S. 156, wherein either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed."

The above observations of the Supreme Court draw a fine distinction in the cases where the Magistrate at the first instance decides not to take cognizance and intends to discharge the accused and the cases where the cognizance of the offence as mentioned in the report has been taken and then an order of discharge has been passed. The present case fairly and squarely falls within the second category.

11. Assuming for the sake of arguments that the Metropolitan Magistrate ought to have given notice to the petitioner before the order of discharge and have given the petitioner an opportunity of hearing, the said procedural irregularity, if any, stands cured after the petitioners were heard on merits of the case at length by this Court. Even on merits, I am inclined to take confirm the view of the learned Metropolitan Magistrate that the dispute between the parties is a civil one and prima facie no offence, as alleged, is made out. I see no force in the petition and the same is hereby dismissed.

12. Petition dismissed.