Sh.Ram Avtar Tyagi vs State (Nct) Of Delhi & Ors.
2009 Latest Caselaw 5216 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL.REV. P. NO.146/2008

                                         Reserved on : 17.7.2009
                                    Date of Decision : 15.12.2009

SH.RAM AVTAR TYAGI                              ......Petitioner
                              Through:    Mr. B. S. Chowdhary,
                                          Advocate.

                               Versus

STATE (NCT) OF DELHI & ORS.                 ......       Respondents
                       Through:           Mr.Pawan Bahl, APP for
                                          the State.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                         YES
2.     To be referred to the Reporter or not ?              NO
3.     Whether the judgment should be reported
       in the Digest ?                                      NO

V.K. SHALI, J.

1. This is a criminal revision filed by the petitioner against the

order dated 11.2.2008 passed by the learned MM, Delhi in

criminal complaint No.05/01 titled as Ram Avtar Tyagi

Vs. Narinder Singh & Ors. By virtue of the aforesaid

order, the learned Magistrate dismissed the application of

the petitioner u/s 156 (3) of Cr.P.C. for referring the matter

to the local police for the purpose of registration of an FIR

for an offence of breach of trust and for conduct of the

investigation.

2. Briefly stated the facts of the case are that present

petitioner filed a complaint against the respondents who

are five in number making allegations that they had

committed offences u/s 406/409/415/420/468/471/

506/ 120B IPC. It was alleged that on 14.8.1996, an

agreement to sell was executed by respondent no.1 and his

brother as a consequence of which both of them received a

sum of Rs.4 lacs in cash. It is alleged that the complainant

was to pay a balance amount within 18 months from the

date of agreement to sell and respondent no.1 was to

perfect the title of the petitioner. As a consequence of this

agreement, the respondent no.1 and his brother Rajender

Singh are alleged to have executed documents like General

Power of Attorney, Will, Receipt etc. in favour of the

complainant. It is further alleged that respondent no.1 in

conspiracy with respondent no.s 2 to 5 cancelled the

General Power of attorney on 8.1.97 to grab the land in

question. It is alleged that the complainant received a

notice from respondent no.1 on 10.10.2007 stating that

respondent no.1 has cancelled the power of attorney. On

the basis of these facts, the complainant has filed an

application for registration of the aforesaid offences against

all the five respondents.

3. The learned Magistrate on receipt of complaint called for

the report of the SHO of the concerned police station. The

SHO of P.S. Swaroop Nagar gave a report to the effect that

the aforesaid facts did not disclose the commission of any

cognizable offence and on the contrary, it was a pure case

of civil nature which was sought to be converted into a

criminal case.

4. The learned Magistrate has referred to the judgment of the

Apex Court titled as S.N.Palanitkar Vs. State of Bihar AIR

2001 SC 2960 in which it has been observed that every

breach of trust does not result in commission of a penal

offence of criminal breach of trust, unless and until there is

an evidence of a mental act of fraudulent misappropriation.

5. Based on the said judgment, the learned MM dismissed the

application of the petitioner for passing a direction to the

local police for registration of an FIR u/s 156(3) of the

Cr.P.C. and to investigate into the matter.

6. The complainant/petitioner feeling aggrieved by the said

rejection order has accordingly preferred the present

revision petition.

7. I have heard the learned counsel for the petitioner as well

as learned APP.

8. The contention of the learned counsel for the petitioner is

that the facts under a given set of situation may give rise to

a cause of action for initiating civil action as well as it may

result in commission of criminal offence.

9. In the instant case, it is alleged that the respondent no.1

firstly by agreeing to sell his piece of land to the petitioner

and having received a sum of Rs.4 lacs turned dishonest

and did not transfer the title of the land in question to the

petitioner but on the contrary, cancelled his power of

attorney which was obviously done at the instigation of

respondents 2 to 5 one of whom happens to be the brother

of respondent no.1. It is alleged by the petitioner that the

other respondents were witnesses to the various documents

executed between the parties.

10. The learned counsel for the petitioner has also relied upon

the following cases in support of his judgment

i) Kamaladevi Agarwal Vs. State of W.B. & Ors. (2002) 1 SCC 555

(ii) Indian Oil Corporation Vs. NEPC India Ltd. & Ors. (2006) 3 SCC (Cri.)188

(iii) Pratibha Vs. Rameshwari Devi & Ors.

(2007) 12 SCC 369

(iv) Vitoori Pradeep Kumar Vs. Kaisula Dharmaiah & Ors. (2002) 9 SCC 581

11. I have carefully considered the submission of the learned

counsel for the petitioner and gone through the authorities

relied upon by the learned counsel for the petitioner. So far

as the judgments which have been relied upon by the

learned counsel are concerned, there is no doubt about the

proposition of law which is enunciated by the Apex Court in

the said judgments. The Apex Court in the aforesaid

judgment has laid down two broad principles (i) that a

given set of circumstances may result in commission of a

criminal offence as well as give rise to a cause of action

which can be a basis for instituting a suit in a civil Court.

(ii) The second principle which has been enunciated is that

after registration of an FIR, the High Court in exercise of its

powers u/s 482 of Cr.P.C. should be loath to quash the

said proceedings.

12. The question which arises for consideration is whether

every breach of trust which may have allegedly taken place

can result in commission of a criminal offence or not. In

the instant case, there are allegations with regard not only

to the breach of trust but also an offence of cheating. One

of the important ingredients for an offence of criminal

breach of trust or for the offence of cheating is the

existence of dishonest intention in the mind of the accused

which happens to be respondent no.1 in the instant case at

the time when the transaction was entered. This dishonest

intention should be for the purpose of causing wrongful

loss to others or wrongful gain to himself.

13. In the instant case, it cannot be said from the complaint

that at the time when the amount of Rs.4 lacs was handed

over by the present petitioner to the respondent no.1

toward part payment of the entire sale consideration which

had been decided between the parties for sale and purchase

of a immovable property, the respondent no.1 had

dishonest intention. Therefore, the learned Magistrate was

right in not referring the matter to the local police u/s 156

(3) of the Cr.P.C. Apart from this, the reference to the local

police u/s 156(3) of the Cr.P.C. cannot be claimed by a

party as a matter of right. Section 190 of Cr.P.C. lays down

three different modes in which criminal justice machinery

can be put into motion. These three methods are as under:

a) by filing a complaint

b) by way of a police report.

c) Suo moto cognizance by the judicial officer.

14. In the instant case, the petitioner complainant has chosen

to file a private complaint before the learned Magistrate and

it seems that along with the complaint, he also filed an

application u/s 156 (3) of Cr.P.C. It was not incumbent on

the part of the learned Magistrate to have referred the

matter to the local police for registration of an FIR. It is

common knowledge that the effort of every litigant even in

civil dispute is to make a complaint and then have the

same referred to the local police for registration of an FIR

which if registered would entail serious threat of arrest of

the opposite side and consequently force him to settle the

matter. This gross misuse of the processes of law if not

called abuse is to be controlled by the Magistrate if not

stopped by him completely. It is this discretion which has

been conferred by the Legislature on the learned magistrate

to be exercised judicially. This discretion should not be

lightly interfered by the superior courts unless and until

there is something seriously amiss.

15. The learned Magistrate in the instant case by a well

reasoned order has chosen to dismiss the said application

and that does not mean that the petitioner /complainant is

foreclosed from adducing evidence before the learned

Magistrate and keeping the statements recorded so as to

permit the Learned Trial Magistrate to hold an inquiry into

the matter. After the inquiry, the learned Magistrate has

an option to proceed either u/s 203 of the Cr.P.C. and

dismiss the complaint or alternatively in case the

complainant is able to make out a prima facie case issue

the notice to the accused persons which happens to be the

respondent in the instant case.

16. I do not find that there is any illegality, infirmity or

incorrectness in the impugned order which has been

passed by the learned Trial Judge in dismissing the

application of the petitioner for registration of an FIR u/s

156(3) of Cr.P.C. inasmuch as it is essentially for the

learned Magistrate to form an opinion and exercise the

discretion in a judicial manner. Merely because this Court

is a superior Court, it does not mean that if the Court holds

a different view, then it is entitled to substitute its views in

place of the view taken by the learned Magistrate.

17. For the above reasons, I am of the opinion that the petition

which has been filed by the petitioner is totally

misconceived and accordingly, the same is dismissed.

V.K. SHALI, J.

DECEMBER 15, 2009 RN