Shri Raj Singh vs State
2009 Latest Caselaw 5226 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL.M.C. NO.806/2008

                                         Reserved on : 23.9.2009
                                    Date of Decision : 15.12.2009

SHRI RAJ SINGH                                   ......Petitioner
                                Through:   Mr.     Lalit  Kumar,
                                           Advocate.

                                 Versus

STATE                                        ...... Respondent
                                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 petition filed by the petitioner u/s 482 of Cr.P.C.

for setting aside the order dated 14.5.2007 passed by the

learned Magistrate in a case bearing No.89/96 titled State

Vs. Sushil Gupta and summoning the present petitioner

u/s 319 of the Cr.P.C. for facing the trial along with co

accused Sushil Kumar Gupta for an offence u/s 420 IPC.

The petitioner has also challenged the subsequent order

dated 31.10.2007 by virtue of which the learned Magistrate

has issued non-bailable warrants against the present

petitioner.

2. Briefly stated the facts leading to the filing of the present

case are that a complaint was lodged for an offence of

cheating, criminal misappropriation and criminal

intimidation by one Hazari Lal against one Sushil Kumar

Gupta and Raj Singh, the present petitioner. It was alleged

in the said complaint that in the beginning of October,

1994, the present petitioner Raj Singh and Sushil Kumar

Gupta had offered to sell a plot of 250 sq. yds, situated at

Hauz Khas Village to the respondent/complainant. It is

alleged to have been claimed that the said plot belonged to

the present petitioner. It is alleged that the total sale

consideration for which the plot was to be sold to the

complaintant was fixed at Rs.43,75,000/- out of which an

advance of Rs.5 lacs is purported to have been given on

15.10.94 and another sum of Rs.5,50,000/- is purported to

have been given on 17.10.94. Both these amounts were

duly acknowledged by Sh. Sushil Kumar Gupta.

3. It is further alleged that in the meantime, the petitioner and

Sushil Kumar Gupta is alleged to have offered another plot

of land situated at Gujjar Diary, Gautam Nagar for a total

sale consideration of Rs.7.5 lacs to the complainant out of

which an amount of Rs.3.65 lacs is alleged to have been

paid to him. The case of the complainant is that after he

was made to part with the amount as stated above, these

two persons had actually shown the forged title deeds of a

piece of land at Hauz Khas and both these persons are

stated to have been cheated by the complainant. On the

basis of this, an FIR u/s 420/468/471 IPC was registered

and the matter was investigated.

4. During the pendency of the investigation, the complainant

is alleged to have given an affidavit as well as in writing to

the local police that he has since settled all his

differences/disputes with the present petitioner and

therefore, action may not be taken against him. A

photocopy of the affidavit in this regard has also been

placed on record.

5. After investigation into the matter, the local police of P.S.

Hauz Khas is purported to have filed a charge sheet only

against Sushil Gupta which is presently stated to be

pending in the Court for trial. It is important to note that

the respondent /State did not file a charge sheet against

the petitioner as the complainant himself gave in writing

that he has settled the matter with Raj Singh.

6. After framing the charge u/s 420 of IPC against Sushil

Gupta, Hazari Lal, complainant appeared as PW-1 and

made a statement that both the accused persons namely

Raj Singh and Sushil Kumar Gupta had represented to the

petitioner and that Raj Singh was the owner of the larger

chunk of land a part of which was being sold to him and he

was made to part with cash. Thereafter, Sushil Gupta and

Raj Singh made representation to the petitioner and agreed

to sell another piece of land for consideration and again

made him part with the cash. Later on both of them did

not transfer the title of the property to the petitioner. A

compromise seem to have been brought about by refunding

60% of the amount transferred to the complainant.

7. It is on the basis of the above-statement that the Court has

considered that there is sufficient evidence of complicity of

present petitioner and chosen to summon him to face the

trial.

8. After recording the statement of PW-1 on 10.11.2003, the

learned Trial Magistrate issued summons to the present

petitioner so as to try him jointly along with the accused

Sushil Kumar Gupta.

9. The petitioner feeling aggrieved by the said order

summoning him u/s 319 Cr.P.C has assailed the same

before this Court.

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

as the complainant and the learned APP for the State and

also perused the record.

11. The main contention of the learned counsel for the

petitioner is to the effect that firstly with the power u/s 319

of the Cr.P.C. to be exercised sparingly and in Michael

Machado & Anr. Vs. CBI AIR 2000 SC 1127 the Apex

Court while dealing with the said power has observed that

the accused be summoned only if there is a likelihood that

the accused so summoned would be convicted. In other

words, it has been contended that the nature of evidence

against the person, who is sought to be summoned u/s 319

Cr.P.C should be of such a high degree that it will result in

his conviction and it is not a mere suspicion which should

warrant the exercise of this extraordinary power by the

learned Magistrate.

12. It was contended that based on the aforesaid parameter,

there is no such evidence which even if it is taken on its

face value is of such a nature that it will result in

conviction of the present petitioner. The learned counsel

for the petitioner in support of his contention has also

relied upon case titled Sarabjit Singh & Anr. Vs. State of

Punjab & Anr. JT 2009 (8) SC 73.

13. The second contention urged by the learned counsel for

the petitioner was that in order to make out a case of a

cheating or breach of trust there should be dishonest

intention while as there is no evidence in this regard. It

was urged that this was essentially a civil transaction

which did not warrant taking of a criminal action.

14. I have heard the learned APP for the State who has tried to

justify the order of summoning.

15. I have carefully considered the respectful submissions of

the learned counsel for the parties and gone through the

record.

16. There is no dispute about the fact that the Apex Court has

settled the controversy by interpreting Section 319 of

Cr.P.C. by observing that the quantum of evidence which is

adduced against a person warranting his summoning u/s

319 of Cr.P.C. should be of such a nature that in all

likelihood it would result in his conviction. This is the view

taken by the Apex Court in Michael Machado's case

(supra). I feel that Apex Court while interpreting Section

319 Cr.P.C. and talking about the likelihood of conviction

was trying to impress on the Courts below exercising the

power under Section 319 to say that this power should be

exercised very sparingly and not on the drop of a hat when

the name of a person simply surfaces in the evidence.

17. The method of investigation into the matter which is

adopted by the local police is curious in the instant case.

Although originally the complainant had lodged a report

both against Sushil Kumar Gupta and Raj Singh but

during the pendency of investigation, it is the complainant

Hazari Lal who had given in writing to the local police that

he does not want any action to be taken against Raj Singh

because he has settled the matter with Raj Singh. The IO

should have mentioned about this fact in the charge sheet

rather than omitting to prosecute the petitioner or it should

have filed cancellation report qua him. But this was not

done. The IO does not seem to have acted in an impartial

manner.

18. However, when PW-1 Hazari Lal testified in the matter, he

testified against both Sushil Kumar Gupta and Raj Singh.

It is Raj Singh who has been shown to be the owner of the

property not only with regard to the property in Hauz Khas

but also the other property. Witness has stated that it was

he along with Sushil Gupta who was paid the money. If

these are the facts, then there is inescapable conclusion

that it was a case of cheating is not breach of trust. At this

point, only one star witness who if the complainant is

examined and obviously his testimony if it is taken on its

face value unless it is demolished in cross examination is

going in all likelihood to satisfy the ingredients of the

offence of cheating or the breach of trust and therefore it

cannot be said that there is any illegality or impropriety in

the exercise of discretion by the learned Trial Judge in

summoning the petitioner to face trial with co-accused,

Sushil kumar. I do not think that there is any violation or

non-observance of the law laid down in Michael Machado's

case. Similarly, the judgment in Sarabjit singh's case JT

2009 (8) SC 73 also does not come to the rescue of the

petitioner. The investigating agency has not found the

petitioner to be innocent during investigation. On the

contrary, though there was evidence against him, but it

seems that they refrained from taking action on the writing

of the complainant himself who might be thinking that he

will be able to retrieve his full money which he failed to do.

18. So far as the second plea of the learned counsel for the

petitioner is concerned, although it was raised but it was

not pressed. In any case, the same fact situation can result

in a civil wrong as well as give rise to commission of a

crime. The judgements which are referred to in the petition

are essentially dealing with the question of quashing of the

FIR on the ground that it constitutes essentially a civil

dispute between the parties while this is not the point

urged. The grievance of the petitioner emanates essentially

from the fact that the learned Trial Court has summoned

him by invoking Section 319 of the Cr.P.C.

19. For the reasons mentioned above, I am of the considered

opinion that there is no impropriety, illegality or

incorrectness in the impugned order and accordingly the

petition is dismissed.

V.K. SHALI, J.

DECEMBER 15, 2009 RN