Y. Sharma vs State (Govt. Of Nct Of Delhi) & ...
2009 Latest Caselaw 1059 Del

*              HIGH COURT OF DELHI : NEW DELHI



              Judgment reserved on: March 27, 2009

              Judgment delivered on: March 31, 2009


+             (1)      Crl. M.C. No. 8006 of 2006


%      Y. Sharma                                          ....     Petitioner

                                   Through: Mr. A.K. Vali and Mr. Rakesh
                                   Tikku, Advocates

                                     Versus

       State (Govt. of NCT of Delhi) & Others.. Respondents

                                   Through:    Mr. Amit Sharma,
                                   Additional Public Prosecutor for
                                   respondent Nos. 1 to 3.
                                   Mr. Bankim Kulshrestha, Mr. Kishan
                                   Kumar & Mr. Deepak Vohra, Advocates
                                   for respondent No.4.


             (2)      Crl. M.C. No. 8370 of 2006


%      Satish Kumar Goel                                       ....Petitioner

                                   Through:         Mr. Nishit, Advocate

                             Versus

       State (Govt. of NCT of Delhi) & Others..... Respondent

                                   Through:    Mr. Amit Sharma,
                                   Additional Public Prosecutor for
                                   respondent Nos. 1 to 3.
                                   Mr. Bankim Kulshrestha, Mr. Kishan
                                   Kumar & Mr. Deepak Vohra, Advocates
                                   for respondent No.4.


Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006                       Page 1
 +                     (3)    Crl. M.C. No. 12 of 2007

%      Heman Kumar Gupta                            ...    Petitioner

                            Through:   Mr. Sidharth Luthra, Senior
                            Advocate with Ms. Smriti Sinha, Advocate

                        Versus
       State ( Govt. of NCT of Delhi) & Others.....Respondent
                            Through:    Mr. Amit Sharma,
                            Additional Public Prosecutor for
                            respondent Nos. 1 to 3.
                            Mr. Bankim Kulshrestha, Mr. Kishan
                            Kumar & Mr. Deepak Vohra, Advocates
                            for respondent No.2.


                      (4)    Crl. M.C. No. 289 of 2007

%      K.K. Gupta                                   ....     Petitioner

                            Through:        Mr. Chetan Sharma, Senior
                                            Advocate with Mr. Rajiv Ranjan
                                            Pandey, Advocate

                                     Versus

       State (Govt. of NCT of Delhi) & Others ... Respondents
                       Through:    Mr. Amit Sharma, Additional
                                   Public Prosecutor for
                                   respondent Nos. 1 to 3.
                                   Mr. Bankim Kulshrestha, Mr.
                                   Kishan Kumar & Mr. Deepak
                                   Vohra, Advocates for
                                   respondent No.4.

COARM

Hon'ble Mr. Justice Sunil Gaur


1.   Whether the Reporters of local papers may be allowed to
see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
 in the Digest?



Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006                 Page 2
 SUNIL GAUR, J.

1) The question raised in the above captioned four petitions is

that whether a separate police case can be registered at the

instance of an accused in the proceedings under Section 138 of

the Negotiable Instruments Act, against the petitioners, who are

the complainants in the above said proceedings. The common

order impugned in all these four petitions is of 6th November,

2006, passed on the criminal complaint of respondent No.4,

under Sections 420/406 of the IPC. Vide impugned order, a

direction was issued by the concerned Metropolitan Magistrate to

the local police to register an FIR under Sections 420/406 of the

IPC on the criminal complaint of respondent No.4 herein and

accordingly, in pursuance to the impugned order, FIR No. 414 of

2006, under Section 406/420 of the IPC was registered at Police

Station Greater Kailash, Part-I, New Delhi on 18th November,

2006.

2) In these petitions, not only quashing of the aforesaid

impugned order, but also of the complaint No. 3030-1/2006, on

the basis of which FIR No. 414 of 2006, under Sections 420/406

of the IPC was registered, is sought. According to the petitioners,

they were the Directors of M/S Unity Fincap Pvt. Ltd. which was

member of National Stock Exchange and it used to deal in

purchase and sale of shares. Mr. Diwakar Vaish- respondent

No.4, was the Consultant of this company in the year 2003-2004

and was a Chartered Accountant and this company had incurred

losses during the above said period and to clear his liability,

respondent No.4 had issued a cheque in the sum of Rupees

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 3 1,22,29,428/-( Rupees twelve crores two lacs twenty nine

thousand and twenty eight only) in February, 2005 and another

cheque of Rupees 2,00,90,000/-( Rupees two crores and ninety

thousand only) on 25th October, 2005.

3) Upon dishonouring of the above referred two cheques,

criminal complaints under Section 138 of the Negotiable

Instruments Act were filed by the petitioners and others, against

respondent No.4 herein, and despite bailable warrants issued

against respondent No.4, he did not appear in the aforesaid

criminal cases and instead thereof, he filed a criminal complaint

against the petitioners (who are the complainants of the

proceedings under Section 138 of the Negotiable Instruments

Act) and the offences alleged against the petitioners were of

cheating etc..

4) Respondent No.4's complaint, Annexure P-1, along with the

prayer made under Section 156 (3) of the Cr.P.C., was

entertained by the learned Metropolitan Magistrate, who vide

impugned order of 6th November, 2006, had directed the

registration of the FIR for the offences under Sections 420/406 of

the IPC against the present petitioners. However, hardly any

police investigation could be carried out, as aforesaid impugned

order was promptly stayed by this court in these petitions.

5) Admittedly, respondent No.4 had filed his complaint

against the petitioners, after the issuance of bailable warrants

against him in the proceedings under Section 138 of the

Negotiable Instruments Act. Therefore, it is contended on behalf

of the present petitioners that the present proceedings against

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 4 the petitioners have been taken out to circumvent the

proceedings against respondent No.4 under Section 138 of the

Negotiable Instruments Act. It has been contended on behalf of

the petitioners that respondent No.4's complaint, at best, is his

defence to the proceedings under Section 138 of the Negotiable

Instruments Act, initiated against him by the petitioners.

6) The stand of respondent No.4 is of handing over blank

signed cheques to K.K. Gupta- one of the petitioners herein, and

according to respondent No.4, these cheques were for the

balance consideration which was to be deposited after

transferring of the equity shares, in his name and the allegations

of respondent No.4 are that instead of transferring the shares of

M/S Unity Fincap Pvt. Ltd., worth Rupees thirty lacs only, the

amount in these cheques has been arbitrarily filled up without

any pre-existing liability.

7) Accepting the aforesaid version of respondent no.4 to be

correct, trial court in the impugned order has observed as

under:-

"The intention to cheat was seen from the very beginning as the accused person had not only mislead but to put illegal pressure on the complainant had forged the record and used the cheques in question, given in question, for the purpose which was not meant for them".

8) Entertaining of a criminal complaint is one thing and of

issuing direction to the local police to register an FIR for the

offence of cheating, is another thing. In the impugned order, no

reasons are given as to why there was a need for a police

investigation on the complaint of respondent No.4 and why it

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 5 could not be tried as a criminal complaint case, especially so

when respondent no.4 is an accused in the criminal proceedings

under Section 138 of the Negotiable Instruments Act launched

against him by the petitioners herein. Even during the course of

the arguments, learned counsel for respondent No.4, could not

justify a police investigation, except that, it was stated that there

are other blank cheques also which were handed over to K.K.

Gupta, one of the petitioners herein, and petitioner- Y.Sharma,

himself has got a FIR registered against his co-petitioner- K.K.

Gupta and all this requires a serious police investigation to arrive

at the truth.

9) During the course of the arguments, both the sides have

advanced their respective submissions which are touching on

the merits of their pleas and counter pleas. For instance, it is

stated that respondent No.4 is a Chartered Accountant and he is

presumed to know that in a private limited company, no equity

shares can be sold without the permission of Board of Directors

of the company and how can he issue blank cheques without

their being any Memorandum of Understanding and signing of

the Transfer Deed. It is pointed out that respondent No.4 had

not requested his bankers to stop the payment of these cheques

and the present criminal proceedings initiated by respondent No.

4 against the present petitioners, is a counter blast and is a

afterthought story which cannot be accepted on the face of it

and therefore, the impugned order and the subsequent

proceedings arising therefrom, are rendered unsustainable.

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 6

10) Learned Counsel for respondent No.4 has tried to justify the

impugned order by contending that the handwriting on the

cheques in question and the counterfoil of the cheque book has

to be ascertained and for that purpose police investigation is

certainly required and out of the five blank cheques, only one

has been forged and the remaining four blank cheques are to be

recovered from the petitioner/accused persons and this can be

done by the police only. It is pointed out that in respect of one of

the cheques, the record slip is written by petitioner - K.K Gupta

in his own handwriting and the same is for an amount of Rupees

five lacs only and how this amount can become Rupees 1.22

crores. Reliance has been placed upon the decision of the Apex

Court, reported in 1996 (1) SCC 542 to contend that even if

the complainant is guilty of malafide, it would be no ground for

quashing of the prosecution and the records of the company in

question have to be seized which can be done only in police

investigation. Furthermore, it is contended that the questions

raised herein are mixed questions on facts and law and are not

required to be gone into in these proceedings. Lastly, it is

contended that it is not a fit case where powers under Section

482 of the Cr. P.C. could be used for stifling a legitimate

investigation and prosecution of the petitioners. However, no

response to these petitions has been given by respondent No.4.

11) The decisions reported in 2007 (1) JCC 236; 2007 (1) JCC

NI 128; 2007 (1) JCC 877; JT SC 172 (2006); 2006 2 CRIMES 130

SC; 2006 (3) SCC (SC) 155; 2005 Crl. LJ 2028; 2004 6 SCALE 281;

JT 2004 (7) SC 488; JT 2004 9 SC 486; AIR 2003 SC 4140; AIR

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 7 2003 SC 2612; 2002 1 SCC 714; 2001 (V) AD SC 260; 2001 AD

SC 109; JT 2001 6 SC 631; JT 2001 5 SC 551; AIR 2000 SC 3101;

1999 8 SCC 686; 1999 8 SCC 728; 1997 SCC Cri 1073; AIR 1996

SC 2208; 1996 7 SCC 705; 61 (1996) DLT 633; JT 1995 (4) SC

124; 1995 6 SCC 194; (1994) 2 SCC 227; AIR 1993 SC 1082; AIR

1993 SC 892; AIR 1992 SC 604; AIR 1991 SC 1260; AIR 1990 SC

494; AIR 1988 SC 709; AIR 1983 SC 67; AIR 1982 SC 949; AIR

1977 SC 1489; AIR 1963 SC 447; AIR 1955 SC 196; 2008 (1) JCC

(NI) 42; AIR 2000 SC 27; AIR 2000 SC 27; JT 2008 (13) SC 455

and 2009(1) JCC 260 were referred to by the parties during the

course of the hearing of these petitions.

12) Efforts made to mediate upon this matter by Lok Adalat did

not prove fruitful. To test the counter blast theory, attention of

Counsel for the respondent No.4 was withdrawn to Ground-B of

the Miscellaneous Application No. 14564/2006 to the effect that

"applicant submitted before the learned ASJ that he is not only

willing but also ready to pay the alleged cheque amount

provided petitioner submit the accounts before the Courts,

wherein the liability, as claimed in the complaint under Section

138 of the Negotiable Instruments Act, 1881, is reflected against

the applicant". The response of Counsel for respondent No.4 was

that it was just for reference and no willingness was shown for

reconciliation of the accounts.

13) After having deliberated upon the rival submissions of the

parties and upon going through the record of this case and the

decisions cited, I find that in a recent decision reported in " M/S

Eicher Tractor Ltd. & Others V. Harihar Singh & Another" 2009

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 8 (1) JCC 260, the Apex Court found subsequent initiation of

criminal proceedings to be counter blast to earlier prosecution

and subsequent/ later prosecution was quashed but strictly

speaking, there are no precedents in criminal law. However, the

citation of the Apex Court, which is closest to the facts of this

case, is of "Sunil Kumar Vs. Escorts Yama Motors Ltd. and

others" (1999) 8 SCC 468 wherein lodging of the FIR for the

offence of cheating etc. by the defaulters in criminal proceedings

under Section 138 of the Negotiable Instruments Act, on the plea

of blank cheques, was held to be an abuse of the process of the

court and it was found that the subsequent FIR was lodged to

pre-empt the proceedings under Section 138 of the Negotiable

Instruments Act. The pertinent observations made in this citation

are as under:-

"Bearing in mind the law laid down by this court in the case referred to earlier and the contentions raised by the learned counsel appearing for the parties and on examining the allegations made in the FIR, we are persuaded to accept the submissions of Mr. H.N. Salve and Mr. Arun Jaitley, appearing for the respondent that the necessary ingredients of the offence of cheating or criminal breach of trust have not been made out and on the other hand the attendant circumstances indicate that the FIR was lodged to pre-empt the filing of the criminal complaint against the informant under Section 138 of the Negotiable Instruments Act. The High Court, therefore, was well within its power in quashing the FIR as otherwise it would tantamount to an abuse of the process of the court. We, therefore, see no jurisdiction for our interference with the impugned decisions of the High Court in exercise of power under Article 136 of the Constitution".

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 9

14) This court in the case of "Skippers Beverages Pvt. Ltd. V.

State" 92 (2001) Delhi Law Times 217 has taken note of the

growing tendency of asking the police to investigate case under

Section 156 (3) of the Cr.P.C. and has asked the Magistrates not

to pass orders mechanically. It was held that the Magistrate

should act under Section 156(3) of the Cr.P.C. only in those case

where the assistance of the police is essentially required and the

Magistrate is of the considered view that the complainant on his

own may not be in a position to collect and produce evidence in

support of his case.

15) In the instant case, no such satisfaction, as noted above, is

recorded in the impugned order nor it has been shown before

this court by respondent No.4 as to how police investigation on

his complaint, is essential for just decision of the case.

16) There is no dispute with the proposition that before the

statutory presumption under Section 139 of the Negotiable

Instruments Act is raised against respondent No. 4 is raised in

those proceedings, the complainant/petitioners have to establish

that there was a pre-existing liability. A recent decision of the

Apex Court in the case of "Krishna Janardhan Bhat V. Dattatraya

G. Hegde" 2008 (1) JCC (NI) 50, on the aspect of drawing of

presumptions under Negotiable Instruments Act can be referred

to with advantage as it was also a case of issuance of blank

cheques. All said and done, no case for invoking the jurisdiction

under Section 156 (3) of the Cr.P.C., was made out in the present

case. Therefore, the impugned order, directing the registration of

the FIR on respondent No.4's complaint, is apparently

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 10 unsustainable and is accordingly set aside. Consequential

registration of the FIR No. 141 of 2006, has to also go. However,

the finding of the trial court in the impugned order of complaint

prima facie disclosing the commission of offences under Section

420/406 of the IPC against the petitioners herein, is sustainable

and is hereby upheld. Consequently, petitioners are liable to be

summoned for the aforesaid offences on the complaint of

respondent no.4, which has to be tried in accordance with law.

17) Since on facts, there is overlapping, therefore, it would be

appropriate that the criminal proceedings under Section 138 of

the Negotiable Instruments Act, against respondent No.4 herein,

as well as the present criminal complaint proceedings against

the petitioners herein, are tried together, by one court, as such a

course would secure the ends of justice.

18) These petitions are partly allowed to the extent that the

impugned order directing registration of FIR against the

petitioners, is set aside, whereas, holding that a prima facie case

against petitioners, for the offence of cheating is made out, is

hereby upheld. Anything stated herein shall not be construed as

an expression on merits at trial.

19) Let the parties, through their Counsel, appear before the

District and Sessions Judge-I, Delhi on 20th April, 2009, for

assigning the criminal complaint case of respondent No.4 to the

court where criminal proceedings under Section 138 of the

Negotiable Instruments Act, are pending against respondent

No.4, so that they are tried together in accordance with the law.

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 11

20) Copy of this order be sent to District and Sessions Judge-I,

Delhi, for compliance and be also given dasti to both sides.

21) With aforesaid directions, these four petitions stand

disposed of.

Sunil Gaur, J.

March 31, 2009 rs

Crl. M.C. Nos. 289 & 12 of 2007 and 8006 & 8370 of 2006 Page 12