Bhanwarlal Bothra vs State & Ors.
2009 Latest Caselaw 4337 Del

                HIGH COURT OF DELHI: NEW DELHI

+      Writ Petition (Crl.) No. 1266/2009

               Judgment reserved on: 23rd October, 2009
%              Judgment delivered on:27th October, 2009


BHANWARLAL BOTHRA                      ..... Petitioner
               Through: Mr. Subhashish Mohanty,
                        Adv.
               Versus
STATE & ORS.                        ..... Respondents
               Through: Mr. Lovkesh Sawhney, APP
                        for the State.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment? Not
                                                necessary

       2. To be referred to Reporter or not?      No

       3. Whether the judgment should be
          reported in the Digest?                 No


A.K. PATHAK, J.

1. Petitioner (complainant before the trial court) has filed

this writ petition praying therein that the order dated 4th

April, 2009 passed by the learned Additional Sessions Judge

in revision petition No. 74/2007 as well as the order dated

12th January, 2004 passed by the learned Metropolitan

Magistrate in criminal complaint case no. 950/2000 be set

aside. It has been further prayed that trial court be directed

to make further enquiry into the commission of offence by

respondent nos. 2 to 4 (accused) and decide the complaint

in accordance with law.

2. Brief facts of the case are that the petitioner filed a

complaint in the court of Chief Judicial Magistrate, Patna

against the respondents under Sections

403,406,420,467,471,504,323 read with Sections 120-B

and 34 of Indian Penal Code. Promod Bothra, proprietor of

M/s Bothra Brothers, is son of Bhanwarlal Bothra. Firm

M/s Bothra Brothers are share brokers. Complaint was

filed through Shri Bhanwarlal Bothra. It was alleged in the

complaint that sometime in the month of September, 1991

respondent nos. 2 to 4 came in the office of M/s Bothra

Brothers and showed their willingness to sell some of the

shares owned by them and their relatives. They also

handed over share certificates together with duly signed

transfer deeds to the firm. This sale transaction was done

by the respondent nos. 2 to 4 till January-February, 1992.

Shares were sent to respective companies for recording the

transfer. However, some of the shares were received back

as bad delivery on the ground that signatures of the

transferor differed. When this fact was brought to the

notice of respondent no. 1, he obtained a power of attorney

in his name, duly executed by respondent nos. 2 and 3.

Thereafter, fresh transfer deeds were signed by him. Shares

were again sent to the companies for registering the

transfer. However, again so many shares were received

back unregistered on the ground that power of attorney was

not duly registered with the said companies. Besides this,

respondent nos. 2 to 4, who were Non Resident Indians, had

also not obtained permission from Reserve Bank of India

resulting in non registration of so many shares in the name

of transferee(s). It was alleged that the respondent nos. 2 to

4 had put their wrong signatures on the transfer deeds.

Despite the fact that so many shares were received back as

bad delivery, respondents realized the value of all the shares

from the petitioner by filing complaint in the State

Consumer Disputes Redressal Commission, Delhi. It was

further alleged that on 6th June, 2000 respondent no. 2

came to Ashiana Plaza, Patna to settle the matter but

instead of settling the matter he picked up fight with the

complainant and abused him.

3. At the pre summoning stage petitioner examined

himself and one Shri Shiv Nandan Rai. Thereafter, Chief

Judicial Magistrate, Patna vide order dated 30th August,

2000 ordered for summoning of respondent nos. 2 to 4,

under Sections 420 and 323 IPC only.

4. Respondent nos. 2 to 4 preferred a transfer petition in

the Supreme Court which was allowed and the complaint

case was transferred to the Court of Chief Metropolitan

Magistrate, Delhi. Respondents filed an application under

Section 245 Cr.P.C. in the court of learned Metropolitan

Magistrate, Delhi seeking their discharge. During the

pendency of said application respondents also preferred a

writ petition in this Court being Crl. M. (M) No. 3509/2002

which was disposed of vide order dated 18th July, 2003. It

was ordered that grievance of the respondent can be

remedied by directing the trial court to dispose of the

application, for recalling the summoning order, within two

months. High Court passed this order in view of the

decision of the Supreme Court in K.M. Mathew vs. State of

Kerala reported in 1992 (1) SCC 217.

5. Thereafter, learned Metropolitan Magistrate heard the

arguments of both the parties on the said application. Case

of respondent nos. 2 to 4 before the learned Metropolitan

Magistrate was that they had entrusted certain shares to

share broker namely M/s Bothra Brothers for selling the

same in the market. Shares were sold and Shri Promod

Bothra realized a sum of Rs. 9,15,673/- towards sale

consideration. He issued fifteen cheques in favour of

respondents, for the said amount. However, on

presentation, cheques were returned dishonoured, except

the three cheques for small amounts. Respondent no. 2

issued notice under Section 138 of Negotiable Instruments

Act to the complainant and pursuant thereof a sum of Rs. 4

lakh was paid. For the balance amount respondents

approached the State Consumer Disputes Redressal

Commission, Delhi by filing a complaint against the

complainant wherein balance amount was directed to be

paid to the respondents along with interest, damages and

costs. Since order was not complied with, therefore,

execution petition was filed. Complainant took the plea of

"bad deliveries". However, this plea did not find any favour

with the State Consumer Disputes Redressal Commission,

Delhi. Complainant challenged the order of State Consumer

Disputes Redressal Commission before the National

Consumer Disputes Redressal Commission but his appeal

was dismissed on 3rd January, 1996. Special Leave Petition

preferred by him was also dismissed vide order dated 8th

July, 1996. Only thereafter complainant paid the amount

ordered by the Commission in monthly instalments of

Rs.30,000/- each.

6. In the above facts and also on the basis of rival

contentions raised by both the parties, which have been

narrated in the preceding paras hereinabove, learned

Metropolitan Magistrate came to the conclusion that the

complaint was false and had been instituted with a view to

harass respondent no. 2, who was an old man of seventy six

years. Learned Metropolitan Magistrate was also of the view

that no case under Sections 420/323 IPC was made out

against the respondents. Petitioner had not made any

efforts to get the deficiency regarding bad delivery rectified.

Transactions took place sometime in the year 1992 but no

action was taken upto the year 2000, by the complainant.

Respondents recovered the payment, by initiating legal

proceedings against the complainant and matter went up to

the Supreme Court. Only thereafter, complaint was filed

which shows that same was false. Learned Metropolitan

Magistrate also took note of the fact that there was no

occasion for respondent no. 1 to go all the way from Delhi to

Patna, in order to settle the matter with the complainant,

after his entire dues had been recovered. Keeping in mind

all the above facts, learned Metropolitan Magistrate was of

the view that complaint was not genuine and was filed with

a view to harass respondent no. 2.

7. Aggrieved by the order of learned Metropolitan

Magistrate, respondent preferred a revision petition bearing

criminal revision no. 74/2007 before the learned Additional

Sessions Judge, which came to be dismissed on 4th April,

2009. Learned Additional Sessions Judge the view that

complaint was instituted with a view to harass respondent

no. 2, who had managed to recover his rightful dues after a

prolonged litigation. Learned Additional Sessions Judge

held that accused can be discharged by the Magistrate at

any stage of the proceedings, in exercise of its power under

Section 245(2) Cr.PC.

8. In my view, concurrent findings of the court below

cannot be interfered by this Court on merits in exercise of

its supervisory powers. In exercise of its power under

Article 226 and 227 of the Constitution, this Court can

interfere with the findings of the court below only if the

same are perverse and based on no material. In this case,

courts below have arrived at a conclusion that complaint

was false and had been filed in order to harass respondent

no.1, who was around seventy six years old. I find no

justification to interfere with the view taken by the

subordinate courts. Share transactions took place in the

year 1992. After certain shares were received back

unregistered on the ground that the signatures on the

transfer deeds differed from the original signatures of the

transferor available on the records of companies,

respondents cooperated and issued fresh transfer deeds,

duly signed by respondent no.1, accompanied with the

power of attorney duly executed by respondents no. 2 and 3

in favour of respondent no.1. This fact itself shows that at

the time when sale transaction took place between the

parties, respondents had no intention to deceive the

complainant in any manner whatsoever. Statement of

complainant recorded at pre-summoning stage also does not

disclose ingredients of the offence of cheating. Inordinate

delay in filing of complaint, as also the events which took

place in between the sale transaction till filing of the

complaint also disclose that complaint had been filed in

order to harass the respondents. Entire transaction took

place in Delhi. Complainant was also carrying on his

business as share broker at Delhi. In spite of this,

complaint was filed at Patna. This also reflects on the

conduct of the complainant and indicates that complaint

was filed to harass the respondents.

9. Petitioner has placed reliance on Mahant Abhey Dass

Vs. S.Gurdial Singh & Ors., reported in AIR 1971

Supreme Court 834. In my view, this judgment is in

different facts and is of no help to the petitioner. In the

said case, in the facts, it was held that a prima facie case,

was made out against the accused and he should not have

been discharged under Section 253 (2) Cr.P.C. However, in

this case, courts below have categorically held that the

complaint was false and had been filed to harass the

respondents. This view was taken by the courts in view of

the material available on record.

10. In view of the above discussions, I do not find any

merit in this petition.

11. Dismissed.

A.K. PATHAK, J

OCTOBER 27, 2009 ga