M/S V.I.Personal Care (P) Ltd. vs State & Anr.
2010 Latest Caselaw 4023 Del

 *                         IN THE HIGH COURT OF DELHI AT NEW DELHI

+            Criminal Revision Petition No.733 of 2006 & C.M. Appl. No.1533 of 2009

%                                                                                  31.08.2010

          M/S. V.L. PERSONAL CARE (P) LTD.                  ...... Petitioner
                                Through: Mr. Mohit Mathur, Mr. Shishir Mathur &
                                         Mr. Mrinal Bharti, Advocates.

                                             Versus

          STATE & ANR.                                              ......Respondents
                                         Through: Mr. O.P. Saxena, APP for the State.
                                                  Mr. Udayan Jain, Advocate for R-2.

                                                                  Reserved on: 30th July, 2010
                                                             Pronounced on: August 31, 2010

          JUSTICE SHIV NARAYAN DHINGRA

1.        Whether reporters of local papers may be allowed to see the judgment?
2.        To be referred to the reporter or not?
3.        Whether judgment should be reported in Digest?

                                       JUDGMENT

1. This revision petition has been filed by the petitioner assailing order dated 7th July,

2006 passed by learned Metropolitan Magistrate dismissing the complaint filed by the

petitioner under Sections 409/467/468/471 IPC.

2. Brief facts relevant for the purpose of deciding this petition are that a cheque

issued by the complainant in favour of M/s. Vapra Exports Pvt. Ltd. was dishonoured.

On this M/s. Vapra Exports Pvt. Ltd. filed a criminal complaint under Section 138 of

Negotiable Instruments Act in the court of Metropolitan Magistrate at Mumbai. The

complainant i.e. present petitioner, however, filed a complaint at Police Station Hauz

Khas through his sister concern M/s. Curls and Curves India Limited (CCIL) on 5th

December, 2002. Another criminal complaint was filed by the petitioner directly at

Police Station Hauz Khas on 11th March, 2003. Police, however, found that no criminal

offence was made out. The petitioner then filed a complaint under Section 156 (3)

Cr.P.C. for registration of F.I.R. which was dismissed by the court and the court directed

for recording of complainant evidence. After the complainant evidence was recorded,

learned trial court came to conclusion that no offence was made out against the

respondent No.2.

3. The story put forward in the criminal complaint by the complainant is that

Sh. Harshad Rana (respondent No.2) was a Director of M/s. Vapra Exports Pvt. Ltd. and

had approached CCIL in the year 2001. M/s. Curls and Curves India Limited was parent

company of the present petitioner. Subsequently, Sh. Harshad Rana left M/s. Vapra

Exports Pvt. Ltd. on 10th March, 2002 and joined as a Director with the complainant

company and was given responsibility and control over functioning of the complainant

company. While Sh. Harshad Rana was working as a Director, certain products of

complainant company were to be launched in Jaipur in September, 2002 and CFO of

CCIL, Sh. Narinder Kumar, was induced by him to believe that some cheques were

required to be signed by him for the purpose of paying expenses of the launch. So, blank

cheques were signed by Sh. Narender Kumar believing that Sh. Harshad Rana would be

in a position to fill the date and amount and the name of the payee. It was alleged that

these cheques were misappropriated by Sh. Harshad Rana and landed into the hands of

M/s. Vapra Exports Pvt. Ltd. Thus, the offence was committed by Harshad Rana under

Section 409 and other provisions of IPC.

4. The learned Metropolitan Magistrate on going through different complaints filed

by the complainant and its parent company, found that the version of the complainant had

been changing from one complaint to other complaint. Learned Metropolitan Magistrate

also found that the ingredients of criminal breach of trust were completely lacking and no

ingredient of dishonest misappropriation of the entrusted property to one's own use was

present. It was also found that in the complaint to SHO dated 11th March, 2003, there

was no mention of the cheques being misappropriated. Learned Metropolitan Magistrate,

therefore, dismissed the complaint.

5. It is submitted by counsel for the petitioner that a cheque was a property and if it

was entrusted to the respondent and misappropriated, an offence under Section 406 IPC

was made out. The petitioner relied on M/s. Suryalakshmi Cotton Mills Ltd. vs. M/s.

Rajvir Industries Ltd. & Ors.; AIR 2008 SC 1683 wherein the Supreme Court observed as

under :-

"24. However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed."

6. In the present case, dispute is not whether a cheque was a property or not.

Learned Metropolitan Magistrate has not refused to take cognizance on the ground that

the cheque was not a property. Learned Metropolitan Magistrate had found that there was

no substance in the complaint and allegations did not disclose commission of an offence

and the petitioner had made contradictory allegations in various complaints.

7. It is settled law that criminal justice system should not be allowed to be misused.

Before summoning an accused, complaint and the complainant evidence must be

scrutinized to see if an offence was committed or the court was being used as a tool. In

this case, learned Metropolitan Magistrate went through all the documents and found that

different stands were being taken by the petitioner at different places and the story of

entrustment made by the petitioner was not trustworthy and this version was not put

forward by the petitioner at the first instance when the complaint was filed to the SHO.

This was invented later on when the complaint was filed before the court of Metropolitan

Magistrate. I consider that where an effort is made by any complainant to use the

criminal justice system as a tool or as a counter blast to dishonour of cheque, it is better

that such an effort is curbed at initial stage.

8. I find no infirmity in the order of the learned Metropolitan Magistrate. The

petition is hereby dismissed with costs of Rs.25,000/- being a frivolous petition.

SHIV NARAYAN DHINGRA [JUDGE] AUGUST 31, 2010 'AA'