Ms.Aradhana Vikram Singh vs Mr.Santosh T.V. & Anr.
2010 Latest Caselaw 5739 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on: December 14, 2010
                           Judgment delivered on: December 16, 2010


+      CRL.M.C. No. 721/2009 & CRL.M.A. NO.2393/2009(stay)


       MS. ARADHANA VIKRAM SINGH                      ....PETITIONER

                       Through:   Ms. Sima Gulati, Advocate with Ms. Dipti
                                  Kathpalia, Advocate & Mr. Sugam Puri,
                                  Advocate

                                      Versus

       MR. SANTOSH T.V. & ANR                 .....RESPONDENTS
               Through: Mr. Ajay Mehrotra, Advocate for
                        respondent No.1.
                        Ms. Fizani Husain, APP for the State/
                        respondent No.2.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?


AJIT BHARIHOKE, J.

1. Ms. Aradhana Vikram Singh, the petitioner herein vide this petition

under Section 482 Cr.P.C. is seeking following prayer:

"(a) To summon the record pertaining to the case titled Santosh T.V. Vs. Aradhana Vikram Singh u/s 420 IPC from the court of Sh. Pritam Singh, M.M., New Delhi, where it is now fixed for 17.03.2009; and from the Court of Sh. J.R. Aryan, ld. ASJ the records pertaining to Criminal Revision No.258 of 2006 titled Aradhana Vikram Singh versus State and others;

(b) To examine the legality, propriety and correctness of the orders dated 08.12.05 AND 07-11-08;

(c) To quash/set aside the order dated 08.12.05 and order dated 07-11-08 as well as the proceedings and discharge the petitioner."

2. Briefly stated, facts relevant for the disposal of this petition are that

respondent No.1 filed a criminal complaint under Section 200 Cr.P.C.

against the petitioner on the allegation that the petitioner came in touch

with the complainant through one Rajeev Ozha. The petitioner, after

taking respondent No.1 into confidence, requested him to make payment

of Rs.6,20,000/- on her behalf to M/s. S.H. Group, Naya Bazar, New Delhi

as she was undergoing some financial difficulties. She represented to the

complainant that she was a resourceful lady. Believing the

representation and assurance given by the petitioner that she would

repay the amount to respondent No.1 within a week, respondent No.1

made payment of Rs.6,20,000/- vide pay order No.810443 dated 21.12.93

to S.H. Group, Naya Bazar on behalf of the petitioner. The petitioner

executed a promissory note in favour of respondent No.1 on 22.12.93 and

in addition to the promissory note, she also issued a cheque for

Rs.6,20,000/- in favour of respondent No.1 on 30.12.93 drawn on Central

Bank of India, Panchsheel Park, Delhi and she represented to the

complainant that the cheque would get encashed within a week. The

cheque, however, on presentation was dishonoured and returned with the

remarks "Insufficient Funds." The respondent No.1 immediately

contacted the petitioner and protested. The petitioner felt sorry for the

inconvenience and asked him to resubmit the cheque. Cheque was

resubmitted with the bank on 19.01.94 but it was returned with the

remark the account holder has stopped payment. On the aforesaid

allegations, respondent No.1 claimed that the petitioner has committed

the offence of cheating punishable under Section 417 and 420 IPC.

3. Learned Metropolitan Magistrate, after conducting preliminary

inquiry, summoned the petitioner to face trial under Section 420 IPC.

After the recording of pre-charge evidence, the trial court heard the

parties and directed the charges under Section 417/420 IPC to be framed

against the petitioner. Feeling aggrieved of the impugned order of

learned M.M. dated 08.12.2005, petitioner filed a revision petition which

was dismissed by the learned Additional Sessions Judge vide order dated

07.11.2008.

4. Aggrieved by the order of the revision court, the petitioner has filed

the instant petition seeking quashing of the impugned order dated

08.12.2005 of the Metropolitan Magistrate and the order dated

07.11.2008 of the revision court.

5. Learned counsel for the petitioner submitted that impugned orders

of learned M.M. as well as the revision court are untenable for the reason

that the transaction which is subject matter of the complaint is a purely

contractual transaction entered into by the petitioner with the respondent

without any dishonest intention. Learned counsel submitted that in the

instant case, admittedly a notice under Section 138 Negotiable

Instruments Act dated 02.03.94 was served upon the petitioner and in

that notice, the respondent has not leveled any allegation of cheating

against the petitioner. From this, she has urged the court to infer that the

allegations of cheating in the complaint are result of an afterthought.

Petitioner has relied upon the judgment of Supreme Court in the matter of

G.Sagar Suri & Anr. Vs. State of U.P. & Ors., 2000(1) Crimes 179

(SC). In the said matter, Supreme Court quashed the complaint under

Section 406/420 IPC on the ground that the complainant in his complaint

under Section 138 N.I. Act had not made any allegation of cheating or

misappropriation against the appellant in that case and the complainants

also failed to give any explanation for said lapse.

6. In my respectful opinion, the aforesaid judgment is of no avail to the

petitioner because it is based upon facts peculiar to that case. In the

aforesaid case before the Supreme Court, the complainants had also filed

a complaint under Section 138 Negotiable Instruments Act in which they

had failed to make allegations pertaining to commission of the offence

under Section 406/420 IPC by the appellant of that case and for that

reason, the Supreme Court took an adverse view, more so for the reason

that the respondents had failed to give any explanation for non-mention

of those allegations in the complaint under Section 138 N.I. Act which was

filed earlier in time. In the instant case, the respondent is stated to have

served the petitioner with a notice under Section 138 N.I. Act calling upon

her to pay the cheque amount. In the notice of demand, the respondent

was not expected to give all the details of the transaction entered into

with the petitioner. He was only required under law to inform the

petitioner that the cheque issued by her was dishonoured and therefore,

she should pay the cheque amount within the requisite period. Thus, the

absence of allegations regarding cheating in the notice under Section 138

Negotiable Instruments Act served on the petitioner is of no help to the

petitioner.

7. It is further submitted by learned counsel for the petitioner that in

his cross-examination, complainant admitted that demand draft favouring

M/s. S.H. Group was made on 21.12.93 and affidavit CW/1 was made on

22.12.93 whereas cheque is dated 30.02.93 and that complainant

admitted that he asked the petitioner to give affidavit CW/1 and she did

not give it on her own. From this, learned counsel contended that it is a

purely civil transaction and no case under Section 420 IPC is made out.

8. I am not convinced with the argument. Merely because the

respondent (complainant) insisted for affidavit by the petitioner, it cannot

be concluded that there was no intention to cheat on the part of the

petitioner. Otherwise also, we are at the stage of charge and trial is yet

to take place. At this stage, the court is not required to meticulously

scrutinize the evidence to conclude whether it is true or false. If the

evidence on record, prima facie, discloses commission of an offence, the

court is justified in framing the charge.

9. Next contention of learned counsel for the petitioner is that the

contents of the complaint, pre-summoning and pre-charge evidence do

not make out any criminal offence. Learned counsel argued that perusal

of the material on record would show that respondent has not made a

specific allegation in the complaint that the petitioner dishonestly induced

respondent No.1 to pay Rs.6,20,000/- on her behalf to M/s. S.H. Group,

Naya Bazar, Delhi. Learned counsel for the petitioner further contended

that respondent No.1 even in his testimony as CW1 has not stated about

misrepresentation made by the petitioner or inducement on her part

which led him to pay Rs.6,20,000/- on her behalf to M/s. S.H. Group.

Thus, according to her, no case under Section 420 IPC is, prima facie,

made out.

10. I am not convinced with the submission made by learned counsel

for the petitioner. On perusal of the complaint, which is not properly

drafted, it transpires that there are allegations in the complaint that the

complainant made payment of Rs.6,20,000/- to S.H. Group, Naya Bazar on

behalf of the accused because of promise and assurance given by her

that she would repay the amount within a week. As per the evidence led

on record, the petitioner has given an affidavit Ex.CW1/A dated

22.12.2003 wherein she affirmed that cheque No.03551 drawn on Central

Bank of India, Panchsheel Park in the sum of Rs.6,20,000/- in favour of the

respondent Santosh would be honoured unconditionally by her bank

within seven days. Complainant Santosh appeared as CW1 before the

Magistrate and he has supported the allegations in the complaint wherein

he stated on oath that keeping in view friendly relations with the

petitioner/accused and coming under the impression created by her that

she was in genuine need of money and would return the same, he issued

a pay order of Rs.6,20,000/- in favour of S.H. Group, Naya Bazar, New

Delhi which version, prima facie, show that respondent (complainant) had

parted with Rs.6,20,000/- on behalf of the petitioner mainly believing the

representation of the petitioner that she would repay the amount within

seven days for which she also issued a post dated cheque. The statement

of CW1 also finds corroboration from the statements of witnesses Thomas

Ibrahim and Capt. Rajiv Ojha, who have categorically stated that at the

time of transaction, the petitioner had assured that she would repay the

loan money within seven days. In view of the aforesaid prima facie

evidence, I do not find any force in the contention of the learned counsel

for the petitioner that this is a case of simple money transaction without

any criminal overtones.

11. It is further contended that there is nothing in the complaint or in

the evidence to show that petitioner had dishonest or fraudulent

intention. From the evidence on record, it prima facie appears that the

petitioner induced the respondent to pay Rs.6,20,000/- on her behalf to

M/s. S.H. Group on the promise and assurance that the amount would be

repaid within a week and she also issued a cheque of Rs.6,20,000/- in

favour of the respondent. The said cheque, on presentation, was

dishonoured with the remarks "Insufficient Funds." Thereafter, on second

presentation with drawee bank, it was dishonoured with the remarks

"stop payment." The act of the petitioner in stopping the payment of

cheque, if considered in the light of the earlier transaction, prima facie

gives an impression that she had dishonest and fraudulent intention of

cheating the respondent.

12. Learned counsel for the petitioner also argued that there is nothing

on the record to show that the amount paid by respondent No.1 to M/s.

S.H. Group was against some consideration already received by the

petitioner, therefore, there is no evidence to show that the petitioner

obtained wrongful gain from the transaction. This contention is totally

misconceived. The fact remains that the draft of Rs.6,20,000/- was given

to M/s. S.H. Group by the respondent on behalf of the petitioner at her

instance. This, obviously, has caused wrongful loss to the respondent, as

such it cannot be said that the offence of cheating is not, prima facie,

made out.

13. In view of the above, I am of the opinion that the petitioner has not

been able to make out a case for interference under Section 482 Cr.P.C. in

the trial proceedings.

14. The petition as well as the pending application is accordingly

dismissed.

(AJIT BHARIHOKE) JUDGE DECEMBER 16, 2010 pst