Gurmeet Singh Rana & Another vs Rajinder Kumar & Another
2010 Latest Caselaw 3160 Del

26
$~
      IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. 3920/2007


      GURMET SINGH RANA & ANR.      ..... Petitioners
                     Through: Mr. Harish Khanna, Adv.

                  versus


      RAJINDER KUMAR & ANR.              ..... Respondents
                     Through:        Mr. S.Khan, Proxy Counsel.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA


                           ORDER

% 08.07.2010

The present petition under Section 482 of the Code of Criminal Procedure, 1973 is filed by Mr. Gurmeet Singh Rana and Mr. Rajeev Gupta for quashing of proceeding pending against them on a complaint filed by Mr. Rajinder Kumar.

2. A criminal complaint under Section 200 of the Code of Criminal Procedure, 1973 was filed by Mr. Rajinder Kumar against M/s. Bhagwati Financing and M/s. Ekta Motors. In the complaint, it is mentioned that Mr. Rajinder Kumar had taken finance of Rs.80,000/- from M/s. Bhagwati Financing, which was to be repaid in 24 installments of Rs.4,800/- per month including interest. Mr. Rajinder Kumar has further stated that he had regularly paid installments to M/s. Ekta Motors, who was authorized to collect the said installments. In Paragraph 6 of the complaint, it is stated that Mr. Rajinder Kumar could not pay four installments and had made repeated requests to both M/s. Bhagwati Financing and M/s. Ekta Motors for additional time to make payment. It is alleged that M/s. Bhagwati Financing and M/s. Ekta Motors on 12th June, 2001 forcibly took away possession of the vehicle with some goondas. Mr. Rajinder Kumar had informed Police Station Sarai Rohilla but no action was taken and therefore, he has filed a criminal complaint.

3. The complaint does not mention whether M/s. Bhagwati Financing and M/s. Ekta Motors are sole proprietorship or partnership etc., if so, who is the sole proprietor and/or partner. No individual person has been named or stated.

4. On the basis of pre-summoning evidence, learned Metropolitan Magistrate vide his order dated 11th October, 2006 referred some judgments of the Delhi High Court and held that the Sections 390/392/420 or 441 of the Indian Penal Code were not attracted. However, the learned Metropolitan Magistrate was pleased to summon the two accused i.e. M/s. Bhagwati Financing and M/s. Ekta Motors under Section 384 IPC for extortion and under Section 506-I IPC for criminal intimidation observing that the vehicle in question had been forcibly taken away by the accused persons, after threatening the complainant.

5. Subsequently, Mr. Rajinder Kumar on 20th April, 2006 moved an application inter alia stating that he has furnished better particulars of M/s. Bhagwati Financing and M/s. Ekta Motors. It was alleged that M/s. Bhagwati Financing was sole proprietorship concern of Mr. Rajeev Gupta and M/s. Ekta Motors was sole proprietorship concern of Mr. Gurmeet Singh Rana, the two petitioners herein. Mr. Rajeev Gupta and Mr. Gurmeet Singh Rana had appeared before the learned trial court and had filed an application seeking recall of the summoning order but the said application was dismissed vide order dated 23rd August, 2007, inter alia holding that the learned trial court does not have power and jurisdiction to recall the summoning order. Learned trial court in this order observed that Mr. Gurmeet Singh Rana was the sole proprietor of M/s. Ekta Motors and, therefore, cannot escape liability and he could be prosecuted under law. Learned trial court did not make any observation with regard to M/s. Bhagwati Financing. It appears that the petitioners herein had before the learned trial court filed a copy of the partnership deed dated 1st April, 2001 and had claimed that M/s. Bhagwati Financing was a partnership firm of Mr. Rajeev Gupta and Ms. Neeru Gupta.

6. I have examined the pre-summoning evidence of CW-1 Mr. Rajinder Kumar, the complainant. He has stated that he was unable to repay four installments and had been requesting M/s. Bhagwati Financing and M/s. Ekta Motors for further time to make payment but they did not agree with him. Further the vehicle No.DL-1LA-9661 was forcibly taken away by the "accused persons with the help of goondas" on 12th June, 2001 with some valuables and all documents of the vehicle. He has further stated that he was/is ready and willing to pay remaining installments but the "accused persons" were refusing to take it. He had issued a legal notice to M/s. Bhagwati Financing but there was no reply.

7. Statement of Mr. Rajinder Kumar CW-1 mentioned above and the complaint per se and taken on face value do not make out a case for extortion as defined in Section 383 of the Indian Penal Code. The said section reads as follows:-

"Section 383: Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".

8. It is not the allegation of Mr. Rajinder Kumar that he had delivered the vehicle, i.e., the property, on being dishonestly induced by fear of injury which is an essential ingredient of Section 383. On the other hand, it is the case of Mr. Rajinder Kumar that the vehicle was taken away forcibly. Summoning order, therefore, under Section 383 IPC cannot be sustained.

9. The summoning order states that accused have been summoned under Section 506 Part I. The term criminal intimidation has been defined in Section 503 and reads:

"Section 503: Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation-A threat to inure the reputation of any deceased person in whom the person threatened is interested, is within this section."

10. The allegations made by Mr. Rajinder Kumar CW-1 in his statement or in the complaint, do not disclose or indicate criminal intimidation as defined in Section 503 of the Indian Penal Code. The said section is in two parts: the first part refers to the act of threatening another person with injury, reputation or property of a person or reputation of anyone in whom that person is interested; while the second part refers to the intent with which the threatening is done. The intent should be to cause alarm to the person threatened; to cause the said person to do an act which he is not legally bound to do or to omit to do an act which that person is legally entitled to do. Therefore, the essential ingredient of the offence of criminal intimidation as defined under section 503, IPC is that there should be intention to cause alarm or to cause the person threatened to do any act or not to do an act, which he is not legally bound to do. The term "alarm" used in this section is in a sense signifying consternation caused by the threat, producing state of terror in the mind which may provoke retaliation or produce mental anxiety by the prospects of evil. No such allegation is made or established in the complaint or the pre summoning evidence.

11. In these circumstances, the present petition is allowed and the summoning order dated 11th October, 2006 is hereby quashed. No order as to costs.

12. I am informed that another complaint under Section 384 and 506 Part I of the Indian Penal Code which is pending before the Metropolitan Magistrate. The observations and decision given above are with reference to the pre-summing order passed in this case in view of the complaint and pre summoning evidence adduced. This order will not be construed as an opinion in the other complaint. The learned trial court will independently applied its own mind while examining the other complaint and will not be influenced by the observations made above.

SANJIV KHANNA, J.

JULY 08, 2010 J/VKR