Deepak Garg vs State & Anr
2011 Latest Caselaw 3822 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          W.P. Crl. No. 1029/2010

%                                       Decided on: 9th August, 2011.

DEEPAK GARG                                           ..... Petitioner
                        Through: Mr. Vijay Agarwal, Advocate.

                        versus

STATE & ANR                                           ..... Respondents
                        Through: Mr. Saleem Ahmed, Additional
                                 Standing Counsel for the State with
                                 Inspector Rajendra Prasad,
Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

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

2. To be referred to Reporter or not?                               Yes

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


MUKTA GUPTA, J. (ORAL)

Crl. M.A. No. 8665/2010 (Exemption)

Allowed, subject to all just exceptions.

W.P. Crl. No.1029/2010 & Crl. M.A. No. 8664/2010 (Stay)

1. By this petition the Petitioner seeks quashing of order dated

24th January, 2009 directing registration of the FIR on an application

under Section 156 (3) Cr.P.C. and consequently FIR No. 38/2009 under

Sections 406/409/420/467/468/471/120B/506/34 IPC registered at PS

Najafgarh, Delhi and the proceedings pursuant thereto.

2. Learned counsel for the Petitioner contends that the

Complainant initially gave a complaint to DIG, Chandigarh regarding

the allegations on which the present FIR has been registered. In the said

complaint the name of the Petitioner was not there, and as per the

complaint even though the property was situated at Kashmere Gate,

Delhi, the transactions were allegedly made at Mani Mazra Chandigarh.

Since no FIR was registered at Chandigarh, the Complainant filed a

complaint before the learned Metropolitan Magistrate wherein the

allegations set out were that the Complainant for the purpose of business

dealing used to stay in Delhi with one of his old friends Shri Azad Singh

at his residence at Najafgarh and the negotiations for the purchase of the

aforesaid property took place at Najafgarh and payments were made to

accused persons by the Complainant on different dates in the presence

of Shri Azad Singh. It is contended that the Complainant has resorted to

false pleadings and thus the order directing registration of FIR should be

set aside by this Court on this ground itself. It is further contended that

the learned Metropolitan Magistrate has passed the impugned order

under Section 156 (3) after taking cognizance of the complaint as he had

called for the affidavit of the parties. This procedure is also in

contravention of the decision of the Hon'ble Supreme Court in Gopal

Das Sindhi Vs. State of Assam AIR 1961 SC 986. It is well settled that

the Magistrate must call for a status report before directing registration

of the FIR however in the present case directions for registration of the

FIR were given without even calling for the status report. He took

cognizance on a complaint which was based on concealment, as the fact

of making a complaint at Chandigarh was not disclosed. Reliance is

placed on Surender Kumar Sharma vs. State (Govt. of NCT of Delhi),

2008 (2) JCC 1362, Majhar @ Papoo and others vs. State, 96 (2002)

DLT 566, S.P. Chengalvaraya Naidu (Dead) by L.Rs, vs. Jagannath

dead through L.Rs , AIR 1994 SC 853, Budhan Singh and others vs.

State (Trhough NCT of Delhi), 2008 (2) JCC 1017, Harvinder Singh

Khurana and others vs. The State (NCT of Delhi) and another, 2007 (4)

JCC 3164.

3. Learned Additional Standing Counsel on the other hand

contends that the present FIR was registered on the direction of learned

Metropolitan Magistrate under Section 156(3) Cr.P.C. In the complaint,

the Complainant Sukhmander Singh had alleged that he had been

cheated for a sum of Rs. 1.50 crores on the pretext of selling the

property bearing Khasra No. 98, Kala Ghat, Kashmiri Gate, Delhi by the

Petitioner and his co-accused. The Complainant was induced by

accused Kamal Kishore for purchasing the property in question and the

same was shown to him in Delhi by Kamal Kishore at the instance of

two brokers namely Amarjit Kapoor and Dildar Singh. No jurisdictional

error has been committed by the learned Trial Court by directing

registration of the FIR at Delhi since in the complaint it was alleged that

the property is situated in Delhi and the Complainant parted with the

money at Delhi. Further no cognizance had been taken by the learned

Magistrate as stated by the learned counsel as there was no step taken

for proceeding as a complaint case and thus the order directing

registration of FIR is not bad in law. The impugned order is a speaking

order wherein it has been clearly discussed that the investigation

involves serious allegations of cheating and fraud of Rs. 1.50 crores

and, that the disputed property belongs to the government. Learned

Metropolitan Magistrate had stayed the complaint case till the final

police report is received under Section 173 Cr.P.C. Even if the

Complainant had filed a complaint at Chandigarh no FIR was registered

thereon and thus the Complainant was not barred from filing a

complaint before the learned Metropolitan Magistrate at Delhi and

hence the petition should be dismissed.

4. I have heard learned counsel for the parties. In the present

petition initially notice was issued to the State only. No notice was

issued to Respondent No. 2, however, learned counsel for Respondent

No. 2 had entered appearance on 2nd November, 2010 and sought for a

copy of the paper book of the petition. The prosecution was directed to

file a status report in respect of investigation of grabbing and selling of

Nazul land in Delhi by a number of persons. A status report has been

filed by the learned Additional Standing Counsel and a chart has also

been filed about the sequence of events which has been taken on record.

However, no report has been filed by the DDA.

5. Learned counsel for the Petitioner has strenuously contended

that the impugned order in the present case suffers from lack of

jurisdiction as the Complainant had earlier filed a complaint before the

DIG, UT Chandigarh and thus he was barred from filing the present

complaint before the Magistrate at Delhi. This contention is wholly

meritless and deserves to be rejected. As admitted by the Petitioner, no

action was taken on the complaint filed before the DIG, Union Territory

of Chandigarh. In case no action is taken thereon and no FIR is

registered, then the Complainant has a right to file a complaint before

the Court wherever the jurisdiction is made out.

6. In the present case the property in question is situated in

Delhi at Kashmere Gate. As per the Complainant the property was

shown in Delhi and the transactions were made at Najafgarh where he

stayed at his friends place. Section 178 Cr.P.C. contemplates that when

it is uncertain in which of the several local areas an offence is

committed or where an offence is committed partly in one local area and

partly in another or where an offence is a continuing one, and continues

to be committed in more local areas than one, or consists of several acts

done in different local area, it can be inquired into or tired by a Court

having jurisdiction over any of such local areas.

7. Further Section 181 Cr.P.C. provides that an offence of

criminal misappropriation or criminal breach of trust may be inquired

into or tried by a Court within whose legal jurisdiction the offence was

committed or any part of the property which is the subject matter of the

offence was received or retained or was required to be returned or

accounted for by the accused person. Thus by no stretch can it be said

that the Court at Delhi had no jurisdiction to entertain the complaint.

The earlier complaint to DIG, UT Chandigarh was a complaint to police

officer only and the Petitioner had not been tried for the said offence at

Chandigarh. Thus the bar of double jeopardy is not applicable in the

facts of the present case.

8. I also do not find any merit in the contention of the learned

counsel for the Petitioner that the impugned order passed by the learned

Metropolitan Magistrate was passed after taking cognizance. When the

complaint was filed undoubtedly two affidavits had been filed on behalf

of the Complainant however, the Magistrate took no cognizance on the

complaint. He heard arguments on the application under Section 156(3)

Cr.P.C. In view of the fact that there were serious allegations of

cheating and fraud of Rs. 1.50 crores in the complaint, the disputed

property belongs to the government; 12 accused persons were involved

and the facts disclosed required thorough investigation and collection of

evidence, the learned Magistrate stayed the complaint under section 210

Cr.P.C. and directed the SHO concerned to register FIR under Section

154 Cr.P.C. for offence under appropriate sections and to file a final

report under Section 173 Cr.P.C at the earliest. The affidavits taken

were not for taking steps towards proceeding as a complaint case. Thus

mere filing of the affidavits on behalf of the Complainant cannot be said

to result in the learned Magistrate taking cognizance of the offence. As

has been held in a catena of decisions by the Hon'ble Supreme Court

that, whether the Magistrate has taken cognizance or not is a question of

fact which has to be deciphered from the impugned order and the facts

of the case. In the present case the facts do not disclose that the

Magistrate has taken cognizance. Thus reliance of the Petitioner on

Surender Kumar Sharma (Supra) is misconceived, as the facts therein

were that the learned Magistrate after perusing the report filed by the

police observed that no investigation is required to be done by the

police authorities and permitted the Complainant to lead evidence. The

Complainant accordingly examined two witnesses CW1 and CW2 and

after completion of the pre-summoning evidence of the Complainant's

the learned Metropolitan Magistrate directed registration of the FIR.

This was held contrary to the law laid down by the Hon'ble Supreme

Court. Reliance of the Petitioner on Majhar @ Papoo (supra) is also

misconceived. The allegations therein did not prima facie disclose

allegations against the Complainant's husband, mother-in-law, brother-

in-law and sister-in-law and thus this Court held that the FIR and the

summoning order deserved to be quashed. In the present case the

reading of the complaint shows allegations against the Petitioner and the

co-accused and the case is at the stage of investigation.

9. Reliance placed on S.P. Chengalvaraya Naidu (Supra) to

contend that the person who does not come to the Court with clean

hands is not entitled to relief is also misconceived. There is no doubt

that all the facts should be disclosed however, in the case before the

Hon'ble Supreme Court what was concealed was the execution of the

lease deed in respect of the property in favour of his employer before

filing of the suit. The Hon'ble Supreme Court thus held that the decree

was vitiated by fraud whereas in the present case the fact concealed was

that a cryptic complaint was made to the DIG, UT Chandigarh on which

no action was taken and to my mind this would not be a material

concealment so as to quash and stall the investigation in a case of

cheating to the tune of Rs. 1.50 crores and where the government land is

being sold with impunity by a number of persons. In fact, the concept of

locus standi of the Complainant is not known to criminal law. If this

fact would have come to the notice of the learned Metropolitan

Magistrate suo motu or on a complaint filed by some other person, he

was bound to take action thereon. In Baldev Singh (supra) the

Complainant had first filed a complaint before the learned Court

wherein evidence had been led and further evidence was being led on an

application under Section 311 Cr.P.C. regarding forgery of a General

Power of Attorney whereafter neither the Complainant nor his counsel

appeared and thus the complaint was dismissed in default for want of

prosecution. Subsequently the Complainant filed another complaint

before the learned Sub-Divisional Judicial Magistrate regarding the

forgery of the same very general power of attorney and thus it was held

that the non-disclosure of filing and dismissal of the first complaint

should not be ignored as a mere irregularity. In Harvinder Singh

(Supra) this Court quashed the FIR as the facts urged in the subsequent

complaint were contrary to the earlier complaint. It may be noted that in

the present case the complaint given to the DIG, UT Chandigarh was a

cryptic complaint wherein all facts were not mentioned and no action

thereon was taken.

10. In view of the seriousness of the allegations leveled in the

FIR, I find no reason to quash the same. Petition and application are

dismissed.

MUKTA GUPTA, J

9TH AUGUST, 2011 vn