Sunil Kumar vs State
2012 Latest Caselaw 2410 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                            DATE OF DECISION: APRIL 13, 2012

+        Crl.M.C.No.1231/2012

 SUNIL KUMAR                       ..... Petitioner
                        Through:Mr.Praveer Singh,Advocate

                 versus


 STATE                            ..... Respondent
                        Through:Ms.Rajdipa Behura, APP


 CORAM:
 HON'BLE MS. JUSTICE PRATIBHA RANI


                          ORDER

% 13.04.2012

1. This petition under Section 482 of the Code of Criminal Procedure

has been filed by Shri Sunil Kumar for seeking directions from this Court

to transfer the investigation of case FIR No.152/2011 under Section

420/406 PC P.S. Moti Nagar to CBI or the I.O. be directed to expedite the

investigation.

2. The facts leading to the registration of the case FIR No.152/2011

P.S. Moti Nagar are that the petitioner was approached by Shri

Lokeshwar Dev Jain, Smt. Priyanka Saraswat Dev, Shri Naresh Kharab,

Shri Surinder and Shri Kamal Arora with some lucrative investment

plans, claiming themselves to be in the business of share trading and in

need of finance/loan for expansion of their business.

3. That the petitioner/complainant Sunil Kumar, induced by their

misrepresentations, invested with the accused persons Rs.60,00,000/- in

the month of December 2010 and again invested Rs.1,00,00,000/- in the

month of January, 2011. That an amount of Rs.90,000/- was invested by

way of cash. That the complainant was given two post dated cheques

by the accused persons i.e. cheque No.705652 of an amount of

Rs.60,00,000/- dated 1.8.2011 drawn on HDFC Bank Ltd. Aggarwal

Central Plaza, Plot No.11, Sector-5, Dwarka, New Delhi-75 dated

30.12.2010 along with a promissory note pertaining to the same and

cheque No.700301 of an amount of Rs.1,00,00,000/- dated 7.9.2011

drawn on HDFC Bank Aggarwal Central Plaza, Plot No.11, Sector-5,

Dwarka, New Delhi-75 dated 31.1.2011 along with a promissory note

pertaining to the same.

4. That the petitioner/complainant asked the accused persons for

giving some acknowledgement of the receiving of the cash/investment

done by him but the accused persons refused the same and told that

there would not be anything wrong and that his money was very much

safe. Thereafter, the petitioner/complainant after waiting for the

returns, called the accused persons but they kept on delaying the same.

Later on, the complainant was threatened that if he would ever call at

their numbers, he would face dire consequences and that his family

would be eliminated.

5. The petitioner approached the police for registration of the case.

But, due to inaction on the part of the police, he was constrained to file a

complaint. On the direction of learned M.M. under Section 156(3)

Cr.P.C., the aforementioned FIR No.152/2011 under Section 406/420 IPC,

P.S. Moti Nagar was registered. The investigation is pending with the

E.O.W. Branch and till date the accused persons have not been arrested,

thus, requiring direction from the Court to the Investigating Officer to

investigate the case expeditiously and apprehend the accused persons

without delay. The investigating team delayed the investigation for the

reasons best known to them. Hence, the petitioner has come forward

with his grievance to seek direction to the police to explore the

investigation of the present case promptly and expeditiously. Directions

sought for in the present matter by filing this petition are:-

"a) to pass necessary orders and directions thereby directing the Investigation Officer to expedite the investigation of the matter and to arrest the accused persons and to file the final report in the matter at the earliest, in the interest of justice.

b) To transfer the present matter to the CBI and direct them to investigate the present matter expeditiously."

6. On behalf of the petitioner, it has been submitted that the

petitioner has been cheated of a huge amount of more than

Rs.1,60,00,000/- and till date the offenders are absconding. The police

has not investigated the case properly, requiring for direction either to

get the case investigated through CBI or direction to the I.O. to

investigate the case and apprehend the accused persons.

7. A bare perusal of the FIR reveals that it was a loan transaction

and in order to reap the benefit of 20% p.m. return on the investment,

the petitioner invested huge amount. It is not even mentioned in the

petition as to from which account, the amount was withdrawn to make

payment to the accused person and whether the amount so invested

was reflected in the income tax return as a loan/investment. Specific

query was made from learned counsel for the petitioner during the

course of hearing in this regard which could not be answered by him

submitting that investment was made in cash.

8. In the given circumstances, it is necessary that while

investigating the case, I.O. must inform the income tax authorities about

the investment made by the petitioner so that in case of any violation of

income tax laws, that can be taken care of by the income tax

authorities.

9. After going through the contents of the FIR, it appears that the

allegations made in the FIR do not constitute any criminal charge

against the accused persons. It seems to be a case of advancement of

loan by the petitioner on assurance of getting return of 20% p.m. on his

investment. If petitioner has not been able to get the return, as assured

or the sum invested, in all probabilities the transaction was of civil

nature but in order to pressurize the accused persons, the petitioner has

given it the colour of a criminal case. In V.Y. Jose & Anr. v. State of

Gujarat & Anr., the Apex Court observed as under:-

"28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree which is non- existent. The Superior Courts, with a view to maintain purity in the

administration of justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts."

10. In the instant case, the petitioner is using the State machinery to

recover his alleged cash investment of Rs.1,60,00,000/-. Directions

sought in the petition to arrest the accused persons will have the effect

to put pressure on the persons named in the FIR to return his

investment. Neither the CBI is meant for this purpose nor the

investigating agency can be asked to act as their recovery agent by

directing them to arrest the offenders to expedite personal recovery

matters of the persons like the petitioner before us.

11. The petition has no merits and the same is hereby dismissed.

                                                 PRATIBHA RANI, J


APRIL        13, 2012
ks