Kulshrestha Dhingra & Anr vs State
2012 Latest Caselaw 2568 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                             CRL. M.C. 4376/2011

                                              Date of Decision: 20.04.2012

KULSHRESTHA DHINGRA & ANR          ..... Petitioner
                Through: Mr. Anwesh Madhvkar, Advocate

                     versus


STATE                                           ..... Respondent
                              Through:   Ms. Fizani Husain, APP for State


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. The petitioners seek quashing of the FIR bearing No. 06/2010, P.S. Vasant Kunj under Section 327/380/242/392/397/506/34 IPC.

2. The petitioner no. 1 and 2 are the husband and wife. The complainant is the sister of petitioner no. 1. Petitioner no. 1 and the complainant had inherited one commercial property in Malviya Nagar from their deceased father. The complainant is a widow. Her deceased husband owned one residential flat in Sheikh Sarai which is in occupation of the two petitioners herein. The petitioner no. 1 and the complainant, i.e. the brother and the sister, decided to sell the property in Malviya Nagar and accordingly, they sold the same for Rs. 70 lacs. The complainant alleged in her complaint to the police that on 4 th January, 2010 when the sale deal was struck, the purchasers brought the cash

payment of Rs. 50 lacs to her house in two bags containing Rs. 25 lacs each. The two petitioners were also present at that time. Balance payment of sale consideration was allegedly made by the purchasers by way of cheques. It was further alleged that after the payment of sale consideration by the purchasers, the complainant, the petitioners and the purchasers went to NOIDA for the registration of sale deed. After getting the sale deed registered, the complainant came back to her house along with the petitioners. At that time, the petitioners beat her up and went away after taking away the entire cash payment of Rs. 50 lacs which had been kept by her in her house before leaving for NOIDA and while leaving her house the petitioners also took away another sum of Rs. 5 lacs which was also lying in the house besides some jewellery items. The FIR was registered by the police on 08.01.2010 and subsequently the chargesheet was filed on 14.02.2011. The petitioners filed a discharge application which was dismissed by the Ld. MM and Section 397 IPC was also added in the FIR. Thereafter, the case was transferred to the Court of the Ld. ASJ as after addition of Section 397 IPC the offence was triable exclusively by a Sessions Court. The Ld. ASJ after hearing the arguments on charges, was pleased to frame charges against the petitioners vide order dated 24.11.2011. Hence the present petition.

3. The impugned order of framing of charges is assailed mainly on the ground that (i) the contents of the FIR are highly absurd and improper for the reason that in the call made to PCR by the complainant, she alleged someone having snatched Rs. 5.00 lacs but, later in the complaint the amount of Rs.55.00 lacs was alleged to be taken by her brother. (ii) that it is unbelievable that robbery would be committed in a residential

area and no neighbour would see or hear the same. (iii) that it is unbelievable that no recovery was effected of the cash or knife or ATM card etc.

4. It is submitted that the dispute between the brother and sister was that of a property and it was only to settle the score that the complainant has filed false complaint against the petitioners. It is submitted that the allegation was of using knife by the petitioners, whereas as per the MLC report, injuries were simple and caused with a blunt object. It is submitted that during investigation 11 chance prints were lifted from the house of the complainant, out of which 10 chance prints were improper and one did not match with the sample finger prints of the petitioner. It is submitted that the petitioner No. 1 had received Rs. 25.00 lacs at his residence as his share, whereas other Rs.25.00 lacs was paid to the complainant by the purchasers at her residence.

5. Per contra, the learned APP submitted that there was no discrepancy in the DD entry of the complaint that was made by the complainant to the police and that discrepancy, if any was there, could not be attributed to the complainant. In this regard it is submitted that on receipt of information from PCR, the DD entry was recorded at the police station noting the incident of snatching of Rs. 5.00 lacs. However, from the PCR later it came to be informed that the complainant had reported about her brother and his wife having beaten her and taken away Rs. 50- 55 lacs. It is submitted that there was no delay in reporting the incident to the police and the delay, if any, in registration of the FIR, was due to investigation and for no fault of the complainant. It is also submitted by the learned counsel for the complainant that what was stated by the

complainant to the police was Rs.55.00 lacs, but it was mistakenly recorded by police as Rs.5.00 lacs in the DD as per the telephonic information of PCR. It is submitted that the offence was committed by the petitioner in a very planned and designed manner.

6. Before adverting to the submissions of learned counsel for the parties, it may be reiterated that the petition has been filed assailing the order of framing of charges. It is settled proposition of law that at the stage of framing of charges, the meticulous consideration of evidence and the material on record which on the face of it makes out the offence committed by the accused persons is not required. It was not to be seen as to whether the said material would ultimately result in conviction or not. The material which was enough to raise grave suspicion about the commission of offences against the accused persons was sufficient for framing of charges against them.

7. It may also be noted that the petition has been filed under Section 482 Cr. P.C. and that though the powers of this Court under this provision are wide in amplitude, but, such powers have to be used sparingly and cautiously only to prevent illegality or miscarriage of justice. The Hon'ble Supreme Court has repeatedly cautioned in the use of these powers. In the case of State of A.P. Vs. Gourishetty Mahesh and Others, 2010 CriLJ 3844, which reads thus:

"(12) While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether

on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, other wise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and bring about its closure without full-fledged enquiry. Though High Court may exercise its power relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other

enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482".

8. On receipt of information, the police reached at the spot i.e. at the residence of the complainant and found articles lying scattered in the drawing room. The complainant was found present with injuries on her person. She had stated about the deal regarding sale of property on the same day and the receipt of Rs.50.00 lacs to be shared by her and her brother. She kept the entire money in the bed room and they all went to NOIDA for registration of documents. There at NOIDA, remaining sale consideration amount of Rs.10.00 lacs each was paid by cheques to both of them by the purchasers. She stated that the incident happened when

she came back with her brother and his wife to her residence when both the petitioners beat her by locking her younger son in the bath room and took away the said Rs.50.00 lacs and her Rs.5.00 lacs as also her PAN Card, ATM Card etc. and that while running away, they threatened her at the point of knife. After investigation sections 342 and 392 IPC were also added in the FIR.

9. So far as the sale of property for Rs.70.00 lacs is concerned, there is no dispute. There is also no dispute that Rs.50.00 lacs was paid to the complainant/petitioner No. 1 in cash and that remaining Rs.10.00 lacs each was paid to both of them at NOIDA. According to the petitioners, the share of Rs.25.00 lacs of petitioner No. 1 was paid to him at his residence, whereas according to the complainant, the entire money was brought by the purchasers at her residence in the presence of the witnesses including the property dealer and the document writer and the entire money was kept at her residence before proceeding to NOIDA for execution of the documents. It is borne out from the investigation and also there is no dispute that after the execution of documents at NOIDA and handing over of the physical possession of the property to the buyers, the petitioners came to the residence of the complainant. During investigation it was found that both the petitioners fled away from the house of the complainant and the police tried to contact them on their mobile phones, but they could not be contacted for the whole night. Their residence at Sheikh Sarai was also found locked and they had employed two security guards at their residence for that night. It also came to be revealed during investigation that the petitioners had given an application at Police Station Malvia Nagar on 03.01.2010 i.e. a day

before the day of incident that they are going out of station on 4th January 2010, whereas they knew that they would be in Delhi on this day for the sale of their property. Assuming that the version of the petitioners was correct that they had taken Rs.25.00 lacs at their residence on the morning of 4th January, the fact remains that they had come to the residence of the complainant after the execution of the documents and thereafter fled away from the spot. This indicates of some incident having taken place at the residence of the complainant. These were all triable issues and raise suspicion of commission of some offences by the petitioners.

10. With regard to the plea of chance prints not matching the sample finger print of the petitioners, at this stage it would be suffice to note that 10 of the chance prints lifted by the crime team were improper and no comparison of these chance prints could be done. The only chance print which was compared did not match with the finger prints of the petitioners. At this stage that alone cannot be a ground for discharge of the accused persons. It is experienced that normally chance prints lifted from such places of incident are either improper or not suitable for comparison with sample prints, being hazy and incredible. In any case, this evidence also requires proper appreciation at the stage of trial.

11. The DD was recorded at the police station only on telephonic information of the PCR. The information which is ordinarily given by the PCR to the local police is regarding the incident and not about the details of the incident since the informers at times do not give the complete information to the PCR while reporting about the happening of some incident. It appears to have so happened that though the PCR had noted the information of the incident of robbery of Rs.50-55 lacs, but the

telephonic information that was noted in the DD was of Rs.5.00 lacs. In any case, no fault could be attributed to the complainant on this count and this is also a triable fact which could be later appreciated after evidence. There was also no inordinate delay in recording of DD or the FIR. The DD was recorded immediately on receipt of information from PCR and the FIR was also recorded after due investigation including taking of chance prints, the recording of the statements of the petitioners and the witnesses.

12. It is also noted that not only that the charges against the petitioners have been framed, but the statement of the complainant has also been recorded by the trial court. Though, it is not desirable to comment on the statement so made by the complainant, but, it is seen prima facie that she has stood the test of lengthy cross examination and supported the prosecution case.

13. In view of the above, I do not see any illegality or impropriety in the order of framing of charges against the petitioners.

14. The petition is hereby dismissed.

M.L. MEHTA, J.

APRIL 20, 2012 awanish