Sarita Dode vs State & Anr
2012 Latest Caselaw 6474 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRIMINAL M.C. NO.3800 OF 2012 & CRIMINAL M.A.
                   NO.18364 OF 2012 (FOR STAY)

                                        Decided on : 5th November, 2012

SARITA DODE                                           ...... Petitioner
                         Through:   Mr. S.C. Sagar & Mr. Bhisham Singh,
                                    Advocates.

                           Versus

STATE & ANR.                                          ...... Respondents
                         Through:   Mr. Sunil Sharma, APP for the State with


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. The petitioner has filed the present petition under Section 482

Cr.P.C. praying therein for quashing of order dated 14.8.2012 by virtue of

which she has been summoned in Complaint Case No.10/1/12, registered

at Police Station Fatehpur Beri to face the trial for an offence under

Section 420/380/34 IPC.

2. I have heard the learned counsel for the petitioner and gone

through the impugned order. The contention of the learned counsel for

the petitioner is that no case under Section 380 or 420 IPC is made out

warranting the summoning of the petitioner. In this regard, the learned

counsel for the petitioner has drawn the attention of the court to the

impugned order and the documents filed along with the petition.

3. I have carefully considered the submissions. The respondent No.2

filed a complaint case against the petitioner. It was alleged in the

complaint that the complainant, Suraj Bharti, was a permanent resident of

Khasra No.67, Village Sahurpur, near Chadanhola Bus Stop, New Delhi-

110074. He met accused No.1, Sarita Dode, the present petitioner, in the

office of Davish Group in the month of April, 2011, where she was

working as a receptionist. The said company was dealing in money

trading. It is alleged by the complainant/respondent No.2 that the

petitioner became familiar with him and in the month of May, 2011, he

was induced by the petitioner to part with a sum of `1 lac on the pretext

that she would invest the same in some money trading business which

will double his amount to `2 lacs within a period of two months. On the

basis of the said representation, the respondent No.2 is alleged to have

handed over an amount of `1 lac to the petitioner in the presence of

Vishal Baitha and Dhanraj Dode, who are accused Nos.2 and 3

respectively in the complaint. This amount was handed over on

10.5.2011. After a couple of months, that is, in the month of August,

2011, the respondent No.2 stated that he demanded his money back from

the petitioner but the amount was not returned, on the contrary, the

petitioner is alleged to have given a photocopy of her PAN card and voter

ID card to him with a view to gain his faith regarding the genuineness of

the investment being made by her.

4. The second allegation which is made by the respondent

No.2/complainant is that on 20.9.2011, the petitioner, who had come to

stay with complainant, left the house of the complainant whereupon, he

found out that a gold ring and a gold chain belonging to him were

missing. On 30.9.2011, the petitioner along with accused No.2, namely,

Vishal Baitha, again came at the residence of the complainant and it was

then that the complainant noticed that the accused No.2 was wearing his

gold chain and gold ring. It seems that the respondent/complainant had an

impression that both these items were stolen from his residence while the

present petitioner was living with him. The respondent/complainant

alleges that he made repeated complaints to the police and since they

failed to take any action, he lodged the complaint before the learned

Metropolitan Magistrate.

5. After filing of the complaint, the respondent No.2/complainant

examined himself as CW-1 and proved the complaint exhibit CW 1/A,

the notice exhibit CW1/B, he testified against the present petitioner in

respect of the averments made by him in the complaint. On the basis of

the averments made in the complaint as well as the statement of the

respondent, the present petitioner and accused No.2, Vishal Baitha, were

summoned for offences under Section 380 and 420 IPC. The learned

Metropolitan Magistrate did not summon accused No.3, that is, Dhanraj

Dode.

6. The present petitioner is feeling aggrieved by the aforesaid

summoning order. The learned counsel for the petitioner has raised

questions which go into the merit of the case or which raise the disputed

question of facts which can be adjudicated only once he enters into the

appearance and cross-examines the witness/complainant at the stage of

pre-charge evidence because both these offences, for which the present

petitioner has been summoned, are warrant trial offence where pre-charge

evidence has to be recorded. The learned counsel has not been able to

point out any abuse of the processes of law or any order required to be

passed in the interest of justice.

7. The law regarding summoning is very clear that in case, a prima

facie case of involvement of the accused in the commission of the offence

is made out, he is required to be summoned meaning thereby that at the

stage of summoning, the court does not have to conduct an elaborate

examination of the evidence adduced by the party concerned. The court

has to only see as to whether prima facie the ingredients of the offence in

respect of which the accused is summoned are made out.

8. In the instant case, the allegations were for various offences out of

which offences only under two sections prima facie have been held to be

substantiated by the learned Metropolitan Magistrate. These are the

offences of cheating inasmuch as the respondent alleges in his complaint

that the petitioner had induced him to part with a sum of `1 lac on the

pretext that she would get the amount doubled within a period of two

months. To that extent, the ingredients of Section 420 IPC, that is,

representation having been made to the complainant/respondent by the

present petitioner and the fact that the complainant has handed over a sum

of `1 lac to the petitioner, which means he has parted with the property in

cash, are satisfied. The other ingredients, that is, dishonest intention,

causing wrongful gain to herself and wrongful loss to the

respondent/complainant are also prima facie satisfied. Accordingly, the

petitioner has been rightly summoned for an offence under Section 420

IPC.

9. So far as the second aspect of summoning both these persons under

Section 380 IPC with the help of Section 34 IPC for having committed

the house theft and stealing a gold chain and a gold ring are concerned,

the respondent/complainant made an oral statement on the basis of which

the FIR was registered to the effect that a gold chain and a gold ring was

taken away from his residence. The said gold items were found to be

worn by the accused No.2, that is, Vishal Baitha. Section 114 sub-clause

(a) clearly lays down that if a person is found to be in possession of a

stolen property immediately after a theft, then either he may be presumed

to be a thief or he has received the goods knowing them to be stolen. In

the instant case, it seems that since there was proximity of time between

theft and wearing of these gold items by accused No.2, the learned

Metropolitan Magistrate was right in presuming that the petitioner was a

thief and accordingly, invocation of Section 380 IPC read with Section 34

IPC is also correct.

10. At the stage of summoning the petitioner as an accused, the court

has to undertake a limited exercise, that is to say, as to whether prima

facie the ingredients of Sections 380/420/34 IPC are made out or not.

This exercise, in my view, prima facie is amply established by the

respondent/complainant.

11. I do not find any gross abuse of the processes of law or any order

required to be passed in the interest of justice. Accordingly, the present

petition seeking quashing of the order of summoning dated 14.8.2012 is

totally misconceived and the same is dismissed.

V.K. SHALI, J.

NOVEMBER 05, 2012 'AA'