Virender Kumar (Deceased) ... vs State & Anr
2013 Latest Caselaw 3065 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P(CRL.) No. 607/2012

                                           Date of Decision: 19th July, 2013

VIRENDER KUMAR (DECEASED)
THROUGH HIS FATHER BISHMBER DAYAL           ..... Petitioner
             Through: Ms. Deepali Gupta, Advocate.

                                versus

STATE & ANR                                                ..... Respondents
                           Through:      Mr. Nikhil A. Menon, Advocate for
                                         Mr. Dayan Krishnan, ASC with SI
                                         Darmender Kumar, PS Roop Nagar.
                                         Mr. J.P. Dhanda and Mr. N.A.
                                         Usmani, Advocate for R-2.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                                JUDGMENT

:SUNITA GUPTA, J.

1. This is a writ petition under Article 227 of the Constitution of

India read with Section 482 of the Code of Criminal Procedure, 1973

(„Cr.P.C.‟) filed by the petitioner who is the father of late Sh. Virender

Kumar-complainant challenging the orders dated 21st May, 2009

passed by learned Additional Chief Metropolitan Magistrate

(„ACMM‟) and the order dated 3rd September, 2009 passed by learned

Additional Sessions Judge („ASJ‟), Delhi with the prayer to summon

the respondent in the complaint case filed by the deceased

complainant.

2. In brief, the facts are that in the year 1994 Sh. Virender came in

contact with M/s Raj & Company dealing in shares and stocks.

Respondent No.2 Sh. Rajinder Singh Beniwal introduced himself as

the proprietor of the firm. According to the complainant, he induced

him to invest money in the share business. As such, he purchased

shares from respondent No.2. Thereafter, respondent No.2 induced

him to deal in speculative transaction by depositing 20% to 25% of

margin money of shares intended to be sold or purchased by him.

Various transactions took place. In all, a sum of Rs.1,16,000/- was

paid in cash by the complainant to the respondent for shares to be

delivered to him. However, no receipt was issued by him. On

repeated persuasions, on 21st January, 1995, the respondent issued

receipt of Rs.1,16,000/- to the petitioner duly signed by him and also

returned the cheques of Rs.75,000/- and asked him to sign the receipt

also. Thereafter, the respondent on the pretext of seeing the receipt

took it back from the petitioner and added some lines despite strong

objection raised by the complainant. The said action was a fraud

committed by the respondent with dishonest intention to cause

damage/deface or cancel the document which was a valuable security

for receiving the principal amount as paid or receiving the shares

purchased against the said amount. The respondent, with dishonest

intention to defraud the petitioner, had added certain lines that he is

keeping Rs.1,16,000/- as margin money of shares worth Rs.2,36,000/-

to nullify the liability and to cheat the petitioner of his hard earned

money. Despite repeated attempts to contact the respondent for

getting back his hard earned money or the shares purchased from it,

the respondent refused to give the same, as such, various complaints

were filed but no action was taken. As such, criminal complaint No.

170/2008 under Sections 200 Cr.P.C. read with Sections

467/477/420/406/506 of Indian Penal Code,1860 („IPC‟) was filed

before learned Chief Metropolitan Magistrate („CMM‟), Tis Hazari

Courts, Delhi. Vide order dated 21st May, 2009 learned ACMM

dismissed the complaint holding that "it was a commercial transaction

which cannot come within the purview of cheating. As far as receipt

is concerned, I fail to understand as to how there was any forgery. It

is unbelievable that complainant who had soured relations with the

respondent would give further money and would also give back the

receipt to the respondent". This finding was challenged by filing a

revision, however, the revision was dismissed by learned Additional

District and Sessions Judge vide order dated 3rd September, 2009 on

the ground that "the receipt was altered in the presence of the

petitioner himself and was accepted by him, as such no offence is

made out". It was submitted that both the orders are erroneous and

mechanical, as such, it was submitted that the orders be set aside and

the respondent be ordered to be summoned.

3. Notice was given to the state as well as to respondent No.2,

who has filed his counter affidavit.

4. I have heard Ms. Deepali Gupta, learned counsel for the

petitioner, Mr. Nikhil A. Menon, learned counsel for respondent No.1-

State and Mr. J.P. Dhanda along with Mr. N.A. Usmani, learned

counsel for respondent No.2 and have perused the record.

5. It was submitted by learned counsel for the petitioner that the

receipt was a "valuable security" which has been dishonestly defaced

and cancelled by the respondent and as such respondent is liable to be

summoned and action is required to be taken against him in

accordance with law. On the other hand, it is submitted by learned

counsel for the respondent No.2 that the present petition is not

maintainable, inasmuch as, the petitioner is the father of late Sh.

Virender Kumar who had dealing with respondent No.2. Since the

complainant has died and the petitioner was never in picture as to any

transaction or discussions between deceased Virender Kumar and

respondent No.2, therefore, he has no legal right to file the writ

petition. Same has been filed only to harass respondent No.2.

Moreover, the issue pertains to the year 1994-95; deceased Virender

Kuamr had filed a complaint in District Consumer Disputes Redressal

Forum where the complaint was dismissed. His appeals before the

State Commission and National Commission were also dismissed.

Powers under Article 227 of the Constitution is only limited and can

be invoked only if there is want or excess of jurisdiction, failure to

exercise jurisdiction, violation of procedure or disregard of principle

of natural justice or error apparent on the face of the record. The

point has already been discussed and determined by five Courts and

cannot be re-agitated. As such the petition is liable to be dismissed.

6. Refuting the submission of learned counsel for respondent

No.2, it was submitted that after the death of the complainant, his

father being his legal representative is competent to file the writ

petition as he comes under the definition of „victim‟ as defined under

Section 2(wa). Moreover, since the lower Courts have failed to

exercise the jurisdiction vested with them, as such the writ petition is

perfectly maintainable.

7. As regards the maintainability of the writ petition filed by the

present petitioner, who is the father of the victim-complainant

Virender Kumar, in the definition clause, (wa) has been inserted by

Act 5 of 2009 in Section 2 of the Cr.P.C. It reads as under:-

(2wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."

8. A bare perusal of this definition clause goes to show that the

expression "victim" includes his or her guardian or legal heir.

Needless to say, the father of complainant is his legal heir, that being

so, the writ petition filed by him is maintainable.

9. Coming to the merits of the case it is the case of the petitioner

that during the course of various transactions between the petitioner

and respondent no.2, a sum of Rs.1,16,000/- was paid by the petitioner

to respondent no.2 for shares to be delivered to him. However the

respondent no.2 neither repaid the amount nor the shares. Ultimately

on 21.01.1995, he issued a receipt of Rs.1,16,000/- and also returned a

cheque of Rs.75,000/- but thereafter on false pretext, took it back and

then caused damage to the said document which was a valuable

security thereby nullifying his liability.

10. In the counter affidavit filed by respondent no.2, there is no

specific denial to this fact and only the averments made in the petition

have been vaguely denied. May be, it is a commercial transaction and

as per the averments made in the complaint itself, the petitioner on

seeing the advertisement himself approached respondent no.2 for

purchase of shares and therefore there was no inducement on the part

of respondent no.2 to the petitioner to purchase shares from him and

therefore offence under Section 420 may not be made out. But, so far

as, receipt is concerned, no presumption can be drawn that "the

complainant who was having sour relation with the accused would

not give further money or would also give back the receipt to the

accused", on which ground the complaint was dismissed by the

learned ACMM or that "since the alteration was made by the

respondent in the presence of the petitioner" and therefore no offence

is made out as observed by learned ASJ.

11. The averments made in the complaint which were substantiated

by the complainant while examining himself and other witnesses

made out a case of summoning respondent no.2, at least as regards

defacement of receipt which was a valuable security and falls within

the definition of Section 477 IPC. Whether the receipt could not have

been given back by the petitioner to respondent no.2 again or what

was its effect of having been signed in the presence of the petitioner

were required to be seen after summoning the respondent. But on the

basis of inference the complaint could not have been dismissed.

12. As regards dismissal of the complaints made by the

complainant before District Consumer Disputes Redressal Forum and

appeals by State Commission and National Commission, the same

were basically dismissed on the point of limitation and not on merits

of the case.

13. Under the circumstances, the writ petition is allowed. Impugned

order dated 21.05.2009 passed by the learned ACMM and order dated

03.09.2009 passed by learned ASJ are set aside. Respondent no.2 is

ordered to be summoned for offence under Section 477 IPC.

14. The case is accordingly remanded back to learned CMM of the

concerned District who may keep the case either with himself or may

assign it to Competent Court of jurisdiction. Petitioner as well as

respondent No.2 are directed to appear before learned CMM

concerned on 01.08.2013. Copy of this order along with the Trial

Court record be sent forthwith.

SUNITA GUPTA (JUDGE) July 19, 2013 AK/as