Archana Dalmia vs Nct Of Delhi & Anr.
2013 Latest Caselaw 2264 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                   CRL.M.C. No.1463 /2011

       ARCHNA DALMIA                                   .....Petitioner
                  Through:            Mr. N.K.Kaul, Senior Advocate
                                      with Mr. Vineet Malhotra,
                                      Advocate
                         Versus


      NCT OF DELHI & ANR.                                .....Respondents

                    Through:          Mr. Sunil Sharma, Additional
                                      Public Prosecutor for respondent
                                      No.1- State.
                                      Mr. R. Shamshad & Mr. Ahmad S.
                                      Azhar, Advocates for respondent
                                      No.2.
      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR


%                        ORDER
                         15.05.2013

1. In a criminal complaint under Sections 406/420 IPC, petitioner has been summoned as an accused by trial court vide order of 21 st July, 2010. Quashing of aforesaid criminal complaint (Annexure- P 2) and impugned summoning order is sought in this petition by posing the following question:-

" Whether the complainant or his associates had the financial capacity to own such ornaments/clothes and as to whether anyone would give expensive ornaments/ clothes as alleged without any receipt especially when the relations were strained?"

2. The factual background as emerges from the impugned order is that respondent-complainant is a social activist belonging to a reputed family of Bihar and has lot of ancestral property and ornaments. According to respondent-complainant, petitioner had developed good relations with her and had become family friend of respondent-complainant for last few years and on 24th March, 2007 petitioner requested respondent- complainant that petitioner had to attend a high profile party and wanted to wear fancy and special clothes and ornaments and had requested respondent-complainant to give it to her and had also assured return of the fancy clothes and ornaments within few days. Respondent- complainant asserts that in good faith she had handed over her own ornaments and had arranged some more ornaments from family jeweller at her own credit and had handed over them to petitioner-accused on 26th March, 2007 in presence of Smt. Snehi Prabha. The details of the ornaments given to petitioner by respondent-complainant find mention in paragraph No.4 of the impugned order. As per respondent-complainant the ornaments given to petitioner were worth `88,50,000/-.

3. It is the case of respondent-complainant that when she had asked for return of the ornaments which were given to petitioner-accused she did not return it on one pretext or another and a complaint was made to local police station on 28th July, 2007 but no action was taken thereon and hence criminal complaint in question was filed against petitioner-accused.

4. The pre-summoning evidence upon which petitioner-accused has been summoned comprises of deposition of respondent-complainant as

well as witness Smt. Snehi Prabha, in whose presence the ornaments were purportedly given to petitioner-accused by respondent-complainant.

5. In the impugned order, trial court has relied upon Apex Court decisions in Smt. Nagawwa Vs. Veeranna Shivalingappa Konhjalgi & ors. (1976) 3 SCC 736 to note that scope of inquiry under Section 202 of Cr.P.C. is extremely limited and on the basis of deposition of respondent- complainant and her witness, the petitioner-accused has been summoned.

6. Learned senior counsel for petitioner had drawn attention of this Court to various complaints made by petitioner and respondent- complainant against each other to highlight that stand of respondent- complainant of relations between the parties being cordial stands shattered from complaints/reminders (Annexure P-3 to Annexure P-6). Pertinently, the aforesaid complaints have been made during the period from April, 2006 upto July, 2007 and the background of making these complaints is dispute amongst petitioner and respondent-complainant regarding Rajiv Gandhi Educational Society. Attention of this Court was also drawn to a criminal complaint under Sections 120- B/420/467/468/471 of the IPC, instituted by the second respondent against petitioner and others and it relates to the dispute about NGO namely Rajiv Gandhi Educational Society in the first quarter of the year 2006 and the said complaint is said to be still pending before a criminal court in Delhi.

7. According to learned senior counsel for petitioner, the allegations levelled in the impugned complaint are ex facie absurd and so the

maliciously instituted complaint in question is an abuse of process of the Court and it deserves to be quashed. Reliance was placed upon decisions in Eicher Tractor Limited And Ors. Vs. Harihar Singh And Anr. (2008) 16 SCC 763, Parminder Kaur Vs. State of Uttar Pradesh And Anr. (2010) 1 SCC 322 and Sundar Babu And Ors. Vs. State of Tamil Nadu JT 2009 (13) SC 666 in support of above submissions.

8. On the contrary, learned counsel for contesting respondent No.2 had supported the impugned order and has submitted that the complaint in question (Annexure P-2) discloses the ingredients of the offence of cheating and misappropriation of jewellery and apart from the evidence of respondent No.2, there is statement of one witness to corroborate it and appreciation of evidence is not to be done at this stage and this Court ought not to embark upon an enquiry to find out as to whether the allegations in the complaint are likely to be established or not. Thus, it was contended on behalf of second respondent that a prima facie case is made out and so, no case for quashing the complaint (Annexure P-2) and the impugned order is made out and this petition deserves dismissal.

9. Upon hearing both sides and on perusal of the complaint (Annexure P-2), impugned order, material on record and the decision cited, this Court finds that inherent powers are to be exercised on the parameters spelt out by the Apex Court in State of Haryana Vs. Bhajan Lal 1992 supp (1) SCC 335, as reiterated in Eicher Tractor (Supra). No doubt inherent powers of this Court cannot be exercised to stifle a legitimate prosecution and this Court is not to embark upon an enquiry as to whether

the allegations in the complaint are likely to be established or not but certainly it is within the domain of this Court to accept the compliant on its face value and then to see as to whether its institution and continuance would be an abuse of the process of the Court or not.

10. The scope of exercise of power under Section 482 of the Cr.P.C., as restated in Eicher Tractor (Supra), is that this power is to be exercised on sound principles and in deserving cases only. One of the illustrative category indicated by the Apex Court in Bhajan Lal (Supra), to which attention of this Court was drawn, is as under:-

''(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.''

11. In Nagawwa (Supra), relied upon in the impugned order, it is noted that scope of inquiry is limited only to the ascertainment of the truth or falsehood of allegations in complaint, which has escaped the attention of the trial court. Limited scrutiny of allegation levelled does not mean that at summoning stage court has to act like a post office. Where allegations levelled in the complaint are absurd on the face of it, then court in its jurisdiction ought to dismiss such a malicious complaint.

12. Pertinently, the second respondent has not disputed the making of complaints (Annexures- P-4 & P-6) by her regarding dispute of illegal registration of NGO in the name of Rajiv Gandhi Educational Society at Gwalior and of taking action against petitioner and other persons.

Respondent No.2 in her response to this petition, has rather admitted the making of the aforesaid complaints against petitioner and others, in these words:-

'"The complaint made against the present Petitioner by the Complainant with respect to DPS society is being separately tried and appropriate action as per law shall be taken in that regard."

13. According to learned counsel for respondent No.2, petitioner is trying to mix up another offence which is subject matter of pending criminal complaint under Sections 120-B/420/467/468/471 of the IPC by her against petitioner and others. Relevantly, the prior complaints (Annexures- P-4 to P-6) precede the complaint in question and in this context it is to be seen as to whether any prudent person would lend anything to the other person against whom allegations of cheating, forgery etc. have been already levelled. Even if the complaint (Annexure P-2) in question is taken at its face value, no prudent person would even prima facie accept that on friendly terms jewellery worth `88,50,000/- would be handed over by a person to another person against whom allegation of cheating, forgery etc. have been already levelled prior to so called friendly transaction as alleged in the instant complaint. To say the least, by any stretch of imagination, lending of jewellery of `88,00,000/- odd on friendly basis, cannot be countenanced in view of the prior acrimonious relations between petitioner and respondent No.2. Thus, it becomes manifestly clear that complaint (Annexure P-2) is maliciously instituted by respondent No.2 against petitioner due to acrimonious relations between them, as is evident from the complaints (Annexures- P- 4 to P-6) whose existence is not in dispute.

14. Finding the allegations levelled in the complaint in question to be absurd on the face of it, I hold that this complaint (Annexure P-2) is nothing but an abuse of the process of the Court. Applying the ratio of Apex Court's decisions in Sundar Babu (supra) and Parminder Kaur (supra), this petition is allowed and the complaint (Annexure P-2) as well as impugned order are hereby quashed.

15. This petition and pending application are accordingly disposed of.

(SUNIL GAUR) Judge MAY 15, 2013 vn/r