Anil Sood vs The State & Anr
2014 Latest Caselaw 2361 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CRL.M.C. No. 2240/2014
                                 Date of decision: 09th May, 2014
ANIL SOOD                                  ..... Petitioner
                          Through Mr. R.N. Sharma, Adv.
             versus

THE STATE & ANR                      ..... Respondents
              Through Mr. Parveen Bhati, APP for the State
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

Crl.M.A. No. 7498/2014 The application is allowed subject to just exceptions. Application stands disposed of.

Crl.M.C. No. 2240/2014

1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 the petitioner seeks setting aside of the order dated 25.3.2014 passed by learned Additional Sessions Judge, West, Delhi whereby revision petition filed against the order dated 13.1.2014 passed by Metropolitan Magistrate was dismissed.

2. The petitioner filed a complaint under Section 200 of the Cr.P.C. for summoning the accused under Sections 420/406/506 IPC on the allegations, inter alia, that in the year 2010 prospective accused Manmeet Singh approached the petitioner that he had experience in the manufacturing of motorcycle silencers and if the complainant could arrange funds to the tune of Rupees 1.00 crore (Rupees one crore) approximately, in that event he will enter into partnership with the complainant and that by carrying out the said business, they would earn huge profits. The petitioner entered into partnership business

under the name and style of M/s H.R. Industries and the petitioner invested a sum of Rs.43.00 lakhs (Rupees forty three lakhs) during the period 2.6.2010 to 4.9.2010. The said amount was duly endorsed by Respondent No.2/Manmeet Singh. Thereafter the petitioner could not arrange further funds. On 23.12.2012 the petitioner managed to pay Rs.38.00 lakhs (Rupees thirty eight lakhs). A partnership deed dated 24.12.2012 was also executed. The partnership business started in Khasra No.344, Village Hiran Kudna, Mundka, New Delhi with old machines and raw material purchased by Mr. Manmeet Singh who applied for VAT registration in the name of partnership firm. The VAT registration was allowed by the competent authority on 20.2.2013.

3. The petitioner has also alleged that thereafter, Mr. Manmeet Singh projected that he was not having funds to run the factory because of cruch of funds on his part and it would be of great help, if the petitioner advanced him a loan of Rs.5.00 lakhs (Rupees five lakhs). Since the complainant had already invested a sum of Rs.81.00 lakhs (Rupees eighty one lakhs) in the partnership business, he had no option but to accede to the said request. The petitioner started developing suspicion on the bona fide of the accused and he insisted to sign a loan agreement for the said amount. On receipt of loan of Rs.5.00 lakhs (Rupees five lakhs), the accused signed the said loan agreement dated 11.5.2013 and issued two post dated cheques dated 11.11.2013 bearing No.203904 and 203905 for Rs.1.50 lakhs (Rupees one lakh and fifty thousand) each and another cheque No.203906 dated 11.11.2013 for Rs.2.00 lakhs (Rupees two lakhs), in favour of the petitioner/complainant.

4. The petitioner/complainant also alleged that on 7.7.2013 the petitioner visited the factory premises and found that accused, Manmeet Singh had looted the machines and raw materials in trucks

bearing No.HR-69B-4786, HR-55D-6032, HR-63-6149 and HR-55Q- 5091 and was in the process of taking away the goods which belonged to the partnership business. When the complainant raised an objection, the accused, Manmeet Singh along with his father threatened the complainant to take his life. The petitioner informed PCR on 9.7.2013 and 10.7.2013. The PCR officials took the trucks as well as prospective accused to P.S Mundka but the local police colluded with him and the trucks were let off. The petitioner also sent a complaint dated 9.7.2013 to DCP, West and another complaint on 12.7.2013 to Joint Commissioner of Police, Police Head Quarter I.P. Estate, New Delhi but no FIR was registered.

5. Along with the complaint an application under Section 156(3) Cr.P.C. was also filed by the petitioner.

6. I have given my thoughtful consideration to the contentions raised by the counsel for the petitioner in the light of facts and circumstances of the case.

7. It is well settled that when a criminal complaint is filed before the Magistrate and upon perusal it is found that if it discloses a cognizable offence having been committed, two courses are open to the Magistrate. He may chose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such direction would stay his hand till report under Section 173 Cr.P.C. is submitted by the police, on which further process of law would follow.

8. The law governing the choice to be exercised from amongst the two options has been settled by this Court in M/s. Skipper Beverages

Pvt. Ltd. vs. State, 2001 IV AD (Delhi). In the said case it was held that a Magistrate must apply his mind before passing an order under Section 156(3) Cr.P.C. and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for some recovery of articles or discovery of facts.

9. In another case Gulab Chand Upadhyay vs. State (2002) Crl.L.J. 2907, it was held that the use of the word `may' in Section 156(3) Cr.P.C. in contradistinction to the word `shall' in Section 154 Cr.P.C. clearly indicates that the Magistrate has the discretion to refuse registration of FIR.

10. The well settled guidelines are laid down by this Court in respect of invoking provisions of Section 156(3) Cr.P.C. in Subhkaran Luharuka vs. State, (170) 2010 DLT 516, in para 52A, the guidelines have been summarized as under:-

"52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under:-

(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused

in the Complainant. It should also be examined what action was taken by the SHO,

(ii) or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.

(iii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.

Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.

(iv) The Magistrate, when approached with a Complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to

postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.

(v) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-

requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."

11. Thus, the Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that the allegations are serious enough

and establish the commission of cognizable offence required through investigation by the police, an FIR should be ordered to be registered.

12. In the instant case, the parties are known to each other. The evidence on which the petitioner relies is within his knowledge and control and if need were to arise for investigation, such possibility is not precluded as Trial Court has entered upon the inquiry under Sections 200 and 202 Cr.P.C. Proviso to Section 202 Cr.P.C. permit such investigation to be ordered at an appropriate stage of the proceedings.

13. In view of the aforesaid facts and circumstances of the case, there is no illegality or infirmity in the impugned order dated 25.3.2014 passed by learned Additional Sessions Judge, (West), Delhi.

14. In view of the above discussion the petition is, therefore, dismissed.

(VED PRAKASH VAISH) JUDGE

MAY 09, 2014 aj