Delhi High Court
M.P.Sharma vs State & Ors. on 22 May, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 22, 2015
+ CRL. M.C. No.1360/2012
M.P. SHARMA ..... Petitioners
Through: Mr. Jai Gupta & Mr. Amit Verma,
Advocates
versus
STATE & ORS. ..... Respondents
Through: Ms. Nishi Jain, Additional Public
Prosecutor
Mr. Rakesh Tikku, Senior
Advocate with Mr. Naresh Sharma
& Mr.Sandeep Kumar, Advocates
for respondent No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
%
In a complaint under Sections 420/506/34 of the IPC, M.P.Sharma
Vs. Smt. Amita Chaturvedi & ors., respondents were summoned as
accused by the trial court and the revision petition preferred by
respondents No. 2 & 3 stands allowed vide impugned order.
At the hearing, learned counsel for petitioners submitted that the
impugned order discharging respondents No.2 & 3 for the offence in
question is liable to be quashed on the ground that the impugned order is
based on conjectures and surmises. Attention of this Court is drawn to
paragraphs No. 8 & 9 of the impugned order which read as under:-
Crl.M.C.No.1360/2012 Page 1
„Coming to the merits of the case, the respondent has not filed
any document on record to show that he has in fact, made any
payment in cash or by way of a cheque to the petitioners or that
he was promised 50% share holder in the plot in question
allotted by UPSIDC Ltd. in favour of petitioner No.1. The
respondent has annexed photocopy of a bank draft (Mark-X)
along with the complaint stating that he had prepared the same
from his own bank account in the name of UPSIDC and handed
over same to the petitioners for onward transmission to
UPSIDC Ltd. However, no evidence has been led by the
respondent to show that this draft was in fact, got prepared by
him from his bank account.
9. Even if be assumed that the amount mentioned by the
respondent in his complaint was paid by him to the petitioners,
at the most it can be said that he had provided loan for the said
amount to the petitioners. I do not find any element of cheating
anywhere apparent from the record."
Learned counsel for second and third respondent had placed on
record short synopsis to support the impugned order and to submit that
the trial court order discloses non application of mind. It was submitted
that petitioner had induced respondents No. 2 and 3 to invest their savings
in property and accordingly, they had purchased property-Plot No.316,
Sector-23, Gurgaon, Haryana, which was adjacent to the property/ house
of petitioner and respondent had paid the amount to petitioner as agreed.
It was vehemently denied that petitioner had ever paid `2,00,000/- in cash
Crl.M.C.No.1360/2012 Page 2
to respondents and infact, the entire amount for the purchase of plot was
arranged by respondent No.2 out of her own funds. It is submitted that
when respondent had not agreed to get the construction work done from
petitioner, he started harassing, threatening, blackmailing and defaming
respondents and the complaint in question is false, frivolous and vague
and that the dispute between the parties is of civil nature and no criminal
offence is made out. In support of above submissions, reliance is placed
upon decisions in Pepsi Food Vs. Special Judicial Magistrate 1998 AIR
(SC) 128; Ram Biraji Devi & Anr. Vs. Umesh Kumar Singh & anr. 2006
JT (11) 133; Inder Mohan Goswami & anr. Vs. State of Uttranchal &
ors. 2007 (12) SCC 1; V.Y.Jose & anr. Vs. State of Gujarat & anr. 2009
AIR SCW 307; Gajratj Jain Vs. State & anr. 2008 (147) DLT 93; Veer
Prakash Sharma Vs. Anil Kumar Aggarwal & anr.; Ajay Mitra Vs. State
of Madhya Pradesh 2003 (3) SCC 11; Kusum Sandhu & anr. Vs. Ved
Prakash Narang 2009 CrLJ (Del) 1078 and Suresh Vs. Madadevappa
Shivappa Danannava & anr. 2005 JCC (1) 405.
Upon hearing and on perusal of the impugned order as well as trial
court's order of 18th May, 2011, material on record and the decisions
cited, I find that except for bald assertion, petitioner has neither oral nor
documentary evidence to prima facie to show that he had paid
`2,00,000/- in cash to respondents No.2 & 3. Infact, second and third
respondents have relied upon bank draft (Mark -X), which was got
prepared from their account to show that the payment towards the
UPSIDC plot was made by respondents No. 2 and 3. Summoning of
respondents No. 2 & 3 by the trial court fails to take note of this vital
aspect. The alleged threat purportedly extended by respondents No.2 & 3
Crl.M.C.No.1360/2012 Page 3
does not appear to be plausible at all. Averments in the complaint are
quite ambiguous and improbable on the face of it.
To test the validity of a summoning order, the parameters to be
applied as reiterated by Apex Court in Pepsi Foods Ltd. & Anr. V. Special
Judicial Magistrate & Ors. (1998) 5 SCC 749 are as under:-
"Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant has
to bring only two witnesses to support his allegations in
the complaint to have the criminal law set into motion.
The order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the
case and the law applicable thereto. He has to examine
the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. The Magistrate has to carefully scrutinize
the evidence brought on record and may even himself put
questions to the complainant and his witnesses to illicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused."
Trial court has failed to take note of the vital facts of this case,
which have been duly considered by the Revisional Court in the
impugned order.
The Apex Court in State of Orissa v. Ujjal Kumar Burdhan (2012)
Crl.M.C.No.1360/2012 Page 4
4 SCC 547 has reiterated that inherent powers of this Court under Section
482 of the Cr.P.C. are to be exercised in exceptional cases. Pertinent
observations of the Apex Court in Ujjal Kumar (supra) on this aspect are
as under: -
"It is true that the inherent powers vested in the High
Court under Section 482 of the Code are very wide.
Nevertheless, inherent powers do not confer arbitrary
jurisdiction on the High Court to act according to whims or
caprice. This extraordinary power has to be exercised sparingly
with circumspection and as far as possible, for extraordinary
cases, where allegations in the complaint or the first
information report, taken on its face value and accepted in their
entirety do not constitute the offence alleged. It needs little
emphasis that unless a case of gross abuse of power is made
out against those in charge of investigation, the High Court
should be loath to interfere at the early/premature stage of
investigation."
Applying the afore-noted dictum of Apex Court in in Pepsi Foods
Ltd. and Ujjal Kumar Burdhan (Supra) to the facts of instant case, I find
no palpable error in the impugned order of 1st December, 2011 and so,
this petition is dismissed.
(SUNIL GAUR)
JUDGE
MAY 22, 2015
r
Crl.M.C.No.1360/2012 Page 5
