B. Sriram & Ors. vs Govt Of Nct Of Delhi
2015 Latest Caselaw 8679 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CRL.M.C. 450/2013
                                 Date of Decision : November 23rd, 2015
    B. SRIRAM & ORS.                                      ..... Petitioners
                  Through              Mr.K.T.S. Tulsi, Sr. Adv. with
                                       Mr.Vikas Singh, Sr. Adv. with
                                       Mr.Anil Kumar Sangal, Mr.Siddharth
                                       Sangal and Mr.Raj Kamal, Advs.

                        versus

    GOVT OF NCT OF DELHI                                  ..... Respondent
                 Through               Mr.G.M. Farooqui, APP with IO Insp.
                                       Ramesh Chander, PS DIU/S.W.
                                       Mr.S. Bajaj, Adv. for R-2.
           CORAM:
           HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The present petition under Section 482 Code of Criminal

Procedure, 1973 (hereinafter mentioned as "Cr.P.C.") has been filed

by the petitioners, namely, Mr.B. Sriram, Mr.N.K. Arora and Mr.

Ram Pal Singh for quashing of Criminal Complaint No.7/2 titled

"Satwant Singh Dahiya v. Shakuntala Dahiya & Ors.", for quashing

of order dated 07.05.2012 passed by the learned Metropolitan

Magistrate-6, Saket Court, Delhi and FIR No.98/2012, Police Station

R.K. Puram.

2. Factual matrix, emerges from the record, is that the

complainant/respondent No.2 Satwant Singh Dahiya is the son of late

Brig. B.S. Dahiya who expired on 08.04.2000. Smt. Shakuntala

Dahiya is the second wife of the father of the complainant. Smt.

Shakuntala Dahiya and her children were having strained relations

with the father of the complainant, due to which his father executed a

Will bequeathing his estate to the complainant and to the exclusion of

other accused persons. Deceased was having a PPF account, a saving

bank account and a locker in State Bank of India, R.K. Puram apart

from other movable and immovable assets. Smt. Shakuntala Dahiya

and Sh. Deshwant Singh Dahiya approached SBI, R.K. Puram to

claim the money in the PPF account No. 900390 of the deceased.

Smt. Shakuntala Dahiya filed a suit bearing CS(OS)No.584/02 and

obtained an ex-parte injunction on 15.03.2002 restraining all the

parties from selling, transferring, alienating, parting with possession

or creating third party interest and maintenance of status quo with

regard to the said properties. In compliance of the same, the Bank

froze the accounts of the deceased. It was alleged in the complaint

that on 12.08.2011, the accused persons including the bank officials

including the petitioner No.3 facilitated the withdrawal of

Rs.6,30,339.98 from the said PPF Account of the deceased on the

basis of forged and fabricated documents. Thereafter, the

complainant approached the said Bank on 01.11.2011 against the

release of the said PPF amount to Smt. Shakuntala Dahiya. After a

meeting, the Bank approached Smt. Shakuntala Dahiya who was

requested to bring the PPF money back and the same was restored to

the bank on 18.11.2011 which is now lying in the form of two TDRs.

The complainant had prayed for summoning and punishing the

accused persons for various offences.

3. The learned MM, on an application under Section 156(3) of the

Cr.P.C, vide order dated 07.05.2012 directed the SHO, Police Station

R.K. Puram to register a case. In pursuance of the directions, FIR

No.98/2012 under Sections 404, 468, 120B, 465, 406, 471, 380, 466,

409, 472, 403, 467, 420 and 477A IPC was registered.

4. Feeling aggrieved of the filing of the criminal complaint,

passing of the order dated 07.05.2012 and registration of

abovementioned FIR, the present petition for quashing the same has

been filed by the petitioners.

5. Status report was filed by the State. Arguments advanced by

the learned Senior Counsel for the petitioners, learned Additional

Public Prosecutor for the State and learned counsel for the respondent

No.2/complainant have been heard.

6. Arguments advanced by the learned Senior Counsel for the

petitioners are that there were no specific allegations against the

petitioners in the complaint on the basis of which the ld. Magistrate

directed to register the said FIR. The petitioners were the bank

officials and had no personal role in the commission of the alleged

offence. The petitioners cannot be proceeded against, as the principle

of vicarious liability does not apply in the offences under the Indian

Penal Code, 1908. It is further argued that the registration of FIR in

the present case is just an attempt to bring financial institutions on

their knees as it is an unhealthy situation to direct the police to

register FIR only on the basis of contents of the application. It is

further argued that there is no criminal conspiracy amongst the

petitioners and at the maximum it only amounts to negligence in

discharging official work.

7. In support of the above contentions, reliance has been placed on

a judgment in the case of Saroj Kumar Poddar v. State (NCT of

Delhi) and another (2007) 3 SCC 693 in which it was observed by

the Hon'ble Apex Court that with a view to make a Director of a

company vicariously liable for the acts of the company, it was

obligatory on the part of the complainant to make specific allegations

as are required in law.

In another judgment in the case of S.M.S. Pharmaceuticals

Ltd. v. Neeta Bhalla and another (2007) 4 SCC 70, it was observed

by the Hon'ble Apex Court that sufficient averments should be made

to show that the person who is sought to be proceeded against on the

premise of his being vicariously liable for commission of an offence

by the Company must be in charge and shall also be responsible to the

Company for the conduct of its business. It was further observed that

the liability of a Director must be determined on the date on which the

offence is committed. On similar point, judgment in case of Maksud

Saiyed v. State of Gujarat and others (2008) 5 SCC 668 has been

relied upon.

8. Next judgment relied upon by the petitioners is in the case of

GHCL Employees Stock Option Trust v. India Infoline Limited

(2013) 4 SCC 505 in which it was observed that in the order issuing

summons, the learned Magistrate has not recorded his satisfaction

about the prima facie case and the role played by Managing Director,

Company Secretary or Directors which is sine qua non for initiating

criminal action amongst them. On similar point, judgment in the case

of Thermax Limited and others v. K.M. Johny and others (2011) 13

SCC 412 has been relied upon.

9. Next judgment relied upon is in the case of Priyanka

Srivastava and another v. State of Uttar Pradesh and others (2015)

6 SCC 287 in which the Hon'ble Apex Court observed that issuing a

direction stating "as per the application" to lodge an FIR creates a

very unhealthy situation in society and also reflects the erroneous

approach of the learned Magistrate. It also encourages unscrupulous

and unprincipled litigants to take adventurous steps with courts to

bring the financial institutions on their knees.

In Rishipal Singh v. State of Uttar Pradesh and another

(2014) 7 SCC 215, it was observed that the courts should not allow a

litigant to file vexatious complaints to otherwise settle their scores by

setting the criminal law into motion, which is a pure abuse of process

of law and it has to be interdicted at the threshold. It was further

observed that even assuming that the Branch Manager has violated

the instructions, all it amounts to is negligence in discharging official

work and at the maximum it can be said that it is dereliction of duty.

10. On the other hand, learned counsel for the respondent no.2 has

argued that the investigation of the case is at the initial stage. The

role of each of the petitioners is yet to be ascertained and any

interference by the Court would result into premature death of the

prosecution case. The petitioners were entrusted with the public

money. It is further argued that the conspiracy is apparent from the

fact that the documents were prepared for making payment of money

from the PPF account of the deceased. The petitioners being officers

of the bank had no authority to convert the amount of PPF into a term

deposit and that too in the name of a dead man.

11. The arguments advanced from both the sides and the judgments

relied upon have been gone into detail.

12. The aspect of "investigation" is mentioned in Section 156 and

Section 202 Cr.P.C. Under Section 202 Cr.P.C., any Magistrate on

the receipt of complaint made to him under Section 192 Cr.P.C.,

could postpone the issue of process and get the investigation made

from the police officer. Secondly, investigation under Section 156(1)

Cr.P.C. is by the police officer on the receipt of complaint and

without the order of the Magistrate in the cognizable offence.

Thirdly, under Section 156(3) Cr.P.C., where the Magistrate is

empowered under Section 190, he may order such an investigation.

13. Section 156 of the Cr.P.C. reads as under :

"156. Police officer's power to investigate cognizable cases (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate (3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned."

14. In P. Kannappan v. State of Kerala (Reported in 2006 (1)

RCR (Criminal) 165), it was observed by the Kerala High Court that

the Magistrate can adopt two options when a complaint is filed before

him. He may direct the police to investigate and file the report. He

may take cognizance and proceed under Section 202 of Cr.P.C.

Similar views have been expressed by Hon'ble Apex Court in

the case of Rameshbhai Pandurao Hedau v. State of Gujarat, AIR

2010 SC 1877 in which it was held that the power to direct an

investigation to the police is available to the Magistrate both under

Section 156(3) Cr.P.C. and under section 202 Cr.P.C. The powers

under Section 156(3) Cr.P.C. to direct an investigation by the police is

at the pre-cognizance stage while the power to direct similar

investigation under section 202 Cr.P.C. is at the post-cognizance

stage.

This Court in Ravindra Kumar v. State (Govt. of NCT of

Delhi) & Anr. 2013 VIII AD (Delhi) 403 held that remedy under

section 156(3) of Cr.P.C. is a discretionary one as the provision

proceeds with the word 'may'. The Magistrate is required to exercise

his mind while doing so and pass orders only if he is satisfied that the

information reveals commission of cognizable offence/offences and

also about necessity of Police investigation for digging out of

evidence which is neither in possession of the complainant nor can be

procured without the assistance of police.

In Maksud Saiyed v. State Of Gujarat & Ors, 2008(1)CTC259

the Hon'ble Apex court observed that where a jurisdiction is exercised

on a complaint filed in terms of Section 156(3) or Section 200 of the

Cr.P.C., the Magistrate is required to apply his mind.

As also held by Apex Court in Suresh Chand Jain v. State of

Madhya Pradesh & Ors. 2001 (1) Supreme Page 129

"7. It is true that Section 156(3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156(3) of the Code. The discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interests of justice demand that the police should step in to held the complainant.

The police assistance can be taken by a Magistrate even Under Section 202(1) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code"

In Meenakshi Anand Sootha v. State, 2007(4) JCC 3230

Delhi, this Court observed that it is well settled that under Section

156(3), CrPC, the Magistrate has not to pass the order mechanically

and has to apply his judicial mind. On this point, decision of this

Court, Skipper Beverages Pvt. Ltd. v. State, 2001 IV AD (Delhi) 625,

may be referred to in which it was held:

"It is true that Section 156(3) of the Code empowers to Magistrate to direct the police to register a case and initiate investigation but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases where the allegations are not very serious and the complainant himself is a possession of evidence to prove his allegations there should be no need to pass order under Section 156(3) of the Code. This discretion ought to be exercised after proper application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the court and interest of justice demand that the police should step in to help the complainant."

Further in Subhkaran Luharuka & Anr. v. State (Govt. of

NCT of Delhi) & Anr., 170 (2010) DLT 516, for guidance of

subordinate courts, the procedure to be followed while dealing with an

application under Section 156(3), Cr.P.C. 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, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.

(ii) 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.

iii) 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.

(iv) 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.

In Devarapalli Laxminarayana Reddy and Ors. v. Narayana

Reddy and Ors., MANU/SC/0108/1976, the Hon'ble Supreme Court

explained the powers of the Magistrate under Section 156(3), Cr.P.C.

wherein it is held that, it is well settled that when a Magistrate

receives a complaint, he is not bound to take cognizance if the facts

alleged in the complaint, disclose the commission of an offence. This

is clear from the use of the words "may take cognizance" which in the

context in which they occur cannot be equated with must take

cognizance". The word "may" gives a discretion to the Magistrate in

the matter. If on a reading of the complaint he finds that the

allegations therein disclose a cognizable offence and the forwarding

of the complaint to the police for investigation under section 156(3)

will be conducive to justice and save the valuable time of the

Magistrate from being wasted in enquiring into a matter which was

primarily the duty of the police to investigate, he will be justified in

adopting that course as an alternative to taking cognizance of the

offence, himself.

In Dilawar Singh v. State of Delhi, MANU/SC/3678/2007 the

Hon'ble Supreme Court took the view as follows:

17. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of Cr.P.C. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all, registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of Cr.P.C. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Cr.P.C. that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Cr.P.C. only thereafter.

In S.N. Sharma v. Bipen Kumar Tiwari & Ors., [(1970) 1 SCC

653], it was observed that even in sub- section (3) of Section 156, the

only power given to the Magistrate, who can take cognizance of an

offence under Section 190, is to order an investigation; there is no

mention of any power to stop an investigation by the police. The

scheme of these sections, thus, clearly is that the power of the police

to investigate any cognizable offence is uncontrolled by the

Magistrate, and it is only in cases where the police decide not to

investigate the case that the Magistrate can intervene and either direct

an investigation, or, in the alternative, himself proceed or depute a

Magistrate subordinate to him to proceed to enquire into the case. The

power of the police to investigate has been made independent of any

control by the Magistrate."

In Dharmeshbhai Vasudevbhai & Ors. v. State of Gujarat

(2009) 6 SCC 576, the Hon'ble Supreme Court held and observed that

it is well settled that any person may set the criminal law in motion

subject of course to the statutory interdicts. When an offence is

committed, a first information report can be lodged under Section 154

of the Code of Criminal Procedure (for short, `the Code'). A

complaint petition may also be filed in terms of Section 200 thereof.

However, in the event for some reasons or the other, the first

information report is not recorded in terms of sub-section (1)

of Section 156 of the Code, the magistrate is empowered under sub-

section (3) of Section 156 thereof to order an investigation into the

allegations contained in the complaint petition. Thus, power to direct

investigation may arise in two different situations - (1) when a first

information report is refused to be lodged; or (2) when the statutory

power of investigation for some reason or the other is not conducted.

When an order is passed under sub-section (3) of Section 156 of the

Code, an investigation must be carried out. Only when the

investigating officer arrives at a finding that the alleged offence has

not been committed by the accused, he may submit a final form; On

the other hand, upon investigation if it is found that a prima facie case

has been made out, a charge-sheet must be filed.

In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.,

AIR2005SC4284, the Court while dealing with the power of

Magistrate taking cognizance of the offences, has opined that having

considered the complaint, the Magistrate may consider it appropriate

to send the complaint to the police for investigation under Section

156(3) of the Code of Criminal Procedure. When a Magistrate

receives a complaint he is not bound to take cognizance if the facts

alleged in the complaint disclose the commission of an offence. The

Magistrate has discretion in the matter. If on a reading of the

complaint, he finds that the allegations therein disclose a cognizable

offence and the forwarding of the complaint to the police for

investigation under Section 156(3) will be conducive to justice and

save the valuable time of the Magistrate from being wasted in

enquiring into a matter which was primarily the duty of the police to

investigate, he will be justified in adopting that course as an

alternative to taking cognizance of the offence itself. As said earlier,

in the case of a complaint regarding the commission of cognizable

offence, the power under Section 156(3) can be invoked by the

Magistrate before he takes cognizance of the offence under Section

190(1)(a). However, if he once takes such cognizance and embarks

upon the procedure embodied in Chapter XV, he is not competent to

revert back to the pre-cognizance stage and avail of Section 156(3).

In Ramdev Food Products Private Limited v. State of Gujarat,

AIR2015SC1742 while dealing with the exercise of power

under Section 156(3) CrPC by the learned Magistrate, a three-Judge

Bench has held that: ".... the direction under Section 156(3) is to be

issued, only after application of mind by the Magistrate. When the

Magistrate does not take cognizance and does not find it necessary to

postpone instance of process and finds a case made out to proceed

forthwith, direction under the said provision is issued. In other words,

where on account of credibility of information available, or weighing

the interest of justice it is considered appropriate to straightaway

direct investigation, such a direction is issued. Cases where

Magistrate takes cognizance and postpones issuance of process are

cases where the Magistrate has yet to determine "existence of

sufficient ground to proceed."

In Mohd. Salim v. State, 175 (2010) DLT 473 the Hon'ble

Supreme Court observed that the use of the expression "may" in sub-

section (3) of Section 156 of the Code leaves no doubt that the power

conferred upon the Magistrate is discretionary and he is not bound to

direct investigation by the Police even if the allegations made in the

complaint disclose commission of a cognizable offence. In the facts

and circumstances of a given case, the Magistrate may feel that the

matter does not require investigation by the Police and can be proved

by the complainant himself, without any assistance from the Police. In

that case, he may, instead of directing investigation by the Police,

straightaway take cognizance of the alleged offence and proceed

under Section 200 of the Code by examining the complainant and his

witnesses, if any. In fact, the Magistrate ought to direct investigation

by the Police only where the assistance of the Investigating Agency is

necessary and the Court feels that the cause of justice is likely to

suffer in the absence of investigation by the Police. The Magistrate is

not expected to mechanically direct investigation by the Police

without first examining whether in the facts and circumstances of the

case, investigation by the State machinery is actually required or not.

If the allegations made in the complaint are simple, where the Court

can straightaway proceed to conduct the trial, the Magistrate is

expected to record evidence and proceed further in the matter, instead

of passing the buck to the Police under Section 156(3) of the Code. Of

course, if the allegations made in the complaint require complex and

complicated investigation of which cannot be undertaken without

active assistance and expertise of the State machinery, it would only

be appropriate for the Magistrate to direct investigation by the Police.

In Priyanka Srivastava & Anr. V. State of U.P. & Ors. 2015,

AIR (SCW) 2075, it was held :

"24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.

25. Issuing a direction stating "as per the application" to 27 CRL.A.781/12 lodge an FIR creates a very unhealthy situation in the society and also reflects

the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a 28 CRL.A.781/12 citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple

application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.

26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."

15. Under the Code of Criminal Procedure, 1973, the concerned

Magistrate, competent to take the cognizance, is vested with the

power under Section 156(3) Cr.P.C. to take the necessary assistance

of the investigation to reach to the just conclusion for the purpose of

taking the cognizance. The discussion made above culminated into

the legal position that the power under Section 156(3) Cr.P.C. is

discretionary power vested with the Magistrate competent to take the

cognizance of the offence sparingly and in exceptional circumstances,

after due application of the mind and justifying the need of the

assistance by way of investigation from the police. The power under

Section 156(3) Cr.P.C. more or less depends on the facts and

circumstances of each case and to the satisfaction of the Magistrate

concerned. The above mentioned powers are ought to be exercised by

the Magistrate concerned in the light of observations made by the

Hon'ble Apex Court as well as by this Court, as discussed above.

16. The Code of Criminal Procedure, 1973 envisages the

provision of sub-section (3) of Section 156 empowering the

Magistrate competent to take the cognizance having the judicial

discretion at the earliest stage, to seek the assistance by way of

investigation from the investigating agency.

This can be done on the basis of subjective satisfaction to be

reflected from the detailed speaking order, in exceptional cases

exercising the due application of mind, avoiding the undue

advantage/unnecessary inconvenience to the person, to curb the

unnecessary delay, to reach the just decision to take the cognizance

and strictly in accordance with the law laid down by the Hon'ble

Apex Court as discussed above.

17. In the present case, it is not in dispute that all the petitioners

were the bank officials and were posted in different departments at the

relevant time. It is apparent from the record that petitioner no.1 B.

Sriram joined as Chief General Manager, SBI, Local Head Office,

New Delhi on 03.10.2011, whereas petitioner no.2 N.K. Arora joined

the concerned branch of the bank on 28.09.2011. It is an admitted fact

that the PPF amount of Rs.6,30,340/- lying in the account of the late

father of the complainant/respondent No.2 was released to Smt.

Shakuntala Dahiya on 12.08.2011 i.e. to say prior to joining of

petitioner no.2-N.K. Arora in the concerned branch of the bank. Thus,

there is no role of petitioner no.2-N.K. Arora in the release of said

amount to Smt. Shakuntala Dahiya. So far as petitioner no.1-B.

Sriram is concerned, he was never posted in the said branch of the

SBI. He joined as Chief General Manager, SBI, Local Head Office,

New Delhi only on 03.10.2011 i.e. after the release of money to Smt.

Shakuntala Dahiya.

18. The State has filed the status report on record which also shows

that during the investigation, the prosecution did not find any

involvement of petitioner no.1-B.Sriram and petitioner no.2-N.K.

Arora, directly or indirectly, in any manner with the accused Smt.

Shakuntala Dahiya. Even in the complaint made by the respondent

no.2/complainant, there is no averment against petitioner nos.1 and 2

that they had ever released the money to accused- Smt. Shakuntala

Dahiya which was lying in the PPF account of the late father of the

complainant. In the entire complaint, there is no role attributed to

petitioner nos.1 and 2 with regard to criminal conspiracy or forging

the documents. The contention of the learned counsel for the

complainant that the investigation is still going on and the role of the

accused persons including the petitioners is yet to be ascertained, does

not have any force inasmuch as the status report filed by the

prosecution itself shows that there is no involvement of petitioner

nos.1 and 2 in any manner in the present case.

19. In view of the above discussion, this Court is of the considered

opinion that summoning of petitioner nos.1 and 2 amounts to abuse of

process of law as there is no material against them.

20. Learned Senior Counsel for the petitioners further argued that

the complainant has failed to make any specific allegation against

petitioner no.3. The allegation of fraudulent withdrawal or

conspiracy does not stand. There is no averment with regard to

criminal conspiracy or prior meeting of mind prior to the commission

of the offence. It is submitted that in the nomination form, the

deceased made Smt. Shakuntala Dahiya the nominee to collect the

amount in case of death of the subscriber. The claim of the claimant

was scrutinized by the bank as per the standard guidelines and due

process was followed in dealing with the claim.

21. In support of the above contentions, reliance has been placed in

case of Gunmala Sales Private Limited and others v. Navkar

Promoters Private Limited and others (2015) 1 SCC 103 in which it

was observed that the High Court always uses and must use the power

under Section 482 Cr.P.C. sparingly and with great circumspection to

prevent the abuse of the process of the court. There are no fixed

formulae to be followed by the High Court in this regard. The High

Court at that stage does not conduct a mini trial or roving enquiry, but

nothing prevents it from taking unimpeachable evidence or totally

acceptable circumstances into account which may lead it to conclude

that no trial is necessary. On similar point, judgment in the case of

Maharashtra State Electricity Distribution Company Limited and

another v. Datar Switchgear Limited and others (2010) 10 SCC 479

has been referred.

22. The record reveals that at the relevant time i.e. at the time of

releasing the money to Smt. Shakuntala Dahiya, the petitioner no.3

Ram Pal Singh was posted as Branch Manager in the R.K. Puram

Branch of State Bank of India. The money was released to Smt.

Shakuntala Dahiya on 12.08.2011 by the petitioner no.3-Ram Pal

Singh, then branch manager of the bank. It was during the tenure of

petitioner no.3, the documents were submitted by Smt. Shakuntala

Dahiya for withdrawal of money from the PPF account of his

deceased husband. It is specifically averred by the complainant/

respondent no.2 in his complaint that forgery in the documents was

committed by Smt.Shakuntala Dahiya and other co-accused persons

for withdrawal of money and it was wrongly informed by her to the

bank that she was the only legal heir of deceased. There are several

allegations against other accused persons that they had entered into a

criminal conspiracy with a view to fraudulently withdraw the money

from the PPF account of deceased and also of commission of forgery,

impersonation, cheating and using of forged documents as genuine.

23. The fact that the petitioner no.3 was posted as Branch Manager

in the R.K. Puram Branch of the State Bank of India where the PPF

account of deceased was lying and there was withdrawal of money

from the said account by co-accused Smt. Shakuntala Dahiya, creates

suspicion and is a matter of investigation. The entire conspiracy and

cheating has taken place during the tenure of petitioner no.3, then

branch manager and responsible for all the transactions of the bank.

So, no ground is made out to quash the criminal complaint, impugned

order dated 07.05.2012 and the FIR in question qua the petitioner no.3

Ram Pal Singh.

24. In the present case, the order passed by the learned

Metropolitan Magistrate in an application under Section 156(3)

Cr.P.C. demonstrates the due application of mind and rightly

exercising the discretion in the facts and circumstances. Thus, the

submission made by the learned counsel for the petitioners that the

exercise of the power by the Magistrate in the present case is not

sustainable in the eyes of law, is not sustainable. Furthermore, during

the course of arguments, the learned counsel for the petitioners

claimed the advantage of the investigation conducted in pursuance of

the order passed by the learned Magistrate under Section 156(3) of

the Cr.P.C. and relied upon the status report filed by the investigating

agency, which reports the lack of sufficient evidence and decision to

submit the closure report in the present case against the petitioner

nos.1 and 2. Thus, the argument for setting aside the order of the

learned Metropolitan Magistrate under Section 156(3) Cr.P.C. is

without any substance or merit. More the reason that the primary

challenge of the petitioners is to quash the complaint and order under

Section 156(3) Cr.P.C. is consequential to that.

25. The case of petitioner No.3 is distinguished from petitioner

no.1 and 2. There are specific allegations against him in complaint,

status report filed by police and order under Section 156(3) Cr.P.C.

26. So far petitioner No.1-B.Sriram and petitioner No.2-N.K. Arora

are concerned, apparently no role has been assigned to the petitioner

nos.1 and 2 in the complaint itself till the date of the alleged offence

of withdrawal of the amount i.e. 12.08.2011 and only role ascribed is

that subsequently they asked the petitioner No.3-Ram Pal Singh to

recover the amount from accused Smt. Shakuntala Dahiya. Similarly,

even after the passing of the order under Section 156(3) Cr.P.C. and

the investigation conducted by the police, the police was of the

consistent stand that no material was available during the

investigation to proceed against petitioner nos.1 and 2. It has been

categorically mentioned in the status report that the police was going

to furnish the closure report against petitioner nos.1 and 2. In the

circumstances, apparently to proceed against petitioner nos.1 and 2

tantamount to abuse of the process of law and to secure the ends of

justice it would be necessary to quash the complaint and proceedings

emanating therefrom including the FIR qua petitioner nos.1 and 2.

27. With the above observations, the criminal complaint No. 7/2,

impugned order dated 07.05.2012 and consequential FIR 98/2012,

police station R.K.Puram are quashed qua petitioner nos.1 and 2.

28. As discussed in detail, the prayer for quashing of the complaint

and order under Section 156(3) Cr.P.C. is rejected and the present

petition is dismissed qua petitioner No.3.

39. Consequently, the present petition and pending applications are

disposed of.

(P.S.TEJI) JUDGE NOVEMBER 23, 2015 dd