Manmohan Singh Kochhar & Ors. vs The State (Govt. Of Nct Of Delhi) & ...
2019 Latest Caselaw 1937 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Decided on: 9th April, 2019

+                     W.P.(CRL) 1439/2018

       MANMOHAN SINGH KOCHHAR & ORS.            ..... Petitioner
              Represented by: Mr. Pradeep Teotia, Mr. L.N. Rao,
                              Advs.
                   versus

    THE STATE (GOVT. OF NCT OF DELHI) & ANR. ..... Respondent
              Represented by: Mr. Ashish Negi, Adv. for Ms. Richa
                              Kapoor, ASC with SI Sanjeet Singh
                              PS Rajouri Garden.
                              Mr. Deepender Hooda, Mr.C.P.
                              Malik, Advs. for R-2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By this petition the petitioner seeks quashing of FIR No. 18/2017 under Sections 406/420/120B IPC registered at PS Rajouri Garden on the complaint of respondent No.2 and the proceedings pursuant thereto on merits.

2. Learned counsel for the petitioner contends that on the basis of FIR in question no cognizable offence is made out against the petitioner and mere words of the complainant cannot be a ground for filing the charge-sheet to proceed against the petitioner for trial.

3. The allegations of the complainant in the above-noted FIR are that he came in contact with the petitioner No.1 and his two sons who are the petitioners No.2 and 3 in the present petition. The petitioners claimed that

they had a flourishing business of finances and it would be thus safe to invest money and assured of heavy returns. Allured by the promises of the petitioners and their persistently asking the complainant to invest in their scheme, the complainant decided to join a Committee run by the petitioner comprising of 12 members in which each member had to pay a sum of ₹2 lakhs per month for one year. On the request of the petitioners the complainant was to pay a sum of ₹1 lakh immediately and ₹56,584/- was to be paid within two days at his residence. Thus, ₹1,56,584/- was collected by the petitioner from his residence on 11th August, 2015. Thereafter every month either of the petitioners used to inform the complainant telephonically about the Committee auction and amount payable and collect the same from his residence from time to time.

4. After 7 months when the complainant had already paid a sum of ₹14 lakhs the complainant informed that he intended to pick up the next Committee of ₹24 lakhs as he was in dire need of money. However, the petitioner No.1 represented that the same would cause a huge loss to him and thus the complainant should not pick up the next Committee. Instead the complainant was asked to wait and invest in the second Committee. Even the second committee was not auctioned and the petitioner No.1 decided that the entire amount will be kept as guarantee. When the petitioners were unable to pay back the money, they offered him their properties at Chander Vihar and Rajouri Garden in lieu of the money given of which the complainant has a mobile phone recording. The complainant thus asked for the property papers so as to ascertain proper valuation of the properties in question, however the petitioner No.1 continued delaying the same on one pretext or the other. Later when the complainant demanded the

money, petitioner started threatening him of life and dire consequences and it is alleged that till date despite the petitioner having invested a total sum of ₹14 lakhs not one rupee has been paid back to him. The complainant has given the break-up of the money given on various dates in the FIR in question.

5. Learned counsel for the petitioner states that allegations against the petitioner are just oral and are not backed by any documentary evidence as against which the petitioner has filed his bank statements wherein on 25 th January, 2016 a sum of ₹24 lakhs have been transacted in favour of the complainant from the account of M/s. Guru Kripa Auto Motors and a sum of ₹18 lakhs deposited in the account of M/s. Guru Kripa Auto Motors on 11 th February, 2016. Petitioner claims that if sum of ₹14 lakhs was due there was no way that the complainant would return a sum of ₹24 lakhs.

6. Case of the complainant is that this transaction is different whereas petitioner claims that the same is part of the transaction.

7. After investigation Police has already filed a charge-sheet against the petitioners and from the allegations as mentioned in the FIR it cannot be held that commission of no cognizable offence is made out. Learned counsel for the complainant submits that investigating officer was lax in not taking the voice samples of the petitioner and not getting it examined from the FSL which would have proved his case beyond reasonable doubt and in this regard he has filed an application before the learned Metropolitan Magistrate.

8. Be that as it may, on the basis of averments in the FIR in question even if there is no documentary evidence to support the same at this stage it cannot be held that there is no prima facie case to proceed against the

petitioners for a cognizable offence.

9. Learned counsel for the petitioner has referred to the decision reported as (2006) 6 SCC 736 Indian Oil Corporation Vs. NEPC India Ltd. & Ors. wherein the Hon'ble Supreme Court held that in disputes arising from the breach of contract the remedy available is civil. A perusal of the judgment reveals that the Supreme Court itself held that even in cases of breach of contract the remedy under criminal law is not barred if the allegations disclose a criminal offence. As noted above, the allegations by the complainant are of alluring, taking investments from him and thereafter misappropriating the same by not returning, constituting commission of cognizable offences. Even in the decision reported as (2005) 1 SCC 122 Zandu Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Anr. Supreme Court while dealing with quashing of complaint based on the evidence of complainant on oath recorded before the Trial Court held that if on the allegations made the ingredients of offence are disclosed and there is no material to show that the complaint is malafide, frivolous or vexatious, the proceedings cannot be quashed. In Chandran Ratnaswami Vs. K.C. Palanisamy and Ors. AIR 2013 SC 1952 relied upon by the learned counsel for the petitioner Supreme Court was dealing with disputes arising out of breach of joint venture agreements and on facts it was held that the same were civil in nature. This Court finds that the allegations in the said case have no semblance to the allegations in the present case and thus the decision in the said case has no application to the facts of this case.

10. Charge-sheet has been filed by the State after registration of FIR. The complainant is yet to be examined. Allegations of the complainant as noted above clearly demonstrate commission of cognizable offence. Hence at this

stage whether the oral evidence of the complainant would be sufficient evidence to convict the petitioner or not cannot be assessed and a prima facie case raising a strong suspicion of petitioners having committed the cognizable offence is made out.

11. Petition is accordingly dismissed.

(MUKTA GUPTA) JUDGE APRIL 09, 2019 'ga'