Delhi High Court
Vijay Narain Pandey & Anr vs The State ( Nct Of Delhi) & Anr on 27 September, 2022
[1]
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CRIMINAL MISCELLANEOUS NO. 5165/2014 & CRL.
M.A. 17697/2014
Between:-
VIJAY NARAIN PANDEY
S/O SITA RAM PANDEY
R/O 27, ISHWAR NAGAR,
NEW DELHI-25
ALSO AT
R/O 80A, MAYUR ROAD,
ASHOK NAGAR
ALLAHABAD, U.P. .....PETITIONER NO. 1
JAI PRAKASH OJHA
S/O LATE MATA PRASAD OJHA
RESIDENT OF 5-D/2, MINTO ROAD,
ALLAHABAD, (U.P) .....PETITIONER NO. 2
(Through: Mr. Sulaiman Mohd. Khan, Mr. Taiba Khan, Mr.
Bhanu Malhotra, Mr. Shubham Arora and Mr.
Shikhar Koushal, Advocates.)
AND
THE STATE (NCT OF DELHI) .....RESPONDENT NO. 1
COL. Y.S. TYAGI
R/O G-404,
VIVEK VIHAR (AWHO) COMPLEX
SECTOR-82, NOIDA-201009 .....RESPONDENT NO. 2
Signature Not Verified
Digitally Signed
By:PRIYA
Signing Date:01.10.2022
16:31:27
[2]
(Through: Mr. Utkarsh, APP for State/R-1 with SI Nikhil
Raman, PS Tughlak Road.
Ms. Akshay Malik and Mr. Anmol Mishra, Advocates
for R-2.)
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% Pronounced on : 27.09.2022
JUDGMENT
PURUSHAINDRA KUMAR KAURAV, J.
1. This petition under Section 482 of the Code of Criminal
Procedure, 1973 (Cr.P.C) is directed against the order dated 06.01.2014,
by the learned Metropolitan Magistrate, Patiala House Courts, New
Delhi, whereby, the order of summoning has been passed against the
petitioners for commission of offence punishable under Sections 405/420
of the Indian Penal Code, 1860 (in short 'IPC').
2. The facts of the case are that the respondent No.2 / complainant
filed a complaint under Section 200 of the Cr.P.C. against the petitioners
and one Sita Ram Pandey for commission of offences under Sections
405/406/420/120B of the IPC. As per the complaint, the main allegation
against the accused, therein, was of deceiving the complainant in paying
a sum of Rs. 5.0 Lakh by giving false assurance of providing him built-
up house/flat when his intention from the very beginning was to cheat
and defraud innocent depositors like the complainant. The complainant
filed an application under Section 156 (3) of the Cr.P.C. for direction to
the concerned police to register an FIR. On 27.01.2010, the SHO of the
concerned police station filed a status report stating therein various
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Signing Date:01.10.2022
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[3]
reasons for non-registration of the FIR including the reason that the issue
raised was predominantly of civil nature. On 09.02.2010, the learned
Metropolitan Magistrate dismissed the application under Section 156 (3)
of the Cr.P.C. The respondent No.2/complainant was directed to lead
evidence. He examined himself and two other witnesses at pre-
summoning stage. Vide impugned order dated 06.01.2014, the learned
Magistrate after considering the statements of the complainant and the
other witnesses, directed for issuance of summons to the petitioners for
offences punishable under Sections 405/420 of the IPC. This court vide
order dated 17.11.2014, stayed the further proceedings of the complaint
case.
3. The learned counsel appearing on behalf of the petitioners submits
that the complaint in question has been filed after a delay of almost 20
years. The only aim to file the complaint is to harass the petitioners, and
extort money; and the same is abuse of the process of law. He further
submits that the entire matter is of the civil nature, yet it has been given
a colour of criminality and the offences under Sections 405/420 of the
IPC are not made out even if the complaint is taken on face value. He
further submits that in any case there was no intention to cheat the
complainant at the time of making promise as there was no dishonest
intention on the part of the petitioners. He places reliance on the decision
of the Hon'ble Supreme Court in the matters of M/s Thermax Ltd. and
Ors. v. K.M. Johny and Ors.1, V.Y. Jose and Anr. v. State of Gujarat
and Anr.2 and Ajay Mitra v. State of M.P. and Ors.3.
1 (2011) 13 SCC 412
2 (2009) 3 SCC 78
3 AIR 2003 SC 1069
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Signing Date:01.10.2022
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[4]
4. The prayer is vehemently opposed by the learned counsel
appearing on behalf of respondent No. 2 / complainant. He submits that
this court in exercise of its power under Section 482 of the Cr.P.C.
should not enter into the roving enquiry as to whether there is probability
of conviction of the petitioners or not. He further submits that the
learned Magistrate has applied his mind and has taken cognizance on the
basis of material available on record. According to him, the learned
Magistrate is well within his right to issue summons against the
petitioners for alleged offences punishable under Sections 405/420 of the
IPC in terms of power vested with him under Section 204 of the Cr.P.C.
He further submits that the impugned order is well-reasoned and the
same should not be interfered with. He further submits that there was no
delay in filing the complaint, as according to him, repeated assurances
were given by the petitioners to repay the amount. It is, therefore,
submitted that the entire petition is bereft of merit and the same deserves
to be dismissed. He places reliance on the judgment of the Hon'ble
Supreme Court in the cases of Bhushan Kumar & Ors. v. State of NCT
of Delhi & Ors.4, Deputy Chief Controller of Imports and Exports v.
Roshal Lal Agarwal & Ors.5, and U.P. Pollution Control Board v.
Bhupendra Kumar Modi & Ors.6
5. I have heard learned counsel appearing on behalf of the parties and
perused the record.
6. A perusal of complaint filed by respondent No.2/complainant
demonstrates that he is a retired Colonel of Indian Army. The petitioner
4 AIR 2012 SC 1747
5 AIR 2003 SC 1900
6 (2009) 2 SCC 147
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Signing Date:01.10.2022
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[5]
No. 1 and petitioner No. 2 are Secretary and President of Raj Laxmi
Cooperative Group Housing Society (in short 'the Society'). The
gravamen of the allegation is that in the year 1990, through a friend of
the complainant, the petitioners were introduced to the complainant at his
office at Sena Bhawan as the Office Bearers of the concerned Society. It
is alleged that the complainant, his sister-in-law and brother-in-law
deposited a sum of Rs.5.0 Lakh in total with the petitioners in the name
of the Society on the false assurance of providing built-up houses/flats.
Respondent No. 2/complainant further states that after the year 1990, he
was posted out of Delhi and when he came back to Delhi, he enquired
about the status of the flat and he was informed that there were certain
technical problems with the project and the petitioners agreed to return
the money invested by issuing cheques. Certain cheques were also given
and it is stated that on presentation, the cheques were bounced. After
1999, again when he came back to Delhi, after completion of his tenure
in Kashmir Valley, he enquired about the status of flat in question and he
was assured that they were in the process of allotting the houses and the
same would be done very soon. It is also stated that in the year 2001,
respondent No.2/complainant suffered a serious heart attack and later in
the year 2003, he suffered from a stroke and has remained under medical
treatment since then. It is also stated that respondent No.2/complainant
was repeatedly assured, time and again, by the petitioners that they
would provide alternate flat in their new project at Indira Puram as there
were some technical problems in their previous project. It is also stated
that the so-called Raj Laxmi Cooperative Society was a family enterprise
and the same has been formed solely with the illicit design to cheat and
defraud the depositors. The respondent No.2/complainant also came to
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[6]
know that there were several cases against the petitioners such as FIR
No. 374/1994 under Sections 406/409/420/421/422/423/120B registered
at PS Lajpat Nagar and on the basis of the entire facts, he construed that
he was cheated by the petitioners and, therefore, the alleged offences
were sought to be registered vide complaint dated 15.01.2010.
7. In pursuance to the directions given by the learned Magistrate on
an application under Section 156 (3) of the Cr.P.C., the concerned SHO
filed status report on 27.01.2010, wherein, it was stated that the name of
the complainant/respondent No. 2 was at serial No. 236 in the list of
investors/members and the name of Divya Lok Tyagi was at serial No.
253 and the name of Sh. Rana Pratap Singh was at serial No.254. It is
also stated therein that the money transaction in Sena Bhawan was not
possible. The money of the depositors/members was returned through
Mr. Balram Barera, who was appointed by the Registrar of Cooperative
Societies. He had circulated a notice in Times of India dated 14.05.2000
to contact him for return of the money. The concerned police station also
mentioned that the issue was of civil nature.
8. The learned Magistrate vide order dated 09.02.2010 found that an
FIR No. 374/94 was also registered with respect to non-returning of the
money of the depositors. It was also found that the accused were released
on bail on furnishing a sum of Rs.60 Lakh as per the directions of this
court. The Official Liquidator was already appointed and the name of the
complainant and his family members were already there in the list of
depositors. Only because of the reason that respondent No.2/complainant
could not get his money back, FIR could not be directed and, therefore,
no direction under Section 156 (3) of the Cr.P.C was issued.
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By:PRIYA
Signing Date:01.10.2022
16:31:27
[7]
9. After recording the pre-summoning evidence, the learned
Magistrate vide impugned order dated 06.01.2014, found that the
allegations prima facie disclose the commission of offence under Section
405 of the IPC or in alternate under Section 420 of the IPC and,
therefore, order of issuance of summons has been passed.
10. No doubt, delay in lodging the complaint without assigning the
reason for the same, raises suspicion as to the whole truth of the
allegations. Mere statement that the complainant was being assured can
hardly be taken as a sufficient explanation for such a huge delay. The
duty of the Magistrate in a complaint case set out under Section 200 of
the Cr.P.C. is to find whether there is any matter which calls for
investigation by a criminal court. It is also to find out whether there
exists any valid foundation for issuance of process against the accused
persons in the complaint or as to whether it is baseless one, on which no
action is required to be taken. The law imposes a serious responsibility
on the Magistrate to decide if there is sufficient ground for proceeding
against the accused. Existence of a prima facie case, whether the
prosecution of the case is an abuse of the process of the court or whether
a civil dispute has been given colour of criminal dispute etc. are factors
to be considered by the Magistrate while conducting/holding enquiry
under Section 202 of the Cr.P.C. No doubt, the enquiry at that stage of
issuance of process does not partake the character of a full dress trial
which can only take place after process is issued under Section 204 of the
Cr.P.C. while calling upon the accused to answer the accusation made
against him for adjudging the guilt of the accused person. Further, the
question whether the evidence is adequate for supporting the conviction
can be determined only at the trial and not at the stage of enquiry
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Signing Date:01.10.2022
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[8]
contemplated under Section 200 of the Cr.P.C. It is true that in coming to
a decision as to whether the process should be issued, the Magistrate can
take into consideration inherent improbabilities appearing on the face of
the complaint or in the evidence lead by the complainant in support of
the allegations but there appears to be a very thin line of demarcation
between a probability of conviction of the accused and establishment of a
prima facie case against him.
11. If in the instant case without taking into consideration the defence
of the petitioner/accused, if the material available before the learned
Magistrate is considered to be true, the following findings can be
recorded without any roving enquiry.
(i) the amount in question was given by the complainant voluntarily
in the year 1990 on an assurance that they would be allotted a
flat.
(ii) the complainant/respondent No.2 was aware of the fact that the
petitioners are Secretary and President of the Society and the
amount in question was in the form of advance towards allotment
of a flat.
12. As per paragraph No. 7 of the complaint, all that is stated is that
the complainant was repeatedly assured time and again that the accused
persons would provide an alternate flat in their new project. But the
accused persons have not provided the same. There are no steps stated to
have been taken either for recovery of the money or any action against
the petitioners/accused by the complainant/respondent No.2 after
depositing the money, once he realized that he has been cheated.
According to the complainant itself, he had come to know in the year
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1999 that the flats were not constructed. Respondent No.2/complainant
has not claimed any refund in pursuance to notice published by Mr.
Balram Barera, who was appointed by the Registrar of Cooperative
Societies, in Times of India dated 14.05.2000. The complaint in question
has been filed only on 15.01.2010. On the basis of the aforesaid facts, it
can be concluded that the complainant/respondent No.2 and his family
members invested a sum of Rs.5.0 Lakh with the petitioners/accused
with the hope of allotment of a flat in the Society. The registration of FIR
against the petitioners, appointment of Administrator by this court and
return of the money to some of the investors clearly shows that
respondent No.2/complainant could have resorted to any of the options
available to him but he did not take any action in the last 20 years after
depositing the money. It is seen that only with an object to recover the
money, which he could not get it as he had missed the opportunity before
the Administrator, he filed the instant complaint to give a criminal colour
to the entire episode.
13. The Hon'ble Supreme Court in the matter of Ajay Mitra (supra) in
paragraph 17, after placing reliance on the earlier decision in the case of
Hari Prasad Chamaria v. Bishnu Kumar Surekha7, has held that unless
the complaint shows that the accused had dishonest or fraudulent
intention at the time the complainant parted with the money, it would not
amount to offence under Section 420 of the I.P.C. and it may only
amount to breach of contract. A guilty intention is essential ingredient of
the offence of cheating. In Mahadeo Prasad v. State of West Bengal8, it
has been held that where the charge against the accused under Section
7 1973 (2) SCC 823
8 AIR 1954 SC 724
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[10]
420 of the IPC is that he induced the complainant to part with his goods,
on the understanding that the accused would pay for the same on delivery
but did not pay, if the accused had at the time promised to pay cash
against delivery, an intention to do so, the fact that he did not pay, would
not convert the transaction into one of cheating. But, if, on the other
hand, he had no intention whatsoever to pay but merely said that he
would do so in order to induce the complainant to part with the goods,
then a case of cheating would be made out.
14. The Hon'ble Supreme Court in the matter of V.Y. Jose (supra) has
held that for the purpose of constituting an offence of cheating, the
complainant is required to show that the accused had fraudulent or
dishonest intention at the time of making promise or representation.
Even in a case where allegations are made in regard to failure on the part
of the accused to keep his promise, in the absence of a culpable intention
at the time of making initial promise being absent, no offence under
Section 420 of the IPC can be said to have been made out. In another
decision in the matter of M/s Thermax Ltd. (supra), in paragraph 23, it
has been held that the complaint in question was filed in the year 2002
when the alleged dispute was with respect to year 1993-95, it was found
therein that the complainant was trying to circumvent the jurisdiction of
the civil court which estopped him on account of law of limitation.
15. It is thus seen that in the present case, on the basis of the aforesaid
analysis, the learned Magistrate has completely failed to analyse the
entire material in a right perspective and has simply recorded that the
record is perused, the complainant is examined and the witnesses
substantiated the allegations made therein, therefore, the same disclosed
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[11]
commission of offence in question. There does not seem to be any
application of mind, as has been indicated in the preceding paragraphs.
In view of the aforesaid, this court finds that if the order of summon in
the instant case, is allowed to sustain, the same would amount to abuse of
process. The order of summon has serious consequences as has been held
by the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. & Anr. v.
Special Judicial Magistrate & Ors.9, Dhariwal Tobacco Products Ltd.
& Ors. v. State of Maharashtra & Anr10, and M.A.A. Annamalai, v.
State of Karnataka & Anr. 11
16. So far as the decision relied upon by the learned counsel appearing
for respondent No. 2, in the case of Bhushan Kumar (supra) is
concerned, the Hon'ble Supreme Court in that case has held that it is not
the province of the Magistrate to enter into a detailed discussion on the
merits or demerits of the case. To determine whether the process should
be issued or not, the Magistrate can take into consideration
improbabilities appearing on the face of the complaint or in the evidence
led by the complainant in support of the allegations. The Magistrate has
been given an undoubted discretion in the matter and the discretion has
to be judiciously exercised by him. It has also been held that once the
Magistrate has exercised his discretion, it is not for the High Court or
even for the Supreme Court to substitute its own discretion or to examine
the case on merits with a view to find out as to whether the allegations
are true. The aforesaid legal position is not disputed.
9 (1998) 5 SCC 749
10 (2009) 2 SCC 370
11 (2010) 8 SCC 524
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Signing Date:01.10.2022
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[12]
17. Unfortunately, in the instant case, the application of mind by the
Magistrate is not reflected. What the Magistrate had done is to record in
the order sheet that he has examined the material and has found that the
offence in question is attracted. Even otherwise, the facts in the case of
Bhushan Kumar (supra) are completely different. In the case of
Bhushan Kumar, the FIR was registered. The same was challenged in the
High Court. The High Court granted liberty to take appropriate steps in
case they are summoned. The Magistrate then summoned the accused
therein which was again challenged before the High Court. The High
Court rejected the challenge and has held that the petition was not
maintainable. The Hon'ble Supreme Court in paragraph No. 18 has
reversed the conclusion with respect to maintainability of the petition.
The Hon'ble Supreme Court, however, accepted the view of the High
Court on merits.
18. So far as the other decision relied upon by the learned counsel for
respondent No. 2 in the case of Deputy Chief Controller of Imports and
Exports (supra) is concerned, the same also lays down the principle
which is to be followed by the Magistrate at the time of issuance of
summons. As stated above, the legal position propounded by the Hon'ble
Supreme Court in the cases of Deputy Chief Controller of Imports and
Exports (supra) and U.P. Pollution Control Board (supra) is
unquestionable but the cases have been decided on the basis of their
facts.
19. In view of the aforesaid, this court is of the view that the impugned
order is unsustainable. The impugned order dated 06.01.2014, passed by
learned Metropolitan Magistrate is set aside and quashed. Consequently,
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[13]
complaint case is rejected. Accordingly, the instant petition along with
pending application stands disposed of.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
SEPTEMBER 27, 2022/hk
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By:PRIYA
Signing Date:01.10.2022
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