Order 3

Order Details: COPY OF ORDER
Pdf Text: 51 CT Cases 74/2023 VIKAS SURI Vs. SATPAL SHARMA /0 ()
Ld. APP is handling the work of two courts.
09-01-2025
Present : Ld. Counsel Sh. Gautam Pal for complainant.
Vide this order, I shall dispose of the application under Section 156 (3)
Cr.P.C.filed on behalf of the complainant.
Arguments on application under Section 156 (3) Cr.P.C. have been heard.
Briefly stated facts of the case is that complainant is a proprietor of M/s Karan
Offset and also the partner of M/s The Convertisor which is in business of printing and
publishing. In the month of January 2019, the accused through some sources came to know that
the complainant is planning to buy USED HIEDELBERG OFFSET PRINTING MACHINE
WITH ALL STANDARD ACCESSORIES (MACHINE) for his business purposes. Thereafter,
in the first week of February 2019, the accused met the complainant at his residence cum office
at F-10/21, Top Floor, Krishna Nagar, Delhi 110051 and informed the complainant that he is in
the business of selling used offset printing machines and also having import-export license and
that he can import the said machine from South Korea. Thereafter, in a meeting it was agreed
that accused would sell one USED HIEDELBERG OFFSET PRINTING MACHINE WITH
ALL STANDARD ACCESSORIES (MACHINE) MAKE/MODEL YEAR 2000 OR ANY
HIGHER MODEL jointly to M/s Karan Offset and M/s The Convertisor for an amount of Rs.
1,26,70,000/- which will be delivered in month of July 2019. It is mentioned that surprisingly on
10.07.2019, the accused sent the machine alongwith three Invoice No. 9924 amounting to Rs.
35,40,000/- (including GST of Rs. 5,40,000/-) dated 10.07.2019, Invoice No. 9925 amounting to
Rs. 35,40,000/- (including GST Rs. 5,40,000/-) dated 10.07.2019 and Invoice No. 9926
amounting to Rs. 35,40,000/- (including GST Rs. 5,40,000/-) dated 10.07.2019 to the
complainant. All the invoices were in the name of M/s Karan Offset. The accused did not send
the machine as ordered by the complainant. On the contrary, the accused sent the machine (SM
102-8-P5) Make/Model Year 1996 which was lower in specification and less in price to the
complainant and was different from what was ordered by complainant. The price value of all the
three invoices was only Rs. 90,00,000/- plus GST Rs. 16,20,000/- totaling to Rs. 1,06,20,000/-
and the accused raised all the three invoices in the name of M/s Karan Offset and not jointly in
the name of M/s Karan Offset and M/s The Convertisor as agreed. Thereafter, complainant
immediately contacted the accused and sought an explanation and accused gave dilly-dally
reply and told the complainant that machine ordered by complainant was not available, therefore
the accused imported a different machine which was low in specification and in price and
delivered to complainant. It is also submitted that accused breached the trust of complainant and
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cheated him. Thereafter, the complainant requested the accused to replace the machine but there
was no action from the accused. Thereafter, the complainant also demanded the refund of excess
amount of Rs. 20,50,000/- but shockingly the accused refused to do so.
It was submitted on behalf of the complainant that since the complaint of the
complainant was disclosing commission of cognizable offence by the accused, in view of
various authoritative pronouncement of Hon'ble Supreme Court in this regard, it was bounded
duty of the police to register an FIR and investigate the matter.
As per the status report filed by the IO, the complainant joined enquiry and
supported the allegations labelled by him in his complaint against the alleged person. Notice
was also served upon to the alleged person to join enquiry and submit his version but he didn't
turn up or produced any relevant document. The alleged person remained reluctant and did not
join enquiry despite convening information to him. Documents related to transfer of money
from the complainant to the alleged were verified and placed on record. It was also revealed that
the complainant has sent a legal notice to the alleged person but despite receipt of said notice
the alleged person did not reply. From the content of complaint and enquiry conducted so far,
prima facie the matter seems related to civil dispute between the complainant and the alleged
person for not supplying printing machine as per terms and conditions agreed upon between
them. Prima facie no cognizable offence was found to be made out therefore the said complaint
was filed.
Ld. Counsel for complainant has submitted that invoice of Rs.1,06,20,000/- has
been certified by Chartered Accountant but the machine is worth Rs.90.00 lakhs and GST of
Rs.1,26,70,000/- has been paid.
Ld. Counsel for complainant further submits that no written agreement between
the parties w.r.t. the said transaction has been executed and no tax was deposited by the accused
as his GST was cancelled in 09-08-2019. However, transaction occurred on 10-07-2019.
In this regard, it becomes imperative to keep in consideration the circumstances,
when an application or prayer under section 156(3) Cr.P.C. should be entertained by the Court.
It is settled proposition of law that the power of Magistrate to give directions under section
156(3) Cr.P.C. is discretionary and the same has to be exercised only when there is requirement
of investigation / custodial interrogation by the police agency. If the evidence is within the reach
of the complainant, usually the directions under section 156(3) Cr.P.C. are not given. The word
used in the section 156(3) is “may” whereas the word used in section 154 Cr.P.C. is “shall”.
The wording of this section clearly implies that the police is bound to register an FIR when
information regarding the cognizable offence is given to the police whereas the Magistrate is not
bound to give direction under section 156(3) Cr.P.C. even though, the complaint discloses the
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commission of cognizable offence as a Magistrate has to see whether the investigation by the
police is required or not.
In M/s. Skipper Beverages Pvt. Ltd. Vs State, Cited as 2001 IV AD (Delhi) 625,
the circumstances when the power of Magistrate under section 156(3) Cr.P.C. should be
exercised has been explained.
“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 as held by Apex Court in 2001 (1)
Supreme Page 129 titled " Suresh Chand Jain Vs. State of Madhya
Pradesh & Ors."
After going through the complaint and hearing the arguments, it is seen that the
entire facts is known to the complainant or the complainant can get the evidence summoned
through the process of this court and nothing new is to be collected for which the assistance of
the police is required. Even the identity of the proposed accused persons is known to the
complainant and has been mentioned in the complaint. No written agreement was executed
between the parties. It is not the case of the applicant that no machine was ever supplied by the
proposed accused. Besides, if after examination of the complainant, any police assistance is
required, the court is within its power to direct investigation under section 202 Cr.P.C.
Considering the facts and circumstances, there is no ground for this court to
exercise jurisdiction under Section 156 (3) Cr.P.C. Accordingly, the application under Section
156 (3) Cr.P.C. is hereby dismissed.
Before parting with the order, cognizance on the complaint under section 190(1)
(a) Cr.P.C. is hereby taken.
To come up for pre summoning evidence under Section 200 Cr.P.C. on 21-04-
2025.
(P. Bhargav Rao)
JMFC-05(East)/KKD Court
Delhi 09-01-2025
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