Final Order 12

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. SHEFALI SHARMA,
ADDITTIONAL SESSIONS JUDGE-02, NORTH DISTRICT,
ROHINI COURTS, DELHI
Cr. Rev. No. 48/2024
Vinod Kumar Aggarwal
Partner of M/s Amolak Ram Aggarwal & Sons
at:
Flat No. 103/A 8-9 Ansal Building.
Cr. Mukherjee Nagar, Delhi – 110009.
Through Authorized Representative
Mr.Gagan Aggarwal
…....Revisionist
Versus
1. State of NCT, Delhi
Through
Standing Counsel Govt. of NCT of Delhi.
2. Crime Branch, Rohini
Through
Additional Director General of Police
At:
Sector 18, Rohini, New Delhi – 110089.
3. Prashant Jain
Proprietor of
M/s Prashant Zippers
At:
F-1495, Industrial Area DSIIDC Narela,
Delhi – 110040.
...Respondents
Date of Institution : 16.02.2024
Date of Arguments : 13.08.2024
Date of Order : 11.09.2024
ORDER
1. Present revision petition is preferred against the
order dated 11.01.2023 (hereinafter referred to as impugned
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order) passed by Ld. CMM, North, dismissing the application of
revisionist u/S 156 (3) Cr.P.C.
2. It is submitted by ld. Counsel for revisionist that the
ld. Magistrate without appreciating facts of the complaint has
wrongly dismissed the application and passed the order in a
mechanical manner and ld. Trial court has ignored all the
material evidence on record.
3. Heard. Perused.
4. As regards the powers of revision U/s 397 Cr.P.C
the Ho'ble Supreme Court in the latest judgment dated
17.02.2022 in the case of Directorate of enforcement Vs.
Gagandeep Singh 2022 SCC online Delhi 514 has reiterated the
law that:
“the provision of revision in Cr.P.C. suggests that
the court shall limit itself to the findings sentence
or order pass by the subordinate court, against
which the revisionists is seeking relief before the
court concerned and shall not go beyond the
analysis and observations made by the subordinate
court.”
Section 397 Cr.P.C. unequivocally states that the
High Court and Sessions Courts which is exercising its revisional
jurisdiction shall apprise itself solely of the question of
correctness, legality and propriety of the order of the subordinate
court.
The Hon'ble Supreme Court in
Directorate of
enforcement Vs. Gagandeep Singh (supra) again emphasised
that:
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“
in its revisional jurisdiction court will not
proceed into the enquiry of the records, documents
and other evidence in consideration before the
Trial Court but shall constrain itself to the findings
of the lower court in the impugned order and to
the question whether there is any patent, illegality,
error apparent on record or incorrectness.”
5. The present revision petition has been preferred
against the impugned order dated 11.01.2023, whereby the
application under Section 156(3) Cr.P.C. had been dismissed.
At the very outset, it is pertinent to note the
landmark judgment on this aspect. In M/s Skipper Beverages Pvt.
Ltd. V State, 2001 (2) JCC (Delhi) 67, the Hon'ble High Court,
as observed as under:
“It is true that Section 156(3) of the Code
empowers to Magistrate to direct the
police to register a case and intimate
investigations but this power as 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. 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 steps in the
help of the complainant”.
6. It is stated that the complainant (revisionist herein)
and the respondent are having business relation and in the course
of said business, the complainant used to supply goods in the
form of polyester yarn to the respondent firm, qua which the
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complainant has been maintaining an account in his books of
account. It is alleged that during the course of business, the
complainant had asked multiple times, to clear the outstanding
balance but, the respondent always used to either deny or used to
make small payments, in order to get further supplies from the
complainant. It is alleged that as per the account maintained in
the books of account of the complainant, an amount of Rs.
3,78,61,170/- stands outstanding w.e.f 01.04.2021 till
13.05.2022. It is alleged that in the first week of May 2022, the
complainant met the respondent whereby the respondent assured
the complainant to make full and final payment and gave 2
cheques of Rs. 5 Lacks each but the same got dishonored on
25.05.2022. It is also stated that on 13.05.2022 the complainant
also received e-mail whereby respondent admitted the ledgers
and invoices, however, since 13.05.2022, the respondent is not
available either on call or in person and hence absconded. It is
alleged that the respondent has committed cheating and fraud
upon some other person in the same manner and number of FIRs
were registered against the present respondent.
7. ATR was called from the Inquiry officer, in which it
is stated that as per complainant's own case, there was business
relation between the complainant and the respondent and non-
payment is only a contractual obligation and thus, no cognizable
offence is made out.
8. However, it has to be noted that on similar facts, the
police officials had registered a case FIR No. 81/2022 dated
20.05.2022 under Section 420/406/409/506/120B IPC PS Crime
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Branch on the complaint of one Gautam Mahajan S/o Dev Raj
Mahajan R/o M-135, Street No.8, Shastri Nagar, Delhi – 110052
and Director of Shreeram Vanijya Global Exim Pvt. Ltd. had
been registered.
The complainant filed a complaint alleging that he
was approached by the alleged Mr.Prashant Jain/respondent no.3
herein, proprietor of M/s Prashant Zippers with a business offer
to start trading of yarn with his company along with his maternal
uncle Sanjay Jain. After meeting, both the alleged persons
started business dealing with complainant’s company.
On the basis of the complaint and taking into
consideration of all facts and enquiry conducted a case FIR No.
81/2022 under Section 420/406/409/506/120B IPC was
registered in Crime Branch and investigation was taken up by SI
Sanjeev Gupta.
During the course of investigation, documents
related to the case were got verified. Alleged Prashant Jain
already running in judicial custody in Silwasa Jail in another
case. He was formally arrested on 09.06.2022 after getting
production warrants.
Accused Prashant Jain and complainants Gautam
Mahajan and Manish Jain amicably settled the matter in
mediation centre on 25.08.2022. Thereafter, accused was
granted bail by Ld. Sessions Court on 31.08.2022. Meanwhile,
the revisionist Vinod Kumar Aggarwal and others filed a
complaint case under Section 156(3) Cr.P.C. seeking addition of
complainant in the running FIR No. 81/22 PS Crime Branch
wherein he alleged that accused Prashant Jain was in the course
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of alleged business relationship whereby the complainant was to
supply the goods in form of raw material to the accused firm.
But the Ld. Magistrate dismissed his application
under Section 156(3) Cr.P.C. saying that the case of revisionist
was prima facie of a civil nature. When on one hand the IO had
registered FIR against the accused for similar transactions then, it
is hard to believe that the complainant also being one of the
aggrieved party had not been included stating that it is a civil
case for recovery.
As per the statement of account/ledger of the
revisionist from 01.04.2021 till 13.05.2023 stood unpaid with the
admitted amount of Rs.3,78,61,170/-. Also, the revisionist during
the course of business transaction had numerous times asked
Prashant Jain to clear the dues, however, Prashant Jain did not
pay heed to the requests. In order to payback a paltry payment,
Prashant Jain in first week of May 2022 handed over two
cheques of Rs.5,00,000/- each dated 23.05.2022 and with an
assurance of making full and final payment. The said cheques
got dishonouored on 25.05.2022. The intention of the respondent
to not repay and cheat the revisionist right from inception is
manifest in his conduct.
9. In view of the above discussion, the revision petition
is allowed and order dated 11.01.2023 is set aside. The concerned
SHO of PS Prashant Vihar is directed to register FIR against
accused persons under appropriate sections in accordance with
law after making due inquiry and take necessary steps, as per
rules.
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10. Revision petition stands disposed off accordingly.
Copy of this order be sent to the SHO concerned of PS Prashant
Vihar for necessary intimation and compliance and the
compliance report be sent to the concerned Ld. Trial Court at the
earliest.
11. TCR, if any, be sent back to the concerned court
with copy of this order.
12. Revision file be consigned to record room.
Pronounced in open (SHEFALI SHARMA)
Court on 11.09.2024 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
ROHINI COURTS, DELHI
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