Interim Order 6

Order Details: COPY OF JUDGMENT
Pdf Text: 19Ct. Cases129/2023
SUSHIL KUMAR Vs. RAJ KUMAR
PS Mukherji Nagar
07.07.2023
By way of this order I shall dispose application of complainant/applicant u/s
156(3) Cr.P.C.
Present:- Complainant in person with counsel.
➢ The brief facts of the complaint as per applicant are that the applicant and
respondent no. 1 are known to each other for the last 7-8 years. Whenever the
applicant needed somebody to drive his car, he used to call respondent no. 1.
➢ The applicant had to get his car Hyundai Magna I-20 bearing registration no.
DL-8C-AT-2032, Model 2018 repaired and respondent no. 1 suggested the
applicant the name of respondent no. 2 who runs his shop of repairing of cars
including denting and painting from shop at G.S. Block, opposite Sai Sadan
Jhuggi, Jahangir Puri, Delhi-33 and the applicant was informed that his work
will be executed at very economical rates.
➢ Thereafter on 05.06.2022 the applicant handed over his car to respondent no. 1
alongwith Rs. 10,000/- as advance payment for getting his car repaired
(denting and painting). But thereafter respondent no. 1 did not return the car.
Notwithstanding repeated requests make to him by the applicant he failed to
return the applicant’s car and instead kept making some or the other excuses.
When respondent no. 1 did not return the applicant’s vehicle, the applicant
approached the police at PS Mukherjee Nagar, but even the police did not
afford any assistance to the applicant.
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➢ Thereafter on 08.11.2022, the applicant finally went to garage/shop of
respondent no. 2, to enquire about his car. There respondent no. 2 informed the
applicant that he has sold the car to his brother-in-law for a sale consideration
of Rs. 4,00,000/-. He further disclosed that the sale proceeds in the sum of Rs.
4,00,000/- had been handed over to respondent no. 1.
➢ The applicant contends that he informed respondent no. 2 that he never wanted
to sell his car and the value of the car was not less than Rs. 5,00,000/-. He
states that thereafter he demanded his car back from respondent no. 2 and also
brought to his knowledge that he has not signed any sale letter or Form 29 and
Form 30, hence it was unimaginable as to how his car was bought by the
brother-in-law of respondent no. 2. The applicant informed respondent no. 2
that he had handed over his car to respondent no. 1 only to carry out the repairs
and was entirely unaware about the fact that sale transaction had been entered
into between respondents no. 1 and 2 qua his car.
➢ The applicant thereafter also contacted respondent no. 1 questioning him about
the sale of his car against his will. Respondent no. 1 sought apologies for the
same. He requested applicant not to lodge any complaint against respondent
no. 1 and promised to pay Rs. 1,00,000/- instantly and also promising to pay
the rest of money in sometime. He also promised that entire money will be
paid, once when the applicant cleared the car loan from the bank. On the
assurance of respondent no. 1, the applicant cleared the bank loan and
demanded for rest of the sale proceeds and also to get the vehicle transferred
immediately in the name of the buyer. But neither did respondent no. 1 return
the vehicle nor did he pay the rest of the money and instead threatened to
commit suicide on 05.11.2022.
➢ The applicant submits that since then he has been continuously visiting the
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police station for lodging of complaint against respondents no. 1 and 2 but no
action has been initiated against them. Respondent no. 1 on the contrary
threatened the applicant to forget about his car and extended threats to lodge
false complaint against him under SC/ST Act.
➢ Finding no other recourse to his problems, the applicant filed a written
complaint with the SHO of PS Mukherjee Nagar on 30.11.2022 but when no
action was initiated by the SHO of PS Mukherjee Nagar, then the applicant
sent a complaint dated 05.01.2023 to the DCP, North-West which was received
vide Diary no. 244 on 07.01.2023. Applicant submits that the police authority
also did not address the grievance of the applicant. Thereafter, he was
constrained to file application u/s 156(3) of the Cr.P.C seeking action against
the respondents.
➢ Upon receiving the application from the applicant, ATR was summoned from
the SHO of PS Mukherjee Nagar. The SHO directed enquiry officer SI Jitender
Singh to conduct the preliminary enquiry and submit the ATR.
➢ Enquiry officer SI Jitender submitted the Action Taken Report. In his reply he
submitted that the car bearing registration no. DL-8C-AT-2032 is registered in
the name of applicant Sushil Kumar and on 28.10.2022 the applicant had
repaid the entire loan to the bank and loan closure letter was also issued to him.
In the ATR, it is also stated that the abovesaid car has been sold by respondent
no. 1 for Rs. 4,00,000/- to another person.
➢ The counsel for applicant argued that the car was handed over to respondent
no. 1 for its reconditioning, but respondent no.1 without any authority and
permission of applicant sold it to respondent no. 2 who is still unlawfully
having the possession of applicant's car.
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➢ Arguments in extenso were heard and complete record was thoroughly perused.
➢ It is well settled law that when a criminal complaint is filed before the
Magistrate and upon perusal it is found to disclose commission of a cognizable
offence, two courses of action are open to the Magistrate. He may choose to
inquire into the complaint by taking cognizance in exercise of his powers under
Section 190 Cr.P.C. and proceed to inquire into it, in accordance with the
procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may
refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In
the latter case, the Magistrate having given such direction would stay his hand
till report under Section 173 Cr.P.C. is submitted by the police, on which
further process of law would follow.
➢ The law governing the choice to be exercised from amongst the two options
has been settled in M/s. Skipper Beverages Pvt. Ltd. vs. State, 2001 IV AD
(Delhi). In the said case it was held that a Magistrate must apply his mind
before passing an order under Section 156(3) Cr.P.C. and must not pass these
orders mechanically on the mere asking by the applicant. These powers ought
to be exercised primarily in those cases where the allegations are quite serious
or evidence is beyond the reach of the applicant or custodial interrogation
appears to be necessary for recovery of some articles or discovery of facts.
➢ The well settled guidelines are laid down by the Hon’ble Delhi High Court in
respect of invoking provisions of Section 156(3) Cr.P.C. in Subhkaran
Luharuka vs. State, (170) 2010 DLT 516, in para 52A of the judgment. The
guidelines have been summarized as under:-
“52A. For the guidance of subordinate courts, the procedure to be followed
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while dealing with an application under Section 156(3) of the Code is
summarized as under:-
(1) 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 applicant 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 applicant. 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 applicant under Section 154(3)
of the Code.
(2) 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.
(3) 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.
(4) 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
applicant nor can be produced by the witnesses on being summoned by the
Court at the instance of applicant, and the matter is such which calls for
investigation by a State agency. The Magistrate must pass an order giving
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cogent reasons as to why he intends to proceed under Chapter XII instead of
Chapter XV of the Code.”
➢ From the contentions of complainant/applicant it can be easily deduced that the
applicant had entrusted his car bearing registration no. DL-8S-AT-2032 to
respondent no. 1 for its denting, painting and reconditioning, but respondent
no. 1 sold it to respondent no. 2 without any authority or permission from the
applicant. It is further lucid from the facts that the entrustment of the
property/car was made solely for the purpose of its reconditioning as according
to the applicant respondent no.1 had suggested the name of respondent no. 2 as
the person who excelled in denting and painting of the vehicles. The car of
applicant was not entrusted to respondent no. 1 for the purpose of sale or
purchase and it is clear from the allegations of the applicant and the ATR filed
by the enquiry officer that respondent no. 1 has entered into a deal of sale and
purchase of the applicant's car without any authority and permission from
applicant. The act committed by respondent no.1 clearly appears to be a case of
criminal breach of trust as respondent no. 1 has breached the trust reposed in
him by the applicant while handing over his vehicle to him. Thus, the offence
of criminal breach of trust punishable u/s 406 IPC is clearly made out against
respondent no. 1.
➢ With regard to respondent no. 2, no specific allegations of either cheating or
criminal breach of trust have been levelled against him. Further since
respondent no. 2 never came in contact with the applicant prior to the
entrustment of applicant's car to respondent no. 1, no offence seems to have
been committed by him.
➢ Hence, in the wake of the facts and circumstances of the present case, the
SHO, PS Mukherjee Nagar is directed to register an FIR against the
respondent no. 1 only for the offence of criminal breach of trust and for any
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other offences if made out. Pursuant to registration of FIR, the IO/SHO shall
bear in mind the directions given by the Hon'ble Supreme Court in Arnesh
Kumar vs State of Bihar & Anr (Decided on 02.07.2014) with regard to arrest
of accused.
➢ The application u/s 156(3) Cr.P.C accordingly, stands disposed of.
➢ Report regarding compliance of the present order be filed by 17.07.2023.
(Neeti Suri Mishra)
A.C.M.M. (North)/Rohini Court
Delhi/07.07.2023
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