Order 5

Order Details: COPY OF ORDER
Pdf Text: 30 Ct. Cases 1637/2023
PREM NATH SACHDEVA Vs. NEELAM GANDHI 00 /2023 (S.P. Badli)
29.02.2024
Present: Complainant is absent.
Ld. Counsel for the complainant.
IO/ASI Narender Dhama in person.
At oral request, complainant is exempted from his personal appearance
for today only.
Argument on the application moved u/s 156(3) of Cr.PC addressed.
Put up for orders at 4.45 pm.
(AJAY NARWAL)
MM-02/North/ Rohini Courts
29.02.2024
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30 Ct. Cases 1637/2023
PREM NATH SACHDEVA Vs. NEELAM GANDHI 00 /2023 (S.P. Badli)
29.02.2024
At 4.45 p.m.
Present: None.
1. Vide this order, I shall dispose off the application filed by the
complainant u/s 156(3) Cr.P.C. seeking registration of FIR against the respondents.
2. The brief facts of the case are that the daughter/accused of the
complainant namely Neelam Gandhi took cheque book, fixed deposit out of the
possession of the complainant without his permission and consent. The complainant
visited the bank on 22.05.2023 to get his FDR renewed and bank official informed
him that his FDR bearing no. 329675 has already been prematurely release. The
aforesaid FDR was transferred to the account of accused without the consent,
permission and signature of the complainant. The bank official alongwith the accused
have criminally conspired and transferred the aforesaid FD in the account of accused.
It is alleged that accused persons have committed the various offence in the present
case.
3. Action taken report was filed by ASI Narender Dhama, wherein it is
mentioned that the complainant has closed his FD before his maturety date and same
was transferred in the joint account of the accused (the daughter of the complainant)
and the complainant. It is also mentioned in the ATR that during investigation, it
transpires that the complainant has put his signature on the FD and same was
transferred in the joint account and no offence was committed.
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4. In the judgment titled as Subhkaran Luharuka and Anr. Vs. State
(Govt. of NCT of Delhi) & anr., 2010 (3) JCC 1972 of Hon’ble High Court of
Delhi, certain guidelines were enumerated pertaining to applications u/s 156 (3)
Cr.PC. One such guidelines is as follows:
“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 alongwith 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 complainant nor can be produced by the witnesses on being
summoned by the Court at the instance of complainant, and the
matter is such which calls for investigation by a State agency. The
Magistrate must pass an order giving cogent reasons as to why he
intends to proceed under Chapter XII instead of Chapter XV of the
Code.”
5. It is a settled proposition of law that although the magistrate has power
to direct the police to register a case and initiate investigations, the same should be
exercised judiciously and not in a mechanical manner. Reference may be taken from
the decision of the Hon'ble Delhi High Court in the case of M/s Skipper Beverages
Pvt. Ltd. vs. State 92 (2001) DLT 217, wherein the Hon'ble Court has interalia held
the following:
“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 the
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 the magistrate
even under section 202(1) of the Code after taking cognizance 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.
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10. Section 156(3) of the Code aims at curtailing and controlling
the arbitrariness on the part of the police authorities in the matter
of registration of FIRs and taking up investigations, even in those
cases where the same are warranted. The section empower the
Magistrate to issue directions in this regard but this provision
should not be permitted to be misused by the complainants to get
police cases registered even in those cases which are not very
serious in nature and the Magistrate himself can hold enquiry
under Chapter XV and proceed against the accused if required.
Therefore, a Magistrate, must apply his mind before passing an
order under section 156(2) of the Code and must not pass these
orders mechanically on the mere asking by the complainant. These
powers ought to be exercised primarily in those cases where the
allegations are quite serious or evidence is beyond the reach of
complainant or custodial interrogation appears to be necessary for
some recovery of article or discovery of fact.”
6. It should be noted that direction for registration of FIR U/s 156 (3) Cr.PC
is a serious matter and cannot be given in a mechanical manner. In Sukhwasi vs.
State of U.P. 2007 (59) ACC 739, it has been observed that the objective of the police
investigation is collection of evidence regarding the offence. Therefore, police
investigation is necessary only in those cases where the evidence is neither in the
possession of the complainant nor can be produced by the witnesses on being
summoned at the instance of the complainant or where the nature of the evidence is
technical. Further, in Vikrant Kapoor vs. State and Anr. 2012 IV AD Delhi, it has
been observed in the case where the complainant is in possession of evidence to
prove allegations, there should be no need to pass an order u/s 156 (3) Cr.PC.
7. Upon clarification, IO submitted that the account opening form of the joint
account in which the FD of the complainant was transferred bears the signature of the
complainant and the alleged accused (daughter of the complainant). Ld. Counsel for
the complainant during arguments also submits that the daughter of the
complainant/accused and the complainant are not at talking terms and accused has
fradulently transferred the aforesaid FD in the joint account. The aforesaid argument
of the Ld. Counsel is not tenable as he fails to provide any justification as to why the
complainant has opened a joint account with his daughter if they are not in talking
terms. There is no iota of evidence on record which fortify the fact that the FD was
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transferred in the joint without the consent of the complainant. Be that as it may be,
complainant is aware of the witnesses who are to be examined and / or in possession
of complete details of the complaint / documents. The mode and manner in which the
alleged offence is stated to have been committed is clear, identity of the accused is
also not to be established. As per the submissions, identity of the accused persons is
known to the complainant. The complainant has brought nothing on record to suggest
as to what evidence is required to be collected through police investigation.
Therefore, the offence committed if any may be proved by leading evidence by the
complainant himself. No active or passive assistance required from the state
machinery for investigation. Therefore, there is no requirement of police investigation
in this case for the purpose of collection of evidence. The case, if any, can be proved
by the evidence of the complainant. If any further evidence would be required, the
same can be summoned by the court at the required stage u/s 202 Cr.PC. Therefore, in
view of the above discussion the present application filed u/s 156 (3) Cr.PC is
dismissed. I take cognizance on the application moved u/s 200 of Cr.P.C.
Now to come up for PSE on 06.06.2024.
(AJAY NARWAL)
MM-02/North/Rohini/Delhi
29.02.2024
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