Full Judgment Text
25
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1281/2010 & CRL.M.A. 5219/2010
KAMAL NARAIN KAPOOR & ANR ..... Petitioners
Through: Mr. S.S. Gandhi, Senior Advocate with
Mr. Dveep Ahuja, Advocate for
petitioner No.1.
Mr. Deepak Anand Masih, Advocate for
petitioner No.2.
versus
STATE & ANR ..... Respondents
Through: Mr. Manoj Ohri, APP for State with
SI Manvendra Singh, PS Sarojini Nagar,
New Delhi.
Mr. A.K. Srivastava, Advocate with
Ms. Anita Kapoor, Advocate for
respondent No.2.
th
% Date of Decision: 29 November, 2012
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN , J (ORAL):
1. Present petition has been filed under Section 482 Cr.P.C. seeking
th
setting aside of the order dated 05 March, 2010 passed by the Additional
Crl.M.C. 1281/2010 Page 1 of 11
Sessions Judge, New Delhi whereby the Metropolitan Magistrate’s order
th
dated 27 January, 2009 discharging the petitioners under Section 420/406
IPC was set aside.
2. On the last date of hearing, Mr. S.S. Gandhi, learned Senior Counsel
had argued the matter extensively on behalf of the petitioners. In fact, after
the respondents had concluded their arguments and certain queries had been
raised by this Court, Mr. Gandhi, learned senior counsel had sought time to
obtain instructions. Accordingly, the matter was adjourned for today.
3. Today, after some arguments, Mr. S.S. Gandhi, learned senior counsel
wishes to withdraw the present petition.
4. At this stage, Mr. Deepak Anand Masih, learned counsel states that he
is appearing on behalf of petitioner No.2 and he has instructions to press the
present petition. He has today in Court handed over his written submissions.
The same are taken on record. To obviate any delay in the matter, petition is
taken up for hearing qua petitioner No.2. Consequently, qua petitioner
No.1, present petition is dismissed as withdrawn.
5. The FIR filed in the present instance is reproduced below:-
―12. FIR contents (Attach separate sheet, if required).
th
25 February, 2004. The SHO, Sarojini Nagar, New Delhi,
Dear Sir,
Re: - Complaint against M/s. Uma Shankar Kamal Narain
Jewellers, Chandni Chowk, Delhi. It is humbly stated that I am
an 80 years old man who has been defrauded by M/s. Uma
Shankar Kamal Narain, 1267, Chandni Chowk, Delhi. It is
stated that I had given them a loan of Rs.15,00,000/- (Rupees
Fifteen Lacs Only) vide cheque No. 357225 dated 5.8.1999
drawn on Central Bank of India, Safdarjung Enclave, New
Delhi and advance of Rs.5,50,000/- (Rupees Five Lacs & Fifty
thousand only) in cash. The said amount was interest bearing
@12% and was refundable within a year. The abovenamed
Crl.M.C. 1281/2010 Page 2 of 11
party issued the following cheques with details hereunder to me
as part refund of my dues: - Date of cheque 6.1.2000, 6.2.2000,
6.3.2000, 6.4.2000, 6.5.2000, 6.6.2000, 6.7.2000, 6.8.2000,
6.9.2000, 6.10.2000, 6.11.2000. Cheque No. 631258, 631259,
631260, 631261, 631262, 631263, 631264, 631265, 631266,
631267 and 631268 drawn on Union Bank of India, S.B.
Saraffa Market, Chandni Chowk, Delhi. Amount – 1,50,000/-,
1,50,000/-, 1,50,000/-, 1,50,000/-, 1,50,000/- 1,50,000/-
1,50,000/-, 1,50,000/-, 1,50,000/-, 1,50,000/-, 1,50,000/-. Total
Rs.16,50,000/- (Rupees Sixteen Lakhs Fifty Thousand only). On
due dates of cheques I approached the party for encashment of
cheques, however, they requested me to hold the cheques for
some more time. Due to continuous follow up the said party
issued me four cheques of Rs.25,000/- (Rupees Twenty Five
Thousand) each in 2002 and 2003. I had been continuously
following up with them for my repayment and visiting their
shop regularly, recently I had fallen ill and only telephonic
conversation showing my inability to come to their shop, both
Shri Kamal Narain and Naresh Kapoor came to my residence
at A-1/25, Safdarjung Enclave, New Delhi on 16.2.2004 at 2 pm
in white Maruti car bearing No. 5565 and took the cheques
mentioned above issued to me earlier on the promise that they
will replace all the cheques with the fresh ones and for the
balance a pay order in my favour will be handed over to me in
full and final settlement of account tomorrow. I waited for them
th
on 17 February, 2004 and finally I had to ring them up
number of times to which they have been avoiding. After
waiting continuously for 5 -6 days and failure to contact them, I
have realized that they have fraudulently managed to get the
cheques from me to avoid legal action from my side. As on date,
total dues recoverable from M/s. Uma Shankar Kamal Narayan
is approx Rs.30,00,000/- (Rupees Thirty Lac only) which
includes principal amount and interest accrued. I most humbly
request you to take necessary action against the owners of the
firm M/s. Uma Shankar Kamal Narayan namely Shri Kamal
Narayan & Shri Naresh Kapoor and help me to recover my
dues. Thanking you,Yours faithfully, Sd/- English – Prem Nath
Khanna – A – 1/25, Safdarjung Enclave, New Delhi Formerly
Crl.M.C. 1281/2010 Page 3 of 11
General Secretary Chandni Chowk Sarafa Association. Tel. No.
26106204. As per the enquiry conducted by the Vigilance/ S.W.
District on the complaint an offence under section 406/420 IPC
is made out. The FIR is registered under the above said section
and handed for investigation to me. Sd/- English – SI Mukesh
dated 1.5.2004. ―
6. The Additional Sessions Judge while allowing the revision petition of
respondent No.2-complainant as well as the State has observed as under:-
―4.5 Valuable Security‖ has been defined in Section 30 IPC,
which reads as under:
“30. “Valuable security” – The words ―valuable
security‖ denote a document which is, or purports
to be, a document whereby any legal right is
created, extended, transferred, restricted,
extinguished or released, or whereby any person
acknowledges that he lies under legal liability, or
has not a certain legal right.‖
5.0 The ―dishonestly‖ and ―fraudulently‖ have also been
defined in Sections 24 and 25, respectively, which are
reproduced hereunder:
“24. “Dishonestly” – Whoever does anything with
the intention of causing wrongful gain to one
person or wrongful loss to another person, is said
to do that thing ―dishonestly‖.
25. “Fraudulently” – A person is said to do a
thing fraudulently if he does that thing with intent
to defraud but not otherwise.‖
5.1 The question is whether cheques in the present case can
be termed as ―Valuable Security‖, even after the expiry of six
months. Original cheques were in the possession of the
complainant, at least he had an important document in his
Crl.M.C. 1281/2010 Page 4 of 11
possession whereby the opposite party has acknowledged its
liability. As far as dishonest or fraudulent intention is
concerned, it is a settled proposition that at this stage the
complainant is not required to spell it out explicitly. In
Shivanarayan Kabra Vs. The State of Madras, AIR 1967 SC
986, it was inter alia held that for offence under Section 420,
accused need not make false pretence in express words and
same may be inferred from all circumstances including conduct
of accused in obtaining property.
Further, in Rajesh Bajaj Vs. State NCT of Delhi and
Others, (1999) 3 SCC 259, it was inter alia held that – ―It is
not necessary that a complainant should verbatim reproduce in
the body of his complaint all the ingredients of the offence he is
alleging. Nor is it necessary that the complainant should state
in so many words that the intention of the accused was
dishonest or fraudulent. Splitting up of the definition into
different components of the offence to make a meticulous
scrutiny, whether all the ingredients have been precisely spelled
out in the complaint, is not the need at this stage.‖
5.2 The complainant has specifically stated that the cheques
were taken away by him from the accused persons with a
dishonest intention. They never intended to issue back any
cheque to avoid any illegal action from his side. The filing of
complaint u/S. 138 Negotiable Instruments Act, 1881 or
institution of any criminal action is only one of the remedy
available with the complainant in such cases. Such persons can
also file suit for recovery and institute any proceedings for
recovery of such amount. In such case, the cheques may be an
important property in possession of the complainant. The fact
that whether the same have been taken by the respondents or
not and what was the intention of the respondents at that time,
is a matter of trial. At the stage of charge, the court cannot
jump to any conclusion. In any criminal case, there can be
some flavor of civil transaction always. However, the duty of
the court is to find out meticulously that whether the incident
does not attract any offence at all.
Crl.M.C. 1281/2010 Page 5 of 11
In Rajesh Bajaj’s case (Supra) , it was also held that –
―….It may be that the facts narrated in the present complaint
would as well reveal a commercial transaction or money
transaction. But that is hardly a reason for holding that the
offence of cheating would elude from such a transaction. In
fact, many a cheatings were committed in the course of
commercial and also money transaction.‖
6.0 I consider that at the stage of charge giving such a
conclusive finding, by the ld. trial court, is erroneous.
7.0 In view of the above findings, revision petition is
allowed.
Petitioner is directed to appear before the trial
court on 22.03.2010 at 2 pm. ‖
7. Mr. Deepak Anand Masih submits that the whole prosecution story is
a mixture of deceptions, intrigue, faulty investigation, lies and is hit by the
statutory presumptions. According to him, the collective strength of all the
evidence available on record is ‘nil’ and does not warrant a trial. He relies
upon Section 114 of the Indian Evidence Act, 1872 to contend that only an
‘insane person’ would return the cheques before his claim was finally
settled.
8. Mr. Masih further submits that there is nothing on record to qualify
the alleged photocopies of cheques in question even as secondary evidence.
In this connection he relies upon Section 65(c) of the Indian Evidence Act,
1872.
9. Mr. Masih, contends that the present complaint is actuated by the
personal vengeance. He states that there was a marriage proposal from the
complainant for his nephew to the daughter of petitioner No.1 and after the
talks collapsed, present complaint was filed to settle personal scores.
Crl.M.C. 1281/2010 Page 6 of 11
10. Mr. Masih also contends that the present matter is a case of random
and faulty investigation. He states that the Investigating Officer failed to
take into account that petitioner No.2 had no legal link with M/s. Uma
Shankar Kamal Narayan. He states that just because petitioner No.2 was the
younger brother of petitioner No.1, he had been arrayed as an accused.
11. Mr. Masih lastly submits that a purely civil matter has been converted
into a criminal case. In this connection, he relies upon the judgments of the
Supreme Court in G. Sagar Suri & Anr. Vs. State of U.P. & Ors., (2000) 2
SCC 636 and M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd. &
Ors., (2006) 6 SCC 736 .
12. Mr. Masih submits that petitioner No.2’s fundamental right to speedy
trial has been infringed in the present case as the FIR had been registered
eight years ago. He also points out that one of the important witnesses has,
in the meantime, expired and therefore, no purpose would be served by
remanding the present case for trial.
13. Mr. A.K. Srivastava, learned counsel for respondent No.2-
complainant vehemently opposes the present petition on the ground that the
complaint filed by respondent No.2-complainant as well as the FIR discloses
commission of offences under Sections 420/406 IPC. He also points out
that four cheques of 25,000/- issued in the years 2002 and 2003 were
`
signed by petitioner No.2.
14. Mr. Manoj Ohri, learned APP for State submits that even if eleven
cheques taken back by the petitioners had expired, they would still constitute
a property and document within the definition of Section 415 IPC. Mr. Ohri
has also invited this Court’s attention to Section 464 Cr.P.C. which reads as
under:-
Crl.M.C. 1281/2010 Page 7 of 11
―464.Effect of omission to frame, or absence of, or error in,
charge.—(1) No finding sentence or order by a court of
competent jurisdiction shall be deemed invalid merely on the
ground that no charge was framed or on the ground of any
error, omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the court of
appeal, confirmation or revision, a failure of justice has in fact
been occasioned thereby.
(2) If the court of appeal, confirmation or revision is of opinion
that a failure of justice has in fact been occasioned, it may-
(a) In the case of an omission to frame a charge, order that a
charge be framed and that the trial be recommenced from the
point immediately after the framing of the charge.
(b) In the case of an error, omission or irregularity in the
charge, direct a new trial to be had upon a charge framed in
whatever manner it thinks fit:
Provided that if the court is of opinion that the facts of the case
are such that no valid charge could be preferred against the
accused in respect of the facts proved, it shall quash the
conviction.‖
15. Having heard the learned counsel for parties, this Court is of the view
that at the stage of framing charges, the Court is not expected to go deep into
the probative value of the materials on record. If a grave suspicion arises,
then the charge has to be framed. The Supreme Court in State of
Maharashtra, Etc. vs. Som Nath Thapa, Etc. Etc. (1996) 4 SCC 659 , has
held as under:-
―32. The aforesaid shows that if on the basis of materials on
record, a court could come to the conclusion that commission
of the offence is a probable consequence, a case for framing of
charge exists. To put it differently, if the Court were to think
Crl.M.C. 1281/2010 Page 8 of 11
that the accused might have committed the offence it can frame
the charge, though for conviction the conclusion is required to
be that the accused has committed the offence. It is apparent
that at the stage of framing of charge, probative value of the
materials on record cannot be gone into; the materials brought
on record by the prosecution has to be accepted as true at that
stage.‖
16. To a similar effect is the judgment of the Supreme Court in Sanghi
Brothers (Indore) Private Limited vs. Sanjay Choudhary & Ors., (2008) 10
SCC 681, wherein it has been held as under:-
11. Sections 227, 239 and 245 deal with discharge from
criminal charge. In State of Karnataka v. L. Muniswamy it was
noted that at the stage of framing the charge the court has to
apply its mind to the question whether or not there is any
ground for presuming the commission of offence by the
accused. (underlined for emphasis). The Court has to see *
while considering the question of framing the charge as to
whether the material brought on record could reasonably
connect the accused with the trial. Nothing more is required to
be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip
Nathumal Chordia and State of W.B. v. Mohd. Khalid .)‖
17. In the opinion of this Court, in the present case, the eleven cheques
which are alleged to have been taken back by the petitioners would
constitute not only an important piece of evidence but would also prove the
petitioners’ version.
18. Moreover, though the admission of liability by virtue of the eleven
cheques stood extinguished when the complaint was filed, but this Court is
of the view that on the strength of the other four alleged cheques given in the
years 2002-2003, the respondent No.2-complainant could have filed a
Crl.M.C. 1281/2010 Page 9 of 11
recovery suit which would be within limitation on the date of the FIR.
Consequently, the four cheques given in the years 2002-2003 constitute a
valuable security.
19. It is settled law that a criminal matter can have civil nuances,
inasmuch as a civil matter can have criminal nuances. At times, the same
facts can give rise to both criminal and civil causes of action. Reading the
complaint in its entirety, it cannot be said at this stage that a pure civil action
has been converted into a criminal action. Consequently, the judgments
cited by learned counsel for petitioner No. 2 are inapplicable to the facts of
the present case.
20. Upon a reading of the complaint also, this Court is of the view that
Section 114 of the Indian Evidence Act, 1872, would have no reliance
inasmuch as at this stage, it cannot be said that respondent No.2-complainant
has in any manner acted contrary to ordinary human conduct.
21. This Court is also of the opinion that Section 65(c) of the Indian
Evidence Act, 1872 would have no application to the facts of the present
case as in the present case the originals had not been destroyed or lost on
account of the petitioners’ own default or neglect. If the allegations in the
FIR are true and correct, then Section 65(a) of the Indian Evidence Act,
1872, would be attracted to the facts of the present case and secondary
evidence relating to the documents would be admissible.
22. It is also difficult to believe at this stage that petitioner No.2 has no
legal links with M/s. Uma Shankar Kamal Narayan inasmuch as according
to the FIR, four cheques given in the year 2002-2003 were signed by the
petitioner No.2.
Crl.M.C. 1281/2010 Page 10 of 11
23. Undoubtedly, the petitioner No.2 has a right to speedy trial, but this
Court is of the view that in the present instance, the petitioner No.2 has in no
small measure contributed to the delay in the trial. In fact, the proceedings
in the present case have left this Court with no doubt that the petitioner No.2
is primarily responsible for the delay in diposal of the present case.
24. As far as the contention that the present complaint is actuated by
personal vengeance because of rejection of a matrimonial proposal, this
Court is of the view that the said contention constitutes a defence of the
petitioner No.2 which the petitioner No.2 would have to prove by leading
evidence.
25. Consequently, this Court is of the view that there is no illegality or
irregularity in the order passed by the Additional Sessions Judge, New
Delhi. Accordingly, present petition and pending application are dismissed
with costs of ` 50,000/- to be paid to the respondent-State within a period of
eight weeks.
MANMOHAN, J
NOVEMBER 29, 2012
js
Crl.M.C. 1281/2010 Page 11 of 11
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1281/2010 & CRL.M.A. 5219/2010
KAMAL NARAIN KAPOOR & ANR ..... Petitioners
Through: Mr. S.S. Gandhi, Senior Advocate with
Mr. Dveep Ahuja, Advocate for
petitioner No.1.
Mr. Deepak Anand Masih, Advocate for
petitioner No.2.
versus
STATE & ANR ..... Respondents
Through: Mr. Manoj Ohri, APP for State with
SI Manvendra Singh, PS Sarojini Nagar,
New Delhi.
Mr. A.K. Srivastava, Advocate with
Ms. Anita Kapoor, Advocate for
respondent No.2.
th
% Date of Decision: 29 November, 2012
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN , J (ORAL):
1. Present petition has been filed under Section 482 Cr.P.C. seeking
th
setting aside of the order dated 05 March, 2010 passed by the Additional
Crl.M.C. 1281/2010 Page 1 of 11
Sessions Judge, New Delhi whereby the Metropolitan Magistrate’s order
th
dated 27 January, 2009 discharging the petitioners under Section 420/406
IPC was set aside.
2. On the last date of hearing, Mr. S.S. Gandhi, learned Senior Counsel
had argued the matter extensively on behalf of the petitioners. In fact, after
the respondents had concluded their arguments and certain queries had been
raised by this Court, Mr. Gandhi, learned senior counsel had sought time to
obtain instructions. Accordingly, the matter was adjourned for today.
3. Today, after some arguments, Mr. S.S. Gandhi, learned senior counsel
wishes to withdraw the present petition.
4. At this stage, Mr. Deepak Anand Masih, learned counsel states that he
is appearing on behalf of petitioner No.2 and he has instructions to press the
present petition. He has today in Court handed over his written submissions.
The same are taken on record. To obviate any delay in the matter, petition is
taken up for hearing qua petitioner No.2. Consequently, qua petitioner
No.1, present petition is dismissed as withdrawn.
5. The FIR filed in the present instance is reproduced below:-
―12. FIR contents (Attach separate sheet, if required).
th
25 February, 2004. The SHO, Sarojini Nagar, New Delhi,
Dear Sir,
Re: - Complaint against M/s. Uma Shankar Kamal Narain
Jewellers, Chandni Chowk, Delhi. It is humbly stated that I am
an 80 years old man who has been defrauded by M/s. Uma
Shankar Kamal Narain, 1267, Chandni Chowk, Delhi. It is
stated that I had given them a loan of Rs.15,00,000/- (Rupees
Fifteen Lacs Only) vide cheque No. 357225 dated 5.8.1999
drawn on Central Bank of India, Safdarjung Enclave, New
Delhi and advance of Rs.5,50,000/- (Rupees Five Lacs & Fifty
thousand only) in cash. The said amount was interest bearing
@12% and was refundable within a year. The abovenamed
Crl.M.C. 1281/2010 Page 2 of 11
party issued the following cheques with details hereunder to me
as part refund of my dues: - Date of cheque 6.1.2000, 6.2.2000,
6.3.2000, 6.4.2000, 6.5.2000, 6.6.2000, 6.7.2000, 6.8.2000,
6.9.2000, 6.10.2000, 6.11.2000. Cheque No. 631258, 631259,
631260, 631261, 631262, 631263, 631264, 631265, 631266,
631267 and 631268 drawn on Union Bank of India, S.B.
Saraffa Market, Chandni Chowk, Delhi. Amount – 1,50,000/-,
1,50,000/-, 1,50,000/-, 1,50,000/-, 1,50,000/- 1,50,000/-
1,50,000/-, 1,50,000/-, 1,50,000/-, 1,50,000/-, 1,50,000/-. Total
Rs.16,50,000/- (Rupees Sixteen Lakhs Fifty Thousand only). On
due dates of cheques I approached the party for encashment of
cheques, however, they requested me to hold the cheques for
some more time. Due to continuous follow up the said party
issued me four cheques of Rs.25,000/- (Rupees Twenty Five
Thousand) each in 2002 and 2003. I had been continuously
following up with them for my repayment and visiting their
shop regularly, recently I had fallen ill and only telephonic
conversation showing my inability to come to their shop, both
Shri Kamal Narain and Naresh Kapoor came to my residence
at A-1/25, Safdarjung Enclave, New Delhi on 16.2.2004 at 2 pm
in white Maruti car bearing No. 5565 and took the cheques
mentioned above issued to me earlier on the promise that they
will replace all the cheques with the fresh ones and for the
balance a pay order in my favour will be handed over to me in
full and final settlement of account tomorrow. I waited for them
th
on 17 February, 2004 and finally I had to ring them up
number of times to which they have been avoiding. After
waiting continuously for 5 -6 days and failure to contact them, I
have realized that they have fraudulently managed to get the
cheques from me to avoid legal action from my side. As on date,
total dues recoverable from M/s. Uma Shankar Kamal Narayan
is approx Rs.30,00,000/- (Rupees Thirty Lac only) which
includes principal amount and interest accrued. I most humbly
request you to take necessary action against the owners of the
firm M/s. Uma Shankar Kamal Narayan namely Shri Kamal
Narayan & Shri Naresh Kapoor and help me to recover my
dues. Thanking you,Yours faithfully, Sd/- English – Prem Nath
Khanna – A – 1/25, Safdarjung Enclave, New Delhi Formerly
Crl.M.C. 1281/2010 Page 3 of 11
General Secretary Chandni Chowk Sarafa Association. Tel. No.
26106204. As per the enquiry conducted by the Vigilance/ S.W.
District on the complaint an offence under section 406/420 IPC
is made out. The FIR is registered under the above said section
and handed for investigation to me. Sd/- English – SI Mukesh
dated 1.5.2004. ―
6. The Additional Sessions Judge while allowing the revision petition of
respondent No.2-complainant as well as the State has observed as under:-
―4.5 Valuable Security‖ has been defined in Section 30 IPC,
which reads as under:
“30. “Valuable security” – The words ―valuable
security‖ denote a document which is, or purports
to be, a document whereby any legal right is
created, extended, transferred, restricted,
extinguished or released, or whereby any person
acknowledges that he lies under legal liability, or
has not a certain legal right.‖
5.0 The ―dishonestly‖ and ―fraudulently‖ have also been
defined in Sections 24 and 25, respectively, which are
reproduced hereunder:
“24. “Dishonestly” – Whoever does anything with
the intention of causing wrongful gain to one
person or wrongful loss to another person, is said
to do that thing ―dishonestly‖.
25. “Fraudulently” – A person is said to do a
thing fraudulently if he does that thing with intent
to defraud but not otherwise.‖
5.1 The question is whether cheques in the present case can
be termed as ―Valuable Security‖, even after the expiry of six
months. Original cheques were in the possession of the
complainant, at least he had an important document in his
Crl.M.C. 1281/2010 Page 4 of 11
possession whereby the opposite party has acknowledged its
liability. As far as dishonest or fraudulent intention is
concerned, it is a settled proposition that at this stage the
complainant is not required to spell it out explicitly. In
Shivanarayan Kabra Vs. The State of Madras, AIR 1967 SC
986, it was inter alia held that for offence under Section 420,
accused need not make false pretence in express words and
same may be inferred from all circumstances including conduct
of accused in obtaining property.
Further, in Rajesh Bajaj Vs. State NCT of Delhi and
Others, (1999) 3 SCC 259, it was inter alia held that – ―It is
not necessary that a complainant should verbatim reproduce in
the body of his complaint all the ingredients of the offence he is
alleging. Nor is it necessary that the complainant should state
in so many words that the intention of the accused was
dishonest or fraudulent. Splitting up of the definition into
different components of the offence to make a meticulous
scrutiny, whether all the ingredients have been precisely spelled
out in the complaint, is not the need at this stage.‖
5.2 The complainant has specifically stated that the cheques
were taken away by him from the accused persons with a
dishonest intention. They never intended to issue back any
cheque to avoid any illegal action from his side. The filing of
complaint u/S. 138 Negotiable Instruments Act, 1881 or
institution of any criminal action is only one of the remedy
available with the complainant in such cases. Such persons can
also file suit for recovery and institute any proceedings for
recovery of such amount. In such case, the cheques may be an
important property in possession of the complainant. The fact
that whether the same have been taken by the respondents or
not and what was the intention of the respondents at that time,
is a matter of trial. At the stage of charge, the court cannot
jump to any conclusion. In any criminal case, there can be
some flavor of civil transaction always. However, the duty of
the court is to find out meticulously that whether the incident
does not attract any offence at all.
Crl.M.C. 1281/2010 Page 5 of 11
In Rajesh Bajaj’s case (Supra) , it was also held that –
―….It may be that the facts narrated in the present complaint
would as well reveal a commercial transaction or money
transaction. But that is hardly a reason for holding that the
offence of cheating would elude from such a transaction. In
fact, many a cheatings were committed in the course of
commercial and also money transaction.‖
6.0 I consider that at the stage of charge giving such a
conclusive finding, by the ld. trial court, is erroneous.
7.0 In view of the above findings, revision petition is
allowed.
Petitioner is directed to appear before the trial
court on 22.03.2010 at 2 pm. ‖
7. Mr. Deepak Anand Masih submits that the whole prosecution story is
a mixture of deceptions, intrigue, faulty investigation, lies and is hit by the
statutory presumptions. According to him, the collective strength of all the
evidence available on record is ‘nil’ and does not warrant a trial. He relies
upon Section 114 of the Indian Evidence Act, 1872 to contend that only an
‘insane person’ would return the cheques before his claim was finally
settled.
8. Mr. Masih further submits that there is nothing on record to qualify
the alleged photocopies of cheques in question even as secondary evidence.
In this connection he relies upon Section 65(c) of the Indian Evidence Act,
1872.
9. Mr. Masih, contends that the present complaint is actuated by the
personal vengeance. He states that there was a marriage proposal from the
complainant for his nephew to the daughter of petitioner No.1 and after the
talks collapsed, present complaint was filed to settle personal scores.
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10. Mr. Masih also contends that the present matter is a case of random
and faulty investigation. He states that the Investigating Officer failed to
take into account that petitioner No.2 had no legal link with M/s. Uma
Shankar Kamal Narayan. He states that just because petitioner No.2 was the
younger brother of petitioner No.1, he had been arrayed as an accused.
11. Mr. Masih lastly submits that a purely civil matter has been converted
into a criminal case. In this connection, he relies upon the judgments of the
Supreme Court in G. Sagar Suri & Anr. Vs. State of U.P. & Ors., (2000) 2
SCC 636 and M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd. &
Ors., (2006) 6 SCC 736 .
12. Mr. Masih submits that petitioner No.2’s fundamental right to speedy
trial has been infringed in the present case as the FIR had been registered
eight years ago. He also points out that one of the important witnesses has,
in the meantime, expired and therefore, no purpose would be served by
remanding the present case for trial.
13. Mr. A.K. Srivastava, learned counsel for respondent No.2-
complainant vehemently opposes the present petition on the ground that the
complaint filed by respondent No.2-complainant as well as the FIR discloses
commission of offences under Sections 420/406 IPC. He also points out
that four cheques of 25,000/- issued in the years 2002 and 2003 were
`
signed by petitioner No.2.
14. Mr. Manoj Ohri, learned APP for State submits that even if eleven
cheques taken back by the petitioners had expired, they would still constitute
a property and document within the definition of Section 415 IPC. Mr. Ohri
has also invited this Court’s attention to Section 464 Cr.P.C. which reads as
under:-
Crl.M.C. 1281/2010 Page 7 of 11
―464.Effect of omission to frame, or absence of, or error in,
charge.—(1) No finding sentence or order by a court of
competent jurisdiction shall be deemed invalid merely on the
ground that no charge was framed or on the ground of any
error, omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the court of
appeal, confirmation or revision, a failure of justice has in fact
been occasioned thereby.
(2) If the court of appeal, confirmation or revision is of opinion
that a failure of justice has in fact been occasioned, it may-
(a) In the case of an omission to frame a charge, order that a
charge be framed and that the trial be recommenced from the
point immediately after the framing of the charge.
(b) In the case of an error, omission or irregularity in the
charge, direct a new trial to be had upon a charge framed in
whatever manner it thinks fit:
Provided that if the court is of opinion that the facts of the case
are such that no valid charge could be preferred against the
accused in respect of the facts proved, it shall quash the
conviction.‖
15. Having heard the learned counsel for parties, this Court is of the view
that at the stage of framing charges, the Court is not expected to go deep into
the probative value of the materials on record. If a grave suspicion arises,
then the charge has to be framed. The Supreme Court in State of
Maharashtra, Etc. vs. Som Nath Thapa, Etc. Etc. (1996) 4 SCC 659 , has
held as under:-
―32. The aforesaid shows that if on the basis of materials on
record, a court could come to the conclusion that commission
of the offence is a probable consequence, a case for framing of
charge exists. To put it differently, if the Court were to think
Crl.M.C. 1281/2010 Page 8 of 11
that the accused might have committed the offence it can frame
the charge, though for conviction the conclusion is required to
be that the accused has committed the offence. It is apparent
that at the stage of framing of charge, probative value of the
materials on record cannot be gone into; the materials brought
on record by the prosecution has to be accepted as true at that
stage.‖
16. To a similar effect is the judgment of the Supreme Court in Sanghi
Brothers (Indore) Private Limited vs. Sanjay Choudhary & Ors., (2008) 10
SCC 681, wherein it has been held as under:-
11. Sections 227, 239 and 245 deal with discharge from
criminal charge. In State of Karnataka v. L. Muniswamy it was
noted that at the stage of framing the charge the court has to
apply its mind to the question whether or not there is any
ground for presuming the commission of offence by the
accused. (underlined for emphasis). The Court has to see *
while considering the question of framing the charge as to
whether the material brought on record could reasonably
connect the accused with the trial. Nothing more is required to
be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip
Nathumal Chordia and State of W.B. v. Mohd. Khalid .)‖
17. In the opinion of this Court, in the present case, the eleven cheques
which are alleged to have been taken back by the petitioners would
constitute not only an important piece of evidence but would also prove the
petitioners’ version.
18. Moreover, though the admission of liability by virtue of the eleven
cheques stood extinguished when the complaint was filed, but this Court is
of the view that on the strength of the other four alleged cheques given in the
years 2002-2003, the respondent No.2-complainant could have filed a
Crl.M.C. 1281/2010 Page 9 of 11
recovery suit which would be within limitation on the date of the FIR.
Consequently, the four cheques given in the years 2002-2003 constitute a
valuable security.
19. It is settled law that a criminal matter can have civil nuances,
inasmuch as a civil matter can have criminal nuances. At times, the same
facts can give rise to both criminal and civil causes of action. Reading the
complaint in its entirety, it cannot be said at this stage that a pure civil action
has been converted into a criminal action. Consequently, the judgments
cited by learned counsel for petitioner No. 2 are inapplicable to the facts of
the present case.
20. Upon a reading of the complaint also, this Court is of the view that
Section 114 of the Indian Evidence Act, 1872, would have no reliance
inasmuch as at this stage, it cannot be said that respondent No.2-complainant
has in any manner acted contrary to ordinary human conduct.
21. This Court is also of the opinion that Section 65(c) of the Indian
Evidence Act, 1872 would have no application to the facts of the present
case as in the present case the originals had not been destroyed or lost on
account of the petitioners’ own default or neglect. If the allegations in the
FIR are true and correct, then Section 65(a) of the Indian Evidence Act,
1872, would be attracted to the facts of the present case and secondary
evidence relating to the documents would be admissible.
22. It is also difficult to believe at this stage that petitioner No.2 has no
legal links with M/s. Uma Shankar Kamal Narayan inasmuch as according
to the FIR, four cheques given in the year 2002-2003 were signed by the
petitioner No.2.
Crl.M.C. 1281/2010 Page 10 of 11
23. Undoubtedly, the petitioner No.2 has a right to speedy trial, but this
Court is of the view that in the present instance, the petitioner No.2 has in no
small measure contributed to the delay in the trial. In fact, the proceedings
in the present case have left this Court with no doubt that the petitioner No.2
is primarily responsible for the delay in diposal of the present case.
24. As far as the contention that the present complaint is actuated by
personal vengeance because of rejection of a matrimonial proposal, this
Court is of the view that the said contention constitutes a defence of the
petitioner No.2 which the petitioner No.2 would have to prove by leading
evidence.
25. Consequently, this Court is of the view that there is no illegality or
irregularity in the order passed by the Additional Sessions Judge, New
Delhi. Accordingly, present petition and pending application are dismissed
with costs of ` 50,000/- to be paid to the respondent-State within a period of
eight weeks.
MANMOHAN, J
NOVEMBER 29, 2012
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