Full Text
CRLM.C. 1224/2011 & CrI.
M.A. No.4471/2011
BHARAT BHUSHAN CHUGH Petitioner
Through:Mr. Harpreet Singii Bawa, Adv.
Through:Mr. Pradeep Kumar, Adv.
ORDER o/o 14.07.2011
JUDGMENT
1. The petitioner has challenged the order dated 17.05.2010 passed by the learned M. M. (West) Delhi, whereby, the summoning order were issued under Section 506 Indian Penal Code in C.C. No.722/01; and further challenged the order dated 06.12.2010 passed by the Addl. Sessions Judge (FTC)/West, Delhi whereby the Ld. Additional Sessions Judge has confirmed the order dated 17.05.2010 passed by the learned M. M.
2. As submitted by the learned counsel for the petitioner, the briefs facts of the case are that the petitioner was running a wholesaler business of dress materials in the name and style of M.S. Traders having its office at 2530/7, T' Floor, Chuna Mandi, Paharganj, Delhi from the year 1997 to 2001. He took on rent T' Floor of the residential premises bearing No.126, Behra Enclave, Paschim Vihar, CRLM.C. 1224/2011 &CrI. M.A. No.4471/2011 Page[1] of[8] 2011:DHC:15418 New Delhi, from the respondent. The aforesaid premises was also used for storing the dress material.
3. On 01.03.2000 when the petitioner came back to his house from his Surat, office he found that dress material worth more than Rs.1,50,000/- was stolen by the respondent with the help of additional key which the respondent kept surreptitiously without the knowledge of the petitioner.
4. The petitioner immediately approached the concerned police station to lodge the complaint. The respondent was called by the police to inquire into the matter. Respondent admitted his guilt before the police and offered to pay the amount of loss as the cloth in question was already sold to some customer as the respondent is also into the business of dress material.
5. Accordingly, compromise took place between the parties and the respondent gave the petitioner three cheques bearing NO. 12013[8] for T[1],00,000/-, 12013[9] for f 25,000/- and cheque bearing No.222851 for T 25,000/-. Since the matter was compromised between the parties with the intervention ofthe police, therefore, no formal complaint was lodged by the police.
6. Thereafter the petitioner shifted his residence from 126, Behra Enclave, Paschim Vihar, New Delhi to 121, Behra Enclave, Paschim Vihar, New Delhi in the same vicinity as he no longertrusted the CRL.M.C. 1224/2011 &CrI. MA. No.4471/2011 Page[2] of[8] respondent. Even the security deposit of the petitioner was not returned by the respondent but the petitioner never made any fuss about it as he was interested in running his business and wanted to concentrate on the same and never wanted to entangle himself in any legal matters.
7. Thereafter, the petitioner shifted to Surat and never met or dealt with the respondent ever again.
8. Ld. Counsel for the petitioner further submits, the petitioner received summons to appear in a private complaint filed in 2007 relating to alleged non-existent incident of 2000. The respondent falsely alleging that a threat had been given in a telephonic conversation in July 2005 made from Delhi to Surat.
9. Through summons, petitioner was directed to appear before the Id. M.M., Tis Hazari, Delhi in a totally false and fabricated complaint has been filed by the respondent only to harass the petitioner and to extort money from the petitioner by abusing the process of the court.
10. The petitioner assailed the summoning order and filed a revision petition on 15.11.2010 which was dismissed on 06.12.2010.
11. The Id. counsel for the petitioner has drawn the attention of this Court to page 29 of the paper book where the details of three cheques are given which were received by him in the compromise CRL.M.C. 1224/2011 &Crl. M.A. No.4471/2011 which took place in the year 2000, between him and the respondent at the police station.
12. The Id. counsel for the respondent, admits this fact that in the year 1997 the petitioner has taken on rent the first floor portion of the premises bearing No.126, Behra Enclave, Paschim Vihar, New Delhi vide rent agreement dated 19.09.1997 who is now residing at House No.101, sidhi Nagar, Ring Road, Surat, Gujarat and is carrying on his business in the name and style of M/s M.B. Silk Mills B-11, Basement, Poonam Market, Ring Road, Surat(Gujarat).
13. He further submits that the petitioner Bharat Bhushan with his fanciful stories and idea lured the respondent to part with sum of T[3],25,000/- on the pretext that he would invest the same into his business and further assured and promised that respondent would get 24% on the investment. The petitioner also promised that he would get necessary papers/documentation regarding the said investment signed by the petitioner, as and when the same would be ready. The respondent was made to believe the representation/false representation of the petitioner and the respondent parted with sum of T.3,25,000/-, partly by three cheques for a total sum ofT.1,50,000/and rest in cash f 1,75,000/-.
14. As regard the allegations made in the complaint against the petitioner regarding the cheating and criminal breach of trust, learned MM has dismissed the complaint as no prima facie case CRL.M.C. 1224/2011 &CrI. MA. No.4471/2011 Page 4 of[8] I under Section 406/415/420 IPC against the petitioner.
15. The respondent / complainant has never challenged the order dated 17.05.2010 passed by learned M. M. West, Delhi, therefore, this order has attained finality.
16. As regards the order dated 06.12.2010, petitioner has argued before the learned Additional Sessions Judge that as per the averments made in the complaint, the cause of action arose in Surat and not in Delhi.
17. In this regard, the attention of the learned Additional Sessions Judge was drawn to para No.8 of the complaint, wherein it has been averred that on 16.12.2004, complainant had been threatened by the petitioner at Surat.
18. Learned counsel for petitioner further argued before the learned Additional Sessions Judge that as per the provision ofSection 177 Cr P C, the Delhi Courts had no jurisdiction.
19. It was further submitted by the counsel for petitioner, that occurrences in the present case took place on 16.12.2004 and July, 2005, the complainant had reportedly lodged a complaint with the police on 10.04.2006 and filed the complaint case in the Court on 25.05.2007 and the petitioner was summoned by the learned Trial Court vide order dated 17.05.2010.
20. Learned Additional Sessions Judge has also gone through the CRL.M.C. 1224/2011 &CrI. M.A. No.4471/2011 Page 5 of[8] complaint and found in para No.8 of the complaint about the threa| having been extended to the complainant at Surat on 16.12.2004. However, reading further the said paragraph itself mentions in the complaint that thereafter, in July, 2005, while, the complainant was in Delhi, therefore, the threat received by the complainant at Delhi on telephone.
21. Keeping the above discussion into view, learned Additional Sessions Judge confirmed the order dated 17.05.2010 passed by the Ld. Trial Judge.
22. On asking from the Id. counsel for the respondent whether he has filed the proof of giving cash of ? 1,75,000/-? He replied in negative. He further states that this money was given in the presence of one witness, namely, Brij Bhushan Arora.
23. Ld. counsel for the petitioner points out that this witness is an interested witness, he being a nephew of the respondent.
24. Ld. counsel for the respondent further submits, he had made the complaint to the police on 10.04.2006 which was registered as DD N0.31D, P.S. Paschim Vihar, Delhi. Since the police station concerned did not registered any FIR, he filed a complaint before the Court and wherein the court was pleased to issue summon to the petitioner but he never appeared before the court.
25. Ld. counsel for the petitioner points out that the petitioner has been exempted from personal appearance on 19.04.2011 by the CRL.M.C. 1224/2011 &CrI. M.A. No.4471/2011 Page 6 of[8] concerned court.
26. After hearing both the parties, I am of the opinion that the dress material of the petitioner was misplaced from his rental house. He approached the police, matter was compromised. The respondent had paid a sum off 1,50,000/- by way of three cheques. Since the petitioner is presently settled at Surat, now the respondent wants to take revenge from the petitioner for the money which he paid to the petitioner in the year 2000.
27. I note, the said alleged money was paid to the petitioner in the year 2000 and thereafter he never asked about the interest of 24% thereon. For the first time he made a complaint to the police in the year 2006, the police did not register any case. Thereafter, he filed a complaint case on 28.04.2007, before the concerned Magistrate.
28. Admittedly, the threat received by the complainant, as is mentioned in para No.8 of the complaint, for the first time at Surat on 16.12.2004 when the complainant visited the place of the petitioner, thereafter in July 2005, on telephone from Surat at Delhi. On 10.04.2006, complainant filed the alleged complaint with the Police Station Paschim Vihar, same was entered in DD No.31B dated 11.04.2006 but not registered the FIR, being the case of civil nature and involving the money transaction. Meaning thereby, the complainant made complaint against the petitioner ofthe being CRL.M.C. 1224/2011 &CrI. M.A. No.4471/2011 Page 7 of[8] threatened firstly on 16.12.2004 and thereafter July, 2005.
29. Both the Courts below had gone wrong while issuing the summons under Section 506 IPC against the petitioner and confirming by the Sessions Court. The Courts below have not appreciated the fact that the alleged witness was nephew of the complainant and was interested one and that the incident took place two years and one year before the lodging the complaint and three years before filing the complaint, therefore, the Courts should not have taken cognizance in the case, when the complainant was not much serious about the threats received one at Surat and another at Delhi on telephone.
30. Keeping in view the aforesaid discussion, I set aside the order dated 17.05.2010 passed by Ld. M. M. and the order dated 06.12.2010 passed by the Addl. SessionsJudge(FTC), Delhi.
31. CrI. M.C. No.1224/2011 is allowed. CrI. M.A. No.4471/2011 Dismissed as being infructuous.
SURESH KAITJ JULY 14, 2011 RS/mk