Lokesh Khanna v. Satya Khanna & Ors

ORDER %

08.11.2011 Crl.M.A. 1743/201 l(Exemption) Exemptionallowedsubjectto just exceptions. Application is disposed of. Crl. M.A. No. 12752/2011(summoiiing of trial court record) This application is dismissed. Crl. M.C. No. 3588/2011 & Crl. M.A. No. 12753/2011(Stav)

¶1By the presentpetition,the Petitionerseeksquashingofthe orderdated 17^'' .January,2011 passed by the learnedMetropolitanMagistrateand the order dated 16"' August, 2011 passed by the learned Addl. Sessions Judge. The Petitioner furtherseeksregistrationof FIR againstthe RespondentNos. 1 and 2.

¶2Learned counsel, for the Petitioner states that he had filed a criminal complaint dated 30"' September,2008 against RespondentNos. 1 and 2 under various Sections of IPG along with an application under Section 156(3) IPG for registrationof a case againsttheRespondentswhichwas dismissedby the learned Page No. 1 of 5 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. trial court withoutproperlyconsideringthe factual matrixof the case. It is stated that the learned Courts have failed to apply their mind that the Respondent No.1 and 2 filed a petition giving the wrong address and have continuouslyfiled frivolous civil and criminal petitions against the Petitioner. They have also committed number of offences and misguided Delhi Legal Services Authority

(DLSA) that they are not financiallysound and procured the Court fees from DLSA for filingthecivilsuit. It is statedthatthe RespondentNo. 1is earningand receiving more than Rs.22,000/- per month and Respondent No. 2 is a Governmentemployee and hence have committed the offence of cheating and fraud by falsely representingthemselvesto be poor before the DLSA to procure the ad valorem court fees from legal aid. Learned Trial Courts have failed to considerthe illegal activitiesof cheatingand fraud committedby the Respondent Nos. 1and 2. Hencethe impugnedordersare badin law and liableto set aside.

¶3I have heard counsel for the Petitioner.

¶4Briefly,the case of the PetitioneristhatthePetitionerhad filed a complaint case againstthe RespondentNos. 1 and 2 along with an applicationunder Section 156(3) Cr. P.C. for directionsto PS Sarai Rohilla to lodge an FIR against the Accused/Respondents before the learned Metropolitan Magistrate. In the said complaint, the Petitioner had stated that the Respondent Nos. 1 and 2 were pressurizinghim to give divorceto his wife for the purpose of getting more dowry and are financially sound persons having a number of bank accounts. In collusion Page No. 2 of 5 with certain relatives they had filed civil suit against the Petitionerwhich is pendingdisposalin the districtcourt. Forthe purposeofthatsuit,the Respondents filed a false applicationbeforethe DLSA for providingcourt fees for filing ofthe said suit and DLSA providedthemwith the legalassistanceby supplyingthem the court fee. It was alleged that the suit had been wrongly falsely and frivolously filed against the Petitioner.

¶5Learned Metropolitan Magistrate vide order dated 1?"' January, 2011 observedthat there is a historyofpreviouslitigationsbetweenthe partiesand the allegationsset out in the complaintare ofsuch a nature which can be proved by the Complainant(Petitionerherein) himself and does not require any kind of investigation. No recovery of any other documenthas to be effected from the Respondent. All the evidence/documentsare well within the reach of the complainant and as such require no investigationby the police. Thus, the applicationof the Respondentwas dismissed and the case was listed for pre-summoningcomplainantevidence. This orderwas challengedby the Petitionerby way of a revisionpetitionbefore the learned Addl. SessionsJudge. Vide order dated 16"' August, 2011 the learned Addl. Sessions Judge dismissed the said revisionpetition observingthat there was no infirmity or illegalityin the order passed by the learned Trial Court.

¶6It may be noted that both the orders passed by the learned Metropolitan Magistrate dismissing the application under Section 156(3) Cr. P.C. and the Page No. 3 of 5 K learnedAddl. SessionsJudge in revisionare detailedorders keeping in mmHall the avermentsand documentsplacedon recordby the Complainant. This Courtin M/s SkipperBeveragesPvt. Ltd vs. State, 2001 IVADC (Delhi) 625 held that in case the Complainanthimselfis in a positionto collect all the evidenceand for collectingthe same interventionofthepoliceisnot required,the applicationunder section 156 (3) Cr.P.C. should be dismissed and the learned Metropolitan Magistrateshouldproceed as a complaintcase if the facts warrant.

¶7In Gopal Das Sindhi vs. State of Assam & Anr., AIR 1961 SC 986, the Hon'ble Supreme Court held: "We cannot read the provisions of Section 190 Cr. P.C. to mean that once a complaintis filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commissionof any offence. We are unable to construethe word 'may' in Section 190 Cr.P.C. to mean 'must'. The reason is obvious. A complaintdisclosingcognizableoffence may well justify a Magistrate in sendingthe Complainantunder Section 156 (3) Cr.P.C. to police for investigation. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizablecase. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code.

¶8Thus, it is well-settled that when a complaint is filed before the Magistrate, he has the option of either directingthe police to registerthe FIR under Section 156 (3) and investigate the same and in case the Magistrate is of the opinionthat the evidencerequiredto prove the case of the Complainantis in possessionof the Complainantand in case some evidenceis required,the same can be obtainedby having recourse to Section 91 or 202 Cr. P.C., it is not necessary in such a case to Page No. 4 of5 relegatethe Complainantto the procedureofgettingthe FIR registeredand a-v^ the police investigation and charge-sheet thereon.

¶9I find no infirmity in the impugned orders much less any abuse of process of Court, warranting interferenceby this Court. The jurisdiction under Section 482 Cr. P.C. is required to be resorted to sparinglywith great care, caution and circumspectionin order to prevent abuseof the process of the Court.

¶10The Petition and the application are dismissed. MUKTA GUPTA, J NOVEMBER 08, 2011 dk PageNo.5of5

$-40 _ • IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 3588/2011 LOKESH KHANNA Petitioners Through Mr. Rohan Kanhai, Advocate versus SATYA KHANNA & ORS Respondents Through None. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA