[CASE NUMBER] IN THE COURT OF SH. [ENTITY] SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT KARKARDOOMA COURTS, DELHI Criminal Revision No. : 116/2018 Under Section : [SECTION] [ACT] Case No. : 4365/2016 (Old CC No.03/2001) PS : Kalyan Puri CNR No. : DLET01-003794-2018 In the matter of :- 1. SMT. VEENA W/o. Shri [ENTITY], R/o. H.No.328, Kalyan Bas, Delhi-110091. Also at : 19/171, Kalyan Puri, Delhi. 2. SHRI SHANKAR LAL S/o. Late Shri Kalwa Ram, R/o. H.No.328, Kalyan Bas, Delhi-110091. Also at : 19/171, Kalyan Puri, Delhi. PETITIONERS VERSUS 1. STATE (GOVT. OF NCT OF DELHI) 2. SMT. MADHU SHARMA W/o. Shri R.K. Sharma, R/o. D-2, Green Park, 2nd Floor, Village Chipayana Bugurg, Ghaziabad, U.P. RESPONDENTS Date of Institution : 07.06.2018 Date of reserving order : 25.08.2018 Date of pronouncement : 30.08.2018 Decision : Petition is partly allowed. ORDER
1. This revision petition is directed against order dated 17.04.2018, passed by trial court in a complaint case titled as Smt. [ENTITY] v. Smt. [ENTITY] & Anr., bearing new case no. 4365/2016 (old Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER], under [SECTION]/120-B [ACT]. Vide impugned order dated 17.04.2018, ld. trial court framed charges for offence punishable under [SECTION] [ACT] against Smt. [ENTITY] (petitioner no.1 herein) and under [SECTION] [ACT] against Smt. [ENTITY] and Sh. [ENTITY] (petitioners herein). BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that complainant/respondent no.2 herein Smt. [ENTITY] (hereinafter referred to as complainant) filed a complaint under [SECTION] & [SECTION] [ACT] against Smt. [ENTITY] and Sh. [ENTITY] (petitioners herein). In her complaint, complainant alleged that she had been carrying a kitty/committee at her residence i.e. 421, Kalyan Bas, Delhi-91 for the period of 5 th November of 1999 to June 2001 of 20 shares wroth Rs.20,000/- each. Each share holder had to give equal monthly amount as per his/her share up to finalization of the scheme i.e. kitty/committee without any fault, otherwise a penalty of Rs.10/- per day as late payment was payable. Any share holder once could take the entire monthly collection amount on the basis of bid against highest voluntarily loss as per his/her necessity.
3. Complainant further alleged that accused no.1/Smt. [ENTITY] had six shares, out of which two were in her own name, while four shares were on behalf of other persons. During monthly bids dated 12.11.1999, 10.01.2000, 19.02.2000, 11.04.2000, 13.05.2000 and 14.08.2000, accused no.1 had taken her all shares (bids). She had also taken share of Mr. [ENTITY], who gave her that on the reliance of complainant on 13.09.2000. Thus, accused no.1 had taken a sum of Rs.95,000/- through aforesaid seven shares (bids). Complainant further alleged that later on, accused no.1 stopped her arrival Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] fraudulently and made default in payment of monthly installments. Complainant further alleged that when accused no.1 and her husband/accused no.2 were approached and demanded amount, they refused clearly to return any amount to the complainant. Thereafter, on 15.12.2000 husband of complainant approached accused no.2 at his office at PWD, Rajpura Road, Delhi, where he assured him to pay the amount before his lawyer on 22.12.2000. On 22.12.2000 before his lawyer, accused no.2 again assured husband of complainant to arrange the amount after two days. But after two days, when complainant approached accused no.1 and 2 on 24.12.2000, they stated very aggressively that they did not take any amount from her.
4. Thereafter, complainant lodged a written complaint dated 24.12.2000 with SHO PS Kalyanpuri, Delhi, but no action was taken by police and accused no.1 and 2 did not pay anything despite several other demands. On 07.01.2001 when complainant and her husband again approached to accused persons, accused no.1 threatened them crazily that "now she is not related with any scheme and do not come here again, otherwise she would implicate them in the false criminal case." Thereafter, complainant once again approached SHO PS Kalyanpuri vide complaint dated 07.01.2001, but all in vain.
5. Complainant also moved a written complaint dated 11.01.2001 to the Police Commissioner as well as SHO PS Kalyanpuri, in which she described all criminal activities caused by accused no.1 and 2 and failure of the local police to take any action against them.
6. Trial court after hearing arguments on the point of charge, observed that prima facie offences under Section [SECTION] [ACT] were made out against accused persons and accordingly, vide impugned order charges were framed against accused persons.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] GROUNDS : -
7. Being aggrieved of impugned order, petitioners have preferred this revision petition mainly on the following relevant grounds :-
That impugned order is against law and facts of the case. That trial court did not appreciate that ingredients of [SECTION] [ACT] are not attracted as neither respondent no.2 alleged in her complaint case nor she deposed in her pre-summoning evidence that she was deceitfully and fraudulently induced by petitioner no.1 to let her join as a member of Kitty Committee. Trial court failed to appreciate that the alleged signatures of petitioner no.1 on Kitty Committee Register pertaining to committee of 20 members were found to be false by report of CFSL.
That trial court did not appreciate that respondent no.2 did not depose in her pre-summoning evidence that petitioner no.2 had threatened her at any point of time. Trial court also did not appreciate that in the complaint case respondent no.2 merely alleged threatening of implication in false criminal case. However, respondent no.2 in her pre-summoning evidence dated 01.06.2001 changed her allegation that petitioner no.1 allegedly threatened respondent no.2 to commit suicide which is an improvement and contradiction on the part of respondent no.2.
There is contradiction between alleged incident of threatening dated 07.01.2001 as stated in complaint case and complaint dated 07.01.2001 made to SHO PS Kalyanpuri as well as deposition made before trial court in respect of alleged incident. That improvements, contradictions and different version of respondent no.2 in respect of alleged incident dated 07.01.2001 shows that she anyhow wanted to implicate petitioners into the present case.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] That ld. CMM did not appreciate that complainant/respondent no.2 carried on Kitty Committee entirely in contravention of [SECTION] of the [ACT], which attracts penal provision and actionable under the law against respondent no.2. Respondent no.2 cannot take benefit of her own wrong and implicate innocent petitioners into a false case.
That ld. CMM did not appreciate that there is no document on the record to connect petitioners herein with the alleged offence except register of members of Kitty Committee i.e. Ex.CW1/A, which does not bear signature of petitioner no.1 for which respondent no.2 is alleging the signatures of petitioner no.1. That register was sent to CFSL for verification of signature of petitioner no.1. CFSL submitted its report dated 13.12.2005 after due examination and found that signature of petitioner no.1 on the register of members filed by respondent no.2 are not the signature of petitioner no.1.
That ld. MM did not appreciate observation dated 31.07.2010 of the then CMM Sh. [ENTITY]. The aforesaid register is a tampered document relied upon by complainant/respondent no.2. There is no material on record, even at a prima facie stage to frame charge upon the petitioners.
That ld. CMM did not appreciate that neither petitioner no.1 received any money nor extended any threat. That petitioner no.2 never extended any threat as alleged. The alleged receipt/Mark A filed by respondent no.2 is observed as tampered by the court of Sh. [ENTITY], the then CMM, Delhi and it does not bear signature of petitioner no.1 as per the report of CFSL. That Supreme Court as well as High Court of Delhi have held in its Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] many judgments that if two views are possible, one favouring accused should be adopted even at the stage of charge. In the present case, there is no material at all against petitioners to connect them with the case.
APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
8. It has been settled law that at the stage of consideration on charge, the court has to look into the materials produced by prosecution, so as to satisfy itself, if the materials constitute ingredients of the alleged offences and prima facie case appears against the accused for commission of the alleged offences. In [PRECEDENT], Supreme Court observed that "The Code contemplates discharge of the accused by the Court of Session under [SECTION] in a case triable by it; cases instituted upon a police report are covered by [SECTION] and cases instituted otherwise than on police report are dealt with in [SECTION]. The three sections contain somewhat different provisions in regard to discharge of the accused. Under [SECTION], the trial judge is required to discharge the accused if he "considers that there is not sufficient ground for proceeding against the accused." Obligation to discharge the accused under [SECTION] arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under [SECTION] when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction." It is a fact that [SECTION] and [SECTION] provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under [SECTION], on the other hand, is reached only after the evidence referred to in [SECTION] has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under [SECTION] is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed."
9. Similar decision was taken by Supreme Court in the case of [ENTITY] of T.N. v. N. Suresh [ENTITY], (2014) 11 SCC 709, by making following observations :-
"Thus, there is difference in the language employed in the provisions of [SECTION], [SECTION] and [SECTION] [ACT], but not withstanding these differences and whichever provision may be applicable, the court is required at this stage to see that there is prima facie case for proceeding against the accused."
10. Supreme Court in the same case further observed that "the court cannot act as a mouth piece of the prosecution or act as a post office and may shift evidence in order to find out whether or not the allegations made are groundless so as to pass order of discharge." Court further held that "it is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclosing existence of all the ingredients Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction". The court further observed that "to put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage".
10.I shall evaluate the evidence in this case and the rival arguments on the parameters of aforesaid legal principles. The first argument on the part of petitioners is that complainant did not allege in her complaint or pre summoning evidence that she was deceitfully induced by petitioner no.1 to let her join as a member of kitty committee. Therefore, ingredients of [SECTION] [ACT] are not attracted. However, I do not concur with such interpretation of petitioner for simple reason that the deceitful inducement is to be inferred from the conduct of the accused persons, on the basis of evidence on the record. Therefore, just because complainant did not use these terms in her complaint or the evidence, it cannot be concluded that ingredients of [SECTION] [ACT] are not satisfied. The ingredients have to be analysed on the basis of over all appreciation of the evidence and taking view of the conduct of the accused. From the allegations made by complainant in her complaint and evidence, it has come on the record that petitioner no.1, though joined the committee on the understanding that she would keep making contribution as per share decided every month. But she did not do so after taking benefits of the joint booty on six occasions and after taking share of one another member on 7 th occasion. Such conduct prima facie reflects that petitioner no.1 had the intention to take the Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] benefits and thereafter stop making payment of shares on her part, which apparently caused monetary loss and mental agony to complainant. The design of the actions of the petitioner no.1, which can be inferred on appreciation of her alleged conduct, do suggest that complainant was induced to allow petitioner no.1 to lift six bids and thereafter, to take 7 th bid in the name of other member as well, though petitioner no.1 had no intention to make further payments of her share.
11.Another argument of the petitioners is that as per report of CFSL received in a different case the signature, on the register produced by complainant, did not pertain to petitioner no.1. Ld. counsel for respondent/complainant submitted that the report of CFSL cannot be conclusive evidence. Moreover, this evidence is yet to be tendered in evidence in this case by the petitioners and a final appreciation of such evidence can be done only after cross-examination of concerned expert. I am in agreement with such contention of ld. counsel for complainant. This is not the stage to give a final finding regarding signature of petitioner no.1 on the register, merely on the basis of a report given by CFSL in a different case. Such report of CFSL has to undergo scrutiny of cross-examination and this is not the only evidence, which is to be looked into by court. Hence, I do not find any merit in such objection/argument of the petitioners.
12.The another argument of the petitioners is that complainant was carrying on kitty committee in contravention of [SECTION] of the [ACT]. Therefore, complainant cannot take benefit of her own wrong. I do not find this argument to be impressive because even for the sake of argument, if it is assumed that committee being run by complainant was in violation of aforesaid Act, petitioner no.1 did not get a license Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] to cheat the complainant and to take benefits. Therefore, the criminal act of petitioner no.1 cannot be shadowed on the grounds of aforesaid argument.
13.It was argued on behalf of petitioners that petitioner no.1 did not receive any money nor did extend any threat to the complainant and false allegations were made against her. However, I find such argument to be plea of defence, which can be decided only after concluding the trial. At this stage, no such finding can be given by the court to the extent that petitioner no.1 was falsely implicated in this case.
14.The last argument was in respect of petitioner no.2, against whom a charge for offence under [SECTION]/[SECTION] [ACT] has been framed. It was argued by ld. counsel for petitioners that complainant did not make such allegations in her complaint or in her pre summoning evidence against petitioner no.2. Such allegations were made for the first time during pre charge evidence, which is apparently a case of exaggeration and false implication. Ld. counsel for complainant relied upon testimony of complainant dated 07.10.2003 to submit that such allegations have been made against petitioner no.2 as well.
15.On perusal of complaint and evidence on the record, I do find that such allegations against petitioner no.2 were made for the first time in testimony dated 07.10.2003 i.e. during the stage of pre charge evidence. Complainant had not made any such allegation in complaint against petitioner no.2 and her allegation was limited against petitioner no.1 about the threats given to falsely implicate complainant in criminal case. Even in her pre summoning evidence, complainant had made such allegations only against petitioner no.1 stating that on demand being made petitioner no.1 threatened that she would commit suicide and implicate the complainant. In her Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] testimony dated 07.10.2003 complainant deposed that when demands were made, then petitioner no.2 also used to be there and he used to threaten and if demand was made then they would falsely implicate complainant in case. Petitioner no.1 used to threaten to commit suicide and implicate them in case.
16.Thus, the alleged threat was regarding committing suicide by petitioner no.1, in order to falsely implicate the complainant so as to deter the complainant from making demand of remaining payments. If there was no such pleading in the complaint against petitioner no.2, then I find that the subsequent general statement being made at the stage of pre charge evidence cannot be given such attention so as to find a prima facie case against petitioner no.2 for offence under [SECTION] [ACT]. Therefore, on this point I am in agreement with contention of petitioner no.2 and hence, I do find that charge against petitioner no.2 for aforesaid offence cannot be sustained.
17.In view of my foregoing discussions, findings and observations, present revision petition is allowed partly so as to discharge petitioner no.2 in this case. There shall not be any change in the remaining part of charges framed against petitioner no.1. Ordered accordingly.
18.Parties shall appear before the trial court on date already fixed by the trial court.
19.TCR along with copy of order be sent back to the trial court. File be consigned to record room, as per rules.
PULASTYA Location: Court PRAMACHALA No.3, Karkardooma Courts, Delhi Date: 2018.08.30 17:33:34 +0530 Announced in the open court ([ENTITY]) today on 30.08.2018 Special Judge (PC Act) CBI, East (This order contains 11 pages) Karkardooma Courts, Delhi Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi