IN THE HIGH COURT OF DELHI: NEW DELHI
+ CRL.REV.PET. NO. 117/2011
Judgment reserved on 16th March, 2011
% Judgment delivered on 20th May, 2011
SHRI VARUN SHARMA (CARLAY) ....PETITIONER
Through: Mr. Tanveer Ahmed Mir, Adv.
Versus
THE STATE (NCT, DELHI) & ORS. ....RESPONDENTS
Through: Mr. Arvind Gupta, APP for the
State.
Mr. Adbhut Pathak, Adv. for
respondent No. 2.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
A.K. PATHAK, J.
1. Complainant (respondent No. 2) is husband of respondent
No. 3. Petitioner is brother-in-law (wife’s husband) of respondent
No. 2. In the month of April, 1997, respondent Nos. 2 and 3 met
each other in a train while travelling from Delhi to Hyderabad.
They became friends. They continued to meet thereafter. With
the passage of time love blossomed between them. Ultimately,
they got married on 28th November, 1997 at Arya Samaj Mandir,
Rathkhana, Bikaner according to Hindu rites and ceremonies. It
Crl. Rev. P. No. 117/2011 Page 1 of 14
appears that after the marriage their relations became estranged.
Respondent No. 2, inter alia, alleged that respondent No. 3 had
concealed her real age, her marital status and the fact that she
was having two children out of her previous wedlock with one
Wasif Khalil. She had also concealed that at the time of marriage
with Wasif Khalil she had embraced Islam. Respondent No. 3
filed a petition for dissolution of marriage by a decree of nullity
under Sections 5 and 12 of the Hindu Marriage Act, 1955 in the
month of November, 2000.
2. On 16th September, 2000, that is, few months prior to filing
of the petition for dissolution of marriage, respondent No. 2 had
filed a complaint under Section 200 Cr.P.C. before the Additional
Chief Metropolitan Magistrate, New Delhi (ACMM), praying
therein that petitioner and respondent No.3 be summoned tried
and punished for the offences under Sections
406/415/419/420/463/468/469/471 IPC. Pursuant to the
directions of the court under Section 156 (3) Cr.P.C., FIR No.
690/2000 under Sections 406/419/420 IPC has been registered
at Police Station Kalkaji. After the investigation, charge-sheet
was filed in the court of Metropolitan Magistrate, Delhi, who took
cognizance of the offences and summoned the petitioner and
respondent No. 3 vide order dated 23rd August, 2002. Petitioner
filed an application seeking his discharge. This application was
allowed by the Metropolitan Magistrate vide order dated 11th
April, 2005. Petitioner was discharged. Respondent No. 1 (State)
Crl. Rev. P. No. 117/2011 Page 2 of 14
preferred a Criminal Revision Petition No. 68/2006 before the
Additional Sessions Judge, New Delhi against the discharge of
petitioner. By the order impugned in this petition, Revision
Petition has been allowed. Additional Sessions Judge has held
that a, prima facie, case was made against the petitioner for
having committed offence under Sections 406 read with Section
120-B IPC and he be charged accordingly by the Trial Court.
3. That is how petitioner is before this court by way of present
petition under Section 397 Cr.P.C. Initially petitioner had filed
the petition under Section 482 Cr.P.C. praying therein that FIR
No. 690/2000 under Sections 406/419/420 IPC registered at
Police Station Kalkaji and the consequent proceedings emanating
therefrom be quashed; order dated 5th March, 2007 passed by
Additional Sessions Judge be also set aside. However, since
counsel for the respondent No. 2 had challenged the
maintainability of petition under Section 482 Cr.P.C., at the
request of petitioner’s counsel, present petition has been treated
as a Criminal Revision Petition under Section 397 read with
Section 401 Cr.P.C. vide order dated 11th March, 2011, inasmuch
as, petitioner has confined his prayer only with regard to setting
aside of the order of Additional Sessions Judge.
4. Learned counsel for respondent No. 2 has contended that
the petitioner had earlier filed a petition under Section 482
Cr.P.C. for quashing of the FIR. However, during the course of
arguments of the said petition, he did not press the said relief
Crl. Rev. P. No. 117/2011 Page 3 of 14
and confined his prayer only to the grant of bail. This fact has
been concealed in this petition, thus, present petition is liable to
be dismissed. Reliance has been placed on S.P. Chengalvaraya
Naidu vs. Jagannath and Ors. (1994) 1 SCC 1 and Rajinder
Prasad vs. Bashir & Ors. JT 2001 (7) SC 652. I do not find
much force in this contention. It appears that earlier petition
had been filed at the initial stages. Petitioner did not press
quashing of the FIR at that stage and confined his prayer only to
the grant of bail. By way of present petition, petitioner is not
seeking quashing of the FIR. He seeks to challenge the order of
the Additional Sessions Judge, whereby Trial Court has been
directed to frame charge under Section 406 read with Section
120-B IPC against him. Thus, remedy to challenge the order on
charge is available to the petitioner under Section 397 Cr.P.C. It
is not the case that petitioner had obtained any relief by
concealing the material facts which may make any order or
decree a nullity. In S.P. Chengalvaraya Naidu’s case (supra)
respondent had obtained a decree against the appellant by
concealing the “release deed”. In these facts, it was held that if a
party withholds a vital document in order to gain advantage on
the other side then he would be guilty of playing fraud on the
court as well as on the other party and such decree is liable to be
set aside. In Rajinder Prasad’s case (supra) earlier Revision
Petition filed under Section 397 Cr.P.C. had been dismissed as
not pressed. Petitioner preferred a petition under Section 482
Cr.P.C. seeking same relief as sought in the Revision Petition. In
Crl. Rev. P. No. 117/2011 Page 4 of 14
these facts, it was held that earlier Revision Petition filed under
Section 397 Cr.P.C. having been dismissed as not pressed,
accused cannot be allowed to invoke the inherent powers of the
High Court for the grant of same relief. In the present case, by
the earlier petition under Section 482 Cr.P.C., petitioner had
prayed for quashing of the FIR at the initial stage; whereas
present Revision Petition has been filed challenging the order of
the Additional Sessions Judge whereby it has been held that a,
prima facie, case was made out against the petitioner for framing
of charge under Section 406 read with Section 120-B IPC. Non-
mentioning of factum of dismissal of the earlier petition under
Section 482 Cr.P.C. in these circumstances, by itself, would not
be sufficient and adequate to throw away this Revision Petition.
5. Learned counsel for the respondent No. 2 has next
contended that application of the petitioner seeking his discharge
was disposed of by the Metropolitan Magistrate, vide order dated
11th April, 2005. In the Revision filed by the State this order has
been set aside and the learned Additional Sessions Judge has
directed the Trial Court to frame charge against the petitioner
under Section 406 read with Section 120-B IPC. Charge has
already been framed by the Trial Court. Thus, present petition
assailing the order of Additional Sessions Judge has become
infructuous. Reliance has been placed on Uma Shankar Singh
vs. State of Bihar 2010 (9) SCC 479. I do not find any force in
this contention of learned counsel either. It is not the case that
Crl. Rev. P. No. 117/2011 Page 5 of 14
after setting aside the order of the Trial Court, Additional
Sessions Judge has remanded the case back to the Trial Court
for considering the matter afresh on charge. Additional Sessions
Judge has returned a categorical finding that a, prima facie, case
was made out against the petitioner under Section 406 read with
Section 120-B IPC and the charge be framed against him.
Metropolitan Magistrate has framed charge pursuant to this
order. Petitioner cannot be made remediless against the order on
charge. Present petition challenging the framing of charge, thus,
is maintainable. Uma Shankar Singh’s case (supra) is in the
context of different facts and is not applicable to the facts of the
present case.
6. By placing reliance on Sajjan Kumar vs. Central Bureau of
Investigation, 2010 (9) SCC 368, State of Bihar vs. Ramesh
Singh, 1977 (4) SCC 39, State of Andhra Pradesh vs.
Aravapally Venkanna & Ors. 2009(2) Crimes (SC) 455 and
Mrs. Sapna Ahuja vs. State & Ors. 1999 (2) JCC [DELHI] 534,
learned counsel for the respondent no.2 has contended that at
the stage of framing of charge court has only to see as to whether
any, prima facie, case is made out against the accused on the
basis of material collected during the investigation. Court has
not to make any roving enquiry or to look into the records for the
purposes of acquittal/conviction of the accused. Metropolitan
Magistrate had made a roving enquiry and made an elaborate
analysis of the facts and material placed on record as if the trial
Crl. Rev. P. No. 117/2011 Page 6 of 14
had been concluded and prosecution had failed to prove its case
beyond the shadow of reasonable doubt. Additional Sessions
Judge has rightly arrived at a finding on the basis of material
placed on record of Trial Court that a, prima facie, case was
disclosed against the petitioner for having committed the offences
under Section 406 read with Section 120-B IPC.
7. Indubitably, at the stage of framing of charge court has
only to see as to whether any, prima facie, case is disclosed
against the accused, for framing the charge against him for the
offence for which he has been sent to face trial, on the basis of
material collected during the investigation. At the stage of
framing of charge court has not to see whether there is sufficient
ground for conviction of the accused or whether the trial is sure
to end in his conviction. On the material collected during the
investigation, if there is ground for presuming that accused has
committed the offence, the court can justifiably say that a, prima
facie, case against him exists. At that stage, probative value of
the materials on record cannot be gone into. At the same time, a
court, at the time of framing of charge, is not to act merely as a
post-office or mouth-piece of the prosecution, but has powers to
sift and weigh the evidence, but for a limited purpose only. This
exercise has to be undertaken by him only with a view to find out
as to whether a, prima facie, case is made out or not. The
existence of a, prima facie, case may be found even on the basis
of strong suspicion against the accused. At the stage of framing
Crl. Rev. P. No. 117/2011 Page 7 of 14
of charge, court has only to assess, evaluate and weigh the
prosecution evidence purely to see whether a, prima facie, case
exists and frame charge after forming an opinion that the
commission of offence was possible on the part of the accused.
8. In the backdrop of the above settled legal position it has to
be now seen as to whether a, prima face, is disclosed against the
accused for having committed the offence under Section 406 read
with Section 120-B IPC.
9. At this stage, relevant it would be to refer to para Nos. 8,
11, 13 and 16 of the complaint, concerning the petitioner, which
reads as under:
“8. That during one of his visits to Delhi in April,
’99, the complainant entrusted his Sony
Handycam recorder (Value approx. `30,000/-) to
the accused No. 1 and her younger brother, Varun
Sharma (accused No. 2), for two days as they were
having a party at Faridabad, the complainant gave
them the same with the understanding that the it
will be returned to him in two days. The same has
not been returned despite the complainant’s
repeated requests, and has been dishonestly
misappropriated and converted to their own use
by the accused No. 1 and her brother, Varun
(accused No. 2).
11. That in the first week of January 2000,
Varun Sharma (accused No. 2, the younger
brother of the accused No. 1) who claimed to be a
computer engineer called up the complainant
when he was in Delhi and told the complainant of
a supposedly good bargain for a computer which
the complainant had planned to buy. Accused No.
2 said that the complainant should not let
personal state of relations stop the complainant
from taking advantage of the bargain he was
telling of. The complainant asked him to come to
Narula’s Connaught Place, where Bhavna (the
accused No. 1) also came. The complainant gaveCrl. Rev. P. No. 117/2011 Page 8 of 14
the accused No. 2 and Bhavna (the accused No. 1)
` 7,000/- in cash and two blank cheques which
were to be used for the payment after the
complainant got the loan sanctioned, and on
delivery of the computer. The price of the Pentium
– III computer was to be `67,000/- which he
claimed to be at least 20% cheaper than the then
prevalling prices in the market.
13. That in April, 2000, the complainant’s
account was debited for an amount of `41,000/-
and subsequently for `13,000/- by means of the
said two blank cheques. The complainant
pursued Varun and Bhavna (accused No. 2 & 1)
for the computer and on inquiry the complainant
has now learned that they have misappropriated
these two cheques and the `7,000/- in cash, by
issuing the two cheques in settlement of her (the
accused No. 1’s) dues payable to the landlord at
Vasant Kunj where the accused No. 1 was a
tenant and `13,000/- for the settlement of her
transportation bills. The two have also
dishonestly misappropriated the `7,000/- paid in
cash.
16. That on 21st July, 2000, the accused No. 1
phoned the complainant at Chandigarh and asked
the complainant to come to Faridabad to amicably
settle for a divorce and other pending issues, and
in connection with a problem she was facing at
Faridabad. The complainant reached Faridabad
and called upon the accused No. 1 (Bhavna) and
her brother (accused No. 2) to return his moneys
and goods. The complainant also raised the issue
of divorce. Before discussing divorce, Bhavna
asked the complainant to visit one Mr. S.D.
Aggarwal alongwith her, who was creating
problems for her. On 22.7.2000, a fray ensued
and the complainant was injured. The
complainant later learnt that Mr. S.D. Aggarwal
did not know complainant’s story and the correct
facts. In fact he and the colony people were fed-
up of strangers visiting Bhavna at odd hours.
They claimed that by her behavior the accused No.
1 was vitiating the atmosphere of the colony and
creating a bad influence on the young of the
colony.”
Crl. Rev. P. No. 117/2011 Page 9 of 14
10. During the investigation, respondent No. 2 was asked by
the Investigating Officer to produce the receipt of purchase of
Sony Handycam recorder. He promised that he would hand over
the same to the Investigating Officer. However, no such receipt
was ever produced during the investigation nor has been placed
on record by the prosecution. In the month of April, 1999,
respondent No. 2 had not married respondent No. 3. Their
courtship was going on. It was only on 28th November, 1999
respondent Nos. 2 and 3 had married in Arya Samaj Mandir,
Rathkhana, Bikaner. It has nowhere been mentioned that the
marriage was solemnized between the parties with the consent of
their respective parents. It appears to be a love marriage. After
the alleged incident of handing over of Sony Handycam Recorder
respondent No.2 had been married respondent No.3 in a temple.
These allegations of misappropriation of Handycam have only
surfaced after the relationship between respondent Nos. 2 and 3
became sour, inasmuch as, the allegations of handing over of
Sony Handycam recorder to respondent No. 3 and petitioner lack
material particulars as regards place and time. Respondent No.
2 has not even produced any documentary evidence before the
Investigating Officer to show that he, in fact, possessed any such
Handycam recorder in the month of April, 1999. As regards the
allegation of respondent No. 2 handing over of the two blank
cheques to the petitioner along with `7,000/- in cash is
concerned, the same do not inspire much confidence.
Admittedly, the alleged two blank cheques had not been used by
Crl. Rev. P. No. 117/2011 Page 10 of 14
the petitioner for his own personal benefits. He had not
manipulated these cheques to withdraw the amount of `41,000/-
and `13,000/- respectively for his personal use and benefits. In
fact these cheques had been utilized by the respondent No.3,
who was legally wedded wife of respondent No.2, to clear arrears
of rent and pay taxi charges. The cheque for `41,000/- had been
given to the landlord of respondent No. 3. It emerges that the
respondent No. 3 had been living as a tenant in a flat in Vasant
Kunj owned by one Shri. Anil Kaushik even when courtship
between the private respondents was going on. There were
arrears of rent payable by respondent No. 3 to said Shri Anil
Kaushik. In fact, respondent No. 3 had issued a cheque for
`6,500/- against part payment of arrears to Shri Anil Kaushik in
the month of December 1998, which had been returned
dishonored and a complaint case under Section 138 of the
Negotiable Instruments Act, 1881 was pending between
respondent No. 3 and Shri Anil Kaushik in Chandigarh. In his
statement recorded under Section 161 Cr.P.C. by the
Investigating Officer, Shri Anil Kaushik has categorically stated
that respondent No. 2, accompanied with respondent No. 3, had
met him in Chandigarh and had promised to clear the entire
arrears. Anil Kaushik has also handed over photocopy of letter
acknowledging the receipt of the keys of Vasant Kunj flat from
respondent No.2 to the IO. It has also come on record that
respondent Nos. 2 and 3 had taken House No. 667, Sector 17,
Faridabad on rent sometime in the month of January, 2000 after
Crl. Rev. P. No. 117/2011 Page 11 of 14
vacating the Vasant Kunj flat. Shri K.N. Bhatia, in his statement
recorded under Section 161 Cr.P.C. has stated that House No.
667, Sector 17, Faridabad was owned by his son Sanjeev Bhatia
who was working as a Captain in Navy. In the month of
December, 1999 the said house was given to respondent No. 2 on
monthly rent of `2500/- and a lease agreement to this effect was
also executed. Since Sanjeev used to remain out of the city in
connection with his duties, thus, he had been managing the
affairs of his son. Respondent No. 2 had started living in the said
house with respondent No. 3 with effect from the first week of
January, 2000. As regards the cheque for ` 13,000/- is
concerned, the same was given to A.Z. Khan towards the taxi
charges. A.Z. Khan has stated in his statement under Section
161 Cr.P.C. that he was the owner of Evershine International
Taxi Agency and respondent No. 3 had given him a cheque for
`13,000/-. It is an admitted fact that private respondents had a
quarrel with their neighbour S.D. Aggarwal at Faridabad on 22nd
July, 2000 and had to cool their heels in jail. Both the cheques
had been encashed in the month of April, 2000 much prior to
this incident. It, thus, appears that the cheques had been used
by wife of the respondent No.2 while they were living together. It
is only after matrimonial disputes arose between them complaint
has been filed wherein petitioner has also been impleaded as an
accused in order to put pressure on the wife to come to terms
with him. It may be noted that divorce petition has been
dismissed by before the Punjab and Haryana High Court, in the
Crl. Rev. P. No. 117/2011 Page 12 of 14
appeal. Status of private respondents is still that of husband and
wife.
11. A growing tendency is noticed in matrimonial disputes
between husband and wife to implicate family members of the
other spouse in criminal proceedings so as to put pressure on
the spouse to come to terms. The courts, therefore, have to be
extremely careful and cautious in dealing with such complaints
and must take pragmatic approach while dealing with the cases
which arise out of the matrimonial acrimony between the
husband and wife. This fact has also to be kept in mind in the
facts and circumstances of this case.
12. To attract Section 120-B IPC it is to be shown that two or
more persons agree to do an illegal act or an act which is not
illegal by illegal means. In this case, neither the FIR was
registered under Section 120-B IPC nor any investigation in this
direction was carried out nor it was alleged in the charge-sheet
that petitioner and respondent no. 3 had entered into a criminal
conspiracy to dishonestly misappropriate or convert to their own
use the Sony Handycam and the alleged cheques. Still
Additional Sessions Judge, without assigning any reasons, has
ordered for framing of charge against the petitioner under
Section 406 IPC by taking aid of Section 120-B IPC.
13. For the foregoing reasons, in my view, Additional Sessions
Judge was not right in holding that a, prima facie, case is made
out against the petitioner under Section 406 read with Section
Crl. Rev. P. No. 117/2011 Page 13 of 14
120-B IPC. The impugned order, thus, suffers from manifest
illegality and perversity requiring interference of this court in
exercise of its revisional jurisdiction to prevent miscarriage of
justice.
14. In view of the above discussions, present petition is allowed
and impugned order directing framing of charge against the
petitioner for offences under Sections 406 read with 120-B IPC is
set aside. Consequently, charge framed against the petitioner by
the Metropolitan Magistrate on 22nd January, 2011 under
Section 406 read with Section 120-B IPC is also quashed.
A.K. PATHAK, J.
MAY 20, 2011
rb
Crl. Rev. P. No. 117/2011 Page 14 of 14