VIRENDER KUMAR Vs. STATE

JUDGEMENT

(1.) THIS is a writ petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (,,Cr.P.C.) filed by the petitioner who is the father of late Sh. Virender Kumar-complainant challenging the orders dated 21st May, 2009 passed by learned Additional Chief Metropolitan Magistrate (,,ACMM) and the order dated 3rd September, 2009 passed by learned Additional Sessions Judge (,,ASJ), Delhi with the prayer to summon the respondent in the complaint case filed by the deceased complainant.

(2.) IN brief, the facts are that in the year 1994 Sh. Virender came in contact with M/s Raj & Company dealing in shares and stocks. Respondent No.2 Sh. Rajinder Singh Beniwal introduced himself as the proprietor of the firm. According to the complainant, he induced him to invest money in the share business. As such, he purchased shares from respondent No.2. Thereafter, respondent No.2 induced him to deal in speculative transaction by depositing 20% to 25% of margin money of shares intended to be sold or purchased by him. Various transactions took place. In all, a sum of Rs.1,16,000/- was paid in cash by the complainant to the respondent for shares to be delivered to him. However, no receipt was issued by him. On repeated persuasions, on 21st January, 1995, the respondent issued receipt of Rs.1,16,000/- to the petitioner duly signed by him and also returned the cheques of Rs.75,000/- and asked him to sign the receipt also. Thereafter, the respondent on the pretext of seeing the receipt took it back from the petitioner and added some lines despite strong objection raised by the complainant. The said action was a fraud committed by the respondent with dishonest intention to cause damage/deface or cancel the document which was a valuable security for receiving the principal amount as paid or receiving the shares purchased against the said amount. The respondent, with dishonest intention to defraud the petitioner, had added certain lines that he is keeping Rs.1,16,000/- as margin money of shares worth Rs.2,36,000/- to nullify the liability and to cheat the petitioner of his hard earned money. Despite repeated attempts to contact the respondent for getting back his hard earned money or the shares purchased from it, the respondent refused to give the same, as such, various complaints were filed but no action was taken. As such, criminal complaint No. 170/2008 under Sections 200 Cr.P.C. read with Sections 467/477/420/406/506 of Indian Penal Code,1860 (,,IPC) was filed before learned Chief Metropolitan Magistrate (,,CMM), Tis Hazari Vide order dated 21st May, 2009 learned ACMM Courts, Delhi. dismissed the complaint holding that "it was a commercial transaction which cannot come within the purview of cheating. As far as receipt is concerned, I fail to understand as to how there was any forgery. It is unbelievable that complainant who had soured relations with the respondent would give further money and would also give back the receipt to the respondent". This finding was challenged by filing a revision, however, the revision was dismissed by learned Additional District and Sessions Judge vide order dated 3rd September, 2009 on the ground that "the receipt was altered in the presence of the petitioner himself and was accepted by him, as such no offence is made out". It was submitted that both the orders are erroneous and mechanical, as such, it was submitted that the orders be set aside and the respondent be ordered to be summoned.

(3.) I have heard Ms. Deepali Gupta, learned counsel for the petitioner, Mr. Nikhil A. Menon, learned counsel for respondent No.1- State and Mr. J.P. Dhanda along with Mr. N.A. Usmani, learned counsel for respondent No.2 and have perused the record.