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HIGH COURT OF DELHI
M/S. HERO FINCORP LIMITED – Appellant
Versus
THE STATE (NCT OF DELHI) & ANR. – Respondent
CRL.M.C.-736/2021
THE POLICE IS DUTY BOUND TO REGISTER AN FIR ON RECEIVING INFORMATION ON THE COMMISSION OF A COGNIZABLE OFFENCE.
Headnote:
CRIMINAL BREACH OF TRUST - SECTION 405 IPC - REGISTRATION OF FIR - [CRIMINAL BREACH OF TRUST] - [REGISTRATION OF FIR] - [SECTION 405 IPC] - THE COURT HELD THAT THE FACTS ON THE FACE OF IT PRIMA FACIE DISCLOSES A COGNIZABLE OFFENCE. THE LEARNED CMM AND THE LEARNED PDJ HAVE ERRED IN NOT DIRECTING THE REGISTRATION OF THE FIR AS THE OFFENCE ALLEGED OF DIRECTLY COMES WITHIN THE FOUR CORNERS OF THE CONSTITUTION BENCH JUDGMENT OF LALITA KUMARI VS. STATE OF U.P. (SUPRA). THE COMPLAINT OF THE PETITIONER DISCLOSES A COGNIZABLE OFFENCE I.E. CRIMINAL BREACH OF TRUST IN RESPECT OF THE TERMS OF CONTRACT THAT WAS AGREED UPON, WHICH REQUIRES TO BE INVESTIGATED BY THE POLICE DESPITE TAKING INTO ACCOUNT THE FACT THAT BORROWED AMOUNTS STAND REPAID TO THE PETITIONER OR THE FACT THAT PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL ARE ONGOING. THEREFORE, THIS COURT IS OF THE OPINION THAT A COGNIZABLE OFFENCE HAS BEEN ALLEGED AGAINST RESPONDENT NO.2 AND THE SAME SHOULD BE INVESTIGATED AFTER THE REGISTRATION OF AN FIR.
Fact of the Case:
THE PETITIONER, A NON-BANKING FINANCE COMPANY, SANCTIONED THREE LOANS TO THE RESPONDENT NO. 2 FOR THE PURCHASE OF MACHINERY. THE RESPONDENT NO. 2 DID NOT PURCHASE THE MACHINERY AND MISAPPROPRIATED THE LOAN AMOUNT. THE PETITIONER FILED A COMPLAINT WITH THE POLICE, BUT THE POLICE REFUSED TO REGISTER AN FIR. THE PETITIONER THEN FILED AN APPLICATION UNDER SECTION 156(3) CR.P.C BEFORE THE MAGISTRATE, BUT THE MAGISTRATE DISMISSED THE APPLICATION. THE PETITIONER THEN FILED A REVISION PETITION BEFORE THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BUT THE REVISION PETITION WAS ALSO DISMISSED.
Finding of the Court:
THE COURT HELD THAT THE FACTS ON THE FACE OF IT PRIMA FACIE DISCLOSES A COGNIZABLE OFFENCE. THE LEARNED CMM AND THE LEARNED PDJ HAVE ERRED IN NOT DIRECTING THE REGISTRATION OF THE FIR AS THE OFFENCE ALLEGED OF DIRECTLY COMES WITHIN THE FOUR CORNERS OF THE CONSTITUTION BENCH JUDGMENT OF LALITA KUMARI VS. STATE OF U.P. (SUPRA). THE COMPLAINT OF THE PETITIONER DISCLOSES A COGNIZABLE OFFENCE I.E. CRIMINAL BREACH OF TRUST IN RESPECT OF THE TERMS OF CONTRACT THAT WAS AGREED UPON, WHICH REQUIRES TO BE INVESTIGATED BY THE POLICE DESPITE TAKING INTO ACCOUNT THE FACT THAT BORROWED AMOUNTS STAND REPAID TO THE PETITIONER OR THE FACT THAT PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL ARE ONGOING. THEREFORE, THIS COURT IS OF THE OPINION THAT A COGNIZABLE OFFENCE HAS BEEN ALLEGED AGAINST RESPONDENT NO.2 AND THE SAME SHOULD BE INVESTIGATED AFTER THE REGISTRATION OF AN FIR.
Issues: WHETHER THE FACTS OF THE CASE DISCLOSE A COGNIZABLE OFFENCE?
Ratio Decidendi: THE COURT RELIED ON THE FOLLOWING PRINCIPLES:1. THE POLICE IS DUTY BOUND TO REGISTER AN FIR ON RECEIVING INFORMATION ON THE COMMISSION OF A COGNIZABLE OFFENCE.2. THE POLICE HAS NO OTHER OPTION BUT TO REGISTER AN FIR WHEN SUCH INFORMATION PERTAINING TO A COGNIZABLE OFFENCE AND HAS TO MANDATORILY INVESTIGATE INTO THE ALLEGATIONS OF THE FIR.3. THE COMPLAINT OF THE PETITIONER DISCLOSES A COGNIZABLE OFFENCE I.E. CRIMINAL BREACH OF TRUST IN RESPECT OF THE TERMS OF CONTRACT THAT WAS AGREED UPON, WHICH REQUIRES TO BE INVESTIGATED BY THE POLICE DESPITE TAKING INTO ACCOUNT THE FACT THAT BORROWED AMOUNTS STAND REPAID TO THE PETITIONER OR THE FACT THAT PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL ARE ONGOING.
Final Decision: THE COURT DIRECTED THE ECONOMIC OFFENCES WING TO REGISTER AN FIR AGAINST THE RESPONDENT NO.2 UNDER THE APPROPRIATE SECTIONS.
CRL.M.C. 736/2021
Page 1 of 15
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 04th JANUARY, 2022
IN THE MATTER OF:
+
CRL.M.C. 736/2021
M/S. HERO FINCORP LIMITED
..... Petitioner
Through:
Mr. Sanjeev Singh, Ms. Kajal Bhatia,
Mr. Deepank Anand, Mr. Dashmeet
Singh, Advocates.
versus
THE STATE (NCT OF DELHI) & ANR.
..... Respondents
Through:
Ms. Meenakshi Chauhan, APP for the
State.
Mr. Ashok Kumar Goyal, Advocate
for the respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1.
The present petition is filed under Section 482 CrPC praying for
setting aside the order dated 22.01.2021 passed by the Learned Principal
District & Sessions Judge, Patiala House in Criminal Revision No. 369/2020
whereby, the Ld. PDJ dismissed the Revision and upheld order dated
10.11.2020 passed by the Chief Metropolitan Magistrate which had rejected
the application for registration of an FIR under Section 156(3) CrPC.
2.
The Petitioner herein is a Non-Banking Finance Company(NBFC),
incorporated under the Companies Act,1956 and registered with the Reserve
Bank of India as an institution providing financial assistance. The
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000042
CRL.M.C. 736/2021
Page 2 of 15
Respondent No. 2 is Sunil Sharma, Director of M/s Benlon India Ltd. The
facts leading upto the present case are given as hereunder-
i.
Mr. Balbir Sharma, Mrs. Sudesh Sharma and Mr. Balbir
Sharma in their capacity as Directors of M/s Benlon India Ltd.
approached the Petitioner in October 2014 for grant of a loan of
Rs. 12.25 Crores stating that their company required to
purchase 18 winding machines with standard accessories. Three
agreements,
namely
the
Master
Facilities
Agreement,
Supplementary Agreement and Personal Guarantees were
executed between both the parties. The loan was sanctioned by
the
Petitioner
vide
sanction
letter
reference
No.
HFCL/MTL/1007/2014 dated 24.10.2014.
ii.
Mr. Balbir Sharma, Mrs. Sudesh Sharma and Mr. Sunil Sharma
in their capacity as Directors of M/s Benlon India Ltd. again
approached the Petitioner in December 2014 for the grant of a
loan of Rs. 10 Crores stating that their company required to
purchase 12 sets of Spinning (Winding)Machine, Model- TH-
9C. Three agreements, namely the Master Facilities Agreement,
Supplementary Agreement and Personal Guarantees were
executed between both the parties. The loan was sanctioned by
the
Petitioner
vide
sanction
letter
reference
No.
HFCL/MME/01-07/20145 dated 06.02.2015.
iii.
Mr. Balbir Sharma, Mrs. Sudesh Sharma and Mr. Sunil Sharma
in their capacity as Directors of M/s Benlon India Ltd. again
approached the Petitioner in October 2014 for the grant of a
loan of Rs.15 Crores stating that their company required to
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000042
CRL.M.C. 736/2021
Page 3 of 15
purchase further equipment i.e. 6 Chennile Machines- PAFA
SPIRAFIL 2FR (2) 1 PET FDY Production Spinning Line with
JWA 15/1500.Three agreements, namely the Master Facilities
Agreement,
Supplementary
Agreement
and
Personal
Guarantees were executed between both the parties. The loan
was sanctioned by the Petitioner vide sanction letter reference
No. HFCL/MME/02-04/2016 dated 13.2.2016.
iv.
The Respondent No. 2, Mr. Balbir Sharma and Mrs. Sudesh
Sharma agreed to create a first pari passu charge on fixed assets
in favour of the Petitioner on the land and building at Plot No.
122, 123, 124, 506, 508, 509, 510 HSIDC Industrial Area,
Kundli, Sonipat, Haryana. Further, it was agreed that Mr. Balbir
Sharma will create an equitable charge on a property situated at
Punjabi Bagh in favour of the Petitioner and a Memorandum of
Deposit of Title Deed dated 13.2.2016 was executed in the
Petitioner’s favour.
v.
The Respondents made payments of their loan installments to
the Petitioner until May 2018 when th
