A court cannot act as an agent or mouthpiece of police and must independently apply its mind, a Delhi court has said as it set aside an order taking cognisance of charges of criminal conspiracy and cheating against a realtor.
Additional sessions judge Vishal Singh was hearing a revision plea of Krrish Realtech Pvt Ltd against the May 6 order of a magistrate taking cognisance of the Delhi police's chargesheet against it under Sections 420 (cheating), 120 B (criminal conspiracy) and 409 (criminal breach of trust by a public servant, banker, merchant, or agent) of IPC.
The court cannot act as an agent or mouthpiece of the police, and it is under solemn obligation to independently apply its mind to the chargesheet, without borrowing the opinion of the IO.
The cognisance of an offence can and should be declined if, on perusal of material collected during investigation, the offence does not appear to have been committed by the accused, the judge said.
The court, however, directed the magistrate court to proceed against the accused realtor and its functionaries for the charge of criminal breach of trust and conspiracy.
The June 4 order observed the chargesheet was voluminous, being a "jumble of allegations" and counter-claims from both sides.
"It is apparent from the chargesheet that FIR was got registered by the complainants primarily because of delay in the development of residential colony and non-execution of sale deed of booked plots in favour of buyers by the accused despite lapse of considerable time after stipulated three years.
The delay in the case, the court said, was due to circumstances beyond the control of the accused and the the buyers could scarcely allege that they were cheated.
To constitute an offence of cheating, the accused must have intention to deceive right from the beginning when agreement was executed; a mere failure to keep the promise subsequently or to strictly adhere to terms of contract would not convert dispute between the parties into an offence of cheating, the order added.
Apart from the bare allegations of buyers, "exasperated by the delay" in receiving the possession of their plots, the court found "nothing in the final report" to justify invoking of cheating and conspiracy charges in the case.
The chargesheet was stated to have been simply filed based on contents of complaints filed by buyers while overlooking the explanation and counter-claim received from the accused.
The magisterial court was observed to have not "independently" applied its mind to the chargesheet and "simply borrowed" the opinion of the investigating officer.
Setting aside the cognisance on offences of cheating and conspiracy, the court said,
So far as offence under IPC Section 409 is concerned, it is applicable only in cases in which accused being in any manner entrusted with property or with any dominion over property and acted in capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent. In the present case, the accused acted in none of the capacities mentioned above."
The judge called the relationship between the realtor and the buyers as that of a seller and purchaser which involved entrustment of money with the accused in a limited capacity in the present case.
The chargesheet alleged the accused misappropriated the money received from buyers or complainants, and meant for the booking plots, to other accounts for their personal benefit in contravention of contractual obligations.
"The accused have not accounted for the money entrusted to them by buyers for plotting purposes, the order said.
The judge then directed the magisterial court to proceed against the accused for the offences under IPC section 406 (criminal breach of trust), read with section 120 B.
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