TEAM CODE : TC162

BEFORE THE HON’BLE COURT OF SESSIONS AT STATE NCT OF

DELHI

Criminal Appeal No. : ……/2021

IN THE MATTER OF

ARUN KUMAR …APPELLANT

VS.

STATE NCT OF DELHI AND OTHERS …RESPODENT

ON SUBMISSION TO THE HON’BLE COURT OF SESSIONS AT STATE

NCT OF DELHI

UNDER SECTION 397 (1) OF THE CRIMINAL PROCEDURE CODE

WRITTEN SUBMISSIONS OF THE BEHALF OF THE APPELLANT

COUNSELS APPEARING ON THE BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………………………………………………………………3

STATEMENT OF JURISDICTION……………………………………………................................7

STATEMENT OF FACTS………………………………………………………...............................8

STATEMENT OF ISSUES………………………………………………………………................10

SUMMARY OF ARGUMENTS……………………………………………………………….......11

ARGUMENTS ADVANCED……………………………………………………...........................13

1. WHETHER THE REVISION PETITION FILED BY ARUN KUMAR IS MAINTAINABLE OR

NOT…………………………………………………………………………………………….13

1.1 That the Revision petition filed is maintainable………………………………..……………….13

1.2 That the appellant has the locus standi to file the present petition………………………….…..13

1.3 That the order passed was intermediate and not interlocutory……………………….…………14

1.4 That the Article 21 of the appellant may stand violated at the order of the conviction
rendered………………………………………………………………………………….…….........14

2. WHETHER THE ESSENTIAL INGREDIENTS OF MAINTAINABILITY OF A COMPLAINT

UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT , 1881 HAVE BEEN MET
IN THE ABOVE BACKGROUND OR NOT ?..............................................15

2.1 That the essential ingredients of maintainability of a complaint under section 138 of the negotiable
instruments act , 1881 have not been met in the above background…………………....15

2.1.1 That the cheque issues was a security cheque………………………………...………………15

2.1.2 That there was no date incorporated on the cheque………...………………………………...16

2.1.3 That cheque was presented to make an advanced payment……………………..…..…..........16

1
2.1.4 That the cheque returned owing to “stop payment” instructions does not attract liability under
the said act…………………………………………………………………………………………..16

3. WHETHER REGISTRATION OF FIR BECOMES MANDATORY IN THE ABOVE

BACKGROUND ?.............................................................................................................................17

3.1 That the registration of F.I.R is mandatory……………………………………………….……17

3.1.1 That the inquiry was made without registering the F.I.R…………………….……………….17

3.2 That the charges alleged by the appellant i.e sections 34 , 120B , 403 , 405 , 409 , 415 , 420 and
506 of the Indian Penal Code are of cognizable nature……………………………………………..18

3.3 That the non registration of FIR may violate the article 21 of the appellant……………..…….18

4. WHETHER THE INGREDIENTS UNDER SECTION 34 , 120B , 403 , 405 , 409 , 415 , 420
AND 506 OF THR INDIAN PENAL CODE 1860 ARE MET IN THE ABOVE BACKGROUND
OR NOT…………………………………………………………………………………….………19

4.1 That the essential elements of the alleged under sections have completely been met in the above
background……………………………………………………………………….…………………19

4.2 Common Intention……………………………………………………………………….……...19

4.3 criminal conspiracy…………….……………………………………………………………….20

4.4 dishonest misappropriation of property………………………………………………………...21

4.5 criminal breach of trust…………………………………………………………………………21

4.6 criminal breach of trust by public servant , or banker , merchant or agent…………………….22

4.7 cheating…………………………………………………………………………………………22

4.8 cheating and dishonestly inducing delivery of property………………………………………..23

4.9 criminal intimidation…………………………………………………………………………....23

PRAYER……………………………………………………………………………..…………….24

2
 Index of Authorities

Statutes

The code of criminal procedure………………………………………………………………….….12

Constitution of India……………………………………………………………………………...…13

The negotiable instruments act………………………………………………………………….…..14

The Indian Penal Code……………………………………………………………………………...18

Books , articles and treatises

C.K. Thakker ‘Takwani’ , MC Thakker , TAKWANI CRIMINAL PROCEDURE 234 , (Lexis Nexis
2015)…………………………………………………………………………………………..

R.V KELKAR’S CRIMINAL PROCEDURE 576 , (EBC WEBSTORE 2014)……………………..

PSA Pillai’s CRIMINAL LAW 145 , (Lexis Nexis 2014)…………………………………………….

Jonathan Herring , CRIMINAL LAW 179 , (Palgrave Macmilan Lawmasters 2009)………………..

Adrew ashworth & Jeremy Horder , PRINCIPLES OF CRIMINAL LAW 279 , (OXFORD
UNIVERSITY PRESS 2009)…………………………………………………………………………

K.D. Gaur TEXTBOOK ON INDIAN PENAL CODE 698 , (Universal Law Publishing
Co.)…………………………………………………………………………………………………….

RATANLAL & DHIRAJLAL , THE CODE OF CRIMINAL PROCEDURE 238 , (Lexis Nexis
2013)…………………………………………………………………………………………………...

Prof. S.N MISRA , INDIAN PENAL CODE 96 , (Central LAW PUBLICATIONS

2020)…………………………………………………………………………………………………...

3
 Reportables

Honnaiah T.H. vs State of Karnataka (2022) SC 672…………………………………………………

Kusum Ingots And Alloys Lltd vs Pennar Peterson Securities Ltd , 2000 AIR SCW 609…………..

Lalita kumari Vs. State Of UP And Ors (2012) 4 SCC 1……………………………………………...

B.R.K. AATHITHAN vs. SUN GROUP AND ANR (SC) 1022…………………..............................

Zaid Pathan And Ors Vs. The State of Madhya Pradesh……………………………………………...

Ram Naresh Vs. State of Uttar Pradesh……………………………………………………………….

S.R Sukumar vs. S. Sunaad Raghuram AIR 2015 SUPREME COURT 2757………………………...

S.P Mani And Mohan Dairy vs. Dr. Snehalatha Elangovan…………………………………………..

Uttar Pradesh State Road Transport Vs. Gajadhar Nath………………………………………………

Cases

State of Rajasthan vs Fatehkaran Mehdu (2017) 3 SCC 198……………….………………………12

Amit Kapoor v Ramesh Chander (2012) 9 SCC 460……………………….………………………13
Sheetala Prasad v Sri Kant , (2010) 2 SCC 190…………………………….………………………13
Honnaiah T.H. vs State of Karnataka (2022) SC 672…………………...………………………….13
Amar Nath And Others vs State of Haryana & Others…………..……...………………………….13
Sh. Salekh Chand vs. Sh. Deepak Sharma (2015) Criminal Revision No. 10./2014……………….13
Munn vs. Illinois 94 U.S. 113 (1876)………………………………………….……………………13
Maneka Gandhi vs. Union of India 1978 AIR 597 SCR (2) 621……………………...……………13
Babloo Chauhan @ Dabloo v. State Government of NCT of Delhi , 247 (2018) DLT 31...……….14
Kusum Ingots And Alloys Lltd vs Pennar Peterson Securities Ltd. , 2000 AIR SCW 609………...14
Vijay vs Laxman & Anr , AIRONLINE 2013 SC 423………………………………….………….15
Sudhir Kumar Bhalla vs. Jagdish Chand and Ors 2008 AIR SCW 3631…………………………...15
M/S Balaji Seafoods Exports vs Mac Industries Ltd , S. Pichalah 1999 (1) CTC 6………………..15

4
Somnath case vs. State of Punjab And Anr. , AIR 2008 (NOC) 411 (P. & H.)……………………15
M/S Indus Airways Private Limited And Ors v M/S Magnum Aviation Private Limited And Ors 2014
(12) SCC 539…………………………………………………………………………….……15
Kusum Ingots And Alloys Lltd vs Pennar Peterson Securities Ltd. , 2000 AIR SCW 609………...15
Vijay vs Laxman & Anr , AIRONLINE 2013 SC 423………………………………….………….15
M/S Balaji seafoods exports vs mac industries ltd , s. pichalah 1999 (1) CTC 6…………………..15
M/S Indus Airways Private Limited And Ors v M/S Magnum Aviation Private Limited And Ors 2014
(12) SCC 539………………………………………………………………………………….15
Rama Gupta And Ors. vs Bakesman’s Home Product Limited Patiala (1994) 79 COMPCAS 473
(P&H)……………………………….………………………………………………………………15
Abdul Samad vs Satya Narayan Mahawar 1990……………………………..……………………..15
M/s Gupta Rice & General Mills v. M/S Meerut Agro Mills ltd. & ANR. S 2011 ………………..15
Calcutta Sanitary Waters And Anr. vs C.T. Jacob (1993) 76 COMPCAS 347 (KER)………..……16
M/S M.M.T.C Ltd. & Anr. Vs. Medchl Chemicals & Pharma P. Ltd. & Anr. 2002 CLC 146
(SC)……………………………………………………….………………………………………...16
Lalita kumari Vs. State Of UP And Ors (2012) 4 SCC 1…………………………………..…….. 16
Lallan chaudhary & Ors vs state of Bihar & Anr 2006 AIR SCW 5172……………….…………..16
Joginder kumar vs State of U.P 1994 AIR 1349………………………………………………...….16
Sakiri vasu vs State of U.P And Ors. 2008 AIR SCW 309………………………………..………..17
Satish kumar vs State 1995 (34) DRJ 404…………………………………………………….…….17
R.K Pandey vs State of Chattisgarh 2017………………………………….……………………….17
Joginder kumar vs State of U.P 1994 AIR 1349…………………………………...……….………17
Lallan chaudhary & Ors vs state of Bihar & Anr 2006 AIR SCW 5172……………………….…..19
State Of Haryana And Ors vs Ch. Bhajan Lal And Ors 1993 AIR SCW 337…………………...…19
Sewa Ram V. State Of U.P. 2008 I Cr LJ 978 (SC)………………………………………………..19
Gupteshwar Nath Ojha And Anr. vs State Of Bihar 1986 ALLCRIR 338…………………………19
State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand 2004 Cr LJ 4254 (SC)……………19
Yogesh alias Sachin Jagdish Joshi v. State Of Maharashtra , (2008) 4 Cr LJ 3872 (SC)…..………………..…..19
Raghubir singh vs state of bihar 1987 Cr LJ 157 (SC)………………………………..……………19
Nandu rastogi V. State Of Bihar 2002 Cr LJ 4698 (SC)………………………………………………….. 19
Ajay Aggarwal v. union of india 1993 Cr LJ 2516 (SC)……………………………...……………20

5
Mir Nagvi Askari v CBI (2009) 15 SCC 643 (766)………………………………………………...20
State of himachal Pradesh vs karnvir AIR 2006 SC 2011………………………………………….21
Narendra Kumar Jain vs State of Madhya Pradesh2007 (3) MPHT 433 (DB)….. …….…………..21
S.W. Palnitkar v State of Bihar (2002) 1 scc 241……………………………………………...……22
Amulya Kumar Behra vs Nabaghana Behera Alias Nabina And Ors. 1995 CRILJ 3559 , 1995 (II)
OLR97……………………………………………………………………………………………....22

6
 STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble court of sessions under section 397 (1) and 374 3(a) of
the criminal procedure code. The leave has been accordingly granted.

7
 STATEMENT OF FACTS

1. That the material case arises out of four separate issues ; first , that whether the revision petition
filed by arun kumar is maintainable or not , second , that whether the essential ingredients of
maintainability of a complaint under section 138 of the negotiable instruments act , 1881 have been
met or not , three , whether registration of the FIR becomes mandatory in the background or not ? ,
fourth whether the ingredients under section 34 , 120B , 403 , 405 , 409 , 415 , 420 and 506 of the
Indian Penal Code 1860 are met in the above background or not.

I. BACKGROUND

2. Arun Kumar is engaged in business of retail sale of printers and toners. As manufacturing and retail
business halted in the year 2020 and he was also facing losses since the year 2018. Arun kumar
approached X bank for loan of Rs. 5,00,000 of which he was a long standing premium customer and
had entered into several loan transactions with X Bank for working capital, having developed a sense
of trust with Deepak who was the assistant manager of the said bank. While stating no specific
operational reasons the loan was denied by Deepak on the grounds that the bank cannot sanction such
a huge amount of loan. He instead represented arun kumar to approach wahi jewelers which was
managed by raman wahi and anita wahi to secure similar loan facility in exchange of the pledged
jewellery. Deepak in past also had helped arun kumar to execute various successful transactions ,
which in turn made Arun Kumar have further trust upon the offers and contacts of Deepak. In the
present case Deepak is the commissioned agent of wahi jewelers.

3. Accordingly, Deepak introduced Arun Kumar to Raman Wahi and the meeting took place in Wahi
Jewellers. During the meeting it was decided that Arun Kumar would pledge his valuable jewellery
in exchange of loan with applicable interest. It was assured that the pledged jewellery will be safely
returned once the principal amount of loan is repaid. Meanwhile, Raman Wahi maintained cordial
relations with Arun Kumar. At one such instance Raman Wahi on a facetime call showed some
jewellery to Arun Kumar and proposed very competitive prices to Arun Kumar , he being interested
in buying the said jewellery was told by Raman Wahi to immediately send payment through cheques.
Arun Kumar in trust shared the cheques however did not incorporate the date on the premise that the
same will be dated and presented after the receipt of the jewellery. Raman Wahi agreed and assured
that following some touch ups and hallmarking, the jewellery will be sent over to his house in 2-3

8
days. That Arun Kumar in trust sent the cheques , however , to his utter shock, Raman Wahi did not
send the jewellery in the following days despite various follow ups. Raman Wahi kept avoiding
handing over the jewellery against which the cheques were handed over, on one pretext or another
owing to his unavailability. Meanwhile Raman Wahi started pressurizing Arun Kumar to return the
remaining amount of loan, avoiding any discussions as to the handing over of the jewellery, failing
which the remaining items amounting to INR 1 Crore will not be released to Arun Kumar.

4. That during their final meeting Raman Wahi vehemently denied any obligation to return the
jewellery on the premise of non-payment of INR 33 Lakh from the entire loan amount as his reason
for refusing to return the jewellery to Arun Kumar. He further threatened to encash the cheques given
to make good the payments towards the loan. Accordingly, he proceeded to fraudulently encash the
cheques. Anticipating the same owing to Mr Raman Wahi’s threats, Mr Arun Kumar had advised his
bankers to stop payment. Thus, the cheques presented by Mr Raman Wahi bounced owing to “stop
payment” instructions. To further harass Arun Kumar , Raman Wahi filed a complaint against Arun
Kumar under Section 138 of the Negotiable Instruments Act, 1881 alleging that the cheques issued
securing the debt owed by Arun Kumar had been dishonoured. Arun Kumar therefore filed a police
complaint narrating the above incident alleging offences committed by Raman Wahi under Section
34, 120B, 403, 405, 409, 415, 420 and 506 of the Indian Penal Code 1860. Subsequently upon no
FIR being registered, Mr Arun Kumar approached the Court by filing an application under Section
156(3) before the Ld. Metropolitan Magistrate, seeking registration of the FIR for the cognizable
offences committed by the Accused Persons, i.e. Raman Wahi, Mrs Anita Wahi and Mr Deepak.
Arun Kumar’s complaint was dismissed on account of the status report submitted by the IO stating
that upon conducting enquiry, it transpires that commission of a cognizable offence is not made out
and that the dispute appears to be civil in nature.

5. THE RESULTANT LITIGATION

In the matter of Mr. Raman Wahi Vs. Mr. Arun Kumar adjudicated in the Magistrate court under the
purview of section 138 of the negotiable instruments act , 1881 the court rendered the verdict of
conviction against Arun Kumar. Dissatisfied with the perceived inenquity in the judgement , arun
kumar has duly lodged an appeal under the provisions of section 374 3(a) of the Code Of Criminal
Procedure (CrPC). Subsequently the Delhi sessions court has taken cognizance of both.

9
 STATEMENT OF ISSUES

1. WHETHER THE REVISION PETITION FILED BY MR. ARUN KUMAR IS

MAINTAINABLE OR NOT.

2. WHETHER THE ESSENTIAL INGREDIENTS OF MAINTAINABILITY OF A

COMPLAINT UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT , 1881
HAVE BEEN MET IN THE ABOVE BACKGROUND OR NOT.

3. WHETHER REGISTRATION OF THE FIR BECOMES MANDATORY IN THE

BACKGROUND OR NOT ?

4. WHETHER THE INGREDIENTS UNDER SECTION 34 , 120B , 403 405 , 409 , 415 , 420
AND 506 OF THE INDIAN PENAL CODE 1860 ARE MET IN THE ABOVE
BACKGROUND OR NOT.

10
 SUMMARY OF ARGUMENTS

1. WHETHER THE REVISION PETITION FILED BY ARUN KUMAR IS

MAINTAINABLE OR NOT ?

The power of revision petition provided under section 397 (1) which is a discretionary power , has
been exercised by the appellant before the hon’ble court of sessions of delhi. It is argued that the
revision petition filed by arun kumar is completely maintainable because the instances hereby stated
under statement of facts reveals the common intention of mr raman wahi , his wife anita wahi and
their commissioned agent Deepak to commit fraud , to deceive arun kumar by malafidely taking gold
and initializing security cheque given by arun kumar to wahi jewelers.

2. WHETHER THE ESSENTIAL INGREDIENTS OF MAINTAINABILITY OF

A COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE

INSTRUMENTS ACT , 1881 HAVE BEEN MET IN THE ABOVE
BACKGROUND OR NOT ?

That the ingredients of Under section138 of the negotiable instruments act has not been completely
fullfiled as the cheque delivered by arun kumar to wahi jewelers was a security cheque and as per
ambits of Indian laws the security cheque must not be initiated against a person by whom such and
such cheque is given to another in the form of security.

3. WHETHER REGISTRATION OF FIR BECOMES MANDATORY IN THE

ABOVE BACKGROUND ?

11
That the word FIR stand for the first information report. According to the section 154 [1] cpc FIR is
the very first information recorded by the police officer the chief role of the FIR is to set law in motion
, [2] the information received of cognizable offences is recorded so that it cannot be embellished.
That The registration of the FIR becomes mandatory in the above background primarily on the
following grounds – 3.1] That the registration of FIR in accordance with section 154 of the code of
criminal procedure is mandatory whenever the police receives information regarding a cognizable
offence. 3.2] That the charges alleged by the appellant i.e sections 34 , 120B , 403 , 405 , 409 , 415 ,
420 and 506 of the Indian Penal Code are of cognizable nature. 3.3] That the non registration of the
FIR violates article 21 i.e the right to life and personal liberty of the appellant which states that no
person shall be deprived of his fundamental right. That the non registration of the FIR curtails the
fundamental right of appellant.

4. WHETHER THE INGREDIENTS UNDER SECTION 34 , 120B , 403 , 405 ,

409 , 415 , 420 AND 506 OF THR INDIAN PENAL CODE 1860 ARE MET IN
THE ABOVE BACKGROUND ?

That the ingredients under section 34 , 120B , 403 , 405 , 409 , 415 , 420 and 506 of the Indian Penal
Code 1860 have completely been met in the above background.

12
 ARGUMENTS ADVANCED

1. WHETHER THE REVISION PETITION FILED BY ARUN KUMAR IS MAINTAINABLE

OR NOT ?

1.1 THAT THE REVISION PETITION FILED BY ARUN KUMAR IS MAINTAINABLE

1. That the power to file the revision petition has been exercised by the appellant under section 397
(1) ,1 which states that , “The High Court or any Sessions Judge may call for and examine the record
of any proceeding before any inferior Criminal Court situated within its or his local jurisdiction for
the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior
Court, and may, when calling for such record, direct that the execution of any sentence or order be
suspended, and if the accused is in confinement, that he be released on bail or on his own bond
pending the examination of the record.” That the objective of the provision is to set right a patent
defect or error of jurisdiction or law or the perversity which has crept in the proceeding.2

1.2 THAT THE APPELLANT HAS THE LOCUS STANDI TO FILE THE PRESENT
PETITION

2. That the appellant , Arun Kumar , has the locus standi to file the present petition and the same is
maintainable primarily on the ground that the order of conviction rendered by the metropolitan
magistrate under the purview of section 138 3 is not an “interlocutory order”.

As defined under section 397 (2) ,4 which states that , “The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry,
trial or other proceeding.”

1
Section 397(1) , the code of criminal procedure1973
2 State of Rajasthan vs Fatehkaran Mehdu (2017) 3 SCC 198
3
Section 138 , the negotiable instruments act 1881
4
Section 397 (2) , the code of criminal procedure 1973

13
1.3 THAT THE ORDER PASSED WAS INTERMEDIATE AND NOT INTERLOCUTORY

3. That the revisional jurisdiction under section 397 CrPC can be exercised where the interest of
public justice requires interference for correction of manifest illegality or the prevention of gross
miscarriage of justice. 5

4. That the court can exercise its revisional jurisdiction against a final order of conviction or acquittal
, or an intermediate order not interlocutory in nature ,6 the meaning of which was decided in , Amar
nath v State of Haryana.7 In this case it was held that the expression “interlocutory order” denotes
orders of purely interim or temporary nature which do not decide or touch upon the important rights
or liabilities of parties. Hence , any order which substantially affects the right of the parties cannot be
said to be “interlocutory order”.

1.4 THAT THE ARTICLE 21 OF THE APPELLANT MAY STAND VIOLATED AT THE
ORDER OF CONVICTION RENDERED

5. That Article 21, 8 provides that no person shall be deprived of his life and personal liberty except
according to the procedure established by law. The protection under Article 21 is available not only
from executive actions but also from legislative actions. That the term ‘life’ means much more than
mere animal existence. 9

6. That the speedy trial is an inalienable right under Article 21 of the constitution and hence no person
shall be deprived of his life and liberty without the procedure of law and the procedure of law must
be ‘fair’, ‘reasonable’, and ‘just’. 10 Delhi High Court in the landmark case of Babloo Chauhan @

5 Amit Kapoor v Ramesh Chander (2012) 9 SCC 460 ; Sheetala Prasad v Sri Kant , (2010) 2 SCC 190
6 Honnaiah T.H. vs State of Karnataka (2022) SC 672
7 (1977) 4 SCC 137

8 Article 21 , Constitution of India

9 Munn vs. Illinois 94 U.S. 113 (1876)
10 Maneka Gandhi vs. Union of India 1978 AIR 597 SCR (2) 621

14
Dabloo v. State Government of NCT of Delhi,11 specifically stressed the need for a comprehensive
legislative framework to compensate the wrongfully convicted victims.

7. Thereby the right to life and personal liberty of the appellant under Article 21 may stand violated
at the order of the conviction rendered.

2. WHETHER THE ESSENTIAL INGREDIENTS OF MAINTAINABILITY OF A

COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT , 1881
HAVE BEEN MET IN THE ABOVE BACKGROUND OR NOT ?

2.1 THAT THE ESSENTIAL INGREDIENTS OF MAINTAINABILITY OF A COMPLAINT

UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT , 1881 HAVE NOT
BEEN MET IN THE ABOVE BACKGROUND.

8. That section 138,12 states that 1[Where any cheque drawn by a person on an account maintained
by him with a banker for payment of any amount of money to another person from out of that account
for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the credit of that account is insufficient to honour
the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made
with that bank, such person shall be deemed to have committed an offence and shall, without
prejudice to any other provision of this Act, be punished with imprisonment for 2[a term which may
be extended to two years], or with fine which may extend to twice the amount of the cheque, or with
both.

2.1.1 That the cheque issued was a security cheque

9. It is argued that the essential ingredients of the maintainability 13 of a complaint under section 138
of the negotiable instruments act 1881 have not been met in the above background. That the cheque
presented by the Appellant was a security cheque. That the security cheques against the drawer cannot

11 247 (2018) DLT

12 138 , negotiable instruments act , 1881.
13 Kusum Ingots And Alloys Lltd vs Pennar Peterson Securities Ltd. , 2000 AIR SCW 609

15
be encashed. That the cheque was given only as a security and not in repayment of loan and hence its
dishonour was not liable to be visited with a penalty under section 138 of the said act. 14

2.1.2 That there was no date incorporated on the cheque

10. That there was no date incorporated on the cheque presented , as held in the case of Sudhir Kumar
Bhalla vs Jagdish Chand and Ors15 that the security cheques to attract the provisions of the act, 16
were contingent on the date on which the cheque was presented. That an undated cheque having been
given only as security , the provisions of section 138 of the act would not be attracted. 17 That the
cheque was not issued in respect of a time-barred debt.18

2.1.3 that the cheque was presented to make an advanced payment

11. That in the Indus Airways case , 19 it was held that post-dated cheque issued in order to make an
advanced payment could not qualify as cheque for discharge of debt thus a case of dishonouring of
cheque as per section 138 cannot be made out.

2.1.4 that the cheque returned owing to “stop payment” instructions do not attract liability under the
said act

12. That the cheques presented were not handed dishonoured but bounced owing to “stop payment”
instructions owing to respondents threats to fraudulently encash the cheques. Thus if the cheques are
returned with an endorsement “payment couter-manded by the drawer” then it was not an offence.20
That in the case of Abdul samod v satya narayan mahawar,21 it was held that parliament in its wisdom
has confined the offence referred to in section 138 only to bouncing of a cheque on the ground of
inadequate balance in the accounts concerned. Where the cheque is returned unpaid on other grounds
, the same has not been made an offence. 22 Similarly kerala high court in this regard held in the case

14 Vijay vs laxman & Anr , AIRONLINE 2013 SC 423

15 AIR 2008 (7) SCC 137
16 The negotiable instruments act , 1881
17 M/S Balaji seafoods exports vs mac industries ltd , s. pichalah 1999 (1) CTC 6
18 Somnath case vs. State of Punjab And Anr. , AIR 2008 (NOC) 411 (P. & H.)
19 limited M/S Indus Airways Private Limited And Ors v M/S Magnum Aviation Private Limited And Ors 2014 (12)
SCC 539
20 Rama Gupta And Ors. vs Bakesman’s Home Product Limited Patiala (1994) 79 COMPCAS 473 (P&H)
21 1990
22 M/S Gupta Rice & General Mills v. M/S Meerut Agro Mills ltd. & ANR.

16
of Calcutta sanitary waters vs Jacob,23 that in case the payment was counter-manded , then it was
without an offence.

13. That the “stop payment” instructions were not issued for insufficiency of funds,24 rather in
response to threat to encash the cheque presented by arun kumar to raman wahi.

3. WHETHER REGISTRATION OF FIR BECOMES MANDATORY IN THE

ABOVE BACKGROUND ?

14. That the word FIR stand for the first information report. According to the section 154 [1] cpc FIR
is the very first information recorded by the police officer the chief role of the FIR is to set law in
motion , [2] the information received of cognizable offences is recorded so that it cannot be
embellished. That The registration of the FIR becomes mandatory in the above background primarily
on the following grounds – 3.1] That the registration of FIR in accordance with section 154 of the
code of criminal procedure is mandatory whenever the police receives information regarding a
cognizable offence. 3.2] That the charges alleged by the appellant i.e sections 34 , 120B , 403 , 405 ,
409 , 415 , 420 and 506 of the Indian Penal Code are of cognizable nature. 3.3] That the non
registration of the FIR violates article 21 i.e the right to life and personal liberty of the appellant
which states that no person shall be deprived of his fundamental right. That the non registration of
the FIR curtails the fundamental right of appellant.

3.1 That the registration of FIR is mandatory

15. That the registration of FIR in accordance with section 154 of the code of criminal procedure is
mandatory whenever the police receives information regarding a cognizable offence .25 That FIR is
pertinent document that helps to settle the criminal law in motion and obtaining the information about
the alleged criminal activities , disclosing cognizable offences. 26

3.1.1 That the inquiry was made without registering the FIR

23 (1993) 76COMPCAS347(KER)
24 M.M.T.C Ltd. Vs. Medchi Chemicals & Pharma (Pvt.) Ltd. AIR 2002 SC 182
25 Lalita kumari vs govt of UP and ors. 2013 (8)
26 Lallan choudhary vs state of bihar (2011) 4 scc 266 ; Joginder kumar vs State of U.P 1994 AIR 1349

17
16. That on the non registration of the FIR the appellant had approached the Judicial magistrate under
section 156(3) of the CrPC.27

17. That the complaint was dismissed on the account of the status report submitted by the IO stating
that upon conducting enquiry it transpires that the commission of a cognizable offence is not made
out and that the dispute appears to be civil in nature.

18. That in the case of lalita kumari vs govt of up the inaction of the police in non registering an FIR
was condemned. It has been clearly stated that the resgistration of FIR is mandatory and no
preliminary enquiry is permissible in cognizable offences.

19. That the preliminary inquiry is not a limitation for registration of an FIR and there is no limitation
on adjective of information that it should be complete and reasonable 28

3.2 That the charges alleged by the appellant i.e sections 34 , 120B , 403 , 405 , 409 , 415 , 420
and 506 of the Indian Penal Code are of cognizable nature.

20. that contrary to the report submitted by IO the case is of criminal nature as the charges alleged by
the appellant are of cognizable nature.

21. that in the case of joginder kumar vs state of up,29 registration of an FIR was held to be mandatory
after a commission of a cognizable offence.

3.3 That the non registration of FIR may violate the article 21 of the appellant.

22. That the non registration of the FIR violates article 21 i.e the right to life and personal liberty of
the appellant which states that no person shall be deprived of his fundamental right. That the non
registration of the FIR curtails the fundamental right of appellant.

23. The provision of section 154 (1) CrPC must be read in the light of articles 14 , 19 and 21 which
provides that no innocent citizens be subject to malicious prosecution and implicated in criminal

27Sakiri vasu vs State of U.P And Ors. 2008 AIR SCW 309; Satish kumar vs State 1995 (34) DRJ 17
; R.K Pandey Vs. State of Chattisgarh and others 7 WPCR – 136 - 2017
28 State Of Haryana And Others vs Ch. Bhajanlal and ors 1993 AIR SCW 337
29 1994 AIR 1349

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cases. The liberty of the citizens would be in jeopardy if police officer proceeds to register an FIR
despite not being notified about the commission of a cognizable offences.

4. WHETHER THE INGREDIENTS UNDER SECTION 34 , 120B , 403 , 405 , 409 , 415 , 420
AND 506 OF THR INDIAN PENAL CODE 1860 ARE MET IN THE ABOVE BACKGROUND
?

4.1 That the essential elements of the alleged undersections have completely been met in the
above background.

24. It is argued that the essential elements of the alleged charges by the appellant on the respondents
(raman wahi , Deepak and anita wahi) i.e under section 120B , 403 , 405 , 409 , 415 , 420 and 506
read with 34 of the Indian Penal Code have been met in the above background.

4.2 common intention – 34 IPC

25. That section 34 of the Indian penal code lays that , when a criminal act is done by several persons
in furtherance of the common intention of all , each of such persons is liable for that act in the same
manner as if it were done by him alone.

26. That in the present petition raman wahi himself , with the view of the commission of crime , had
engaged Deepak as third agency to work as Deepak was his commissioned agent. That all the
meetings related to the loan extended by raman wahi to arun kumar in exchange of the jewellery
worth 1.5 crore were arranged by Deepak. That this makes both raman wahi and Deepak liable as
when two or more persons unite to accomplish a criminal object , whether through the physical
volition of one , or of all , proceeding severally or collectively , each individual whose will contributed
to the wrong-doing is in law responsible for the whole , in the same way as though performed by
himself alone.30

30 Bishop , J.P. , criminal law , vol. 1 (3rd ED.) section 439

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27. That not being a part of the meetings does not exclude Anita Wahi from the liability under section
of 34,31 as mere distance from the scene of occurrence does not include the accussed from the liability.
32

28. That it is alleged by the respondents that there is no documented evidence pointing to a pre-existed
collaboration or understanding between Raman Wahi and Deepak in handling arun kumar’s financial
transactions which stands invalid as the direct proof of common intention is rarerly available. It can
only be inferred from circumstances appearing from proved facts as held in Sewa Ram V. State Of
U.P.33 That in establishing common intention in every case it is not required for the prosecution to
prove a pre-arranged plan or prior concert. 34 That the mere agreement to commit an offence is
punishable even if it does not take place pursuant to the illegal agreement.35

29. That Deepak while giving no specific operational reasons told arun kumar that bank couldn’t
sanction the loan on multiple occasions and advised him to get money in the exchange of pledged
jewellery leading to multiple meetings between arun kumar and wahi jewelers of which raman wahi
and anita wahi were owners. Thus Deepak and Anita wahi vicariously attract liability under section
34 as the accused should have done some act which has nexus with the offence.

4.3 CRIMINAL CONSPIRACY – 120B

30. Section 120B lays down that [1] whoever is a party to a criminal conspiracy to commit an offence
punishable with death , imprisonment for life or rigorous imprisonment for a term of two years or
upwards , shall , where no express provision is made in this code for the punishment of such a
conspiracy , be punished in the same manner as if he had abetted such offence. [2] whoever is a party
to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either description for a term not exceeding six
months , or with fine or with both.

31. That to act as a courier is sometimes enough in a case of conspiracy. It is also not necessary that
a person should be a participant in a conspiracy from start to finish . conspirators may appear from

31 Section 34 , Indian penal code

32 Lallan V. State of Bihar , 2003 Cr LJ 465 (SC)
33 2008 I Cr LJ 978 (SC) ; Gupteshwar Nath Ojha And Anr. vs State Of Bihar 1986 ALLCRIR 338
34 State of Maharashtra v. jagmohan singh kuldip singh anand 2004 Cr LJ 4254 (SC)
35 Yogesh alias Sachin Jagdish Joshi v. State Of Maharashtra , (2008) 4 Cr LJ 3872 (SC)

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stage to stage in the course of conspiracy.36 That Deepak acted as a courier throughout all the
meetings.

32. That Anita Wahi is vicariously liable as she along with Raman wahi was in the business of
sale/purchase of jewellery as well as giving loans in the lieu of jewellery under the name of wahi
jewelers. That each conspirator need not know all the details of the scheme as held in the case of Ajay
Aggarwal v. union of india.37 That it is also not necessary for a conspirator to be present at the scene
of the crime.38

33. That Due to the aforementioned law, cases and arguments, the Counsel humbly submits that
raman wahi , anita wahi and Deepak are liable under section 120B for criminal conspiracy.

4.4 DISHONEST MISAPPROPRIATION OF PROPERTY – 403

34. That section 403 of the Indian Penal Code states that whoever dishonestly misappropriates or
converts to his own use any movable property shall be punished with imprisonment of either
description for a term which may extend to two years or with fine , or with both

35. That the essential elements of crimimal misappropriation has been met in the present petition.
That the jewellery worth of 1 crore and the cheque presented by arun kumar being movable property
were misappropriated by Deepak and wahi jewelers.

4.5 CRIMINAL BREACH OF TRUST – 405

36. That section 403 of the Indian Penal code states that whoever , being in any manner entrusted
with property , or with any dominion over property , dishonestly misappropriates or converts to his
own use that property , or dishonestly uses or disposes of that property in violation of any direction
of law prescribing the mode in which such trust is to be discharged , or of any legal contract , express
or implied , which he has made touching the discharge of such trust , or willfully suffers any other
person so to do , commits “criminal breach of trust”

36 Raghubir singh vs state of bihar 1987 Cr LJ 157 (SC) ; Nandu Rastogi V. State Of Bihar 2002 Cr LJ 4698 (SC)
37 1993 Cr LJ 2516 (SC)
38 Mir Nagvi Askari v CBI (2009) 15 SCC 643 (766)

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37. That the ingredients of criminal breach of trust in the present petition have been completely. That
the jewellery worth of 1 crore and the cheque entrusted to wahi jewelers was dishonestly
misappropriated.

38. That the jewellery entrusted was not utilized for the purpose for which it was actually utilized. 39
That the jewellery was used to threaten and harass the appellant into returning the remaining loan
amount.

39. That arun kumar in trust had sent cheques to wahi jewelers but the jewellery was not sent over to
arun kumar as was promised by raman wahi that the jewellery would be sent to him within 2-3 days
after touch-ups and hallmarking.

4.6 CRIMINAL BREACH OF TRUST BY PUBLIC SERVANT , OR BY BANKER ,

MERCHANT OR AGENT – 409

40. That this section states that whoever , being in any manner entrusted with property , or with any
dominion over property in his capacity of a public servant or in the way of his business as a banker ,
merchant , factor , broker , attorney , or agent commits criminal breach of trust in respect of that
property , shall be punished with imprisonment for life , or with imprisonment of either description
for a term which may extend to ten years , and shall also be liable to fine.

41. That the accused , Deepak , is liable under the said section , as he being a bank manager mislead
arun kumar stating that the bank could not sanction him the loan while giving no specific operational
reasons and represented arun kumar to approach the co-accused raman wahi for a similar loan facility
in exchange of pledged jewellery.

42. That the packets of jewelery in entrusted by arun kumar were misappropriated by Deepak and
wahi jewelers in their custody in order to threaten arun kumar into returning the pending loan amount.
40

4.7 CHEATING – 415

39 State of Himachal Pradesh vs karnvir AIR 2006 SC 2011

40 Narendra Kumar Jain vs State of Madhya Pradesh2007 (3) MPHT 433 (DB)

22
43. That the said section states that whoever , by deciding any person , fraudulently or dishonestly
induces the person so deceived to deliver any property , to any person or to consent that any person
shall retain any property or intentionally induces the person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived , and which act or omission causes or is
likely to cause damage or harm to that person in body , mind , reputation or property , is said to cheat.

44. That the pledged jewellery was used to deceive and threaten arun kumar into paying the remaining
loan amount in order to settle the amounts. That to further harass the appellant the cheques presented
by him the accused raman wahi proceeded to fraudulently encash cheques. 41

4.8 CHEATING AND DISHONESTLY INDUCING DELIVERY OF PROPERTY – 420

45. That the said section states that , whoever cheats and thereby dishonestly induces the person
deceived to deliver any property to any person , or to make , alter or destroy the whole or any part of
a valuable security , or anything which is signed or sealed , and which is capable of being converted
into a valuable security , shall be punished with imprisonment of either description for a term which
may extend to seven years , and shall also be liable to fine.

46. That the appellant was induced into paying the remaining loan amount owing to the threat that
the remaining jewellery worth of 1 crore will not be returned and that the cheques presented would
be encashed to settle the accounts.

4.9 PUNISHMENT FOR CRIMINAL INTIMIDATION – 506

47. The section states that , whoever commits the offence of criminal intimidation shall be punished
with imprisonment of either description for a term which may extend to two years , or with fine , or
with both. That the misapproptiation of jewellery and the encashement of the cheques presented by
the appalent were done on pretext to alarm the appalent. 42

48. That Due to the aforementioned law, cases and arguments, the Counsel humbly submits that the
essential elements of the alleged under sections have completely been met in the above background.

41 S.W. palnitkar v state of bihar (2002) 1 scc 241

42 Amulya Kumar Behra vs Nabaghana Behera Alias Nabina And Ors. 1995 CRILJ 3559 , 1995 (II) OLR97

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 PRAYER

Wherefore it the light of the issues raised , arguments advanced and the authorities cited , it is humbly
requested that this honorable court may be pleased to adjudge and declare :

1. That the revision petition filed by Arun kumar is maintainable before the honorable court of
sessions of state NCT of Delhi.
2. That the essential ingredients of maintainability of a complaint under section 138 of the
negotiable instruments act , 1881 have not been met in the above background
3. That the registration of the FIR becomes mandatory in the above background.
4. That the ingredients under section 34 , 120B , 403 , 405 , 409 , 415 , 420 and 506 of the Indian
Penal Code 1860 have been met in the background.

And pass any such order , writ or discretion as the honourable court deems fit and proper , for this
the appellant shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE APPELLANT

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