Delhi District Court
Pawan Bhardwaj S.O Late Sh Jai Ram vs State on 5 December, 2012
IN THE COURT OF SH AJAY KUMAR JAIN: ASJ03:SE/NEW DELHI
Criminal Revision No. 152/12
Computer ID No. 02406R0139952012
Pawan Bhardwaj S.o Late Sh Jai Ram
R.o H.No. 427K, Sector2,
Faridabad.
...... Revisionist/Accused
Versus
State
.....Respondent
AND
Criminal Revision No. 150/12
Computer ID No. 02406R0131892012
Sanjay Kapoor S/o Sh Charan Dass Kapoor
R.o H.No. 25, NIT,
Faridabad.
...... Revisionist/Accused
Versus
State
.....Respondent
Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 1 of 8)
ORDER :
1. Vide this common order, I shall dispose off the criminal revision petition No. 150/12 and 152/12.
2. By way of above criminal revision petitions, revisionist Pawan Bhardwaj and Sanjay kapoor have challenged the impugned order dated 01.03.2012 passed by Ld. Metropolitan Magistrate whereby revisionist Pawan Bhardwaj charged for commission of offence u/s 411 IPC and revisionist Sanjay Kapoor charged for commission of offence u/s 103 DP Act.
3. Facts relevant for deciding the present revision petitions are that a written complaint was filed by complainant Rita Banerjee before PS on 13.12.2003 that her purse containing credit card, driving license, currency notes about Rs.5000/ were stolen from her car at Kailash Colony market pursuant to which FIR u/s 379 IPC was registered . During investigation, accused Gaurav Khanna was arrested who disclosed that he alongwith accused Manoj Sharma and Vikas Sharma has committed the above offence and further stated that they have used the credit card of Rita Banerjee in purchasing a golden chain for Rs. 29750/ from RB Jewellersand sold it to accused Pawan Bhardwaj, further disclosed that from some other stolen credit card (which do not belong to Rita Banerjee) they also purchased one golden chain which was sold to accused Sanjay Kapoor. And police during investigation recovered both the chains and arrested the present revisionists.
Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 2 of 8)
4. Vide impugned order dated 01.03.2012 accused Pawan Bhardwaj was charged for commission of offence u/s 411 IPC and accused Sanjay Kapoor was charged for commission of offence u/s 103 DP Act.
5. Ld. counsel for the revisionist submitted that no offence is made out against the accused persons because the recovered chains are not the stolen property. Ld. counsel in this regard relied upon the judgment in case titled as "Ram Narayan Vs. Central Bank of India, AIR 1952 Punjab 178" wherein in para 8 it is held :
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property" whether the transfer has been made, or the misappropriation of breach of trust has been committed, within or without British India. But, if such property subsequently comes into the possession of a person legally Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 3 of 8) entitled to the possession thereof, it then ceases to be stolen property. It does not seem to me that this definition, comprehensive as it is, can be said to include money received as the result of selling stolen property, nor cited any decision in which it has been so held on the other hand, plowden and smyth jj., in EMPRESS V. SUBHA CHAND', 39 Pun Re CR. 1881, held that property into or for which stolen property has been converted or exchanged is not stolen property according to the definition given in the Indian Penal Code, and there are also two English decisions on the point 'REGINA V. CHAPPLE, (1840) 9 Car & P 355, in which it was held that money obtained by sale of property stolen was not stolen property, and REX V. Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 4 of 8) WALKLEU' (1829) 4 Car & P 133, in which it was even held that currency notes of smaller denomination obtained in exchange of stolen currency notes of higher denomination were not stolen property. Hence, I do not consider that the court at Gurgaon can be given jurisdiction independently of Section 188, Criminal Procedure Code to try Ram Narain for an offence under section 411, Indian Penal Code."
6. Ld. counsel further relied upon the judgment of apex court in case titled as "Chand Mal and Another Vs. State of Rajasthan, AIR 1976 SC 917"
wherein it is observed that for invoking section 410 IPC , the prosecution is required to prove that the recovered property must fall in the description of stolen property. Ld. counsel submits that in this case the recovered golden chain from accused Pawan Bhardwaj do not fall in a the category of stolen property as stolen property are credit cards not the golden chain. Therefore, accused Pawan Bhardwaj cannot be charged for commission of offence u/s 411 IPC. Ld. counsel further submits that no charge u/s 103 Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 5 of 8) DP Act could be framed against accused Sanjay Kapoor because mere recovery of golden chain do not envisages the commission of offence u/s 103 DP Act and in this regard relied upon judgment of Delhi High Court in case titled as " Hazari Lal Vs. State, 1985 (1) RCR (Delhi) 117"
wherein it is observed that section 103 DP Act is attracted only when the property found in possession of accused is either stolen property or property fraudulently obtained by him and it is only then accused can called upon to account for such property. Mere non production of proof is of recovered article is hardly of any consequence. Ld. counsel submits that in this case also the recovered property do not fall int he category of stolen property further, the accused has also filed the receipt of the said article before the trial court thus no offence u/s 103 DP Act made against accused Sanjay Kapoor.
7. Ld. Addl. PP on the other hand submitted that at this stage of charge the court has to see only prima facie case and the recovered chains are found to be purchased from the stolen credit cards, therefore, prima facie case u/s 411 IPC is made out against accused Pawan Bhardwaj and charge u/s 103 DP Act is made out against accused Sanjay Kapoor.
8. Arguments heard. Record perused.
9. Both accused Pawan Bhardwaj and Sanjay Kapoor were arrested in present case on basis of recovery of gold chain from their possession which was purchased by other accused persons from the stolen credit cards of complainant Rita Banerjee and some unknown person. Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 6 of 8) Admittedly, as per prosecution case, the gold chains recovered were not the stolen property as the stolen property in present case are the credit cards. In case titled as "Ram Narain Vs. Central bank of India (Supra)" as relied by ld. Counsel for accused it is categorically held that if the stolen property has been converted or exchanged then it is not the stolen property in terms of section 410 IPC. For commission of offence u/s 411 IPC, the mandatory requirement is that the said property must fall in the category of stolen property however in present case the stolen property is not gold chain but the credit cards and only after use of credit cards gold chains were purchased therefore, do not fall in the category of stolen property, hence, no charge u/s 411 IPC is made out against accused Pawan Bhardwaj. It is also categorically held by Delhi Hgih court in Hazari Lal's case ( Supra) that to attract offence u/s 103 DP Act, the property found in possession of accused is either to be stolen property or property fraudulently obtained by him as already discussed the stolen property are credit cards and not chain and neither it is a case of prosecution that said chain was fraudulently obtained by accused Sanjay Kapoor therefore no offence u/s 103 DP Act is made out against accused Sanjay Kapoor.
10. In view of above discussion, impugned order of framing of charge qua revisionist Pawan Bhardwaj and Sanjay Kappor u/s 411 IPC and 103 DP Act respectively set aside. Accused Pawan Bhardwaj and Sanjay Kapoor are discharged from the case. Revision petitions accordingly allowed. Copy of this order alongwith this order be sent back to trial court . Copy Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 7 of 8) of this order be placed on both the criminal revision petitions. File be consigned to Record Room.
Announced in the open court (AJAY KUMAR JAIN)
on 5th December, 2012 ASJ03/SE/New Delhi
Pawan Bhardwaj & Sanjay Kapoor Vs. state, Cr. Nos. 152/12 and 150/12, (Pg- 8 of 8)