Delhi District Court
Kuldeep Sharma vs Smt. Vimla Sharma on 18 November, 2014
IN THE COURT OF SH. SANJAY BANSAL,
ADDITIONAL SESSIONS JUDGE-03 (EAST),
KARKARDOOMA COURTS, SHAHDARA, DELHI.
Criminal Revision No. 94/14
Unique Case ID No. : 02402R0242242014
Kuldeep Sharma
S/o Late Sh. G. D. Sharma
R/o H. No. 45, Gandhi Sadan, Mandir Marg,
New Delhi ------Revisionist.
Vs.
1. Smt. Vimla Sharma
W/o Sh. R. C. Sharma
R/o H. No. 360-F, Mayur Vihar Phase-I
Pkt-2, Delhi
2. Sh. Ram Chander Sharma
S/o Late Sh. R. P. Singh
R/o Brahman Dharamsala, Jhajjar, Haryana
3. Smt. Savita Sharma
W/o Sh. Murari Lal Sharma
R/o J-71, Pandav Nagar
Ashram wali gali near Mother Dairy, Delhi ------Respondents.
CC No.: 3269/08
PS: Pandav Nagar
U/s. 452/380/34 IPC
Date of Institution: 14.08.2014
Order Reserved on: 18.11.2014
Date of Order: 18.11.2014
ORDER:
1. The petitioner through this revision petition challenges order dt. 03.07.2014 passed by learned CMM (East) in the abovenoted complaint case i.e. CC No.3269/08 PS Pandav Nagar U/s. 452/380/34 IPC titled "Kuldeep Sharma Crl. Revision No. 94/14 Kuldeep Sharma Vs. Vimla Sharma & Ors. Page No. 1 Vs. Vimla Sharma & Ors.". Vide impugned order, learned CMM had discharged all the accused persons from the case.
2. The petitioner had filed the said complaint case alleging offences punishable u/s. 452/380/34 IPC. The case of the complainant/petitioner was that he was running his colour lab at D-22, Pandav Nagar opposite Mother Dairy, Delhi-110092 in the name and style of New Shipika Colour Lab. Accused no.1 and 2 namely Vimla Sharma and Ram Chander Sharma are his real maternal aunt and uncle (Mami and Mama). Accused no.3 Smt. Savita is Bhabhi of accused no.1. It was alleged that accused no.1 had entered into an agreement with the complainant and his brother on 25.06.1996. Some disputes arose between them and taking advantage of being an advocate, accused no.1 started threatening and pressurising the complainant and his family members. It was alleged that on 29.12.2000 at about 7 am when workers of the complainant namely Manish Kumar and Tarun Kumar were sleeping at the shop, all the accused persons forcibly entered into the shop with common intention to commit offence. It was also alleged that one air conditioner, one wheel chair, one chair, one stabilizer, one calculator, one stereo and miscellaneous equipments and accessories of colour lab were stolen. Details of the miscellaneous equipments have also been mentioned. The workers of the complainant informed him about the incident when complainant reached at the shop. Complainant reported the matter to the police but no action was taken as they were under influence of accused no.1. Hence, complainant filed the said complaint case.
3. Pre-summoning evidence was recorded. All the three accused Crl. Revision No. 94/14 Kuldeep Sharma Vs. Vimla Sharma & Ors. Page No. 2 persons were summoned as accused vide order dt. 01.02.2003 for offences punishable u/s. 451/380/34 IPC.
4. After appearance of the accused persons, complainant led pre- charge evidence. Complainant examined Sh. Tarun Kumar as CW-1 and himself as CW-2.
5. Learned CMM after hearing the arguments of complainant and accused no.1 and 2, passed the impugned order. Accused no.3 had filed written arguments.
6. Learned CMM after considering the material on record, observed that the complainant himself was not the eye witness of the incident and it was rather Tarun Kumar who was the eye witness. Learned CMM noticed various contradictions in statement of Tarun Kumar (CW-1) in pre-summoning evidence as well as in pre-charge evidence. He also observed that the complainant failed to prove ownership of the colour lab. He held that the material on record even if unrebutted was not sufficient for conviction. He, therefore, discharged all the accused persons. Aggrieved of this order, petitioner/complainant has approached this court with his revision petition.
7. I have heard Sh. Atul Sharma, learned counsel for the petitioner, and Sh. R. K. Chaudhary, learned counsel for respondent no.3. I have also perused the written submissions filed on behalf of petitioner. I have also perused the record.
8. It is contended by learned counsel for the petitioner that impugned order is liable to set aside as learned trial court failed to appreciate the Crl. Revision No. 94/14 Kuldeep Sharma Vs. Vimla Sharma & Ors. Page No. 3 contentions of the petitioner. It is contended that various judgments cited by the complainant were not discussed. Learned counsel argued that impugned order is non-speaking order. He argued that learned trial court failed to appreciate that vide order dt. 01.02.2003, accused persons were summoned on the basis of inquiry u/s 202 CrPC and, therefore, it was wrong to discharge the accused persons. He submitted that accused persons failed to put any suggestion that complainant had no connection with the shop. He even submitted that accused persons had no right to cross-examine the witnesses at the stage of pre-charge evidence. He submitted that only prima facie case was to be seen at that stage.
9. Learned counsel for petitioner relied upon the following judgments:
R. V. E. Venkatachala Gounder v. A. V. & V. P. Temple AIR SC 4548; Bharat Damodar Kale v. State of A.P. AIR 2003 SC 4560; Raj Kumar & Ors. v. Hardwari & Ors. 2007(2) Civil Court Cases 364 (P&H); Shrikant Chavan v. Hotel the Vaishno Devi 2007(2) Civil Court Cases 368 (J&K); Vinod Kumar Tanwar v. Jai Bhagwan 2012(3) Civil Court Cases 350 (P&H); M/s. Patel Engineering Limited v. Union of India & Anr. 2012(3) Civil Court Cases 352 (SC); Shyam Lal @ Kuldeep v. Sanjeev Kumar & Ors. 2009(3) Civil Court Cases 535 (SC); M/s. Rajpura Gas House v. B. S. Koli & Anr. 2009(3) Civil Court Cases 542 (P&H); Vijay Kumar & Anr. v. State & Ors. 2007 Crl. L. J. (NOC) 116 (Del.); Virender Singh v. Central Bureau of Investigation 2011(1) JCC 623; Mukhtiar Singh & Anr. v. State of Punjab AIR 2009 SC 1854; State of M. P. v. Ramesh & Anr. 2011(2) RCR (Crl.) 583; Boddepalli Lakshminarayana v. Suvvari Sanyasi Appa Rao & Ors. AIR 1959 Crl. Revision No. 94/14 Kuldeep Sharma Vs. Vimla Sharma & Ors. Page No. 4 AP 530; Mani v. Joseph & Ors. 1999(4) Crimes 417; Raju Das v. State of West Bengal 2012(3) Crl. Court Cases 839; Surjit Singh & Anr. v. State of Punjab 2007(3) Criminal Court Cases 247 (SC); Appukuttan v. State of Kerala 2010 Crl. L.J. 3186; Anil Kumar Jain v. Paritosh Jain 2013(7) LRC 161 (Del.); M/s. Grasim Industries Ltd. v. M/s. Agarwal Steel (SC) 2010(1) RCR (Civil) 933; Baldev Singh v. State of Punjab 2013(4) JCC 2347; Dr. Hemand Kumar Taneja v. State of U.P. 2004(4) Criminal Court Cases 460 (Allahabad); Jijo & Anr. v. State 2003 Crl. L. J. 256; State of Maharashtra v.
Tatyaba Bajirao Jadhav & Ors. 2011 Crl. L. J. 2717; Jagtar Singh v. State of Punjab 2013(4) Criminal Court Cases 220 (P&H); Gangabhavani vs. Rayapati Venkat Reddy & Ors. VII (2013) SLT 789; Jaswinder Singh & Ors. v. Kartar Singh & Ors. 2004(3) Civil Court Cases 80 (P&H) and Rajinder Pershad (Dead) v. Darshana Devi 2001(3) Civil Court Cases 622 (SC).
10. Only learned counsel for respondent no.3 had addressed arguments. He opposed the revision petition and submitted that impugned order is rightly passed. He submitted that there was no material to frame any charge upon any of the respondents.
11. I have considered the submissions.
12. CW-1 is Tarun Kumar. He was working in New Shipika Colour Lab but he did not remember since when. He deposed that on 29.11.2012 in the morning, Vimla Sharma, R. C. Sharma and Savita Sharma came in the lab and told him that they have to take articles of the lab i.e. chair, wheel chair, AC, Stereo and some chemicals. He deposed that they all lifted all the articles and Crl. Revision No. 94/14 Kuldeep Sharma Vs. Vimla Sharma & Ors. Page No. 5 started going from the lab. He called to Kuldeep Sharma/complainant. Kuldeep Sharma came to the lab but by that time, accused persons had already left. He deposed that Kuldeep Sharma made a complaint to the police. In cross- examination, CW-1 stated that he was not aware whether Vimla Sharma was the owner of the lab or not. He did not remember the exact time when he made call to Kuldeep Sharma. He stated that accused persons stayed at the spot for about 15-20 minutes. He stated that he was employed by Kuldeep Sharma in 1999 but did not remember the month. He denied suggestion that New Shipika Colour Lab was not running from address B-92, Pandav Nagar, Delhi.
13. Complainant himself appeared as CW-2. He deposed on the lines of his allegations. Inter alia, he deposed that he had received phone call from his employee Tarun (CW-1) regarding the incident and he went there and prepared list of missing articles. He deposed that on 30.12.2000, accused persons quarreled with him. On 31.12.2000, he paid Rs. 2 lacs to them but they did not handover the possession. On 26.02.2001, a false FIR was registered against him. He was cross-examined at length.
14. As rightly observed by learned CMM, CW-1 Tarun Kumar was the only witness of the theft. CW-1 deposed at variance with his evidence recorded at pre-summoning stage. As noted by learned CMM, CW-1 contradicted himself regarding the time of incident. CW-1 claimed that he was employee of complainant but did not produce any document to this effect. He further claimed that he used to sleep in the said shop but again there is no cogent evidence in this regard.
Crl. Revision No. 94/14 Kuldeep Sharma Vs. Vimla Sharma & Ors. Page No. 6
15. It has come in cross-examination of CW-1 that accused persons stayed at the spot for around 15-20 minutes. Out of the three accused persons, two were women. CW-2/complainant as well as CW-1 alleged that these persons took away AC, chair, wheel chair, stereo and other articles. It is common knowledge that Air Conditioner is a very heavy machine. How could it be possible for two women and one man to lift the said AC and take it away? There is no evidence that accused persons had taken services of any other person(s) or labour etc. or that any transporting vehicle was used. Further, within a span of 15-20 minutes, it is impossible to take away all these articles by three persons and that too in their hands. The AC must have been lying fixed in the shop. It would naturally take sufficient amount of time to remove a fixed AC from the wall and take it away. Further CW1 did not specify what article was taken away by which accused.
16. The allegations levelled by CW-1 and CW-2 appear to be improbable. It was not humanly possible to take away these articles in such a short span of time.
17. Moreover, CW-1 who claims himself to be employee of the complainant made no effort to stop the accused persons from committing the theft. This conduct of CW-1 also raises doubts.
18. Further, complainant failed to prove that he was possessing these articles which were allegedly stolen. Learned CMM rightly observed that complainant failed to show that he had any connection with the shop in question.
19. Learned counsel for the petitioner had also submitted that accused Crl. Revision No. 94/14 Kuldeep Sharma Vs. Vimla Sharma & Ors. Page No. 7 persons could not cross-examine witnesses of the complainant at the stage of pre-charge evidence. He argued that for this reason, impugned order is liable to be set aside as learned CMM had referred to cross-examination of the CWs.
20. This contention does not carry any weight. In (2013) 9 SCC 209 titled "Sunil Mahta & Anr. v. State of Gujrat & Anr.", Hon'ble Supreme Court has categorically held that accused has right to cross-examine the witness even at the stage of pre-charge evidence. Thus, there is no illegality and perversity in the impugned order on this aspect.
21. The judgments cited by learned counsel for the petitioner do not help petitioner's case at all.
22. I am of the view that there was no case for framing any charge. Learned CMM rightly discharged all the accused persons.
23. Therefore, there is no merit in the present revision petition. Same is hereby dismissed.
24. Copy of this order be sent to the trial court alongwith trial court record.
25. File of revision petition be consigned to record room. Announced in Open Court today on 18.11.2014 (SANJAY BANSAL) ASJ-03 (East) KKD Courts, Delhi.
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