Delhi District Court
Smt. Asha Handa vs State on 13 July, 2009
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IN THE COURT OF SH. INDER JEET SINGH, ADDL. SESSION JUDGE,
WEST DISTRICT-02, TIS HAZARI COURTS, DELHI
Criminal Revision No. 231/2008
Smt. Asha Handa,
W/o Sh. Onkar Nath Handa,
R/o 10960, Doriwalan,
Karol Bagh, New Delhi. .....Petitioner
VERSUS
1. State
Through its Chief Secretary
Government of NCT of Delhi
Players Building, I. P. Estate,
New Delhi-110001.
2. Sh. Hitesh Bhutani,
S/o Sh. Prem Bhutani,
R/o T-30, Gaushala Road,
Behind Jain Petrol Pump,
Karol Bagh, New Delhi. .....Respondents
Date of Institution : 14.07.2008
Date of reserved on : 04.07.2009
Date of decision : 13.07.2009
JUDGMENT
1.1 The petitioner was complainant and a complaint under the title "Asha Handa Vs Hitesh Bhutani" was filed against respondent No. 2 under section 406 of IPC, with allegations that because of good terms and close family relations, on the request and urgent need of Hitesh Bhutani, the said Smt Asha Handa and her husband Onkar Nath Handa gave her brand new maruti Contd.....
2car model No. 2004 bearing registration No. DL 9C F 6523 to Hitesh Bhutani (respondent no. 2 herein) temporarily. It was assured to return the car on the demand of Smt. Asha Handa, she is registered owner of the same. Hitesh Bhutani, lateron, served Onkar Nath Handa with notice dated 23.09.2004 claiming Rs. 3 lac and another notice dated 23.09.2004 claiming Rs. 1,20,000/- from Onkar Nath Handa representing claim of loan, the notices were replied by Sh. Onkar Nath Handa. Immediately, Smt. Asha Handa demanded her maruti zen car back but it paid no heed and then on 09.10.2004 notice was served but Hitesh Bhutani failed to comply the notice. After availing other forum of report to the police, and for want of registration of case, Smt. Asha Handa filed the complaint.
1.2 There was a request under section 156(3) Cr.P.C, Ld. Metropolitan Magistrate, Delhi exercised the discretion, an FIR No. 415/2004 under section 406 IPC was registered with DBG Road and it was investigated. During the investigation, investigating officer collected an undertaking dated 06.07.2004, being evidence, purported to be executed by Onkar Nath Handa and Smt. Asha Handa that they took a loan of Rs. 12 lacs ( i.e. Rs. 1,20,000/- as personal loan and Rs. 3 lacs from M/s Tanvi Fin Contd.....
3Lease, Rs. 4 lac as friendly loan and Rs. 3,80,000/- for purchase of maruti Car bearing registration No. DL 9C F 6523; since car has been handed over, a sum of Rs. 3,80,00/- is to be deducted from Rs. 12 lacs) from Hitesh Bhutani, M/s Tanvi Fin Lease. Besides, the investigating officer also seized maruti zen car from Hitesh Bhutani respondent No.2 and on the directions of the court, it was released on superdari to Smt. Asha Handa. 1.3 The undertaking dated 06.07.2004 (being questioned document of signature Q.1- Asha Handa & Q.2- Onkar Nath Handa) was examined from FSL Calcutta and FSL Rohini with regard to specimen S.1 to S.4 of Smt. Asha Handa and S.5 to S.8 of Onkar Nath Handa. It was opined that S.1 to S.4 was written by the author of questioned mark Q.1, however, the signatures mark S.5 to S.8 were not written by author of Q.2 in the report of FSL Calcutta. Whereas, FSL Rohini could not definite opinion, however, there are some similarities found in Q.1 specimen S.1 to S.4.
1.4 It was followed by final report by the Station House Officer to cancel the case, that no offence under section 406 IPC is made out, it was also requested to initiate action under section 182 IPC against the complainant. On 30.06.2008, Ld. Contd.....
4Metropolitan Magistrate, Delhi passed two orders, one of the order is while accepting the final report that no offence is made out and secondly, it is not appropriate in the light of opinions of hand writing expert to provide an opportunity to lead evidence by the complainant, the impugned order is under consideration in the present revision petition.
1.5 The second order was also of dated 30.06.2008, it was with regard to Hitesh Bhutani's application under section 451 Cr.P.C. seeking release of vehicle bearing registration DL 9C F 6532 & respondent no.2's application under section 182 IPC read with section 211 IPC to initiate action against Smt. Asha Handa. The vehicle was directed to be released to the said Hitesh Bhutani, (since earlier, by order dated 30.11.2005, the vehicle was released to Smt. Asha Handa after its seizure by the police), on superdari till the pendency of the appeal or revision to be filed against such order dated 30.06.2008. It has also been challenged in the present revision petition. 1.6 By the same common order dated 30.06.2008, Ld. Metropolitan Magistrate, Delhi. also concluded that it is not expedient in the interest of justice to make an inquiry and application under section 182/211 IPC was dismissed. It is Contd.....
5subject matter of another revision petition No. 304/2008 by Hitesh Bhutani against Smt. Asha Handa & State, which is also scheduled with the present petition.
2.1 In the present revision petition, the petitioner is aggrieved by the order dated 30.06.2008, while accepting the final report but she was not provided an opportunity to proceed with the complaint, secondly, the vehicle which was released to her on 30.11.2005, has now been directed to be released on superdari to the respondent No. 2.
2.2 Although, the detailed revision petition elaborates the factual position of petitioner/complainant but in nutshell, the grievances are that only basis of hand writing expert opinions, which also differ, trial court accepted the final report, whereas no other investigation was carried under the banner of FIR No. 415/2004. She ought to have been provided an opportunity to lead evidence or there should have been direction for re- investigation. Secondly, the vehicle should not have been released to the respondent No. 2.
2.3 Ld. Counsel Sh. Sanjeev Soni, Advocate for the petitioner request that on filing of report under section 173 Cr.P.C, either the court may take cognizance on police report or Contd.....
6the Magistrate may direct for re-investigation or in case final report is accepted the complainant should be given an opportunity to prove his case. This is also the position of section 210 Cr. P. C. The petitioner is registered owner of the vehicle, after registration of the FIR, it was seized from respondent No. 2 and then it was released to the petitioner vide order dated 30.11.2005, however, by order dated 30.06.2008 it has been released to the respondent No. 2 on superdari whereas, there was no flaw in order directing release of the vehicle to the petitioner and on the basis of hand writing expert opinion, when the same are in conflict, it is not a ground to deny the possession of vehicle to the petitioner. The petitioner relies upon the following case laws/precedents -
(i).Harjinder Singh Vs State of Punjab AIR 1985 (SC)-Section 323 Cr. P. C was discussed that the police report and case on a complaint, cannot be clubbed when prosecution version in two cases is different.
(ii).Kishore Kumar Gyan Chandani Vs G. D Mehrotra AIR 2002 (SC)-Where the Magistrate does not accept the final report of the police, the right of complainant to file regular complaint is not taken away.
(iii).Bhagwat Panday & Ors. Vs State of Bihar 1986 Crl. L. J-
Section 210(3) was dismissed that when there is police investigation in respect of same offence and magistrate does not take cognizance on the police report, the court may proceed with the complaint.
Contd.....
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(iv).Dina Bandhu Dass & Ors. Vs Batak Rusna Dass & Ors. 1991 Crl. L. J- Section 202 & 210 were discussed that during the pendency of the complaint case, the charge sheet was submitted under section 447/341/323/294/34 IPC was filed, Magistrate took cognizance under section 395 IPC on the complaint case, however, it was held not legal with further conclusion that if the police report does not relate to any accused in the complaint case or Magistrate does not take cognizance on police report, Magistrate may proceed with the inquiry or trial which was stayed by him in accordance with provision of law.
(v).Chitra Narain Vs M/s NDTV 2004 I AD (Delhi) 533- Provisions of compliant under section 202 of Cr. P. C were discussed, in a complaint under Copy Right Act and it was held that Inquiry under section 202 is not trial and trial commences after issue of process.
(vi).Vedantha Vs Marigowda AIR (38) 1951- Section 202 & 203 Cr. P. C, 1898 were discussed that complainant should be given an opportunity to substantiate the allegations.
(a)M/s Shiva Leasing Co. Vs State 79 (1999) DLT 148- Revision petition is not maintainable in respect of interlocutory order being barred under section 397(2) Cr. P. C. & custody of property under section 451 Cr. P. C is an interim order.
(b)Magan Bihari Lal Vs State of Punjab AIR 1977 (SC)-While discussing section 45 of Indian Evidence Act, it was held that the evidence of hand writing expert is merely an opinion and there cannot be conviction solely on expert opinion without substantiate corroboration.
(c)Sohan Lal & Anr. Vs Lala Mangi Lal & Anr. AIR 1981-In a civil suit based on promissory note, there were allegations of forgery, the hand writing expert opinion was considered under section 45 of Indian Evidence Act, the parties examined their hand writing experts and it was held that opinion of anyone should not be preferred on conjectural reasons. 2.4 Whereas, Ld. Counsel Sh. S. D. Sharma, Advocate for respondent No.2 Hitesh Bhutani requests that a complaint under section 200 read with section 156 (3) Cr. P. C was filed & Ld. Metropolitan Magistrate, Delhi directed for registration of an FIR Contd.....
8which result into final report, it was accepted. The respondent No.2 along with her husband were in debt, the investigating officer collected the receipt cum undertaking dated 07.07.2004, CFSL Rohini & CFSL Calcutta gave concurrent opinion with regard to similarity of writing of Asha Handa on such undertaking and CFSL Calcutta gave definite opinion in respect of signature of Asha Handa. Thus it was a false complaint, no offence under section 406 IPC is made out and trial court has rightly concluded in accepting the final report. No scope was left for further investigation. Since the petitioner availed opportunity of investigation, the investigation was carried as per Chapter XII of Cr. P. C. The matter which are investigated under Chapter XII of Cr. P. C no scope left for further inquiry Chapter XV of The Code, the revision petition is without merit.
Since the trial court has accepted the final report that it was a false case got registered, the hand writing expert opinion was in favour of respondent No.2, the vehicle was rightly released to the respondent No.2 & it does not require any interference in the order as the impugned order is as per law and there is no illegality. Otherwise, the revision petition does not lie in respect of interlocutory order and vehicle was released under Contd.....
9section 451 Cr. P. C & revision petition is not maintainable. The revision is also liable be dismissed on this grounds. 2.5 Sh. B. S. Kain, Ld. Addl. PP for State has concurrent submission like respondent no.2, that the orders do not suffer from illegality or incorrectness warranting interference.
3. The contentions of both the sides have been assessed.
At the outset, there are two short issues involved -
(i).Whether the petitioner deserves an opportunity to proceed on the complaint after acceptance of final report filed by the police?
(ii).Whether the petitioner is entitled for release of vehicle which was initially recovered/possessed respondent No. 2 and now it has been given to respondent no. 2?
4.1 In order to appreciate the contentions of both the sides, the statutory provisions of law on cognizance under section 190, provisions of complaint and commencement of proceedings (Chapter XV & XVI) & information to the police and their power to investigate (Chapter XII) of the Code has been considered. I have also an occasion to go through the precedent Tula Ram & Ors. Vs Kishore Singh AIR 1977 SC 2401, wherein an identical situation Contd.....
10was under adjudication that the police filed a final report in respect of the case registered on a complaint under section 200 Cr. P. C & investigation was directed under section 156(3) Cr. P.C & it was held that "in paragraph No. 14 (4).....where a Magistrate orders investigation by the police before taking cognizance under section 156 (3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 of the Code. I have also an occasion to go through the precedent H. S. Bains Vs State (Union Territory of Chandigarh) AIR 1980 SC 1883, wherein it was held, while referring case of Tula Ram (Supra), that when Magistrate orders for an investigation under section 156 (3) and receive a police report under section 173 Cr. P. C, he may do one of the things -
(i).He may decide that there is no sufficient ground for proceeding further and drop action;
(ii).He may take cognizance of the offence under section 190 (1) (b) of the Code on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
(iii).He may take cognizance of the offence under section 190 (1) (a) of the Code on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200 Cr. P. C. If he adopts the third Contd.....
11alternative, he may hold or direct an inquiry under section 202 Cr. P. C, if he thinks fit.
4.2 It is does not require to burden the present judgment by reiterating the reasons, since the answer of issue No.1 lies in the precedent in cases Tula Ram & H. S Bains (Supra), that when a final report is filed under section 173 Cr. P. C, the complainant deserves an opportunity to lead evidence in complaint under section 200 of the Code, by taking cognizance U/s 190(1)(a) of Cr. P. C in respect of the complaint. It is necessary to reflect here that case FIR No.415/2004 was registered on the complaint under section 200 of the Code by the petitioner, Ld. Metropolitan Magistrate, Delhi exercised the power under section 156 (3) Cr. P. C directing investigation, which result into final report and it was accepted. However, on the eve of acceptance of final report, the complaint does not seize to exist since cognizance could be taken under section 200 of the Code in terms of section 190(1)
(a) of the Code. Hence the first issue is answered in favour of petitioner as the trial court order dated 30.06.2008 suffers from illegality and incorrectness by refusing to provide an opportunity to complainant/ petitioner to lead evidence. The revision petition to that extent is allowed and order dated 30.06.2008 to the Contd.....
12extent of declining to lead complainant's evidence is set aside. The petitioner/complaint will appear before the trial court. The trial court will schedule the case for complainant's evidence, however, the present order is not on the merits/ allegations of the case under section 406 IPC but on the procedural aspect, therefore, the court of Ld. Metropolitan Magistrate, Delhi deal the complaint in terms of Chapter XV & XVI of the Code and expression given in the present order would not tantamount to be final opinion on the merits of the case, trial court will form its opinion while dealing with the complaint on merits. 4.3 Now the second issue is taken. Section 451 Cr. P. C deals with disposal of property pending trial in the court. By order dated 30.06.2008 when the court of Metropolitan Magistrate, Delhi accepted the final report, the proceedings came to an end, therefore, there was no occasion to pass an interim order under section 451 Cr. P. C for release of the vehicle. Order under section 451 Cr. P. C could be possible when the trial or proceedings were pending, however, the moment trial court came to the conclusion that the final report is accepted, there was no occasion to pass order for release of vehicle on superdari or terming it being released on superdari till the Contd.....
13decision on appeal or revision to be filed against the order dated 30.06.2008. It is in the domain of revision court/Appellate court to decide whether such kind of order is required to be passed or not. Hence, on the eve of accepting final report and release of the vehicle to respondent No.2, in fact, it was like final order under section 452 Cr. P. C, the revision is maintainable in respect of such order.
Since, the vehicle was released to respondent No.2 on the ground that there was hand writing expert opinion and on the same basis final report was accepted and prior to order dated 30.06.2008 the impugned vehicle was with the petitioner/complainant. The petitioner has been given an opportunity by this judgment to lead evidence in terms of Chapter XV & XVI of the Code and issue No.1 has already been decided in favour of the petitioner/complainant, hence the petitioner being registered owner of the vehicle is entitled for possession of maruti zen car during the pendency of the complaint, the second order dated 30.06.2008 to that extent is set aside, since it also suffers from infirmity on two counts firstly, releasing it under section 451 Cr. P. C., secondly, the petitioner being registered owner of the vehicle was declined its release on Contd.....
14the basis of hand writing expert opinion on the undertaking. The vehicle will be released to the petitioner subject to furnishing superdaginama in the sum of Rs. 1 lac with a condition to produce the same as and when required and not to transfer the same, superdaginama will be furnished to the satisfaction of Ld. Metropolitan Magistrate, Delhi, the respondent no.2 will appear before the trial court with vehicle/car .
Again, release of vehicle is an interim arrangement, therefore, the expression being given in the present order would not be tantamount opinion on the merits of the case, trial court may decide the further issues may arisen with regard to the vehicle while dealing with the complaint, after evidence or inquiry report under Chapter XV of the Code.
5. In these terms, the present revision petition is allowed.
Copy of the this judgment be sent to trial court along with original record for compliance and proceedings as per law. The complaint will appear before court of Ld. Metropolitan Magistrate, Delhi on 15.07.2009 for proceeding in the complaint. The respondent no. 2 will appear for production of Car.
(Announced in the open (INDER JEET SINGH)
court on 13.07.2009) ADDL. SESSION JUDGE, WEST DISTRICTÂ02
TIS HAZARI COURTS, DELHI
Contd.....