Delhi District Court
Pushpa Devi vs Laxman Singh Gosain on 2 April, 2024
Pushpa Devi Vs. Laxman Singh Gosain & Anr.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CR NO.:- 145/2022
CNR NO.:- DLWT01-005323-2022
IN THE MATTER OF :-
Pushpa Devi
W/o Sh. Joginder Singh,
R/o 122, Nagai Khurd, Qumaspur,
Sonepat, Haryana .... Revisionist
VERSUS
1. Laxman Singh Gosain
S/o Sh. Pratap Singh,
G-173, 2nd Floor, Vikas Puri,
New Delhi-110018
2. Tejpal Singh
S/o Sh. Madan Lal
R/o T-551/8, Munna Gali
Baljeet Nagar, New Delhi .... Respondents
Date of institution of the revision petition : 03/06/2022
Date on which judgment was reserved : 06/03/2024
Date of judgment : 02/04/2024
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2024.04.02
16:15:52
+0530
CR No. 145/2022 Page No.1 of 43
Pushpa Devi Vs. Laxman Singh Gosain & Anr.
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal revision petition under section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the revisionist against the order dated 04/01/2022 ('hereinafter referred to as 'impugned order') passed by Sh. Abhinav Pandey, Ld. MM-04, West District, Tis Hazari Courts, Delhi, in complaint case No. 442/2021, PS Moti Nagar, titled as "Pushpa Devi Vs. Laxman Singh Gosai & Anr." thereby application u/s. 156 (3) Cr.P.C. of the complainant (revisionist herein) was dismissed.
In the present revision petition, the revisionist has prayed to call the record and to set-aside the impugned order dated 04/01/2022 passed by the Ld. Trial Court and to give direction to SHO, PS Moti Nagar to register the FIR against the respondents.
2. Brief facts necessary for just adjudication of the present revision petition as stated in the present revision petition are that the present revision petition has been filed by the revisionist against the impugned order dated 04/01/2022 passed by the Ld. Trial Court thereby the application u/s. 156 (3) Cr.P.C. of the revisionist was dismissed. The respondents had approached the revisionist and offered partnership business for Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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running Restaurant and Bar and informed the revisionist that the business is very profitable and induced the revisionist by offering 35% share in the business and also informed the revisionist that she will become sleeping partner and need to invest money only and respondents will be responsible and liable for all the affairs of the business. On such inducement, revisionist entered into a partnership deed dated 21/07/2018 with respondents in the partnership firm namely M/s P.D. Enterprises and made the revisionist as sleeping partner and started "Triple 333 Lounge Bar Restaurant" (a unit of M/s P.D. Enterprises) at I-8, 1 st and 2nd floor, Kailash Park, Basai Darapur, New Delhi. Revisionist had invested the amount on the inducement of the respondents in the partnership business. The respondents were having the entire control of all day to day affairs of the business of M/s P.D. Enterprises and were in charge and having possession of the documents, cash, lock and key of the premises and also became the authorized signatory of the bank accounts of the partnership firm and took the full control of the bank transactions. Respondents did not render true accounts of the partnership firm and showed losses to the revisionist by doing fabrication in the accounts and took further money from the revisionist from time to time on the pretext of requirements for interior and other needs of the business whereas the truth was entirely different as business was going very good and respondents were receiving huge money. The revisionist on having apprehension of such fraud, when inspected few of the stock registers, bills, challans, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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books of account, bank accounts etc., same showed mismatch with the books of account shown by the respondents to the revisionist and the respondents were confronted with such documents but respondents failed to give suitable and satisfactory response. Respondents alongwith other associates and beneficiaries were cheating and misfeasance of firm funds since beginning due to which firm suffered huge losses for which respondents and their associates are liable. Respondents have fabricated expenditure accounts booklets, reflecting bogus payments to fictitious persons, withdrawn huge cash amount from the bank account in order to cause wrongful gain to respondents and their other associates and caused unlawful loss to the firm and the revisionist and thereby cheated the revisionist. Many registers and books were found missing which were in possession of the respondents and to be recovered from the respondents in order to assess the actual loss caused to the revisionist and the firm by the respondents. In the second week of April 2019, the revisionist came to know that the respondents were carrying illegal activities in the said business premises to which the revisionist several times raised objection and asked to remit the true accounts of the firm and told them to discontinue the firm and pay the actual amount of profit alongwith the amount of capital invested in the firm to the revisionist but the respondents instead of rendering the true account and profit of the revisionist, in order to grab the share of the revisionist in the partnership business served a legal notice dated 06/11/2019 and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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alleged that the revisionist had requested them to get retire from the partnership and the revisionist settled all claims for Rs.8,00,000/- which was totally false and concocted story of the respondents. The said notice was duly replied by the revisionist through Advocate vide reply dated 09/11/2019. Revisionist in order to save the further illegal loss, served legal notice dated 14/11/2019 and also intimated the bank officials regarding the illegal activities of the respondents and requested them to freeze the bank account of the firm so that respondents shall not be able to withdraw funds from the bank accounts, but bank official did not take any action. The respondents have withdrawn Rs.29,00,000/- from the bank account and failed to give any satisfactory response as to why they have withdrawn such huge cash amount. The respondents have started illegal activities in the restaurant such as Gambling and served liquor without license for which an FIR No. 156/2019 u/s 3/4/5/9/55 of Delhi Public Gambling Act and FIR No. 103/2020 u/s 33 Delhi Excise Act & Section 188 of IPC were registered against the respondents. On one occasion, when the revisionist had visited the business place, she saw that respondents have illegally and arbitrary removed expensive items from the premises such as crockery, music system, other interior items, accounts books/documents of the business etc. and committed theft of goods. By forged and fabricated books of accounts, respondents with their associates have managed to embezzle approximately more than Rs.75,00,000/- including the investment of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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revisionist by means of illegal modus operandi adopted by the respondents and their associates. The revisionist had given written complaint to the SHO, PS Moti Nagar, vide DD No. 51A dated 02/12/2020 and also to the concerned ACP and DCP. When the police officials had not taken any action on the complaint of the revisionist, she filed application u/s 156(3) Cr.P.C. with complaint u/s 200 Cr.P.C. before the Ld. Trial Court .
3. The revisionist has challenged the impugned order on the grounds, as mentioned in the present revision petition.
Grounds of revision- Ld. Trial Court has failed to appreciate that as per the contents of the complaint and evidence on record, prima-facie cognizable offence is made out and it is mandatory for the police to register the FIR and investigate the matter as per provisions of law. Ld. Trial Court has failed to appreciate that as per Lalita Kumari Vs. State of UP case, the registration of FIR is mandatory if the information discloses commission of cognizable offence and no preliminary enquiry is permissible in such a situation. Ld. Trial Court has failed to appreciate that the Investigating Officer, PS Moti Nagar had not investigated the complaint of the revisionist and also not collected accounts records and other articles taken away by the respondents without any authority. Ld. Trial Court has failed to appreciate the contradiction on the part of the respondents and the report of the Investigation Officer. In the legal notice dated 06/11/2019, it is Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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mentioned that the respondents have paid Rs.8,00,000/- on the request of the revisionist towards full and final settlement to exit from the partnership firm. On the contrary, in the ATR filed by the IO, it is stated that the revisionist has demanded Rs.50,00,000/- and respondents have paid Rs.44,50,000/- to the revisionist. Ld. Trial Court has failed to appreciate that respondents have admitted the liability of Rs.44,50,000/- in the police investigation as per the ATR filed by the IO but no receipt/acknowledgment or date of payment is mentioned by investigating officer in the ATR. Ld. Trial Court has failed to appreciate that the ATR filed by the IO is based on assumption and not on truth as IO has not submitted any concrete evidence in support of ATR. Ld. Trial Court has failed to appreciate that all the evidences are showing that no payment has been made to the revisionist. Ld. Trial Court has failed to appreciate that the case is of cheating, criminal misappropriation and fabrication of documents and amount of fraud of more than Rs.75,00,000/- which cannot be ascertained unless the FIR is registered against the respondents. The present revision petition has been filed within stipulated period. The revisionist has not filed any other or similar criminal revision petition in respect of the above- mentioned matter before this Court or in any other Court of law.
4. The respondents have contested the present revision petition of the revisionist by filing detailed reply, wherein they denied the contents of the present revision petition and prayed for Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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dismissal of the same.
It is mentioned in the reply that the revisionist and respondents entered into partnership deed dated 21/07/2018 to run the restaurant and it was mutually agreed that respondents shall be working partners and the revisionist will be sleeping partner. It was also agreed that husband of the revisionist namely Joginder Singh, who is Inspector in Delhi Police and her son Dinesh Antil will not interfere in the day to day affairs of the partnership business. But after some time, Joginder Singh and Dinesh Antil started hindrance in day to day affairs with the respondents. Dinesh Antil threatened the respondents that if the respondents objected to any activity done by him, then, he will implicate them in false and fabricated case. Son of the revisionist started distributing the liquor in the restaurant and husband of the revisionist also used to organize party for the police personnel and friend in which prohibited items were used and supplied without the consent of the respondents. Due to several problems and loss in the business, the respondents requested Joginder Singh and Dinesh Antil to close the business, settle all the accounts and dissolve the partnership firm or to leave the partnership firm. Thereafter, Joginder Singh and Dinesh Antil started harassing the respondents and demanded Rs.50,00,000/- in case the respondents wanted to close the partnership firm or resignation by the revisionist. The respondents in order to save themselves from the false criminal cases arranged Rs.44,50,000/- and paid to Joginder Singh, Dinesh Antil and the revisionist, out Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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of which Rs.8,00,000/- was paid through cheque bearing no.001205 drawn on ICICI Bank. Despite receiving the aforesaid amount, Joginder Singh, Dinesh Antil and the revisionist further harassed the respondents and further demanded Rupees One Crore from the respondents and threatened the respondents to implicate in the false criminal cases in the different police stations. Thereafter, the respondents had sent a legal notice dated 06/11/2019 and requested the revisionist to sign the resignation. On 15/11/2019, Dinesh Antil and his friends had forcibly and illegally entered in the restaurant and manhandled and beaten the Manager namely Taran Jit Singh. Dinesh Antil had forcefully and illegally taken the files relating to the partnership firm and cash of Rs.1,25,000/- and 100 number call was made but no action was taken. On 17/11/2019, Dinesh Antil and his friends entered in the restaurant and taken away laptop and some remaining files of partnership firm. On 21/02/2020, Dinesh Antil, his cousin and friends forcefully entered in the second floor of the restaurant in the absence of the respondents and started beating the staff and snatched the keys of cash box and thereafter, the respondents reached at the restaurant and found that aforesaid persons were taking liquor. Thereafter, Dinesh Antil himself called at 100 number. Respondent no.2 had also made a call at 100 number. Joginder Singh, Dinesh Antil and the revisionist in collusion with other persons and to pressurize got registered FIR No. 103/2020. Thereafter, the respondents sent complaint dated 01/03/2020 to SHO, PS Moti Nagar and other senior police officials to take Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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action against Joginder Singh, Dinesh Antil, revisionist and their associates. On 04/03/2020, Dinesh Antil and his friends again forcefully entered in the restaurant and taken away two debit swapping machines and the employee of the respondents namely Kahar Singh made call at 100 number. Joginder Singh, Dinesh Antil and the revisionist in order to create pressure upon the respondents got registered the false FIR at PS Moti Nagar. The police officials being from the same department of Joginder Singh are not helping the respondents and also not taking any action against Joginder Singh, Dinesh Antil and the revisionist. The respondents have sent their complaint to the SHO, PS Moti Nagar, DCP Rajouri Garden and Commissioner of Delhi Police but no action has been taken against Joginder Singh, Dinesh Antil and the revisionist till date. The respondents had filed a criminal complaint before the Ld. MM and vide order dated 14/09/2021 passed by the Ld. MM, application u/s 156(3) Cr.P.C. was dismissed.
5. This Court heard the arguments on the present revision petition advanced by Ld. Counsel for the parties. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned order is not an interlocutory order and the present revision petition against the impugned order is maintainable and impugned order is liable to be set-aside on the grounds, as mentioned in the present revision Digitally signed by VIJAY SHANKAR VIJAY Date:
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petition. On the other hand, it was submitted by Ld. Counsel for the respondents that the present revision petition is not maintainable as the Ld. Trial Court has passed the impugned order in accordance with law and there is no merits in the present revision petition and the same is liable to be dismissed.
The counsel for the revisionist in support of his contentions has relied upon case law titled as "Lalita Kumari Vs. Government of Uttar Pradesh and Others. {(2014) 2 Supreme Court Cases 1}".
6. By way of present revision petition, the revisionist has challenged the order dated 04/01/2022 passed by the Ld. Trial Court. The impugned order is reproduced as under:-
"04.01.2022 Proceedings are being conducted through video conferencing via CISCO WEBEX MEETINGS in view of the Office order of the Hon'ble High Court of Delhi bearing no. 896/RG/DHC/2021 dated 30.12.2021.
ORDER Present: None.
1. Vide this order, the application of complainant u/s 156(3) Cr.P.C. is being disposed of. The complainants have filed a complaint u/s 200 Cr.P.C. alongwith the present application u/s 156(3) Cr.P.C. stating that the accused persons approached her and offered Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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partnership business of running Restaurant and Bar. They had allegedly offered 35% share in the said business to the complainant. It is further alleged that as per the agreement, the accused persons were to be responsible and liable for all the affairs of the business and she was to be a sleeping partner.
2. It is further alleged that an agreement was executed between the complainant and the accused persons Laxman Singh and Tejpal Singh on 21.07.2018 for partnership of firm namely M/s P.D. Enterprises and made sleeping partner in the business of Restaurant & Bar and started "Triple 333 Lounge Bar Restaurant" (a unit of M/s P.D. Enterprises) at I-8, 1st and 2nd floor, Kailash Park, Basai Darapur, New Delhi and she invested the amount on the inducement of the accused in the partnership business.
3. It is further alleged that the accused persons were having entire control and having possession of all the documents, cash and lock and keys of the premises and also become authorized signatories of the bank accounts of the partnership firm and had taken the full control over the bank transactions.
4. It is further alleged that the accused persons did not render true account of the partnership firm and showed losses to the complainant by fabricating the account books, and took money from the complainant from time to time on the pretext of requirement for interior and other needs of the business.
5. It is further alleged that when the complainant inspected few of the stocks registers, bills, challans, books of account etc, it Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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showed mismatch with the books of accounts showed by the accused persons to her and the accused persons were confronted with such documents, but they were failed to give any suitable and satisfactory response.
6. It is further alleged that the accused persons have fabricated expenditure account booklets, reflecting bogus payments to fictitious persons, withdrawn huge cash accounts from the bank in order to cause wrongful gain to themselves and their associates and caused unlawful losses to the firm and the complainant. It is further alleged that many registers and books are found missing which is in possession of the accused no. 1 and 2, and to be recovered from accused persons in order to access the actual loss caused to her and the firm by the accused persons.
7. It is further alleged that in April, 2019, she came to know about illegal activities of the alleged persons, so she told them to discontinue the firm and pay the actual amount of profit alongwith the amount of capital invested by her in the firm.
8. It is further alleged that the accused persons have committed cheating with the complainant by fabricating the documents and not rendered the true accounts of the firm and complainant in order to save the further illegal loss, and vide legal notice vide dated 14.11.2019, the complainant also intimated the bank officials regarding the illegal activities of the accused persons and requested them to freeze the bank account of the firm so that accused persons shall not be able to withdraw funds from the bank accounts, but bank officials did not taken any action and it seems the bank officials had Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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also joined their hands with the accused persons and helped them to embezzle the funds of the firm and complainant. It is alleged that the accused persons have withdrawn Rs. 29,00,000/- from the bank account and failed to give any satisfactory response as to why they have withdrawn such a huge cash amount.
9. It is further alleged that the accused persons were doing illegal activities of serving liquor in the firm and also of gambling for which the FIR No. 156/19 dated 03.04.2019 U/s 3/4/5/9/55 of Delhi Public Gambling Act and Case FIR No. 103/20 dated 22.02.2020 U/s 33 of Delhi Excise Act and Section 188 of IPC had been registered against them.
10. It is further alleged that the accused persons, in order to cause further loss and to cheat the complainant, have also illegally removed expensive items from the firm such as music system, crockery and other interior items etc.
11. It is further alleged that the accused persons by forgery and fabrication of books of accounts, have embezzled more than Rs. 75,00,000/-
including the investment of the complainant, by means of illegal modus operandi adopted by accused persons and their associates and they have conspired to harm her and the firm.
12. It is further alleged that the accused persons have illegally withdrawn cash from the account of the firm.
13. It is further alleged that the above facts and circumstances clearly prima- facie reflect that since beginning of the deal, accused persons Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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had dishonest intention to cheat the complainant, and accused persons and their associates have committed the criminal offences of forgery, fabrication of documents, cheating, criminal breach of trust defamation, misfeasance of funds, stealing of records, theft of money and criminal conspiracy for enrichment to themselves and wrongful loss to the P.D. Enterprises and the complainant, for which they are liable to be prosecuted and punished. Hence, complainants have filed the present complaint with the prayer of registration of FIR in the present case.
Status report was called from the SHO of PS concerned.
As per the Status report, filed by the IO, it is stated that :-
(a) That the complainant and alleged had entered into an agreement of running a firm namely M/S PD Enterprises (Triple 333 Restaurant).
(b) That as per agreement complainant to be a sleeping partner and the alleged persons were to be be in the position of working partners. It was further agreed that the husband of the complainant who is Inspector in Delhi Police and her son shall not interfere in the running of the business of the partnership.
(c) That contrary to the agreement husband and son of the complainant start organizing parties of their friends in the said restaurant and started serving liquor in the said parties. Though Licence P-10 for that particular day was used to be taken. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(d) That due to day to day interference by alleged son of the complainant the alleged persons opted to exit the complainant from the partnership.
(e) That alleged the complainant demanded Rs.
50,00,000/- to exit from the partnership. Finally the matter was settled in Rs.44,50.000/-.
(f) That the alleged arranged Rs. 44,50,000/- by taking loan of Rs. 38,00,000/- and made payment to the complainant.
It is further submitted in the status report that from the above facts and inquiries made into the matter, it is found that the complainant was to be sleeping partner in the firm and her husband and son will not interfere in day to day working of the firm but they had been visiting the said restaurant on one or the other occasion, and after settlement between the parties, the alleged persons have made payment of Rs.44,50,000/- to the complainant as full and final payment for exiting from the partnership. The status report concluded that no cognizable offence was found to be made out, and the dispute is civil in nature.
Arguments heard. Record perused.
The judgment of Hon'ble Supreme Court in Lalita Kumari case is a mandate only for the police who are bound to register FIR on facts disclosing the commission of a cognizable offence. The said judgment is not a mandate upon the Court to necessarily direct register of FIR in every such matter. Section 156(3) Cr.P.C. uses the word "may" and therefore, gives a discretionary power to the Court. From the facts Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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of the case, the undersigned is of the opinion that the assistance of investigating agency is not required in the present case for the collection of evidence. The facts and circumstances of the present case are such that the complainant is in possession of entire evidence, further the complainant can produce the witnesses, by herself, or through the Court. Thus, it does not appear to be a case where the police assistance is required for the purpose of collection of evidence. Further, if in future, any need would arise, police assistance can be taken U/s 202 Cr.P.C. None of the evidence in the present case is beyond the reach of the complainant. Accordingly, the present application u/s 156 (3) of Code of Criminal Procedure is dismissed.
However, on the facts alleged in the complaint, I take cognizance and give an opportunity to complainant to prove his allegations. The complainant is called upon to bring pre-summoning evidence on 24.08.2022.
(ABHINAV PANDEY) MM-04:WEST:THC:DELHI 04.01.2022 "
7. For the sake of ready reference, section 397 Cr.P.C. is reproduced as under:-
Section 397:- Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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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.
Explanation- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) 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.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
8. A plain reading of Section 397 Cr.P.C. makes it manifest that Section 397(1) Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court before Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the revisional court i.e. the High Court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section. Now, it is significant to note that Section 397 (2) Cr.P.C. mandates that the power of revision conferred by sub-section (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order in any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under section 397 (2) Cr.P.C. to entertain revision against an interlocutory order.
The term "interlocutory order" as mentioned in section 397 (2) Cr.P.C. denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. An order which is pure and simple interlocutory order, which do not decide anything finally is to be considered as interlocutory order and no revision against that interlocutory order is maintainable under section 397(1) Cr.P.C. in view of the express bar imposed under section 397(2) Cr.P.C.
There are three categories of orders that a Court can pass- final, intermediate and interlocutory. There is no doubt that in respect of a final order, a Court can exercise its revision jurisdiction- that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the Court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Court can exercise its revision jurisdiction since it is not an Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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interlocutory order. An intermediate order is one which is interlocutory order in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
9. It was held by Hon'ble Supreme Court of India in case titled as " Amar Nath & Ors. Vs. State of Haryana & Anr." {(1977) 4 SCC 137} that:-
"The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well- known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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It was also held by Hon'ble Supreme Court of India in case titled as " V.C. Shukla Vs. State through C.B.I." (AIR 1980 SC 962] that:-
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained, in contradistinction to a final order.
In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.
It was also held by Hon'ble Supreme Court of India in case titled as "Poonam Chand Jain and Anr. Vs. Fazru"
{(2004) 13 SCC 269} that:-
"Wharton's Law Lexicon (14th Edn. p. 529) defines interlocutory order thus: "An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
"Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all." Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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The principles/guidelines regarding the scope of criminal revision petition have also been laid-down by Hon'ble Supreme Court of India in case titled as "Girish Kumar Suneja Vs. Central Bureau of Investigation" {(2017) 14 SCC 809} and it was held that :-
"15. While the text of sub-section (1) of Section 397 Cr.P.C. appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub-section (2) thereof. There is a complete prohibition on a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
16. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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interlocutory order.
21. The concept of an intermediate order was further elucidated in Madhu Limaye Vs. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind - an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour.
Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceeding would continue.
22. The view expressed in Amar Nath and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Madhu Limaye was followed in K.K. Patel V. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K.Patel case, SCC p.201, para11) "11. ..... It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397 (2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v.
State of Haryana, Madhu Limaye v. State of Maharastra, V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising the extraordinary discretionary power available under Section 397 Cr.P.C."
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It was held by Hon'ble High Court of Delhi in case titled as " Neelam Mahajan and Anr. Vs. The State & Ors." {(2016) 229 DLT (CN) 29} that:-
"........ In this regard catena of judgments of Hon'ble Supreme Court of India has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final and simultaneously, an interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. Therefore, in the considered opinion of this Court, if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could be attached to the order."
10. By way of present revision petition, the revisionist has challenged the impugned order dated 04/01/2022 passed by the Ld. Trial Court thereby application u/s. 156 (3) Cr.P.C. of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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revisionist/ complainant was dismissed.
Now this Court has to see as to whether the impugned order is interlocutory, intermediate or final order.
It was held by Hon'ble High Court of Delhi in case titled as "Nishu Wadhwa Vs. Siddharth Wadhwa & Anr." {WP (CRL 1253/2016 and Crl. MA No.6591/2016 decided on 10/01/2017} that "therefore, an order dismissing or allowing an application u/s. 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable".
Hence, the present revision petition qua the dismissal of the application u/s. 156 (3) Cr.P.C. is maintainable.
11. Now this Court shall proceed to decide the present revision petition on merits.
By way of present revision petition, the revisionist has challenged the impugned order dated 04/01/2022 passed by the Ld. Trial Court thereby application u/s. 156 (3) Cr.P.C. of the revisionist/ complainant was dismissed.
Before proceeding further, it is relevant to discuss law relating to Section 156 (3) Cr.P.C.
The scheme of Cr.P.C. is such that an Officer In-charge of a Police Station has to initiate investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the first information report, on receiving the information of the commission of a cognizable offence. From the plain reading of Section 154 (1) Cr.P.C., it is manifestly clear that if any Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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information disclosing a cognizable offence is made before an officer incharge of a police station satisfying the requirements of section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form to register a case on the basis of information pertaining to cognizable offence. But when the police officers do not register a case disclosing commission of a cognizable offence and complaint in this regard is made to the Magistrate, then under Section 156 (3) Cr.P.C., the Magistrate empowered under Section 190 Cr.P.C. ' may ' order investigation. The expression used herein is ' may ' and not ' shall ' or ' must '. The expression ' shall ' or ' must' implies that the provision is mandatory and expression ' may ' gives discretion to the Magistrate.
In this regard, it was held by Hon'ble Supreme Court in the case titled as "Devarapalli Lakshinarayana Reddy Vs. V. Narayana Reddy & Ors." {AIR 1976 SC 1672} that:-
"It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words " may take cognizance" which in the context in which they occur cannot be equated with "must take cognizance".
The word " may " gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.
This raises the incidental question:
What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence".
It was held by Hon'ble Delhi High Court in case titled as M/s. Skipper Beverages Pvt. Ltd. Vs. State {2001 IV AD (DELHI) 625} that :-
"A Magistrate must apply his mind before passing an order under Section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.'' Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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It was held by Hon'ble Allahabad High Court in case titled as Gulab Chand Upadhyaya V. State of U.P. {2002 (3) RCR (Crl.) 514} that :-
"The scheme of Cr. P. C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised. Where some "investigation" is required which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example:-
1 Where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or 2 Where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or 3 Where for the purpose of launching a successful prosecution of the accused, evidence is required to be collected and preserved. To illustrate by example, cases may be visualized where for production before court at the trial (a) Sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident, or (b) recovery of case property is to be made and kept Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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sealed, or (c) recovery under Section 27 of the Evidence Act, or
(d) preparation of inquest report, or
(e) witnesses are not known and have to be found out or discovered through the process of investigation".
It was held by Hon'ble Delhi High Court in case titled as "Pawan Verma Vs. SHO, PS Model Town & Ors." {2009(2) JCC 1000 Delhi}, that:-
"It is not that in every case merely on the asking of the petitioner the Court must direct registration of an FIR unless the Court is satisfied with the preliminary evidence which is to be submitted by the complainant with an FIR must be registered..........".
It was held by Hon'ble Delhi High Court in case titled as "Mohd Salim Vs. State" {175(2010) DLT 473} that :-
"The use of the expression may in Sub- section (3) of Section 156 of the Code leaves no doubt that the power conferred upon the Magistrate is discretionary and he is not bound to direct investigation by the police even if the allegations made in the complaint disclose commission of a cognizable offence.
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In the facts and circumstances of a given case, the Magistrate may feel that the matter does not require investigation by the Police and can be proved by the complainant himself, without any assistance from the Police. In that case, he may, instead of directing investigation by the Police, straightaway take cognizance of the alleged offence and proceed under Section 200 of the Code by examining the complainant and his witnesses, if any. In fact, the Magistrate ought to direct investigation by the Police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the Police. The Magistrate is not expected to mechanically direct investigation by the Police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the police under section 156(3) of the Code. Of course, if the allegations made in the complaint require complex and complicated investigation of which Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the Police. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police".
It was held by Hon'ble High Court of Delhi in case titled as "Mohd. Yusuf Khan Vs. State & Anr." {2014 (3) JCC 1665} that :-
"The Magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in a routine and casual manner. Criminal law is not expected to be set into motion on the mere asking of a party.....'' It was held by Hon'ble High Court of Delhi in case titled as "Kusum Lata Vs. State of NCT of Delhi & Ors." {Crl. MC No.1880/2020 decided on 19/04/2021 by the Hon'ble High Court of Delhi} that :-
"it is clear from the scheme of section 156, where the police fail in its duty to register and investigate a cognizable Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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offence, the aggrieved person may file a complaint before the concerned Magistrate. Where the Magistrate receives a complaint the word 'may' give a discretion to the Magistrate in the matter. Two courses are open to the Court; either take cognizance under Section 190 or may forward the complaint to the police under Section 156 (3) Cr.P.C. for investigation. Likewise, in the facts and circumstances of a particular case, Magistrate may take cognizance on the basis of the complaint instituted before him and may adopt the procedure provided under sections 200, 202 of Cr.P.C. and if there is no substance in the prima facie evidence adduced by the complainant, the complaint may be dismissed under section 203 Cr.P.C. In view of above facts, observation made by the courts below and the law discussed, the material facts of the present case are well within the knowledge of the petitioner including the identity of the accused persons. Hence, she can establish her case while leading evidence before the trial court under section 200 of Cr.P.C. Therefore, I find no illegality or perversity in the orders passed by the Trial Court and Appellant Court".
It was held by Hon'ble High Court of Delhi in case titled as "Anjuri Kumari Vs. The State Govt. of NCT of Delhi & Ors." {WP (CRL) 1210/2023 and CRL. M.A.11298/2023 decided Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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on 29/11/2023 by the Hon'ble High Court of Delhi} that :-
"In view of the discussions mentioned hereinabove, I am of the view that the directions for investigation under section 156 (3) of the Code cannot be given by the Magistrate mechanically. Such a direction can be given only on application of mind by the Magistrate. The Magistrate is not bound to direct investigation by the police even if all allegations made in the complaint disclose ingredients of a cognizable offence. Each case has to be viewed depending upon the facts and circumstances involved therein. In the facts and circumstances of a given case, the Magistrate may take a decision that the complainant can prove the facts alleged in the complaint without the assistance of the police. In such cases, the Magistrate may proceed with the complaint under Section 200 of the Code and examine witnesses produced by the complainant. The Magistrate ought to direct investigation by the police if the evidence is required to be collected with the assistance of the police. In the present case, all the facts and evidence are within the knowledge of the petitioner, which he can adduce during the inquiry conducted by the learned Metropolitan Magistrate under Section 200 of the Code."
12. Counsel for the revisionist in support of his contentions has relied upon the case law titled as Lalita Kumari Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(supra).
After referring the Lalita Kumari case (supra), it was held by Hon'ble Supreme Court of India in case titled as "Ramdev Food Products Private Limited Vs. State of Gujarat"
{ AIR 2015 SC 1742} that :-
"20 It has been held, for the same reasons, that direction by the Magistrate for investigation Under Section 156(3) cannot be given mechanically. In Anil Kumar v. M.K.Aiyappa : (2013) 10 SCC 705, it was observed:
11. The scope of Section 156(3) Code of Criminal Procedure came up for consideration before this Court in several cases. This Court in Maksud Saiyed case : (2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction Under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Code of Criminal Procedure, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter Under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation Under Section 156(3) Code of Criminal Procedure, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
The above observations apply to category of cases mentioned in para 120.6 in Lalita Kumari (supra).
22. Thus, we answer the first question by holding that the direction Under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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sufficient ground to proceed". Category of cases falling under Para 120.6 in Lalita Kumari (supra) may fall Under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."
13. The criminal complaint of the complainant/ revisionist u/s. 200 Cr.P.C. is pending before the Ld. Trial Court for pre-summoning evidence.
In the ATR filed by ASI Kanwar Singh before the Ld. Trial Court, it is mentioned that "...from the above facts and inquiries made in to the matter it is found that the complainant was to be sleeping partner in the firm and her husband and son will not interfere in day to day working of the firm. but they had been visiting the said restaurant on one or the other occasion. Now, after settlement between the parties, the alleged persons have made payment of Rs.44,50,000/- to the complainant as full and final payment for exiting from the partnership. In view of the above, it is found that the matter is related to business dispute. Also, in view of the fact that the alleged persons have made payment to the complainant for her exiting from the partnership no cognizable offence is found to be made out..."
In the complaint case before the Ld. Trial Court, the revisionist/complainant had filed the photocopies of partnership deed, payment details, copies of FIRs etc. Filing of copies of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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aforesaid documents shows that all the documentary evidence are within the reach and knowledge of the revisionist/complainant and nothing is to be collected for which the assistance of the police is required. The complainant/revisionist in para 6 of her complaint u/s 200 Cr.P.C. has also mentioned that she inspected few of the stock registers, bills, challans, books of accounts and bank accounts.
In view of the above, it is clear that the parties are ascertained. The facts are within the exclusive knowledge of the revisionist/complainant. There is nothing for which the police assistance is additionally necessary to be called for. The revisionist/ complainant is in a position to lead evidence in the matter. The evidence is within the reach of revisionist/complainant and no custodial interrogation of accused is necessary for recovery of article or discovery of fact.
14. It is well settled law that scope of revisional jurisdiction is very limited and same cannot be exercised in a routine manner.
Applying priori and posteriori reasonings and the aforesaid case laws, this Court is held that there is no illegality, impropriety and infirmity in the impugned order passed by the Ld. Trial Court. Accordingly, the present revision petition of the revisionist is dismissed. No order as to costs. Nothing stated herein shall tantamount to be an expression of opinion on the merits of the case. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Trial Court Record be sent back alongwith the copy of this judgment. Revision file be consigned to record room after due compliance.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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