Delhi District Court
Brijesh Shukla S/O Sh. G. C. Shukla vs M/S T. R Sawhney Motors Pvt. Ltd on 21 September, 2013
In the court of Additional Sessions Judge03 (NE), Room no.
53, Karkardooma Courts, Delhi.
Cr. Appeal no. 03/12
Arising out of C.C. no. 34/2010
U/s 340 of Cr PC
PS Karawal Nagar
Brijesh Shukla s/o Sh. G. C. Shukla
R/o B79B, Gali no. 7, Shiv Vihar PhaseI,
Karawal Nagar, Delhi110094.
...Appellant / Complainant
Versus
1. M/s T. R Sawhney Motors Pvt. Ltd
through Directors at 33 & 34 Harichand Mela
Ram Complex, East Gokalpur, Main Wazirabad
Road, Delhi110094.
2. Rakesh Bharajdwaj
Vice President
M/s T. R. Sawhney Motors Pvt. Ltd
3. Arvind Ranjan
Engineer Maruti True Value
M/s T. R. Sawhney Motors Pvt. Ltd
4. Deepak Bhatnagar
M/s T. R. Sawhney Motors Pvt. Ltd
Cr. A. no. 03/12 1/7
5. Vijay Tandon
M/s T. R. Sawhney Motors Pvt. Ltd
6. Anil Mishra (Manager Account)
M/s T. R. Sawhney Motors Pvt. Ltd
7. Manoj Kumar (Team Leader)
M/s T. R. Sawhney Motors Pvt. Ltd
At 33 & 34 Hari Chand Mela Ram Complex,
East Gokalpur Main Wazirabad Road, Delhi110094.
8. Bhupinder Singh ASI
IO PS Harsh Vihar,
Delhi. ... Respondents
9. The State
... Respondent no.9
Date of filing : 01.03.2012
Date of Institution : 02.03.2012
Decision reserved on : 21.09.2013 (forenoon)
Date of decision : 21.09.2013
JUDGMENT
(On appeal u/s 341 Cr PC) 1.1 (Introduction) The appellant Brijesh Shukla had purchased a secondhand maruti WagonR car bearing registration no. DL8CQ4000 from respondent no.1 M/s T. Cr. A. no. 03/12 2/7 R. Sawhney Motors Private Ltd for consideration of Rs. 1,80,000/ on 29.01.09, the complainant felt cheated and he filed a complaint u/s 420/465/468/471/406/120B/506/34 IPC. The respondent had also filed complaint against the appellant Brijesh Shukla.
Respondent no.8 ASI Bhupinder Singh PS Harsh Vihar, Delhi filed status report dated 02.06.09 in the complaint case filed by respondent no. 1 M/s T. R. Sawhney Motors Pvt Ltd. In the report dated 02.06.09, it was narrated that on 14.06.09 the said Bhupinder Singh was called to the company office. Whereas, how it was possible on 02.06.09 to narrate fact and incident of future date dated 14.06.09. The appellant filed an application u/s 340 Cr PC, the preliminary inquiry was conducted by examining him, but vide order dated 30.01.12 his application u/s 340 Cr PC has been dismissed by the court of Sh. M. P. Singh, MM08, NE, Delhi, he is feeling aggrieved by the impugned order and that is why the revision petition.
1.2 The trial court in its impugned order not only discussed the provisions of section 340 Cr PC and 195 (1) (b) Cr PC Cr. A. no. 03/12 3/7 but also the law relating to registration of FIR or investigation u/s 156 (3) Cr PC vis a vis provisions of section 161 Cr PC and came to the two fold conclusion vis (1) the statement u/s 161 Cr PC is not an evidence nor it can be construed so for the purposes of allegations u/s 193 to 196 IPC, section 199, 200, 205 to 211 IPC, section 228 IPC, section 463, 471,475,476 IPC ; (ii) there was a mistake / inadvertent error in the status report, which do not make out a case to direct complaint for initiation of action against the respondents no. 1 to 8.
2.1 (Plea in Appeal) - The appellant reiterates the facts and filing of the trial court, which has been reflected in para 1.1 and 1.2 above, however, he assails the impugned order, firstly the findings have been given without appreciating the material on record and it is clear case of connivance between respondent no. 8 and other respondents no. 1 to 7, how it can be ignored that in the report dated 02.06.09 incident of 14.06.09 is reported, it is a matter of concoction, fabrication and connivance of said respondents. Apparently it is a false report by the police officer and impugned order Cr. A. no. 03/12 4/7 is required to be set aside and to allow the appeal. 2.2 (Arguments in appeal) - Ld. Cl. Sh. Rajesh Kumar, Advocate for appellant has gone through the contents of status report / report and statements recorded by ASI Bhupender Singh to demonstrate that statements were recorded on 02.06.09 but in the contents of statement incident of 14.06.09 at 11.00 am was narrated, it is never possible. The court of Metropolitan Magistrate dismissed the application by forming an opinion that there was some clerical or accidental slip or mistake but on plain reading of entire record it is not the case so as opined or concluded by the court of Metropolitan Magistrate. The impugned order is liable to be set aside.
3. (Arguments by State / Respondent no. 9) - Sh. R.K. Pandey, Ld. Addl. PP for the State / respondent no. 9 opposed the appeal that it is without merit, in fact the Ld. Magistrate has discussed all these aspects in the impugned order and then came to the conclusion that there was inadvertent error in writing the date, to err is humane and there was no one who does not commit mistake in writing. Cr. A. no. 03/12 5/7 Therefore, the impugned order dated 30.1.12 is reasoned and exhaustive order, the appeal is liable to be dismissed.
4. (Findings) - The contentions are assessed in the light of totality of circumstances, inclusive of record, which has been called from the trial court. Considering them, the impugned order dated 30.01.12 is set aside, for the following reasons :
(i) Although it is very exhaustive and lengthy order dated 30.01.12 but nowhere in the entire order, it was opined that date 14.06.09 is a mistake or there was some other date for which incident had taken place.
(ii) There is no explanation by ASI Bhupender, author of the record, who had recorded statement dated 02.06.09 that some mistake took place in writing the date 14.06.09.
(iii) Otherwise, the incident of 14.06.09 has been described in continuation of sequence from 13.06.09, it means the incident of 14.06.09 had some precedence of 13.06.09. In the absence of any explanatory fact by ASI Bhupender Singh, to construe it a clerical or accidental slip is not plausible.
In the scope of section 340 Cr PC the Magistrate was Cr. A. no. 03/12 6/7 within his right to make complete inquiry, however, without conducting the inquiry completely the final opinion has been tendered.
Thus, in view of the conclusion drawn in para (i) to (iii) above, the appeal is allowed and impugned order dated 30.01.12 is set aside, while directing the court of Sh. M. P. Singh, MM08, North East District, KKD Court, Delhi / successor court to conduct the inquiry completely and then render the findings.
With these observation appeal stands disposed off. However, any observation recorded in the present judgment would not be construed any reflection on the merit of the case, while considering the case by the Magistrate. The appeal file be consigned to Record Room but the record of application u/s 340 Cr PC be sent to the court / successor court. They shall appear before the trial court on 27.09.2013.
Announced in open court (Inder Jeet Singh) Bhadra 28, SAKA 1935 Additional Sessions Judge03 (NE District), Room No.53, IInd Floor, Karkardooma Courts, Delhi.
Cr. A. no. 03/12 7/7