Delhi District Court
1 Haresh J. Punjabi vs . State (2) Manju Tandon on 3 February, 2010
1 Haresh J. Punjabi Vs. State (2) Manju Tandon
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
Criminal Revision 38/2008
Haresh J. Punjabi
S/o Late Shri Jethanand Punjabi
R/o 27, Amaltash Marg, D.L.F.
Qutub Enclave, Phase - I
Gurgaon (Haryana) ...........Petitioner
Vs
1. State
2. Smt. Manju Tandon
Prop. M/s Shreeji Exports
W/o Sh. V.M. Tandon
R/o F - 24, Kalkaji
New Delhi ........Respondents
Date of Institution 07/05/2008
Date when arguments
were heard 07/07/2009, 27/10/2009, 21/11/2009,
23/12/2009 & 03/02/2010
Date of Order 03/02/2010
ORDER
By this common order, I shall decide the revision petition filed by petitioner Haresh J. Punjabi and also an application for 2 Haresh J. Punjabi Vs. State (2) Manju Tandon modification of bail orders dated 28.06.2001 and 20.07.2001 passed by the Sessions Court in favour of applicant/accused.
I have heard the learned counsel for petitioner and learned Additional Public Prosecutor for respondent State. The notice was also issued to the complainant of the application for modification of bail orders and efforts for conciliation were also made between the parties which somehow failed and the complainant Manju Tandon and her counsel, thereafter, failed to turn up today for arguments and also on the last date of hearing they were absent, though proxy counsel appeared to seek adjournment.
Both revision petition and the application for modification of bail orders are disposed of by this common order as common questions of facts and law are involved in these two proceedings. I am dictating this common order in revision petition.
The brief facts giving rising to the present revision petition are that the case under Section 420/408/34 IPC was registered at Police Station, Kalkaji against the petitioner on a complaint of Smt. Manju Tandon, proprietrex M/s Shreeji Exports. The facts, in brief, 3 Haresh J. Punjabi Vs. State (2) Manju Tandon are that from the foreign buyer, the petitioner obtained contract and he supplied raw material to the complainant for fabrication work and the complainant gave the raw material to the other persons for doing job work but the petitioner directly acquired the material after job work from those persons bypassing the complainant and exported the said material.
On 28.06.2001, on the bail application of petitioner, the learned Sessions Court on the request of petitioner directed to deposit an FDR in the sum of Rs.40 lac, the Court passed interim order prohibiting his arrest and the petitioner was to deposit a sum of Rs.40 lac by way of FDR in Court which he did, thereafter, on 20.07.2001, the petitioner was directed to be released on anticipatory bail on furnishing personal bond and surety bond in the sum of Rs.1 lac each. Thereafter, the investigation was completed and the petitioner was challaned. After that, the order was passed on 13.09.2005 by learned Metropolitan Magistrate holding that prima facie case for the offence punishable under Section 420 IPC was made out against the petitioner and he was charged accordingly.
4 Haresh J. Punjabi Vs. State (2) Manju Tandon The petitioner moved an application before learned Metropolitan Magistrate seeking release of Rs.20,80,962/- out of Rs.40 lac which was deposited by him when he was granted anticipatory bail. Learned Metropolitan Magistrate vide order dated 19.12.2005 dismissed the application holding that the bail order was passed by Sessions Court so the application was not maintainable before him and should have been preferably filed in Sessions Court as he was unable to modify/review the order passed b superior court. Aggrieved by this order dated 19.12.2005, the petitioner filed the revision petition.
The scope of interference in revisional jurisdiction is limited only to those orders of the magistracy which are final orders and which suffer from material irregularity or illegality or impropriety. The impugned order of learned Metropolitan Magistrate holding that since the anticipatory bail order and condition of deposit of Rs.40 lac was imposed by Sessions Court, he was unable to modify/review the order passed by superior court is justified and correct finding given by learned Metropolitan Magistrate on the application of the petitioner.
5 Haresh J. Punjabi Vs. State (2) Manju Tandon Therefore, there is no merit in the revision petition.
As regards, the modification of the anticipatory bail order dated 28.06.2001 and 20.07.2001, the contention of learned counsel for petitioner is that the petitioner himself requested to deposit of Rs.40 lac in the form of FDR at the time of seeking anticipatory bail but after investigation was completed, it was found that the petitioner/accused had received 13,690 pieces of Snow Flake mats from the fabricators and he actually exported 10,368 pieces as per document of shipping company/cargo. The investigation revealed the petitioner received a sum of Rs.10,19,038 in his bank account from the foreign buyer, the remaining 2606 Snow Flake Mats were produced before IO by petitioner and were seized vide seizure memo. It was also found during investigation that cost of each pieces was Rs.2.15 USD. Therefore, the petitioner cannot be asked for deposit of Rs.40 lac in the form of FDR when the amount involved in the transaction in question is in the sum of Rs.10,19,038/-.
It is also argued that against the order of learned Metropolitan Magistrate with regard to charge, the petitioner filed a 6 Haresh J. Punjabi Vs. State (2) Manju Tandon revision petition No.6/2006 before Hon'ble High Court and with the consent of both parties the further investigation was directed by Hon'ble High Court vide order dated 25.09.2008. In further investigation again there was the same finding of the investigating agency in the supplementary charge sheet. Therefore, the petitioner is ready to deposit Rs.10,19,038/- as per condition of the anticipatory bail and the balance amount of Rs.29,80,962/- should be released to the petitioner and anticipatory bail orders dated dated 28.06.2001 and 20.07.2001 should be modified.
The arguments on behalf of petitioner though seem attractive and convincing for the reason that for the liability of Rs.10,19,038/- with regard to transaction in question as per the conclusion of investigation and supplementary investigation as per orders of Hon'ble High Court, the cheating amount was not anywhere Rs.40 lac so this condition of bail looks to be excessive. But the question is whether this court can modify the order passed by coordinate Sessions Court several years back.
The Sessions Courts or the magistracy dealing with criminal 7 Haresh J. Punjabi Vs. State (2) Manju Tandon cases are not vested with inherent powers like Civil Courts under Section 151 CPC in civil cases or Hon'ble High Court in criminal cases under Section 482 Cr.PC. Therefore, it is to be seen if within the four corners of Section 439 Cr.PC this court can modify its own orders of anticipatory bail. Though, the bail granted by the Sessions Court or by the Court of learned Metropolitan Magistrate can be set aside for cogent reasons under Section 439 (2) Cr.PC but, as regards, modification of the bail order only the condition imposed by the magistrate can be modified or set aside by the Sessions Court under Sub-Section (1) (b) of Section 439 Cr.PC. This provision does not authorise the Sessions Court to modify the bail orders passed by it. Therefore, I am unable to modify the bail orders dated 28.06.2001 and 20.07.2001 passed by invoking powers under Section 439 (1) (b) Cr.PC. No other provision of law is shown nor any authority is produced to show that such modification can be done on such an application by the Sessions Court.
8 Haresh J. Punjabi Vs. State (2) Manju Tandon The applicant, in my view, may approach Hon'ble High Court under Section 482 Cr.PC or may take any other step for redressal of his grievance under the applicable prevailing law.
In view of the above, both revision petition and application of modification of bail orders dated 28.06.2001 and 20.07.2001 are dismissed. A true copy of this order be filed in the file pertaining to application for modification of said bail orders. The trial court record be returned along with copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room. The file of application for modification of bail orders be sent to bail section of Patiala House Courts.
Announced in the open
Court on 03/02/2010 (S. K. SARVARIA)
Additional Sessions Judge:01/South
Patiala House Court/New Delhi