Delhi District Court
Gaurav Kumar vs State & Ors on 20 May, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Rev. No.73/12
Gaurav Kumar ......Revisionist
Versus
State & Ors. .......Respondents
Date of institution : 18.12.2012
Date of Judgment : 20.05.2013
J U D G M E N T
Present revision petition has been filed challenging order dt.18.09.2012 passed by Learned Metropolitan Magistrate, whereby his complaint no. 187/01/10 titled as "Gaurav Kumar Vs. Vivek Kumar Garg and others" alleging commission of offences U/s 499/500 and other offence under IPC has been dismissed, U/s 202 Cr.P.C., while observing "the material available on record is not sufficient to proceed against any of the three accused" - (respondents herein).
2. Learned counsel for petitioner has contended that there was sufficient material on record by way of preliminary evidence so as to suggest commission of offence of defamation by the accused - respondent herein and that non 1 examination of Dharam Singh, who apprised the complainant of publication of defamatory material did not adversely affect the case of the complainant at the stage of summoning, particularly when there was other material in the form of statements of CW2 Om Parkash and CW3 Abhinandan Manav as well. In support of his contention, learned counsel has referred to decision in Balraj Khanna & Ors Vs. Moti Ram, AIR 1971 Supreme Court 1389. Rreference has also been made to other incidents of crime including that of 07.07.2010 to contend that there is sufficient material to proceed against accused No.1 but Trial Court has opted not to proceed against him at all. Therefore, contention raised by learned counsel for petitioner is that impugned order deserves to be set aside and process be issued against the accused person not only for commission of offence U/s 500 IPC but also for the other offences committed by the accused No.1 respondent.
3. It may be mentioned here that although complaint was dismissed, thereby not summoning the accused person, in view of decision in Raghu Raj Singh Rousha vs. Shivam Sundram Promoters (P) Ltd. (2009) 2 SCC 363, notice of the petition was issued to the respondents. Thereupon, Sh. Vivek Gupta, Advocate has put in appearance on behalf of three respondents (respondents no.2 to 4) and advanced arguments justifying the impugned order dismissing the complaint on the ground that there is no material on record to suggest that any of 2 the respondents committed any such offence.
4. As per averments put forth in the complaint, the complainant was earlier serving as Billing Operator with Vivek Kumar Garg of Manas Publication of Ansari Road, Daryanaj. Vivek Kumar Garg was looking after day to day affairs of Manas Publications. As CW1 he has narrated the manner in which he fell ill and could not attend the office for about two weeks. He apprised accused no.1, 2 & 3 (respondents no.2, 3 & 4) herein as to why he would not be able to attend his office. Ultimately, he joined his office on 08.05.2010 and asked for his unpaid salary for the month of April, 2010, but accused no.1 did not pay his salary.
5. While appearing in court complainant further stated that accused no.1 remarked that he (complainant), Om Parkash and Abhinandan Manav had stolen data from his office. According to the complaint, he displayed ignorance about it. Thereupon, accused no.1 started boasting of his high connections and asked the complainant to make false statement that Abhinandan Manav had stolen documents, but he refused to make any such statement. As further stated by the complainant, accused no.1 then extended threat of his false implication in a theft case alongwith Abhinandan Manav. At the same time, accused no.1 asked the complainant not to resume his duties.
6. Further according to the complainant, Vivek Garg accused no.1 forced him to accompany him to Abhinandan's house. On reaching the house of 3 Abhinandan, accused no.1 started hurling abuses at him, Ahbinandan Manav and Om Parkash and alleged that they were thieves. Vivek Garg further proclaimed that he would ensure that they could not stay in Delhi and operate from there. On 14.06.2010, wife of complainant informed him that police had come from PS Daryaganj with a notice requiring him to visit the police station on 17.06.2010 in connection with a case against him. On 17.06.2010, when he reached PS Daryaganj, Sh. P.C. Khanduri informed that accused no.1 had lodged a complaint against him about theft of data, books and cash by him and others.
7. Further according to the complainant, he and Om Parkash met one Dharam Singh, who told them about publication of some pamphlets and its circulation by the accused persons to the effect that he, complainant, Om Parkash and Abhinandan Manav had committed offence of cheating, fraud, criminal breach of trust, misappropriation etc.
8. In given facts, it was for the complainant to prove that pamphlets ExCW1/1 came to be published by the accused and then circulated by them. However, from the material available on trial court record it can be said that complainant failed to prove that the pamphlets was got printed and published by the accused. Complainant was to examine Sh. Dharam Singh, who is alleged to have handed over to him the pamphlets. For the reasons best known to the complainant, he did not examine Sh. Dharam Singh. In absence of statement of Dharam Singh it cannot be said as to from where said Dharam Singh handed 4 over the pamphlets to the complainant, what to say of their publication by the accused. Therefore, findings recorded by Ld. Metropolitan Magistrate that complainant failed to prove on record any material that the three accused persons published and circulated the pamphlets in question are upheld.
9. Complainant has leveled other allegations against accused no.1. One of the allegations is that accused No.1 threatened him with implication in case of theft along with Abhinandan Manav in case he (complainant) did not make statement against Abhinandan Manav, before Police that he (Abhinanandan Manav) had stolen documents relating to accounts of accused No.1. According to the complainant, he refused to make any such statement to the Police and as such he was threatened by accused No.1.
10. Another allegation leveled by the complainant against accused No.1 is after the aforesaid threats were extended, accused No.1 forced him to accompany him to the house of Abhinandan Manav at Sant Nagar, Burari. On reaching the house of Abhinandan Manav, accused No.1 hurled abuses at him and remarked that Abhinandan Manav, complainant and Om prakash were thieves. However, while appearing in the Court, CW3 Abhinandan Manav did not state that at any point of time complainant was brought by accused No.1 or that at that time accused hurled abuses at him (complainant) or remarked they were thieves. So on this allegation version narrated by the complainant does not find support from the statement of CW3 Abhinandan Manav. 5
11. So far as incident dated on 07.07.10 is concerned, according to the complainant on that date, accused No.1 started ransacking the goods lying in the office of complainant and tried to forcibly open the cupboard, where upon he (complainant) offered him keys but accused No.1 became furious and slapped him. Not only this, accused No.1 threatened him that he would be killed then and there. CW2, Om Prakash has supported the statement of complainant in this regard.
12. From the above evidence available on record, this Court finds that complainant adduced before Trial Magistrate material by way of preliminary evidence that accused No. 1 extended him threats when he refused to make statement before the police against Abhinanadan Manav that he had stolen documents relating to accounts of the office of accused No.1. Complainant also led sufficient material before Learned Metropolitan Magistrate to suggest that on 07.07.2010 accused No.1 caused hurt on the person of the complainant by slapping him at his office and also threatened him that he could get him killed then and there.
13. From the material available on record, even if no prima facie case to proceed against accused No.1,2 and 3 for offences u/s 499/500 IPC is made out there are sufficient grounds to proceed against No.1 for offences u/s 323 & 506 IPC.
14. In view of the above findings, revision petition is partly allowed. Trial 6 court record be returned for 04.06.2013. Learned Trial Magistrate to issue process against accused No.1 Vivek Garg for offences u/s 323 & 506 IPC.
Announced in Open Court
on 20.05.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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