Delhi District Court
Indra Gupta vs State (Govt Of Nct Of Delhi) on 8 February, 2023
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI, DELHI
Crl. Revision no. 241/2022 ( DLNT01-009031-2022)
Indra Gupta
W/o Late Sh. R.K. Gupta
R/o 4/6, Roop Nagar
Delhi. ..... Revisionist/Petitioner.
V.
State (Govt of NCT of Delhi) ....... Respondent.
Date of Institution : 14.11.2022
Date of Reserving the Order : 06.01.2023
Order Pronounced on : 08.02.2023
O R D E R:
1. This is the revision petition preferred by the petitioner herein against the impugned order dated 07.04.2022 passed by the court of Ld. MM-03, North, Rohini, in FIR No.330/2009 Police Station Prashant Vihar, titled as 'State V. Kishan Gupta & Etc', whereby summoning the petitioner herein as accused to face trial.
2. The facts in brief are that the present FIR was registered on the basis of complaint of one Mahesh Gupta who stated that he was a partner to the extent of 5% share in M/s National Metal Industry vide registered partnership deed dated 01.08.1996 and other partners were petitioner herein, Rajeev Gupta and Krishan Gupta. The complainant alleged that one bank account was opened in Punjab & Page 1/8 Sind Bank, Azad Pur Mandi, Delhi in the name of firm operated by Krishan Gupta and Rajeev Gupta based on forged partnership in which the complainant was shown to be retiring partner and his signature on the said deed were forged . In the said account opening form the photograph of Anita Gupta herein was affixed in place of petitioner herein and account was opened on the basis forged and fabricated partnership deed.
2.1 The investigation of the case was carried out and chargesheet was filed before the Ld. Trial Court. The Ld. M.M Sh. Sudhanshu Kaushik vide order dated 27.10.2010 framed the charges, however the said order was subsequently amended by Shri Chanderjit Singh vide order dated 02.03.2012 and thereafter charges were framed vide order dated 13.04.2012. The petitioner herein filed a revision petition against the order dated 13.4.2012 which was allowed by Ld. ASJ-01 and discharged the petitioner herein vide order dated 26.09.2013. The complainant thereafter during the course of trial moved an application under Section 319 Cr.P.C which was allowed vide impugned order dated 07.04.2022 and summoned the revisionist for commission of offences under Section 420/468/471/120B/34 IPC on the basis of some supplementary chargesheet and FSL result.
3. The said impugned order of summoning has been primarily challenged on the following grounds :
(a) The Ld. MM has erred in passing the impugned order and summoning the revisionist herein in the absence of any cogent evidence Page 2/8 showing her involvement for the commission of offence under Section 420/468/471/120B IPC.
(b) The Ld. MM failed to appreciate that as per CFSL report dated 05.05.2017, the signatures on partnership deed are to be of revisionist, however, with regard to forgery of signatures of complainant Mahesh Gupta, the said report states that signature do not match with any of other accused more particularly the revisionist.
(c) The impugned order is in teeth of the decision of the Hon'ble Supreme Court in Sheila Sebastian V. R. Jawharaj AIR 2018 SC 2434 which the Ld. MM has failed to appreciate.
(d) Ld. MM also failed to appreciate that the revisionist is neither involved in forgery of partnership deed nor she got the alleged bank account opened. In this regard, reliance has been placed upon judgment in Mohd. Ibrahim & Ors. V. State of Bihar & Anr 2010 AIR SCW 405.
(e)Ld. M.M further failed to appreciate that the revisionist herein is not involved in criminal conspiracy whatsoever and the ingredients of the criminal conspiracy are missing qua her . Thus, the Page 3/8 impugned order passed is illegal and based on surmises and conjectures and therefore bad in law.
4. The Ld. Counsel for the petitioner, in support of the said grounds, further argued that the impugned order has been passed without following the settled principles of law. The petitioner herein is therefore, is not liable to be summoned afresh for the offences for which she has already been discharged vide order dated 29.09.2013 passed by the Ld. ASJ .She could be summoned now u/s 319 CrPC only after following the due procedure as laid down u/s 398/300(5) of CrPC .
In support of her contentions, Ld. Counsel for the revisionist herein has also relied upon the following judgments:
(1) Hardeep Singh V. State of Punjab & Ors. AIR 2014 SC 1400 (2) Vipul Gupta V. State & Anr. Crl. MC 1163/2021 of Hon'ble High Court of Delhi.
5. Per contra, Ld. Addl. for the State/Respondent argued that there is no legal infirmity in the impugned order which calls for any interference.
6. Though the complainant is not party in the present revision petition, however complainant alongwith his counsel appeared and advanced arguments vide order dated 06.01.2023. It was also argued on behalf of the complainant that the impugned order has been passed keeping in view all the settled proposition of law which require no reconsideration in the present revision petition. Reliance Page 4/8 has been placed upon the judgment titled K.R Purshothamn V. State of Kerala Appeal Crl. 495/2004 of Hon'ble Supreme Court .
7. I have heard the Ld. Counsels for the parties and have considered the material placed on record.
8. The crucial legal issue raised in the present revision petition by the petitioner herein is the procedural one .As per the background of the present case and as per the record, the petitioner herein was discharged in the present case by the order of Ld. ASJ dated 29.09.2013 though she has originally been charge-sheeted . The relevant para-15 of the said order of discharge is reproduced herein for the sake of clarity and convenience:
"15. I am agree with the contention of Ld. Counsel for revisionist Indira Gupta that if Indra Gupta was a conspirator then where was need for her to put photograph of revisionist Anita Gupta on the account opening form. Hence, same must have been used without her knowledge. Revisionist Indira Gupta had not signed on the account opening form. Signature of Indira Gupta on the partnership deed has not been sent for FSL to prove that she had signed on the same. Even otherwise, her share has not increased and remained static at 5% therefore, she had not gained anything even from the reconstituted partnership firm constituted on the basis of forged partnership deed. I am agree with the contention of Ld. Counsel for revisionist Indira Gupta that if some body had affixed the photograph of Anita Gupta and wrote name of Page 5/8 her on the account opening form then it cannot be said that she was conspired to it. Hence, prima facie there is no evidence against Indira Gupta that she has committed any cheating or forged any document. Hence, I allowed the revision petition of Indira Gupta and discharge her from the case."
9. So, at that point of time the allegations against her qua the forgery either in the alleged partnership deed or account opening form were not believed. The only fresh circumstance which has come on record before the LD MM is the FSL report qua the signatures of petitioner herein. But before appreciating the said factual aspects and whether there being compelling circumstances for summoning of the accused/petitioner herein under Section 319 Cr.P.C, the legal proposition of law qua said discharged person's requires to be dealt with which has been admittedly ignored by the Ld. Trial Court. The reliance in this regard has been rightly placed on judgment in Hardeep Singh (supra) case of the Hon'ble Constitutional Bench of Supreme Court by the petitioner. The very said issue has been dealt with by the Hon'ble Constitutional Bench Judgment and the relevant para No. 104 and 108 of the same are reproduced hereunder for the sake of clarity and convenience:
"104. However, there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation; the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is Page 6/8 merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The Court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly.
108. Both these provisions contemplate an inquiry to be conducted before any person, who has already been discharged, is asked to again face trial if some evidence appears against him. As held earlier, Section 319 Cr.P.C. can also be invoked at the stage of inquiry. We do not see any reason why inquiry as contemplated by Section 300(5) Cr.P.C. and Section 398 Cr.P.C. cannot be an inquiry under Section 319 Cr.P.C. Accordingly, a person discharged can also be arraigned again as an accused but only after an inquiry as contemplated by Sections 300(5) and 398 Cr.P.C. If during or after such inquiry, there appears to be an evidence against such person, power under Section 319 Cr.P.C. can be exercised. We may clarify that the word 'trial' under Section 319 Cr.P.C. would be eclipsed by virtue of above provisions and the same cannot be invoked so far as a person discharged is concerned, but no more."
10. So, it is apparent from the said proposition of law that any such person so discharged if he/she has to be summoned again, the mandatory initial inquiry as contemplated under Section 398 as well as 300 (5) of Cr.P.C requires to be followed with.
11. In the present case in hand, the impugned order itself reflects that the application under Section 319 Cr.P.C was moved by the de Page 7/8 facto complainant by placing reliance on supplementary chargesheet having the FSL Result and the Ld. MM, without following the mandatory procedure or following the principles of "audi alteram partem" giving the right of hearing the proposed accused in the said inquiry, allowed the application and the summoned the petitioner herein to face the trial. The said procedure adopted by the Ld. MM is against the above-settled principles/proposition of law which contemplates conduct of any inquiry and important facet of the same is 'hearing of the said proposed accused who already stands discharged in the earlier stage of proceedings'.
12. In view of the above facts and circumstances as well as settled principles/proposition of law, I am of the considered view that there is legal infirmity in the impugned order which is hereby set aside. The matter is remanded back to the Ld. Trial Court with directions to hear afresh the application under Section 319 Cr.P.C after following the due procedure as discussed above .
Parties to appear before the Ld. Trial Court on the date already fixed there.
TCR be sent back with a copy of this order.
Revision file be consigned to Record Room.
Announced in the Open Court (GAGANDEEP SINGH)
on 08.02.2023 Addl. Sessions Judge/
Spl. Judge (NDPS), North
District, Rohini Courts, Delhi.
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