Delhi District Court
Presently Residing At vs Sh. Hitesh Bhutani on 21 January, 2017
IN THE COURT OF SH. M.K. NAGPAL, SPECIAL JUDGE
(P.C. ACT), CBI08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Smt. Asha Handa
W/o Sh. Onkar Nath Handa
Permanent R/o 10960, Doriwalan
East Park Road, Karol Bagh
New Delhi
Presently residing at:
D71, Ajay Enclave, Ashok Nagar
Near Subhash Nagar
New Delhi110018
..........Revisionist/Petitioner/Complainant
Versus
Sh. Hitesh Bhutani
S/o Sh. Prem Bhutani
R/o T30, Gaushala Road
Behind Jain Petrol Pump
Karol Bagh, New Delhi110005
............................. Respondent/Accused
Crl. Rev. No. : 58628/2016
CNR No. : DLCT010172152016
Date of institution : 03.12.2016
Date of reserving order : 21.01.2017
Date of pronouncement : 21.01.2017
ORDER
This revision petition has been filed by the petitioner against the impugned order dated 12.08.2016 passed by the Ld Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 1 of 10 MM07, Central, THC, Delhi vide which the Ld MM had closed the precharge evidence of the petitioner in the complainant case no. 536936/2016 (Old CC No. 170/1) titled as Asha Handa Vs. Hitesh Bhutani, PS DBG Road, and had discharged the respondent due to failure of the petitioner to take steps for summoning of the respondent, as directed by the Ld MM.
2. I have heard the arguments advanced by Sh.
Sanjeev Soni, Ld counsel for the revisionist/petitioner and Sh. Mannu Sisodia, Ld counsel for the respondent/accused. The entire record of the present revision petition as well as that of the trial court has been perused.
3. The factual background in which the present revision petition has been filed is that the above complaint case was filed by the petitioner against the respondent herein for commission of the alleged offence punishable U/s 406 IPC on allegations of dishonest misappropriation of her Maruti Zen car having registration no. DL9CF 6523 and alongwith the complaint she had also filed an application U/s 156(3) Cr.P.C. seeking directions of the court for registration of an FIR. The said application of the petitioner was allowed by the Ld MM and on directions given by the court, one FIR No. 415/2004 of PS DBG Road is stated to have been registered in the matter. However, after investigation, the police had filed a closure report in the matter and the petitioner also filed her protest petition. The Ld MM dismissed the protest petition filed by the petitioner Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 2 of 10 and accepted the closure report of police.
4. Being aggrieved by the above order of the Ld MM, the petitioner filed a revision petition against the said order and the same was allowed by the Ld ASJ and the petitioner was permitted to lead her presummoning evidence in the matter, which was also duly led by the petitioner before the Ld MM. However, after hearing the submissions made on the point of summoning, the Ld MM was not satisfied about the existence of there being reasonable grounds for proceeding further in the matter and hence, the Ld MM had dismissed the said complaint vide order dated 23.06.2012. The petitioner again approached the Sessions Court in a revision petition no. 91/12, which was allowed by the Ld ASJ vide order dated 27.11.2013 and holding that the material brought on record was sufficient for summoning of the respondent, the Ld ASJ had directed the parties to be present before the Ld trial court on 14.12.2013.
5. It is observed from records that the husband of petitioner as well as the respondent, alongwith a proxy counsel, had put in appearance before the Ld trial court on 14.12.2013 and since the Ld MM concerned was on leave on that day, the matter was directed to be put for further proceedings on 22.01.2014 by the Ld Link MM. On 22.01.2014, the husband of petitioner was again present before the Ld MM, but since the respondent was not present, the Ld trial court had directed issuance of a notice to the respondent on filing of PF/RC etc for Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 3 of 10 15.07.2014, in terms of the above order dated 27.11.2013 of the Ld Sessions Court, which was legally not correct as appearance by the respondent had already been filed before the Ld trial court on the previous date. This order was also not legally sustainable for one other reason that in the meanwhile, the respondent had already approached the Hon'ble High Court in petition no. 50/2014 filed U/s 397 r/w Section 482 Cr.P.C. and vide order dated 21.01.2014, i.e. one day prior to the above date fixed before the Ld trial court, the Hon'ble High Court had directed stay of the proceedings pending before the Ld trial court till the next date of hearing, i.e. 27.03.2014, and this stay order also appears to have been communicated to the Ld trial court by 22.07.2014 as a noting made by the official of the court staff in this regard is clearly visible on the order sheet of that day. It has also been observed on perusal of the trial court records that between 15.07.2014 till the passing of the impugned order dated 12.08.2016, none for the parties had been appearing before the Ld trial court, except on one date 02.09.2014 when an employee of the petitioner was present before the court of Ld Link MM, as the Ld MM concerned was on leave, and it was reflected on record that the stay granted by the Hon'ble High Court was still in progress.
6. It has further been observed that the above stay on proceedings granted by the Hon'ble High Court had continued till 08.12.2015, when the above petition no. 50/2014 of the respondent was dismissed for nonprosecution. The file of the Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 4 of 10 Ld trial court was also earlier summoned by the Hon'ble High Court in the said petition. This order of dismissal was taken note of by the Ld trial court in its order dated 09.02.2016, when it had again directed the respondent to be summoned for 29.03.2016 on filing of PF etc and further directed the petitioner to take steps therefor. There were some more developments in between as the respondent had filed one restoration application also before the Hon'ble High Court on 11.12.2015, which is also stated to have been dismissed in default on 02.02.2016 and it has further been stated that the respondent has now moved a second restoration application before the Hon'ble High Court on 15.02.2016, which is stated to be pending for 10.02.2017. However, in the meanwhile, since the order dated 09.02.2016 of the Ld trial court for taking steps for summoning of the accused was not complied by the petitioner and further since none also appeared on behalf of the petitioner on the next few adjourned dates, i.e. 29.03.2016, 20.05.2016, 27.07.2016 and 12.08.2016, the Ld MM closed the precharge evidence of the petitioner and discharged the respondent vide his impugned order dated 12.08.2016, as already stated above.
7. It has been submitted by Ld counsel for the petitioner that the impugned order of the Ld MM is not legally sustainable as once the respondent had already put in appearance in the above criminal complaint, in terms of the directions given by the Ld ASJ while directing the summoning of the respondent for the said offence, there was no occasion for Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 5 of 10 the Ld trial court to ask the petitioner to file PF etc or to take steps for summoning of the respondent vide its initial order dated 22.01.2014 or vide the subsequent order dated 09.02.2016 or even thereafter. It has also been submitted that otherwise also since the above petition no. 50/2014 filed by the respondent before the Hon'ble High Court stood dismissed for nonprosecution vide order dated 08.12.2015 of the Hon'ble High Court, the respondent himself was also duty bound to put in appearance before the Ld trial court as though he had filed the subsequent restoration applications, but his above petition is yet not restored back and even the stay order has not been restored. It has further been submitted that none was appearing for the petitioner in the proceedings before the Ld trial court simply because the proceedings were earlier lying stayed and even the file of the trial court stood summoned by the Hon'ble High Court and no effective proceedings were being conducted by the trial court. It has also been submitted that on 02.09.2014, the employee of the petitioner was informed by the Reader of the court that the complainant need not to appear in the said matter till the stay granted by the Hon'ble High Court was vacated.
8. On the other hand, the submissions of Ld counsel for respondent are that the petitioner was duty bound to comply with the above orders of the Ld trial court for taking steps to summon the respondent and not only she failed to take the said steps, but she also defaulted in putting her appearance before Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 6 of 10 the Ld trial court for a long time since the dismissal of the above petition no. 50/2014 filed by the respondent on 08.12.2015, which was well within her knowledge, till the passing of the impugned order dated 12.08.2016 and hence, the Ld MM had rightly closed the precharge evidence of the petitioner and discharged the accused. It is his contention that the above order does not suffer from any illegality or impropriety and is, therefore, not required to be interfered with as the petitioner had suffered only due to her on willful acts and defaults in not pursuing her above complaint case properly and vigilantly.
9. As already stated above, once the Ld ASJ directed the respondent to put in appearance before the trial court and further once he had already put in appearance in the above proceedings, there was no occasion or reason for the trial court to direct the petitioner to file PF or to take other steps for summoning of the respondent if the respondent defaulted in putting appearance before the trial court on any subsequent date and rather the court should have issued some coercive process against the respondent. Hence, the order dated 22.01.2014 of the Ld MM, and also the subsequent orders passed after dismissal of the above petition no. 50/2014 of the respondent by the Hon'ble High Court on 08.12.2015 were not justified. As also discussed above, the above order dated 22.01.2014 was even not justified for the other reason that it was passed after the Hon'ble High Court had already stayed the proceedings in the above complaint one day prior to the passing Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 7 of 10 of the said order. Hence, when the above order dated 22.01.2014 and the subsequent orders passed by the Ld MM directing the filing of PF etc by the petitioner, after dismissal of the above revision petition no. 50/2014, could not have been legally passed, the impugned order dated 12.08.2016 of the Ld MM cannot be said to be a legal order for the simple reason that it was based on his previous orders for compliance of the directions already given on 22.01.2014.
10. It has been observed that the proceedings of the above complaint case had remained stayed under orders of the Hon'ble High Court for a considerable time and even none for the parties had been appearing before the trial court. Hence, the proper course for the trial court would have been to issue a notice to the parties seeking their appearance in the court once the dismissal of the above petition filed by the respondent before the Hon'ble High Court was brought to the knowledge of the Ld MM and there was no wisdom in just adjourning the case on repeated occasions for compliance of the previous order with regard to the filing of PF etc when none on behalf of parties was appearing in the matter. For this reason also, the impugned order dated 12.08.2016 of the Ld MM cannot be said to be legally tenable in the eyes of law as well as the cannons of justice.
11. Apart from the above, there is also one more reason for holding the said order to be illegal or improper and it Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 8 of 10 is that the said order for closing the precharge evidence of the petitioner should not have been passed by the Ld MM at that stage because it is observed on perusal of the trial court records that the case was never fixed formally for precharge evidence of the complainant and she was never even asked to lead her precharge evidence in the matter. It can be noted that the respondent had merely filed his appearance in the matter on one date only and he was yet to get copies of the complaint and documents filed therewith and then, he was also to be asked to furnish bail bonds and only thereafter, the matter could have been legally fixed for leading the precharge evidence of the petitioner. Moreover, since this was a complaint case for commission of the alleged offence punishable U/s 406 IPC, the procedure contained in ChapterXIX, Part B was applicable and in terms of the provisions contained in Section 249 Cr.P.C., the Ld MM could not have legally discharged the respondent as the above offence was a cognizable offence and further it could not have been lawfully compounded as the value of the article allegedly misappropriated by the respondent exceeded Rs. 2,000/.
12. In view of the above factual and legal discussion, the impugned order dated 12.08.2016 of the Ld MM07, Central, THC, Delhi closing the precharge evidence of the petitioner and discharging the respondent in the above said criminal complaint is being set aside and the complaint is directed to be restored to its earlier stage. The parties are directed to appear before the Case No. 58628/16, Asha Handa Vs. Hitesh Bhutani Page No. 9 of 10 Ld trial court on 31.01.2017 at 10:00 AM for further proceedings and it is directed that after ensuring the supply of copies and taking of bail bonds etc, the Ld trial court shall grant adequate opportunities to the petitioner to lead her presummoning evidence as per law. The revision petition is allowed and disposed of with the above observations.
13. Let a copy of the order, alongwith the TCR, be returned back to the court concerned for information, compliance and further proceedings. File of the revision petition be consigned to record room.
Announced in the open court
today, i.e. 21.01.2017 (M.K. Nagpal)
Special Judge (PC Act), CBI08
Central District, Delhi/21.01.2017
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