Delhi District Court
Shri Brij Bhushan Gupta vs Shri Sewa Ram Saini on 15 February, 2020
IN THE COURT OF SHRI NAVEEN GUPTA:
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
Criminal Revision No.175/2017
PS Anand Vihar
Shri Brij Bhushan Gupta
President, Adarsh Dharmik Sabha (Regd.)
Regn. No.S-18155.
Correspondence address:-
167, Saini Enclave, Delhi-110092. ...... Revisionist
Vs.
1. Shri Sewa Ram Saini
S/o Shri Daulat Singh Saini
R/o 94, Saini Enclave, Delhi-110092.
2. Shri Surender Saini
S/o Shri Sohan Lal Saini
R/o 141, Saini Enclave, Delhi-110092.
3. Smt. Kamlesh Saini
W/o Lt. Shri M. K. Saini
R/o 16, Saini Enclave, Delhi-110092.
4. Mr. Madan Mohan Sharma
Branch Manager,
Central Bank of India
13, Saini Enclave
5. The State (Govt. of NCT of Delhi) ...... Respondents
Date of institution : 13.09.2017
Date of reserving order : 15.02.2020
Date of order : 15.02.2020
O R D E R:
1. Vide this order, the court has decided the revision petition filed by the revisionist/complainant Sh. Brij Bhushan Gupta, challenging the order Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 1 of 9 PS Anand Vihar dated 22.06.2017 passed by the Court of Ld. ACMM, Shahdara, Karkardooma Courts, Delhi, whereby the application u/s 156(3) Cr.P.C. moved by the complainant seeking directions to the SHO PS Anand Vihar to register an FIR against the respondents/accused persons has been dismissed.
2. Brief facts as depicted by the revisionist/complainant in his application moved under Section 156(3) Cr.P.C. are that he is the President of Adarsh Dharmik Sabha (Regd.), Saini Enclave, Delhi. The respondents no.1, 2 and 3 (hereinafter referred as 'accused no.1, 2 and 3') are claiming themselves as alleged President, Secretary and Treasurer of the said society respectively. One account in the name of Society was being operated with Central Bank of India and the complainant (President) along with Sh. L. D. Sharma (Secretary) and Sh. Rajesh Saini (cashier) are only authorized persons to operate it. But in August, 2016, he (complainant) came to know that above said account is being operated by the accused no.1 to 3 on the basis of some forged and fabricated documents. He requested respondent no.4 (hereinafter referred as 'accused no.4') for freezing the said account and providing the documents given by the accused no.1 to 3 for operating the said account, but no reply was received from accused no.4, which showed his connivance in fraud and forgery. A complaint to this effect was lodged with the local police as well as higher officials of accused no.4, but without any action. Thus, the complainant moved an application u/s 156 (3) Cr.P.C. seeking direction to the SHO concerned for registration of an FIR.
3. Ld. Trial Court called for status report from the SHO concerned.
Consequently, a report dated 02.02.2017 was filed. Vide order dated 22.06.2017, Ld. ACMM, Shahdara, Karkardooma Courts, opined that:
Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 2 of 9PS Anand Vihar 'The legal notice dated 24.06.2016 issued by the complainant to the proposed accused as well as other persons is perused which shows that there is dispute between the parties as to the elections of office bearers of the Society. The said dispute is going since 2012. It is also apparent that till date no civil remedy of civil suit for declaration in this regard has been preferred by the complainant. The allegations of operating of the account are not supported with any document on record. Even, complainant has failed to file on record his own documentary credential showing himself to be President of the Society. No ground for police investigation is made out.
Even otherwise, the identity of the accused in the present matter is known to the complainant and all the evidences are within the control of the complainant. No police investigation is warranted in this case. The application is accordingly dismissed.'
4. First of all, the court wishes to examine the maintainability of the present revision petition challenging the order of Ld. Trial Court deciding the application moved under Section 156(3) Cr.P.C.
5. The Hon'ble Delhi High Court in Simret Katyal v. The State Govt of NCT of Delhi, in Crl. M.C. No. 3729/2015 decided on 11.09.2015, has relied upon its earlier judgment while deciding the issue of Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 3 of 9 PS Anand Vihar maintainability of revision petition challenging an order under Section 156 (3) Cr.P.C. that:
13 [A]s far as the maintainability of the revision petition is concerned, this Court vide judgment dated 10.04.2013 delivered in Crl.M.C.No.1952/2009 and 1959/2009 in case titled Manohar Singh & Another vs State & Ors wherein after discussing all the relevant law on subject and while relying upon the judgment of the Supreme Court in case Amit Kapoor vs Ramesh Chander & Ors. 2012 IX AD (SC) 493 and Kishan Lal vs Dharmendra Bafna & Anr. 2009 (6) Scale 768 made the following observations:-
15. The basic challenge to the impugned order is on the ground of non-maintainability of the revision petition of respondent-accused, which stands allowed vide impugned order. Implicit reliance placed by petitioners' counsel upon full bench decision of Allahabad High Court in Father Thomas (supra) to contend that revision petition against an order allowing 156(3) Cr.P.C.
is not maintainable, is of no avail for the reason that Apex Court in its recent decision in Amit Kapoor (supra) has authoritatively ruled that a criminal revision certainly lies against an intermediate order....
16. Now what is required to be seen is whether trial court order directing registration of FIR while exercising its power under Section 156(3) Cr.P.C. is an interlocutory order or an intermediate order. No doubt in Father Thomas (supra), an order under Section 156(3) Cr.P.C.
has been held to be an interlocutory order being non-revisable, but Apex Court in Kishan Lal v.
Dharmendra Bafna & Anr. 2009 (9) Scale 768 in respect of such an order, has ruled as under:-
"It is correct that the revisional court should not interfere with the discretionary jurisdiction exercised by the learned Magistrate unless a jurisdictional error or an error of law is noticed."Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 4 of 9
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17. In view of authoritative pronouncement of Apex Court in Kishan Lal (supra), this Court is of the considered view that the order under Section 156(3) Cr.P.C. is revisable and impugned order holding revision petition against it to be maintainable does not suffer from any illegality or perversity.
6. From the above said precedent, it is clear that the present revision petition challenging the order of the Trial Court deciding the application u/s 156(3) Cr.P.C. is maintainable.
7. Ld. Counsel for the revisionist has argued that custodial interrogation of the accused persons is required in the present case to collect the evidence pertaining to the alleged forgery committed by the accused persons pursuant to the conspiracy hatched among them. Further, Ld. Trial Court has failed to appreciate that the case FIR no.516/16, PS Anand Vihar, as reflected in the status report dated 02.02.2017 filed by SI Vineet Pratap before Ld. Trial Court was registered u/s 323/341/380/34 IPC and thus, it pertained to different cause of action. Further, the revisionist has filed the statement of bank account no.1100933865 maintained with Central Bank of India, which clearly shows that on 31.08.2016 an amount of Rs.2,62,250/- was withdrawn. The accused no.1 to 3 had opened an another account no.3562226041 with Central Bank of India only and transferred the abovesaid amount of Rs.2,62,250/- in to this account without any authorization. Furthermore, the said account was opened on the basis of a Resolution of Ad-hoc Committee, while under the provisions of the applicable law, there is no provision regarding any Ad-hoc Committee. Thereafter, the accused no.1 to 3 had withdrawn the amount on several occasions from the above-
Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 5 of 9PS Anand Vihar said account no.3562226041 without any authorization. Ld. counsel for the revisionist has referred the entries dated 22.11.2016, 07.03.2017 and 05.07.2017 in the name of Sh. Pradeep Sharma as reflected in the statement of account. He has further submitted that the above-said entries show that the amount in the name of Adarsh Dharmik Sabha has been misappropriated by the accused no.1 to 3 in connivance with accused no.4. Ld. Counsel has further led the Court through the Minutes of Meeting carried out in respect of affairs of Adarsh Dharmik Sabha, wherein the revisionist has been referred as President of the Sabha. Ld. Counsel has further argued that as per Provision no.17 of the memorandum of the Adarsh Dharmik Sabha, the fund of Sabha can only be utilized for satsangs and religious functions. Thus, the order of Ld. Trial Court shall be set aside.
8. Ld. counsel for Revisionist has also relied upon the precedents Acharya Arun Dev v. State & Anr. 2005 (2) JCC 897; Krishna Lal v. Dharmendra Bafna 2009 RLR 421 SC; Cogent Silver Fbre Pte. Ld. v. State, JCC (207) Vol.2 1363; Lallan Singh v. State 2006 RLR NSC 80; Navdeep Singh v. State 2005 JCC Vol.1463; Mahavir Singh v. Police Commissioner 2006 RLR 368; Standard Chartered Bank v. Yogesh 2006 RLR 587; Skipper Beverages Pvt. Ltd. v. State 2001 (92) PCT 2017 SC; Suresh Chand Jain v. State of Madhy Pradesh and Ors. 2001 (1) AD (Crl.) SC 34; Ramesh Kumari v. State 2006 (1) JCC SC 468, Lalita Kumari v. Govt. of UP & Ors. 2013 and Babubhai v. State of Gujarat & Ors in Criminal Appeal Nos.1600- 1605 of 2010, decided on 26.08.10.
9. Perusal of revision file shows that during the proceedings dated 04.12.2019, Manager, Central Bank of India, KKD Branch produced Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 6 of 9 PS Anand Vihar record in respect of account no.3562226041 and stated that the relevant record in respect of account no.1100933865 was not available as it was about 20 years old.
10. Coming to the facts and circumstances of the present case, first of all, it is true that case FIR No.516/16, PS Anand Vihar pertains to Section 323/341/380/34 IPC does not appear to be of similar nature of allegations as leveled through the present complaint. However, it is pertinent to note that Ld. Trial Court has not relied upon the above-said aspect in its observations while dismissing the application u/s 156 (3) Cr.P.C.. Further, the revisionist has placed on record a letter dated 28.03.2016 addressed to SDM, Vivek Vihar, whereby it has been conveyed that accused no.1 has been elected as President, accused no.2 as Secretary and accused no.3 as Cashier. In the documents, placed on record by Manager, Central Bank of India on 04.12.2019 before the Court, it is reflected that the above-said persons had got the account no.3562226041 opened after mentioning the same designation. In these circumstances, the Court is in agreement with the observation of Ld. Trial Court that 'there is dispute between the parties as to the elections of office bearers of the Society'.
11. This Court stands guided by the precedent laid down by Hon'ble Delhi High Court held in Subhkaran Luharuka v. State, Crl.M.C. No. 6122- 23/2005 dated 09.07.10, that:
52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under:Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 7 of 9
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(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code. [Emphasis supplied].
12. Considering the facts and circumstances of the case and the averments made in the application of the complainant/revisionist herein, the Court is of the view that the complainant/revisionist is in control of all the evidences required to be produced in support of his allegations and to prove the same. Even if the allegations of the complainant are accepted as true that the accused no.1 to 3 had unauthorizedly operated the account no.1100933865, opened an another account no.3562226041 and Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 8 of 9 PS Anand Vihar thereafter, operated the same too, the same can be proved by him through oral and documentary evidence including expert opinion as per applicable provisions of law. If at all, any document is in possession of the opposite party, the same may be called before the court through legal process. Accordingly, there is no requirement of any investigation including custodial interrogation of any accused by the police.
13. The court is in agreement with the observations of the Ld. Trial Court as mentioned hereinabove. Hence, this court does not find any incorrectness, illegality or impropriety in the order of the Ld. Trial Court dated 22.06.2017. Accordingly, the present revision petition is dismissed.
Revision file be consigned to Record Room. Trial Court Record be sent back to the Ld. Trial Court alongwith a copy of this order.
Announced in open Court (Naveen Gupta)
on 15th day of February 2020 Addl. Sessions Judge-05
Shahdara District,
Karkardooma Courts, Delhi
Crl. Revision No.175/2017 Brij Bhushan Gupta v. Sewa Ram Saini and Ors. Page 9 of 9
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