Delhi District Court
Mr. Vikaas Ahluwalia vs Mrs. Simran Ahluwalia on 23 April, 2015
IN THE COURT OF SH. SANJEEV JAIN:ADDL.
SESSIONS JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
UID No. 02406R0288012014
Criminal Revision no. 54/14
1. Mr. Vikaas Ahluwalia
S/o Mr. Bikramjit Ahluwalia
R/o B10, Saket, New Delhi.
2. Mrs. Sudarshan Walia
W/o Mr. Bikramjit Ahluwalia
R/o B10, Saket, New Delhi. .......Petitioners
Vs.
1. Mrs. Simran Ahluwalia
D/o Mr. Krishan Mittal
R/o 41, Gujrat Vihar, Delhi.
2. State of NCT of Delhi. ......... Respondents
And
UID No. 02406R0347172014
Criminal Revision no. 62/14
Mrs. Simran Ahluwalia,
W/o Sh. Vikaas Ahluwalia
R/o. 41, Gujrat Vihar, Delhi ...........Petitioner
C.R. nos.54/14 & 62/14 23.04.2015 Page no. 1/22
Vs.
1. Smt. Sudarshan Walia,
W/o Sh. Bikramjit Ahluwalia
2. Sh. Vikaas Ahluwalia,
S/o Sh. Bikramjit Ahluwalia
Both residents of B10, Saket,
New Delhi.
3. Bank of Maharashtra,
Press Enclave Brnach,
New Delhi. .....Respondents
Date of filing of revision : 31.10.2014 (CR No. 54/14)
11.12.2014 (CR No. 62/14)
Date of allocation : 01.11.2014 (CR No. 54/14)
12.12.2014 (CR No. 62/14)
Date of arguments : 09.04.2015
Date of order : 23.04.2015
Criminal revision petitions No. 54/14 & 62/14 U/S 397 r/w
Section 399 of The Code of Criminal Procedure against the
order dated 11.09.2014 passed by the Court of ld. ACMM,
South, Saket Courts, New Delhi, in criminal complaint case
titled as Mrs. Simran Ahluwalia vs. Mrs. Sudarshan Walia
and Ors (CC No. 31/1)
C.R. nos.54/14 & 62/14 23.04.2015 Page no. 2/22
Present: Sh. S.S. Gandhi, Sr. Advocate with Sh. Ujas
Kumar, Advocate for petitioners Vikas
Ahluwalia and Anr in CR No. 54/14 and for
respondents no. 1 and 2 in CR No. 62/14
Ms. Anu Narula, Advocate for respondent no. 1
Mrs. Simran Ahluwalia in CR No. 54/14 and
for petitioner Mrs. Simran Ahluwalia in CR No.
62/14.
Sh. M. Siddiqui, Advocate for respondent no. 3
in CR No. 62/14.
ORDER
1 The revision petition no.54/14 titled as Vikaas Ahluwalia and Anr. vs. Mrs. Simran Ahluwalia & Anr. and criminal revision petition no. 62/14 titled as Mrs. Simran Ahluwalia vs. Smt. Sudarshan Walia & Ors have been filed against the common (impugned) order dated 11.09.2014 passed by the Court of ld. ACMM, South, Saket Courts, New Delhi. As the common question of facts & law are involved in both the criminal revision petitions, I propose to decide these criminal revision petitions by a common order. 2 Brief facts of the case are that a complaint was filed by Mrs. Simran Ahluwalia against accused no. 1 Smt. Sudarshan Walia (motherinlaw), accused no. 2 Vikaas Ahluwalia (husband) and the officials of Bank of C.R. nos.54/14 & 62/14 23.04.2015 Page no. 3/22 Maharashtra, Press Enclave Branch, New Delhi, for taking action against them for alleged offences U/S 420, 466, 467, 468, 471 and 477 of The Indian Penal Code (in short referred as "IPC") 3 It was alleged in the complaint by Smt. Simran Ahluwalia that she was married to Vikaas Ahluwalia on 26.11.2001. She alleged that she was subjected to mental and physical cruelty by her husband and inlaws for not bringing enough dowry. As per her allegations, she was thrown out of her matrimonial home alongwith six years old daughter in or around March, 2008. The complainant also alleged that her entire istridhan articles were misappropriated by accused persons.
In para no. 3 of her complaint, Smt. Simran Ahluwalia alleged that a detail complaint was lodged by her against accused persons in Crime (Against) Women Cell, Krishna Nagar, Delhi and the said complaint was pending investigation. A copy of her complaint was annexed as annexure C2. She further stated in her complaint that during investigation before CAW Cell, accused Vikaas Ahluwalia filed a forged and fabricated certificate dated C.R. nos.54/14 & 62/14 23.04.2015 Page no. 4/22 05.09.2009 issued by Assistant General Manager, Bank of Maharashtra showing that on 19.10.2006 the name of accused Smt. Sudharshan Walia was deleted as per the application dated 18.10.2006 given by Smt. Sudarshan Walia and the complainant. She also stated that certificate falsely stated that since 19.10.2006, locker no. S48 was in the name of complainant Smt. Simran Ahluwalia whereas the said locker was in the joint name of Smt. Sudharshan Walia and the complainant. In her complaint, the complainant also alleged that she had kept some of her jewelery in locker no. S48 in Bank of Maharashtra, which was ostensibly jointly operated with accused Smt. Sudharshan Walia, but she was never permitted to operate the locker alone. She alleged that her signatures upon application dated 18.10.2006 purportedly sent to Bank of Maharashtra for deleting the name of accused Smt. Sudharshan Walia was forged by accused Vikaas Ahluwalia, Smt. Sudharshan Walia and the bank officials and she never signed any such letter to delete the name of Smt. Sudarshan Walia from the joint ownership of bank locker.
C.R. nos.54/14 & 62/14 23.04.2015 Page no. 5/22 4 As per trial Court record alongwith the complaint, an application U/S 156(3) Cr.P.C was also filed. Vide order dated 03.03.2010, ld. trial Court declined the application U/S 156(3) Cr.P.C and directed the complainant to lead the evidence. Order dated 03.03.2010 passed by the ld. trial Court was challenged by Smt. Simran Ahluwalia in criminal revision petition no. 145/2010 titled as Simran Ahluwalia vs. State. Vide judgment dated 07.03.2012, Hon'ble High Court dismissed the said petition of Smt. Simran Ahluwalia and held that there was no discrepancy or procedural irregularity in the impugned order passed by ld. trial Court.
5 In criminal revision petition no. 54/14, petitioners Vikaas Ahluwalia and Smt. Sudarshan Walia have challenged the impugned order dated 11.09.2014 and prayed for setting aside the summoning order against the petitioners on various grounds mentioned in the petition. 6 In criminal revision petition no. 62/14, petitioner Smt. Simran Ahluwalia challenged the impugned order and prayed that respondent no. 3 i.e. Bank of Maharashtra may be summoned for the various offences C.R. nos.54/14 & 62/14 23.04.2015 Page no. 6/22 committed by bank through its officials and respondents no. 1 and 2 be also summoned for the offences U/S 419, 420, 466, 467, 477A, 120B and 34 IPC 7 During the Course of arguments, ld. Sr. Advocate for petitioners (in CR No. 54/14) and for respondent no. 1 and 2 (in CR no. 62/14) challenged the impugned order of summoning mainly on the following grounds:
i) That the complaint pertaining to alleged forgery in letter dated 18.10.2006 was the subject matter of investigation in case FIR No. 273/2010 and the proceedings were pending before the Court of Ms. Vandana Jain, ld.
M.M (Mahila Court) Karkardooma District Courts, Delhi, and therefore the complaint was not maintainable.
ii) That ld. Trial Court failed to appreciate that in order to make out any offence of cheating or forgery, dishonest and fraudulent intention was an essential ingredient of the offence. The complainant failed to establish any wrongful C.R. nos.54/14 & 62/14 23.04.2015 Page no. 7/22 loss to her or wrongful gain to the accused persons. Ld. Sr. Advocate also submitted that neither dishonest nor fraudulent intention was established by complainant before ld. trial Court and therefore, the essential ingredients of the offence were not made out and therefore, ld. trial Court was not justified to direct summoning of accused persons.
In support of his arguments, ld. Sr. Advocate relied on following judgments:
(a) Astec Life Sciences Ltd. a Public Limited Company and Ors vs. The State of Maharashtra, The Senior Inspector of Police, Crime Branch, Nath Biogene(I) Ltd. and Additional Commissioner of Police (EOW) G.B.C.B., CID (MANU/MH/0225/2008)
(b) State of Maharashtra vs. Ramchandra Keshav Bhalla (MANU/MH/0338/2004)
(c) Jibrial Diwan vs. State of Maharashtra (MANU/SC/0841/1997) C.R. nos.54/14 & 62/14 23.04.2015 Page no. 8/22
(d) Dr. Vimla vs. Delhi Administration (MANU/SC/0163/1962).
8 In opposition, ld. counsel for respondent (in CR No. 54/14) and for petitioner (in CR no. 62/14) controverted the submissions mainly on the following grounds:
i. That the letter dated 18.10.2006 was forged by the accused persons to create false evidence in on going investigation in case FIR No. 273/2010 and to misappropriate the istridhan (jewelery articles) of Mrs. Simran Ahluwalia, which clearly establish the fraudulent as well as dishonest intention of accused persons and the involvement of bank officials. Ld. counsel submitted that offences 420, 466, 467, 471, 477A IPC were made out but ld. trial Court has summoned the accused persons only for the offence of forgery and despite prima facie evidence, did not summon the bank officials who were actively involved in the commission of offence.
C.R. nos.54/14 & 62/14 23.04.2015 Page no. 9/22 In support of her arguments, ld. counsel for Smt. Simran Ahluwalia submitted brief written arguments and relied upon the following cases:
(a) CRL A No. 2019/2008: 12.12.2008 -
Supreme Court (UP Pollution Control Board vs. Bhupender Kumar Modi)
(b) 1994 Cri.LJ. 2026: (Smt. Shivrani vs. Suryanarain)
(c) AIR 1977 SC 2185: (Amarnath and Ors vs. State of Haryana & Ors)
(d) 2009 Cri.L.J. Page 189: Dr. Sham Lal Thukral vs. State of Punjab (Crl.M. No. 19680M of 2006): dated 28.07.2008.
(e) AIR 2013 SC 2248: Mohit alias Sonu & Anr vs. State of UP & Anr (Crl.A.No. 814/2013) 9 Ld. Sr. Advocate appearing for accused Vikaas and Smt. Sudharshan Walia argued that revision petition no. 62/14 filed by Smt. Simran Ahluwalia is not maintainable U/S 397(2) Cr.P.C because summoning order is an interlocutory order. In support of his arguments, ld. Sr. C.R. nos.54/14 & 62/14 23.04.2015 Page no. 10/22 Advocate relied upon a case titled as K.K. Patel vs. State of Gujarat (2000) 6 Supreme Court Cases 195, wherein it was held in para no. 11 of the judgment that:
"11. That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on record of the bar contained in Section 397(2) of the Code, is clearly erroneous. It is now well nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath vs. State of Haryana, Madhu Limaya vs. State of Maharashtra, V.C. Shukla vs. State through CBI and Rajendra Kumar Sitaram Pande vs. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if C.R. nos.54/14 & 62/14 23.04.2015 Page no. 11/22 so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were uphold by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
10 Ld. Sr. Advocate submitted that going by the test laid down in K.K. Patel's case (supra), his revision petition is maintainable because if the same is allowed the entire proceedings will come to an end whereas the revision petition of Smt. Simran Ahluwalia is not maintainable as it is related only to interlocutory order. There is no quarrel to the legal proposition. However, the facts of the present case are different. In the present case, the grievance of Smt. Simran Ahluwalia is that the bank officials have not been summoned and accused Vikaas Ahluwalia and Smt. Sudarshan Walia have not been summoned for the C.R. nos.54/14 & 62/14 23.04.2015 Page no. 12/22 appropriate offences made out against them. In my view, in the given facts & circumstances of the present case, the order passed by ld. trial Court cannot be said as an interlocutory order as it does not culminate the proceedings in case the objections taken in the criminal revision petition no 62/14 are upheld. In my view, the contention of Sr. Advocate is not tenable in the facts & circumstances of the case as facts of present case are entirely different from the facts of K.K. Patel's case (supra).
11 Careful perusal of impugned order dated 11.09.2014 reflect that from para no. 1 to para no. 6, ld. trial Court has mentioned the facts, evidence led by complainant and the documents proved on record. The observations of ld. trial Court are contained in para no. 7 of the impugned order, which is as follows:
"7. Submissions upon point of summoning has been addressed by Adv. Ms. Anu Narula for complainant. Considering the allegations and depositions of complainant and handwriting expert Sh. Pandit Ashok C.R. nos.54/14 & 62/14 23.04.2015 Page no. 13/22 Kashyap, at this stage, sufficient ground is made out for proceeding against accused no. 1 Mrs. Sudharshan Walia (motherinlaw) and accused no. 2 Sh. Vikas Ahluwalia (husband) for alleged forgery of complainant's signature upon application dated 18.10.2006."
12 The impugned order dated 11.09.2014 clearly reflects that the observations of ld. trial Court in para no. 7 of the order is cryptic without any reason or analysis. Ld. trial Court has not given any reason that from the evidence on record what offences were made out so as to sufficient grounds for proceeding against accused no.1. Smt. Sudarshan Walia and accused no. 2 Vikaas Ahluwalia. The order is completely silent on the role of the Bank of Maharashtra despite specific allegations in the complaint and in evidence. The order of ld. trial Court does not reflect any observation about the report of handwriting expert that if the authorship of Smt. Simran Ahluwalia was not made out in respect of her questioned signature on the disputed letter dated 18.10.2006, whether the authorship of any of the C.R. nos.54/14 & 62/14 23.04.2015 Page no. 14/22 accused was made out and the same was necessary to consider the ingredients of different offences alleged against the accused persons.
13 As mentioned above, it was clear before the ld. trial Court from the averments of the complaint itself that the investigation was pending before Crime (Against) Women Cell wherein alleged forged certificate purportedly issued by Bank of Maharashtra was filed by accused Vikaas Ahluwalia. This fact was also mentioned during complainant's evidence. These facts had given a clue that the investigation on the same allegation i.e the subject matter of the complaint of Smt. Simran Ahluwalia were also the subject matter of pending investigation in case FIR No. 273/10 before Crime (Against) Women Cell, Krishna Nagar, Delhi.
14. Section 210 Cr.P.C provides the procedure to be followed when there is a complaint case and police investigation in respect of same offence and same is reproduced as under:
"210. Procedure to be followed when there is a complaint case and police C.R. nos.54/14 & 62/14 23.04.2015 Page no. 15/22 investigation in respect of same offence:
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subjectmatter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in C.R. nos.54/14 & 62/14 23.04.2015 Page no. 16/22 the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on the police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
15 It appears from the facts mentioned in the complaint itself that in relation with the dispute pertaining to locker, the matter was under investigation before Crime (Against) Women Cell, Krishna Nagar, Delhi and simultaneously the complaint was filed in Saket Court. Therefore, during proceedings of the complaint filed by Smt. Simran Ahluwalia, ld. trial Court was required to ascertain whether Section 210 Cr.P.C was applicable. C.R. nos.54/14 & 62/14 23.04.2015 Page no. 17/22 Record does not reflect that the applicability of Section 210 Cr.P.C was ever examined by ld. trial Court. In my opinion, ld. trial Court fell in a procedural illegality by not examining the applicability of Section 210 Cr.P.C. 16 It is established legal proposition of law that at the stage of summoning U/S 204 Cr.P.C, Court is required to assess whether there is sufficient ground for proceedings. Though the trial Court is not required to write a detail order but the order should reflect the application of judicial mind as to the fact and evidence on record. Summoning order should be clear and specific in respect of the accused and the offences made out at the stage of summoning. Normally, the trial Court should clarify in the order that which offences are made out for summoning of a particular accused or accused persons. In case the order is vague in respect of the offences, the summoning order may create confusion after the appearance of accused. From the summoning order, the other related questions can be determined whether it will be a summary trial case, a summon trial case, a warrant trial case or a Session triable case. The procedure and implications of different types of C.R. nos.54/14 & 62/14 23.04.2015 Page no. 18/22 trials are different in the scheme of Cr.P.C. If specific offences are not mentioned in the summoning order, it is difficult to determine, whether the offences alleged against the accused are bailable or nonbailable or which Court is competent to consider the question of bail. The impugned order dated 11.09.2014 does not clarify that for which offences accused Smt. Sudarshan Walia and Vikaas Ahluwalia were summoned and therefore ld. trial Court has fell in an illegality.
17 As per record, the complaint was filed against three accused i.e. Smt. Sudarshan Walia, Vikaas Ahluwalia and Bank of Maharashtra. In the impugned order dated 11.09.2014, ld. trial Court did not give any finding in respect of the role of Bank of Maharashtra. By implication, Bank of Maharashtra has not been summoned and in a sense it is like dismissal of complaint in respect of accused Bank of Maharashtra and that too without giving any reason in the impugned order. In my opinion, ld. ACMM should have given alteast brief reasons in respect of his opinion in respect of alleged role of Bank of Maharashtra. C.R. nos.54/14 & 62/14 23.04.2015 Page no. 19/22 18 Keeping in view of the above observations, in my opinion, the impugned order dated 11.09.2014 suffers from illegality and in substance is a nonspeaking order. In my opinion, in the given facts & circumstances, ld. trial Court was required to give atleast brief reasons in respect of summoning of particular accused and the offences made out against them.
19 In my opinion, in the facts of present case, it will not be appropriate for the revisional Court to enter into the role of ld. trial Court and to decide the question of summoning in respect of particular accused persons and the offences alleged against them. Keeping in view the above findings, in my view, the impugned order suffers from serious illegality. Therefore, the impugned order dated 11.09.2014 is set aside with following directions:
1) Firstly the ld. trial Court will consider whether Section 210 Cr.P.C is applicable in the facts & circumstances of the case. If Section 210 Cr.P.C is applicable, the ld.
trial Court will follow the procedure accordingly.
C.R. nos.54/14 & 62/14 23.04.2015 Page no. 20/22
2) In case in the opinion of ld. trial Court, section 210 Cr.P.C is not applicable, ld. trial Court will rehear the matter again by giving fair opportunity to the complainant.
3) In case any request is made in writing for examination of any other witness or production of any other document by the complainant, ld. trial Court may consider it on merits.
4) At the appropriate stage, ld. trial Court will examine whether there is any requirement to exercise discretion U/S 202 Cr.P.C to postpone the issuance of process and to conduct any inquiry or to direct any investigation for the purpose of deciding whether or not there is sufficient grounds for proceeding.
5) Keeping in view the observations of this Court, ld. trial Court may pass appropriate order U/S 203 Cr.P.C or U/S 204 Cr.P.C as the case may be giving brief reasons.
C.R. nos.54/14 & 62/14 23.04.2015 Page no. 21/22 20 In view of above findings, criminal revision petition No. 54/14 and revision petition no. 62/14 are allowed/disposed of. Original order be kept on the file of CR no. 54/14 and copy of the order be placed on the file of CR no. 62/14. Copy of order be sent to Ld. Trial Court alongwith trial Court record for information, record and compliance.
21 It is clarified that any expression in this order shall not affect the respective rights and contentions of the parties concerned at any stage of the proceedings before ld. trial Court and ld. trial Court will proceed with the matter in accordance with the law.
22 Files be consigned to record room after due compliance.
Announced in the open court
on 23.04.2015 (Sanjeev Jain)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Court
New Delhi
C.R. nos.54/14 & 62/14 23.04.2015 Page no. 22/22