Delhi District Court
Nitin Singhal vs . State (Nct Of Delhi) on 24 September, 2022
Nitin Singhal Vs. State (NCT of Delhi)
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 05, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI
CR NO.: 78/2021
UNIQUE CASE ID NO.: DLCT010074472021
IN THE MATTER OF :
Sh. Nitin Singhal
S/o Sh. Bhupendra Kumar Singhal
R/o C1/1, Ashok Vihar,
Phase2, Delhi110052 .... Revisionist
VERSUS
State (NCT of Delhi) .... Respondent
Date of institution of the revision petition : 11/06/2021
Date on which judgment was reserved : 26/08/2022
Date of judgment : 24/09/2022
CR No. 78/2021 Page No.1 of 29
Nitin Singhal Vs. State (NCT of Delhi)
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal revision petition under section 397 read with Section 399 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the revisionist against the impugned order dated 14/01/2021 (hereinafter referred to as 'impugned order') passed by Ms. Shivli Talwar, Ld. MM06, Central District, Tis Hazari Courts, Delhi in case FIR No.473/2014, PS Civil Lines titled as "State Vs. Nitin Singhal" thereby cognizance of the offence under Section 420 IPC was taken and summons were ordered to be issued against the revisionist/ accused Nitin Singhal.
In the present revision petition, the revisionist has prayed to summon the Trial Court Record, to allow the present revision petition and to set aside the impugned order dated 14/01/2021 passed by the Ld. Trial Court and to reject the finding against the revisionist in the report u/s. 173 Cr.P.C. filed by the police and to pass order not to summon the revisionist/ accused in the present case.
CR No. 78/2021 Page No.2 of 29Nitin Singhal Vs. State (NCT of Delhi)
2. Brief facts necessary for just adjudication of the present revision petition as stated in the present revision petition are that as per prosecution, a complaint was made by Office of Medical Superintendent of Aruna Asaf Ali Hospital against M/s. Shashi Medical services. On 15/03/2010 a demand for Fumifloor was given by DNS (Deputy Nursing Superintendent) to the Medical Superintendent and the said demand was marked to the Purchase Committee Members. The first lot of 200 units was purchased on 16/04/2010 @ Rs.2990/ + Tax each for five litres container. It was also recommended by Purchase Committee Members that DNS will ensure judicious use of the disinfectant in the hospital with report of its effectiveness. Accordingly, purchase was made in the year 2010 2011 vide various orders. As the sanitation and housekeeping contract expired on 04/07/2014, so the hospital decided to undertake the cleaning by its casual workers till the sanitation tender is done. Then, it transpired that stock of Fumifloor is already present in General Store and the Purchase Committee was apprised regarding AGCR audit objection regarding the quality and infructuous purchase of the said material. Accordingly, an email was sent to M/s PSK Pharma on CR No. 78/2021 Page No.3 of 29 Nitin Singhal Vs. State (NCT of Delhi) 09/08/2014 asking for chemical analysis of two batches supplied by the firm and M/s PSK Pharma sent an email dated 09/08/2014 wherein it was stated that the said material has not been manufactured at all by them. Hence, complaint was made that M/s. Shashi Medical Services has cheated.
The investigation was assigned to IOs and during the investigation, the said Fumifloor was seized from the hospital. M/s Shashi Medical Services is a partnership of Nitin Singhal and Daksh Khulbe. It is further alleged by the prosecution that Nitin Singhal during investigation stated that in the year 2007 also M/s Shashi Medical Services had purchased the same product from M/s PSK Pharma and earlier, they were the Delhi Distributors but due to less sale M/s PSK Pharma stopped direct billing to them. Thereafter, in the year 2010, when the order from hospital was received, then to purchase the said product, he contacted various shops in Medical Market Bhagirath Palace where Raju and Ravinder met. The said Raju and Ravinder told the name of their firm as SA Medicos situated at Shop No.30, IIIrd Floor, Takkar Complex, Pindi Street, Ludhiana, Punjab. The said persons stated that they can get the said Fumifloor of CR No. 78/2021 Page No.4 of 29 Nitin Singhal Vs. State (NCT of Delhi) M/s PSK Pharma at lower rate. They also confirmed that the goods would be original and given with proper invoice. Accordingly, during the year 20102012, he purchased the said Fumifloor in 4 parts against invoices respectively. During the investigation, the said Raju and Ravinder were caught by the police in the present case. Infact, the statements of said Raju and Ravinder were recorded by the police, who confessed their guilt. The owner of M/s PSK Pharma i.e. Mr. Basavraj had got registered FIR No.165/2014 PS Harihar Rural Police Station, Karnataka u/s. 483/486/420 IPC & 63 Copyright Act in which closure report was filed by the police. It was further alleged that the accused Nitin Singhal stated that towards the payment of said Fumifloor, the accused Nitin Singhal had given Medical/Drugs goods to said Raju and Ravinder. It was further alleged that Mr. Daksh Khulbe told that he had started the firm M/s Shashi Medical Services in the year 2002, however, Nitin Singhal joined as partner in the year 2007 for which partnership agreement and a bank account was also opened. He further stated that the firm i.e. M/s Shashi Medical Services which had supplied goods to the hospital is a different firm of accused Nitin Singhal. It is mentioned in the chargesheet that the sample of the CR No. 78/2021 Page No.5 of 29 Nitin Singhal Vs. State (NCT of Delhi) product was sent to the FSL, however, it was stated by the FSL that facility of examination of such type of cases does not exist. It was also alleged in the chargesheet that Raju and Ravinder were not found by the IO at their addresses and supplementary chargesheet will be filed in case any evidence come to the knowledge against hospital staff.
Thereafter, chargesheet was filed only against the revisionist and vide impugned order, cognizance was taken and the summons ordered to be issued to the revisionist.
3. The revisionist has challenged the impugned order on the grounds, as mentioned in the present revision petition.
Grounds of revision The impugned order is arbitrary, illegal, wrong and against the law. The Ld. Trial Court has failed to consider the facts of the case. IO SI Kunal Kishore has filed the present chargesheet with prejudice mind against the revisionist and without investigation to discover the true facts of the case. SI Kunal Kishore vide his letter of June 2018, had requested to initiate action against SI Dhan Singh Malik and ASI Lekhraj stating that when the revisionist was interrogated by him, it came to his knowledge that real culprits Raju CR No. 78/2021 Page No.6 of 29 Nitin Singhal Vs. State (NCT of Delhi) and Ravinder were produced before IO ASI Lekhraj and original bills were given to the IO. Original statements of Raju and Ravinder recorded by SI Dhan Singh and original bills were not found on record.
Original statements and bills were not produced by SI Dhan Singh and ASI Lekhraj. Thereafter, SI Kunal had requested to initiate action against SI Dhan Singh and ASI Lekhraj. Ld. Trial Court has failed to consider the statements of Ravinder and Raju recorded by the police in FIR No.165/2014, PS Harihar Rural, Karnataka wherein they accepted their guilt and the said fact has not been mentioned by the IO in the summary of the investigation. Ld. Trial Court has failed to consider the statement of Sh. H. N. Basavraj, MD, PSK Pharma Pvt. Ltd. recorded by the police during the investigation in FIR No.165/2014, PS Harihar Rural, Karnataka. The Ld. Trial Court has failed to consider the copy of the final report/closure report filed by the police in FIR No.165/2014, PS Harihar Rural, Karnataka. The Ld. Trial Court has failed to consider as to why Raju and Ravinder have not been made accused and if they are not traceable, then the said persons have not been declared PO. The Ld. Trial Court has failed to consider as to why Raju and Ravinder were not arrested and if arrested, then how they CR No. 78/2021 Page No.7 of 29 Nitin Singhal Vs. State (NCT of Delhi) allowed to be released in a nonbailable offence. Ld. Trial Court has failed to consider that when Raju and Ravinder had accepted their guilt and also proved that the revisionist is innocent, then how cognizance was taken against the revisionist. Ld. Trial Court has failed to consider that the chargesheet filed by the police is not proper as true facts and circumstances have not been disclosed by the police.
Ld. Trial Court has failed to consider that M/s SA Medicos was not found at the address and as to how the revisionist can be held liable if the said firm is not found at the said address. Ld. Trial Court was duty bound to scrutinized the report filed by the police. Ld. Trial Court has failed to consider that from the perusal of the report filed by the police, no offence is made out to summon the revisionist. The revisionist is not putting his defence as the present revision petition is limited to challenging the impugned summoning order.
4. This Court already heard the arguments on the present revision petition advanced by Ld. Counsel for the revisionist and Ld. Addl. PP for the State/respondent. Perused the material available on record.
CR No. 78/2021 Page No.8 of 29Nitin Singhal Vs. State (NCT of Delhi) During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned order is not an interlocutory order and the present revision petition against the impugned order is maintainable and impugned order is liable to be set aside on the grounds, as mentioned in the present revision petition.
On the other hand, it was submitted by Ld. Addl. PP for the State/respondent that the Ld. Trial Court has passed the impugned order in accordance with law and there is no error or infirmity in the impugned order and there is no merits in the present revision petition and the same is liable to be dismissed.
5. By way of present revision petition, the revisionist has challenged the order dated 14/01/2021 passed by the Ld. Trial Court.
The impugned order is reproduced as under: "14.01.2021 Vide Office order No. 1417/25841991 DJ(HQ)/Covid Lockdown/Physical Courts Roster/2020 dated 23.12.2020, the cases are being taken up through Video Conferencing today.
The undersigned is looking after work of court of Sh. Visvesh, Ld. Link MM.
None has joined through Video Conferencing on Cisco Webex.
CR No. 78/2021 Page No.9 of 29 Nitin Singhal Vs. State (NCT of Delhi)
Present: Sh. Pankaj Gulia, Ld. Substitute APP for the
State (through V.C.).
Perusal of case file reveals that accused
Nitin Singhal is chargesheeted without arrest.
I have perused the contents of the charge sheet. I take cognizance of the offence.
Issue summons to accused Ntiin Singhal to appear in person before the court, for the next date of hearing.
Put up for appearance of accused/further proceedings on 16.03.2021"
(Shivli Talwar) MM06 (C )/THC/Delhi/14.01.2021"
6. For the sake of ready reference, section 397 Cr.P.C. is reproduced as under: Section 397: Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and CR No. 78/2021 Page No.10 of 29 Nitin Singhal Vs. State (NCT of Delhi) if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.
(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
7. A plain reading of Section 397 Cr.P.C. makes it manifest that Section 397(1) Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court before the revisional court i.e. the High Court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section.
Now, it is significant to note that Section 397 (2) Cr.P.C. mandates that the power of revision conferred by subsection (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order in CR No. 78/2021 Page No.11 of 29 Nitin Singhal Vs. State (NCT of Delhi) any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under section 397 (2) Cr.P.C. to entertain revision against an interlocutory order.
The term "interlocutory order" as mentioned in section 397 (2) Cr.P.C. denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. An order which is pure and simple interlocutory order, which do not decide anything finally is to be considered as interlocutory order and no revision against that interlocutory order is maintainable under section 397(1) Cr.P.C. in view of the express bar imposed under section 397(2) Cr.P.C.
There are three categories of orders that a Court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a Court can exercise its revision jurisdiction that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the Court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Court can exercise its revision jurisdiction since it is not an interlocutory order. An intermediate order is one which is CR No. 78/2021 Page No.12 of 29 Nitin Singhal Vs. State (NCT of Delhi) interlocutory order in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
8. It was held by Hon'ble Supreme Court of India in case titled as " Amar Nath & Ors. Vs. State of Haryana & Anr.", {(1977) 4 SCC 137} that: "The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in subsection (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of wellknown legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a CR No. 78/2021 Page No.13 of 29 Nitin Singhal Vs. State (NCT of Delhi) purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
It was also held by Hon'ble Supreme Court of India in case titled as " V.C. Shukla Vs. State through C.B.I", (AIR 1980 SC 962] that: (1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an CR No. 78/2021 Page No.14 of 29 Nitin Singhal Vs. State (NCT of Delhi) interlocutory order;
(2) that the concept of interlocutory order has to be explained, in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.
It was also held by Hon'ble Supreme Court of India in case titled as "Poonam Chand Jain and Anr. Vs. Fazru", {(2004) 13 SCC CR No. 78/2021 Page No.15 of 29 Nitin Singhal Vs. State (NCT of Delhi) 269} that: "Wharton's Law Lexicon (14th Edn. p. 529) defines interlocutory order thus:
"An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all."
The principles/guidelines regarding the scope of criminal revision petition have also been laiddown by Hon'ble Supreme Court of India in case titled as "Girish Kumar Suneja Vs. Central Bureau of Investigation", {(2017) 14 SCC 809} and it was held that, "15. While the text of subsection (1) of Section 397 Cr.P.C. appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally CR No. 78/2021 Page No.16 of 29 Nitin Singhal Vs. State (NCT of Delhi) severely curtailed by subsection (2) thereof. There is a complete prohibition on a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
16. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
21. The concept of an intermediate order was further elucidated in Madhu Limaye Vs. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order CR No. 78/2021 Page No.17 of 29 Nitin Singhal Vs. State (NCT of Delhi) taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceeding would continue.
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel V. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K.Patel case, SCC p.201, para11) "11. ..... It is now wellnigh 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 v. State of Haryana, Madhu Limaye v. State of Maharastra, V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v.
Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if CR No. 78/2021 Page No.18 of 29 Nitin Singhal Vs. State (NCT of Delhi) 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 upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising the extraordinary discretionary power available under Section 397 Cr.P.C."
CR No. 78/2021 Page No.19 of 29Nitin Singhal Vs. State (NCT of Delhi) It was held by Hon'ble High Court of Delhi in case titled as " Neelam Mahajan and Anr. Vs. The State & Ors.", {(2016) 229 DLT (CN) 29} that: "........ In this regard catena of judgments of Hon'ble Supreme Court of India has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final and simultaneously, an interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. Therefore, in the considered opinion of this Court, if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could be attached to the order."
9. By way of present revision petition, the revisionist has challenged the impugned order dated 14/01/2021 passed by the Ld. Trial Court thereby cognizance of the offence was taken and CR No. 78/2021 Page No.20 of 29 Nitin Singhal Vs. State (NCT of Delhi) revisionist/ accused was summoned.
Now this Court has to see as to whether the impugned order is interlocutory, intermediate or final order.
After referring number of judgments, it was held by Hon'ble Supreme Court of India in case titled as "Urmila Devi Vs. Yudhvir Singh.", {(2013) 15 SCC 624} that order taking cognizance and issuance of summons to the accused is not an interlocutory order and criminal revision against the same is maintainable.
Hence, in view of the Urmila Devi case (supra), it is clear that criminal revision is maintainable against the order of cognizance and issuance of summons to the accused.
10. Now this Court shall proceed to decide the present revision petition on merits.
By way of present revision petition, the revisionist has challenged the impugned order dated 14/01/2021 passed by the Ld. Trial Court thereby cognizance of the offence was taken and revisionist/ accused was summoned.
The parameters for taking cognizance and summoning order CR No. 78/2021 Page No.21 of 29 Nitin Singhal Vs. State (NCT of Delhi) have been defined by the Hon'ble Supreme Court of India in case titled as "State of Gujarat Vs. Afroz Mohammed Hasanfatta" {AIR 2019 SC 2499} and it was held that : "22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or CR No. 78/2021 Page No.22 of 29 Nitin Singhal Vs. State (NCT of Delhi) when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality.
37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an exfacie defence such as a legal bar or if in law the accused is not liable."
It was held by Hon'ble Supreme Court of India in case titled as "Sonu Gupta Vs. Deepak Gupta & Ors." {Crl. Appeal No.285287 of 2015 decided on 11/02/2015} that : CR No. 78/2021 Page No.23 of 29 Nitin Singhal Vs. State (NCT of Delhi) "At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial."
11. In the present case, chargesheet in case FIR No.473/2014 U/s 420 IPC PS Civil Lines was filed before the Ld. Trial Court and CR No. 78/2021 Page No.24 of 29 Nitin Singhal Vs. State (NCT of Delhi) vide impugned order dated 14/01/2021 passed by the Ld. Trial Court cognizance of the offence was taken and accused Nitin Singhal was summoned.
Briefly stated the case of the prosecution as mentioned in the aforesaid chargesheet is that Aruna Asaf Ali Government Hospital was procuring Fumifloor (sanitation material) manufactured by M/s PSK Pharma Private Limited through local supplier M/s Shashi Medical Services and the Hospital received the four consignments through M/s Shashi Medical Services. During inspection, AGCR team raised objections against the quality and infructuous purchase of Fumifloor and hospital decided to carry out chemical test of procured material and sent email to manufacturer M/s PSK Pharma Private Limited and M/s PSK Pharma Private Limited stated that the material received in the hospital has not been manufactured by them at all. It is also mentioned in the chargesheet that the accused Nitin Singhal, who is the partner of M/s Shashi Medical Services, with intention to cheat had supplied spurious material to the Aruna Asaf Ali Government Hospital, Delhi and the accused himself had received all supply orders and payment of cheque by hand. It is also mentioned that the accused had CR No. 78/2021 Page No.25 of 29 Nitin Singhal Vs. State (NCT of Delhi) opened bank account in his personal capacity in the name of M/s Shashi Medical Services in ING Vysya Bank Limited, Preet Vihar, Delhi.
It is also mentioned that with dishonest intention, the accused instead of depositing the said cheque in partnership firm M/s Shashi Medical Services, the accused had deposited the said cheque in the personal capacity account in the name of M/s Shashi Medical Services. It is also mentioned that when the accused had received the supply order of "Fumifloor" from Aruna Asaf Ali Government Hospital, Delhi, it was the responsibility of the accused to supply the original product/goods to the said hospital but the accused had supplied the spurious Fumifloor to the aforesaid hospital. It is also mentioned that there is no incriminating evidence found against the partner Daksh Khulbe and staff of the aforesaid hospital.
12. It is the contention of the revisionist that Raju and Ravinder had supplied the duplicate Fumifloor to the accused and the same was supplied by him to the hospital. It is also the contention of the revisionist that Raju and Ravinder had admitted their guilt that they had supplied the duplicate Fumifloor to the accused and statements of CR No. 78/2021 Page No.26 of 29 Nitin Singhal Vs. State (NCT of Delhi) Raju and Ravinder were recorded by the IO in the present case FIR. It is also the contention of the revisionist that Raju and Ravinder have not been made accused in the present case. It is also the contention of the revisionist that no offence is made out against the revisionist/ accused.
As per revisionist, statements of Raju and Ravinder were recorded in the present case FIR No.473/2014 PS Civil Lines, wherein they admitted their guilt that they had supplied the duplicate Fumifloor to the revisionist. On perusal of chargesheet, it is revealed that the aforesaid statements of Raju and Ravinder, which as per revisionist were stated to be recorded in the present case FIR No. 473/2014 PS Civil Lines, are not on record. It is also mentioned in the chargesheet that addresses of Raju and Ravinder provided by the revisionist/accused are incorrect. It is also mentioned in the charge sheet that in future, any fact or evidence come, the same will be filed through supplementary chargesheet.
All the contentions as raised by the revisionist by way of present revision petition are his defence and the same were not required to be looked into for the purpose of taking cognizance and for CR No. 78/2021 Page No.27 of 29 Nitin Singhal Vs. State (NCT of Delhi) summoning the accused by the Ld. Trial Court.
It is well settled law that the Magistrate, at the stage of taking cognizance and summoning, has to see as to whether a prima facie case has been made out for taking cognizance and summoning the accused. Perusal of chargesheet discloses primafacie offence as alleged in the chargesheet against the revisionist/ accused. The contentions of the revisionist/ accused have to be decided only in the trial. In view of the law laid down in Afroz Mohammed Hasanfatta and Sonu Gupta cases (supra), the aforesaid contentions of the revisionist are not tenable for the purpose of taking cognizance and for summoning the accused.
On perusal of chargesheet, this Court is of the opinion that there were sufficient material available on record before the Ld. Trial Court for taking cognizance of the offence, as mentioned in the chargesheet and for summoning the accused.
13. It is well settled law that scope of revisional jurisdiction is very limited and same cannot be exercised in a routine manner.
Applying priori and posteriori reasonings and the aforesaid CR No. 78/2021 Page No.28 of 29 Nitin Singhal Vs. State (NCT of Delhi) case laws, this Court is held that there is no illegality, impropriety and infirmity in the impugned order passed by the Ld. Trial Court.
Accordingly, the present revision petition of the revisionist is dismissed.
No order as to costs. Nothing stated herein shall tantamount to be an expression of opinion on the merits of the case.
Trial Court Record be sent back alongwith the copy of this judgment. Revision file be consigned to record room after due compliance.
Digitally signed by VIJAY SHANKAR VIJAY Date:
SHANKAR 2022.09.24
18:49:42
Announced in the open Court
+0530
on 24/09/2022 (VIJAY SHANKAR)
ASJ05 (Central)
Tis Hazari Courts, Delhi
CR No. 78/2021 Page No.29 of 29