Delhi District Court
Capfin India Limited vs Rajiv Gupta on 10 May, 2011
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE01,NORTH, DELHI.
Crl. Revision No.: 18/2011
CC/FIR No.: 26/01
P.S.: Timarpur
Concerned/Successor Court:
Sh. Gagandeep Singh,MM, Delhi
IN THE MATTER OF :
Pradeep Kumar Aggarwal
16, Banarsi Dass Estate,
Timarpur, Delhi54
Smt. Kaveri Aggarwal
W/o Sh. Pradeep Aggarwal
16, Banarsi Dass Estate,
Timarpur, Delhi54
Capfin India Limited
3583/4, Darya Ganj
Delhi 110002
..............Petitioner
Vs.
Rajiv Gupta
S/o Sh. Ved Prakash Gupta
R/o 50, Gold Link, New Delhi
Also at:
17B, Asaf Ali Road
Crl. Revision No.: 18/2011 1/9
New Delhi 110002
Motor General Finance Ltd.
Having its office at:
17B, Asaf Ali Road
New Delhi 110002
.............Respondent
ORDER
1. Present revision has been filed against the order dated 11.11.2010 passed by Ld. MM whereby Ld. MM dismissed the application U/s 210 (2) Cr.P.C. filed by the petitioners and fixed the case for precharge evidence.
2. According to the petitioners, the petitioners had purchased some land from respondents excepting state where some defect was found which led to dispute between the parties and thereafter the petitioners filed a criminal complaint at police station Timarpur but since no action was taken by the SHO P.S. Timarpur, the petitioners filed the criminal complaint before Ld. MM U/s 200 Cr.P.C.. The then Ld. MM called the report from SHO P.S. Timarpur and during the pendency of the criminal complaint, police officials of P.S. Timarpur also registered the case against the respondents. After registration of the case, the then Ld. MM did not pass any order U/s 156 (3) Cr.P.C. and after the collection of evidence and recording of the statements of various witnesses, police officials of P.S. Timarpur filed the cancellation report U/s 173 Cr.P.C. The then Ld. MM after going through the entire cancellation report did Crl. Revision No.: 18/2011 2/9 not allow the cancellation and ordered for summoning accused Rajiv Gupta and MGF Company for the offence U/s 420 IPC vide order dated 27.6.2005 and according to the petitioners that order became final as same has not been challenged by any of the parties till date. According to the petitioners, both the accused were summoned U/s 420 IPC vide order dated 27.6.2005 and since the complaint case was also pending therefore the court under heavy pressure and pendency of the case, recorded the findings that the case is now adjourned for precharge evidence for 28.3.2006. According to the petitioners, these observations were made by the court due to heavy pendency of the case when in fact the police report had already been filed and accused had already been summoned therefore there was no occasion for the trial court to fix the case for precharge evidence. According to the petitioners, the controversy which has now arisen is whether the Ld. Judge intended to proceed in FIR case disagreeing with the cancellation report or intended to proceed with the complaint case. Due to this controversy according to the petitioners they filed an application U/s 210 (2) of Cr.P.C. which has been dismissed vide impugned order which is under challenge now.
3. After the filing of revision, notice was given to state and notice was also sent to the other respondents. Initially in the memo of parties, the petitioners named three respondents but subsequently they submitted that they are dropping respondent no.3 Sh. M.K. Madan from the memo of parties.
Crl. Revision No.: 18/2011 3/9
4. Counsel for respondent no. 1, 2 & 3 appeared and reply has been filed by the respondents. In the reply it is stated that the impugned order is interlocutory in nature and therefore revision against the same does not lie. It is further stated that the order for precharge evidence has not caused any prejudice to the petitioners and, therefore the petitioners have no locus standi to file the present revision petition.
5. I have heard Ld. Counsels for both the parties and have carefully perused the record.
6. In this case, due to the dispute between the petitioners and respondents, the petitioners initially filed a complaint against the respondents before SHO P.S. Timarpur but since no action was taken by the police officials against the respondents, therefore the petitioners also preferred a complaint U/s 200 Cr.P.C. and the said complaint was moved by the petitioners against the three respondents namely Sh. Rajiv Gupta, M/s Motor General Finance Ltd. , Sh. M.K. Madan, another director of M/s Motor General Finance Ltd. U/s 409/418/420/467/468/471 r/w sec. 120B IPC. In the meanwhile SHO P.S. Timarpur also registered the FIR against the respondents/accused persons and after investigation, filed the cancellation report in the court of the then Ld. MM. That cancellation report was not accepted by the then Ld. MM and vide order dated 27.6.2005, Ld. MM formed the opinion that accused Rajiv Gupta and MGF Company be summoned for the offence U/s 420 IPC. The accused persons/respondents were ordered to be summoned for 4.10.2005. On Crl. Revision No.: 18/2011 4/9 4.10.2005 Ld. MM granted bail to accused/respondent Rajiv Gupta and fixed the case for precharge evidence for 28.3.2006. Subsequently the case was transferred to various courts and it seems that till the impugned order was passed, the case was adjourned again and again for precharge evidence. Perusal of the order sheet dated 19.8.2009 shows that the complainant was again not ready for precharge evidence and therefore adjournment was allowed subject to heavy cost. Subsequently on the next date i.e. on 15.10.2010 the complainant pressed his application U/s 120 (2) Cr.P.C. and accused persons/respondents filed their reply to the same . No doubt U/s 210 (2) Cr.P.C. if a report is made by the investigating police officer U/s 173 Cr.P.C. and on such report cognizance if any offence is taken by the Magistrate against any person who is an accused in 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 a police report. Thus, after the filing of report U/s 173 Cr.P.C. it is clear that the complaint case be clubbed with the same and both the cases will go as the police case. But there is an exception to this rule which is provided in section 210 (3) of Cr.P.C.
Section 210 Cr.P.C. reads as under:
Section 210 Cr.P.C. : " Procedure to be followed when there is a complaint case and police investigation in respect of the 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 Crl. Revision No.: 18/2011 5/9 held by him, that an investigation by the police is in progress in relations to the offence which is the subject matter 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 U/s 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in 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 a 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".
7. In the case in hand, petitioners filed the complaint against three accused persons U/s 409/418/420/467/468/471 IPC r/w sec. 120B IPC. On the police report, the then MM vide order dated 27.6.2005 summoned two accused persons namely Rajiv Gupta and MGF Company and that too only for the offence U/s 420 IPC. Though it is not mentioned in the order sheet dated 4.10.2005 clearly by the then Ld. MM that since the other accused has not been summoned on the police report and also accused persons have not been summoned for all the offences mentioned in the complaint case, therefore now the provisions of section 210 (3) shall apply and it is for this reason that the then Ld. MM fixed the case for precharge evidence and fixing of the case for precharge evidence itself shows that it is not a mistake committed by the then Ld. MM under Crl. Revision No.: 18/2011 6/9 heavy pressure of work but the then Ld. MM was fully aware of the provisions of section 210 (3) Cr.P.C. and therefore for this reason he fixed the case for precharge evidence.
8. Vide impugned order dated 11.11.20010 Ld. MM has clearly held that the case was fixed for precharge evidence and moreover the trial court has no powers to review its own orders. The order for pre charge evidence was not only passed on 4.10.2005 but subsequently also the case was fixed for precharge evidence. It was only after when the court insisted the petitioner to lead precharge evidence that the plea of section 210 (2) Cr.P.C. has been taken by the petitioner. Ld. MM has rightly held that the case was fixed for precharge evidence vide order dated 4.10.2005 and thereafter the application U/s 210 (2) Cr.P.C. has been moved by the petitioners on 2.3.2009 and during the period in betwen, petitioners have never complained about the procedure adopted by the court. Not only this the order dated 11.11.2010 passed by Ld. MM is interlocutory order and therefore the revision against this order is not maintainable in view of the provisions of section 397 (2) Cr.P.C..
9. Ld. Counsel for petitioners has placed reliance upon AIR 1980 Supreme Court 1883. In this case also it has been held that even if the police report shows that no case is made out, still the Magistrate can take cognizance . In the case in hand, there is no dispute with this proposition that the Magistrate can take cognizance even after the cancellation report has been filed by the police. Similar view has been taken in AIR 1989 Crl. Revision No.: 18/2011 7/9 Supreme Court 885 and also in 2008 Crl. L.J. 428. It may be mentioned that all these authoritative pronouncements cited by the counsel for petitioners does not help the petitioners in the present case. In the present case, there is no controversy regarding this proposition that the magistrate can take cognizance even if cancellation report has been filed by the police. Rather the controversy is regarding the fact whether after the filing of police report U/s 173 Cr.P.C. wherein Ld. MM has taken cognizance against only two of the accused persons and has summoned them only under one of the offence and if in the complaint filed by the complainant, there are more than two accused persons who have not been summoned by the MM and also the complainant has filed the complaint under other provisions of IPC also in addition to the one under which Ld. MM has summoned the accused, the provisions of section 210 (2) Cr.P.C. or of section 210 (3) Cr.P.C. shall apply. A bare perusal of the provisions of sec. 210 Cr.P.C. shows that in such circumstances the provisions of section 210 (3) Cr.P.C. shall apply and the case will proceed as the complaint case and not as police case.
10. In view of the abovesaid discussion, there is no infirmity or illegality in the order dated 11.11.2010 passed by Ld. MM. Same is, therefore, upheld and present revision filed by the petitioners is dismissed. Parties are directed to appear before the Trial Court on 20.5.2011. Ahlmad to send the trial court record alongwith copy of this order on or Crl. Revision No.: 18/2011 8/9 before 20.5.2011. Revision file be consigned to Record Room.
(MADHU JAIN) Additional Sessions Judge3 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 10.05.2011 Crl. Revision No.: 18/2011 9/9 Crl. Rev. No.: 18/2011 Pradeep Kumar Aggarwal & Ors. Vs. State & Ors.
10.5.2011 Present: None.
Vide separate order dictated and announced in the open court, present revision filed by the petitioners is dismissed. There is no infirmity or illegality in the order dated 11.11.2010 passed by Ld. MM. Same is, therefore, upheld. Parties are directed to appear before the Trial Court on 20.5.2011. Ahlmad to send the trial court record alongwith copy of this order on or before 20.5.2011. Revision file be consigned to Record Room.
(MADHU JAIN) ASJ01(N)/DELHI 10.5.2011 Crl. Revision No.: 18/2011 10/9