Delhi District Court
M/S Comarsons vs Sh. Bhagwan Dass Comar on 22 August, 2015
1
IN THE COURT OF RAJIV MEHRA
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Criminal Revision No.49/2015
1. M/s Comarsons
2. Mrs. Kiran Comar,
Wife of Late Sh. Vinod Comar
Partner M/s Comarsons
3. Sh. Mohit Comar,
S/o Late Sh. Vinod Comar
Partner M/s Comarsons
All C/o Shop No.2, 6/64,
W.E.A., Karol Bagh,
New Delhi - 110005
Also at:-
B-61, Naraina Vihar,
New Delhi ......Petitioners
Versus
Sh. Bhagwan Dass Comar
(Since deceased)
Through his one of the legal heirs
namely Sh. Vikas Comar,
S/o Late Sh. Bhagwan Dass Comar,
R/o E-75, Naraina Vihar,
New Delhi ......Respondent
ORDER
1. Sh. Bhagwan Dass Comar who is since deceased originally had filed a criminal complaint u/s 138 against petitioners 2 Comarsons and its partners. This complaint was compounded qua accused Vishal and he was discharged. Sh. Bhagwan Dass executed a power of attorney in favour of his grandson namely Vikas Comar for prosecuting complaint case. Sh. Bhagwan Dass Comar expired on 16.1.2008 during the inquiry.
2. Thereafter as per TCR his legal heirs namely all the petitioners except firm and respondent Vikas Comar were brought on record as Lrs of deceased Bhagwan Dass Comar.
3. This application to bring the legal heirs was moved on the record of Trial Court on 12.8.2011 by the attorney of deceased Bhagwan Dass Comar and the same was allowed vide order dated 4.12.2012 and five legal heirs namely Usha Wadhwa, Uma Wadhwa, Kiran Comar, Mohit and Vishal Comar were substituted on record as legal heirs of Sh. Bhagwan Dass Comar.
4. Second application again preferred by Vikas Comar before the Trial Court on 23.7.2014 for deleting of the name of petitioners. This application was allowed by the Trial Court on 10.11.2014 and this order is the impugned order which is being challenged before this Court vide present revision petition.
5. TCR was summoned. Notice of the petition has been issued to the respondent.
36. Heard the Ld. Counsels for the parties.
7. It is submitted by the counsel for the petitioners who are respondents/accused in the Trial Court that the complaint case was pursued before the Trial Court subsequent to the demise of Sh. Bhagwan Dass Comar without bringing Lrs on record or even without informing the Court. It is submitted that Vikas Comar special power of attorney of the deceased even filed affidavit of evidence without informing the Court about the death of Sh. Bhagwan Dass Comar.
8. It is submitted that it is in the year 2011 that the fact of death of Sh. Bhagwan Dass was brought to the notice of the Trial Court by the petitioners herein and thereafter the application for substitution of Lrs. was filed by the respondent Vikas Comar.
9. It is submitted by the Ld. Counsel that thereafter one undated application has been filed by respondent Vikas Comar before the Court concerned for deleting the names of the petitioners submitting that they are the accused in the compliant case before the Trial Court and a prayer has been made to allow him to continue as the only Lr of the deceased Sh. Bhagwan Dass Comar.
410. It is submitted by the Ld. Counsel that in this regard respondent Vikas Comar is relying upon a Will dated 11.8.2004 as well as Special Power of Attorney allegedly executed in his favour by deceased Sh. Bhagwan Dass Comar.
11. It is submitted by the Ld. Counsel that since Sh. Bhagwan Dass Comar has expired, the power of attorney executed by him came to an end immediately. It is submitted that so far as question about the authenticity of the Will dated 11.8.2004 is concerned, the same is subject matter of Probate Petition at present pending in the Court of Sh. Chandra Gupta Ld. ADJ (Central), Delhi. It is submitted that petitioners have been objecting to the genuineness of the said Will.
12. It is submitted that in view of this position the Trial Court is not competent to record any finding regarding the genuineness of the Will in question. It is submitted by the Ld. Counsel that in case the Probate Court holds that Will is forged, then no fruitful purpose will be served to continue with the complaint case before the Trial Court.
13. It is submitted by the Ld. Counsel for the petitioners that Trial Court was not justified in reviewing the earlier order dated 4.12.2012 by which the application of the respondent was allowed impleading all the legal representatives of the deceased Sh. Bhagwan Dass Camar on record. It is submitted that order passed 5 by the Ld. Predecessor is not subject to review by the Successor Court.
14. It is submitted by Ld. Counsel for the petitioners that while allowing this application of the respondent vide impugned order the Trial Court in Para five has referred to the SPA and also to the Will, when none of the two documents is of any help to him and according to the Ld. counsel Trial Court was not justified deriving support from these two documents. It is submitted by Ld. Counsel that Trial Court ought to have waited for the outcome of Probate Petition filed by Vikas Comar and is not justified in pursuing with the complaint case by allowing his application to continue with the complaint because he has been noted being SPA and also his claim that a Will has been executed in his favour by Sh. Bhagwan Dass Comar.
15. It is submitted that complaint proceeding in the given facts and circumstances should have been adjourned sin-a-die.
16. On the other hand it is submitted by Ld. Counsel for the respondent Vikas Comar that presence or absence of the Will does not make any difference in the criminal proceedings.
17. It is submitted that in this regard Section 256 Cr.PC and also Section 302 Cr.PC have taken ample care of the situation. It is submitted by the Ld. Counsel that the factual matrix 6 is also relevant and to be analyzed for the purpose of disposal of the present revision petition.
18. It is submitted by the Ld. Counsel that part complainant evidence in this case was recorded on 5.7.2007. On that day there were two witnesses before the Trial Court. One was Vikas Comar partially examined as CW-1 on that day and the other witness CW-2 was bank official Ravinder Kumar Jha, who was completely examined and discharged. It is submitted that Vikas Comar prosecuting the complaint has already stepped into the witness box for deceased Bhagwan Dass Comar as CW-1. Sh. Bhagwan Dass Comar expired on 16.1.2008. His date of death is after the commencement of evidence.
19. It is submitted by the Ld. Counsel that on 15.3.2008 death certificate of Sh. Bhagwan Dass Comar was placed on record. It is submitted that there was no intention to conceal the fact of death of Sh. Bhagwan Dass Comar. Then moreover the parties to the complaint case are real brothers. It is submitted that neither the fact of death of Sh. Bhagwan Dass Comar was concealed nor there was any intention to do so.
20. It is submitted that on 28.8.2008 both parties had agreed to resolve the dispute and the matter was adjourned for 3.9.2008 for recording of the settlement between the parties. This happened only after the death of Sh. Bhagwan Dass Comar. It is 7 pointed out that on 3.9.2008 again on a joint request of the parties, the matter was adjourned for 10.9.2008 for settlement. On that day as the record shows the Court was on leave but counsel for the accused pass on the settlement documents to the counsel of the complainant. On this date matter was adjourned for recording of settlement and further proceeding for 1.12.2012. Again on that day the Court was on leave and matter was adjourned for 22.8.2009. Since parties requested for more time for settlement the matter was adjourned again. It is submitted that on 6.4.2011, the Court considering to the fact that case has an element of settlement had given time to explore the same. After which chapter of settlement was closed and application came up for deletion of the name of the accused.
21. It is submitted that the development of settlement have taken place only during the period of post death of Sh. Bhagwan Dass Comar. It is submitted that accused recognized Vikas Comar as complainant.
22. It is submitted by Ld. Counsel that Section 256 Cr.P.C speaks of non appearance or death of the complainant on a particular day when the matter comes up for hearing. There are three situations covered up by this Section which are as follows:-
(a) The Ld. Magistrate may acquit the accused.
(b) Magistrate can adjourned the case.
(c) Magistrate may proceed with the trial if personal
8
attendance of the accused is not necessary.
23. These three stages are covered in clause (1) of Section 256 Cr.P.C.
24. Clause (2) deals with a situation where non appearance is because of the death of the complainant.
25. Ld. Counsel is also relying upon Section 302 Cr.P.C which deals with permission to conduct prosecution. He has been placing reliance upon judgment in the matter of Sebastian Vs. State of Kerala 2004 (1) KLT 457 (it find mentioned in Para 5 of the impugned order). In this case the deceased's sister filed application for substitution and one of the point before the Court was that she was having a will in his favour.
26. It is submitted that in Para 7 of the above said case Sebastian (Supra) , the ratio is that it is not essential that one who seeks to continue with the proceedings must be a legal heir or even legal representative. A fit and proper person can be permitted to continue. The Court observed that there is no reason to come to a conclusion that the second respondent sister of the deceased is not a fit and proper person to continue with the proceedings.9
27. It is submitted by the Ld. Counsel that in this case Vikas Comar is a fit and proper person to continue with the complaint case subsequent to the death of Sh. Bhagwan Dass Comar and Court while permitting the subsequent application vide impugned order allowing him to continue with the complainant is not reviewing his own order. It is submitted that the impugned order was absolutely justified in the given facts and circumstances by segregating the complainant and accused persons.
28. It is submitted that by the earlier order dated 4.12.2012 all accused were brought as complainant on record being Lrs of the deceased Sh. Bhagwan Dass Comar. It is submitted that continuation of the earlier order will lead to a situation where accused will have a say to their own prosecution which is not permissible otherwise under the law.
29. It is submitted that assuming Will is not there even then Vikas Comar taking recourse to Section 302 IPC is a fit and proper person to continue with the proceedings in the present complaint case after the demise of Bhagwan Dass Comar and proceedings will not come to an end in that event because of the reason of his death.
30. It is submitted that even otherwise impugned order is not a revisable order. It is submitted that the Ld. MM was acting on a fresh application which was regarding the continuation of the 10 criminal proceedings because parties had failed to reach to any settlement. According to the counsel it was a fresh circumstance with which the Court was dealing with. It is submitted that the Court order does not suffer from any infirmity much less to say to any illegality or to any impropriety.
31. Having heard the Ld. Counsels at length and perusing the TCR, this Court is of the view that impugned order in question allowing Vikas Comar and deleting the names of petitioners is not open to recall in view of the legal position given u/s 256 Cr.P.C and also u/s 302 Cr.P.C.
32. The TCR shows that Vikas Comar was proceeding with the case since during the lifetime of deceased Bhagwan Dass Comar. There is nothing adverse against him which makes him unfit to prosecute the case after the demise of Sh. Bhagwan Dass Comar. The petitioners are accused in the trial and it would only be a weird and absurd position to allow them to continue as legal heirs of the complainant . This position is unheard or even otherwise impermissible under the law. Accused cannot be allowed to lead his own prosecution.
33. As far as reliance placed by Ld. Counsel for the petitioners upon R Sandhyarani Vs. M Mylarappa 2007 Law Suit (KAR) 53 and A B Ramulu (Died) Per Lrs Vs. B Yadigir Reddy (Died) Rep, By General Power of Attorney Holders 1993 11 LawSuit (AP) 85 that power of attorney comes to an end once the executor dies, there is no dispute to the preposition but as discussed above the criminal prosecution has to go on and u/s 256 Cr.P.C and Section 302 Cr.P.C someone has to be substituted in place of deceased complainant to continue prosecution. In view of this position the judgments relied upon by the counsel for the petitioners as such will not be of any help to them. Civil law has no connotations to apply to a criminal prosecution.
34. The objection that proceedings should be stayed before the Trial Court till the time Probate Petition is decided is only to be rejected. Criminal prosecution cannot be stayed or made dependent on the outcome of the Probate Proceedings.
Both are distinct and separate proceedings
35. Similarly the judgment relied upon by the Ld. Counsel for the petitioners on the point of impermissibility of review and ratio therein were in a different fact scenario and context and they are not applicable to the facts of the present case. The judgment Subhadip Laskar Vs. Sanjukata Laskar (Nee Sarkar) 2009 LawSuit (Cal) 522 was dealing with a fact situation where 125 Cr.PC petition was rejected against which criminal revision petition before the Hon'ble High Court was also rejected and again a second petition was filed to challenge the order of the rejection of the petition by the Court of Magistrate. Reliance has also been placed on S.K. Bhalla Vs. State & Ors. 180 (2011) DLT 219 in which few accused was discharged by the Trial Court at the stage 12 of serving of the notice u/s 251 Cr.P.C for the offence u/s 509 IPC. Similarly in judgment State of Kerala Vs. M.M. Manikantan Nair (2001) 4 SCC 752 the preposition was that the respondent in the Hon'ble High Court filed revision petition u/s 482 Cr.P.C for quashing criminal proceedings against him which was dismissed by the Hon'ble High Court and later on some other petition was filed before the Hon'ble High Court against the very same order which was allowed. Similarly in Harjeet Singh Vs. State of West Bengal 2005 Cri. L.J. 3286 again will not be of any help considering to the fact situation.
36. Here in this case it is not deemed to be the review of the earlier order by the Ld. Magistrate and rather it was a fresh order passed by him considering to the circumstances before the Court concerned. The impugned order does not amount to the review of the earlier order. It is only a miscellaneous order necessitated in the facts and circumstances of the case at the relevant point of time. Someone is needed to continue the complaint.
37. As such revision petition is dismissed having no merit.
38. TCR alongwith copy of the order be sent back to the Trial Court for information and records.
1339. Parties to appear before the Trial Court on 2.9.2015.
40. Revision file be consigned to record room.
Dictated and announced in the open Court on 22.08.2015.
( RAJIV MEHRA ) Additional Sessions Judge(Central) Delhi.