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Delhi District Court

Naresh Kumar Arora vs State (Nct Of Delhi) on 4 January, 2013

              IN THE COURT OF SH. NARINDER KUMAR
        ADDITIONAL SESSIONS JUDGE(CENTRAL): DELHI


Criminal Revision No.186/2013
In the matter of:­


Naresh Kumar Arora
Proprietor M/s New Heaven Colour Lab,
29/2, Nangia Park,
Shakti Nagar, Delhi­110007                  ....Petitioner

     Versus

1.   State (NCT of Delhi)
     Through Public Prosecutor

2.   Sh. Nitin Garg
     S/o Sh. Harish Chandra Garg,
     R/o A­34, Ashok Vihar, Phase­III
     Delhi­ 110052
Also At
      29/2, Nangia Park,
      Shakti Nagar, Delhi­110007           ....Respondents


Date of Institution:  08.10.2013
Date of Judgment:    04.01.2014



                          J U D G M E N T

Vide impugned order dated 08.07.2013, in case FIR No. 259/07 registered at PS Sadar Bazar Trial Magistrate has taken cognizance for offences under Section 419, 420, 468, 471, 200, 205 IPC. 1

2. Case FIR No. 259/07 came to be registered on complaint by respondent no. 2 herein Nitin Garg sent to the police under Section 156 (3) CrPC vide order dated 30.05.2007.

3. In brief case of the complainant­respondent no. 2 is that petitioner herein instituted civil suit no. 297/03 before Civil Court at Tis Hazari Courts, Delhi, against the defendants, including the complainant arrayed as defendant no. 2. In that suit, petitioner is alleged to have forged a written statement on behalf of defendant no. 2 on 05.08.2003 and produced it before the Civil Court through someone who represented as defendant no. 2, when actually neither defendant no. 2 appeared before the Court on 05.08.2003 nor produced any written statement and that on that date when the case was called, only his Advocate Sh. Yogesh Verma had appeared before that Court and that too to seek adjournment.

4. On completion of investigation challan was put in Court.

5. It may be mentioned here that vide order dated 17.12.2012 passed by Hon'ble High Court in Crl. Rev. No. 652/09 earlier filed by the present petitioner, Hon'ble High Court disposed of the petition with direction to learned Metropolitan Magistrate to reconsider the question of cognizance in accordance with law and the observations made by Learned ASJ while disposing of Criminal Revision no. 83/2008 (decided on 16.07.2009) and that is how the impugned order came to be passed by learned Metropolitan Magistrate taking cognizance. 2

6. As noticed above, present case, came to be registered at PS Subzi Mandi vide FIR No. 259/97 when complainant filed criminal complaint under Section 200 CrPC before the Criminal Court and same was assigned to the police vide order dated 30.05.2007 passed by on the application under Section 156 (3) CrPC.

7. The first argument advanced by petitioner is that the criminal complaint is barred by limitation. The second argument is that criminal complaint is barred by provisions of Section 195 of CrPC.

On the other hand, Learned Addl. PP and learned counsel for respondent o. 2 have submitted that in the impugned order, learned Metropolitan Magistrate has rightly observed that it cannot be said as to when complainant came to know that he had impersonated at the instance of the accused and that question of limitation did not arise for the offences punishable under Section 468 and 471 IPC which are punishable with sentence for more than three years and that bar of Section 468 of CrPC is not applicable.

8. As regards the second contention, learned counsel for respondent no. 2 has submitted that firstly the revision petition deserves to be dismissed being not maintainable and secondly, that written statement having been forged outside the Court, bar under Section 195 CrPC is not attracted to this case.

In support of this submission, learned counsel for respondent no. 2 has referred to decision in State of H.P. v. Tara Dutt and Another (2000) 1 Supreme Court Cases 230, Harnam Singh v 3 Everest Construction Co. and Ors. (2004) 6 Supreme Court Cases 754, Gurbachan Singh Gill vs. J. S. Bagga (2005) 13 Supreme Court Cases 381, Hasan Bandhubhai Shaikh v K. T. Kulkarni & Ors. 1991 Crl. L. J. 215, Sachida Nand Singh and anr. v. State of Bihar and anr AIR 1998 Supreme Court 1121, Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. 2005 (2) JCC 768 and Adalat Prasad v. Rooplal Jindal & Ors 113 (2004) Delhi Law Times 356 (SC).

In State of H. P.'s case (supra), it was observed that no period of limitation was prescribed for the offence charged in that case i.e. 468 IPC.

In Gurbachan Singh Gill's case (supra) Hon'ble Apex Court observed that in view of the stand taken by both the parties on the point of limitation from the very beginning that in the facts of present case, question of limitation was not a pure question of law but a mixed question of law and facts.

In Harnam Singh's case (supra), Hon'ble Apex Court observed that when offences under Section under Section 420, 467, 471, 474 IPC are punishable with imprisonment for a term exceeding three years, bar under Section 468 is not attracted.

In case of Harnam Singh, one of the contention was that the complaint was barred under Section 195 CrPC. Hon'ble Apex Court remanded the matter to the Hon'ble High Court for fresh consideration as the Hon'ble High Court had not expressed any view on this contentious issue.

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9. Herein, in view of the facts and circumstances of this case, offence under Section 420, 467, 471, 474 IPC being punishable with imprisonment for a term exceeding three years, prima facie bar under Section 468 is not attracted to this case.

On the point of complaint under Section 195 CrPC

10. As noticed above, the second argument advanced by the petitioner is that learned Trial Magistrate could not take cognizance without a complaint under Section 195 CrPC by the concerned Civil Court.

11. A perusal of the record would reveal that on 05.08.2003 when the civil suit up before the Court, at the time of first call, Sh. G. D. Chopra, Advocate appeared in the Court for the complainant­present petitioner whereas Sh. Yogesh, Advocate for defendants no. 1 to 4. At the time of second call, present petitioner­proprietor of the plaintiff, Sh. Vipin Saroha, counsel for defendants no. 5 and 6 appeared but none appeared on behalf of the other defendants. At that time, written statement was filed on behalf defendants no. 5 and 6. Its copy was supplied. The Court adjourned the suit for 24.09.2003 for filing of written statement on behalf of the defendants no. 1 to 4 as no written statement filed on that date on their behalf. Court further ordered that advance copy of the written statement be supplied to counsel for the plaintiff. Case was also to be taken up for replication and admission/denial of documents framing of issues and appearance of parties in person.

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Further order passed on the same day i.e. 05.08.2003 would reveal that subsequently defendant no. 2 appeared and paid cost of Rs. 300/­. Advance copy of written statement of defendants no. 1 to 4 was supplied to the complainant as further stands recorded in the order.

As per order dated 09.10.2003, on that date, petitioner­proprietor of the complainant appeared before the Court; Sh. Yogesh Verma appeared as counsel for defendants no. 1 to 4 whereas Sh. Vipin Saroha, appeared as counsel for defendant no. 5 and 6. Replication was filed on behalf of the plaintiff to the written statement of defendants no. 2 to 6. Sh. Yogesh Verma, counsel for defendants no. 1 to 4 requested for adjournment on the ground that he was to inspect the file. Accordingly, matter was adjourned to 30.10.2003 for admission/denial and framing of issues.

On 30.10.2003, Sh. G. D. Chopra, counsel for plaintiff appeared with the petitioner­proprietor of the plaintiff. Sh. Yogesh, counsel for defendants no. 1 to 4 and Sh. Anil Pawar, counsel for defendant no. 5 and 6 also appeared in Court.

Counsel for defendants no. 1 to 4 submitted that he had already supplied advance copy of the written statement to the plaintiff to which replication had already been filed by the plaintiff but written statement of defendants no. 1 to 4 could not be filed on judicial record as it was yet to be signed by these defendants no. 1 to 4.

The Court adjourned the matter to 21.11.2003 for admission/denial of documents and framing of issue while granting 6 last opportunity to defendants no. 1 to 4 to file written statement within two days.

From the above order dated 24.11.2003 it appears that the Court observed that although the replication to the written statement of the defendants no. 2, 3 & 4 had already been filed by the plaintiff, no written was filed on behalf of these defendants.

12. The Court observed that written statement had not been filed on behalf of the defendants no. 2,3 & 4 despite last opportunity. At the same time, subject to cost of Rs.300/­ another opportunity was granted to defendants no. 2 to 4 to file written statement. Since on behalf of defendant no. 2 an application under Section 151 CPC was filed, matter was adjourned to be taken up at 2 pm as no one was present on behalf of the defendant no. 1, 5 and 6. However, at 2.15 pm since none appeared on behalf of the defendant no. 1, defendant no. 1 was proceeded exparte and matter was adjourned to 15.12.2003 for filing of written statement of defendant no. 2, 3 & 4 as noticed and also for rely to the application filed on behalf of defendant no. 2.

Even on 15.12.2013, no written statement was filed on behalf of defendant no. 2,3 & 4. Rather an application under Section 151 CPC filed on behalf of the defendants and suit was adjourned to 20.01.2004 for filing of reply.

Vide order dated 01.06.2004 application filed on 24.11.2003 on behalf of defendant no. 2 was dismissed.

On the same date, learned Civil Judge observed in the short order that despite last opportunity no written statement had yet been 7 filed on behalf of defendant no. 2 to 4 although it was earlier submitted that it could not be filed as it was yet to be signed by defendants and its advance copy had already been supplied to the plaintiff. In the interest of justice, by way of last opportunity, Court adjourned the matter to 21.07.2004 for filing of written statement.

On 21.07.2004, learned Civil Judge was on leave. On 12.08.2004, request was made for pass­over, on behalf of defendant no. 2 and matter was ordered to be taken up at 2 pm on filing of written statement.

Record reveals that on 19.08.2004 application dated 12.08.2004 was filed on behalf of the plaintiff with the prayer that defendant no. 2 be directed to file written statement, advance copy whereof was supplied to the plaintiff. With this application, photocopy of advance copy of written statement on behalf of the defendant no. 2 to 4 was also annexed.

13. In the course of arguments, it has not been disputed that an application under Section 340 CrPC, filed by defendant­respondent no. 2 herein, before the Civil Court is pending. In the given facts and circumstances, the complainant should have waited for disposal of the the application under Section 340 CrPC or requested Civil Court for its early disposal, instead of filing private criminal complaint which has led to direction under Section 156 (3) CrPC and registration of the case.

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14. In the course of arguments, this Court has drawn attention of Sh. Shiv Charan Garg, counsel appearing for respondent no. 2 in the civil suit to the proceedings conducted by the Civil Court and inquired as to why Sh. Yogesh, Advocate, counsel for defendants no. 1 to 4 made submission before the Civil Court on 30.10.2003 that he had already supplied advance copy of the written statement to the plaintiff, to which replication had already been filed by the plaintiff and that written statement on behalf of these four defendants could not be filed as it was yet to be filed by them.

The only submission put forth by Sh. Shiv Charan Garg, Advocate is that this submission appears to have been made by Sh. Yogesh, Advocate before the Civil Court, under some confusion.

Presumption of truthfulness is attached to judicial proceedings. It is difficult to say that Sh. Yogesh, Advocate, counsel for defendants no. 1 to 4 was under any kind of confusion while making the aforesaid submission recorded by learned Civil Judge, in the very presence of the Advocate.

15. In the given facts and circumstances, this Court finds this is a fit case where the concerned Civil Court should have been allowed to consider and decide if any offence referred to in clause (b) of sub­ Section (1) of 195 CrPC has been committed in or in relation to a proceeding in that Court, so as to exercise powers under Section 340 CrPC. In this way, the point if written statement was forged outside the Court and that any forged written statement was produced before 9 the Court could also be considered by the civil court during preliminary inquiry under Section 340 CrPC. In case the aforesaid submission made by Sh. Yogesh, Advocate counsel for defendant no. 1 to 4 before the Civil Court as finds recorded in order dated 30.10.2003, is ultimately found to be correct, then neither the question of any forgery of written statement nor cheating the Court would arise. In the given circumstances, this Court deems it to be a fit case for stay of the criminal proceedings before learned Metropolitan Magistrate, but this Court has no power to pass any such order while exercising revisional powers, and accused­petitioner has the appropriate remedy available by filing petition under Section 482 CrPC. In this regard, reference may be made to the following decisions:­

1. Bholu Ram v. State of Punjab & Anr. 2008 Cri. L. J. 4576,

2. Nilamani Routray v. Bennett Coleman & Co. Ltd. (1998) 8 SCC 594

3. Adalat Prasad v. Rooplal Jindal & Ors 113 (2004) Delhi Law Times 356 (SC).

In Bholu Ram v. State of Punjab & Anr. 2008 Cri. L. J. 4576, Hon'ble Apex Court observed as under:­ "If the act of taking cognizance, issuance of process or joining of an innocent person as an accused is totally uncalled for or exfacie bad in law, it is open to the aggrieved party to invoke inherent jurisdiction of the High Court under S. 482 of the Code. If the High Court satisfied that the order passed by the Magistrate was illegal, improper or arbitrary, it can exercise inherent powers and quash criminal proceedings initiated against the party. But that power is independent and has nothing to do with recalling of an earlier order by the Court which passed it."

10 In Nilamani Routray v. Bennett Coleman & Co. Ltd. (1998) 8 SCC 594, Hon'ble Supreme Court observed as under:­ "In none of the these stage the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code.

xxxxx xxxxx xxxxx It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any mate implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at the stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent, power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code. (referred to in Bholu Ram v. State of Punjab & Anr. 2008 Cri. L. J. 4576)"

( Subramaniam Sethuraman v State of Maharashtra (2004) 13 SCC 324; N. K. Sharma v Abhimanya (2005) 13 SCC 213; Everset Advertisement v State Government of NCT of Delhi (2007) 5 SCC 54.) Even that ground does not impress us. It is quite possible that in a given case, a Magistrate may take cognizance of an offence illegally or arbitrarily without there being any material whatsoever. Such illegal order should not deprive the accused from contending that the learned Magistrate was wrong and wholly unjustified in entertaining the complaint or taking cognizance of an offence. In such cases, however, the accused is not without legal remedy. If the act of taking cognizance, issuance of process or joining of an innocent person as an accused is totally uncalled for a ex facie bad in law, it is open to the aggrieved party to invoke inherent jurisdiction of the High Court under Section 482 of the Code. If the High Court is satisfied that the order passed by the Magistrate was illegal, improper or arbitrary, it can exercise inherent powers and quash criminal proceedings initiated against the party. But that power is independent and has nothing to do with recalling of an earlier order by the Court which passed it."

In Adalat Prasad v. Rooplal Jindal & Ors 113 (2004) Delhi Law Times 356 (SC), Hon'ble Supreme Court observed as under:­ "15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any litigation against the accused or any material implicating the accused or in contravention or provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of Code."

16. In the course of arguments, neither the petitioner nor Ld. Addl. PP for the State has cited before this Court any decision to the effect that so as to challenge the summoning order, the aggrieved person like the petitioner can obtain relief by filing revision petition before Court of Session. In none of the above referred to three decisions, it has been observed that so as to challenge the summoning order, the aggrieved person like the petitioner can obtain relief by filing revision petition before the Court of Session.

17. In view of the above discussion and well settled law that in respect of summoning order, remedy lies before the Hon'ble High Court under Section 482 CrPC, present revision petition deserves to be dismissed. I order accordingly. However, petitioner shall be at liberty to file petition before the Hon'ble High Court under Section 482 CrPC.

18. Trial Court record be returned. File of revision petition be consigned to Record Room.

Parties to appear before the Trial Court on 09.01.2014.

Announced in Open Court 
on 04.01.2014                                           (Narinder Kumar )
                                                  Additional Sessions Judge(Central)
                                                             Delhi.


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