Delhi District Court
State vs Mandeep Singh Suri on 21 October, 2024
IN THE COURT OF SH. VIPIN KHARB
ADDITIONAL SESSIONS JUDGE-07: SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CNR No. DLSE01-011666-2022
Cr Rev 514/2022
State (Govt. of NCT of Delhi) Vs. Sh. Mandeep Singh Suri & Anr.
AND
CNR No.DLSE01-010036-2022
Crl. Revision No.: 425/2022
M/s Paisalo Digital Ltd. Vs. State & Ors.
ORDER
21.10.2024
1. By this common order, court will dispose of two criminal revision petitions bearing Cr. Rev No.425/2022 and Cr. Rev No.514/2022 as in both the revision petitions same order dated 15.09.2022 passed by the Court of Ld. CMM was assailed on the same ground. The Cr. Rev No.425/2022 was filed by M/s Paisalo Digital Ltd. Vs. State NCT of Delhi, who was the complainant in FIR No.98/2020, PS EOW and Cr. Rev No.514/2022 was filed by the State through Ld. Addl. PP for the State.
2. Both the criminal revision petitions u/s 397/399 of the Code of Criminal Procedure, 1973 (Cr.P.C) have been filed against the impugned order dated 15.09.2022 passed by Ms. Shivani Chauhan, Ld. CMM, South East, Saket Courts, New Delhi in case FIR No.98/2020, u/s. 420/406/409/467/468/471/120-B IPC, PS: EOW South East, New Delhi, Crl. Rev Nos. 514/2022 & 425/2022 Page 1 of 8 titled 'State Vs. Jay Polychem India Ltd. & Ors. whereby cognizance against the accused persons Tarvinder Kaur Suri and Mandeep Singh Suri was held to be deemed to have been declined.
3. By filing the present revision petition, revisionist seeks to set aside the order dated 15.09.2022 passed by the Ld. CMM, South East, District, Saket Courts, New Delhi.
4. Brief facts of the case are that on 13.08.2020, an FIR No. 98/2020 at PS EOW, u/s 406/409/420/467/468/471/120-B IPC was registered on the complaint of M/s Paisalo Digital Ltd wherein it was alleged that bor- rower company M/s Jay Polychem India Ltd. had availed loan facility of Rs.18.56 Crores against five loan agreements dated 29.08.2011 from the complainant company and gave the corporate guarantee of the repayment of loan amount by its sister concerned M/s Jay Tel Mobile Pvt. Ltd. by mortgaging its property situated in District Gurgaon, Haryana and also deposited the original sale deed documents with the complainant com- pany. The directors of the company had also given their personal guaran- tee for repayment of loan amount but it was not repaid by the accused company and the mortgaged property was sold by the accused company without repaying the loan amount. Accused Mandeep Singh Suri had au- thorized Malvinder Singh Suri as Ex. Director of M/s Jay Tel Mobile Pvt. Ltd. to sell out the mortgaged property in favour of his wife Tarvin- der Kaur Suri through sale deed dated13.06.2019, however, no payment was made by Mrs. Tarvinder Kaur, in consideration of purchasing the property as the cheque was given by her was never encashed and no such amount lying in her account at that time. The property was later on sold by Tarvinder Kaur Suri to the third party i.e. M/s Y.S. Ingredients LLP without disclosing that the property is mortgaged with the complainant.
Crl. Rev Nos. 514/2022 & 425/2022 Page 2 of 85. On 22.03.2022, on the basis of all the material and documents col- lected and also the other evidence brought on record during the course of investigations and the conclusions drawn and arrived at by the IO, charge sheet u/s 173 (2) Cr.PC was filed against five accused persons namely Mandeep Singh Suri, Tarvinder Kaur Suri, Malvinder Singh, Jay Polychem India Ltd and Jay Tel Mobile Pvt. Ltd., beside two more sus- pects namely Sandeep Singh Madhok and Satinder Singh Madhok @ Satinder Pal Singh, who were kept in column no.12 as investigation was still pending against of them.
6. Vide order dated 05.04.2022, the then Ld. CMM Sh. Dinesh Kumar took the cognizance of offences only under sections 406/420/120B IPC, however, no cognizance of the offence u/s 409/467/468/471 was taken by the Ld CMM against all the five accused persons mentioned in column no.11. But after the transfer of Sh. Dinesh Kumar, the successor Presiding Officer of Court of Ld CMM i.e. Ms. Shivani Chauhan vide order dated 15.09.2022 held that cognizance against the accused Tarvinder Kaur Suri and Mandeep Singh Suri was not taken in order dated 05.04.2022 and therefore, cognizance against them is deemed to have been declined.
7. Feeling aggrieved, revisionists have challenged the impugned order dated 15.09.2022 by filing present revision petitions on the ground that the Ld. CMM Ms. Shivani Chuahan did not appreciate the fact that after cognizance was taken vide order dated 05.04.2022 by her Predecessor Officer, the copy of the charge-sheet was supplied to all the accused persons including Tarvinder Kaur Suri and Mandeep Singh on the same day and the application for releasing the accused Tarvinder Kaur and Mandeep Singh Suri on bail was also dismissed on the same Crl. Rev Nos. 514/2022 & 425/2022 Page 3 of 8 day by the Predecessor Officer, which also shows that cognizance has been taken qua all accused persons. Later on, accused Mandeep Singh Suri, Tarvinder Kaur Suri and Malvinder Singh Suri were also produced from the JC on 01.06.2022 before Ld. CMM Ms. Shivani Chauhan and their bail bonds and verification report were also received on the same day and all the accused persons were admitted on interim bail by her, which also shows that she was aware that the cognizance against them has been taken and not declined vide order dated 05.04.2022.
8. It is also argued that Ld. CMM did not appreciate order dated 05.04.2022 passed by her Predecessor and it appears that as inadvertently names of Tarvinder Kaur Suri and Malvinder Singh Suri were not mentioned in the order dated 05.04.2022 because of which Ld. CMM has wrongly held that cognizance against the accused Tarvinder Kaur Suri and Mandeep Singh Suri was not taken and therefore, cognizance is deemed to have been declined against them. The impugned order is also assailed on the ground that order dated 15.09.2022 amounts to review of the order dated 05.04.2022 which is not permissible in criminal law and therefore, the impugned order is illegal, improper, perverse, wrong without jurisdiction against the basic provisions of law and against the established law.
9. Detailed arguments heard on behalf both the parties.
10. Case files alongwith TCR perused.
11. The charge sheet for the offences u/s. 420/406 IPC is filed against all the five accused persons i.e. namely Mandeep Singh Suri, Tarvinder Kaur Suri, Malvinder Singh, Jay Polychem India Ltd and Jay Crl. Rev Nos. 514/2022 & 425/2022 Page 4 of 8 Tel Mobile Pvt. Ltd., who are mentioned in column no.11. Detailed discussion was done by the Ld. Trial Court and after that cognizance for the offence u/s 420/406 IPC was taken and cognizance for the offences punishable u/s 409/467/468/471 IPC was declined.
12. Perusal of the charge sheet shows that on 05.04.2022 detailed order on cognizance was passed and also on the same day, arguments on bail of accused Mandeep Singh Suri was heard and next day i.e. 06.04.2022, the bail application of accused Mandeep Singh Suri was dismissed. It is not possible that the same Court have declined to take the cognizance of the offence against the accused Mandeep Singh Suri and on the same day, after hearing arguments on bail, dismissed the bail application of same accused, as in case, Court has not taken the cognizance of the offence against the accused then Court would have discharged the accused on the same day i.e. 05.04.2022 or at least would have granted him bail. As the same Judge have heard the arguments on bail on the day on which he took the cognizance of the offence and dismissed the bail application of accused, led to only conclusion that the cognizance of offence u/s 420/406 IPC has been taken against all the accused persons and none of accused persons have been discharged.
13. After passing of order of cognizance dated 05.04.2022, the next date of hearing was fixed for 28.04.2022 and by that time Sh. Dinesh Kumar was promoted and Ms. Shivani Chauhan, succeeded him in the court of CMM. Ms. Shivani Chauhan accepted the bail bonds and surety bonds of accused Mandeep Singh Suri and Tarvinder Kaur Suri as they were granted interim bail by the court of Ld. ASJ and not once but thrice i.e. on 28.04.2022, 01.06.2022 and 06.07.2022, she mentioned in order sheets that interim bail of the accused have been extended. As interim Crl. Rev Nos. 514/2022 & 425/2022 Page 5 of 8 bail of accused persons is being extended then court must be aware that accused persons are in custody in the present case and are not discharged from the case.
14. Even both the accused/ respondents were also aware that they are not discharged from the case and cognizance of the offences have been taken against them, that's why, they received the copy of charge sheet on 05.04.2022 and on next dated 28.04.2022 their counsels filed an application u/s 207 Cr.PC for supplying of deficit documents. They have applied for interim bail before Ld. Sessions Court. This shows that they were very well aware that cognizance of offences is taken against them and they are not discharged from the case.
15. Order taking cognizance is a detailed order passed by ld. Trial Court and reading of the whole order dated 05.04.2022 shows that cognizance of the offence u/s 420/406 IPC was taken qua all accused persons mentioned in column no.11 of the charge sheet and it appears that inadvertently due to typographical error, in order dated 05.04.2022, name of accused/ respondent Mandeep Singh Suri and Tarvinder Kaur Suri left to be mentioned.
16. Never ever accused persons have challenged the cognizance order before revisionist court nor they ever raised objection before Court of Ld. CMM. Perusal of the order dated 15.09.2022 shows that no submission / request was made by any of the accused persons, but still the Ld. Trial Court, suo moto, came to the conclusion that the cognizance was not taken against the accused Mandeep Singh Suri and Tarvinder Kaur Suri. Even if, Ld. Trial Court suo moto came to conclusion that wrong order has been passed and despite decline of Crl. Rev Nos. 514/2022 & 425/2022 Page 6 of 8 cognizance against accused persons, they are in the jail and appearing in the court then it should have apprised the accused persons and told them about their right to file the revision petition, as Ld. Trial Court has no power to review any order.
17. Once an order has been passed, whether it is illegal or incorrect order, by a Criminal Court then the Criminal Court cannot amend or change it, the only remedy is to approach the higher court. In the present case, Ld. Trial Court has accepted the bail bonds and surety bonds of the accused persons and have extended their judicial custody and even decided application u/s 207 Cr.PC filed by the accused persons for supplying of deficit copies, it shows that Ld. Trial Court was aware that cognizance qua accused persons Mandeep Singh Suri and Tarvinder Kaur Suri is taken, so, at a later stage it cannot say that no cognizance was taken against the accused persons Mandeep Singh Suri and Tarvinder Kaur Suri and discharge them.
18. Ld. Trial Court has suo moto proceeded to review / recall the order dated 05.04.2022 passed by her Predecessor Officer and ordered for dropping of prosecution proceedings qua the accused persons Mandeep Singh Suri and Mrs. Tarvinder Kaur Suri. The impugned order dated 15.09.2022 has been passed by Ld. Trial Court without having any power as there is no provision in the Cr.PC 1973 empowering the criminal Court to recall/review its own order and reliance is placed upon the decision of Hon'ble Three Judge Bench of the Hon'ble Supreme Court in "Adalat Prasad Vs. Roop Lal Jindal & Ors. (2004) 7 SSC 338 = 2004 (3) JCC 1347" and in "Subramanium Sethuraman Vs. State of Maharashtra & Anr -(2004) 13 SCC = 2004 (3) JCC [NI] 175". A totally incorrect and illegal order has been passed by Ld. Trial Court and it is a Crl. Rev Nos. 514/2022 & 425/2022 Page 7 of 8 fit case to exercise the revisional power of this Court to correct the illegality, therefore, impugned order dated 15.09.2022 qua decline of cognizance against accused Mandeep Singh Suri and Tarvinder Kaur Suri and release of their bail bonds and surety bonds is hereby set aside.
19. Both accused persons Mandeep Singh Suri and Tarvinder Kaur Suri are directed to appear before Ld. Trial Court on 07.11.2024 and furnish fresh bail bonds and surety bonds and face the trial before the Ld. Trial Court.
20. In view of the discussion above, both the revision petitions are allowed with the above directions.
21. Copy of this order be sent to Ld. Trial Court along with TCR.
22. File of Revision Petition be consigned to Record Room after due compliance.
Digitally signedVipin by Vipin Kharb Date: Kharb 2024.10.21 16:39:07 +0530 Dictated and Announced in the (Vipin Kharb) open Court on 21.10.2024 ASJ-07(South-East)/Saket Courts New Delhi Crl. Rev Nos. 514/2022 & 425/2022 Page 8 of 8