Delhi District Court
Complainant/ vs The State on 20 March, 2012
IN THE COURT OF SHRI A.K. JAIN: ASJ03: SE: SAKET COURT
COMPLEX : NEW DELHI
C.R. No. 125/12
Kamal Hemrajani,
M5, Modi Tower,
Nehru Place,
New Delhi
...... Complainant/Petitioner/Revisionist
Versus
The State ......Respondent
ORDER:
1. By way of present revision petition, complainant /revisionist has challenged the impugned order dated 16.12.2011 passed by Ld. Metropolitan Magistrate dismissing the complaint u/s 200 Cr.P.C and application U/s 156(3) Cr.P.C filed by the revisionist.
2. The facts in brief as per the complaint filed by the complainant before the trial court are that complainant is employee of M/s Modi Overseas Investment Ltd. and said company was tenant in premises in question of accused no.1 and a decree was passed for vacation of said tenanted Kamal Hemrajani Vs. State, CR No. 125/12, (pg-1) premises.
3. It is alleged in the complaint that on 28.09.2011 accused no.1 Tejinder Singh alongwith accused no.2 and 3 bailiffs of the court and some unidentified men forcibly entered the house under the occupation of the complainant. In the garb of carrying out the order of Ld. ARC court, these accused persons entered and removed the goods of the tenanted premises and loaded them into trucks and two of such trucks were left for undisclosed destination and two of trucks were stopped from fleeing. It is further averred that with these facts an earlier application u/s 156(3) Cr.P.C was filed which was dismissed. But cognizance of complaint was taken. Further, during arguments it is submitted that revision against dismissal of application u/s 156(3) Cr.P.C also dismissed by Sessions court.
4. Alongwith the present complaint, complainant has also annexed his earlier complaint as annexure A. In that complaint, complainant alleged that on 28.09.2011 complainant received a call from Mr. Ramesh Prasad, guard on duty that certain unknown persons are trying to trespass in property, then immediately reached the house property and discovered accused no1. alongwith bailiff had come to take possession of property but accused no.1 alongwith the bailiff and some identified men broke open the locks and forcefully entered the property and started removing Kamal Hemrajani Vs. State, CR No. 125/12, (pg-2) the expensive and valuable belongings of the complainant and thrown them in the lawns and drive way brought by accused no.1 and despite his request inventory was not made. Further,despite order of status quo by Hon'ble High court the goods were removed from the house. It is further alleged by the complainant that the complainant raised hue and cry and called police and managed to stop two trucks at the spot. It is further alleged that when the complainant asked for the inventory the accused persons including bailiffs had threatened him for dire consequences. Thereafter complainant alongwith his two colleagues Mr. Ramesh Prasad and S.P. Kutty lodged a complaint regarding the incident in PS on 28.09.2011. Further on the night intervening 28 and 29.09.2011 complainant noticed that accused no.1 had already removed some very valuable articles lying in the lawns of house property and siphoned of some very expensive articles like painting and some crystal ware and further threatened him for dire consequences. Thereafter another complaint was lodged in police station by Mr. Ramesh Prasad on 29.09.2011 and on the basis of these facts, the complainant has filed a previous complaint u/s 200 Cr.P.C and application u/s 156(3) Cr.P.C.
5. It was directed by Hon'ble High court vide order dated 13.10.2011 that Ld. counsel for the petitioner pointed out that there are 3 vaults in the suit property wherein precious jewellery items and life saving drugs were lying and sought permission of this court to open those vaults and lockers Kamal Hemrajani Vs. State, CR No. 125/12, (pg-3) to remove those belongings lying in said vaults and lockers. Ld. counsel for the respondent/ accused conceded to request pursuant to which a local commissioner was appointed and who inspected the premises on 14.10.2011.
6. The local commissioner conducted the proceedings on 14.10.2011 in presence of advocates of the parties as well as Sh S.K. Modi, Abha Modi, K.K Modi and some other staff members from complainant side and Mr. Tejinder Singh, Mrs. Tejinder Singh etc. alongwith some family members from the accused side. The local commissioner has inspected the terrace floor and the first floor. During proceedings, some jewellery documents and keys and little cash was recovered and one vault contained a set of earings, some empty jewellery bags, some papers etc. During local commissioner inquiry Mrs. Modi submitted that very valuable diamond necklace of her daughter in law was missing. However, the local commissioner also found that there are some fresh locks on some rooms and some vaults. And two truck lying in the premises were also inspected and their photographs etc. were also taken.
7. It is further alleged that after local inspection it is apparent that valuable jewellery expensive painting and diamond necklace found missing alongwith cash of Rs. 5 lakhs and thus filed another complaint before police on 17.10.2011.
Kamal Hemrajani Vs. State, CR No. 125/12, (pg-4)
8. It is further alleged in the complaint that on 28.09.2011 the employees of Sh S.K. Modi, his family members and etc. were not allowed to enter the house and it was represented by accused no1. alongwith the bailiffs accused no.2 and 3 that the proper inventory of all articles is being prepared but deliberately proper inventory of the articles was not prepared. Hence, filed the present complaint u/s 218/149/380/409/506/120B /34 IPC.
9. Ld. Addl. ACMM during proceedings called the ATR report from police and as per ATR report dated 3.12.2011 filed before the trial court, it is submitted by Inspector Sunil Kumar Singh SHO PS NFC that on 28.09.2011 at around 11 pm bailiff Sh Govind Ram, Mahender Kumar came to PS and produced the execution warrants in which there was direction of break opening of the lock and thereafter he alongwith the force and staff proceeded to property and on reaching the spot, found the main gates locked and one security guard Surender Negi was present at the house and thereafter lock was broken and police persons were present to maintain the law and order. and to provide protection to bailiffs to carry out the direction of the court. The bailiffs completed the execution proceeding and no obstruction was caused during the proceedings. And at around 8.45 pm a complaint was received signed by complainant, Ramesh Prasad, SP kutty regarding the contempt of the court and on 29.09.2011 Kamal Hemrajani Vs. State, CR No. 125/12, (pg-5) another complaint was received that during intervening night of 28/29.09.2011 goods were removed /stolen on instructions of Tejinder Singh and in this regard statement of two guards of S.K. Modi were recorded who stated that nobody had taken the goods from said property.
10. It is further alleged in said ATR that a case was filed before the Hon'ble court u/s 156(3) Cr.P.C and further another complaint was received on 01.10.2011 that there are some locks broken from back side and during inquiry it was found that lock of back gate was already opened since 28.09.2011 and a notice was also issued to the complainant to provide the number of vaults and kind of property lying in those vaults however, complainant could not provide the figures and only stated that jewellery and valuable articles were kept in vaults which were stolen. It is also alleged in the ATR that guards from both sides were present and on 28.09.2011 police was also present hence, there is no possibility of any theft.
11. It is further alleged in ATR that two more complaints were filed on 17.10.11 and 19.10.11 and the main stress in those complaints was of local commissioner's report and complainant was joined inquiry on 08.11.2011 and stated that he has nothing to add other than what he had already alleged. And laid stress on local commissioner report and further stated that he has neither seen the vaults nor seen any jwellery and made Kamal Hemrajani Vs. State, CR No. 125/12, (pg-6) complaint on instance of S.K Modi who was in London on 28.09.2011. and a reply was also filed by Tejinder Singh who stated that entire goods were removed under the supervision of bailiffs and put in open areas. Cabinets and cupboard which were locked were also taken to the open areas. And the vaults were carried down in locked mode and petitioner himself choses to leave their goods in open areas till 14.10.11. while the back and front were guarded by 20 uniform guards. It is further reported that entire proceedings were conducted on court orders in presence of police and alleged that it is unlikely that goods and articles were misappropriated on 28.09.2011 as the guards of both the parties were present and complainant also not disclosed the name of daughter in law to whom the necklace/ jewellery belonged and found very little chance of theft.
12. After hearing the arguments, ld. ACMM vide impugned order dated 16.12.2011 dismissed the complaint as found the entire complaint is based on bald allegations.
13. Ld. counsel for the revisionist submitted that it is settled proposition of law and also consistently followed that bailiff who had come with police aid removes household articles from the tenant after being evicted on making complete inventory and hands over the same to the surety but in the present case no inventory was prepared, no identification was done of Kamal Hemrajani Vs. State, CR No. 125/12, (pg-7) alleged representative of Mr. S.K. Modi and goods were left by bailiff on oral surety of Tejinder Singh and bailiff were having the dominion and entrustment of the property alongwith Tejinder Singh and they have misappropriated and disposed off the expensive articles in breach of the directions. Ld. counsel further stated that bailiff report even do not show any receiving of possession letter being signed by the alleged employees of tenant company and in this regard the complaints were made on 17.10.11 and 19.10.2011 to the police alongwith local commissioner report. And as the police had not taken any action therefore, filed the present complaint.
14. Ld. counsel for the revisionist also submitted that the Ld. trial court misdirected itself to observe in the impugned order that there are photographs on record which shows that entire proceedings were conducted in peaceful manner and goods were packed by packers and loaded into trucks peacefully. ld. counsel stated that this was done on 14.10.2011 not on 28.09.11 as observed by the Ld. trial court and till that time goods were lying in open in lawn of the said premises. ld. counsel submitted that local commissioner report clearly shows that there were fresh locks installed at vaults and nothing was found on those vaults and this itself is sufficient that the goods /valuables of the complainant were stolen or misappropriated by accused persons. Ld. Counsel for the revisionist further submitted that action taken report as filed by the police Kamal Hemrajani Vs. State, CR No. 125/12, (pg-8) is managed by accused no.1 and police had not conducted any inquiry and filed false report. Ld. Counsel for the revisionist further submitted the entire proceedings are conducted by bailiffs who are public servants without complying legal formalities and the facts clearly disclose the offences u/s 218/380/409/506/120B/34 IPC against the accused persons.
15. Arguments heard. Record perused.
16. Record clearly suggests that accused no.2 and 3 bailiffs for executing the warrants of possession of property in question approached the police for police aid and as there was directions of police aid, police accompanied the bailiffs to said property alongwith accused no.1 Tejinder Singh and found one guard of complainant company and thereafter broke open the locks as per directions of the court and removed the goods and vacated the premises.
17. However, in the complaint it is alleged by the complainant that accused no.2 and 3 alongwith accused no.1 and some identified men forcibly entered the property in the garb of the orders of Ld. ARC and there is no mention as such of any police in the said complaint. Further, as per averments in previous complaint filed before the court, it is averred that the complainant received the call from guard and immediately reached the property and found that the bailiffs are removing the goods and thereafter Kamal Hemrajani Vs. State, CR No. 125/12, (pg-9) made the complaint in the evening of 28.09.2011 and further on 29.09.2011 and thereafter filed the criminal complaint before the concerned court for registration of FIR u/s 156(3) Cr.P.C but court dismissed the application u/s 156(3 ) Cr.P.C and took the cognizance of the offence to be tried before that court. This further shows that complainant was present during vacation proceedings.
18. The seeds of present complaint grows when the Hon'ble High Court vide order dated 13.10.2011 directed appointment of local commissioner on submission of Ld. Counsel for petitioner that there are 3 vaults in the suit property where the precious items which includes not only jewellery but also life saving drugs are lying and these drugs are not easily available and seeks permission to open those vaults and lockers and the same was not objected by the Ld. Counsel for the opposite side. In this regard one local commissioner inspected the spot, found some fresh locks and further some recovery of jewellery etc. also affected. In the report it is also mentioned that Mrs. Abha Modi also alleged that diamond necklace of daughter in law is also missing and subsequent to this local commissioner inspection another complaint was filed before the police on 17.10.2011 with allegations of misappropriation and theft of valuable jewellery, expensive paintings, diamond necklace and cash of Rs. 5 lakhs. However, in the complaint on 17.10.2011 there is no mention of any theft of any life saving drugs from the premises though that is the basis of the order Kamal Hemrajani Vs. State, CR No. 125/12, (pg-10) obtained by the Hon'ble High court . Further, there is no specific details of jewellery and other valuable items mentioned in the complaint dated 17.10.2011. Police in action taken report filed before the concerned court has extensively replied to all the allegations and stated that the entire proceedings were conducted in presence of police for complying court orders and further during inquiry complainant has not stated the details of articles stolen or misappropriated and choses not to remove his articles till 14.10.2011 and found little chance of theft or misappropriation.
19. The present complaint is filed after the local commissioner's report. The complainant and his other officials present during the proceedings on 28.09.2011 but has not chosen to file complaint of theft of jewellery or life saving drugs on 28.09.2011 or on 29.09.2011 and and has taken all these objections after the local commissioner's report. At any point of time, complainant could not disclose what are the jewellery articles stolen and what are life saving drugs missing, even complaint dated 17.10.2011 filed before the police do not contain any details. The entire allegations are vague and it appears that complainant is trying to give the criminal colour to all disputes.
20. On overall consideration, I do not find any infirmity in the impugned order passed by Ld. ACMM despite the wrong observation of Ld. ACMM that the photographs were taken on 28.09.2011 instead of Kamal Hemrajani Vs. State, CR No. 125/12, (pg-11) 14.10.2011. One of the main grievance raised during arguments is the non preparation of the inventory and this shows the criminal intentions of accused bailiffs and Tejinder Singh but for that matter the criminal complaint is already pending before the concerned court for inquiry and trial and there no need to direct any separate proceeding on this aspect. As the allegations of misappropriation and theft of jewellery and valuable paintings, life saving drugs etc. appears to be all vague and afterthought, I do not find any ground to interfere in the impugned order passed by Ld. ACMM . Hence, the present revision petition stands dismissed. TCR alongwith copy of this order be sent back to trial court forthwith. File be consigned to Record Room.
Announced in the open court (AJAY KUMAR JAIN)
On 20th March , 2012 ASJ03/SE/New Delhi
Kamal Hemrajani Vs. State, CR No. 125/12, (pg-12)