Delhi District Court
State vs Jyoti Raw Phooley Cooperative on 9 February, 2022
IN THE COURT OF SH.RAMESH KUMAR,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH EAST, KARKARDOOMA COURTS, DELHI
CR No. 24/2022
CIS No. DLNE01-000348-2022
In the matter of:
State, Govt. of NCT of Delhi,
Through SHO PS Gokalpuri. ............ Revisionist
Versus
1.Jyoti Raw Phooley Cooperative
& Credit Society Ltd.
2.Sh. S. K. Gautam
S/o Sh. Ganeshi Lal
R/o House no.2345,
Jal Wali Gali, Sitaram Bazar,
Delhi-110006 .........Respondent
Date of institution of case: 08.02.2022
Date of hearing arguments: 09.02.2022
Date of passing of judgment: 09.02.2022
CRIMINAL REVISION PETITION, UNDER SECTION 397/399 OF
Cr.P.C, AGAINST THE IMPUGNED ORDER, DATED 03.02.2022,
PASSED BY THE COURT OF SH.ARUN KUMAR GARG, LD.CMM,
(NORTH-EAST) DISTRICT, KARKARDOOMA COURTS, DELHI.
CR No.24/22 State Vs. Jyoti Raw Phooley Page 1/6
JUDGMENT:
1. The present revision petition is preferred by SHO PS Gokulpuri, (hereinafter referred to as revisionist), against the impugned order, dated 03.02.2022, passed by the court of Sh. Arun Kumar Garg, ld. CMM, NorthEast District, Karkardooma Courts, Delhi, in complaint case no.999/2016, titled as "Jyoti Raw Phooley Cooperative & Credit Society Ltd. Vs. Sh. S. K. Gautam", whereby, the ld.Trial Court, called an explanation from DCP (North East), under the signatures of Joint Commissioner of Police, Eastern Range,Delhi, to explain as to why the house of the accused was not attached in execution of warrants of attachment by DCP, North East.
2. It is stated, in the revision petition, that aforesaid complaint case was filed, under section 138 of Negotiable Instrument Act, 1881, by complainant Jyoti Raw Phooley Cooperative & Credit Society Ltd. against accused S. K. Gautam. It is stated that, on 27.01.2020, the matter was got amicably settled, between the parties in the Mediation Centre, Karkardooma Courts, for a consideration of Rs.1,20,000/, payable by accused to the complainant, in 24 equal monthly installments of Rs.5,000/ each, starting from 05.03.2020. It is further stated that, on 17.01.2022, accused failed to make the balance payment in terms of the settlement and, thereafter, ld. CMM, issued warrant of attachment of movable and immovable property of the accused to the extent of Rs.20,000/, which was to be executed, through DCP, North East.
3. It is further stated that, on 02.02.2022, DCP, NE filed compliance report before the ld. Trial Court with regard to execution of warrant of CR No.24/22 State Vs. Jyoti Raw Phooley Page 2/6 attachment, wherein DCP, NE submitted that, despite sincere efforts, warrant of attachment against the accused could not be executed, as accused was deliberately evading execution of warrants of attachment. It is further stated by DCP, NE, in his report, categorically stated that he directed ACP, Gokalpuri and ACP, Operation Cell, NorthEast, to make more efforts to locate the present whereabouts of accused, S. K. Gautam, and further sought some more time from the ld. Trial Court for execution of process against the accused. However, the ld. Trial Court was pleased to call an explanation from DCP, North East, under the signature of Joint Commissioner of Police, Eastern Range, Delhi, to explain as to why the house of the accused was not attached in the execution of warrant of attachment proceeding by the DCP, NorthEast.
4. I have heard ld. Addl. Public Prosecutor for the State and carefully perused the material placed on record.
5. The relevant portion of the impugned order, dated 03.02.2022, is reproduced herein below as under: " .....Warrant of attachment in the sum of Rs.20,000/ directed to be issued against the movable and immovable properties of the accused in terms of previous order have been received back unexecuted through DCP (NE) despite the fact that apparently the ProcessServer had reached at the house of the accused. There is no explanation offered in the report as to why the aforesaid house of the accused has not been attached in execution of warrant of attachment by the DCP, NE. An explanation in this regard be accordingly CR No.24/22 State Vs. Jyoti Raw Phooley Page 3/6 called from DCP, NE duly forwarded under the signature of Joint CP(Eastern Range)".
6. It is argued by ld. Addl. P. P for the State that, if, in such matters, the ld. Trial Court would ask for explanation from higher rank Officers like DCP, Joint Commissioner of Police or Commissioner of Police, then, it will adversely affect the morale and efficiency of Delhi Police. It is further argued that power vested with the Court for calling explanation from any public servant should be exercised sparingly and, if said power is used in routine manner, then it will be very difficult for aforesaid rank Officers to perform their core and indispensable duties. It is further argued that the ld. Trial Court did not consider the fact that sincere efforts were made to search the accused and the ld. Trial Court was requested to grant additional time for searching the accused. It is further argued that the concerned Process Server, ASI Raj Kumar, had no legal means, specially in the stipulated time framework, to find out, as to whether the accused is the actual owner of the house or not, as such, he did not initiate the process of attaching the house property of the accused and, in these circumstances, concerned DCP requested ld. Trial Court to grant additional time, which the ld. Trial Court refused. In these circumstances, it is stated that the present revision petition be allowed and the impugned order be set aside.
7. In this background, it is pertinent to rely on judgment titled as State of Punjab Vs. Devinder Pal Singh Bhullar & Ors, wherein, it was held as under:
"72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In CR No.24/22 State Vs. Jyoti Raw Phooley Page 4/6 such a fact situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls comes into play and applies on all scores in the present case."
8. Perusal of reply of DCP NorthEast, filed before the ld. Trial Court, reveals that process server, ASI Raj Kumar, visited the given address of accused, S. K. Gautam, where one person, namely, Tushir Kumar was found, who stated that accused, S. K. Gautam, is his uncle, who was residing at the ground floor of the said house, however, his flat is locked since last 78 months and he has no knowledge about his present whereabouts. The concerned process server also made inquiry from one neighbour, namely, Yograj, who stated that he personally knew, S. K. Gautam, and corroborated the version of Tushir Kumar, by stating that he too had no knowledge regarding his present whereabouts. The concerned process server also visited Office of accused, where one person, namely, Sanjay Singh, Drawing and Disbursing Officer, met him, who stated that, no person with the name of S. K. Gautam is posted there.
9. Keeping in view the facts and circumstances of the case, the law laid down in the above cited judgment and the fact that from the reply, filed by DCP, North East, before the ld. Trial Court, it is clear that efforts were made by DCP, North East, for execution of warrants of attachment, against the accused. In view of these facts, the impugned order, dated 03.02.2022, is modified to the extent that DCP, NorthEast is exempted from filing written explanation, under the signature of Joint Commissioner of Police, Eastern Range Delhi, With these observation, the revision petition is disposed of.
10. Copy of this judgment be sent to the ld.Trial Court for information.
CR No.24/22 State Vs. Jyoti Raw Phooley Page 5/611. Revision file be consigned to Record Room.
ANNOUNCED ON 9th FEBRUARY, 2022 (RAMESH KUMAR) PRINCIPAL DISTRICT AND SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI CR No.24/22 State Vs. Jyoti Raw Phooley Page 6/6