Delhi District Court
Ajit Vishwakarma vs Kale Singh on 23 July, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 204175 of 2016
CNR No.DLSE01-000285-2014
IN THE MATTER OF:
Ajit Vishwakarma,
S/o Sh Meghlal Vishwakarma,
R/o Plot No. F/C 4, Khader,
J.J. Colony, Duli Chand Kunj Phase-III,
New Delhi .......Revisionist
Versus
Kale Singh
Proprietor of Lucky Auto Deals,
Office at 17 Guru Nanak Market,
Shahi Hospital Road, Jangpura Bhogal,
New Delhi-110014
........Respondent
Instituted on : 15.12.2021
Reserved on : 14.07.2022
Pronounced on : 23.07.2022
JUDGMENT
1. Vide instant petition, revisionist takes exception to the order dated 26.08.2020, passed by Ld. Metropolitan Magistrate-03, South East Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 1 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.23 15:32:58 +0530 District, New Delhi in case bearing CT case No. 612796/2016 titled as 'Ajit Vishwakarma Vs Kale Singh', whereby Ld. Magistrate discharged the respondent/accused.
2. Brief facts, as noted by Ld. Magistrate in the impugned order are not in dispute and same are being reproduced for the sake of convenience :-
"In brief, it is the case of the complainant that on 25.02.2010, when the complainant had met the accused for depositing his monthly installment, the accused had forcibly taken the key as well as original papers pertaining to vehicle/auto bearing no. DL- 1RG-0037. As per the complaint filed u/s 200 CrPC by the complainant, the complainant had in June 2007 taken a loan of Rs. 1.80 lacs from the accused for the purpose of purchasing the abovesaid three wheeler and had agreed to repay Rs.2.61lacs to the accused in 30 monthly installments of Rs. 8,700/- each. It is alleged by the complainant that he has been regularly paying his installments to the accused and despite that, on 16.09.2009, the accused had forcibly taken key of the aforesaid vehicle, when the complainant had visited him to pay him Rs. 15000/-. It is stated by the complainant in his complaint that due to intervention of police personnels, the said vehicle was released to the accused by the complainant and that on 25.02.2010, as has been stated above, the accused again forcibly took key as well as original papers of the vehicle concerned. It is also stated by the complainant that he has made cash payment of Rs. 1,13,775 to the accused (towards repayment of loan amount taken by him from the accused)."
3. Record reveals that after filing of complaint, revisionist/complainant led pre-summoning evidence and examined himself as CW1 and two other wintesses namely Govind Mehto and Raj Kumar as CW2 and CW3 respectively. Record further transpires that after considering the material available on record, Ld. Trial Court summoned the respondent for offence u/s 383/506 IPC vide order dated 03.08.2011.
Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 2 of 8
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.23
15:33:08 +0530
3A. As per record, post appearance of respondent/accused,
revisionist adopted the pre-summoning evidence as pre-charge evidence and thereafter all the CWs were cross examined on behalf of respondent/accused. The matter proceeded for arguments on charge and Ld. Trial Court, vide impugned order, discharged the respondent/accused in terms of provisions of section 245 CrPC with following pertinent observations:-
"Perusal of the entire record reveals that no prima facie evidence has come forth regarding the allegations made in the complaint u/s 200 CrPC qua the accused. It is pertinent to note that the complainant in his cross examination conducted on 30.8.2013 has stated that there is no signed document which would evidence that the TSR in question was financed by the accused. Further, from the complaint and the testimony of Raj Kumar, it comes forth that Raj Kumar himself is the original owner of the TSR in question which was thereafter purchased by the complainant. However, no prima facie proof has come forth regarding the ownership of the TSR in question by Sh. Raj Kumar. Additionally, if one is to look at the hire purchase agreement Ex.CW1/DA, the same reflects Sh. Govind Mehto as the hirer of the TSR in question, but does not state the name of the owner and neither has been signed by the owner concerned. Perusal of the entire record reveals that there is not enough prima facie evidence available in the evidence brought on record by the complainant to merit a prima facie case against the accused. In the present case the evidence against the accused brought forth by the complainant is ambiguous and vague. No cogent evidence has been led by the complainant to prima facie substantiate the bald allegation of the accused that his TSR was forcibly taken by the accused when he went to him for payment of monthly installment of loan amount.
Accordingly, on consideration of the allegations made in the complaint and the evidence on record, I am of the view that the complainant has failed to adduce prima facie evidence against the accused and since no case is made out against the accused, accused stands discharged u/s 245CrPC."
4. The revisionist is aggrieved with the said order of the Ld. Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 3 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.23 15:33:15 +0530 Trial Court and has assailed the impugned order on the various grounds which can be summarized as under :-
(i) That the impugned order is bad in law, resulting in grave miscarriage of justice;
(ii) That Ld. Magistrate ignored the material available on record while passing the impugned order;
(iii) That Ld. Magistrate has passed the impugned order in a mechanical manner which is full of surmises and conjectures;
(iv) That the impugned order is against the settled principles of law;
5. No arguments were advanced on behalf of revisionist despite opportunity.
6. Per contra, Ld counsel for respondent/accused vehemently argued that there is no infirmity in the impugned order and Ld. Magistrate, for the right reasons, discharged the respondent/accused and dismissed the complaint of revisionist. He further argued that the impugned order was passed after considering all the facts and circumstances of the present case. He argued that Ld. Magistrate rightly observed that there is no evidence against the respondent/accused. It was submitted that the present revision petition is misconceived and therefore, same is liable to be dismissed.
7. Heard. Record perused.
8. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 4 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.23 15:33:22 +0530 extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
9. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 5 of 8
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.07.23
15:33:29 +0530
10. This view has been reiterated by Hon'ble Apex Court in New India Assurance Co. Ltd. Vs. Krishna Kumar Pandey, 2019 SCC OnLine SC 1786, in the following words :
"8. The scope of the revisional jurisdiction of the High Court (or Sessions Court) under Section 397 Cr.P.C, is limited to the extent of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. The revisional Court is entitled to look into the regularity of any proceeding before an inferior Court. As reiterated by this Court in a number of cases, the purpose of this revisionsal power is to set right a patent defect or an error of jurisdiction or law."
11. Similar are the observations of Hon'ble High Court in Rajender Singh Thakur Vs State & Anr, Crl Rev. P. No. 155/2022, decided on 22.03.2022 and in cross case Jaspreet Singh Vs Swaneet Kukreja and Swaneet Kukreja Vs Jasmeet Singh, Crl Rev. P No. 162/2021 and Crl Rev. P No. 194/2021, both decided on 28.02.2022.
12. Therefore, in view of the settled position of law, this court in its revisional jurisdiction, is not expected to substitute its own view with that of Ld. Trial Court until and unless the order passed by Ld. Trial Court suffers from jurisdictional error or patent infirmity/illegality. In the instant case, as evident from record, Ld. Magistrate while narrating (in detail) the facts, passed a well reasoned detailed order, thereby discharging the respondent/accused while dismissing the complaint filed by revisionist and therefore, this court cannot and rather ought not substitute its own view with that of Ld. Trial Court (while exercising its revisional jurisdiction) and thereby arriving at a different conclusion. In my view, Ld. Magistrate has provided clear and cogent reasons for discharging the Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 6 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.23 15:33:36 +0530 respondent/accused and and it is clearly not for this Court to second guess the decision.
13. Suffice it would be to say that on the basis of statement of CWs and the material put forth by revisionist, no charge in terms of section 245 CrPC can be or could have been framed against the respondent as the evidence brought on record is not of such quality which if goes unrebutted, would warrant conviction of respondent and therefore the view taken by Ld. Magistrate cannot be faulted with.
14. Be that as it may, as per the case set-up by the revisionist, he had defaulted in payment of monthly installments to the respondent who (as per version of revisionist) had financed the vehicle. It is a settled law that the purchaser remains merely a trustee / bailee on behalf of the financier / financial institution and the ownership remains with the latter / financial institution. Therefore, in my view, no criminal action could be taken against the respondent herein, as the respondent had right to repossess the vehicle for default committed by the revisionist in respect of the loan obtained by him. Reliance is placed upon judgment of Hon'ble Supreme Court in Charanjit Singh Chadha & Ors. v. Sudhir Mehra, reported in (2001) 7 SCC 417, wherein it has been observed as follow:-
"The recovery of possession of the vehicle by financier- owner as per the terms of the hire purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the financier, it does not constitute any offence for the reason that such a case / dispute is required to be resolved on the basis of terms Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 7 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.23 15:33:44 +0530 incorporated in the agreement."
15. The decisions rendered by the Hon'ble Supreme Court in the judgments referred to above, have been reiterated by the Apex Court in the recent judgment in Anup Sarmah vs. Bhola Nath Sharma & Others, reported in CDJ 2012 SC 792, wherein it has been held thus:
"8. In view of the above, the law can be summarised that in an agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier / financial institution and ownership remains with the latter. Thus, in case vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him."
16. Therefore, in view of the settled position of law, no criminal liability can be fastened upon the respondent on the facts alleged by the revisionist. Therefore, it is held that there is no infirmity/ patent illegality or jurisdictional error in the impugned order. Accordingly, the revision petition stands dismissed.
17. TCR be sent back to the Ld. Trial court along with copy of the judgment. Revision file be consigned to Record Room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.07.23 15:33:51 +0530 Announced in the open Court on 23rd July 2022 (ANUJ AGRAWAL) Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 258/2021 Ajit Vishwakarma Vs Kale Singh Proprietor of Lucky Auto Deals Page No. 8 of 8