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2023 (6) TMI 1365
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....his Hon'ble Court may deem fit and proper in the interest of justice." 2. The learned Additional Session Judge-03, South-East, Saket Court Complex, New Delhi, in C.R. No. 24/2010, vide order dated 21.04.2011, dismissed the revision petition filed on behalf of the petitioner and upheld the order dated 25.03.2010, passed by the learned Additional Chief Metropolitan Magistrate-IV, South-East, Saket Court, New Delhi. Whereby, the learned ACMM accepted the cancellation report filed by the Investigating Officer, in FIR No. 613/2007, under Sections 406/420 of the Indian Penal Code ('IPC') registered at P.S. New Friends Colony. 3. Briefly stated, the facts relevant for adjudication of the present petition are as under: i. The case of the petitioner, as per the complaint filed under Section 200 read with Section 190 of the Cr.P.C. is as under: "1. That the complainant Kapoor Chand Gupta S/o Late Sh. Yad Ram Gupta presently 82 years old , is the permanent resident of Firozpur City of Punjab and at present he is residing at House No. : 35/50, Trilok Puri, Delhi. 2. That on 05.01.2001, complainant purchased a Ashok Leyland Diesel Bus chasis , from M....
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.... and they assured the complainant to get fit the CNG kit . Accordingly, on 02.12.2002, the complainant handed over his bus no. DI-lP-A-7622 and ignition key to the official of Ashok Leyland Finance Ltd. , Bhagria House, 43, Community Centre, New Friends Colony, New Delhi-110 065 . The officials of Ashok Leyland Finance Ltd. , also asked the complainant to contact M/s. Pearrey Lal 85 Sons for fitting of CNG kit from whom the bus was purchased.. 8. That the officials of Ashok Leyland Finance Ltd. , also contacted M/s. Pearey Lal & Sons in the presence of the complainant to get fit the CNG kit in his bus. The complainant also wrote letter to M/s. Pearey Lal & Sons. 9. That the officials of Ashok Leyland Finance Ltd. , after taking ignition key and possession of bus, delayed the fitting of CNG kit in the bus for about 20 days and on one or other false pretext of contacting the CNG kit dealers, they linger on and delayed the CNG kit fitting in bus for about 20 days. Then, complainant requested the officials of the accused company to return his bus and he decided to arrange the fitting the CNG kit on his own . 10. That the officials of Ashok Leyland Finance Ltd....
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....d Finance Ltd.'s officials, delayed the return of the bus to complainant on one or other false pretext till the month of February 2003. In the month of February 2003 , Ashok Leyland Finance Ltd.'s officials demanded Rs. 1,19,426/-to return his vehicle. Accordingly on 25.02.2003 , the complainant paid Rs. 1,19,426/-to accused persons , which was duly acknowledged by the officials of Ashok Leyland. But, they did not return the complainant vehicle even after payment of Rs. 1,19,426/-. The copy of the payment of Rs. 1,19,426/-made on 25.02.2003, is being filed and same is marked as annex. E. 14. That the bus of the complainant was duly insured for the period of 12.04.2002 to 11.04.2003 and the complainant had already paid insurance subscription of Rs. 11,831/-to the Oriental Insurance Company Ltd., but the accused persons withhold the bus of the complainant on 2.12.2002 and have not returned the till date. The true copy of the insurance company is being filed and marked as annex. F. 15. That after receipt of Rs. 1,19,426/-, the officials of Ashok Leyland Finance Ltd., refused to return the complainant vehicle and delayed the matter on one or other false pretex....
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....'s officials are claiming to have sold its in Rs. 1,70,000/-on 4.7.2003, though till date it remained registered in the name, of complainant and even thereafter they have filed a complaint under Section 138 N. I. Act against the complainant for the dishonoured of the cheque of Rs. 3,60,768/-dated 18.01.2006 by taking advantage of the signature of complainant on the blank cheque , signed and given by the complainant to the accused persons in January 2001 at the time of getting finance the vehicle. 20. That the Ashok Leyland Finance Ltd's officials have misappropriated the vehicle of the complainant by taking advantage of his old age and loneliness as they have not returned his bus since 02.12.2002 only for some of Rs. 1,92,842/-and the market value of the bus of the complainant on 02.12.2002 was approx. Rs. 8,00,000/-{Rupees Eight Lacs only) . Even on today, the value of the bus is Rs. 7,00,000/-(Rupees Seven Lacs only) . And on the other hands, the accused persons have filed a criminal complaint under section 138 of N. I. Act , in respect of dishonour of cheque no. 162539 for Rs. 3,60,768/-dated 18.01.2006 to extort the complainant by fabricating the false figure o....
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.... IPC, in the interest of justice." ii. The learned Metropolitan Magistrate vide order dated 17.05.2007, had called for a status report from the Station House Officer ('SHO'), P.S. New Friends Colony. Thereafter, vide order dated 02.06.2007, the learned MM directed the SHO, P.S. New Friends Colony, to register an FIR under appropriate sections and to proceed with the investigation. Subsequently, an FIR dated 19.11.2007, bearing FIR no. 613/2007, under Sections 406/420 of the IPC was registered at P.S. New Friends Colony. iii. After completion of the investigation in the aforesaid FIR, a Cancellation Report was filed, before the learned Additional Chief Metropolitan Magistrate, under Section 173 of the Cr.P.C. iv. In pursuance thereof, the petitioner filed a protest petition dated 21.10.2009, wherein he prayed to reject the Cancellation Report filed by the Investigating Officer in FIR no. 613/2007, under Sections 406/420, registered at P.S. New Friends Colony and further take cognizance on the complaint filed by him. v. The learned Additional Chief Metropolitan Magistrate vide order dated 25.03.2010, accepted the Cancellation Report filed b....
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....company for fitting of the CNG kit and he was asked by company to leave the vehicle at their office and assured the complainant to get fitted the CNG kit. Thereafter on 02.12.2002, he left the said vehicle with company at Bhagria House, 43, Community Center, New Friends Colony and in this regard the company official also contacted M/s. Pyare Lal & Sons company for fitting of the CNG kit. Instead of returning the bus on 24.12.2002, the company handed over a letter by stating that the said vehicle was surrendered on 02.12.2002 and asked to clear the outstanding amount of Rs. 3,12,268/-. It is further alleged in the complaint that 27.12.202 and again on 30.12.2002, the complainant had paid Rs. 17,500/-for DTC bus stand fee. Further had paid a Rs. 1,19,426/-on 25.02.2003 for return of the vehicle. It is further alleged by the complainant that he has already paid the insurance amount upto 11.04.2003. But despite this the accused persons had not returned the said bus. Furthermore, in December 2006, complainant received summons u/s 138 NI Act by which he came to know that the said vehicle sold by the accused company for the sum of Rs. 1,70,000/-and therefore filed a criminal complaint to ....
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....ccused company because as per the evidence collected by the police, he himself surrendered the bus and any kind of subsequent payment made to accused company do not point towards a criminal offence of cheating and misappropriation by the accused persons. At most a civil dispute could be inferred from this transaction. 11. It is rightly observed by the trial court in the impugned order that in protest petition, the revisionist only reiterated the details of earlier complaint and offered no explanation or clarification suggesting the short comings of the cancellation report. Therefore, there is no justification in continuance of the proceedings through protest petition. xxx 15. Therefore the proposition of law which emerges as also argued by Ld. counsel for revisionist that court even after acceptance of cancellation report may continue with complaint case proceedings. But it is not mandatory and all depends upon facts and circumstances of each case. In present set of facts, revisionist unable to point out any shortcoming in the findings disclosed in cancellation report. Even has not disputed his own letter of surrender of vehicle. Furthermore could not bri....
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....d surrendered the bus in the godown of the respondent no. 2/company. 11. Heard the learned counsel appearing on behalf of the parties. 12. It is pertinent to note that during the pendency of the present proceedings the petitioner herein i.e. Sh. Kapoor Chand Gupta, has since passed away, an application bearing application no. CRL.M.A. 3263/2018, to bring on record the legal representative of the petitioner, was allowed by the predecessor Bench of this Court vide order dated 07.09.2022 and the name of the petitioner was substituted by Sh. Sahil Gupta s/o Sh. Sushil Gupta, R/o House No. 46, Street No. 1 Ferozepur Cantt, Punjab. 13. In Rajan Kumar Manchanda v. State of Karnataka, 1990 (Supp) Supreme Court Cases 132, the Hon'ble Supreme Court has held as under: "2. ...A second Revision did not lie at the instance of the State to the High Court in view of the provisions of Section 397(3) of Cr.P.C. Obviously, to avoid this bar, the application moved by the State before the High Court was stated to be under Section 482 Cr.P.C. asking for exercise of inherent powers. In exercise of that power, the High Court has reversed the order of the Magistrate as affirmed by the....
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....arent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limaye Vs. State of Maharashtra (1977) 4 SCC 551, State of Orissa Vs. Ram Chander Aggarwal, AIR SC 87, Raj Kapoor Vs. State (Delhi Administration) 1980 Cri.L.J. 202, Krishnan & Anr. Vs. Krishnaveni & Anr and Kailash Verma Vs. Punjab State Civil Supplies Corporation and Anr (2005) 2 SCC 571." 15. In Varinder Kaur v. The State (NCT of Delhi) & Anr., , a leaned Single Judge of this Court, has observed as under: 21. It is worth mentioning that in the garb of petition under Section 482 CrPC, the petitioner has filed second revision petition which is not maintainable. In the case Wajid Mirza vs. Mohammed Ali Ahmed & Ors. 1982 CriLJ 890, the High Court of Andhra Pradesh has observed as under :- "23. This Court in Re Puritipati Jagga Reddy, (1979) 1 AJLJ 1 : AIR 1979 Andhra Pra. 146 at p. 149 (FB) held : The language of sub-section (3) of Section 397 contains no ambiguity. If any person had already chosen to file a revision before the High Court or to the Sessions Court under subsection (1), the same person cannot prefer a furthe....
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....fore the learned Appellate Court were dealt by a detailed threadbare analysis of the prosecution evidence on record and finding of the learned trial Court. It was for the petitioner to demonstrate the perverseness in the impugned judgment passed by the learned Appellate Court in order to cause interference by this Court with two concurrent findings of acquittal qua the present respondent. The Hon'ble Supreme Court in Manju Ram Kalita V. State of Assam, (2009) 13 SCC 330, while dealing with the scope of reappreciation of evidence by higher court in criminal revision observed in para 9 as under: "9. ...It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse..." Following the aforesaid judgment, the Hon'ble Supreme Court recently in Malkeet Singh Gill Vs. State of Chhattisgarh, (2022) 8 SCC 204, has held as under: "10. Before adverting to the merits of the contention, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after detailed appre....