Through : Mr.Lokesh Kumar & Mr.Harish Nigam, Advs. Through : Ms.Rajdipa Behura, APP for State. Mr.H.M.Singh & Ms.Shabana, Advs for R-2.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE CRL.M.C. 1737/2011 & Crl.M.A.No.6283/2011(Stay) Judgment reserved on :23rd February, 2012 Judgment delivered on: 19th March, 2012 HINDUSTAN DOMESTIC OIL & GAS CO. (BOMBAY)LTD. & ORS.... Petitioners Through : Mr.Lokesh Kumar & Mr.Harish Nigam, Advs. versus STATE & ANR... Respondents Through : Ms.Rajdipa Behura, APP for State. Mr.H.M.Singh & Ms.Shabana, Advs for R-2. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J. 1. Vide the instant petition, the petitioner has sought to set aside the order dated passed by learned Additional Sessions Judge, New Delhi, in Criminal Revision No.223/2006 and to set aside the consequential summoning order dated passed by learned Metropolitan Magistrate, New Delhi in Criminal Complaint Case No.121/1/2006 against the petitioner. 2. Initially, respondent No.2 filed a complaint case against the petitioner under Section 420/465/467/468/471/474 Indian Penal Code, 1860 which was dismissed by learned Trial Court vide order dated by a detailed order. 3. Being aggrieved, respondent No.2 assailed the said order by filing revision petition before Sessions Court, which was allowed, on the submissions of learned counsel for revisionist/respondent No.2 that

2 permission to lead evidence be granted on the allegations that in discharge of the lawful debt, petitioner/accused delivered the possession of TATA 407 Tempo having registration No.MH 12-RA-7969 and later on petitioner/ accused gave him the duplicate registration certificate of vehicle bearing registration No.MH-12-RA The registration certificate shows the engine number and chassis number of the vehicle were the similar. 4. As argued by learned counsel for revisionist, that either the registration certificate of Haryana registration number is fake or the number of the vehicle on the number plate was fake. 5. Learned Revisional Court has recorded in its impugned order that the revisionist/respondent No.2 must understand that in a Court of law, the evidence has to be brought on record in according with provisions contained in the Indian Evidence Act, 1872; as the revisionist has tendered evidence by way of affidavit. This way of leading evidence in complaint case is not admissible in law. Therefore, learned Metropolitan Magistrate should not have accepted the said affidavit of evidence. 6. At that juncture, learned counsel for revisionist/respondent No.2 sought permission to lead some more evidence on the above stated facts. 7. Thus, learned Additional Sessions Judge, New Delhi, by setting aside the order passed by learned Trial Court, allowed the revisionist with liberty to lead evidence only on the issue of forgery of number plate and registration certificate of the tempo in question. 8. Thereafter, respondent No.2 led the evidence before learned Trial Court. After considering the same, the summoning order were passed, against the petitioner vide order dated , by learned Trial Court. 9. It is how the petitioner knocked the door of this Court, by way of present petition, wherein orders of learned Trial Court and Revisional Court have been challenged. 10. Learned counsel for petitioner has submitted that learned Trial Court had dismissed the complaint filed by respondent No.2 initially, while observing as under:- After perusal of the receipts which shows that money has been borrowed from Sh.Deewan Chhabra and payment has been made through P.S.Bhati.

3 The receipt shows that the money has been borrowed from Deewan Chhabra. The same has been received by Kanwaljit Singh and Mohanlal. As per the receipt the money has not been borrowed from P.S.Bhati but from Deewan Chhabra, the agreement may be between Deewan Chhabra and Hindustan Domestic Oil Gas Co.(Bomaby) Ltd. The money has been borrowed from P.S.Bhati. Shri P.S. Bhati has no locus to file the present complaint. Even then the Ex.CW1/C has been prepared on the letter head of Residents Welfare Association (Regd) (Bolocks C & G) East of Kailash Part I, New Delhi. The company incorporated under company Act will not give a receipt of such type on paper in ordinary course. The receipt Ex.CW1/A, Ex.CW1/B and Ex.CW1/D which bears the signature of Kanwaljit Singh. The signature are quire different on all three receipt. The revenue stamp pasted on Ex. CW1/C, Ex.CW1/A, Ex.CW1/B and Ex.CW1/D are different mark. Nothing has been placed on record which shows that Kanwaljit Singh is the employee of the Hindustan Domestic Oil Gas Company. Further, Ex.CW1/C bears the signature of Mohan Lal but nothing has been placed on record which shows any relation between Mohan Lal and accused No.1. It is settled law that for associating the offence of cheating the complainant is required to show that the accused has fraudulently or dishonest intention at the time of making promise or representation. The complainant stated that the accused has borrowed the money on , and , the first payment which is alleged to be made is on The receipt shows that the last payment has been made on which is after a gap of 4 months. As a prudent person who is giving/lending the money to other persons and has reasons to believe that other person has fraudulent intention, he will not lend any money after 4-5 months. Moreover the business of the accused person closed in the year 2003, the complaint has been filed in the year Regarding the forgery of documents nothing has been placed on record which shows that nay documents was given to the complainant by the accused person for transfer of vehicle in their name which is alleged to be forged. The complainant has placed on record only one duplicate registration certificate of vehicle No.HR-12RA 9961 TATA The allegation of the complainant is that the chassis number of the vehicle number TATA 407 MH 12 RA 7961, which was given to the complainant for realising of the agreed amount and of vehicle number HR-12A-9961 are same. No document has been placed on record regarding vehicle TATA 407

4 No.MH-12-RA The complainant has filed the duplication registration certificate which is not signed by any authority. There is no agreement on record vide which the vehicle was sold to the complainant by the accused company. Counsel for complainant relied upon the judgment of Hon ble Supreme Court titled as Trisons Vs. Rajesh Aggarwal JT 199(6) SC 618. I have gone through the entire judgment. The facts and circumstances of the said judgment are not applicable on the facts and circumstances of the present case. In view of the discussions above, I find no sufficient material on the record to issue process under Section 204 Cr. PC against the accused. Complaint of the complainant is dismissed under Section 203 Cr. P.C. 11. Learned counsel for petitioner submitted that learned Trial Court, initially dismissed the complaint not only on the ground for what learned Revisional Court has allowed the revisionist to lead the evidence, but after considering all the submissions made on behalf of respondent No.2 in the complaint. Therefore, if there has been any lacuna, the Revisional Court ought not to allow to fill up the same. 12. Learned counsel has further submitted that learned Revisional Court received the Criminal Revision No.223/1/2006 on and after hearing arguments allowed the said petition on the very same date itself. 13. To strengthen his arguments, he relied upon the decision of the Apex Court in Uma Nath Pandey & Ors v. State of UP & Anr AIR 2009 SC 2375 wherein it has been observed as under:- 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court allowing the Revision Petition filed by respondent no.2. Though various points were urged it is not necessary to go into those in detail as the revision petition was allowed even without issuing notice to the present appellants and to the other parties. 19. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.

5 14. He has also relied upon another decision of the Apex Court in A. K. Subbaiah & Ors v. State of Karnataka SCR 1128 wherein it was held as under:- Learned counsel laid much emphasis on the provisions contained in subclause 2 of Sec Sec. 401 reads: 401. High Court's powers of revision. --(1) in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in, the manner provided by Section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. Sub-clause 2 of this Sec. talks of a situation where an order is being passed against any person and it was contended by the learned counsel that the section not only talks of accused persons but also of "or other person unless he has had an opportunity of being heard." Apparently this subclause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Sec. 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party. Learned counsel for the appellants was not in a position to contend that even if any contention of the appellants is accepted and the High Court accepts the revision petition as it is, there will

6 be any situation where an order may be passed against these two respondents or they may be joined as parties to the proceedings. Reference to Section 401 clause 2 is of no consequence so far as these two respondents are concerned. 15. Learned counsel for petitioner has also relied upon the decision rendered by this Court in Mohd. Afzal & Ors v. Noor Nisha Begum & Anr 1997 (2) Crimes 493 wherein coordinate Bench of this held as under:- 2. Brief facts which led to the present revision petition are as under: that on Mst.Noor Nisha Begum Filed a complaint before the Metropolitan Magistrate, P.S. Lahori Gate under sections 452/448/506/463/465/120-B of the Indian Penal Code. The learned Magistrate after the appraisal of the evidence led by the complaint came to the conclusion that the alleged incident never took place and the complaint itself was a Figment of the imagination of the complainant. He was-further of the view that the complaint was filed in order to bring pressure on the respondents. Hence the said complaint was dismissed vide judgment and order dated 28th October, Aggrieved and dis-satisfied with the said judgment and order the complainant i.e. the respondent herein approached the court of Session by way of revision. The learned Additional Sessions Judge vide the impugned judgment and order allowed the revision petition and set aside the order passed by the learned M.M. He further directed the learned M.M. to summon the petitioners herein i.e. respondents 1 to 7 under sections 323/452 of the Indian Penal Code. 4. Aggrieved and dis-satisfied with the said judgment and order passed by the learned Additional Sessions Judge the petitioners have preferred the present revision petition. 5. Learned counsel for the petitioners Mr.Dhingra has contended that admittedly the learned Additional Sessions Judge passed an order i.e. the impugned order without even hearing the petitioner. Thus according to the learned counsel, the impugned order is illegal and invalid as no order can be passed against a person unless he is given a proper hearing. This is the settled position of law in view of the provisions of section 401(2) of the Code of Criminal Procedure. The principles of natural justice also require that a man should be heard before an adverse order is passed against him.

7 10. Section 401(2) is, to the following effect:"no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by Pleader in his own defense." 11. 1t is abundantly clear from the relevant provisions of law reproduced above that no order to the prejudice or an accused or any other person can be made unless the said accused or the said person had been given an opportunity of being heard. 12. Admittedly in the instant case an order to the determent of the petitioners was passed by the learned Sessions Judge in as much as the learned Magistrate was directed to summon them under Section 323/452 of the I.P.C., yet the said order was passed in their absence. Hence, I feel the said order is illegal and invalid and is liable to be set aside. 15. In the above circumstances, the petitioner are entitled to succeed. Petition is allowed. The impugned order passed by the learned Additional Sessions Judge is hereby set aside. The case is remanded to the learned Additional Sessions Judge on 22nd April, The learned Additional Sessions Judge after hearing both the parties would pass an order afresh on the revision petition preferred by the respondent. 16. Learned Revisional Court has not considered the entire evidence as was considered by the learned Trial Court and only on the submission of learned counsel for revisionist; impugned order was passed on On the legal issue raised by petitioner, of not being heard, that the learned Revisional Court could not have passed the impugned order without calling and hearing the affected party, i.e. petitioner herein. 18. However, learned counsel for respondent No.2/revisionist submitted that the no notice was issued by learned Revisional Court to the petitioner/accused as no summons were issued even by learned Trial Court, therefore, he was not in the picture till revisional order. 19. Learned counsel for respondent No.2 relied upon the provisions contained in Section 401(2) Cr. P.C. which runs as under:- Section 401 High Court s power of revision:- (1) xxx xx.

8 (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) xxx xxx (4) xxx xxx (5) xxx xxx 20. In support of his arguments and reliance on the provisions mentioned above, he further relied upon another decision rendered by coordinate bench in Parkash Devi & Ors v. State of Delhi & Anr (4) JCC 2833 while dealing with similar facts and issues involved, it has been held as under:- 14. With regard to the words "other person" appearing in Section 401(2) it has been discussed in the case of Prabha Mathur Vs.Pramod Aggarwal (supra) that:- 16. Having heard the learned Counsel for the parties, in our opinion, the appeal deserves to be allowed. It is no doubt true, as held by this Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. : 1976CriLJ1533 and reiterated in several other cases that the accused has no locus standi at the stage of investigation and he cannot insist for hearing before process is issued against him. It was also held in Chandru Deo Singh v. Prokash Chandra Bose and Anr. : [1964]1SCR639 and in Shashi Jena and Ors. v. Khadal Swain and Anr. AIR (2004) 4 SCC 236 that at the most, an accused may remain present with a view to be informed as to what is going on and nothing more. It is equally correct that if a person has no locus standi or right of hearing, such right does not accrue in his favour by an indirect process." Also in the case of Chitra Narain vs NDTV 109(2004) DLT 394 in answer to the question whether the person against whom the complaint is filed has a right to participate in a revision petition, the answer was given in the negative. It was held that "unless a person becomes an accused after process is issued against him, his presence is like any member of the public." It was explained that "a person against whom a complaint is filed does not become an accused until Court decides to issue process against him." Yet again, in the case of Tata Motors vs. State (supra) it was held by this court that: "22. Even if the applicants were to be "other persons" for the purpose of Section 401(2) Cr PC, their right to be heard arises only when and if this Court proposes to pass an order prejudicial to them. The respondents cannot possibly anticipate what order this Court is going to pass. In seeking

9 intervention at an anterior stage, they are really seeking to put the cart before the horse. The Court might well not agree with the complainant and dismiss the revision petition. In that sense, their application is premature." 15. In the backdrop of the aforesaid legal position and applying it to the facts of the case at hand, it would be evident that the Magistrate had dismissed the complaint filed by the complainant under Section 203 of the Code of Criminal Procedure as the learned Magistrate after taking into consideration the status report filed by the police and the other material on record came to the conclusion that the Civil Court, where already the complainant had filed his suit, would afford him the appropriate remedy to prove his right, possession and title of the property. Since the Magistrate did not examine the complainant and the other witnesses as per the mandate of Section 200 of Cr.P.C. therefore, in the revision filed by the respondent the matter was remanded back by the revisional Court with the direction to the Magistrate to grant another opportunity to the respondent to lead pre-summoning evidence and to proceed in the matter in accordance with law. 16. The grievance of the petitioner is that before the revisional Court, neither the petitioner was impleaded by the respondent complainant nor the revisional Court afforded any hearing to the petitioner, and hence prejudice has been caused to his rights and he claims his right of being heard under Section 401(2) of the Code of Criminal Procedure. As already discussed above, the character of the petitioner was still not that of an accused as the complaint filed by the respondent was dismissed under Section 203 Cr.P.C. and since the matter was remanded back to the Magistrate to grant opportunity to the complainant to lead pre-summoning evidence, therefore, the said order does not cause any prejudice to the rights of the petitioner. Even after the said remand, the fate of the complaint case could either be dismissal under Section 203 or under 204 Cr.P.C., if the Court with the fresh material before it, comes to the conclusion to proceed against the respondent. Since in the present case the process was not yet issued against the petitioner and the complaint was dismissed under S. 203 of Cr.P.C., therefore, preceding the said stage, the petitioner had no right to seek opportunity of hearing before the Revisional Court in the light of the legal position discussed above. 21. Admittedly, the complaint filed by respondent No.2 before learned Trial Court, punishable under Section 420/465/467/468/ 471/474 Indian Penal Code, 1860, the same was dismissed vide order dated by a

10 detailed order. Being aggrieved, respondent No.2 / complainant preferred a Criminal Revision Petition before the Sessions Court. 22. Learned Revisional Court observed that evidence has to be brought on record in accordance with provisions contained in the Indian Evidence Act, 1872; as the revisionist has tendered evidence by way of affidavit. This way of leading evidence in complaint case is not admissible in law. Therefore, learned Metropolitan Magistrate ought not have accepted the said affidavit of evidence. 23. At that juncture, on the prayer made by learned counsel for revisionist/complainant, learned Additional Sessions Judge, New Delhi allowed him to lead evidence on the issues of forgery of number plate and registration certificate of the tempo in question. 24. Learned Trial Court after considering the evidence led by respondent No.2/ complainant, issued the summoning order dated against the petitioner. 25. Vide the instant petition, the petitioner has challenged the proceedings against him on two counts; (i) He was not heard by learned Revisional Court; and (ii) Learned Trial Court relied upon the documents filed by complainant only and he had no opportunity to rebut the same. 26. The law settled by the Hon ble Supreme Court in Pepsi Food Ltd. & Anr. Vs. Special Judicial Magistrate and Ors., 1998 (5) SCC 749, wherein it was held that the order of summoning is a serious matter, which effects the valuable right of an individual. Thus, this valuable right cannot be taken away without affording an hearing to the accused. 27. Additionally, the Co-ordinate Branch of this Court while relying upon the case of Pepsi Food Ltd. & Anr. (Supra) in case of Yashpal Kumar Vs. Bhola Nath Khanna & Anr. vide Crl. Rev. No. 523/2009 decided on has observed as under:- The first contention of the learned counsel for the Petitioner is that no notice was issued in the revision petition. Learned counsel for the Respondent No. 1 states that there was no need for issuing notice to the Petitioner as he had not been summoned in the complaint case by the learned Metropolitan Magistrate and the complaint was dismissed at the stage of Section 203 Cr.P.C. It may be noted that the revision petition was filed by

11 Respondent No. 1 under Section 397 Cr.P.C., which permits the High Court or any Sessions Judge to call for or examine the records of any proceedings before any inferior criminal court smituated within its local jurisdiction to satisfy himself as to the correctness, legality or propriety of any finding, sentence or order. Section 399 Cr.P.C. provides for the Sessions Judges power of revision. Section 399 (2) provides that where any proceedings by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall apply to such proceedings and reference in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. Section 401 (2) Cr.P.C. states that no order under this Section shall be made to the prejudice of the accused or the other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. It cannot be said that the order impugned in the present petition has not been passed to the prejudice of the Petitioner whereby he has been directed to be summoned as an accused. Since the order is to the prejudice of the petitioner, the same should not be passed without an opportunity of being heard given to the Petitioner personally or through pleader as provided under Section 401(2) Cr.P.C. There is yet another way to look at it. With the dismissal of the complaint, an indefeasible right had accrued in favour of the Petitioner for not being tried in the complaint case instituted by the Respondent No. 1 and the dismissal being on merits would have enured to his benefit. This right of the Petitioner has been taken away by the impugned order without providing an opportunity of being heard to the Petitioner. Further Section 401 (2) Cr.P.C. starts with a negative covenant that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Thus, the sub-section makes it abundantly clear that no order to the prejudice of an accused or any other person can be made unless the said accused or the said person had been given an opportunity of being heard. In the absence of a hearing being afforded to the petitioner, to my mind, the impugned order needs to be set aside. Reliance of Respondent No.1 on the decision in Gurdeep Singh (Supra) is misconceived in view of the decision of the Hon?ble Supreme Court in Pepsi Food Ltd. and another vs. Special Judicial Magistrate and others, 1998 (5) SCC 749 wherein it was held that the order of summoning is a serious matter which affects the valuable right of an individual. Thus, this valuable right cannot be taken away without affording an hearing to the accused.

12 28. On considering the arguments advanced by ld. Counsels for the parties, and the judicial pronouncement referred above, I am of the considered view that the right of petitioner has accrued at revisional stage, as his right has been taken away by the impugned order passed by revisional court, by not providing an opportunity of being heard to petitioner. 29. Therefore, the impugned order passed by ld. Revisional Court vide its order dated , is hereby set aside. 30. Consequently, summoning order dated passed by ld. Metropolitan Magistrate is also set aside. 31. Ld. Revisional Court is, accordingly, directed to pass fresh order after giving opportunity to both parties. 32. Accordingly, instant petition is allowed on above terms. 33. In view of above, Criminal M.A.6283/2011 does not require any further adjudication and stands disposed of as such. 34. No order as to costs. 35. Before parting with the instant petition, in view of two conflicting judgments on the similar issue, one decided by Hon ble Mr. Justice Kailash Gambhir in case of Prakash Devi & Ors. (Supra) and another decided by Hon ble Ms. Justice Mukta Gupta in case of Yashpal Kumar (Supra), I am of the opinion that because of the two contradictory views taken by the Coordinate Benches of this Court, therefore, the issue involved in the instant petition, may be referred to Larger Bench subject to the order of Hon ble The Acting Chief Justice of this Court. MARCH 19, 2012 Sd/- SURESH KAIT, J