Yashpal vs State & Ors.
2013 Latest Caselaw 3540 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P.(CRL) 1072/2013

                                   Date of Decision: 12th August, 2013

       YASHPAL                                     ..... Petitioner
                          Through:     Mr. Gurmit Singh Hans and
                                       Mr. Vishal Soni, Advs.

                          versus

       STATE & ORS.                                ..... Respondent
                          Through:     Mr.      Saleem         Ahmed,
                                       Addl.Standing Counsel, GNCT
                                       with Mr. Hemant Kumar, Adv
                                       and I.O., G.Joykutty, P.S.
                                       Anand Vihar Rly. Station.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. By virtue of this writ petition under Article 226 and 227 of the

Constitution of India read with Section 482 of the Code of Cr.P.C,

1973, the petitioner seeks to get the order dated 04.05.2013 passed by

learned Session Judge in Crl.Rev. No.51/2012 and order dated

18.07.2012 passed by learned trial Court in CC No.08/2012 set aside

and for restoration of the criminal revision and complaint to its

original number.

2. The back ground of the case is that the petitioner filed a

criminal complaint u/s 200 read with Section 156(3) of Cr.P.C before

the learned Metropolitan Magistrate with the prayer to issue

directions to register the FIR u/s 420/468/471/120-B/34 IPC against

the accused persons on the ground that the petitioner is doing

business and entered into an agreement to sell with one Shri Irtiza

Hussain and his son Mohd. Yusuf vide agreement to sell dated

27.06.2011 in respect of property bearing No. Phoenix Lodge, having

its covered area measuring 7500 sq.ft approximately along with open

area with tennis court measuring 13000 sq.ft approximately situated

at Vanistart Estate now known as Hakmans Estate, Mall Road,

Mussoorie against the full and final consideration amount of

Rs.12,40,00,000/-. A sum of Rs.1,24,00,000/- have already been paid

to the seller. An agreement to sell was executed after being satisfied

with the representation of respondent but the revisionist came to

know that the property was under litigation with a person, namely

Afak Mohd and his mother namely Smt. Wasim Jahan, resident of

Lucknow who were claiming to be the real owners of the property

and even a status quo order was passed on 24.07.2002 by High Court

of Allahabad at Lucknow Bench. Number of litigations are pending

in Dehradun District Court as well as District Court, Lucknow.

3. As per the status quo order, the property legally cannot be sold

without prior permission of the Court. The accused persons refused

to return the money of the petitioner and even avoided meeting with

him. The petitioner lodged a complaint with SHO concerned as well

as senior police officials but no action was taken on his complaints.

Thereupon the petitioner filed a criminal complaint before the learned

M.M for taking action against the accused persons as per law. In

March, 2012, compromise talks were initiated between the revisionist

and respondent no.3. Moreover the petitioner had also changed his

counsel. When the compromise talks were coming to some result, the

revisionist instructed his new counsel to withdraw the complaint and

as such the submission was made by the new counsel before the Court

on 19.03.2012 but the counsel was directed to call the petitioner in

person. For two dates of hearing, the petitioner appeared in person

but since the learned trial court was on leave, the matter was

adjourned for further proceedings. Inadvertently, the petitioner noted

the date of hearing as 13.08.2012 and did not appear on 18.07.2012

which resulted in dismissal of the complaint in default for non-

prosecution. Immediately an application for restoration of the

complaint was filed. Realising that the restoration application is not

maintainable, same was withdrawn, with liberty to file appropriate

application. Thereupon revision was filed before the learned Sessions

Court on 18.09.2012. The learned Session Judge admitted the

revision petition and called for the Trial Court record. The matter was

being adjourned from time to time but again due to wrong noting of

the date, the counsel did not appear, as such the revision petition was

dismissed in default.

4. An application for restoration of Crl. Revision was filed.

However the same was dismissed vide order dated 04.05.2013 hence

the writ petition was filed for quashing of the order dated 04.05.2013

passed by the learned Sessions Judge and order dated 18.07.2013

passed by learned Metropolitan Magistrate.

5. Learned counsel for the petitioner relied upon Madanlal

Kapoor Vs. Rajiv Thapar & Ors., 2007 Crl.L.J 4684 for submitting

that a revision petition cannot be dismissed in default and the same

has to be decided on merits. It was further submitted that since a

huge amount is involved, as such in case the impugned order is not

set aside then the petitioner be granted liberty to file fresh complaint.

6. The petition has been contested by respondent no.2 who filed a

status report wherein it was submitted that the petitioner filed a

complaint in P.S. Anand Vihar Railway Station alleging therein that

he entered into an agreement to sell dated 27.06.2011 with respondent

no.3 through his general attorney and respondent no.4 regarding sale

of property situated at Mussorie for a consideration amount of

Rs.12,40,00,000. Certain payments were made by him. He was

assured that the property is free from litigation and any encumbrance.

Later on, he came to know that the property was under litigation and

status quo order has been passed. It is further reported that initially

the petitioner joined the enquiry and submitted agreement to sell and

cash receipts. He was requested to provide the details of the pending

litigation in respect of the property and copy of the status quo order

dated 24.07.2012 but he never provided the same. In view of the

magnitude of the cheated amount, effort was made to forward the

complaint to E.O.W but the same came back. Later on, when the

complainant was contacted telephonically he informed that he was in

the process of settling the issue amicably. Thereafter he never joined

the enquiry. He was also not available at the given address.

Accordingly the complaint was filed.

7. By virtue of the present petition, the petitioner is challenging

the impugned order dated 04.05.2013, vide which application moved

by the petitioner for restoration of criminal revision was dismissed.

Although the petitioner has placed reliance on Madanlal(supra),

where it was held that the criminal revision cannot be dismissed in

default and it has to be decided on merit, however the revision was

dismissed in default vide order dated 19.02.2013 and this order has

not been challenged by the petitioner.

8. Even otherwise, a perusal of certified copy of impugned order

dated 04.05.2013 passed by learned Session Judge goes to show that

the application for restoration of revision petition has been dismissed

by a detailed speaking order whereby the learned Sessions Judge has

dismissed the application not only on the ground that there were no

grounds for allowing the application for restoration of the revision

petition but has also dealt with the conduct of the petitioner while

prosecuting the criminal complaint filed by him before the

Metropolitan Magistrate and thereafter the revision petition. It was

observed that the copy of the proceedings attached with the revision

petition reflect that on 13.09.2011 the complaint came up for hearing

but complainant was not present and it was made clear that if on the

next date of hearing i.e 05.10.2011 the complainant did not appear

then it will be presumed that he was not interested to proceed the case

further. Thereafter the complainant appeared and the report was

called for 22.10.2012 and then matter was adjourned from time to

time for 02.02.2012, 19.03.2012, 27.03.2012. On 27.03.2012, the

complainant appeared and wanted to withdraw the complaint. As

such it was put up for 02.04.2012. On that date, the complainant did

not appear, as such court notice was issued to him for 10.04.2012,

30.04.2012 and 18.07.2012. On 18.07.2012 when the complainant

did not appear then the complaint was dismissed for non-appearance

and non-prosecution. Thereafter the complainant moved an

application for restoration of the complaint. However same was

withdrawn by him with liberty to take appropriate steps as the M.M

had no power to restore the complaint which was dismissed in

default. Thereupon the petitioner preferred revision petition seeking

to set aside the order dated 18.07.2012. The matter was being

adjourned time and again before the learned Sessions Judge and

thereafter when the petitioner or his counsel did not appear then it

was dismissed for non-prosecution. A detailed account of the entire

proceedings have been given by learned Sessions Judge as to why the

revision was dismissed for non-prosecution. Things would have been

different had the application for restoration of the revision petition

been dismissed only on the ground mentioned in the application but

in fact while deciding that application, the learned Session Judge had

also gone through the entire record and in fact thereby decided the

merits of the case which resulted in dismissal of the criminal

complaint before the Metropolitan Magistrate. That being so, the

impugned order does not suffer from any infirmity which calls for

interference.

9. As regards the prayer of learned counsel for the petitioner that

the petitioner be permitted to file a fresh complaint on the same cause

of action, no such permission can be granted, more particularly

keeping in view the fact that he himself filed the criminal complaint

but he did not choose to prosecute diligently. Even otherwise, no

prejudice is going to be caused to the petitioner, inasmuch as, as per

the status report filed by respondent no.2, a complaint was filed by

the petitioner in P.S. Anand Vihar Railway Station and enquiry was

being made by the police where the petitioner was called time and

again. However the status report reflects that before the police

authorities also his attitude was of non-cooperation and he failed to

supply the relevant documents. In any case, keeping in view the

magnitude of the amount involved in the case, the enquiry if

continued by P.S. Anand Vihar Railway Station, the petitioner may

co-operate in the enquiry, if so desired. However, as regards the

present petition is concerned, there is no merit in the same. The

petition is accordingly dismissed.

SUNITA GUPTA (JUDGE) AUGUST 12, 2013 as