Anil Kumar Bhandoola vs The State & Another
2016 Latest Caselaw 2373 Del

$~31
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                         +        CRL.M.C. 1725/2014
                                       Date of Decision: March 28th , 2016


       ANIL KUMAR BHANDOOLA                   ..... PETITIONER
                    Through Mr.Satish Tamta, Adv. & Ms.Ruchi
                            Kapur, Adv.

                         versus

       THE STATE & ANOTHER                              ..... RESPONDENTS
                     Through           Mr.Amit Chadha, APP for the State.
                                       Mr.D.S. Sidhu, Adv. for R-2.

       CORAM:
       HON'BLE MR. JUSTICE P.S.TEJI

                                      ORDER

P.S.TEJI, J

1. The present petition has been filed by the petitioner under Section

482 of the Code of Criminal Procedure for setting aside the order dated

22nd November, 2013 passed by the learned Additional Sessions Judge,

Patiala House Court, New Delhi in Criminal Revision No.73/2013 and

the order dated 30th March, 2013 passed by the learned Metropolitan

Magistrate, Patiala House Courts, New Delhi.

2. The facts as apprised by learned counsel for the parties and as

emanated from records are within the narrow compass and to the extent

necessary, put forth hereinafter. On 8th March, 1990, an FIR No.62/1990 under Section 420/403 of the Indian Penal Code was registered at the

Police Station R.K. Puram, New Delhi, against the present petitioner

wherein during investigation, prosecution seized four air conditioners

from the petitioner and custody of case property was given to respondent

no.2/complainant on superdari.

3. Vide judgment 14th January, 1999 passed by the learned

Metropolitan Magistrate, the petitioner was acquitted of the charges.

However, no order regarding case property was passed. The petitioner

filed an application under Section 452 of Code of Criminal Procedure and

vide order dated 1st February, 1999, the said application was allowed but

possession of the goods was not handed over to the petitioner. The

petitioner is stated to have filed another application dated 9th February,

1999, for giving effect to the order dated 1st February, 1999 and requested

the investigating officer of the case to verify the receipts of ownership,

but the ASI did not inquire into the claim of the petitioner and only

inquired claim of the complainant who has been arrayed as respondent

no.2 herein.

4. Learned counsel for the petitioner submits that the learned

Metropolitan Magistrate, relying on one sided inquiry, passed an order

dated 18th January, 2001, dismissing the application of the petitioner and

declaring complainant (respondent no.2 herein) to be the rightful owner

of the case property.

5. Aggrieved by the said order, the petitioner filed an appeal before

the Court of Sessions and vide order dated 31st March, 2003, the learned

Sessions Judge set aside the impugned order and directed the parties to

lead evidence.

6. On 8th April, 2003, the file of the case was received back by the

Trial Court and the matter was fixed for appearance of the parties for

further proceedings. Despite the direction of the Session Court, the

complainant/respondent no.2 did not appear before the learned

Metropolitan Magistrate. Court notice was issued to the

complainant/respondent no.2 for recording of evidence. The learned

Metropolitan Magistrate ordered for summoning of original case file.

7. On 24th July, 2004, the clerk of the record room appeared before

the Court and made a statement to the effect that the case file was

destroyed on 6th June, 2003. Learned counsel for the petitioner further

submits that despite the fact that the proceedings relating to the original

case file was going on and the appeal was decided in the year 2003 only,

the original file of the case was destroyed. Upon the parties filing

certified copies, file of the case was re-constructed. The matter was listed

for argument on the application on 23rd December, 2004 when the

complainant/respondent no.2 did not appear and Court notices were

issued thrice to him. The respondent no.2 was ordered to be summoned

through SHO on 12th May, 2006. As he did not appear on the next date, fresh summons were issued against him. The complainant appeared

before the Court in the month of April/May, 2007 and moved an

application under Section 311 of the Code of Criminal Procedure for

recalling of petitioner for his cross-examination, which application was

allowed subject to payment of costs. After completion of cross-

examination of the petitioner, an opportunity was given to the

complainant/respondent no.2 for leading evidence but he did not avail the

same to prove his ownership. The matter was listed for final arguments.

8. When the matter was listed for final hearing, the parties

compromised the present matter and all the litigations pending before

different Courts and in view of the compromise, the petitioner did not

press his application filed under Section 452 of the Code of Criminal

Procedure and withdrew the same.

9. Learned counsel for the petitioner has next contended that the

complainant/respondent no.2 herein, did not abide by the compromise

and the statement made in support thereto before this Court and did not

withdraw the other litigations pending before different Courts of Delhi

which was undertaken by him. It has further been stated that as the

application under Section 452 Cr.P.C. was not disposed of on merits, the

petitioner moved an application for restoration of the same. This

application was dismissed by the learned Metropolitan Magistrate vide

order dated 30th March, 2013 and restoration of the application was declined on the ground that he could not recall his own order.

10. Aggrieved by the order dated 30th March, 2013, the petitioner filed

a revision petition before the learned Sessions Judge. The said revision

petition was dismissed by the learned Sessions Judge vide order dated

22nd November, 2013.

11. In support of his contention, learned counsel for the petitioner has

submitted that the application of the petitioner was decided on merits and

was dismissed as withdrawn for not being pressed because of the reason

that the settlement was arrived at between the parties and undertaking to

this effect was given by the complainant/respondent no.2 herein to the

Court. The petitioner was compelled to move the Court for restoration of

the application which was dismissed only due to non-performance of the

act on the part of complainant/respondent no.2.

12. On the other hand, learned counsel for respondent no.2 has

submitted that the respondent no.2 was doing the business of sale,

purchase & hiring of air conditioners and while doing his business, he got

installed four air conditioners at Shanti Niketan, New Delhi. However,

the said four air conditioners were removed by the petitioner, who is the

brother of the respondent no.2, without any authorization in this behalf.

The above said FIR was lodged in this regard and the air conditioners

were given on superdari by the Court vide superdarinama dated 16th

March, 1990.

13. Learned counsel for the respondent no.2 has further contended that

the respondent no.2 was declared the rightful owner of the property as the

application of the petitioner was dismissed by the learned Metropolitan

Magistrate on 18th January, 2001. Thereafter, in the appeal filed by the

petitioner, both the parties were directed to lead evidence. Thereafter,

the revision petition filed by the petitioner for restoration of application

under Section 452 of Cr.P.C., was also dismissed on 22nd November,

2013 by learned Additional Sessions Judge, Patiala House. It is next

contended by learned counsel for respondent no.2 that the four air

conditioners which are in dispute, were worth Rs.40,000/- at the time of

purchase in the year 1990 and that the same have now become junk and

are of no value as on date.

14. I have heard learned counsel for the parties at length and gone

through the available records. It transpires from the record that initially

the petitioner filed an application under Section 452 of Cr.P.C. for the

release of goods against which he was claiming ownership and,

thereafter, it was apprised to the Court that both the parties have amicably

compromised the matter and a statement to that effect was also made by

the complainant for withdrawal of the said application. On 7th February,

2011, the said application was dismissed as withdrawn. The petitioner

filed an application for restoration of the application under Section 452

Cr.P.C. which was dismissed on the ground that once an application has been withdrawn as compromised and disposed of, no further grievance

remains with the parties and as such, the same cannot be restored. The

revision filed by the petitioner was dismissed on the ground that revision

against an order is not maintainable unless it is shown that order passed

by the Trial Court was bad, illegal or reflects an error apparent on the

face of it.

15. In the facts and circumstances mentioned above, I do not find any

infirmity in the order dated 22nd November, 2013 passed by learned

Additional Sessions Judge and the order dated 30th March, 2013 passed

by the learned Metropolitan Magistrate.

16. Consequently, the present petition is dismissed.

(P.S.TEJI) JUDGE MARCH 28 , 2016 aa