CRL.M.C./1725/2014 of ANIL KUMAR BHANDOOLA Vs THE STATE & ANOTHER

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 1725/2014

Date of Decision: March 28[th], 2016

ANIL KUMAR BHANDOOLA..... PETITIONERThroughMr.Satish Tamta, Adv. & Ms.RuchiKapur, Adv.ThroughMr.Satish Tamta, Adv. & Ms.RuchiKapur, Adv.

versus

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

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

P.S.TEJI, J

1.The present petition has been filed by the petitioner under Section482 of the Code of Criminal Procedure for setting aside the order dated22[nd]November, 2013 passed by the learned Additional Sessions Judge,Patiala House Court, New Delhi in Criminal Revision No.73/2013 andthe order dated 30[th]March, 2013 passed by the learned MetropolitanMagistrate, Patiala House Courts, New Delhi.482 of the Code of Criminal Procedure for setting aside the order dated22[nd]November, 2013 passed by the learned Additional Sessions Judge,Patiala House Court, New Delhi in Criminal Revision No.73/2013 andthe order dated 30[th]March, 2013 passed by the learned MetropolitanMagistrate, Patiala House Courts, New Delhi.

2.The facts as apprised by learned counsel for the parties and asemanated from records are within the narrow compass and to the extentnecessary, put forth hereinafter. On 8[th]March, 1990, an FIR No.62/1990emanated from records are within the narrow compass and to the extentnecessary, put forth hereinafter. On 8[th]March, 1990, an FIR No.62/1990

under Section 420/403 of the Indian Penal Code was registered at thePolice Station R.K. Puram, New Delhi, against the present petitionerwherein during investigation, prosecution seized four air conditionersfrom the petitioner and custody of case property was given to respondentno.2/complainant on superdari.

3.Videjudgment14[th]January,1999passedby thelearnedMetropolitan Magistrate, the petitioner was acquitted of the charges.However, no order regarding case property was passed. The petitionerfiled an application under Section 452 of Code of Criminal Procedure andvide order dated 1[st]February, 1999, the said application was allowed butpossession of the goods was not handed over to the petitioner.Thepetitioner is stated to have filed another application dated 9[th]February,1999, for giving effect to the order dated 1[st]February, 1999 and requestedthe investigating officer of the case to verify the receipts of ownership,but the ASI did not inquire into the claim of the petitioner and onlyinquired claim of the complainant who has been arrayed as respondentno.2 herein.

4.Learned counsel for the petitioner submits that the learnedMetropolitan Magistrate, relying on one sided inquiry, passed an orderdated 18[th]January, 2001, dismissing the application of the petitioner anddeclaring complainant (respondent no.2 herein) to be the rightful ownerof the case property.

5.Aggrieved by the said order, the petitioner filed an appeal beforethe Court of Sessions and vide order dated 31[st]March, 2003, the learnedSessions Judge set aside the impugned order and directed the parties tolead evidence.

6.On 8[th]April, 2003, the file of the case was received back by theTrial Court and the matter was fixed for appearance of the parties forfurther proceedings.Despite the direction of the Session Court, thecomplainant/respondentno.2didnotappearbeforethelearnedMetropolitanMagistrate.Courtnoticewasissuedtothecomplainant/respondent no.2 for recording of evidence.The learnedMetropolitan Magistrate ordered for summoning of original case file.

7.On 24[th]July, 2004, the clerk of the record room appeared beforethe Court and made statement to the effect that the case file wasdestroyed on 6[th]June, 2003.Learned counsel for the petitioner furthersubmits that despite the fact that the proceedings relating to the originalcase 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 filingcertified copies, file of the case was re-constructed. The matter was listedfor argument on the application on 23[rd]December, 2004 when thecomplainant/respondent no.2 did not appear and Court notices wereissued thrice to him. The respondent no.2 was ordered to be summonedthrough SHO on 12[th]May, 2006. As he did not appear on the next date,

fresh summons were issued against him.The complainant appearedbefore the Court in the month of April/May, 2007 and moved anapplication under Section 311 of the Code of Criminal Procedure forrecalling of petitioner for his cross-examination, which application wasallowed subject to payment of costs.After completion of cross-examination of the petitioner, an opportunity wasgiven to thecomplainant/respondent no.2 for leading evidence but he did not avail thesame to prove his ownership. The matter was listed for final arguments.

8.When the matter was listed for final hearing, the partiescompromised the present matter and all the litigations pending beforedifferent Courts and in view of the compromise, the petitioner did notpress his application filed under Section 452 of the Code of CriminalProcedure and withdrew the same.

9.Learned counsel for the petitioner has next contended that thecomplainant/respondent no.2 herein, did not abide by the compromiseand the statement made in support thereto before this Court and did notwithdraw the other litigations pending before different Courts of Delhiwhich was undertaken by him.It has further been stated that as theapplication under Section 452 Cr.P.C. was not disposed of on merits, thepetitioner moved an application for restoration of the same.Thisapplication was dismissed by the learned Metropolitan Magistrate videorder dated 30[th]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 30[th]March, 2013, the petitioner fileda revision petition before the learned Sessions Judge. The said revisionpetition was dismissed by the learned Sessions Judge vide order dated22[nd]November, 2013.

11.In support of his contention, learned counsel for the petitioner hassubmitted that the application of the petitioner was decided on merits andwas dismissed as withdrawn for not being pressed because of the reasonthat the settlement was arrived at between the parties and undertaking tothis effect was given by the complainant/respondent no.2 herein to theCourt. The petitioner was compelled to move the Court for restoration ofthe application which was dismissed only due to non-performance of theact on the part of complainant/respondent no.2.

12.On the other hand, learned counsel for respondent no.2 hassubmitted that the respondent no.2 was doing the business of sale,purchase & hiring of air conditioners and while doing his business, he gotinstalled four air conditioners at Shanti Niketan, New Delhi. However,the said four air conditioners were removed by the petitioner, who is thebrother of the respondent no.2, without any authorization in this behalf.The above said FIR was lodged in this regard and the air conditionerswere given on superdari by the Court vide superdarinama dated 16[th]March, 1990.

13.Learned counsel for the respondent no.2 has further contended thatthe respondent no.2 was declared the rightful owner of the property as theapplication of the petitioner was dismissed by the learned MetropolitanMagistrate on 18[th]January, 2001. Thereafter, in the appeal filed by thepetitioner, both the parties were directed to lead evidence.Thereafter,the revision petition filed by the petitioner for restoration of applicationunder Section 452 of Cr.P.C., was also dismissed on 22[nd]November,2013 by learned Additional Sessions Judge, Patiala House.It is nextcontended by learned counsel for respondent no.2 that the four airconditioners which are in dispute, were worth Rs.40,000/- at the time ofpurchase in the year 1990 and that the same have now become junk andare of no value as on date.

14.I have heard learned counsel for the parties at length and gonethrough the available records. It transpires from the record that initiallythe petitioner filed an application under Section 452 of Cr.P.C. for therelease of goods against which he was claiming ownership and,thereafter, it was apprised to the Court that both the parties have amicablycompromised the matter and statement to that effect was also made bythe complainant for withdrawal of the said application. On 7[th]February,2011, the said application was dismissed as withdrawn. The petitionerfiled an application for restoration of the application under Section 452Cr.P.C. which was dismissed on the ground that once an application has

been withdrawn as compromised and disposed of, no further grievanceremains with the parties and as such, the same cannot be restored. Therevision filed by the petitioner was dismissed on the ground that revisionagainst an order is not maintainable unless it is shown that order passedby the Trial Court was bad, illegal or reflects an error apparent on theface of it.

15.In the facts and circumstances mentioned above, I do not find anyinfirmity in the order dated 22[nd]November, 2013 passed by learnedAdditional Sessions Judge and the order dated 30[th]March, 2013 passedby the learned Metropolitan Magistrate.

16.Consequently, the present petition is dismissed.

MARCH 28 , 2016

(P.S.TEJI)JUDGE