Full Text
CRL.REV.P. 297/2007 & Crl.M.A.No.5101/07
MAHESH CHANDRA ..... Petitioner
Through: Mr. Vinay Gupta, Advocate
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State alongwith S.I. Rajnish Kumar, E.O.W., Crime Branch
Mr. Randhir Jain and Ms. Ruchika Jain, Advocate for respondents NO. 2 & 3
Impugned order of 19th April, 2007 directs that hearing on the point of charge in FIR No.75/1998 under Sections 406/420/34 IPC registered at
P.S. Anand Vihar, Delhi is to commence from 8th May, 2007 on day-to- day basis. Impugned order also records that the direction issued by Apex
Court in Criminal Appeal No.284/2007 on 2nd April, 2007 stands complied with.
Vide aforesaid order of 2nd April, 2007 (Annexure P-27), the Apex
Court had directed trial court to consider the matter relating to framing of charges upon calling for the records of the case arising out of First
2013:DHC:1683 Information Report dated 6th November, 1997 resulting in initiation of
DD No.19A dated 26th March, 1998. It is also noted in the impugned order that the record of First Information Report of 6th November, 1997 is not available.
Learned counsel for petitioner submits that the impugned order is unsustainable as it notes that the record of First Information Report of 6th November, 1997 is not available and so it cannot be said that directions of the Apex Court have been complied with.
Learned Additional Public Prosecutor for respondent-State draws the attention of this Court to the status report of 16th November, 2009 wherein it has been disclosed as under:-
"In reply it was informed by the Addl. DCP East Distt that the complaint register of P.S. Anand Vihar upto
31/12/2003 has been destroyed vide order No.2707/HAR/East dated 08/08/06, and all the records pertaining to the Complaint Branch, East Distt upto
31/12/2004 has been destroyed. Thus the details could not be made available. (Copy of the reply of Addl. DCP
East is at Annexure 'A'." At this stage, learned counsel for petitioner draws attention of this
Court to the aforesaid status report of 16th November, 2009 to assert that the factum of compromise of 5th March, 1998 arrived at in respect of aforesaid First Information Report is recorded therein. Relevant portion of status report reads as under:-
"However, on perusal of the order sheets of different dates, it is clear that the said complaint was never exhibited during trial nor did the I.O. categorically point out at any stage that four pages were missing from the police file. The perusal of the copy of the settlement dated
05/03/98 in the police file shows that a compromise agreement had been signed between the complainant and
Viniyoga Clothex Ltd. and as per the agreement cheques of Rs.10 Lac were given to the complainant by the alleged persons. (Copy of the agreement is at Annexure-
B".
According to petitioner's counsel, the aforesaid settlement of 5th March, 1998 was witnessed by Mr. Anil Dubey and one Mr. Vijay Verma, who is the witness in charge-sheet filed in FIR No.75/1998.
Since it is claimed by petitioner's counsel that he is in possession of the copy of the aforesaid settlement of 5th March, 1998 so, this witness can always be confronted with. Attention of this Court is also drawn by petitioner's counsel to copy of the settlement purportedly of 5th March, 1998 to assert that it should be taken into consideration by the trial court at the stage of framing of the charges. According to petitioner's counsel, First Information Report of 6th November, 1997 (Annexure P-1) ought to be also considered by the trial court while hearing petitioner-accused on the point of charge. Lastly, it is submitted by petitioner's counsel that affidavit of 16th November, 2009 of ACP Ashok Saini, placed on record herein, ought to be also considered by the trial court as on the vital aspect of first complaint and the settlement, it discloses as under: -
"That during the course of enquiry of the said complaint, the complainant Sh. Narinder Nath Sehgal, in continuation of his earlier complaint dated 6.11.1997, filed another complaint on 26.3.1998 alleging therein that the accused persons had not paid the entire amount of Rs.10 Lacs. The deponent accordingly, during course of enquiry, also perused a written compromise executed between complainant and M/s. Vinoyoga Clotex Ltd., in which accused Mahesh Chandra was an employee and working as President Finance. After perusing both the complaints, i.e. of dated 6.11.1997 and 26.3.1998 and after going through the other relevant statements, came on record, the deponent directed the Duty Officer of PS –
Anand Vihar to register a case u/s 420/406/34 IPC, so that the proper investigation be done.
That after few days the order of transfer of investigation of the case was received and accordingly the entire case file containing 41 pages, including FIR, Both the original complaints i.e. complaint dated
6.11.1997 and 26.3.1998 along with enquiry and investigation papers, was handed over to Crime Branch officials vide Road certificate No.7/21, dated 21.5.1998."
After having heard learned counsel for parties and upon perusal of the impugned order and material on record, I find that the impugned order recording the satisfaction that direction of 2nd April, 2007 (Annexure P-
JUDGMENT
27) issued by the Apex Court stands complied with, is factually not correct and infact, the record in respect of First Information Report of 6th November, 1997 and the settlement of 5th March, 1998 was already destroyed in the year 2006 itself whereas the order of the Apex Court is of April, 2007. Be that as it may. The directions issued by the Apex Court in the order of 2nd April, 2007 have to be complied with in letter and spirit. In the event of destruction of record pertaining to First Information Report of 6th November, 1997, petitioner ought to be permitted to place before trial court, the authentic copy of documents in respect thereof. Aforesaid affidavit of ACP Ashok Saini and the abovesaid status report of 16th November, 2009 be considered by trial court while hearing on the point of charge. Let the trial court take into consideration the aforesaid status report, affidavit, record in respect of First Information Report of 6th November, 1997 and the settlement of 5th March, 1998, and pass order on charge in accordance with the law. Since the proceedings in this matter have been pending for quite some-time, therefore, it is directed that the trial court shall proceed to hear on point of charge expeditiously. To ensure the compliance of this order, let certified copy of the aforesaid affidavit of 16th November, 2009 of ACP Ashok Saini as well as status report of even date be supplied by the Registry to petitioner's counsel, as per rules. Petitioner would be at liberty to place on record copy of Annexure P-1 i.e. First Information Report of 6th November, 1997 and it be considered by the trial court in accordance with the law. Let the parties appear before the trial court on the date fixed. Trial court record be sent back forthwith. Copy of this order be given dasti to counsel for petitioner. With aforesaid directions, this petition and the pending application are disposed of.
JUDGE APRIL 04, 2013 s