It may be mentioned that for calculating the period of
limitation as to when the same shall start, knowledge on the part
of the complainant is must………………......
The question of limitation is a mixed question of law and
fact and not of law only. The question requiring the fact cannot
be proved without there being an evidence of both the parties.
No presumption can be raised that since the counsel for the
complainant was appearing in the Civil Court regularly,
therefore, the complainant had the knowledge of all the
proceedings and also of the proceedings dated
05.08.2003………… Furthermore, in the order sheet dated
05.08.2003, it is mentioned that the advance copy of written
statement of defendant Nos.1 to 4 has been supplied to the
plaintiff (respondent in present complaint) whereas in the order
sheet dated 24.11.2003, it is mentioned that the advance copy of
written statement of defendant Nos. 2, 3 and 4 is on record. If
the advance copy of written statement of defendants was
supplied to the plaintiff (respondent in present complaint) on
05.08.2003, then how that advance copy came on record as per
the order sheet dated 24.11.2003, is a question which requires
evidence of both the parties……………………
…………… Moreover, the Court is also required to see the
contents of that written statement which is the main sours of
contention between the parties but it seems that the learned MM
without even going through that written statement has raised the
presumption that no offence under sections 463/464/420 IPC are
made out and only provisions of section 419 IPC are made out.
The very basis of the complaint of the complainant is that written
statement but it seems that, that written statement has not been
looked into by the learned MM.
………….. Though at the stage of consideration of period of
limitation, learned MM was not bound to go through the written
statement but at the same time without going into written
statement, no prima-facie view whether ingredient of any section
are attracted or not by learned MM can be formed. When the
period of limitation was considered by the learned MM, then it
was his duty to go through all the documents and especially the
written statement which is the basis of the complaint to see
whether the same prima facie shows the ingredients of section
463/464/420 IPC or
not………………………………………………………
In view of the aforesaid discussions, the order dated
11.09.2008 passed by the learned MM is set aside
Crl. Rev. P.No. 652/2009
IN THE HIGH COURT OF DELHI AT NEW DELHI
Crl. Rev. P.No. 652/2009
Date of Decision: 17
th December, 2012
NARESH KUMAR ARORA ....
Versus
STATE & ANR. ...
Citation;2013 CRLJ(NOC)160 delhi
This revision petition is directed against the order dated 16th
July, 2009 passed by the learned Additional Sessions Judge
whereby the order dated 11th September, 2008 of the learned
Metropolitan Magistrate declining to take cognizance of any of the
offences for which the petitioner-accused was charge-sheeted by
the police was set aside and the matter was remitted back to the
Magistrate with a direction to proceed with the charge sheet in
accordance with law.
2. Factual background of the case is that the petitioner’s Firm
by the name of M/s New Heaven Color Lab was carrying on its
business in a shop in premises no. 29/2,Nangia Park, Shakti Nagar
since 1987. Alongwith the shop one latrine and bathroom were
also allegedly taken on rent. Portions of that rented premises had
been purchased from time to time by different persons. Due to
some disputes with the original owners/landlords in respect of the
extent of the accommodation under the petitioner’s tenancy, he had
filed a suit for permanent and mandatory injunction against the
owners/landlords. During the pendency of that suit the respondent
no.2 herein Nitin Garg (the complainant) purchased that property
and so he was also impleaded in the suit as defendant no.2 and
when some other persons also purchased some portions of the
property no.29/2 they were also impleaded in that suit. During the
pendency of that suit, the respondent no.2-complainant allegedly
gave an advance copy of his written statement to the petitionerplaintiff wherein he had admitted that he had nothing to do with
the latrine and bathroom which also the petitioner-plaintiff was
claiming to be included in his tenancy and thereby he virtually
conceded to the claim of the petitioner-plaintiff.
3. As per the proceedings of that suit, advance copy of the
written statement was supplied to the petitioner-plaintiff on 5th
August,2003 by the respondent no.2-defendant when the suit was
taken up for the second time same day after it had been adjourned
in the morning since none had appeared for respondent no.2-
defendfant for filing of written statement. On a subsequent date the
respondent no.2 was directed to place on record the original
written statement of which advance copy had already been
supplied to the petitioner-plaintiff on 05.08.2003. He did not do
that and instead filed another written statement strongly refuting
the suit claim of the petitioner-plaintiff. The respondent no.2
denied having supplied any advance copy of any written statement
to the petitioner-plaintiff on 5th August, 2003 and claimed that the
petitioner-plaintiff had played some mischief and had put up some
bogus person in Court on 5th August, 2003 after adjournment of the
suit as respondent no.2 and got delivered to himself advance copy
of the written statement purporting to be that of respondent no. 2-
defendant admitting the suit claim. That situation led to the filing
of an application under Section 340Cr.P.C. against the petitionerplaintiff and also lodging of a criminal complaint in Court under
Section 200 Cr.P.C. by the respondent no. 2 herein against the
petitioner-plaintiff for the commission of the offences punishable
under Sections 419/420/463/464 IPC.
4. The learned magistrate vide order dated 30.05.2007 ordered
registration of an FIR in the matter which was accordingly
registered by the police and on completion of the investigation
charge sheet was filed in Court against the petitioner alleging
commission of the aforesaid offences by him. At the stage of
cognizance the learned Magistrate passed an order on 11th
September, 2008 to the effect that offences under Sections
463/464/420 IPC were not made out and it was also observed that
“The act of the accused at the most can be covered u/s 419
IPC…..”. However no cognizance was taken for that offence also
on the ground that the same was barred by limitation.
5. The respondent no.2-complainant then filed a revision
petition against the said order of the learned Magistrate and the
learned Additional Sessions Judge disposed of that revision
petition vide impugned order dated 16.07.2009. The relevant paras
of that order are re-produced below:-
“Perusal of the record shows that the learned MM has taken the
view that since the written statement has not been signed by any
person, therefore, the same does not fall within the purview of
Sections 463/464 IPC. The supply of the advance copy of
written statement which is generally unsigned, whether lies
within the purview of making any false document or part of a
document, with intent to cause damage or injury, to support any
claim of title or whether the same lies within the purview of
Section 464 IPC to execute a document or part of a document is
a question which requires evidence. So far as the ingredients of
other sections are concerned, then this is a question which
requires evidence as to whether there was any dishonest
inducement on the part of the respondent to the complainant.
The learned MM has held that at the most only provisions of
Section 419 IPC are attracted.
It may be mentioned that for calculating the period of
limitation as to when the same shall start, knowledge on the part
of the complainant is must………………......
The question of limitation is a mixed question of law and
fact and not of law only. The question requiring the fact cannot
be proved without there being an evidence of both the parties.
No presumption can be raised that since the counsel for the
complainant was appearing in the Civil Court regularly,
therefore, the complainant had the knowledge of all the
proceedings and also of the proceedings dated
05.08.2003………… Furthermore, in the order sheet dated
05.08.2003, it is mentioned that the advance copy of written
statement of defendant Nos.1 to 4 has been supplied to the
plaintiff (respondent in present complaint) whereas in the order
sheet dated 24.11.2003, it is mentioned that the advance copy of
written statement of defendant Nos. 2, 3 and 4 is on record. If
the advance copy of written statement of defendants was
supplied to the plaintiff (respondent in present complaint) on
05.08.2003, then how that advance copy came on record as per
the order sheet dated 24.11.2003, is a question which requires
evidence of both the parties……………………
…………… Moreover, the Court is also required to see the
contents of that written statement which is the main sours of
contention between the parties but it seems that the learned MM
without even going through that written statement has raised the
presumption that no offence under sections 463/464/420 IPC are
made out and only provisions of section 419 IPC are made out.
The very basis of the complaint of the complainant is that written
statement but it seems that, that written statement has not been
looked into by the learned MM.
………….. Though at the stage of consideration of period of
limitation, learned MM was not bound to go through the written
statement but at the same time without going into written
statement, no prima-facie view whether ingredient of any section
are attracted or not by learned MM can be formed. When the
period of limitation was considered by the learned MM, then it
was his duty to go through all the documents and especially the
written statement which is the basis of the complaint to see
whether the same prima facie shows the ingredients of section
463/464/420 IPC or
not………………………………………………………
In view of the aforesaid discussions, the order dated
11.09.2008 passed by the learned MM is set aside. Learned MM
is directed to proceed with the charge sheet as per the provisions
of the law. Present revision filed by the petitioner is allowed.
Parties are directed to appear before the Court of learned MM on
17.08.2009…………”
6. The petitioner-accused felt that the revisional Court had vide
its impugned order taken cognizance of all the offences noted in the
order and had summoned him also by directing the parties to
appear before the trial Court which was directed to proceed with
the charge-sheet as per the provisions of the law. Thus, this petition
was filed by him.
7. I have considered the submissions of the learned senior
counsel for the petitioner and respondent no.2 complainant and also
perused the record. After going through the order of the learned
Additional Sessions Judge it appears to this Court that as far as the
offence under Section 419 IPC is concerned all that was opined
was that the trial Court should not have considered the limitation
aspect at the stage of cognizance since that was not a question of
law which could be decided without any evidence as to when the
period of limitation would have started to run in the facts of the
present case. Perusal of the order of the learned Magistrate shows
that for the offence under Section 419 he had not given a clear
finding, like in respect of other offences of forgery etc., that it was
made out. The tenor of the order of the Magistrate would show that
it was simply being observed that even if the offence under Section
419 could be said to be made out no cognizance could be taken
because of the bar of limitation and the revisional Court appears to
have asked the Magistrate to consider the case in respect of this
offence ignoring the limitation bar. Similarly in respect of other
offences which the learned Magistrate had found to be not made
out at all the revisional Court has simply opined in its order that the
Magistrate had come to that conclusion without going through the
written statement of respondent no.2-defendant. Thus, the
revisional Court can be said to have simply asked the learned
Magistrate to re-consider the matter on the point of cognizance in
accordance with law and for that purpose the case was remitted
back. There is no finding of the revisional Court in respect of the
offences of cheating forgery etc. in its order to the effect that these
offences are made out on the basis of the material collected by the
police during investigation. Just because in the impugned order it
was stated by the revisional court that parties should appear before
the trial Court it cannot be said that the revisional court itself had
taken cognizance of any of the offences alleged to have been
committed by the petitioner herein. That direction is really a
direction to the complainant/prosecution since at the stage of
cognizance the proposed accused has no role to play.
8. This petition is accordingly disposed of with the clarification
that no cognizance can be said to have taken by any of the courts
below and the learned Magistrate at present only stands directed to
re-consider the question of cognizance in accordance with law and
the observations of the revisional Court in its impugned order. The
Magistrate shall now take up the matter for consideration afresh on
the point of cognizance on 17th January, 2013 at 2 p.m.
P.K. BHASIN, J
December 17, 2012
Print Page
limitation as to when the same shall start, knowledge on the part
of the complainant is must………………......
The question of limitation is a mixed question of law and
fact and not of law only. The question requiring the fact cannot
be proved without there being an evidence of both the parties.
No presumption can be raised that since the counsel for the
complainant was appearing in the Civil Court regularly,
therefore, the complainant had the knowledge of all the
proceedings and also of the proceedings dated
05.08.2003………… Furthermore, in the order sheet dated
05.08.2003, it is mentioned that the advance copy of written
statement of defendant Nos.1 to 4 has been supplied to the
plaintiff (respondent in present complaint) whereas in the order
sheet dated 24.11.2003, it is mentioned that the advance copy of
written statement of defendant Nos. 2, 3 and 4 is on record. If
the advance copy of written statement of defendants was
supplied to the plaintiff (respondent in present complaint) on
05.08.2003, then how that advance copy came on record as per
the order sheet dated 24.11.2003, is a question which requires
evidence of both the parties……………………
…………… Moreover, the Court is also required to see the
contents of that written statement which is the main sours of
contention between the parties but it seems that the learned MM
without even going through that written statement has raised the
presumption that no offence under sections 463/464/420 IPC are
made out and only provisions of section 419 IPC are made out.
The very basis of the complaint of the complainant is that written
statement but it seems that, that written statement has not been
looked into by the learned MM.
………….. Though at the stage of consideration of period of
limitation, learned MM was not bound to go through the written
statement but at the same time without going into written
statement, no prima-facie view whether ingredient of any section
are attracted or not by learned MM can be formed. When the
period of limitation was considered by the learned MM, then it
was his duty to go through all the documents and especially the
written statement which is the basis of the complaint to see
whether the same prima facie shows the ingredients of section
463/464/420 IPC or
not………………………………………………………
In view of the aforesaid discussions, the order dated
11.09.2008 passed by the learned MM is set aside
Crl. Rev. P.No. 652/2009
IN THE HIGH COURT OF DELHI AT NEW DELHI
Crl. Rev. P.No. 652/2009
Date of Decision: 17
th December, 2012
NARESH KUMAR ARORA ....
Versus
STATE & ANR. ...
Citation;2013 CRLJ(NOC)160 delhi
This revision petition is directed against the order dated 16th
July, 2009 passed by the learned Additional Sessions Judge
whereby the order dated 11th September, 2008 of the learned
Metropolitan Magistrate declining to take cognizance of any of the
offences for which the petitioner-accused was charge-sheeted by
the police was set aside and the matter was remitted back to the
Magistrate with a direction to proceed with the charge sheet in
accordance with law.
2. Factual background of the case is that the petitioner’s Firm
by the name of M/s New Heaven Color Lab was carrying on its
business in a shop in premises no. 29/2,Nangia Park, Shakti Nagar
since 1987. Alongwith the shop one latrine and bathroom were
also allegedly taken on rent. Portions of that rented premises had
been purchased from time to time by different persons. Due to
some disputes with the original owners/landlords in respect of the
extent of the accommodation under the petitioner’s tenancy, he had
filed a suit for permanent and mandatory injunction against the
owners/landlords. During the pendency of that suit the respondent
no.2 herein Nitin Garg (the complainant) purchased that property
and so he was also impleaded in the suit as defendant no.2 and
when some other persons also purchased some portions of the
property no.29/2 they were also impleaded in that suit. During the
pendency of that suit, the respondent no.2-complainant allegedly
gave an advance copy of his written statement to the petitionerplaintiff wherein he had admitted that he had nothing to do with
the latrine and bathroom which also the petitioner-plaintiff was
claiming to be included in his tenancy and thereby he virtually
conceded to the claim of the petitioner-plaintiff.
3. As per the proceedings of that suit, advance copy of the
written statement was supplied to the petitioner-plaintiff on 5th
August,2003 by the respondent no.2-defendant when the suit was
taken up for the second time same day after it had been adjourned
in the morning since none had appeared for respondent no.2-
defendfant for filing of written statement. On a subsequent date the
respondent no.2 was directed to place on record the original
written statement of which advance copy had already been
supplied to the petitioner-plaintiff on 05.08.2003. He did not do
that and instead filed another written statement strongly refuting
the suit claim of the petitioner-plaintiff. The respondent no.2
denied having supplied any advance copy of any written statement
to the petitioner-plaintiff on 5th August, 2003 and claimed that the
petitioner-plaintiff had played some mischief and had put up some
bogus person in Court on 5th August, 2003 after adjournment of the
suit as respondent no.2 and got delivered to himself advance copy
of the written statement purporting to be that of respondent no. 2-
defendant admitting the suit claim. That situation led to the filing
of an application under Section 340Cr.P.C. against the petitionerplaintiff and also lodging of a criminal complaint in Court under
Section 200 Cr.P.C. by the respondent no. 2 herein against the
petitioner-plaintiff for the commission of the offences punishable
under Sections 419/420/463/464 IPC.
4. The learned magistrate vide order dated 30.05.2007 ordered
registration of an FIR in the matter which was accordingly
registered by the police and on completion of the investigation
charge sheet was filed in Court against the petitioner alleging
commission of the aforesaid offences by him. At the stage of
cognizance the learned Magistrate passed an order on 11th
September, 2008 to the effect that offences under Sections
463/464/420 IPC were not made out and it was also observed that
“The act of the accused at the most can be covered u/s 419
IPC…..”. However no cognizance was taken for that offence also
on the ground that the same was barred by limitation.
5. The respondent no.2-complainant then filed a revision
petition against the said order of the learned Magistrate and the
learned Additional Sessions Judge disposed of that revision
petition vide impugned order dated 16.07.2009. The relevant paras
of that order are re-produced below:-
“Perusal of the record shows that the learned MM has taken the
view that since the written statement has not been signed by any
person, therefore, the same does not fall within the purview of
Sections 463/464 IPC. The supply of the advance copy of
written statement which is generally unsigned, whether lies
within the purview of making any false document or part of a
document, with intent to cause damage or injury, to support any
claim of title or whether the same lies within the purview of
Section 464 IPC to execute a document or part of a document is
a question which requires evidence. So far as the ingredients of
other sections are concerned, then this is a question which
requires evidence as to whether there was any dishonest
inducement on the part of the respondent to the complainant.
The learned MM has held that at the most only provisions of
Section 419 IPC are attracted.
It may be mentioned that for calculating the period of
limitation as to when the same shall start, knowledge on the part
of the complainant is must………………......
The question of limitation is a mixed question of law and
fact and not of law only. The question requiring the fact cannot
be proved without there being an evidence of both the parties.
No presumption can be raised that since the counsel for the
complainant was appearing in the Civil Court regularly,
therefore, the complainant had the knowledge of all the
proceedings and also of the proceedings dated
05.08.2003………… Furthermore, in the order sheet dated
05.08.2003, it is mentioned that the advance copy of written
statement of defendant Nos.1 to 4 has been supplied to the
plaintiff (respondent in present complaint) whereas in the order
sheet dated 24.11.2003, it is mentioned that the advance copy of
written statement of defendant Nos. 2, 3 and 4 is on record. If
the advance copy of written statement of defendants was
supplied to the plaintiff (respondent in present complaint) on
05.08.2003, then how that advance copy came on record as per
the order sheet dated 24.11.2003, is a question which requires
evidence of both the parties……………………
…………… Moreover, the Court is also required to see the
contents of that written statement which is the main sours of
contention between the parties but it seems that the learned MM
without even going through that written statement has raised the
presumption that no offence under sections 463/464/420 IPC are
made out and only provisions of section 419 IPC are made out.
The very basis of the complaint of the complainant is that written
statement but it seems that, that written statement has not been
looked into by the learned MM.
………….. Though at the stage of consideration of period of
limitation, learned MM was not bound to go through the written
statement but at the same time without going into written
statement, no prima-facie view whether ingredient of any section
are attracted or not by learned MM can be formed. When the
period of limitation was considered by the learned MM, then it
was his duty to go through all the documents and especially the
written statement which is the basis of the complaint to see
whether the same prima facie shows the ingredients of section
463/464/420 IPC or
not………………………………………………………
In view of the aforesaid discussions, the order dated
11.09.2008 passed by the learned MM is set aside. Learned MM
is directed to proceed with the charge sheet as per the provisions
of the law. Present revision filed by the petitioner is allowed.
Parties are directed to appear before the Court of learned MM on
17.08.2009…………”
6. The petitioner-accused felt that the revisional Court had vide
its impugned order taken cognizance of all the offences noted in the
order and had summoned him also by directing the parties to
appear before the trial Court which was directed to proceed with
the charge-sheet as per the provisions of the law. Thus, this petition
was filed by him.
7. I have considered the submissions of the learned senior
counsel for the petitioner and respondent no.2 complainant and also
perused the record. After going through the order of the learned
Additional Sessions Judge it appears to this Court that as far as the
offence under Section 419 IPC is concerned all that was opined
was that the trial Court should not have considered the limitation
aspect at the stage of cognizance since that was not a question of
law which could be decided without any evidence as to when the
period of limitation would have started to run in the facts of the
present case. Perusal of the order of the learned Magistrate shows
that for the offence under Section 419 he had not given a clear
finding, like in respect of other offences of forgery etc., that it was
made out. The tenor of the order of the Magistrate would show that
it was simply being observed that even if the offence under Section
419 could be said to be made out no cognizance could be taken
because of the bar of limitation and the revisional Court appears to
have asked the Magistrate to consider the case in respect of this
offence ignoring the limitation bar. Similarly in respect of other
offences which the learned Magistrate had found to be not made
out at all the revisional Court has simply opined in its order that the
Magistrate had come to that conclusion without going through the
written statement of respondent no.2-defendant. Thus, the
revisional Court can be said to have simply asked the learned
Magistrate to re-consider the matter on the point of cognizance in
accordance with law and for that purpose the case was remitted
back. There is no finding of the revisional Court in respect of the
offences of cheating forgery etc. in its order to the effect that these
offences are made out on the basis of the material collected by the
police during investigation. Just because in the impugned order it
was stated by the revisional court that parties should appear before
the trial Court it cannot be said that the revisional court itself had
taken cognizance of any of the offences alleged to have been
committed by the petitioner herein. That direction is really a
direction to the complainant/prosecution since at the stage of
cognizance the proposed accused has no role to play.
8. This petition is accordingly disposed of with the clarification
that no cognizance can be said to have taken by any of the courts
below and the learned Magistrate at present only stands directed to
re-consider the question of cognizance in accordance with law and
the observations of the revisional Court in its impugned order. The
Magistrate shall now take up the matter for consideration afresh on
the point of cognizance on 17th January, 2013 at 2 p.m.
P.K. BHASIN, J
December 17, 2012
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