V.P. Talwar vs Munshi Ram and Others

Sat Pal, J.

(1) This is a petition u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'') for quashing of order dated 20th August, 1987 passed by Shri Z.S. Solanki, Metropolitan Magistrate, Delhi dismissing the complaint of the petitioner for offences under Sections 420/467/468/471 read with Sections 109/114/34/120B of the Indian Penal Code (for short called ''IPC'') and order dated 2nd May, 1992 passed by Shri L.D Mual, Additional Sessions Judge, Delhi upholding the order passed by the learned Metropolitan Magistrate.

(2) Briefly stated the facts of the case are that Shri Darbari Lal and Prem Chand have been tenants of respondent No. 1 in respect of a shop bearing No.3, Fateh Nagar, jail Road, New Delhi. It was alleged in the complaint that respondents No. 2 and 3 were made partners in a firm known as M/s. C.B. Safe Company vide partnership deed dated 16th Sep., 1990. It was further alleged that respondents No.2 and 3 committed dishonest acts of removal of account books as the firm had to be dissolved by a notice dated 9th July, 1985. Thereafter, respondents Nos. 2 and 3 filed a suit for perpetual injunction claiming to be the sub-letters of S/Shri Darbari Lal and Prem Chand and at the same time admitting them as legal tenants of respondent No. 1. It was further alleged that respondent No. I had no competence to except respondent Nos. 2 and 3 as a tenant and to issue the rent receipt. It was alleged that the respondents had forged and fabricated the false document with mala fide motive to file the same in the judicial proceedings later on. Shri Z.S. Solanki, Metropolitan Magistrate, Delhi vide his order dated 29th August, 1987 held that there was no ingredients of Sections 420/467/468/120B Indian Penal Code and as such there was no ground to summon the respondents. Accordingly, the complaint wad dismissed.

(3) Aggrieved by the order dated 20th August, 1987 passed by the teamed Metropolitan Magistrate, the petitioner filed a revision petition u/s 398/399/400/401 of the Act The said revision petition was dismissed by Shri L.D. Mual, Additional Sessions Judge, Delhi vide his order dated 2nd May, 1992 and the order passed by the learned Metropolitan Magistrate was upheld.

(4) Against the order dated 20th August, 1987 passed by the learned Metropolitan Magistrate and order dated 2nd May, 1992 passed by the learned Additional Sessions Judge, the present petition has been filed u/s 482 of the Code. In this petition, inter alia, it has been prayed that the orders of the Courts below dated 20th August, 1987 and 2nd May,1992 be set aside and the learned. Metropolitan Magistrate, Delhi be directed to summon the respondents for facing enquiry trial of the offences mentioned in the complaint.

(5) Mr. Ashok Gurnani, the learned Counsel for the respondents has raised a preliminary objection that the present petition u/s 482 of the Code is not maintainable in view of the bar u/s 397(3) of the Code. He submitted that the prayer in the present petition is the same as it was in the revision petition filed by the petitioner before the Sessions Court. In support of his contention the learned Counsel has placed reliance on a recent judgment of the Supreme Court in Dharampal & Others v. Smt. Raamshri & Others, Jt 1993 (1) 61 and a Judgment of this Court in Anil Kumar & Others v. Moti Ram & Others, Drj 1993 (25) 157.

(6) MR.G.D. Gandhi, the learned Counsel for the petitioner, however, submitted that the petitioner had not filed the revision petition u/s 397 of the Code in the Sessions Court against the order dated 20th August, 1987 passed by the learned Metropolitan Magistrate, on the contrary he had filed the petition under Sections 398/399/400/401 of the Code and as such bar u/s 397(3) of the Code was not applicable to the facts of the present case.

(7) From the facts of the case it is clear that the petitioner had filed the revision petition u/s 399 of the Code against the order passed by the learned Metropolitan Magistrate rejecting the complaint of the petitioner and refusing to summon the respondents. In the present petition under the garb of Section 482 of the Code; the relief sought by the petitioner is dentical i.e. to say that the order dated 20th August; 1987 of the learned Metropolitan Magistrate, Delhi be set aside and the learned Metropolitan Magistrate be directed to summon the respondents. That is exactly what is prohibited u/s 397(3) as well as u/s 399 (3) of the Code. Even if the revision petition filed before the Sessions Court was u/s 399 of the Code, a similar bar u/s 399(3) of the Code is there as it is u/s 397(3) of the Code. In view of these facial am of the view that the present petition is not maintainable. The view I have taken is supported by two judgments of the Supreme Court in Rajan Kumar Machananda Vs. State of Karnataka, and in the case of Dharampal & Others (supra).

(8) In the result the petition is dismissed.