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Sanjeev Kumar vs State & Anr. on 23 January, 2018

$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.01.2018
+ CRL.M.C. 5313/2017
SANJEEV KUMAR ….. Petitioner
versus

STATE ANR. ….. Respondents

Advocates who appeared in this case:

For the Petitioner : Mr. Vinay Kumar, Advocate.

For the Respondents : Mr. Akshai Malik, APP for the State.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT

23.01.2018
SANJEEV SACHDEVA, J. (ORAL)

Crl.M.A. 20836/2017 (exemption)

Exemption is allowed subject to all just exceptions.

CRL.M.C. 5313/2017

1. The petitioner impugns order dated 13.07.2017, passed by the
Revisional Court, dismissing the revision petition filed by the
petitioner against order dated 22.03.2017, passed by the Trial Court,
dismissing the complaint of the petitioner after recording pre-
summoning evidence.

CRL.M.C. 5313/2017 Page 1 of 7

2. The allegation of the petitioner was that on 07.03.2010 at about
12:15 pm his wife had gone to take a bath and on return after 10 to 15
minutes, she found that the almirah was lying opened and on checking
the almirah, she found that a gold chain weighing 2 and ½ tola and two
artificial karas were missing. However, a sum of Rs.40,000/- lying in
the almirah was untouched.

3. In the complaint, it is contended that the respondent No.2; a
tenant in a room just opposite the premises had access to the premises
of the complainant and there being a common main entry door of the
entire premises and there was no possibility of anyone coming from
outside; she committed the theft.

4. The Trial Court after recording of the pre-summoning evidence
noticed that a complaint had been filed by the respondent No.2 against
the petitioner under Section 354 IPC for alleged sexual assault. It was
noticed that the complaint was lodged under Section 354 IPC after
about eight days of the alleged incident. On account of disturbance in
public tranquillity, Kalandara under Section 107/151 IPC was
prepared against the complainant. Further, it was noticed that in the
FIR registered under Section 354 IPC, the petitioner was acquitted by
the Trial Court observing that, in the circumstances of the case, filing
of the said complaint under Section 354 IPC as counterblast to the
theft complaint could not be ruled out completely. The Trial Court,
however, on the complaint of the petitioner found that the complainant

CRL.M.C. 5313/2017 Page 2 of 7
had failed to substantiate the allegations and merely because the
respondent No.2 was a tenant of another portion of the same property,
which is not owned by the petitioner, was not sufficient to indict the
respondent No.2.

5. The Revisional Court, after noticing the facts and the evidence
led by the parties, held as under:-

“9. In the given situation, firstly, wife of the
complainant was a material witness, but the complainant
did not examine her.

Secondly, in the complaint addressed to the police and in
the criminal complaint filed in the court, it was alleged
that his wife had found the almirah lying opened, but
while making statement in the court, he has stated that on
checking, “he” had found the aforesaid items missing
from almirah. He did not state as CW1 that his wife had
found these articles missing from the almirah.
Thirdly, it is not the case of the complainant that he or
his wife had seen Ms. Naureen committing theft. The
complainant in his complaint Ex.CW1/1 and also while
making statement in court levelled allegations against
Ms. Naureen only on suspicion and that too simply on the
ground that she used to reside in the room in front of
room of the complainant.

Fourthly, there is nothing on record to suggest that
complainant reported the matter to PCR, so that PCR or
local police could reach the spot at once, and conduct
immediate search of the room of Ms. Naureen. There is
no explanation as to why PCR staff or local police was
not informed immediately.

CRL.M.C. 5313/2017 Page 3 of 7

Fifthly, it is significant to note that in complaint
Ex.CW1/1, the complainant alleged that he suspected all
the occupants of the house but while appearing in court
as CW1, the complainant did not state so in court.

Sixthly, when the complainant suspected even other
occupants of the house, it cannot be said that suspicion
raised by the complainant against Ms.Nureen-respondent
was strong enough.

Seventhly, simply because a person resides in a room in
front of the house of a complainant, it cannot be said that
theft, if any, must have been committed by the person
residing in the said room.

10. In the impugned order, Ld. Metropolitan
Magistrate was required to observe all these material
aspects. It is true that Ld. Metropolitan Magistrate took
into consideration some additional facts also while
dismissing the complaint, in view of the above discussion,
court finds that from the evidence led by the complainant,
it cannot be said that there were sufficient grounds to
proceed against Ms.Naureen for the allegation of theft.
As a result, the petition deserves to be dismissed. Same is
hereby dismissed.”

6. It may also be noticed that the petitioner prior to filing the
complaint under Section 200 Cr.P.C. had given a written complaint to
the SHO contending that his wife had seen the almirah open and the
gold chain missing. Further, it is stated in the written complaint that
respondent No.2 was in her own room at the time of the alleged
incident and the petitioner suspected all members, living in the said
house, of having committed the offence.

CRL.M.C. 5313/2017 Page 4 of 7

7. As noticed above, the Revisional Court has found that as per the
complaint given to the police and also under Section 200 Cr.P.C., the
person who discovered the alleged theft was the wife of the petitioner.
She was never produced as a witness to substantiate the commission of
the offence and involvement of any person. Further, it is noticed by
the Revisional Court that there was discrepancy in the statement made
by the petitioner in support of his complaint. Though, in the complaint
given to the SHO and under Section 200 Cr.P.C, the contention was
that the wife of the petitioner had discovered the alleged theft,
however, in his statement, the petitioner stated that he wife had found
the articles missing from almirah. The Court has noticed that it was
not the case of the petitioner that the respondent No.2 was seen
committing the theft, and in the statement made to the Court, the
allegations were levelled on the respondent No.2 merely on the basis
of suspicion and on the ground that she resides in a room in front of
the room of the complainant. The Court has further noticed that no
call was made to the PCR informing about the theft so that a search
could have taken place immediately of the entire property to ascertain
if the alleged missing articles were available in possession of any
occupant of the property. It was also noticed that there was a
discrepancy in the complaint lodged to the SHO as well as the
statement made to the Court.

8. Further contention of the learned counsel for the petitioner that
the allegations were not only qua theft but also with regard to

CRL.M.C. 5313/2017 Page 5 of 7
abetment to register a false case against the petitioner under Section
354 IPC committed by one judicial officer.

9. Perusal of the entire record shows that there is no name of any
individual or allegations against any individual of having abetted or
instigated the respondent No.2 for lodging a complaint under Section
354 IPC. Further, it may be noticed that the complaint filed by the
petitioner under Section 200 Cr.P.C. alleges commission of offence
only under Section 379, 406, 442 IPC. Further, the impugned order
also records that the petitioner had pressed the revision petition only in
respect of the occurrence dated 07.03.2010, i.e. the allegation of theft
levelled against the respondent No.2.

10. In view of the above, the contention of the learned counsel for
the petitioner is completely unsubstantiated from the record.

11. Reliance placed by the learned counsel for the petitioner on the
judgment of the Supreme Court in Bhushan Kumar vs. State
Government NCT of Delhi: 2012 5 SCC 424 to contend that at the
stage of taking cognizance, the Magistrate has to be satisfied whether
there is a sufficient ground for proceedings and not whether there is a
sufficient ground for conviction, is not applicable to the facts of the
present case.

12. In the present case, both the Trial Court as well as the
Revisional Court has found that the petitioner has failed to discharge

CRL.M.C. 5313/2017 Page 6 of 7
the initial onus to satisfy the Court that there is a sufficient cause to
even proceed to take cognizance of the offence.

13. In view of the facts that the petitioner has failed to produce the
only material evidence i.e. his wife who is stated to have discovered
the alleged theft and has failed to establish anything beyond a mere
suspicion against the respondent No.2, I find no infirmity with the
view taken by the Trial Court as well as the Revisional Court.

14. In view of the above, I find no merit in the petition. The
petition is, accordingly, dismissed.

SANJEEV SACHDEVA, J
JANUARY 23, 2018
st

CRL.M.C. 5313/2017 Page 7 of 7

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