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Madhya Pradesh High Court · body

2016 DIGILAW 469 (MP)

RAJEEV PIGORIYA v. JAGVEER SINGH GURJAR

2016-06-17

N.K.GUPTA

body2016
JUDGMENT : 1. Shri R. K. Upadhyay, counsel for the applicant. Shri S. S. Gautam, counsel for the respondents. 2. Heard on I.A. No. 6140/2016, an application for condonation of delay in filing the leave application. 3. Looking to the reasons mention in the application, where there is a nominal delay of 15 days in filing the leave application, application is allowed. Delay of 15 days in filing the present leave application is hereby condoned. 4. Heard on leave application. 5. The applicant has preferred the present leave application against the order dated 5-5-2014 passed by the 7th Additional Sessions Judge, Gwalior and Special Judge under MPDVPK Act, Gwalior in an unregistered case “Rajeev Pigoriya vs. Jagveer Singh Gurjar and another”. 6. Facts of the case, in short, are that the applicant obtained a vehicle by taking loan and suddenly the vehicle was looted by the respondents No. 1 and 2 along with so many persons on 1-8-2011. SHO concerned did not write down any report of the applicant and on giving a written complaint to S.P., Gwalior on 5-9-2011, no action was taken and, therefore, the complaint was filed by the applicant before the concerned Court but the concerned Court vide order dated 5-5-2014 dismissed the complaint. 7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it would be apparent that the impugned order was not an order of acquittal after the complete trial and, therefore, against the impugned order, no leave application can be filed. It was for the applicant to file a criminal revision instead of leave application. 8. On the request of the learned counsel for the applicant, the present matter is treated as a criminal revision. It would be apparent that the applicant has pleaded about lodging of FIR and a complaint before the S.P. concerned under section 154 of the Criminal Procedure Code. However, no such document was filed before the trial Court. Before the trial Court, only Rajeev Pigoriya (PW-1), Veer Singh (PW-2) and Manoj Singh Parihar (PW-3) were examined. Out of these persons, Veer Singh and Manoj Singh Parihar have stated that they did not know the actual culprit, who took the possession of the vehicle. However, no such document was filed before the trial Court. Before the trial Court, only Rajeev Pigoriya (PW-1), Veer Singh (PW-2) and Manoj Singh Parihar (PW-3) were examined. Out of these persons, Veer Singh and Manoj Singh Parihar have stated that they did not know the actual culprit, who took the possession of the vehicle. It was stated by one of the culprits that after talking with Shailendra Singh Kushwaha, they could know that amongst those culprits, one was the Shailendra Singh Kushwaha and similarly one culprit told his name of Jagveer Singh Gurjar and told that he is a recovery agent and he took the vehicle. The applicant Rajeev Pigoriya (PW-1), who has also claimed his presence at the spot did not mention that the respondent Shailendra Singh Kushwaha was present at the spot. It appears that he is made party because he was officer of the concerned company from which the applicant took the loan. By examining the statements of these witnesses, it would be apparent that the respondent Shailendra Singh Kushwaha is made party only because he was officer of the concerned company and admittedly, he was not present at the spot. It was to be established by the applicant that Shailendra Singh Kushwaha directed the respondent Jagveer Singh Gurjar to take the forceful possession of the vehicle but there is no evidence to connect the respondent Shailendra Singh Kushwaha with the crime. The Special Court has rightly dismissed the complaint of the applicant against the respondent Shailendra Singh Kushwaha under section 203 of the Criminal Procedure Code. 9. When according to Rajeev Pigoriya, Shailendra Singh Kushwaha was not present at the spot, whereas Veer Singh and Manoj Singh Parihar have stated that Jagveer Singh Gurjar and Shailendra Singh were present at the spot, which is material contradiction and it appears that witnesses Veer Singh and Manoj Singh Parihar are telling in favour of the applicant because they were interested witnesses, whereas they have told against the settled fact that Shailendra Singh was not present at the spot. 10. It was for the applicant to lodge an FIR under section 154 of the Criminal Procedure Code before the concerned SHO. He simply told that SHO refused to write down the FIR. 10. It was for the applicant to lodge an FIR under section 154 of the Criminal Procedure Code before the concerned SHO. He simply told that SHO refused to write down the FIR. According to the provisions under section 154(3) of the Criminal Procedure Code, if the SHO has refused to write down the FIR then the FIR is to be sent to the S.P. concerned and postal receipt should be filed before the trial Court for consideration. The applicant could not show any receipt as to why the copy of that complaint sent to the S.P. was filed before the Special Court. It is nowhere mentioned as to why the applicant did not exhibit that FIR when he was examined under section 200 or 202 of the Criminal Procedure Code. The complaint was filed after four months of the alleged date of incident Under these circumstances, there is no documentary basis to believe the testimony of the applicant witnesses. Under these circumstances, possibility cannot be ruled out that the applicant cooked about a story of robbery etc. with help of his employees and lodged a criminal complaint before the Special Court with delay of four months. Under these circumstances, no illegality or perversity is visible in the impugned order so that the revisionary powers may be invoked in favour of the applicant. Under these circumstances, there is no reason to accept the petition of the applicant. 11. On the basis of the aforesaid discussions, where the leave application was not maintainable, the same is hereby dismissed being not maintainable and in alternate, considering it as a revision, it is dismissed at motion stage. 12. Copy of the order be sent to the Court below along with its record for information.