Shri B.K. Sharma v. Ritesh Tewari and Others), under Sections

2015 (Shri B.K. Sharma Vs. Ritesh Tewari and Others), under Sections 406, 506(1) I.P.C., Police Station- Modi Nagar, District- Ghaziabad. The order dated 13.01.2025, passed by the Additional District & Sessions Judge, Court No.12, Ghaziabad in Criminal Revision No.272 of 2018, is also being impugned.

3. It has been submitted by learned counsel for the applicant that dispute between the parties is civil in nature. Learned counsel has referred statement of complainant and of witnesses and submitted that even if there is any dispute regarding possession of flat booked by the opposite party no.2, no case under Section 406 IPC is made out. The said dispute has to be resolved by RERA and thus the opposite party no.2 must approach RERA for his grievance. It was also pointed out that as per statement of complainant, applicant has demanded additional amount of Rs.14 lakhs for delivery of possession of flat, which would not constitute any offence. Learned counsel has referred statement of complainant and of witnesses and submitted that no prima-facie case is made out against applicant and dispute is civil in nature. The impugned summoning order has been passed without considering facts and law. Learned revisional court has also not considered the facts of the matter and dismissed the revision.

4. Learned A.G.A. has opposed the application and submitted that in view of statement of complainant recorded under Section 200 Cr.P.C. and of witnesses recorded under Section 202 Cr.P.C., a prima-facie case is made out against the applicant. The revision against summoning order has already been dismissed and that a case under Section 406 is made out against applicant.

5. I have considered the rival submissions and perused the record.

6. At the outset it may be mentioned that by impugned order dated

27.04.2016 the applicant was summoned for offence under Sections 406, 506 IPC and thereafter, the applicant has preferred a criminal revision against aforesaid order dated 27.04.2016, which has been dismissed by learned Additional District & Sessions Judge vide impugned order dated 13.01.2025. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.

7. In Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held: "3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482 Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."

8. Similarly, in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that- " .... Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. Onthis short ground itself, the impugned order of the High Court can be set aside."

9. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:- "In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''

10. Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482 Cr.P.C. but High Court should not act as a second Revisional Court under garb of exercising inherent powers. However, in such matters the interference under Section 482 CrPC / 528 BNSS can be made when there has been miscarriage of justice or abuse of the process of court or there has been failure of justice.

11. In the instant matter, the opposite party no.2 has lodged impugned complaint alleging that one Rajendra Sharma has got introduced the applicant as a builder, having high connections. On promise of applicant, the complainant and his wife have booked two flats in the housing project of the company of applicant and that a total amount of Rs.16,85,000/- was paid against that booking. As per complainant neither any flat has been given nor his amount was returned back. When complainant has demanded his amount, he was threatened by the applicant. The complainant has supported his version in his statement recorded under Section 200 Cr.P.C. and witnesses examined under Section 202 Cr.P.C. have also supported the version of complainant. The applicant has been summoned by a reasoned order. The revision against summoning order has already been dismissed. As stated above, once revision against summoning order is dismissed, in such situation the interference under Section 482 CrPC / 528 BNSS can only be made in case when there is grave miscarriage of justice or abuse of the process of the court or the required statutory procedure has not been complied with or there is failure of justice. In the instant matter no such case is made out. Applying the principles set out in the judgments referred above to the case on hand, no case for invocation of powers under Section 482 Cr.P.C. / 528 BNSS is made out. Therefore, this application under section 528 BNSS deserves to be dismissed.

12. The application u/s 528 BNSS is hereby dismissed. Order Date :- 19.5.2025 'SP'/-

2015 (Shri B.K. Sharma Vs. Ritesh Tewari and Others), under Sections 406, 506(1) I.P.C., Police Station- Modi Nagar, District- Ghaziabad. The order dated 13.01.2025, passed by the Additional District & Sessions Judge, Court No.12, Ghaziabad in Criminal Revision No.272 of 2018, is also being impugned.

3. It has been submitted by learned counsel for the applicant that dispute between the parties is civil in nature. Learned counsel has referred statement of complainant and of witnesses and submitted that even if there is any dispute regarding possession of flat booked by the opposite party no.2, no case under Section 406 IPC is made out. The said dispute has to be resolved by RERA and thus the opposite party no.2 must approach RERA for his grievance. It was also pointed out that as per statement of complainant, applicant has demanded additional amount of Rs.14 lakhs for delivery of possession of flat, which would not constitute any offence. Learned counsel has referred statement of complainant and of witnesses and submitted that no prima-facie case is made out against applicant and dispute is civil in nature. The impugned summoning order has been passed without considering facts and law. Learned revisional court has also not considered the facts of the matter and dismissed the revision.

4. Learned A.G.A. has opposed the application and submitted that in view of statement of complainant recorded under Section 200 Cr.P.C. and of witnesses recorded under Section 202 Cr.P.C., a prima-facie case is made out against the applicant. The revision against summoning order has already been dismissed and that a case under Section 406 is made out against applicant.

5. I have considered the rival submissions and perused the record.

6. At the outset it may be mentioned that by impugned order dated

27.04.2016 the applicant was summoned for offence under Sections 406, 506 IPC and thereafter, the applicant has preferred a criminal revision against aforesaid order dated 27.04.2016, which has been dismissed by learned Additional District & Sessions Judge vide impugned order dated 13.01.2025. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.

7. In Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held: "3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482 Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."

8. Similarly, in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that- " .... Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. Onthis short ground itself, the impugned order of the High Court can be set aside."

9. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:- "In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''

10. Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482 Cr.P.C. but High Court should not act as a second Revisional Court under garb of exercising inherent powers. However, in such matters the interference under Section 482 CrPC / 528 BNSS can be made when there has been miscarriage of justice or abuse of the process of court or there has been failure of justice.

11. In the instant matter, the opposite party no.2 has lodged impugned complaint alleging that one Rajendra Sharma has got introduced the applicant as a builder, having high connections. On promise of applicant, the complainant and his wife have booked two flats in the housing project of the company of applicant and that a total amount of Rs.16,85,000/- was paid against that booking. As per complainant neither any flat has been given nor his amount was returned back. When complainant has demanded his amount, he was threatened by the applicant. The complainant has supported his version in his statement recorded under Section 200 Cr.P.C. and witnesses examined under Section 202 Cr.P.C. have also supported the version of complainant. The applicant has been summoned by a reasoned order. The revision against summoning order has already been dismissed. As stated above, once revision against summoning order is dismissed, in such situation the interference under Section 482 CrPC / 528 BNSS can only be made in case when there is grave miscarriage of justice or abuse of the process of the court or the required statutory procedure has not been complied with or there is failure of justice. In the instant matter no such case is made out. Applying the principles set out in the judgments referred above to the case on hand, no case for invocation of powers under Section 482 Cr.P.C. / 528 BNSS is made out. Therefore, this application under section 528 BNSS deserves to be dismissed.

12. The application u/s 528 BNSS is hereby dismissed. Order Date :- 19.5.2025 'SP'/-