REVISION PETITION UNDER SECTION 397 OF CODE OF CRIMINAL PROCEDURE

REVISION PETITION UNDER SECTION 397 OF CODE OF CRIMINAL PROCEDURE

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REVISION PETITION UNDER SECTION 397 OF CODE OF CRIMINAL PROCEDURE

IN THE COURT OF ADDITIONAL SESSIONS JUDGE:
Criminal Revision Petition No…………………………. 7200
FIR No:………………………
Police Station:…………………………
Next date in Trial Court:……………………..
In the matter of:

XYZ………………………………………………………. Petitioner

versus

1. State
2. ABC
3. CDF………………………………………………. Respondents

REVISION PETITION UNDER SECTION 397 OF CRIMINAL PROCEDURE CODE, 1973 PRAYING
FOR QUASHING AND SETTING ASIDE ORDER DATED………………………. IN FIR NO…………………….
DATED……………………… UNDER SECTION 154 OF CRIMINAL PROCEDURE CODE 1973 ON
SUBMISSION OF FINAL REPORT UNDER SECTION 173, CRIMINAL PROCEDURE CODE, 1973
PASSED BY LEARNED METROPOLITAN MAGISTRATE,…………………………. CONSIGNING FILE TO
RECORD.
Most Respectfully Showeth:

1. The petitioner had filed a Criminal Complaint under section 406 and section 420 read with section
   120B of the Indian Penal Code against the Respondent which is pending before the trial court and is
   fixed for hearing on……………………………. The said complaint filed by the petitioner against respondents is
   reproduced herein below:
2. “That the complainant is resident of………………………………………………… and is a peace loving citizen.
3. That the complainant had approached the Accused through one accused No.
   2………………………………………………………………………………. …………………………………………………… for
   purchase of one property…………………….
4. That therefore, after detailed negotiation between complainant and the accused through accused No.
   2 the accused agreed to sell the property………………………………………………………………..
5. That it is to state………………………… that the accused…………………………….. had represented to the
   complainant that the Property number ……………………………………………………. was of accused No. 1 and
   he was always ready and willing to sell his property.
6. That pursuant to the accused No. 1 agreeing to sell his property as represented by him to
   be……………………………………………………………….. to the complainant, the complainant and accused No. 1
   and 2 agreed amongst themselves that the complainant would pay a consideration of
   Rs………………………………. to the accused as full and final consideration.
7. That thereafter the complainant paid on……………………….. and advance amount of Rs………………………
   as follows to the accused.

(i) Rs. 5, 00, 000/- as cash.

(ii) Rs. 50, 000/-………………….. vide cheque No……………….. dated
…………………………… drawn on…………………………………… against the sale of
second floor with complete terrace rights excluding one Servant Quarter for the
first floor of property bearing No…………………………………………………………………….

7. That the above payment was made in the presence of accused No. 2 and through him and the
   accused No. 1 gave the complainant a receipt dated……………………………………. and the receipt clearly
   mentioned as follows:
   “Receipt”
   Received with thanks from Shri…………………………. resident of ……………………………………… a sum of
   Rs………… (Rs…………………….. only) in cash and Rs…………………………. (Rs…………………………………….
   only) by cheque No. …………………………… dated……………………… on…………………………………………………..
   as advance payment against the sale of my second floor with complete terrace rights of property bearing
   No……………………………………………………………. measuring …………………………….. Minus one Servant
   Quarter of first floor.
   The balance amount of Rs…………………………… (Rs…………………………… only) is to be paid on or
   before……………………………..
   Sd/- “
   That it is to state that accused No. 2 participated actually in the entire transaction and it is he who
   handed over money of complainant to accused No. 1 and also it was he who handed over receipt of the
   accused No. 1 to complainant.
8. That it is stated by the complainant that the accused No. 1 and 2 and he agreed that the entire
   balance amount of a sum of Rs. 40, 50, 000/- will be paid on or before……………………………………. and
   the same had been clearly mentioned in above receipt dated………;……………………………
9. That during the month of……………………….. when the complainant requested the
   accused……………………………….. to produce and show the original documents of the above said property
   he was fooled and no documents were shown to him. The complainant repeatedly requested the
   accused to show the original papers but all sorts of concocted stories were made by the accused and the
   papers were never shown to the complainant.
10. That thereafter on a fact finding by the complainant he came to know that the above said property
    belonged to one…………………………………. ………………………………. and not the accused as stated by him
    and misrepresented by him.
11. That thereafter on further enquiry by the complainant he found out that the property
    No……………………………………………………… which belonged to one………………………………… was sold
    on………………………. to………………………. by the original owner of the property. To this effects a zerox
    copy of the sale deed is enclosed herewith.
12. That after knowing all these facts the complainant requested accused No. 1 and accused No. 2 to
    return the money back, but these people have not returned the money so far and thus cheated the
    complainant of the above said money.
13. That thereafter the complainant registered a complaint on……………….. dated………………………… with
    the police station…………………………………… to investigate the matter but till date no action whatsoever
    has been taken in the matter and no money has been paid to the complainant.
14. That all the accused have committed various offences under various sections of I. P. C. by mis-
    representing and thereafter dupinu the complainant of a sum of Rs……………………………… The accused

have thus committed offences under sections 420, 406 read with section 120-B of
I. P. C. particularly when they were not owners of the property in question.

2. That the Learned Metropolitan Magistrate issued the directions to the Station House Officer,
   Police Station…………………… to register the case and investigate the matter vide order
   dated………………………. Consequently the Station House Officer, registered a complaint
   on…………………………. vide ‘FIR No………………. and started investigation.
3. That the final report of investigation under section 173 Criminal Procedure Code from Station
   House Officer, Police Station, ………………………………………………… dated……………………….. was
   received by Learned Metropolitan Magistrate on……………………..
   ……………………..
4. That the Learned Metropolitan Magistrate on receipt of final report under Section 173 Criminal
   Procedure Code passed orders on………………………… as under:
   “Case remain unsolved. No possibility of finding any accused in near future. It is an old case. File be
   consigned to record. “
   Sd/-
   ……………………………………
   ……………………………………
5. That the Learned Metropolitan Magistrate passed the above said impugned order without issuing any
   notice to the Complainant which is in violation of law.
6. That the impugned order of the Learned Metropolitan Magistrate dated………………….. ordering
   consigning of file to record is bad in law and suffers
   from patent illegality on the following amongst other grounds and is liable to be quashed and set-aside.

GROUNDS

A. That the Trial Court has failed to exercise its judicial discretion on the facts and
circumstances of the case by ordering consigning of file to record without taking
into account the facts and circumstances of the entire case.
B. That the Trial Court failed to give notice to the complainant before ordering
consigning of the file to record and giving an opportunity of being heard.
C. That the impugned order of the Trial Court is against the principles of natural
justice as per law laid down by High Court as well as Supreme Court where they
have categorically held that the complainant must be heard.
D. That the findings of the Trial Court is against the law and weight of evidence on
record.
E. That the Learned Trial Court failed to appreciate that the proceedings were
initiated in the case on the basis of complaint, which was never dismissed and as
such, there was no question of consigning the file to the Record Room. The
opportunity to lead evidence ought to have been given. The court is not competent
to close the case and consign it to Record Room without recording the evidence of
the complainant.
The accused can be convicted in absentia even if there is sufficient evidence to
proceed against them and if found guilty.
F. That the plea that the accused are not available is against the basic principle of
law. The evidence has to be recorded and finding given. The case can be
consigned to Record Room only after the trial is over. The accused can be
arrested later when found.

The petitioner came to know of the said order of the Learned Metropolitan Magistrate only
on…………………………. when he appeared before the trial court and was informed that the case was
consigned to Record Room and the FIR has been cancelled.
PRAYER

It is therefore, prayed-

(i) that this Hon’ble Court may be pleased to call for the records, examine the
same for the purposes of satisfying itself as to the correctness, legality and
propriety and set aside the impugned order dated…………………
(ii) that the case be remanded to the trial court for further evidence in accordance
with law and
(iii) that this Hon’ble Court may be pleased to pass such further order (s) as may
do complete justice on the facts and circumstances of the case.

Petitioner

Through
Advocate for the Petitioner.

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