IMPORTANT POINT
A Judgment showing that a non-existent piece of evidence was taken into consideration is a nullity.

JUDGMENT

Malik Sharief-ud-Din-J. - In a complaint case the petitioner was found guilty of an offence under section 448 of the Indian Penal Code by Mr. S.M. Chopra, Metropolitan Magistrate, New Delhi vide his order dated 2nd July, 1981 and was sentenced to payment of fine of Rs. 1,000/-. In default of payment it was directed that the petitioner shall undergo simple imprisonment for a period of three months. It was also directed that out of the fine realised a sum of Rs. 750/- shall be paid to the complainant. The learned Magistrate passed further direction for the restoration of the possession of the shop from which the complainant was found to have been dispossessed by the petitioner.

2. A brief reference to the facts of the case reveals that the complainant was allegedly inducted as a tenant by the petitioner at a monthly rent of Rs. 100/-, in respect of his shop 9-C, Pushpa Market, Lajpat Nagar, New Delhi' in pursuance of rent-deed purported to have been executed by the petitioner in his favour on 1.1.1975. According to the allegations made in the complaint it was stated that on the night intervening 13/14.2.77 the accused-petitioner had taken forcible possession of the shop by throwing away suit-cases and other things belonging to the complainant from the aforesaid shop and also by pushing out one Ram Dhan, an employee of the complain ant out of the shop. The complainant states that the police failed to take any action as a result of which he was obliged to take recourse to the filing of complainant.

3. Broadly speaking the finding of the learned Magistrate is that the complainant has proved the petitioner guilty of an offence committed under Section 448 Indian Penal Code. This finding was endorsed by Shri R.P. Gupta, Addl. Sessions Judge, New Delhi on 18.12.82. After accepting the finding of facts on the point of guilt he had however modified the sentence and reduced the fine to Rs. 500/- but maintained that the possession of the shop shall be delivered to the complainant. Aggrieved by this order the petitioner filed this revision petition under section 397 Criminal Procedure Code.

4. On consideration of the' arguments advanced by the learned counsel for the parties. I must confess that there are some disturbing features about the case. On of these features is the presence of so called written submissions filed by the petitioner in the trial court and relied upon by the learned Magistrate. The stand of the petitioner as would appear from the statement under section 313 Criminal Procedure Code throughout has been a total denial of the prosecution case though in the end of his statement under section 313 Criminal Procedure Code he did admit that be had permitted the complainant to keep some of his goods on the barsati of his shop but since the complainant became dishonest he removed the goods. This was the sum and substance of the defence set up by the petitioner at trial.

There was no admission made in respect of the creation of any tenancy or in respect of the fact that the complainant was inducted into possession of the shop at any stage. Only admission made is that he had permitted the complainant to store some of his goods on the barsati of his shop. At no stage had the petitioner stated that he had delivered the possession of barsati to the complainant. In respect of the rent deed it will be noticed the stand of the petitioner was that he has not executed it at all. In the written submission reference to which has been made above, undoubtedly a different case has been set up in so far as the execution of the rent note dated 1.1.1976 is concerned. It is stated thereto that this rent-deed was not executed from the petitioner by perpetration of fraud. I really wonder as to how and why a sudden change came about in the stand which the petitioner had taken while making statement under section 313 Criminal Procedure Code when he had in unambiguous terms denied the execution of the rent-deed. These written submission to which