Final Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: (RK)
ORDER
Cr Rev 37/2025
IN THE COURT OF SH. BABRU BHAN, ADDL. SESSIONS
JUDGE-04, NORTH-EAST, KARKARDOOMA COURTS,
DELHI
Criminal Appeal No. 37/2025
SMT KAMLESH SHARMA Vs. DURGA SHARMA
CNR No-DLNE010013202025
IN THE MATTER OF:
Smt. Kamlesh Sharma (Substituted complainant),
W/o. Late. Sh. Pawan Kumar Sharma,
R/o. H.No-E-65, Gali No-2, …Revisionist
Subhash Mohalla, North Ghonda,
Garhi Mendu, Delhi-110053
Versus
Smt. Durga Sharma,
W/o. Sh. Vinod Sharma, …..Respondent
R/o- FF-38B, Laxmi Nagar,
Shakarpur, Mangal Bazar, Delhi-110092.
Date of Institution : 26.09.2025
Date of O r d e r : 29.04.2026
ORDER
Smt. Kamlesh Sharma Vs. Durga Sharma
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1. The present revision petition has been filed on behalf of
substituted complainant Smt. Kamlesh Sharma, challenging the
order dated 20.12.2024, passed by Ld. JMFC-01, N/E, KKD
(hereinafter referred as the Ld. Trial Court), in CC
No-1484/2017, titled as “Pawan Kumar Sharma Vs Durga
Sharma”.
2. The aforesaid complaint was originally filed by Pawan
Kumar Sharma (husband of the present revisionist). He expired
on 15.12.2022 and after his death, the revisionist was substituted
as complainant. During lifetime of Pawan Kumar Sharma, an
application was moved for amendment of the complaint on the
ground that due to clerical mistake, it was wrongly mentioned in
the complaint that loan was taken by accused. However, it was
actually taken by son of the accused Mr. Praveen Kumar Sharma.
Accused/respondent had issued the cheque in question as
guarantor in discharge of liabilities of his son, as his son had
failed to pay the loan amount of Rs. 87 lacs.
3. The Ld. Trial Court observed that the said amendment was
going to the root of the complaint and therefore dismissed the
same vide order dated 17.02.2022. Now, after substitution of
revisionist/Smt. Kamlesh Sharma as a complainant, she sought to
file an affidavit containing the same facts which were subject
matter of the amendment application which was earlier
dismissed. The Ld. Trial Court refused to take the post-
summoning evidence of the revisionist on the ground that it will
Smt. Kamlesh Sharma Vs. Durga Sharma
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amount to amendment of the complaint which will cause
prejudice to the respondent/accused.
4. During course of arguments, Ld. Counsel for
revisionist/complainant has stated that such amendment of
complaint which may go to the root of the matter, can
undoubtedly be disallowed by the court. However, an affidavit
filed in the post-summoning evidence is a statement of the
complainant. It is for the witness to decide that what statement
has to make via the affidavit. No doubt, the credibility and
evidentiary weightage of such statement made via the affidavit,
can be decided by the court but court cannot refuse to take the
said affidavit and the documents on record.
5. On the other hand, Ld. Counsel for respondent/accused has
submitted that the order dated 20.12.2024, whereby the
revisionist was directed to file fresh post-summoning evidence in
accordance with order dated 13.07.2022, is an interlocutory order
where no revision petition is maintainable. Ld. Counsel has
further submitted that as per Section 136 of Evidence Act castes a
mandatory duty on the court to see the relevancy and
admissibility of the evidence sought to be led by the parties. Ld.
Counsel has also submitted that revisionist is only a substituted
complainant who has to step into the shoes of the original
complainant and as such cannot lead evidence which is different
from the original complaint, as a party cannot be permitted to
lead evidence beyond pleading in the original complaint and
amendment application.
Smt. Kamlesh Sharma Vs. Durga Sharma
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6. Submissions heard. Record perused.
7. In case titled as
“Dilshad Hussain Vs. Pushpa Devi” Crl
M.C 13644 and 13645/2025”. The Hon’ble Delhi High Court has
made some observations to clarify the distinction between an
interlocutory order and an intermediate order. The relevant
observations are as under:-
“6. Basically, a judicial order passed by a criminal court can be either
Final Order or Intermediate Order or Interlocutory Order. So far as
final order is concerned, there can be no difficulty in the sense that an
order of discharge or acquittal or conviction is a final order. The issue
lies while distinguishing between an interlocutory order and an
intermediate order, which distinction is necessary to understand, in
order to analyze the statutory bar created by Section 397(2) CrPC,
aimed to curtail the revisional powers of the High Court and the Court
of Sessions.
6A. In the case of Amar Nath & Others vs State Of Haryana &
Others,1977 CrLJ 1891, a Bench of two Hon’ble Judges of the
Supreme Court dealt with the provisions under Sections 397(2) and
482 CrPC and held that an interlocutory order is that order which does
not decide rights or liabilities of the parties; that an order which affects
rights of the parties cannot be called an interlocutory order; and that
orders which are procedural steps, like summoning of witnesses,
adjournments, bail and calling for report etc., which are steps in the
aid of pending proceedings are interlocutory orders; and that
subsection (2) was inserted in Section 397 CrPC in order to protect
right of the accused so that trials do not get delayed.
6B. The concept of “intermediate order” was elucidated in the case of
Madhu Limaye vs State of Maharashtra, (1977) 4 SCC 551 by a
Bench of three Hon’ble Judges of the Supreme Court of India while
distinguishing a final order from an interlocutory order. The Hon'ble
Supreme Court of India laid down the principle that an intermediate
order is one which is interlocutory in nature but when reversed, it has
the effect of terminating the proceedings and thereby resulting in a
final order. An intermediate order is one which if passed in a certain
way, the proceedings would terminate but if passed in another way, the
proceedings would continue. The Hon’ble Supreme Court after
analyzing various judicial precedents held that the view expressed in
Smt. Kamlesh Sharma Vs. Durga Sharma
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the case of Amar Nath (supra) needs to be modulated and modified on
one part and needs to be reaffirmed on the other part. The view
taken in the case of Amar Nath (supra) that where bar of Section
397(2) CrPC applies, inherent powers under Section 482 CrPC cannot
be invoked by the High Court was modulated by the Hon’ble Supreme
Court holding that bar of Section 397(2) CrPC shall not obstruct the
inherent powers of the High Court if the High Court finds it necessary
to intervene and prevent abuse of process of court. The other point of
the case of Amar Nath (supra) was reaffirmed that the interlocutory
order is not converse of the final order and that order on charge is not
an interlocutory order. The Hon’ble Supreme Court held that the
feasible test is whether upholding the objections raised by a party
would result in culminating the proceedings, and if so, any order
passed on such objections would not be an interlocutory order as
envisaged
6C. In the case of K.K. Patel & Anr vs State Of Gujarat, (2000) 6 SCC
195, another Bench of two Hon’ble Judges of the Supreme Court held
that in deciding whether an order is interlocutory or not, the sole test is
not whether such order was passed during the interim stage, but the
feasible test is as to whether by upholding the objections raised by a
party, it would result in culminating the proceedings and if so, such
order would not be merely interlocutory order as envisaged by Section
397(2) CrPC and consequently such order would be amenable to the
revisional jurisdiction. The Hon’ble Supreme Court elaborated thus:
“It is now well-nigh settled that in deciding whether an order
challenged is interlocutory or not as for Section 397(2) of the
Code, the sole test is not whether such order was passed during
the interim stage (vide Amar Nath v. State of Haryana, Madhu
Limaye v. State of Maharashtra, V. C. Shukla v. State through
CBI and Rajendra Kumar Sitaram Pande v. Uttam). The
feasible test is whether by upholding the objections raised by a
party, it would result in culminating the proceedings, if so any
order passed on such objections would not be merely
interlocutory in nature as envisaged in Section 397(2) of the
Code. In the present case, if the objections raised by the
appellants were upheld by the Court the entire prosecution
proceedings would have been terminated. Hence, as per the
said standard, the order was revisable.” (emphasis supplied).”
8. In
“Amarnath & Ors Vs. State of Haryana” case referred
by Hon’ble Delhi High Court in the above mentioned judgment,
the Hon’ble Supreme Court of India has carved out a clear
distinction between an interlocutory order and an immediate
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order. An Interlocutory Order has been defined as an order which
does not decide the rights and liabilities of the parties, whereas,
an order which affects the rights of the parties, cannot be called
as an Interlocutory Order.
9. Here in this case, the right to file evidence by way of
affidavit has been declined by the Ld. Trial Court. The Ld. Trial
Court wants the revisionist to file the affidavit as per the facts
mentioned in the complaint. To the understanding of this court,
right to file an affidavit in evidence is an effective and substantial
right of a party. If that right is taken away, the complainant
cannot lead its evidence and prove its case. Therefore, the order
in question cannot be termed as an Interlocutory Order. Same is
Intermediate Order where the revision petition is maintainable.
10. In a criminal case, a court can no doubt refuse to permit
such amendment in a complaint which goes to the root of the
matter. However, to the humble opinion of this court, the law
applies differently on evidence by way of affidavit. An evidence
by way of affidavit is nothing but a kind of examination-in-chief
recorded before the Oath Commissioner. When it comes to the
examination-in-chief, it is for the witness to decide that what
facts, he want to depose, even when the evidence is given by way
of affidavit. The court cannot dictate the facts which have to be
mentioned in the affidavit by the witness. No doubt, if the facts
alleged in the evidence by way of affidavit, are contradictory
from the facts mentioned in the complaint on some material
points, the court has power to give lesser evidentiary weightage
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to such evidence after considering all the surrounding
circumstances.
11. If the facts are completely different from the complaint, no
doubt court can reject the same on ground of irrelevancy. But, the
case in hand does not fall in the category where complainant has
mentioned completely irrelevant facts in the affidavit. There
might be some difference in the facts alleged in the complaint
and in the affidavit but that shall not render the evidence
completely irrelevant.
12. Therefore, to the understanding of this court, the Ld. Trial
Court should not have refused to accept the affidavit in post-
summoning evidence, merely because the facts were not exactly
in accordance with the original complaint.
13. For the reasons discussed above, the revision petition is
allowed. The impugned order dated 20.12.2024 is not sustainable
in the eyes of law, same is accordingly set aside.
14. Directions are issued to the Ld. Trial Court to accept the
evidence by way of affidavit and accompanying documents. No
doubt, the evidentiary value of the facts mentioned in the
affidavit shall be decided at the appropriate stage, after
considering all the concomitant circumstances.
15. Revision stands disposed of.
16. Revision file be consigned to Record Room.
Smt. Kamlesh Sharma Vs. Durga Sharma
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17. TCR, if any, be sent back to the concerned Court alongwith
copy of this order.
18. Ordered accordingly.
Pronounced in open Court
on 29-04-2026.
(BABRU BHAN)
ASJ-04/North-East District
KKD/Delhi/29.04.2026
Smt. Kamlesh Sharma Vs. Durga Sharma
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