Delhi District Court
Ms. Hitesh Kanta Arora vs Smt. Durga Kathuris And Ors on 25 July, 2024
9 Ct. Cases 2726/2021 MS. HITESH KANTA ARORA Vs. SMT. DURGA KATHURIS AND ORS. 25.07.2024
Present: Complainant in person with Ld. Counsel.
Matter is fixed for filing the report by Enquiry officer in compliance of order dated 06.06.2024.
As per the ATR notice u/s 91 CrPC is served on the bank concerned and the report is awaited.
Copy of order dated 08.03.2021 passed by Hon'ble High Court of Delhi alongwith another order dated 12.03.2021 and another document is filed. Copy of the same be supplied to complainant. It is submitted by complainant that bank account of the complainant which was freezed was maintained in SBI, Vijay Nagar and not SBI Mukherjee Nagar.
Arguments heard on the application.
Put up for orders at 4:00 pm. (Niharika Kumar Sharma) A.C.J.M. (North)/Rohini Courts Delhi/25.07.2024 At 4:00 pm Present: Complainant in person with Ld. Counsel.
By way of this order I shall dispose application of complainant u/s 156(3) Cr.P.C.
➢ The present application u/s 156(3) CrPC and the complaint is filed against the accused persons on the ground that the accused committed cheated with the complainant.
Page no. 1/12➢ That the complainants are responsible senior citizens of the country having attained the age of 72 years and 70 years respectively and are having utmost faith in the laws of the land. Both the complainants are retired Government employees and are in the autumn of their lives deserving to live a peaceful life. That the complainants are the co-owners of property bearing no.818, Dr. Mukherjee Nagar, Delhi-110009 having inherited the same from their mother Late Smt Shingar Wanti alongwith other co-owners namely Vijay Kathuria and Brij Bhushan Kathuria both deceased now.
➢ That the property bearing no.818, Dr. Mukherjee Nagar, Delhi- 110009 is a built up property admeasuring 160 sq yds having four built-up floors on the plot. This property was owned by the complainants alongwith Vijay Kathuria and Brij Bhushan Kathuria. That complainant no. 1 remained unmarried her entire life as after the parents were taken ill and died thereafter, she undertook entire responsibility of the family taking care of the needs of the family. The complainant no.1 got her youngest brother Brij Bhushan Kathuria settled in life. The entire family was dependent on the complainant no. I for their emotional and financial needs.
➢ That the complainant no. 1 and Vijay Kathuria used to live in the same house in property bearing no.818, Dr. Mukherjee Nagar, Delhi-110009 and Brij Bhushan Kathuria stayed in the official accommodation provided to him during his employment with the Delhi Development Authority. That the accused no. I is the wife of Late Sh. Brij Bhushan Kathuria and accused no. 2 and 3 is the son and daughter. Mr. Brij Bhushan Kathuria never had a peaceful marital life. The accused no.1 never had cordial relations neither with her husband nor with any of Page no. 2/12 the relatives of her husband. Several complaints were filed by the complainants and Vijay Kathuria and Brij Bhushan Kathuria during their lifetime against the accused no.1. Late Brij Bhushan Kathuria was compelled to stay with the accused no.1 for the welfare of the children. The accused no. 4 and 5 are the witnesses to the forged document i.e. purported WILL.
➢ That Vijay Kathuria and Brij Bhushan Kathuria out of their love affection and gratitude towards their unmarried sister bequeathed their share in the property by virtue of registered with duly registered before the SOM I Kashmere Gate, Revenue Department both dated 3 May 2017. That during the lifetime of all the 4 owners e Hitesh Kanta Aries (complainant no.1), Neslam Gandhi (complainant no.23, Vijay Kathuria and Brij Bhushan Kathuria, a collaboration agreement was entered into with Hemant Grover and Prabhat Gandhi duly executed on 21 st September 2017 and pursuant to the execution of collaboration agreement as per the terms and conditions of agreement all the 4 co owners received Rs. 2,50,000/- (Two Lakhs Fifty Thousand) each in their bank accounts.
➢ That after execution of the collaboration agreement it was agreed between the brothers and sisters that the First Floor of the New Constructed Built up property will be gifted in favour of Prabhat Gandhi who happened to be the son of Neelam Gandhi and nephew of other three co owners, out of love and affection. Unfortunately before executing the Gift Deed Sh. Vijay Kathuria expired in month of November 2017. That as per the will executed by Vijay Kathuria during his lifetime, the complainant no.1 succeeded to his property thereby acquired 50% right in the entire property. That the remaining co owners of the property executed the Gift Deed on 15th March 2018 in favour of Prabhat Gandhi, thereby gifting him the entire First Floor of the property.
Page no. 3/12➢ That after execution of the Gift Deed the ownership right of the three co owners in the property was limited to the Upper Ground Floor, Second Floor and Third Floor in the property in the ratio of 50: 25:25 for complainants and Brij Bhsuan Kathuria with proportionate rights in the land beneath, common areas and amenities and parking.
➢ That the construction of the property was initiated thereafter by the builders after getting the building plan sanctioned from the authorities. The entire expenditure to get the plan sanctioned was home by the builders.
➢ That the complainants being the sister in laws of accused no.1 had always suffered harassment due to the uncalled and unethical acts of the accused no. 1, who was and is used to file false and fabricated complaints and cases against the complainant's and other family members. The husband of accused no.1 i.e. Brij Bhushan Kathuria due to his unhappy marital life and out of love and gratitude towards his elder sister Ms. Hitesh Kanti Arora/complainant no.1 bequeathed his share in his parental property in favour of complainant no.1 vide a registered will dated 5th May, 2017. The accused no. I was well aware of the fact that her husband Brij Bhushan Kathuria had decided to bequeath his share in his parental property in favour of his elder unmarried sister and the accused no. 1 had also given an undertaking at the time of her marriage stating that she shall not have any concern with the other family members of Brij Bhushan Kathuria nor shall she have any concern with the property of Brij Bhushan Kathuria which he inherited from his parents.
➢ That the complainants were very attached to their brothers and each one stood for each other during pleasant and unpleasant times. Although Brij Bhushan Kathuria Page no. 4/12 stayed with his wife and children and took care of all their needs yet he was never looked after by them during the last days of his sufferings. It was the complainants and the son of complainant no. 2 who used to take Brij Bhushan Kathuria to hospitals for his regular checkups. Brij Bhushan Kathuria was a responsible person hence made all the provisions to take care of the present and future of his wife and children. He bought a house for them where the family stays at present, left several life insurance policies, Fixed Deposits and entitled them to his dependent pension.
➢ That after the demise of Brij Bhushan Kathuria the accused persons in order to satisfy their insatiable greed started creating problems in the life of the complainants who were trying to lead a peaceful life at the autumn of their lives. The accused persons were well aware of the fact that Brij Bhushan Kathuria had bequeathed his entire share in his parental property bearing no. 818, Dr. Mukherjee Nagar, Delhi- 110009 in favour of complainant no.1. Yet the accused persons deliberately with the illegal intention to grab the property of the complainant no. 1 and cheat had forged a document purported to be a will and forged signatures of deceased Brij Bhushan Kathuria on it. The accused no. 4 and 5 as an integral part of this long hatched controversy became witnesses to the Forged Document i.e. a purported will. The complainants also engaged an expert for examining the genuineness of the signatures on the purported will. The report of the expert is attached herewith.
➢ That the accused persons knowing the purported document to be a forged one used it as a genuine document and filed a complaint/information before the Sub Registrar No. VI-A, Ambedkar Bhawan, Dr. K.N. Katju Marg, Sector 16, Rohini on 7th June 2019 stating that the property of the complainant is a disputed Page no. 5/12 property and no transfer documents qua the property should be registered before the authority. The accused had also mislead the authorities by stating that a suit was pending before the Hon'ble High Court of Delhi and that relevant point of time between the complainants and the accused persons, whereas the fact of the matter is that no suit was pending between the parties on the relevant time.
➢ That the accused persons had been creating problems in construction of the suit property by the builders with whom the complainants and their brothers namely Vijay Kathuria and Brij Bhushan Kathuria had entered into a collaboration agreement. The accused persons had filed a false complaint before the MCD against the builders for raising an unauthorized construction and got the property booked and the construction was also stopped. The accused had done it with the ulterior motive to harass and humiliate the complainants and cause financial and physical damage to the builders. However after the investigation and completion of process the construction of the building was permitted to begin again. The completion certificate of the building has also been issued thereafter. The possession of the second floor of the property has also been retained by the builders as per the collaboration agreement dated 21.09.2017.
➢ That the accused no. 1 to 3 also filed a petition Under Section 372 of the Indian Succession Act concealing the fact of existence of a purported will immediately after one month of the demise of Brij Bhushan Kathuria. The accused no. 1-3 went to extent of getting the Joint savings bank accounts and Fixed Deposits of complainant no.1.Hitesh Kanta freezed on the basis of a false complaint/notice. The complainant no. I was mentally harassed by the uncalled for acts of the accused no, I to 3, the complainant no.1 Hitesh Kanta Arora had to undergo an Page no. 6/12 emergency Cataract Surgery but her accounts were freezed and she was not able to arrange funds for her treatment.
➢ That the accused persons in order to harass and humiliate the complainants filed a partition suit before the Hon'ble High court of Delhi seeking partition of the suit property based on the purported WILL wherein the accused have forged signatures of Late Brij Bhushan Kathuria.
➢ That after the interim Stay was granted in part of the property bearing no. 818, Dr. Mukherjee Nagar, Delhi, the accused persons distributed and pasted pamphlets all over the area stating that the property was a disputed property and that status quo was in operation. The accused persons forged the document in order to harm the reputation of the complainant and reducing the value of the property.
➢ That the accused persons thereafter call up the complainants from unknown numbers and threatens and intimidates the complainants. The accused no. I had always created troubles in the life of the complainants and continues to do so till date. The complainants are suffering from Geriatric problems and get mentally and physically disturbed by these acts of the accused persons. The accused persons speak in a very abusive language towards the complainants who are much older to them and always wish them to be dead on their face. The accused persons have extended open threats to the complainant no. 2 that they will implicate her son in a false criminal case in order to pressurize them to bow down to their illegal demands.
➢ That in view of the facts and circumstances mentioned herein above, it is submitted that the accused has committed the following offences:
Page no. 7/12a. Forgery a document which purports to be a WILL (Section 463/464/467 of IPC).
b. Forgery for the purpose of cheating.(Section 468 of IPC). c. Having possession of document (will) knowing it to be forged and intending to use it as genuine. (Section 474 of IPC).
d. Using as genuine a forged document (Section 471 of IPC). e. Forgery for the purpose of harming reputation of the person and property of the complainants. (Section 469 of IPC).
f. Causing mischief by creating a dispute in the property and diminishing its value (Section 425 of IPC).
g. Criminal Intimidation threatening to cause injury to the complainant, her family members, the property and reputation of the complainant and her family members. (Section 503 of IPC).
h. Common intention and criminal conspiracy punishable Us 34 and 120-B of IPC.
➢ That under compelling circumstances, the complainants filed a detailed written complaint dated 07/09/2021 to the SHO. P.S. Mukherjee Nagar, Delhi and a copies of the same were also sent to Commissioner of Police, Delhi Police, ACP P.S. Mukherjee Nagar, Delhi-110009 and D.C.P., North Distt. Civil Lines, Delhi for taking appropriate legal action against the accused persons for the abovesaid offences committed by them but till date no action has been taken by the police against the accused and hence the present complaint is being filed before this Hon'ble Court.
➢ That the complainants are having no other efficacious remedy for the redressal of their grievances except for filing this present complaint seeking necessary Page no. 8/12 directions for lodging of a FIR against the accused persons and to conduct investigation in this matter and to summon try and punish the accused persons for the offences committed them as per law.
➢ That the accused persons have committed the abovesaid criminal offences within the jurisdiction of P.S. Mukherjee Nagar, Dell as such this Hon'ble Court has got the jurisdiction to entertain and decide the present complaint.
➢ That the complainant have not filed any other similar complaint over the present subject matter except the present one.
➢ Arguments are heard and complete record was thoroughly perused.
➢ It is well settled law that when a criminal complaint is filed before the Magistrate and upon perusal it is found to disclose commission of a cognizable offence, two courses of action are open to the Magistrate. He may choose to inquire into the complaint by taking cognizance in exercise of his powers under Section 190 Cr.P.C. and proceed to inquire into it in accordance with the procedure laid down in Sections 200 and 202 Cr.P.C. In the alternative, he may refer the complaint to police under Section 156(3) Cr.P.C. for investigation. In the latter case, the Magistrate having given such direction would stay his hand till report under Section 173 Cr.P.C. is submitted by the police, on which further process of law would follow.
➢ The law governing the choice to be exercised from amongst the two options has been settled in M/s. Skipper Beverages Pvt. Ltd. vs. State, 2001 IV AD (Delhi) . In the said case it was held that a Magistrate must apply his mind before passing an Page no. 9/12 order under Section 156(3) Cr.P.C. and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of the complainant or custodial interrogation appears to be necessary for recovery of some articles or discovery of facts.
➢ The well settled guidelines are laid down by the Hon'ble Delhi High Court in respect of invoking provisions of Section 156(3) Cr.P.C. in Subhkaran Luharuka vs. State, (170) 2010 DLT 516, in para 52A of the judgment. The guidelines have been summarized as under:-
"52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under:-
(1) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.
(2) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction.
He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him. Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.
Page no. 10/12(3) The Magistrate, when approached with a Complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.
(4) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code."
➢ As per the record, the information dated 07.06.2019 was sent with false submissions that litigation was pending before Hon'ble High Court of Delhi in a case titled as Mrs. Durga Kathuraia and others Vs. Ms. Hitesh Kanta Arora and Others. However, it is by order dated 08.03.2021 passed in CS (OS) 149/2021 that the status quo regarding the title and possession of suit property be maintained on the basis of the this order a letter dated 23.03.2021 was sent to the office of Sub- Registrar VIA by the accused persons. However, vide order dated 12.03.2024 para no.3 it is observed that as far as the first floor of the property is concerned, it is agreed with both the parties that the same vests with defendant no.1 and claim of the plaintiff with respect to ground floor, first floor and second floor. However, due to the complaint dated 07.06.2019 a false information was given by the accused persons to the office of regarding pendency of litigation more Page no. 11/12 specifically a suit for partition in the office of Sub- Registrar VIA, Ambedkar Bhawan, K.N Kaju Marg, sector-3 Rohini, the false submission was made even though the litigation was filed later in the year 2021.
➢ From a perusal of the record of the case collected it appears that a proper investigation can only be conducted by collecting the evidence from the Registrar Office and getting the same verified is beyond the reach of the complainant. Thus since the evidence required to be collected for digging out the truth will certainly not be within the reach of the applicant, applications u/s 156(3) CrPC stands allowed.
➢ In the wake of the reasons and observations recorded in the foregoing paragraphs, the SHO of PS Mukherjee Nagar is directed to register an FIR in the present case and appoint a responsible police official to conduct investigation, expeditiously and impartially. During investigation the investigating officer shall keep in mind the guidelines related to arrest laid down by the Hon'ble Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation & Anr, (decided on 11.07.2022).
➢ Be put up for filing of compliance report on 28.08.2024. Copy of the present order be sent to the SHO, PS Mukherjee Nagar through the Naib court, PS Mukherjee Nagar for filing of compliance report on or before NDOH.
Date is given as per the convenience of Ld. Counsel.
NIHARIKA Digitally signed
by NIHARIKA
KUMAR KUMAR SHARMA
SHARMA Date: 2024.07.25
(Niharika Kumar Sharma)
17:37:54 +0530
A.C.J.M. (North)/Rohini Courts
Delhi/25.07.2024
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