Delhi District Court
Sh.Prem Chand vs M/S. Cool All Beverages Pvt. Ltd on 26 April, 2013
1
IN THE COURT OF SH. NAROTTAM KAUSHAL, SPECIAL JUDGE
(PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Crl. Complaint Case No.4/2013
Case ID No. 02401R0088532013
Date of Institution: 22.02.2013
Date of completion of arguments: 17.04.2013
Date of Order: 26.04.2013
In the matter of :
Sh.Prem Chand
S/o Shri Suraj Bhan
R/o 1800, Gulabi Bagh, Delhi .......Complainant
VERSUS
1 M/s. Cool All Beverages Pvt. Ltd.
Plot No.242 (Ground Floor), Industrial Area,
PatparGanj, Delhi
2 Sh. Farhad Suri (All Directors of M/s. Cool
3 Sh.P.S.Sareen All Beverages Pvt. Ltd., Plot No.242
4 Sh.Dhiren Naulakha Industrial Area,
5 K.S.Mehta Patparganj, Delhi)
6 Ms. Usha Chaturvedi SDM, Vivek Vihar,
L.M.Bandh, Shatri Nagar, Delhi31
..........Accused persons
Appearance: Sh.Suraj Bhan, counsel for the complainant
JUDGEMENT
1.1 Present complaint seeks enquiry, investigation and registration of the case against respondents No. 1 to 6 for offence punishable u/s 13 (i) (d) PC Act r/w section 420/120B IPC. Complaint is also accompanied by an application u/sec.156 (3) Cr.P.C. with a prayer to seek investigation after registration of case in the PS Anti Corruption Branch.
Page 1 of page 10 2 1.2 Allegations as set out in the complaint entail a story of relations between landlord and tenant, getting sour. Complainant Prem Chand rented out his premises to respondent nos. 1 to 5 @ Rs.20,000/ per month, vide agreement dated 25.05.2003 for a period of 5 years, expiring on 31.05.2008. The rent agreement was registered. The premises was let out for industrial and commercial activities. Advance rent of Rs.1,00,000/ was paid by the tenants, presumably for a period of 5 months. However, the relations were strained within a short time and tenancy was terminated by notices dated 27.10.2004 and 22.12.2004. Respondent nos.1 to 5 in the meantime sought permission from MCD and Delhi Pollution Control Committee for setting up an Ice Cube Manufacturing Unit. License was granted by MCD on 10.05.2005. Similarly, electricity connection was allowed by BYPL. The respondents nos.1 to 5 submitted forged NOC/ affidavit and Rent receipts to the concerned authorities. Suit for eviction and possession, filed by the landlord, stands decreed; though there is a stay operating thereon. 1.3 It is the case of the complainant that license by MCD and connection by BYPL were procured by respondents nos.1 to 5 using forged documents, indicating 'no objection' from the landlord. The tenancy having already been terminated. Complainant/ landlord had expressed his objection to MCD as well as BYPL for grant of license/ connection. An FIR for offences punishable u/sec.420, 461, 463, 468, 471, r/w/sec.120B of IPC bearing no.371/05 PS Anand Vihar was registered against respondents nos.1 to 5, having Page 2 of page 10 3 submitted forged documents to MCD/ BYPL. Respondent No 2 was Mayor of Delhi at the relevant time obtained a factory licence dated 10.02.2005 u/s 416/417 of DMC Act, subject to NOC of Health Department and Chief Fire Officer. The said licence could not have been issued as the tenancy stood terminated and respondents No. 1 to 5 had relied upon false affidavit. Deputy Health Officer, Shahdra vide order dated 17.01.2007 had refused grant of licence as there was no such provision in the DMC Act and vide letter dated 28.07.2010 had communicated to Factory Licence Department to take action against the ice cubes manufacturing unit. It is further the case of the complainant that respondents nos. 1 to 5 badly damaged the building of complainant due to leakage of water in the lintel of basement. A complaint was made to the SDM, who after enquiry passed a conditional order dated 01.04.2011 restraining the respondents nos.1 to 5 from bringing water supply to the tenanted premises. The conditional order was made absolute on 03.08.2011, wherein, the SDM observed that there were chances of collapse of building due to continuous use of water. Thereafter, vide order dated 28.11.2011 passed by SDM, one Zilay Singh Kaushik was restrained for supplying of water to the tenanted premises. The order dated 28.11.2011 was upheld by Sh.T.R. Nawal, Ld. ASJ, vide order dated 05.05.2012. However, the respondent no.6 (SDM), vide order dated 01.05.2012 permitted accused no.1 to bring water from outside Agencies. The SDM, thus, misconducted herself and abused her position as public servant by permitting water to be brought in the building, despite her own finding that there were chances of collapse of building. Respondent no.6, thus, used corrupt or illegal means, Page 3 of page 10 4 abused her position as public servant and thereby committed offence u/sec 13 (2) of the PC Act .
2 A status report was sought from the SHO, PSACB. It was reported that affidavit/ NOC and rent receipts disputed by the complainant were sent to Examiner of Questioned Documents. As per the report submitted by FSL, signatures of present complainant on affidavit/ NOC dated 07.02.2004 and the rent receipt dated 10.06.2004 matched with his admitted signatures. It is, further, reported that MCD had not relied upon NOC for granting license to the respondents nos.1 to 5, reliance was placed by MCD on stipulations in rent agreement dated 25.05.2003. The disputed NOC was, thus, not used by respondents nos.1 to 5 in obtaining the license for MCD or the electricity connection. The enquiry officer sought a report from the SDM concerned by way of a questionnaire. Reply dated 15.03.2013 was filed by the SDM Usha Chaturvedi, to the questionnaire.
3.1 Sh. Suraj Bhan, ld. Counsel for the complainant has argued that the MCD granted Factory License to the respondents nos.1 to 5 despite termination of tenancy by complainant. The documents furnished by respondents no. 1 to 5 to MCD & BYPL were forged and fabricated. Suit for possession filed by complainant/ landlord was decreed. An appeal was filed by tenants, wherein, decree of possession has been stayed. The SDM in her last order dated 01.05.2012 has gone contrary to her own observations made in her own orders dated 01.04.2011, 03.08.2011 & 28.11.2011. Having Page 4 of page 10 5 restrained the supply of water to the premises on the ground that there was likelihood of the same collapsing; there was no occasion to permit water to be brought. Also the order permitting water to be supplied was passed without the notice to the landlord/ complainant. Apparently, the SDM had acted for extraneous reasons.
3.2 It was further submitted, at bar, by Sh.Suraj Bhan - Adv. that the matter is his personal dispute. The complainant is his son and an employee of Delhi District Courts. Counsel is a retired judicial officer, who is being victimised by the tenants in collusion with various public authorities. 4 I have heard the ld. Counsel and perused the complaint, documents furnished and the status report. There is no dispute with the preposition of law that on the basis of information disclosed, if a cognizable offence is made out FIR ought to be registered. However, before issuance of direction for registration of FIR or for conducting investigation u/sec.156 (3) Cr.P.C.; it is incumbent upon the court to look into the allegations and find out if the allegations constitute any cognizable offence to have been committed. A Division Bench of the Karnantaka High court, in the decision reported as 1999 Cri LJ 3909 Guruduth Prabhu and Ors. Vs. Krishna Bhat and Ors. observed as under: "If every complaint filed u/sec.200 Cr.P.C. is referred to the Police u/sec.156 (3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complainants, in order to harass the alleged accused named by them in their Page 5 of page 10 6 complaints, making bald allegations just to see that the alleged accused are harassed by the police, who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police." Relying upon the aforesaid judgement, Hon'ble High Court of Delhi in State Vs. Mohd. Iqbal Ghazi reported as (2008) 154 DLT 481 held as under: "It is apparent that the principle that every information relateable to the commission of a cognizable offence must lead to the registration of a FIR has to be understood in its correct perspective, being that, if the information is prima facie credible; is definite and has a substance, the FIR must be registered. But where the information is vague and prima facie lacks credibility, an FIR need not be registered and some preliminary inquiry would be permissible to find out whether the information sought to be lodged has any substance therein or not."
5.1 Directing investigation or lodging of FIR against a public servant for offences under the PC Act has serious implications. It may adversely impact his career, reputation, recognition, selfesteem and social life. The allegations might be preposterous, absolutely false or half truths. The motive of vendata, in making the allegations, can also not be ruled out. Thus, it becomes imperative to evaluate the allegations.
5.2 In the present case, apparently there is breach of faith between the landlord and tenant. They are pitched against each other in multifarious Page 6 of page 10 7 litigations. A suit for permanent injunction has been filed by the tenants. Suit for possession had been filed by the landlord, which was decreed. Appeal is now pending before the Hon'ble High Court of Delhi. Landlord also lodged FIR bearing nos.371/05, PSAnand Vihar, alleging cheating and forgery against the tenants; which FIR was investigated and sought to be closed. The order dated 01.05.2012, passed by the SDM, qua which use of extraneous consideration is alleged, is ofcourse quasijudicial order. Complainant is within his rights to challenge the order before appropriate forum, which I am told has already been challenged. However, without making any observations, which may have bearings on the merits of the said appeal; this court is of the opinion that the observations by the SDM in her orders dated 01.04.2011, 03.08.2011 and 28.11.2011, regarding the condition of building were uncalled for. There was no occasion for the SDM to make observations on the condition of the building. Complaint u/sec.133 Cr.P.C., which resulted in order dated 01.04.2011 and 03.08.2011 was filed by one Hari Prakash (allottee of the tenanted premises) on the ground that respondents no.1 to 5 had started bringing water through tankers from U.P., thus, creating nuisance by pollution of ground water. The SDM was, thus, called upon to restrain nuisance, which was being caused by pollution of ground water. The observations made by the SDM as regards the health of building were totally unnecessary. Further, while answering the questionnaire of the enquiry officer, SDM has stated that her observations were 'general in nature and not in point of view of technical/ structural strength of building'. This court agrees with the response to the questionnaire. It may be observed that Page 7 of page 10 8 in order dated 01.04.2011, SDM has only expressed her 'apprehension of damage to the building'. There is no categoric finding as regard the structural condition. Similarly, in her order dated 03.08.2011, reference has been made to report by Sh.S.L.Dheer - Sr. Engineer, who had certified that the 'building was structurally safe & sound and there was no danger to its collapse'. Similarly, the order dated 28.11.2011 was passed on another petition by said Hari Prakash, alleging that respondent tenants were purchasing water from from an unauthorised supplier. In the order, thus, passed on 28.11.2011, there is no finding by the SDM that building was unsafe. The order dated 01.05.2012 permitting water to be supplied by M/s. SSR Water Purify India, is passed on representation made by the respondent tenant that the new supplier was duly licensed. There was no cause of action to issue notice to the complainant, who was not a party before the SDM. In my opinion the order passed by SDM (respondent no.6) was not without jurisdiction; so as to infer influence of extraneous factors. If all cases, which are dealt by a public servant against the interest of a party are alleged by such party to be coloured with misconduct, it will be impossible for a public servant to discharge his/ her duties fearlessly. Making bald allegations of corrupt practice is extremely easy. In the absence of any detailed, explicit and unequivocal allegations of demand and acceptance of illegal gratification, I find absolutely no sufficient reasons to direct registration of FIR or investigations to be conducted.
Page 8 of page 10 9 5.3 It will not be out of place to mention here that present complaint is one of the 10 (ten) complaints filed by the complainant, before this court against officials of various institutions which have granted sanctions to complainant's tenants. All the complaints contain same allegations against the tenants and similar allegations of abuse of powers by the officials of respective institutions. This pattern suggests the hypothesis that complaints are vindicative towards the officials of institutions which have allowed the tenants to continue with trade in the tenanted premises. Without recording any finding on the termination of tenancy; this court shall, however, observe that rent agreement was entered for a period of 5 years and it permitted the premises to be used for industrial and commercial activities. 5.4 The application u/sec.156 (3) Cr. P.C. is, therefore, dismissed. 6 As regards, the complaint, this court can not take cognizance as the same is explicitly barred u/sec.19 of the PC Act. There is no averment in the complaint that sanction u/sec.19 of the PC Act from the competent authority has been sought or granted for prosecuting respondents no.6 to 9 under the PC Act. For ready reference, Section19 of the PC Act is reproduced herein below: "19.Previous sanction necessary for prosecution: (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13, and 15 alleged to have been committed by a public servant, except with the previous sanction....................................."
Page 9 of page 10 10 7 In view of absence of mandatory sanction for prosecuting respondent no.6 for offences punishable under the PC Act, the complaint is also dismissed. As regards the offences punishable under IPC, this court being a special court can not take cognizance. The application and the complaint are accordingly dismissed. File be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 26.04.2013. SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
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