Delhi District Court
Shri Surender Singh vs State (Govt Of Nct Delhi) on 9 July, 2013
1
IN THE COURT OF MS. SHAIL JAIN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS 02
(CENTRAL) DELHI
Crl. R. NO. 03/13
Shri Surender Singh
S/o late Shri Rattan Singh
R/o H. No. 230, V and PO Pitampura
Delhi34.
........REVISIONIST
versus
1. State (Govt of NCT Delhi).
2. Shri Mohammad Salim
s/o late Shri Abdul Rashid
Proprietor of M/S M. S. Furniture House
Shop No. 8, Property No. 92/1,
Shri Hanuman Mandir Lalji
Munirka, New Delhi110067.
.......RESPONDENTS
DATE OF INSTITUTION : 01.02.2013
DATE OF JUDGMENT : 09.07.2013
J U D G M E N T
1. The present criminal revision petition u/s 397 and section 399 Cr.P.C has been filed by the present revisionist against the impugned order dated 22.12.2012 passed by Shri Neeraj Gaur, Ld Metropolitan Magistrate in the case titled as Shri Surender Singh vs Shri Mohd Salim in complaint Case No. 1152/1/12 2 whereby the application u/s 156 (3) Cr.P.C was dismissed.
2. Brief facts leading to the present revision are that petitioner is running his business in the name and style of M/S Tara Furniture , Shop No. 7 in property no. 92/1, Shree Hanuman Mandir Lal Ji, Munirka, New Delhi. Respondent No. 2 is doing the business of manufacture and sale of furniture in shop no. 8. The shop in possession of Shri Mohd Salim was let out by the owner Shri Ram Bhajan as per rent note with effect from 30.10.1976 and Shri Abdul Rashid continued occupying the shop as a tenant of Shri Rambhajan and the rent was mutually revised from time to time and in end of 2004 the rent was Rs. 6,000/ per month which Shri Abdul Rashid had paid to Shri Rambhajan, who unfortunately expired on 1.1.2005 and thereafter Shri Abdul Rashid and some other tenants started harassing Smt Ranbiri, wife of Shri Rambhajan and as a result the legal heirs of Rambhajan had sold 210 sq yards of said property including the shop no. 8 which was in tenancy of Shri Abdul Rashid to the petitioner as per registered GPA dated 12.05.2005 with consideration and said fact was duly conveyed to Shri Abdul Rashid by Smt Rambiri and also by the petitioner and the petitioner had also sent a copy of GPA to Shri Abdul Rashid and other tenants in his portion by post but Shri Abdul Rashid somehow never paid rent to the petitioner with malafide intention.
3. Later on Shri Mohd Salim filed a civil suit by claiming 3 himself as a direct tenant of this shop since 197576 of Shri Rambhajan and later on of his widow Rmt Rambiri Devi. The petitioner was impleaded in these cases after Smt Rambiri informed the court that this property had been sold to the petitioner and thereafter the petitioner had restored the electricity supply to the shop as Mohd Salim had claimed himself as legal heir of Abdul Rashid but he never filed the death certificate of Shri Abdul Rashid and also never gave the date of death of Shri Abdul Rashid. Believing Mohd Salim that he was the legal heir of Shri Abdul Rashid, the petitioner had terminated his tenancy as per legal notice on 02.06.2008 and thereafter he filed the suit for possession, damages etc which is pending. Mohd Salim had filed no. of documents to show that he is tenant but deliberately he did not file any rent receipt. After verification the petitioner came to know that Mohd Salim had applied for Registration of business of M/S MS Furniture house in 1990 and he had filed forged documents ie no objection certificate dated 1.3.90, rent receipt dated 1.4.90, 1.12.89 and 1.3.90 showing rent of Rs.400/ per month, Mohd Salim obtained Voter Identity Card of Ward No. 44, R K Puram and Mohd Salim had also obtained death certificate of his father Shri Abdul Rashid from Tax Collector, Nagar Panchayat Aurangabad Bulandsahar UP showing his father's death on 14.5.2006 .
4. It is further case of the revisionist that Shri Mohd Salim had committed various offences of cheating, forgery, using forged 4 documents as genuine, giving false affidavit making false claims before Govt authorities . He is still using the documents obtained by him by means of forgery and fraud before the various courts in Tis Hazari. The petitioner filed a complaint before Officer Incharge of Police Post Tis Hazari Courts dated 26.09.2012 but no FIR was registered against the respondent no.
2. Even though other tenant of petitioner Shri Bhagwati Prasad and his son Mata Prasad who also committed similar offence of fabricating rent receipt in the name of Shri Rambhajan, an FIR no 23/09 PS Subzi Mandi was registered on the same complaint of the petitioner by the order of Ld MM and chargesheet had been filed in the case.
5. The petitioner filed complaint u/s 156 (3) Cr.P.C and police also filed status report and thereafter the application was dismissed as per order dated 22.12.2012. Being aggrieved by the order of Ld Trial Court, present revision has been filed on the following grounds:
a) because the impugned order passed by Ld Trial Court is not only contrary to law but on facts on record:
b) that impugned order has been passed arbitrarily without properly appreciating the allegations against Respondent No. 2 as allegations and documents on record clearly show that the respondent no. 2 has committed serious cognizable offence:
c) that Ld Trial Court has failed to appreciate that it is a settled law that police is bound to register the FIR and investigate the 5 matter in cognizable offence;
d) That Ld Trial Court has failed to appreciate that important evidence related to the crime is to be recovered from respondent no. 2 and name of other persons involved in the said offence are to be ascertained by the police:
e) That Ld Trial Court has failed to appreciate that the forged and fabricated documents along with admitted signatures of Shri Rambhajan are required to be sent to FSL for expert opinion;
f) That Ld Trial Court has failed to appreciate that it is the duty of the State to take on the responsibility of investigation and prosecuting the accused in cognizable offences.
g) That Ld Trial Court has failed to appreciate that respondent no. 2 has repeatedly committed number of cognizable offence as above mentioned above but no action has been taken against him till the date by police.
with these grounds revisionist has prayed for setting aside the impugned order passed by Ld Trial Court.
6. I have heard arguments from Ld counsel for the parties.
7. It is argued on behalf of the revisionist that petitioner has purchased the property from LRs of Ram Bhajan in May, 2005 after Rambhajan died on 01/01/05. Respondent is sole heir of Rashid, who died in 2006. Respondent has forged the documents ie no objection certificate and rent receipts. It is also argued on behalf of the petitioner that rate of rent is Rs.6000/ 6 per month and not Rs.500/ per month.
8. On the other hand it is argued on behalf of the Respondent no. 2 that rent of the premises in dispute is Rs.500/ per month. Civil litigation in respect of the possession of the suit property is pending between the parties. Petitioner has filed the present appeal just to harass the respondent. In support of his arguments, Ld counsel for petitioner has relied upon the following authorities:
1. Alacque Padamsee and ors vs Union of India
2. 2006 IV AD(DELHI) 634
3. Mohd Yousuf vs Smt Afaq Jahan and ors in 2305/2004
4. AIR 2001 SUPREME COURT 571 (1)
5. AIR 1997 SUPREME COURT 3104"
9. I have considered the arguments advanced by Ld counsel for the parties, material available on record and trial court record.
10. In this case, revisionist has filed a complaint before Ld Trial Court against the respondent/accused for various offence u/s 420/465/471/420 B IPC etc on the ground that Mohd Saleem had applied for registration of business on the basis of forged and fabricated, no objection certificate, dated 01.03.90 , Rent receipt dated 1.4.90, 1.12.89 and 1.3.90 showing rent of Rs.400/ per month and having forged signatures of Shri Ram Bhajan. It is the case of the revisionist that the documents are having forged signatures of Shri Ram Bhajan as he had never signed those 7 documents. Along with the complaint, an application u/s 156 (3) Cr.P.C was filed by the complainant with the prayer that FIR be registered against the respondent herein and authorities be directed to investigate the matter.
11. The application u/s 156 (3) Cr.P.C as filed by the complainant was dismissed by Ld Trial Court vide order dated 22/12/2012 on the ground that there is civil litigation pending between the parties. Without giving cogent reasons Ld Trial Court has stated that it is not a fit case for exercising the discretionary power u/s 156 (3) Cr.P.C. hence the application was dismissed.
12. Hon'ble Mr Justice R C Chopra in M/S Skipper Beverages Pvt Ltd vs State 2002 Cr.L.J NOC 233 (Delhi) had discussed when the powers u/s 156 (3) Cr.P.C can be exercised by a Magistrate. It was observed by Hon'ble Mr Justice R. C. Chopra that:
" Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself in possession of evidence to prove allegations, there should be no need to pass order u/s 156. But case where Magistrate is of view that the nature of allegations is such that complainant himself may not be in position to collect and 8 produce evidence before court, and interest of justice demand that police should step into to help complainant, police assistance can be taken."
13. In another case titled as Gulab Chand Upadhyay vs State of UP and ors 2002 Cr.L.J 2907, Allahabad High Court, in para no 24 had observed that "where accused with his name and address are known to the complainant, the evidence of the witnesses are also known to him and it is not a case where any other material evidence is required to be collected and can be prevented then it is not a case where 'investigation was required by the police for launching a successful prosecutor"
14. In Alecque Padamsee and ors vs Union of India and orsit was held by Hon'ble Supreme Court that whenever a case is received by the police about the alleged commission of offence which is cognizable one, there is a duty to register the FIR"
15. From these judgments, it is clear that though Hon'ble Supreme Court had held in Alecque Padamsee case that whenever a complaint is received by the police for the commission of cognizable offence it is the duty of the police officer to register FIR but later on, situation had been changed. In various judgments, Hon'ble Supreme Court as well as Hon'ble High Court of Delhi had held that if the evidence is in possession of the complainant and for gathering of evidence, police assistance is not required then registration of FIR is not necessary, otherwise the police should step into action to help 9 the complainant and therefore registration of FIR should be done. In the present case, there are allegations of petitioner that documents are forged and signatures of deceased Ram Bhajan has been denied by his wife Smt Rambiri. Therefore, thorough investigation is required for which FIR should be registered. In these circumstance I am of the opinion that revisionist/complainant has prima facie proved that documents relied upon by the respondent are forged and fabricated and does not bear the signatures of deceased Ram Bhajan and therefore, police assistance in this case is required and necessary investigation cannot be carried out by the complainant himself. Therefore, this is a fit case where Ld Trial Court should have ordered for registration of FIR u/s 156 (3) Cr.P.C. Hence the order of Ld Trial Court dated 22/12/2012 is set aside. Parties are directed to appear before Ld Trial Court on 23/07/2013.
16. Revision as filed by revisionist is allowed. Trial Court record be sent back with the copy of the order. File of revision be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 9th July, 2013.
( SHAIL JAIN ) ADDL. SESSIONS JUDGE (CENTRAL) DELHI