Delhi District Court
Addl.Sessions Judge: (F Tc)/West: ... vs The State (Govt Of N.C. T Of Delhi) on 26 April, 2010
IN THE COURT OF SH M. R. SETHI:
ADDL.SESSIONS JUDGE: (F TC)/WEST: DELHI.
Criminal Revision No.28/09
1 Manpreet Singh Munjal
S/o S. Mahender Pal Singh
R/o C2/84, Janakpuri,
New Delhi.
2 Rohit Munjal
S/o S. S. Munjal
R/o C1A/48C, Janakpuri,
New Delhi
.....Petitioners
Versus
The State (Govt of N.C. T of Delhi)
.....Respondent
Date of Institution: 28.10.2009
Date of Arguments: 22.04.2010
Date of Order: 26.04.2010
ORDER:
1 Petitioners before this court have challenged an order dated 11.09.2009 passed by Learned Court of Shri R. K. Tripathi, ACMM (W) in case FIR 579/01 PS Janakpuri. Vide the impugned order, learned Trial Court was pleased to order framing of 1 charges against the petitioners for having committed offences punishable under Sections 448, 468,471/34 IPC. Charge was framed on the same day.
2 After the revision petition was assigned to this court, notice thereof was issued to the State and trial court record was summoned. Thereafter, arguments were advanced by Ld counsel for petitioners and Ld Addl PP for State.
3 It was submitted by learned counsel for petitioners that learned Trial Court vide the impugned order had discharged the petitioners in respect of offences punishable under Sections 380/420/34 IPC. It was submitted that as the accused persons had been discharged in respect of offence of cheating, no charge could be framed against them as regards commission of offences punishable under Sections 468/471/34 IPC. It was further submitted that the complainant had failed to produce the original document and as such, it could not be opined that her signatures were forged and hence, it cannot be said that the document used by the petitioners was a forged document or that infact it was the petitioners who had forged the same. It was further submitted by learned counsel that the petitioners had entered into the disputed premises being tenants thereof and had an order of Civil Court protecting their possession. It was submitted that there was no allegation to the effect that the petitioners had entered the disputed property with intent to commit any offence or to intimidate, insult or annoy the complainant and as such had not committed any offence of criminal trespass.
4 In support of his submissions in this regard, learned counsel for petitioners had placed extensive reliance on Mathri 2 Vs State of Punjab [(1964 (2) Crl. L. J.67), Abul Hossain & Ors [ (1972) Crl. L. J 1499), Smt. Kanwal Sood Vs Nawal Kishore & Anr.[ (1983) Crl. L. J 173)], Ashok Chaturvedi & Ors Vs Shitul H. Chanchani & Anr. [( 1998) Crl. L. J 409)], Manilal Vs State [( 1998) Crl. L. J., 3785], Md. Sahabuddin vs Sayed Monowar Hussain [( 1999) Crl L.J 349)], State of Madhya Pradesh Vs Mohan Lal Soni [( 2000) Crl. L. J 3504). It was prayed that the impugned order be set aside and the petitioners be discharged.
5 Ld Addl PP for State during course of her submission has taken this court through facts of the case. It was submitted that the petitioners had been rightly charged with by the learned Trial Court and that in fact the petitioners had forged the Rent Deed and despite being in possession of the original thereof, they had not produced the same during course of investigation and should not be permitted to enjoy any benefit on that account. Learned Addl PP for State also took this Court through statements of various witnesses which had been recorded during course of investigation. Dismissal of the petition was prayed for .
6 Before adverting to the judicial pronouncements relied upon by learned counsel for petitioners, it would be essential to briefly state facts of the case.
7 As per allegations, the petitioners had trespassed into premises of the complainant on 26.11.01 in absence of the complainant and when confronted, claimed to be a tenant in the said premises by virtue of a Rent Deed dated 7.9.2001. It was case of the complainant that the said rent deed did not contain her signature and that her alleged signatures were forged and 3 fabricated. Admittedly, the original Rent Deed did not see light of the day and hence, claim of either party could not be verified during course of investigation. It was on these allegations that charge sheet was filed against the accused persons.
8 On perusal of record, it has transpired that there are on record statements under Sec.161 Cr. P. C. of a number of witnesses residing in neighbourhood of the disputed premises who have claimed that the petitioners had trespassed into the disputed premises by breaking upon locks of the same on 26.11.01. It also appears from perusal of records that the petitioners had relied upon photocopy of a Rent Agreement dated 7.9.2001. The said photocopy was presented by them during course of investigation to the IO. The photocopy bears attestation of Notary Public Sh K. C. Vashist who during course of his statement under Sec.161 Cr. P. C claimed having attested the same on basis of a photocopy of the original. The said photocopy bore imprint and impression of the original being attested by Notary Public Sh S.M. Mehra. The said Sh S.M. Mehra when examined by Investigating Agency claimed that he had never attested the said documents and the imprint of seal on the photocopy did not belong to him. He had further stated that the persons whose photographs appeared on photocopy of the Rent Deed had never come before him.
9 Now, in absence of the original Rent Deed, it had not been possible to obtain any opinion regarding genuineness or otherwise of signatures of the complainant on the same. However, fact remains that the petitioners had, during course of investigation, produced an attested photocopy of the Rent Deed and the Notary, who had allegedly attested the original has 4 denied genuineness of the same. At this stage, prima face it appears that the petitioners had used a forged document. Truth shall be revealed during trial only.
10 During course of investigation, the accused persons had produced before the Investigating Officer a number of documents depicting the disputed premise as their residential address. Obviously, the same would have been procured by the petitioners only on basis of the alleged Rent Agreement. This by necessary implication implies that the accused persons had used the alleged rent agreement, genuineness of which is in dispute in the present matter. However, it would be pertinent to mention herein that there is no allegations nor any legally admissible evidence to the effect that it was the petitioners who had forged the said document. As the petitioners have already been discharged in respect of offence punishable U/s 420 IPC, it is apparent and can conclusively be said that prima facie there is no material on record to opine that the petitioners had forged the alleged rent agreement for purpose of cheating.
11 Now, let us advert to the judicial pronouncements relied upon by learned counsel for the petitioners:
i) Smt Mathari's case (Supra) is apparently not attracted to the facts of the present case as in the said case possession had been obtained on basis of expired warrants for delivery of possession and it was observed that it did not amount to criminal trespass.
ii) Abdul Hossain's case (Supra) also does not come to rescue of the petitioners. It had been observed in the said judicial pronouncement that when a person commits 5 trespass in absence of owner in possession, he commits a civil trespass, but if after the owner comes back and commands the trespassers to quit, and he refuses or intimidates the owner, offence of trespass is made out. As per facts of the present case, the complainant on coming to know about the trespass had confronted the petitioners who, as per allegations had produced a forged rent deed and hence had apparently intimidated the complainant by their acts. Hence, the judicial pronouncement being relied upon by learned counsel for petitioner does not come to his rescue.
iii) Smt Kanwal Sood'scase (Supra) just like Mathari's case (Supra) does not on facts apply to the present case. In the said case the alleged trespasser being in possession by virtue of a Gift Deed was authorized to remain in possession during life time of the executor, but continued in possession even after his death. It was observed that it could not be said to be a criminal trespass.
iv) Ashok Chaturvedi'scase (Supra), order of the Magistrate taking cognizance against the appellants was set aside primarily on basis of vagueness of allegations of the complainant. Being an order purely on facts of the said case, in opinion of this court, the said judicial pronouncement is not attracted in the present case.
v) In Mani Lal'scase (Supra), it had been observed that in absence of proof as to forgery, no conviction could be sustained under Sec.471 IPC.
It was pleaded on behalf of the petitioners that in absence of proof of forgery in this case, no offence under Sec.471 IPC was made out against the petitioners. In opinion of this court the said submission of learned 6 counsel for the petitioners does not hold much ground. In the judicial pronouncement relied upon, it was observed that in absence of proof as to forgery,no conviction can be rendered under Sec.471 IPC. Proof as to forgery is a matter within relm of trial and not at the stage of consideration of charge. At this stage of the proceedings only a prima facie view has to be taken into consideration. As already mentioned herein-above by this court, prima facie, there is enough material to show that the copy of Rent Agreement relied upon by the petitioner was not a genuine document.
vi) Md. Sahabuddin's case (Supra) also had dealt with provision of Section 441 and as to what is a criminal trespass. The said point has already been dealt with by this court herein-above.
vii) Mohan Lal Soni's case (Supra) is not in dispute and this court has not excluded from consideration the documents placed on record by the accused/ petitioners during course of investigation.
12 During course of his submissions, much reliance had been placed by learned counsel for the petitioners on the fact that their possession was protected by an order passed by Civil Court of competent jurisdiction. It was submitted that order passed by the learned Civil Court was binding on the Criminal Courts and that the Civil Court has injuncted the complainant from dispossessing the petitioner except by due process of law. This, it was submitted, justified the possession of the petitioners.
13 In this regard it would be pertinent to point out that what the civil court had directed is interim protection of possession of 7 the petitioners and there is no declaration qua genuineness or legality of their possession. Even possession of a trespasser is to be protected and he cannot be dispossessed except by due process of law, once he has entered into possession of the disputed premises.
14 In Iqbal Singh Marwah & Anr Vs. Minakshi Marwah & Anr [(2005) 4 SCC page 370)] It was observed that civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. It was further observed that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.
15 It had also been submitted on behalf of petitioners that for applicability of Sec.471 IPC, the person using a forged document must have knowledge of the document to be a forged one. It was submitted that in this case there was no evidence to the effect that the petitioners knew the rent agreement to be a forged one. Now, knowledge of a fact is within personal knowledge of a person and no other person can say whether or not the other person is in knowledge of a particular fact. However, a person using a document, which prima facie is not a genuine one, claiming the same to be genuine, can be presumed to have knowledge about its non-genunity and onus to prove otherwise shifts upon him.
16 Upon consideration of all the aforesaid facts and circumstances of the case and law cited on behalf of the 8 petitioners, this court is of considered opinion that in absence of any charge of cheating having been framed against the petitioners, and in absence of any allegations or legally admissible evidence against the petitioners regarding their having forged the allegedly forged rent agreement, it cannot be said that they had forged the same or had intended to use the same for purpose of cheating. Accordingly, in considered opinion of this court, prima facie there is no material on record to frame charge against the petitioners for having committed offence punishable under Sec.468/34 IPC and the petitioners deserve to be discharged in respect of the said offence.
17 As regards offences under Sec,448/34 and 471/34 IPC, in considered opinion of this court prima facie there appear to be sufficient material on record for framing of charges against the petitioners in respect of the said offences.
18 Keeping in view all the facts and circumstances of the case and opinion of this court mentioned herein-above, the revision petition is partly allowed and the impugned order is modified to the extent that the petitioners stand discharged in respect of offence punishable under Sec.448/34 IPC. Ld Trial Court shall be framing fresh charges against the petitioners in consonance with the present order. Revision petition stands disposed off . Copy of order alongwith trial court record be sent back to Ld Trial Court. Revision file be separated and consigned to record room.
Announced in open court ( M.R. SETHI )
on 26.4.2010 ADDL. SESSIONS JUDGE:
(FTC)/WEST: DELHI.
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