Delhi District Court
Sh. Hari Niwas Gupta vs ) State Of Nct Of Delhi on 5 April, 2014
IN THE COURT OF SHRI LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0172402013
Criminal Revision Number : 91/2/14 dated 18.02.2014
C C No. : 21/1/13 dated 22.3.2013
Sh. Hari Niwas Gupta
S/o late Sh. R.K. Gupta
R/o 16/4, New Rohtak Road,
Karol Bagh, New Delhi110005
....Revisionist/Petitioner
versus
1) State of NCT of Delhi
Through: Commissioner of Police
Police Head Quarters, IP Estate, Delhi
2) M/s Om Propmart (P) Ltd.
(A company duly incorporated)
Registered office at:
B2/426, Yamuna Vihar
New Delhi110053
3) Sh. Satish Kumar
S/o Sh. Atal Upadhyay Singh
R/o B2/426, Yamuna Vihar
CR No. 91/2/14 Page No.1/12
Hari Niwas Gupta v. The State & Ors.
New Delhi110053
4) Sh. Pankaj Tyagi
S/o Sh. Sauraj Singh
5) Sh. Pawan Tyagi
S/o Sh. Basant Singh
Both R/o D7, Ground Floor,
East Jyoti Nagar, Durga Puri,
Shadara, Delhi110093
6) Sh. Dev Kumar
S/o Sh. Jaswant Singh
R/o 146B, Pocket, Mayur Vihar,
PhaseII, New Delhi
7) Sh. Pawan Tyagi
S/o Sh. Shivraj Tyagi
R/o Krishna Apartment,
A95, FA, F4, Dilshad Colony,
Delhi ......... Respondents
Revision received by Court: 18.02.14
Arguments concluded : 05.04.14
Date of order : 05.04.14
ORDER:
1 This is a revision petition preferred by the petitioner herein against the impugned order dated 01.10.2013 whereby an application moved by the petitioner herein under Section 156 (3) Cr.P.C. for getting an FIR registered CR No. 91/2/14 Page No.2/12 Hari Niwas Gupta v. The State & Ors.
against the accused persons for offences under Sections 409/420/465/468/471/120 B IPC was dismissed by the court of Ms. Navita Kumari, the then learned MM, New Delhi while holding that no police assistance was required in the given set of facts and circumstances of the case for cracking the same as the complainant himself was in power and possession of the entire evidence and hence while dismissing the aforesaid application, the then learned MM Ms. Navita Kumari had also granted an opportunity to the petitioner herein for adducing evidence in support of his allegations as contained in the complaint made before the learned trial court. Feeling aggrieved from the aforesaid order, present revision petition has been preferred by the petitioner herein before this court, citing the same to be bad in law. 2 As per the allegations contained in the complaint, the accused persons who were in the business of Estate Agents had induced the petitioner herein to part with his hard earned money on the pretext of procuring a profitable industrial plot for him at the Industrial site in Tronica city, Loni, Ghaziabad (U.P.). 3 It has been stated further that despite having taken an amount of Rs. 50 lacs from the petitioner herein, no such plot was ever offered to him by the accused persons who are respondents herein and rather the cheques given by the accused persons towards refund of said amount had also dishonoured and hence, the complainant was cheated at the hands of the accused persons. CR No. 91/2/14 Page No.3/12 Hari Niwas Gupta v. The State & Ors.
4 In a suit for recovery of the aforesaid amount, filed under Order 37 of CPC by the petitioner herein before the Hon'ble High Court of Delhi, the accused persons were stated to have filed certain documents as mentioned at Page no. 99 to 104 of the paper book of the present revision petition purported to be an agreement to sell entered between the present accused persons and one Sh. Sanjay Tyagi and thereafter subsequent agreement entered by them with the petitioner herein which was alleged to have been forged by them in order to obtain an unconditional leave to defend the aforesaid suit before the Hon'ble High Court of Delhi.
5 It has also been stated in the complaint that since the accused persons had forged the aforesaid documents by tracing the signatures of the present petitioner herein hence, they were also liable to be booked for the offences under Section 465/468/471 IPC and police investigation was required to procure the original of such documents which were stated to be within the power and possession of the accused persons. However, these contentions as raised on behalf of the petitioner herein did not find favour with the learned MM, who after citing relevant case laws in details had dismissed the aforesaid application of the petitioner and directed him to adduce evidence in support of his allegations.
6 I have heard the learned counsels Sh. Asim Naeem, appearing for the CR No. 91/2/14 Page No.4/12 Hari Niwas Gupta v. The State & Ors.
petitioner herein as well as Sh. Vijay Sehgal and L.N. Jindal, appearing for the respondents herein at length and perused the documents and other material available on record.
7 There is one document purported to be an agreement to sell dated 01.04.2008 executed between one Sh. Sanjay Tyagi represented as the original owner of the plot in question and M/s Om Propmart (P) Ltd. represented by one of its directors Sh. Pawan Tyagi who had also been arrayed as an accused in the present case.
8 Immediately, thereafter there appeared to be another agreement to sell dated 02.04.2008 purported to have been executed between the accused company and the petitioner herein which was subsequently also modified by way of a Memorandum of Understanding alleged to have been executed on 24.05.2008 whereby the schedule of repayment of the money to the petitioner was allegedly mentioned and another clause i.e. Clause No. 11 of the said Memorandum of Understanding provided that the plot in question was to be sold by the accused persons within a period of one year and if same had been done then the petitioner was supposed to return those cheques to the accused persons. However, those cheques themselves bear the dates not beyond one year but the current dates commencing from July, 2008 till November, 2008 and on the strength of these documents, it has been submitted by the learned CR No. 91/2/14 Page No.5/12 Hari Niwas Gupta v. The State & Ors.
counsel appearing for the petitioner herein that self destructive and contradictive clauses of the said document itself were sufficient enough to hold that it was a forged document which was never so signed by his client. Same is his contention with respect to the agreement to sell dated 02.04.2008 and the learned counsel has further drawn the attention of this court to the letter dated 01.05.2013 addressed by one Sh. Sanjeev Kumar, the original owner of the plot in question to the IO of the case wherein he had stated that he had sold the aforesaid plot finally in May, 2008 and not prior to that on any date whatsoever.
9 In the light of aforesaid background of the facts and circumstances, the learned counsel appearing for the petitioner has vehemently argued that once the right, title or interest involved in the said plot if any, itself had got transferred only in May 2008, then there was no need and occasion for the accused persons to have created the documents pertaining to March and April, 2008 which shows that they had forged the aforesaid documents and had antedated the same.
10 The learned respective counsels appearing for the respondents herein have vehemently denied and disputed these contentions raised on behalf of the petitioner herein and have drawn my attention to the status report dated nil but signed by the IO on 24.06.2013 filed before the learned trial court, wherein he CR No. 91/2/14 Page No.6/12 Hari Niwas Gupta v. The State & Ors.
had mentioned that as per the investigation conducted by him, one Sh. Madhusudan S/o Sh. Om Prakash had agreed to purchase the said plot from its original owner Sh. Sanjeev Kumar in the month of January, 2008 itself and an agreement to sell between the parties was also executed in that regard and in his written statement made before the IO, Sh. Sanjeev Kumar had also admitted that he had finally sold his plot to Sh. Madhusudan on 16.05.2008 itself. Further, it has been stated that Om Propmart i.e. proposed accused or its directors had also properly entered into an agreement to sell in respect of the said plot with its owner and had further validly entered into an agreement to sell the same with the petitioner herein and had also received a consideration amount of Rs.50 lacs vide two separate cheques dated 02.04.2008 and 24.05.2008 and after execution of Memorandum of Understanding, the said money was also to be returned back to the petitioner herein. 11 In his report, IO had also mentioned that the witnesses to the execution of the said MOU had confirmed its execution and hence, it was a genuine document and not a forged one as contented by the petitioner herein. 12 The pendency of other litigations between the parties had also been cited as one of the grounds for initiation of the present complaint by the petitioner herein against the proposed accused persons/respondents herein. 13 It has also been noticed by the IO in his aforesaid report that due to CR No. 91/2/14 Page No.7/12 Hari Niwas Gupta v. The State & Ors.
recession in the Real Estate market, after loosing hope of making any higher profits in the proposed investment, it was the petitioner who himself had backed out from the transaction and hence, no cognizable offence was made out warranting registration of any FIR in this case. However, since the IO had failed to substantiate his aforesaid observation with some cogent reasoning as well, hence, I am not inclined to accept the same.
14 If the version of the petitioner as portrayed before this court is accepted exfacie that the present petitioner herein had never entered into any agreement for purchase of a plot bearing no. G186, Industrial Estate, Tronica City, Loni, Ghaziabad (U.P.) which fact has also been fairly conceded by him before the court as well. Hence, it cannot be stated that he was cheated by either of the accused persons by holding out any kind of dishonest or fraudulent allurements or inducement to him to part with his hard earned money in respect of the said plot. Further, though tracing of his signatures on the documents such as agreement to sell and MOU by the proposed accused/respondents have been alleged by the petitioner herein but he could not satisfy the court as to how his admitted signatures had fallen into the hands of the accused persons, more particularly when he himself had never dealt with either of them ever before in the past in respect of any other property whatsoever.
15 Not only this, but also, he had failed to justify as to for which of the other CR No. 91/2/14 Page No.8/12 Hari Niwas Gupta v. The State & Ors.
properties he had parted with an amount of Rs.50 lacs in favour of the respondents herein. Though not specifically pleaded, but it was submitted by the learned counsel Sh. Asim Naeem, appearing for the petitioner herein, during the course of his submissions that it was at the instance of one Sh. Lalit Gogia who was known to the petitioner herein for last about 78 years prior to the date of said transaction in question that he had agreed to part with his hard earned money. However, the name of said Lalit Gogia does not find its mention anywhere in the present petition or in the complaint filed before the learned trial court either as an accused or even as a witness to depose in favour of claims made by the petitioner herein.
16 Admittedly, there is a dispute between the parties related to the non refund of the amount of Rs.50 lacs taken by the respondents from the petitioner herein. However, every such dispute related to non payment or repayment of money does not ipso facto gets converted into the offences of cheating and forgery as alleged and so far as the agreements which were allegedly executed prior to the date of final disposal of the property in May, 2008 are concerned, it is a fact of which this court is also not precluded from taking a judicial notice that a mere agreement to sell does not confer any right, title or interest in favour of the prospective buyer and it is only after the execution of sale deed by which the legal and valid transfer of the immovable property gets effected. CR No. 91/2/14 Page No.9/12 Hari Niwas Gupta v. The State & Ors.
Further, it is also a prevailing practice among the Estate Agents/Property Dealers of which a judicial notice can be very well taken off that they keep on transferring the documents on the basis of agreements and finally when the end user of the property comes forward, then they get all title documents executed directly in his favour by the original owner so as to avoid the revenue/stamp duties to be paid during the inter mediate period.
17 Admittedly, the plot in question was alloted to its original owner way back in the year 2007 hence, he was free to enter into agreement to sell with anybody with whomsoever he had chosen or intended to do so and so on, so forth and since such agreements were not going to transfer any rights or title vested in the said plot of land hence, it could not have been stated to have benefited the proposed accused persons in any manner whatsoever. 18 Furthermore, the Hon'ble High Court of Delhi till date has not held in the proceedings pending before it that the aforesaid documents as placed on record by the respondents herein were forged and fabricated. Moreover, the possession of the original of either of the documents has been vehemently denied by all the parties involved in the transaction whereas if the report of the IO related to the confirmation of execution of MOU made by the witnesses to the said document is to be believed, then present petitioner was bound to have a copy of the same in his possession and in a worst case, even if it was CR No. 91/2/14 Page No.10/12 Hari Niwas Gupta v. The State & Ors.
presumed to be a forged document, then no one would expect the accused persons to have preserved the original of the same so as to land up in future legal troubles created by such documents, hence, even if directions for a police investigation are issued in the matter, same are going to be a futile exercise and would be resulting into wastage of time of investigating agency as the original of the aforesaid documents would not at all be available for its examination by any competent authority specifically authorized in that behalf. 19 Mere execution of a document which is not going to cause any illegal pecuniary gain to the executor thereof or any illegal pecuniary loss to anyone else would not qualify the definition of forgery committed with an intent to cheat a person.
20 It is also well founded and well settled preposition of law that where two different courses of action are available to the learned Magistrate and he/she chooses to opt for one of them in particular, then his/her exercise of this discretion cannot be questioned by way of such revision petition unless there appears to be a case of gross injustice or an irreparable loss having been caused to the petitioner by adoption of any such particular course of action. 21 Hence, I find myself in concurrence with the observations of learned MM that no police investigation is required in the given set of facts and circumstances as the petitioner himself is in possession of entire evidence and CR No. 91/2/14 Page No.11/12 Hari Niwas Gupta v. The State & Ors.
in view of the law laid down by the Hon'ble High Court of Delhi in Subhkaran Luharuka v. State, it is for the petitioner to prove the allegations as contained in his complaint by adducing appropriate evidence on record. 22 Hence, no illegality and infirmity can be pointed out in the impugned order warranting any interference of this court in exercise of its revisional powers and jurisdiction. Therefore, revision petition is dismissed being devoid of any merits.
23 The revision file is directed to be sent to record room after completion of other necessary formalities in this regard and TCR be sent back to the concerned court alongwith copy of this order for further necessary proceedings as per law.
Announced in the open
Court on 05.04.2014 (LOKESH KUMAR SHARMA)
ADDITIONAL SESSIONS JUDGE04
NEW DELHI DISTRICT/ PATIALA
HOUSE COURTS/NEW DELHI
CR No. 91/2/14 Page No.12/12
Hari Niwas Gupta v. The State & Ors.
Hari Niwas Gupta vs. State of NCT of Delhi
CR No. 91/2/14
CC No. 21/1/13
05.04.2014
Present: Sh. Asim Naeem, learned counsel for the revisionist/petitioner alongwith petitioner in person.
Sh. Vijay Sehgal, learned counsel for all the respondents alongwith respondents in person.
Arguments on the present revision heard.
Vide my separate order dictated and announced in the open court today, the present revision petition is dismissed.
TCR be sent back to the concerned court alongwith copy of order for further proceedings as per law.
The revision file be consigned to record room after compliance.
(Lokesh Kumar Sharma) Additional Sessions Judge04 NDD/PH Courts/ND/05.04.2014 CR No. 91/2/14 Page No.13/12 Hari Niwas Gupta v. The State & Ors.