Delhi District Court
Mukesh Mittal vs State on 11 October, 2019
-1-
IN THE COURT OF SH. GURDEEP SINGH, ADDITIONAL
SESSIONS JUDGE-01/ SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
CR No. 49/19
Mukesh Mittal v. State & Ors.
Mukesh Mittal,
S/o Lt. Sh. J.D. Mittal,
R/o 164-A, DDA LIG Flats, Jhilmil Colony,
Vivek Vihar, Delhi-110095. ....Revisionist
Versus
1. State
2. Seema
D/o Sh. R.N. Aggarwal,
R/o C-34/ Z-2, Dilshad Garden, Delhi-110095.
Also at :
H. No. 594, Chhabra Chowk
80 Feet Road, New Sachin Public School,
Shalimar Garden Extension - 1,
Sahibabad, Ghaziabad, U.P. - 201005.
3. A.K. Sharma
S/o Lt. Sh. B.L. Sharma
R/o 51, Gagan Vihar, Delhi-110051. ....Respondents
Date of Institution : 15-02-2019 Date of reserving order : 24-05-2019 Date of pronouncement order : 11-10-2019 CR No.: 49/19 Page 1 of 10 -2- ORDER ON REVISION
1. This revision petition is directed against the order dated 22.11.2018 passed by Sh. Prayank Nayak, Ld. MM-02, Shahdara, Karkardooma courts whereby Ld. MM dismissed the complaint u/s 200 Cr.P.C.
2. The notice of the revision petition was issued to the respondents. Respondent no. 3 could not be served as he had left the premises without leaving the present whereabouts and therefore he was served by way of affixation.
3. Trial Court record also summoned and perused.
4. I have heard Sh. Anuj Gupta, Ld. Counsel for revisionist, Ld. Addl.PP for State and Ld. Counsel for respondents and also have gone through the record.
5. The relevant facts for the disposal of the present revision petition are that the complainant got married with accused no. 1/ respondent no.2 on 03.03.1991 and marriage was dissolved on 20.02.2007. In 2002, the accused no. 1 Seema / respondent no. 2 (hereinafter refer to as accused no. 1) had left the house of the complainant and had secretly taken away all the original title CR No.: 49/19 Page 2 of 10 -3- documents of all his eight flats including that of flat no. 124, Triveni Apartments, Swayam Sewa CGHS, Jhilmil, Near ESI Hospital, Delhi-95. Accused no. 1 extended threats to forcibly dispossess the tenant Mr. Ajay Kumar Sharma from the said flat, therefore, the complainant had instituted a suit for injunction titled as Mukesh Mittal v. Seema. Accused no. 1 Seema filed the Written Statement (WS) on 11.01.2012 stating therein that she had sold the flat no. 124 to accused no. 3 (Mr. A.K. Sharma) for consideration of Rs.8,50,000/- on 18.07.2011 and filed the copy of agreement to sell dated 18.07.2011 executed on stamp paper no. Z195273 for Rs.50/- dated 18.07.2011 allegedly sold by stamp vendor Mr. Rajat Goswami, Kashmiri Gate, Delhi. The complainant filed an application dated 31.03.2014 under RTI Act, 2005 before PAO-VI, Delhi Treasury, Collector of Stamps regarding information of the said stamp paper. He received the reply that the said stamp paper was issued in the name of stamp vendor namely Lata Rani on 25.10.2011.
6. It is further stated that since the stamp paper was not issued by 25.10.2011, therefore, no agreement could have been executed on 18.07.2011 and therefore the said agreement is forged and the accused committed the offence of forgery and cheating and CR No.: 49/19 Page 3 of 10 -4- used the forged documents as genuine.
7. It is also worthwhile to mention that the said complaint was accompanied by application u/s 156(3) Cr.P.C which was dismissed by Ld. MM vide order dated 08.01.2016 and matter was listed for complainant evidence.
8. Complainant examined himself as CW-1 and stated on the lines of complaint. CW-2 Sh. Devender Singh Rawat, Ahlmad of the court who brought the file of the civil suit and proved the WS filed by defendant no. 1, agreement to sell dated 18.07.2011 the documents in question. CW-3 Sh. Ajay, Dealing Assistant, Stamp and Registration Branch who proved the registration of stamp and proved the record of RTI application, original registration of issuance of stamp wherein the stamp in question was issued to Smt. Lata Rani on 25.10.2011.
9. Ld. MM vide impugned order dismissed the complaint.
10. Ld. counsel on behalf of the revisionist submitted that the documents which was not in existence could have been used and prepared prior to the said date and therefore the said documents is forged. He further submitted that at this stage of cognizance, the magistrate is only required to satisfy himself CR No.: 49/19 Page 4 of 10 -5- about the satisfactory ground to proceed with the complaint and not required to record elaborate reasons and cited Rajendra Rajoriya v. Jagat Narain Thapak and Ors. II (2018) SLT 432.
11. Firstly, coming to the submission as to what is standard of proff required by magistrate while taking cognizance. In the cited judgment, the Hon'ble Supreme Court has quoted that approval with observations of Supreme Court in Subramanian Swamy v. Manmohan Singh & Anr., I (2012) DLT (Crl.) 431 (SC), this court explained the meaning of the word 'cognizance' holding that "In legal parlance cognizance is taking judicial notice by the Court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially". We may note that the Magistrate while taking cognizance has to satisfy himself about the satisfactory grounds to proceed with the complaint and at this stage the consideration should not be whether there is sufficient ground for conviction. It may not be out of context to note that at the stage of taking cognizance, the Magistrate is also not required to record elaborate reasons but the order should reflect independent application of mind by the Magistrate to the material placed before him.
12. Therefore, at this stage of issuance of summons the magistrate is not required to record whether there is sufficient ground for CR No.: 49/19 Page 5 of 10 -6- conviction but to see whether there are sufficient ground to proceed. The standard of which is much lower than the standard of prima facie case which the court is required to see at this stage of charge.
13. Ld. MM vide impugned order observed that as per the facts of the case, the offence u/s 463 IPC is not made out as the preparation of the documents in question does not fall within the definition of false documents u/s 464 of the code.
Section 463 defines Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464 defines false document - A person is said to make a false document or false electronic record.
First- who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document,
(b).........
(c).........
(d).........CR No.: 49/19 Page 6 of 10 -7-
With the intention of causing it to be believed that such document or part of document, electronic record or (electronic signature) was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly - who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with (electronic signature) either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly - who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his (electronic signature) on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Illustration H to the section and illustration D to the explanation 1 are the closest to the facts of the present case.
Illustration (h) - A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months CR No.: 49/19 Page 7 of 10 -8- earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery.
Illustration (d) - A purchases an estate sold under execution of a decree against B. B, after the seizure of the estate, in collusion with Z, executes a lease of the estate of Z at a nominal rent and for a long period and dates the lease six months prior to the seizure, with intent to defraud A, and to cause it to be believed that the lease was granted before the seizure. B, though he executes the lease in his own name, commits forgery by antedating it.
14. Now coming to the facts of the case in hand, the complainant claims that his property paper was stolen in the year 2002. He had further claimed that he had inducted tenant Ajay Kumar Sharma who informed that said flat has been sold to A.K. Sharma S/o Sh. B.L. Sharma. The document in question was in the name of respondent no. 2. She has signed in her name and therefore she has not signed under the authority of someone else or per-porting the same to be someone else. The allegations in nutshell of the complainant is that the said stamp paper was issued for sale to the vendor subsequently to the date on which it is shown to have been executed. However, the act of the CR No.: 49/19 Page 8 of 10 -9- respondent no. 2 does not fall in any of the category of making the false documents and as regards illustration, in the closest illustration, the property was sold and to defraud the purchaser, the conveyance deed ante dated was prepared which was termed as forgery.
15. In the present case, the respondent had sold the property in her name showing herself to owner of the same and not ante dating to defraud someone else. Since the act alleged does not fall in the ambit of making the false documents and therefore the offence of forgery and other offence could not made out and there are no prima facie ground to proceed against respondent. Therefore, I do not find any perversity in the order of ld. MM. Further, I am also in agreement to the reasoning of Ld. MM where he cited the quoted observation of Apex Court in Pepsi Foods Ltd. & Ors. v. Special Judicial Magistrate & Ors. (AIR 1998 SC 128) that the summoning of an accused in a criminal case is a serious matter and the Ld. MM is required to show that he has applied his mind to the facts of the case and examined the nature of allegations and offence. And as per law laid down, merely, because one document i.e. stamp paper was issued subsequent to the date which is shown to have been executed would not fall within the mischief of the definition of forgery, it CR No.: 49/19 Page 9 of 10 -10- may be violation of some rule or violation of Stamp Act. The criminal law cannot set to motion unless the ingredients to constitute the offence are made out as per definition of offence on the allegations. Accordingly, I am of the opinion that order of Ld. MM does not suffer any impropriety, perversity or illegality.
16. The present revision petition is without merit and hence dismissed. TCR be sent back.
17. Copy of order be sent to Ld. MM.
18. The present revision petition is consigned to record room.
Digitally signed by GURDEEP GURDEEP SINGH
SINGH Date: 2019.10.11
16:16:19 +0530
(GURDEEP SINGH)
Additional Sessions Judge-01
Shahdara Distt./Delhi/ 11.10.2019
CR No.: 49/19 Page 10 of 10