Indian Kanoon - Search engine for Indian Law

Delhi District Court

Saroj Sharma vs Sh. Sushil Kumar on 3 February, 2020

               IN THE COURT OF SHRI NAVEEN GUPTA:
           ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
                   KARKARDOOMA COURTS : DELHI

Criminal Revision No. 69/19
PS Seemapuri

Saroj Sharma
W/o Late Sh. Janardhan Sharma,
R/o H.No. J­57, F1,
Dilshad Garden,
Delhi - 110095.                                               .......... Revisionist
                                      Versus

1.       Sh. Sushil Kumar
         s/o Sh. Gopi Chand

2.       Sh. Gopi Chand
         s/o Sh. Thakur Das

3.       Smt. Nagina Devi
         w/o Sh. Gopi Chand

4.       Smt. Radha Gupta
         w/o Sh. Sushil Kumar

All r/o RZ­59, Geetanjali Park,
Sagarpur West, Nagal Raya,
South West, Delhi - 110046.

5.       Sh. Sanjay Gupta
         r/o RZ­241, Gali No. 3,
         West Sagarpur, Delhi - 110046.                       .......... Respondents


                                          Date of institution             : 02.03.2019
                                          Date of reserving order         : 01.02.2020
                                          Date of order                   : 03.02.2020



Crl. Revision No. 69/2019     Saroj Sharma vs. Sushil Kumar & Ors.            Page 1 of 7
PS Seemapuri
 O R D E R:

1. Vide this order, the court has decided the revision filed by the revisionist/complainant Smt. Saroj Sharma, challenging the order dated 28.11.2018 passed by the Court of Ld. MM­02, Shahdara, Karkardooma Courts, Delhi, whereby the application u/s 156(3) Cr.P.C. moved by the complainant seeking directions to the SHO PS Seemapuri to register an FIR against the accused persons has been dismissed.

2. Brief facts as depicted by the complainant in her application moved under Section 156(3) Cr.P.C. are that she is the owner of the property bearing No. RZ­7H/2, Gali No. 5, Sagar Pur, New Delhi. She decided to sell the said property to Sh. Sushil Kumar/respondent No.1 for a consideration amount of Rs.1,70,00,000/­ and on 08.10.2016, an Agreement to Sale and Purchase was also executed to this effect between the parties. She also received a sum of Rs.15 lakhs as earnest money. It is further stated by the complainant that in the Agreement to Sale and Purchase, certain portion regarding date of handing over physical and vacant possession of the said property was left blank. It was done so because the balance amount of Rs.1.55 crore was to be paid on or before 14.12.2016 and thereafter, on execution of sale deed, physical vacant possession of the property was to be handed over. The said fact of balance payment had been precisely incorporated in the said agreement.

3. The original agreement was in the possession of accused persons/respondents herein. It is further alleged that accused persons had committed cheating and fraud by forging the date of handing over Crl. Revision No. 69/2019 Saroj Sharma vs. Sushil Kumar & Ors. Page 2 of 7 PS Seemapuri vacant possession of the said property as 01.12.2016 in the said agreement, while balance payment was yet to be made. The abovesaid act of cheating and fraud came into the knowledge of the complainant when she received summons from the Court regarding a civil suit filed by the accused persons regarding the Injunction with respect to property in question.

4. Thereafter, the complainant moved an application u/s 156(3) Cr.P.C.

before Ld. Trial Court requesting direction to the SHO concerned for registration of an FIR.

5. Ld. Trial Court called for status report from the SHO concerned.

Consequently, a report dated 18.07.2018 was filed. Vide order dated 28.11.2018, Ld. MM­02, Karkardooma Courts relying upon Subhkaran Luharuka Vs. State, Cr. M.L Nos.6122­23/2005 and 6133­34/2005 and applying the above said precedent on the facts and circumstances of the present case, opined that:

'It is observed that all the documents and evidence are in custody of the complainant and nothing is out of reach of the complainant which requires special investigation through Police. The recourse of inquiry by police is also available under Section 202 Cr.P.C. Identity of the accused is known to the complainant. Custodial interrogation is also not required.

Accordingly, the application of the complainant under Section 156(3) Cr.P.C. is dismissed. I take cognizance of the offence. The complainant is given opportunity to prove her case by adducing C.E.' Crl. Revision No. 69/2019 Saroj Sharma vs. Sushil Kumar & Ors. Page 3 of 7 PS Seemapuri

6. First of all, the court wishes to examine the maintainability of the present revision petition challenging the order of Ld. Trial Court deciding the application moved under Section 156(3) Cr.P.C.

7. The Hon'ble Delhi High Court in Simret Katyal v. The State Govt of NCT of Delhi, in Crl. M.C. No. 3729/2015 decided on 11.09.2015, has relied upon its earlier judgment while deciding the issue of maintainability of revision petition challenging an order under Section 156 (3) Cr.P.C. that:

13 [A]s far as the maintainability of the revision petition is concerned, this Court vide judgment dated 10.04.2013 delivered in Crl.M.C.No.1952/2009 and 1959/2009 in case titled Manohar Singh & Another vs State & Ors wherein after discussing all the relevant law on subject and while relying upon the judgment of the Supreme Court in case Amit Kapoor vs Ramesh Chander & Ors. 2012 IX AD (SC) 493 and Kishan Lal vs Dharmendra Bafna & Anr.

2009 (6) Scale 768 made the following observations:­

15. The basic challenge to the impugned order is on the ground of non-maintainability of the revision petition of respondent-accused, which stands allowed vide impugned order. Implicit reliance placed by petitioners' counsel upon full bench decision of Allahabad High Court in Father Thomas (supra) to contend that revision petition against an order allowing 156(3) Cr.P.C. is not maintainable, is of no avail for the reason that Apex Court in its recent decision in Amit Kapoor (supra) has authoritatively ruled that a criminal revision certainly lies against an intermediate order....

16. Now what is required to be seen is whether trial court order directing registration of FIR while exercising its power under Section 156(3) Cr.P.C. is an interlocutory order or an intermediate order. No doubt in Father Thomas Crl. Revision No. 69/2019 Saroj Sharma vs. Sushil Kumar & Ors. Page 4 of 7 PS Seemapuri (supra), an order under Section 156(3) Cr.P.C. has been held to be an interlocutory order being non-revisable, but Apex Court in Kishan Lal v.

Dharmendra Bafna & Anr. 2009 (9) Scale 768 in respect of such an order, has ruled as under:-

"It is correct that the revisional court should not interfere with the discretionary jurisdiction exercised by the learned Magistrate unless a jurisdictional error or an error of law is noticed."

17. In view of authoritative pronouncement of Apex Court in Kishan Lal (supra), this Court is of the considered view that the order under Section 156(3) Cr.P.C. is revisable and impugned order holding revision petition against it to be maintainable does not suffer from any illegality or perversity.

8. From the above said precedent, it is clear that the present revision petition challenging the order of the Trial Court deciding the application u/s 156(3) Cr.P.C. is maintainable.

9. Ld. Counsel for the revisionist has argued that custodial interrogation of the accused persons is required in the present case to identify as to who had put the date '01.12.2016' in the said Agreement to Sale and Purchase. The alleged cheating and forgery could be inferred from the fact that while the balance payment of Rs.1.55 crore was to be made by accused no. 1 on or before 14.12.2016, then why the complainant would have agreed to hand over the physical and vacant possession of the said property by 01.12.2016. Furthermore, the original agreement is in the possession of the accused persons. Thus, the order of Ld. Trial Court shall be set aside.

PS Seemapuri

10. Ld. Counsel for the respondents has argued that the Indian Contract Act does not prohibit incorporating any stipulation of handing over the vacant possession of the property under sale prior to payment of consideration amount for sale. Thus, in a private contract between the complainant/revisionist and respondent no. 1, the handing over date could have been prior to the date of payment of the balance consideration amount. Moreover, even if it is accepted that the portion regarding date of handing over of vacant possession of the property had been kept blank on the date of the execution of the Agreement to Sale and Purchase, the question shall be asked to the complainant/revisionist, as to why she did not object keeping blank such a necessary ingredient of date of handing over of vacant possession of property in the Agreement to Sale and Purchase bearing such a high consideration amount. Ld. Counsel has further argued that the respondent no. 1 herein has filed a civil suit for specific performance against the complainant/revisionist and during proceedings of the said suit, the court of Ld. ADJ­05, New Delhi District, while deciding the application under Order 39 Rule 1 & 2 CPC on 31.01.2018, observed that 'the contention of the defendant that in the agreement, no date as 01.12.2016 was filled in cannot be accepted at this stage. The defendant would have certainly objected to it to have been not filled in at the time of execution of the agreement itself. Whether there is any forgery and cheating is a matter of trial and it cannot be decided at this stage.' He has further argued that pursuant to abovesaid observation, the court of Ld. ADJ restrained the defendant from creating any third party interest in the suit property. He has argued that considering the present circumstances, there is no infirmity in the impugned order of the Ld. MM­02, Shahdara District, Karkardooma Courts, Delhi.

PS Seemapuri

11. Coming to the facts and circumstances of the present case, from the averments made in the application of the complainant/revisionist herein, the Court is of the view that the complainant is in control of all the evidences required to be produced in support of her allegations and to prove the same. Even if the allegations of the complainant are accepted as true that the accused persons had filled the date of handing over physical and vacant possession of the property in the Agreement to Sale and Purchase dated 08.10.2016, the same can be proved by her through oral and documentary evidence including expert opinion as per applicable provisions of law. If at all, any document is in possession of the opposite party, the same may be called before the court through legal process. Accordingly, there is no requirement of any investigation including custodial interrogation of any accused by the police.

12. So far as observation of the Ld. Trial Court in respect of giving opportunity to the complainant to prove her case by adducing evidence is concerned, there is no illegality in asking her to lead evidence in support of her allegations.

13. The court is in agreement with the observations of the Ld. Trial Court as mentioned hereinabove. Hence, this court does not find any incorrectness, illegality or impropriety in the order of the Ld. Trial Court dated 28.11.2018. Accordingly, the present revision petition is dismissed.

Revision file be consigned to Record Room. Trial Court Record be sent back to the Ld. Trial Court alongwith a copy of this order.

Announced in open Court                                       (Naveen Gupta)
on 3rd day of February 2020                                Addl. Sessions Judge-05
                                                             Shahdara District,
                                                          Karkardooma Courts, Delhi
Crl. Revision No. 69/2019        Saroj Sharma vs. Sushil Kumar & Ors.       Page 7 of 7
PS Seemapuri