Delhi District Court
State (Govt. Of Nct Of Delhi) vs Adarsh Kumar on 6 April, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 314 of 2020
CNR No.DLSE01-005677-2020
IN THE MATTER OF:
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi
.......Revisionist
Versus
1. Adarsh Kumar
R/o H.No. 2, Link Road,
Sector-28, Faridabad, Haryana.
2. Attar Singh
R/o Village Chandan Haula,
New Delhi.
3. Satish Mehra
R/o L-28, 3rd Floor,
Kalkaji, New Delhi.
4. Harish Mehra
R/o A-16, 1st Floor, Shivalik,
Malviya Nagar, New Delhi.
Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 1 of 12
ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.04.06 11:58:34
+0530
5. Girish Mehra
R/o A3, Niti Bagh, New Delhi.
6. Nidhi Mehra
R/o 82/12, Gautam Nagar,
New Delhi.
........Respondent
Instituted on : 14.12.2020
Reserved on : 22.03.2023
Pronounced on : 06.04.2023
JUDGMENT
1. Vide instant petition, revisionist takes exception to the order dated 23.09.2020, passed by Ld. Chief Metropolitan Magistrate (CMM), South East District, New Delhi in case bearing CT case No. 615188/16 titled as 'State vs. Adarsh Kumar & Ors.', whereby Ld. CMM discharged the respondents/accused.
2. Brief facts, as noted by Ld. CMM in the impugned order are not in dispute and same are being reproduced for the sake of convenience :-
"Briefly stated, the case of the prosecution is that the present case was registered on the complaint of complainant Jagdish wherein it has been alleged that a land measuring 14 Biswas bearing Khasra No. 935 situated in the revenue estate of village, Bahapur, Tehsil Kalkaji, Delhi, presently known as Pamposh Enclave was owned by his father Sh. Rati Ram, who expired on 29.09.1995. It has been further alleged that the Complainant was the owner of the said land being one of the legal heirs of Late Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 2 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:58:50 +0530 Rati Ram as it was relinquished on behalf of other legal heirs. It is further stated in the chargesheet that after the death of Sh. Rati Ram, accused no. 1 Aadarsh Kumar prepared a forged GPA dated 22.01.1994 to claim that he had purchased the land from father of the Complainant and on the basis of the forged GPA, he sold the land to Accused No. 2 Attar Singh through a GPA dated 3/8/1995, who further sold it Accused no. 3 Satish Mehra through GPA dated 23.07.1996. It is alleged that Accused no. 3 Satish Mehra on the basis of these bogus documents sold the said property to his brothers, accused persons no. 4 and No. 5 namely Harish Mehra and Girish Mehra and Sister Accused no. 6 Nidhi Mehra in a fraudulent manner by executed a forged sale deed dated 15.04.1997 before the Registrar at Bombay. It is also alleged that accused persons no. 4, 5 and 6 also get the said property mutated in their names with the help of revenue officials. It is stated that during investigation, the Complainant produced a photocopy of an agreement to sell dated 11.09.1993, type written in Hindi language, allegedly executed by Sh. Rati Ram in favour of Accused no. 1 Adarsh Kumar in respect of the land in question. The aforesaid agreement to sell had been signed by Rati Ram as seller and Accused Adarsh Kumar as purchaser and was witnessed by Baljit Singh and one Raj Kumar. As per the chargesheet, the perusal of this agreement to sell reflected that Late Sh. Rati Ram being the owner of the land in question had entered into an agreement to sell with Accused no. 1 Adarsh Kumar for a total consideration of Rs. 30 lakhs and had received Rs. 50,000/- as advance cum bayana and that the sale deed was to be executed on 11.02.1994.
As per the chargesheets, during investigation Accused no. 1 Adarsh Kumar disclosed that he became the lawful owner of the subject land by purchasing the same from its owner Late Sh. Rati Ram vide documents executed by him on 11.09.1993 and Accused no. 1 Adarsh Kumar produced a receipt dated 11.09.1993 for Rs. 50,000/- signed by Rati Ram as the sale document and a Special Power of Attorney executed by Rati Ram in favour of Accused no. 1 Adarsh Kumar. It is stated in the chargesheet that the SPA was not for a specific purpose and he was not empowered for sale of the property in question. It is further stated in the chargesheet that accused no. 1 Adarsh Kumar had mentioned that he sold the property to Accused no. 2 vide agreement to sell, registered GPA, affidavit and Receipt, all dated 03.08.1995 for a total consideration of Rs. 7.25 lakhs and Accused no. 2 Attar Singh had further sold the land to Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 3 of 12 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:59:01 +0530 Accused no. 3 Satish Mehra. As per chargesheet the complainant was examined during investigation and in his statement recorded under Section 161 Cr.P.C, he also stated that the land around the said land in question was acquired by DDA but the land belonging to his father was left out from the acquisition. The complainant was also stated, as per the chargesheet that his father had entered into an agreement to sell dated 11.09.1993 with accused no. 1 Adarsh Kumar and the deal was done for a total consideration of Rs. 30 lakhs out of which Rs. 50,000/- were received as the advance token money. As per the chargesheet, the aforesaid token money was to be executed on 11.02.1994 and that after the balance payment of Rs. 29.50 lakhs was to be made by accused no. 2 Adarsh Kumar but Accused no. 1 Adarsh Kumar did not pay the balance payment and the deal was not completed and the agreement to sell accordingly got lapsed. As per the chargesheet, it is stated further that the complainant expired on 19.09.1995 and the legal heirs of his father Late Sh. Rati Ram relinquished their right in the said land in his favour vide Relinquishment Deed dated 23.04.1998. It is further stated in the chargesheet, that on checking the record in the Tehsildar office, the Complainant found that the land was sold by Accused No. 1 Adarsh Kumar representing to be the alleged owner of the land in question by having purchased from the father of Complainant vide GPA dated 22.01.1994 and it is further alleged that the GPA dated 22.01.1994 was never executed by the father of the Complainant and was a forged document. Further as per the chargesheet, the Complainant conceded that the receipt for Rs. 50,000/- and the SPA dated 11.09.1993 in favour of Accused No.1 Adarsh Kumar were executed by the father of Complainant but that did not transfer the right for taking over the land in question and did not confer any right to Accused No. 1 Adarsh Kumar to sell the land in question. It is also stated since the land was not demarcated in the lifetime of the father of Complainant and hence, the father of Complainant was not in a position to hand over the actual physical possession to Accused No. 1 Adarsh Kumar in 1993. Further, in the chargesheet, it is alleged that the Complainant identified the signatures of his father, Late Sh. Rati Ram on the receipt, SPA and Agreement to Sell all dated 11.09.1993. It is further submitted in the chargesheet that during investigation, it was established that the land in question was not demarcated in the life time of Sh. Rati Ram and it was revealed that the land was mutated in favour of accused persons Nidhi Mehra, Girish Verma and Harish Mehra vide Mutation Order dated 06.05.1997. Further, it is stated in the charegesheet that the Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 4 of 12 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:59:14 +0530 documents pertaining to mutation file was not made available by the concerned Tehsildar citing reasons that the same was not readily available.
It is also mentioned in the chargesheet, that in the GPA and the Agreement to Sell, Accused no. 1 Adarsh Kumar represented himself to be the absolute owner and in possession of the land in question, however, it was no where mentioned that how he became the owner which is usually mentioned in the sale document to show the previous chain of transaction of ownership. Further, the original Receipt and SPA which was handed over to Accused No. 4 to 6, were taken into possession during investigation and it was seen that the same was witnessed by Baljit (brother of Complainant), Raj Kumar and Prem Singh Adhana. It is further stated in the chargesheet that Baljeet Singh stated during investigation in his statement u/s 161 Cr.P.C. that his father, Rati Ram had entered into deal for the land in question with Accused no. 1 Adarsh Kumar in 1993 and had received Rs. 50,000/- as token but the deal could not completed due to death of his father. As per chargesheet, Baljit also identified the signatures of his father Rati Ram on the Reciept, SPA and Agreement to Sell dated 11.09.1993 and also admitted to signing the same as a witness. It is also stated in the chargesheet that the other witness, Sh. Prem Singh Adhana stated that he knew both Rati Ram and Adarsh Kumar and in his presence, they had signed the Receipt and Agreement to Sell both of which were dated 11.09.1993. The chargesheet further alleges that during investigation, it was revealed that accused Attar Singh had sold the land in question to accused Satish Mehra vide GPA dated 23.07.1995 with Sub-Registrar, Mehrauli, Delhi and accused Attar Singh had also executed other documents viz Agreement to Sell, possession letter, undertaking, Affidavit and Receipt for consideration amount in favour of accused persons Girish Mehra, Harish Mehra and Ms. Nidhi Mehra and a Will in favour of accused Harish Mehra. Further, it is alleged that in the Agreement to Sell executed between Attar Singh and Girish Mehra and others, it is mentioned that the land was purchased by Adarsh Kumar from Rati Ram vide Agreement to Sell, purchase dated 22.01.1994. The complainant has alleged that the impugned GPA is forged. Further, as per the chargesheet the land in question was sold by Accused Satish Mehra to his brother Girish Mehra and Harish Mehra and Sister Nidhi Mehra, each have one third share vide Sale Deed dated 15.04.1997 registered with Sub-Registrar, Bombay and even in these Sale Deeds, while describing the chain of previous transactions, it has been mentioned that accused Adarsh Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 5 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:59:22 +0530 Kumar was the duly constituted attorney of Rati Ram vide GPA dated 22.01.1994 and that when accused Attar Singh in the documents executed in favour of accused Satish Mehra he introduced one GPA dated 22.01.1994 purportedly executed by Rati Ram which was non existent. Further, it is alleged that, a false avernment was made in the Sale documents executed between accused persons Attar Singh and Satish Mehra and accused Satish Mehra further sold the property to his siblings on the basis of the impugned GPA, which was reiterated in the Sale Deed as that the same was of transfer of ownership from Rati Ram to Accused Adarsh Kumar. The chargesheet was filed against the accused persons u/s 420/423/120-B IPC."
3. Ld. Trial Court, vide impugned order, discharged the respondents/accused in terms of provisions of section 239 CrPC with following pertinent observations:-
"In the present case, it is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first accused pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds / GPA in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, deceived the complainant in any manner. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under 420 IPC committed in the present case by any of the accused persons qua the complainant.
Therefore, in view of the aforesaid facts, it is seen through that it has been alleged that accused no. 1 Adarsh Kumar who was not the owner of the property in question as agreement to sale between him and the father of complainant Late Sh. Rati Ram being the owner of the property in question could not be completed, accused no. 1 Adarsh Kumar went ahead in dealing with the property of the father of the complainant Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 6 of 12 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:59:31 +0530 and executed the impugned GPA dated 22.01.1994, in favour of accused no. 2 Attar Singh, who further sold the same to accused no. 3 Satish Mehra. Also, it has been alleged that accused no. 4, 5 and 6 were subsequent purchasers from accused no. 3 and each of them had purchased one third share of each of the property in question on the basis of GPA executed by accused no. 3 in their favour. Perse on the basis of aforesaid facts and circumstances, it is seen that there is no inducement by any of the accused persons to the complainant in the present case regarding the land in question or for delivery of property to them and there was no delivery of the property in question by the complainant to any of the accused persons on the basis of any fraudulent or dishonest intention. Therefore, in the present case, on the basis of entire facts and circumstances and on the basis of judgment of the Hon'ble Apex court discussed above, it cannot be said that any of the accused person deceived or cheated the complainant in the present case pursuant to a criminal conspiracy.
With respect to the charge allegations u/s 423 IPC it is seen that apart from mere by mentioning that they were false statements in the GPAs executed between the accused persons with respect to the consideration amount of the property in question, prima facie no evidence has been produced to even corroborate the same in the chargesheet. Apart from the disclosure statements of the accused persons, no legally admissible evidence has been produced on record to even prima facie suggest as to what was the actual value of the property in question during the relevant period and what was the discrepancy in the value of the property i.e. consideration amount paid by any of the accused person. Further, as per the record it is seen that the complainant in the present case is not a party to any of the GPA's / documents executed between the accused persons to transfer the property in question amongst themselves. Also, merely because the mode of payment has not been mentioned in the charge sheet or in the documents pertaining to transfer of property annexed alongwith the chargesheet it cannot be said that the accused persons were in conspiracy with each other and had knowingly mentioned false statements relating to the consideration amount in the documents pertaining to transfer of property in question. Nothing has been produced to show the actual value of the land in question or there is no equally admissible evidence on record to suggest that what were the false statements pertaining to the consideration amount so made by the accused persons in the documents qua the transaction of property Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 7 of 12 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:59:38 +0530 pursuant to the criminal conspiracy in order to proceed under Section 423 IPC against them.
Accordingly, in view of the aforesaid facts and suggestions, all the accused persons namely Adarsh Kumar, Attar Singh, Satish Mehra, Girish Mehra, Harish Mehra and Nidhi Mehra are hereby discharged in the present case of all offences alleged against them."
4. The state is aggrieved with the said order of Ld. Trial Court and has assailed the same on various grounds which can be summarized as under :-
(i) That the impugned order is based upon conjectures and surmises;
(ii) That Ld. Trial Court failed to appreciate the fact that the respondents/accused fraudulently executed the documetns i.e. Agreement to Cell, SPA and payment of receipt of Rs. 50,000/- etc.;
(iii) That Ld. Trial Court has overlooked the evidences at the stage of consideration of charge and had not taken into consideration the law laid down by Hon'ble Apex Court and Hon'ble High Court;
(iv) That the impugned order is bad in the eyes of law and same is liable to be set-aside;
5. Ld. Addl. PP for the state argued on the line of grounds as taken in the instant appeal.
6. Per contra, Ld. Counsels for respondents/accused vehemently argued that there is no infirmity in the impugned order and Ld. CMM, for the right reasons, discharged the respondents/accused. They further argued that the impugned order was passed after considering all the facts and Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 8 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:59:46 +0530 circumstances of the present case. They argued that Ld. CMM rightly observed that there is no evidence against the respondents/accused. It was submitted that the present revision petition is misconceived and therefore same is liable to be dismissed.
7. Heard. Record perused.
8. In the matter of Taron Mohan v. State & Anr 2021 SCC OnLine Del 312 Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
9. Further, Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 9 of 12 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 11:59:56 +0530 Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
10. This view has been reiterated by Hon'ble Apex Court in New India Assurance Co. Ltd. Vs. Krishna Kumar Pandey, 2019 SCC OnLine SC 1786, in the following words :
"8. The scope of the revisional jurisdiction of the High Court (or Sessions Court) under Section 397 Cr.P.C, is limited to the extent of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. The revisional Court is entitled to look into the regularity of any proceeding before an inferior Court. As reiterated by this Court in a number of cases, the purpose of this revisionsal power is to set right a patent defect or an error of jurisdiction or law."
11. Similar are the observations of Hon'ble High Court in Rajender Singh Thakur Vs State & Anr, Crl Rev. P. No. 155/2022, decided on 22.03.2022 and in cross case Jaspreet Singh Vs Swaneet Kukreja and Swaneet Kukreja Vs Jasmeet Singh, Crl Rev. P No. 162/2021 and Crl Rev. P No. 194/2021, both decided on 28.02.2022.
12. Therefore, in view of the settled position of law, this court in Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 10 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 12:00:09 +0530 its revisional jurisdiction, is not expected to substitute its own view with that of Ld. Trial Court until and unless the order passed by Ld. Trial Court suffers from jurisdictional error or patent infirmity/illegality. In the instant case, as evident from record, Ld. CMM while narrating (in detail) the facts, passed a well reasoned detailed order, thereby discharging the respondents/accused and therefore this court cannot and rather ought not substitute its own view with that of Ld. Trial Court (while exercising its revisional jurisdiction) and thereby arriving at a different conclusion. In my view, Ld. CMM has provided clear and cogent reasons for discharging the respondents/accused and it is clearly not for this Court to second guess the decision.
13. Suffice it would be to say that the case of prosecution at best is that respondent Adarsh Kumar despite not being the owner of property in question sold the same to respondent Atar Singh who further sold it to Satish Mehra and so on and so forth. However, it is not the case of prosecution that by the alleged act of any of the respondents, the complainant was deceived in any manner by them. It is clear that no inducement whatsoever was made to the complainant/revisionist by the respondents. The essential ingredients of cheating as defined u/s 415 IPC are missing in the instant case and therefore Ld. Trial Court was fully justified in discharging the accused/ respondents for offence u/s 420 IPC.
14. Similarly, it was rightly observed by Ld. Trial Court that no evidence in support of allegations u/s 423 IPC exists in the instant case and bare assertions that the GPAs contained false statement would not suffice Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 11 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.06 12:00:18 +0530 for the purpose of charging respondents for offence u/s 423 IPC.
15. With these observations, it is held that there is no infirmity/ patent illegality or jurisdictional error in the impugned order. Accordingly, the revision petition stands dismissed.
16. TCR be sent back to the Ld. Trial court alongwith copy of the judgment. Revision file be consigned to Record Room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL Announced in the open AGRAWAL Date: 2023.04.06 12:00:27 +0530 Court on 6th April, 2023 (ANUJ AGRAWAL) Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 314/2020 State vs. Adarsh Kumar & Ors. Page No. 12 of 12