Delhi District Court
Mr. Pravesh Thakur vs The State on 8 February, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 267/2020
CNR No.: DLCT01-008501-2020
Mr. Pravesh Thakur
S/o Mr. Hardev Thakur
R/o House No. A-162, Gali No. 4,
Keshav Nagar, Ibrahimpur,
New Delhi-110036.
..... Petitioner
VERSUS
1. The State
(Government of N.C.T. of Delhi)
New Secretariat, I.P. Estate, New Delhi.
(through its Chief Secretary)
..... Respondent No. 1
2. Mr. Dalip Kumar
S/o Mr. Sarjug Singh
..... Accused No. 1
3. Ms. Soni Devi
W/o Mr. Dalip Kumar
Both Residents of :
House No. 222, Ajit Vihar,
Gali No. 2, Burari, Delhi - 110084.
..... Accused No. 2
4. Ms. Radhika Devi
W/o Mr. Ram Janam
R/o H. No. D-205, Gali No. 7,
Sunil Colony, Salempur Majra,
Burari, Delhi - 110084.
..... Accused No. 3
Date of Institution : 25.11.2020
Date of Arguments : 01.12.2021
Date of Judgement : 08.02.2022
JUDGMENT
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1. The criminal revision petition under Section 397 read with Section 401 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 23.10.2020 (In short 'the impugned order') arising from complaint case No. 622/2020 titled as 'Pravesh Thakur Vs. Dalip Kumar & Ors.' whereby Ld. MM-09, (Central) Tis Hazari Courts, Delhi (In short 'the trial Court') dismissed an application under Section 156 (3) Cr. P.C. filed by the petitioner seeking registration of FIR under Section 464/465/467/471/420 506/120B read with Section 34 of The Indian Penal Code, 1860 (In short 'IPC') against the accused persons.
2. The petitioner filed a complaint case under Section 200 Cr. P.C. alongwith an application under Section 156 (3) Cr. P.C. against the accused persons on the averments that the accused No. 1 had approched him for advancing a loan of Rs. 4,00,000/- stating that he was facing financial constraints.
3. On 18.12.2017, the petitoner advanced a loan of Rs. 4,00,000/- to the accused No. 1. At the time of loan transaction, the accused No. 1 mortgaged a plot of land admeasuring 30 sq. yards (9 ft. x 30 ft.) forming part of Khasra No. 51/5 situated in revenue estate of Village Salempur Majra in abadi known as Shiva Garden, Burari Extension, New Delhi and at present, Property No. D-205, Gali No. 7, Sunil Colony, Salempur Majra, Burari, Delhi- 110084 (Hereinafter referred to as 'the said property') with the petitioner and handed him over title documents of the said property.
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4. According to the petitioner, the accused No. 1 had assured him that he would not transfer, alienate or dispose the said property till payment of loan amount of Rs. 4,00,000/- to him. However, the accused No. 1 executed a Power of Attorney in favour of the accused No. 2 in respect of the said property in order to authorize her to sell the said property. Pursuant thereto, the accused No. 2 sold the said property to the accused No. 3. The accused persons forged title documents of the said property and the accused No. 2 transferred the said property to the accused No. 3 on the basis of forged title documents. The accused No. 3 had knowledge that the accused No. 1 had mortgaged the said property with the petitioner and taken a loan of Rs. 4,00,000/- against the said property and deposited title documents of the said property with the petitioner.
5. According to the petitioner, when he acquired knowledge of fraud committed by the accused persons, he contacted the accused No. 1 and confronted him. However, the accused No. 1 failed to give any satisfactory reply to his query. The petitioner also contacted the accused No. 3 and informed her that original title documents of the said property are in his possession. The petitioner made a complaint to local police on 11.02.2019. Local police did not take any action on his complaint. The petitioner made another complaint to local police and senior officers of police on 26.08.2019. The petitioner sent complaints to local police and senior officers on 03.10.2019.
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6. According to the petitioner, he also sent a notice to the accused No. 1 and accused No. 3 on 03.10.2019. The petitioner sent complaint to DCP (North District) on 19.10.2019. As local police did not register FIR on complaints made by the petitioner, he filed complaint case alongwith an application under Section 156 (3) Cr. P.C. seeking registration of FIR against the accused persons.
7. The trial Court called action taken report (ATR) wherein SI Ashish Sharma, PS Burari, Delhi stated as under :
"As per the inquiry done, it has come to light that as per the agreement dated 18.12.17 the complainant has lent a friendly loan of Rs. 4 lacs to the alleged Dalip Kumar and as part of security kept his original GPA dated 24.09.2007 with him. In the said agreement dated 18.12.17 executed between the complainant and alleged it is mentioned at point No. 6 that if the second party fails to repay the principle amount, the first party is authorized to get the decree of attachment from the law of Court in respect of above said mortgaged property to recover his principle amount and its interest. In the said agreement it is nowhere mentioned that the alleged would not transfer, alienate or dispose off the said property till such time, he make the payment of the said loan amount of Rs. 4 lacs to the complainant as stated by the complainant in his complaint. The matter seems to be monetary dispute and breach of agreement i.e. civil in nature and warrants no police action."
8. The trial Court, vide order dated 23.10.2020, after hearing Ld. Counsel for the petitioner and considering action taken report (ATR), dismissed the application under Section 156 (3) Cr. P.C. Crl. Revision No. 267/2020 Pravesh Thakur Vs. State & Ors. Page No. 4 of 10
9. The relevant part of the said order is as under:
"It is the case of the complainant that accused No. 1, after depositing title deeds with the complainant, had sold the property. The complainant had alleged that the accused No. 1 had executed a mortgage in his favour vide agreement dated 18.12.2017. It is nowhere mentioned in the agreement that accused No. 1 cannot sell the property as the mortgage on the property would still be subsisting. It is not the case of the complainant that accused No. 1 had sold the property to him. If the accused No. 1 has not re-paid the loan, the remedy was to initiate civil proceedings for recovery of loan. Prima facie, it is difficul to infer that the accused No. 1 has intention to defraud the complainant from the inception.
This Court of the opinion that the complainant must lead pre-summoning evidence to substantiate the allegations made in the complaint.
Accordingly, the application under Section 156 (3) Cr. P.C. is dismissed.
Cognizance is taken under Section 200 Cr. P.C. Put up for PSE on 02.03.2021."
10. Feeling agreived and dissatisfied with impugned order, the petitioner preferred the criminal revision petition.
11. I have heard Mr. Siddharth Raj, Ld. Counsel for the petitioner, Mr. Amit Dabas, Ld. Counsel for the respondent No. 1 / the State and Mr. Avnish Sharma, Ld. Counsel for the accused No. 3.
12. The accused No. 2 and 3 entered appearance, through Mr. B.N. Tiwari, Advocate on 15.12.2020. However, there is no appearance on their behalf since 09.04.2021.
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13. Ld. Counsel for the petitioner contended that the trial Court did not consider para No. 6 of the loan agreement providing that if the accused No. 1 does not repay the principle amount, the petitioner will be entitled to recover loan amount from sale of the said property and that if the accused No. 1 does not pay the principle amount within stipulated period, the petitioner will become the owner of the said property. He contended that the accused No. 1 failed to make payment of loan amount despite service of demand notice and therefore, the petitioner became owner of the said property. He contended that the accused No. 1 fraudulently executed a General Power of Attorney in favour of the accused No. 2 who sold the said property to the accused No. 3. He contended that the accused persons committed an offence punishable under Section 420 IPC. He contended that the accused persons forged documents for sale of the said property in favour of the accused No. 3. He contended that the trial Court was required to examine whether the averments made in the application seeking registration of FIR disclosed a cognizable offence and not the merits of the case. He contended that there is material on record that the accused No. 1 had taken a loan of Rs. 4,00,000/- from the petitioner and mortgaged the said property with him and deposited original title documents with him.
14. Ld. Counsel for the petitioner contended that the accused No. 1, in a pre-planned manner, executed a General Power of Attorney in respect of the said property mortgaged Crl. Revision No. 267/2020 Pravesh Thakur Vs. State & Ors. Page No. 6 of 10 with the petitioner in favour of the accused No.2 in order to autorize her to sell the said property to the accused No. 3. He contended that the accused persons committed cognizable offences punishable under Sections 420/467/471/120B IPC and local police should be directed to register FIR and investigate the case.
15. Ld. Addl. PP for the State submitted that the appellant had advanced a loan of Rs. 4,00,000/- to the accused No. 1 vide loan agreement dated 18.12.2017. He submitted that loan amount was repayable on or before 15.06.2018 which was extended to 14.12.2018. He submitted that this is a case of recovery of loan amount. He referred action taken report (ATR) to contend that dispute between the parties is civil in nature and does not warrant any police action.
16. Ld. Counsel for the accused No. 3 submitted that the accused No. 3 is a bonafide purchaser of the said property. He contended that accused No. 3 was neither a party nor aware of the loan agreement dated 18.12.2017. He contended that the accused No. 3 had no knowledge about any transaction between the petitioner and the accused No. 1. He contended that the impugned order does not suffer from any legal infirmity.
17. The case of the complainant is that he had advanced a loan of Rs. 4,00,000/- to the accused No. 1 against mortgage of the said property by deposit of original title deeds vide loan agreement dated 18.12.2017.
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18. It is further case of the complainant that the accused No. 1 executed a General Power of Attorney in favour of his wife / the accused No. 2 in respect of the said property and on the basis of said General Power of Attorney, the accused No. 2 sold the said property to the accused No. 3. It is further case of the complainant that the accused No. 1 failed to make payment of the loan amount and sold the mortgaged property to the accused No. 3, through accused No. 2, on the basis of a General Power of Attorney. According to status report filed by the police, the accused No. 1 had already transferred the said property in favour of the accused No. 2 on 01.12.2009 who sold the said property to the accused No. 3 on 06.12.2017 vide General Power of Attorney.
19. This Court is not in agreement with the observation of the trial Court that the petitioner has civil remedy to initiate action for recovery of loan amount. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The status report shows that the said property had already been sold to the accused No. 3 prior to loan agreement. The accused No. 1 did not disclose this fact to the petitioner at the time of loan agreement. The accused No. 1 mortgaged the said property for taking loan from the petitioner which was already sold to the accused No. 3 on 06.12.2017 before loan agreement on 18.12.2017. The complaint and action taken report (ATR) disclosed commission of cognizable offence under Section 420 read with Section 120B IPC.
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20. However, the case of the complainant is based on a loan agreement dated 18.12.2017. The petitioner has evidence with him to substantiate his case. In any case, the evidence is within reach of the petitioner. The facts and circumstances of the case do not disclose that the petitioner cannot produce requisite evidence without intervention of the police. There is no necessity of police investigation. Therefore, this Court does not find that any direction to the police for registration of the case and investigation of the case is required. The application under Section 156 (3) Cr. P.C. was rightly dismissed.
21. Accordingly, the criminal revision petition filed by the petitioner is dismissed. Trial Court record be sent back alongwith a copy of the present order. Ld. Counsel for the parties be informed about the order telephonically. Order be uploaded on website. Revision file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2022.02.08 16:37:14 +0530 Announced in the open Court SANJAY SHARMA-II on this 08th February, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Revision No. 267/2020 Pravesh Thakur Vs. State & Ors. Page No. 9 of 10 Pravesh Thakur Vs. State & Ors.
CNR No.DLCT01-008501-2020 Crl. Revision No. 267/2020 08.02.2022 Vide Office Order No. 1/RG/DHC/2022 Dated 12.01.2022 on the subject 'System of Hearing of Cases in Delhi High Court and Delhi District Courts w.e.f. 17.01.2022 to 11.02.2022', Hon'ble High Court of Delhi has ordered that all the Judicial Officers of the District Courts in Delhi shall continue to take up all matters of their respective Courts, through Virtual Mode only, till 11.02.2022.
Proceedings convened through Video Conferencing.
Present : Mr. Siddharth Raj, Advocate for the petitioner.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent No. 1.
Mr. Avnish Sharma, Advocate for the respondent No. 4.
Vide separate order, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room. SANJAY Digitally signed by SANJAY SHARMA SHARMA Date: 2022.02.08 16:37:27 +0530 Sanjay Sharma-II ASJ-03, Central District, Tis Hazari Courts, Delhi 08.02.2022 Crl. Revision No. 267/2020 Pravesh Thakur Vs. State & Ors. Page No. 10 of 10