Delhi District Court
Sh.Prem Chand vs M/S. Cool All Beverages Pvt. Ltd on 24 April, 2013
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IN THE COURT OF SH. NAROTTAM KAUSHAL, SPECIAL JUDGE
(PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Crl. Complaint Case No.13/2012
Case ID No. 02401R0524302012
Date of Institution: 05.11.2012
Date of completion of arguments: 17.04.2013
Date of Order: 25.04.2013
In the matter of :
Sh.Prem Chand
S/o Shri Suraj Bhan
R/o 1800, Gulabi Bagh, Delhi .......Complainant
VERSUS
1 M/s. Cool All Beverages Pvt. Ltd.
Plot No.242 (Ground Floor), Industrial Area,
PatparGanj, Delhi
2 Sh. Farhad Suri (All Directors of M/s. Cool
3 Sh.P.S.Sareen All Beverages Pvt. Ltd., Plot No.242
4 Sh.Dhiren Naulakha Industrial Area,Patparganj, Delhi)
5 K.S.Sharma
6 SDM, Vivek Vihar,
Geeta Colony, Delhi
7 Sh.D.K.Gupta, Assistant Engineer (BLDG),
Shahadara, South Zone, MCD, Karkardooma, Delhi
8 Junior Engineer, (Building), Shahdara South Zone,
MCD, Karkardooma, Delhi.
9 Sh.S.P.Rath, Senior Project Managher,
DSIIDC Limited, 419FIE Udyog Sadan Building,
Patparganj industrial Area, Delhi92
..........Accused persons
Appearance: Sh.Suraj Bhan, counsel for the complainant with
complainant in person
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JUDGEMENT
1.1 Present complaint seeks enquiry, investigation and registration of the case against respondents No. 1 to 9 for offence punishable u/s 13 (i) (d) PC Act r/w section 420/120B IPC. Complaint is also accompanied by an application u/sec.156 (3) Cr.P.C. with a prayer to seek investigation after registration of case in the PS Anti Corruption Branch. 1.2 Allegations as set out in the complaint entail a story of relations between landlord and tenant, getting sour. Complainant Prem Chand rented out his premises to respondent nos. 1 to 5 @ Rs.20,000/ per month, vide agreement dated 25.05.2003 for a period of 5 years, expiring on 31.05.2008. The rent agreement was registered. The premises was let out for industrial and commercial activities. Advance rent of Rs.1,00,000/ was paid by the tenants, presumably for a period of 5 months. However, the relations were strained within a short time and tenancy was terminated by notices dated 27.10.2004 and 22.12.2004. Respondent nos.1 to 5 in the meantime sought permission from MCD and Delhi Pollution Control Committee for setting up an Ice Cube Manufacturing Unit. License was granted by MCD on 10.05.2005. Similarly, electricity connection was allowed by BYPL. The respondents nos.1 to 5 submitted forged NOC/ affidavit and Rent receipts to the concerned authorities. Suit for eviction and possession, filed by the landlord, stands decreed; though there is a stay operating thereon.
1.3 It is the case of the complainant that license by MCD and connection by BYPL were procured by respondents nos.1 to 5 using forged Page 2 of page 9 3 documents, indicating 'no objection' from the landlord. The tenancy having already been terminated. Complainant/ landlord had expressed his objection to MCD as well as BYPL for grant of license/ connection. An FIR for offences punishable u/sec.420, 461, 463, 468, 471, r/w/sec.120B of IPC bearing no.371/05 PSAnand Vihar was registered against respondents nos.1 to 5, having submitted forged documents to MCD/ BYPL. Respondent No 2 was Mayor of Delhi at the relevant time obtained a factory licence dated 10.02.2005 u/s 416/417 of DMC Act, subject to NOC of Health Department and Chief Fire Officer. The said licence could not have been issued as the tenancy stood terminated and respondents No. 1 to 5 had relied upon false affidavit. Deputy Health Officer, Shahdra vide order dated 17.01.2007 had refused grant of licence as there was no such provision in the DMC Act and vide letter dated 28.07.2010 had communicated to Factory Licence Department to take action against the ice cubes manufacturing unit. It is, therefore, submitted that licence was illegally issued and respondent No2. being a public servant had abused his position and had obtained pecuniary advantage for himself and other tenants. Further, respondent nos.1 to 5 have raised unauthorized construction and built a mezzanine floor. Para7 of the rent agreement has been violated. Despite service of legal notice, they have not removed the unauthorized construction. Complaints were made to MCD, Shahdra Zone for water leakage and unauthorized constructions but no action has been taken thereon by respondent no.7. In a suit bearing no.133/11, pending in the court of Sh.Jagdish Kumar, Ld. Civil Judge, Karkardooma, MCD has admitted existence of unauthorised constructions but have not taken any Page 3 of page 9 4 step to demolish the same. Thus, respondents nos.7 & 8 have misconducted by abusing their position as public servants by adopting corrupt and illegal means. Complaint was also made to DSIIDC Ltd., with respect to unauthorized construction. However, respondent no.9 submitted a false report that there was no unauthorized construction. He also misconducted by abusing his position as public servant by adopting corrupt and illegal means. A complaint filed against respondent no.6, SDM, Vivek Vihar, Geeta Colony, Delhi u/sec.133 Cr.P.C., with respect to the unauthorized construction. He also did not take any action and misconducted by abusing his position as public servant by adopting corrupt and illegal means. Respondents No. 6 to 9 being public servants had abused their position. Therefore, offence u/s 13 (2) of the PC Act along with various provisions punishable under IPC have been committed by them.
2 A status report was sought from the SHO, PSACB. It was reported that affidavit/ NOC and rent receipts disputed by the complainant were sent to Examiner of Questioned Documents. As per the report submitted by FSL, signatures of present complainant on affidavit/ NOC dated 07.02.2004 and the rent receipt dated 10.06.2004 matched with his admitted signatures. It is, further, reported that MCD had not relied upon NOC for granting license to the respondents nos.1 to 5, reliance was placed by MCD on stipulations in rent agreement dated 25.05.2003. The disputed NOC was, thus, not used by respondents nos.1 to 5 in obtaining the license for MCD or the electricity connection. The enquiry revealed that clause7 of the rent agreement Page 4 of page 9 5 restrained the tenant from making any addition or alternation in the premises without permission of the landlord. However, the tenants had installed cooling towers and water tanks as per their convenience. It was also reported that no evidence had come up on file, as regards allegations of corruption. 3.1 Sh. Suraj Bhan, ld. Counsel for the complainant has argued that the MCD granted Factory License to the respondents nos.1 to 5 despite termination of tenancy by complainant. The documents furnished by respondents no. 1 to 5 to MCD & BYPL were forged and fabricated. Suit for possession filed by complainant/ landlord was decreed. An appeal was filed by tenants, wherein, decree of possession has been stayed. Despite having noticed construction of mezzanine floor, MCD has not taken any steps to demolish the same. DSIIDC has relied upon false report submitted by respondent no.9. Similarly, SDM has also not exercised the jurisdiction vested in him and not directed demolition of unauthorised construction.
3.2 It was further submitted, at bar, by Sh.Suraj Bhan - Adv. that the matter is his personal dispute. The complainant is his son and an employee of Delhi District Courts. Counsel is a retired judicial officer, who is being victimised by the tenants in collusion with various public authorities. 4 I have heard the ld. Counsel and perused the complaint, documents furnished and the status report. There is no dispute with the preposition of law that on the basis of information disclosed, if a cognizable Page 5 of page 9 6 offence is made out FIR ought to be registered. However, before issuance of direction for registration of FIR or for conducting investigation u/sec.156 (3) Cr.P.C.; it is incumbent upon the court to look into the allegations and find out if the allegations constitute any cognizable offence to have been committed. A Divison Bench of the Karnantaka High court, in the decision reported as 1999 Cri LJ 3909 Guruduth Prabhu and Ors. Vs. Krishna Bhat and Ors. observed as under: "If every complaint filed u/sec.200 Cr.P.C. is referred to the Police u/sec.156 (3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complainants, in order to harass the alleged accused named by them in their complaints, making bald allegations just to see that the alleged accused are harassed by the police, who have no other go except to investigate as ordered by the Magistrate. Therefore, it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police."
Relying upon the aforesaid judgment, Honbe High Court of Delhi in State Vs. Mohd. Iqbal Ghazi reported as (2008) 154 DLT 481 held as under: "It is apparent that the principle that every information relateable to the commission of a cognizable offence must lead to the registration of a FIR has to be understood in its correct perspective, being that, if the information is prima facie credible; is definite and has a substance, the FIR must be registered. But where the information is vague and prima facie lacks credibility, an FIR need not be registered and some preliminary inquiry would be permissible to find out whether the information sought to be lodged has any substance therein or not."
Page 6 of page 9 7 5.1 Directing investigation or lodging of FIR against a public servant for offences under the PC Act has serious implications. It may adversely impact his career, reputation, recognition, selfesteem and social life. The allegations might be preposterous, absolutely false or half truths. The motive of vendata, in making the allegations, can also not be ruled out. Thus, it becomes imperative to evaluate the allegations.
5.2 In the present case, apparently there is breach of faith between the landlord and tenant. They are pitched against each other in multifarious litigations. A suit for permanent injunction has been filed by the tenants. Suit for possession had been filed by the landlord, which was decreed. Appeal is now pending before the Hon'ble High Court of Delhi. Landlord also lodged FIR bearing nos.371/05, PSAnand Vihar, alleging cheating and forgery against the tenants; which FIR was investigated and sought to be closed. The issue raised in this case but not addressed in the complaint is; Whether the alleged unauthorised construction is unauthorized viz a viz, the rent agreement or viz a viz the DMC Act or viz a viz the DSIIDC norms? Respondents no.6 to 9 would be obliged to take any action only if the construction is in violation of MCD Act or the DSIIDC norms. Construction, which is unauthorized viz a viz the rent agreement would not call for any action by respondents nos.6 to 9. There is no averment in the complaint that site plan sanctioned by the MCD or DSIIDC was compared with the construction in existence or any of those sanctioned site plans were violated. In such circumstances, calling upon respondents nos.6 to 9 to take action of demolition, may amount to misuse of Page 7 of page 9 8 jurisdiction by the said officials. Therefore, in my opinion colouring the inaction by respondent no.6 to 9 with the paint of corruption would be unjustified. There is no material on record to indicate that respondents nos.6 to 9 were obliged/ duty bound to demolish any construction. If all cases, which are dealt by a public servant against the interest of a party are alleged by such party to be coloured with misconduct, it will be impossible for a public servant to discharge his/ her duties fearlessly. Making bald allegations of corrupt practice is extremely easy. In the absence of any detailed, explicit and unequivocal allegations of demand and acceptance of illegal gratification, I find absolutely no sufficient reasons to direct registration of FIR or investigations to be conducted.
5.3 It will not be out of place to mention here that present complaint is one of the 10 (ten) complaints filed by the complainant, before this court against officials of various institutions which have granted sanctions to complainant's tenants. All the complaints contain same allegations against the tenants and similar allegations of abuse of powers by the officials of respective institutions. This pattern suggests the hypothesis that complaints are vindicative towards the officials of institutions which have allowed the tenants to continue with trade in the tenanted premises. Without recording any finding on the termination of tenancy; this court shall, however, observe that rent agreement was entered for a period of 5 years and it permitted the premises to be used for industrial and commercial activities.
Page 8 of page 9 9 5.4 The application u/sec.156 (3) Cr. P.C. is, therefore, dismissed. 6 As regards, the complaint, this court can not take cognizance as the same is explicitly barred u/sec.19 of the PC Act. There is no averment in the complaint that sanction u/sec.19 of the PC Act from the competent authority has been sought or granted for prosecuting respondents no.6 to 9 under the PC Act. For ready reference, Section19 of the PC Act is reproduced herein below: "19.Previous sanction necessary for prosecution: (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13, and 15 alleged to have been committed by a public servant, except with the previous sanction....................................." 7 In view of absence of mandatory sanction for prosecuting respondents no.6 to 9 for offences punishable under the PC Act, the complaint is also dismissed. As regards the offences punishable under IPC, this court being a special court can not take cognizance. The application and the complaint are accordingly dismissed. File be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 25.04.2013. SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
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