Delhi District Court
Hari Gopal Sharma vs State on 12 March, 2024
IN THE COURT OF MS. GEETANJALI
ADDITIONAL SESSIONS JUDGE (FTC)-03: SOUTH EAST
DISTRICT, SAKET COURTS: DELHI
CR Rev. No. 537/2017
CNR No. DLSE01-008115-2017
Shri Hari Gopal Sharma
S/o Shri R.C. Sharma
R/o Flat no. 35, Mandakini Enclave,
Alaknanda, New Delhi - 110019 .........Revisionist
Versus
1. The State
NCT of Delhi
2. Shri B.S. Ojha
S/o Late Shri Basudev
R/o H.No. 143, Sector 11A,
Chandigarh - 160011
Also at:
D-131, Panchsheel Enclave
New Delhi - 110017 .........Respondents
Date of filing : 01.11.2017
Date of arguments : 06.03.2024
Date of judgment : 12.03.2024
JUDGMENT
1. The present revision under Section 397/398/399 Cr.PC filed by the revisionist/accused assails the order dated 04.09.2017 (hereinafter referred to Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 1 of 17 as "the impugned order") in FIR no.342/2013 PS C.R. Park passed by Ld. Metropolitan Magistrate-04, South East District, Saket Courts, New Delhi whereby charge under section 120-B/204/406 read with section 120-B and section 467 read with section 120-B IPC was framed against the revisionist/accused.
2. The impugned order has been challenged on the grounds that the Ld. Trial Court has committed grave illegality by framing charge against the petitioner since there is no material on record to substantiate the essential ingredients of section 204 IPC; that there is no whisper of allegation in the charge-sheet that the petitioner has secreted or destroyed or obliterated or rendered illegible document to attract section 204 IPC against him; that there is no iota of evidence in the entire chargesheet that the petitioner was in possession of any document at any point of time which he was supposed to produce as evidence in the Court; that the petitioner was never asked to produce any document nor was he ever summoned to produce such document as evidence hence charge u/s. 204 IPC is not applicable; that the impugned order is vague and without any details since there is no iota of evidence creating any charge u/s. 120-B/204 IPC; that the Ld. Trial Court Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 2 of 17 considered the MOU dated 07.05.2013 for framing charge u/s. 120-B/204 IPC however accused Ramesh and Bhavesh are neither author nor signatory of the said MOU; that on the one hand Ld. Trial Court held that the petitioner is liable alongwith accused Sushil Kumar Trivedi, Ms. Sanjana Vohra, Ramesh Kumar and Bhavesh Kumar and on the other hand has framed charge u/s. 448 IPC against accused Ramesh Kumar and Bhavesh Kumar ignoring the entire investigation and production of the various documents on the directions of the IO; that the Ld. Trial Court committed grave illegality by not appreciating the record produced by the petitioner before the investigating agency which was the part of the charge-sheet; that the Ld. Trial Court travelled beyond the scope and authority of law; that the Ld. Trial Court framed independent charge against the petitioner u/s. 406/120-B IPC however charge u/s. 120-B cannot be framed against an individual; that if on the one hand charge u/s. 448 IPC has been framed against accused Ramesh Kumar and Bhavesh Kumar for trespass, no charge can be framed against the petitioner for inducting them; that the Ld. Trial Court has failed to appreciate that the opinion of FSL has no value in the eyes of law first because the complainant has not denied his signature on the Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 3 of 17 impugned MOU and secondly no tests can be conducted on a photocopy of a document to establish the forgery; that even the FSL has reported that there is no discrepancy in the signature of complainant; that no charge can be framed u/s. 467 IPC against the petitioner on the basis of photocopy of the impugned MOU. In view of the same, it has been prayed that the impugned order be set aside.
3. Notice of the revision petition was issued to the respondent/State. Ld. Addl. PP for the State argued that the impugned order does not suffer from any illegality or infirmity and accused has been rightly charged. Thus, the present revision is liable to be dismissed.
4. The Trial Court record was summoned and perused. I have heard the counsels for revisionist, Ld. Addl.P.P. for the State/respondent and perused the record.
5. The present revision petition arises out of order on charge dated 04.09.2017 passed in FIR no.342/2013 PS C.R. Park which was registered on the complaint made by Shri B.S. Ojha against accused Hari Gopal Sharma, Ramesh Kumar, Bhavesh Kumar Mondal, Sushil Kumar Trivedi and Sanjana Vohra. The complainant is the owner of the property Flat no. 96, Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 4 of 17 Mandakini Enclave, Alaknanda, New Delhi (2nd - 3rd Floors Duplex flats) consisting of one drawing room, dining room, three bed rooms, kitchen and two bathrooms and one garage at the ground floor and an open terrace on the top floor. He let out the said flat excluding the garage to accused Hari Gopal i.e. petitioner herein vide various lease deeds for period of eleven months and lastly vide lease deed dated 01.06.2012. Vide legal notice dated 25.03.2013 the complainant terminated the said tenancy and called upon the petitioner to vacate the said premises and thereafter filed civil suit for recovery of possession and damages and mesne profits. On 14.12.2013 the petitioner filed written statement in the said suit wherein he filed photocopy of MOU dated 07.05.2013 alleged to have been executed by the complainant in his favour for sale and purchase of the above said flat; that the complainant never executed the alleged MOU wherein he agreed to sell the above said flat for a sale consideration of Rs.1,50,00,000/- to the petitioner out of which Rs.15,00,000/- was allegedly paid to him. It was alleged that the petitioner in collusion with his associates and witnesses manufactured the said forged and fabricated document which also wrongly mentioned that the complainant rented out the garage and living room at ground floor with Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 5 of 17 small bathroom to one Shri Ramesh Kumar at monthly rent of Rs.1800/- and rented out the servant quarter alongwith open terrace on the top floor to accused Bhavesh Kumar Mondal at the monthly rent of Rs.1200/-. After the knowledge of the said MOU complainant visited his flat and found lock of garage of his flat broken and one Ramesh Kumar alongwith his family members were illegally occupying the same. On the basis of said allegations charge-sheet was filed u/s. 406/467/204/120-B IPC. On finding a prima facie case, charge was framed against the revisionist vide order dated 04.09.2017. The order has been challenged in the revision on the various grounds alleging firstly , that there is no material on record to substantiate the essential ingredients of section 204 IPC. For the sake of convenience section 204 IPC is reproduced below:-
"Whoever secrets or destroys any document or electronic record which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such document or electronic record with the intention of preventing the same from being produced or used as evidence before such Court of public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description of term which may extend to two Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 6 of 17 year or with fine or with both."
5.1 The points requiring proof are:-
(i) That the accused secreted or destroyed or obliterated or rendered illegible the whole or any part of a document;
(ii) That the document was such as he may be lawfully compelled to produce as evidence in a Court of justice, or in any proceeding lawfully held before a public servant;
(iii) that in doing so his intention was to prevent the document from being produced or used as evidence or he did so after he had been lawfully summoned or required to produce the document to be used as evidence.
5.2 Reverting to the facts in hand the copy of the MOU dated 07.05.2013 was produced by the accused Hari Gopal alongwith written statement in the civil suit for recovery of possession and damages and mesne profits filed by the complainant. As per the said MOU the right was created in favour of accused Hari Gopal by the complainant Shri B.S. Ojha qua sale and purchase of the flat bearing no. 96, Mandakini Enclave, Alaknanda, New Delhi and the original of the said document was not produced by the accused Hari Gopal during the course of investigations. The fact regarding execution of the said MOU was disclosed by the petitioner in his written statement and it is on the basis of that MOU only did petitioner was claiming his right in the said flat but he failed to produce the original of the said MOU during the course of investigations. The accused Hari Gopal further failed to Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 7 of 17 produce any bank account to show that he paid sum of Rs.10,00,000/- to the complainant. In view of the same prima facie case u/s. 204 IPC is made against all accused persons.
6. The next ground of challenge is that there is no iota of evidence creating any charge u/s. 120-B IPC and the Ld. Trial Court considered the MOU dated 07.05.2013 for framing charge u/s. 120-B/204 IPC however accused Ramesh and Bhavesh are neither author nor signatory of the said MOU. Section 120B IPC provides punishment for criminal conspiracy which is defined in section 120-A IPC. The constituent elements of the offence of criminal conspiracy are:-
(1) An agreement between two or more persons;
(2) to do an illegal act or;
(3) to do a legal act by illegal means and;
(4) an overt act done in pursuance of the conspiracy.
6.1 The essence of criminal conspiracy is the unlawful combination and
ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy and that the object of the combination need not be accomplished, in order to constitute an indictable Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 8 of 17 offence. For an offence punishable u/s. 120-B IPC prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act, the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable but the moment two persons agreed to execute it for criminal object or for use of criminal means, it becomes punishable.
6.2 Reverting to the facts in hand, the story started from the point when the accused Hari Gopal disclosed in his written statement to the suit filed by the complainant that complainant entered into MOU dated 07.05.2013 with him with regard to the sale of the said flat including garage and terrace with servant quarter on the upper floor for a total consideration of Rs.1,50,00,000/- out of which he has paid sum of Rs.15,00,000/- to the complainant. The complainant has alleged in his complaint that he did not execute the said MOU and same is forged and fabricated document. The cursory reading of the said MOU reveals two things firstly that the Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 9 of 17 complainant vide said MOU has rented out portion being one garage/living room at the ground floor with a small room to Shri Ramesh Kumar for a monthly rent of Rs.1800/- and another portion being one servant quarter alongwith open terrace on the top floor to Shri Bhavesh Kumar for a monthly rent of Rs.1200/- and complainant has denied of letting out garage and one servant quarter alongwith open terrace of the said flat to accused Ramesh Kumar and Bhavesh Kumar. Secondly , vide the said MOU the complainant being the owner of the said flat agreed to sell the entire flat alongwith the portion under tenancy to the accused Hari Gopal for a total consideration of Rs.1,50,00,000/- out of which he has paid sum of Rs.15,00,000/- through different modes. The said MOU was witnessed by accused Shri Sushil Kumar Trivedi and Sanjana. The said allegation prima facie shows that petitioner alongwith other co-accused agreed to do an illegal act by unlawful means i.e. preparing said forged MOU for creating right in the said flat and accordingly charge u/s. 120-B IPC was rightly framed against the accused Hari Gopal Sharma, Ramesh Kumar, Bhavesh Kumar, Sushil Kumar Trivedi and Sanjana Vohra.
7. The framing of charge u/s. 448 IPC against accused Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 10 of 17 Ramesh Kumar and Bhavesh Kumar is the next ground of challenge in the present petition. Section 448 IPC provides punishment for house- trespass. It states that "whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both". 7.1 The points requiring proof are:-
(1) That the complainant had possession of the property in question.
(2) That such property was a building, tent or vessel used as a human dwelling or any dwelling used as a place for the custody of property.
(3) That the accused entered into such building or having lawfully entered, unlawfully remained there. (4) That he did so with intent to commit an offence or to intimidate, insult or annoy the person in possession.
8. There is specific mention in the MOU dated 07.05.2013 that accused Ramesh Kumar and Bhavesh Kumar were rented out one garage/living room at the ground floor with a small room and one servant quarter alongwith open terrace on the top floor allegedly by the complainant which has been denied by him. In that situation the possession of the accused Ramesh Kumar and Bhavesh Kumar Mondal in the said portion of the flat prima facie makes a case u/s. 448 IPC read with section 120-B IPC. Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 11 of 17 Regarding the plea that no case u/s. 448 IPC is made out against the accused persons since the accused persons furnished all the documents during investigation can be said to be defences of the accused which cannot be considered at the stage of charge. If the contention of the petitioner is accepted, there would be a mini trial at the stage of framing of charge and that would defeat the object of the Code. It is well settled that at the stage of framing of charge, the defence of the accused cannot be put forth. The acceptance of the contention of the Ld. Counsel for the revisionist would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence.
9. Coming to the charge u/s. 467 IPC, it speaks about forgery of valuable security, will, etc. For the sake of convenience section 467 IPC is reproduced below:-
"Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 12 of 17 acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
9.1 The points requiring proof are:
(1) That the document in question was a forgery.
(2) That the accused forged it.
(3) That the document is one of the kinds mentioned in the
section.
9.2 In the given facts and circumstances, the complainant has alleged
that the MOU dated 07.05.2013 is a false and fabricated document prepared by the accused persons. The admitted signature of the complainant on the lease deeds i.e. S-1 and A-1 to a-11 as well as the disputed ones i.e. Q-1 and Q-2 on the MOU dated 07.05.2013 were sent to FSL for analysis and the result of the laboratory analysis as per FSL report is that:
"(i) The signatures in the red enclosed portions marked Q1 and Q2 are not the original signatures but are the reproduction copies.
(ii) On interse comparison of the questioned signature in the red enclosed portion marked Q1 with admitted signature in the red enclosed portion marked A1 it is observed that both the signatures are superimposed over Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 13 of 17 each other which indicate that the questioned signature marked Q1 could have been produced from admitted signature A1.
(iii) On interse comparison of the questioned signature in the red enclosed portion marked Q2 with admitted signature in the red enclosed portion marked A3 it is observed that both the signatures are superimposed over each other which indicate that the questioned signature marked Q2 could have been produced from admitted signature A3.
The aforesaid observations indicate the fake nature of document marked 'X' i.e. Memorandum of Understanding dated 07.05.2013."
9.3 From the aforesaid opinion forgery is writ large in the document i.e. MOU dated 07.05.2013 on the basis of which petitioner has claimed his right in the said flat. In view of the same the charge u/s. 467 IPC read with section 120-B IPC has been rightly framed against the accused Hari Gopal, Sanjana Vohra and Sushil Kumar Trivedi.
10. The petitioner is further aggrieved by the framing of charge u/s. 406 read with section 120-B IPC against him. He has contended that the Ld. Trial Court framed independent charge against the petitioner u/s. Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 14 of 17 406/120-B IPC however charge u/s. 120-B cannot be framed against an individual; that if on the one hand charge u/s. 448 IPC has been framed against accused Ramesh Kumar and Bhavesh Kumar for trespass, no charge can be framed against the petitioner for inducting them. 10.1 The points requiring proof under Section 406 IPC are:-
(i) that the accused was entrusted with property or with dominion over it;
(ii) that he:-
(a) misappropriated it or
(b) converted it to his own use;
(c) used it; or
(d) disposed of it.
(iii) That he did no dishonestly;
(iv) That he did so in violation of -
(a) any direction of law prescribing the mode in which
such trust was to be discharged; or
(b) any legal contract express or implied, which he as
made touching the discharge of such trust; or
(v) That he willfully suffered any person to do as in
(ii), (iii) and (iv) and (a) or 4 (b).
10.2 The complainant is the owner of the property i.e. flat no. 96, Mandakini Enclave, Alaknanda, New Delhi (2nd - 3rd Floors Duplex flats) consisting of one drawing room, dining room, three bed rooms, kitchen and two bathrooms and one garage at the ground floor and an open terrace on the top floor. He let out the said flat excluding the garage to accused Hari Gopal Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 15 of 17 vide various lease deeds for period of eleven months and lastly vide lease deed dated 01.06.2012. Vide legal notice dated 25.03.2013 the complainant terminated the said tenancy and called upon the accused Hari Gopal to vacate the said premises and thereafter filed civil suit for recovery of possession and damages and mesne profits. It was only through the written statement filed by the accused Hari Gopal in the said suit that he came to know about the existence of MOU dated 07.05.2013 alleged to have been executed by him in favour of accused Hari Gopal for sale and purchase of the above said flat. Vide the said MOU it was shown that complainant rented out the garage and living room at ground floor with small bathroom to one Shri Ramesh Kumar at monthly rent of Rs.1800/- and rented out the servant quarter alongwith open terrace on the top floor to accused Bhavesh Kumar Mondal at the monthly rent of Rs.1200/-. After the knowledge of the said MOU, complainant visited his flat and found lock of garage of his flat broken and one Ramesh Kumar alongwith his family members were illegally occupying the same. The crux of the matter is that vide said alleged MOU complainant was said to rent out one servant quarter alongwith the open terrace on the top floor to accused Bhavesh Kumar Mondal and terrace Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 16 of 17 cannot be said to be independent portion of any premise and same can be said to be under the occupation of petitioner who was let out the remaining portion of the flat. Since accused Hari Gopal was under the occupation of whole flat, he misappropriated it by letting out some portion to accused Ramesh Kumar and Bhavesh Kumar Mondal. In view of the same, prima facie case u/s. 406 IPC read with section 120-B is also made out against the accused Hari Gopal.
11. In view of the aforesaid discussion and overall facts and circumstance of the case, I came to the conclusion that I find no infirmity or irregularity in the impugned order and revision filed by the revisionist is hereby dismissed. The order dated 04.09.2017 stands confirmed.
12. Copy of this order be sent to the Ld. Trial court alongwith trial court record. File of the present revision be consigned to record room.
Typed to the direct dictation and
Digitally
announced in the open court signed by
on this 12 th day of March, 2024 GEETANJALI
GEETANJALI
Date:
2024.03.13
11:31:27
+0530
(Geetanjali)
Addl. Session Judge (FTC)-03
South East District,Saket Courts
New Delhi/12.03.2024
Cr. Rev. 537/2017 Hari Gopal Sharma Vs. State & Anr. Page No. 17 of 17