Delhi District Court
R. No.5767/16 vs . on 14 August, 2018
In the court of Sh. Prayank Nayak, MM02 (SHD), Delhi.
R. No.5767/16
PS: Farsh Bazar
14.08.2018
Ashok Kanojia
vs.
Sunil Kumar & Anr.
At 4.00 PM
Present: None.
1.Vide this complaint, complainant seeks summoning of accused persons for offence u/s 420/465/467/468/471/506/447/34 IPC.
2. Two witnesses were examined by complainant including himself. Complainant CW1 has deposed that his uncle Krishnand has executed a Will which was duly proved in a Probate case. On 24.09.2008 the complainant got certain documents in the house of his uncle and got to know that these documents pertains to his property i.e. Plot No.332, Bhola Nath Nagar, Shahdara, Delhi. After verifying the documents complainant visited the said property on 23.11.2008 and found that some portion of the property has been trespassed by Pt. Laxmi Narain who has constructed a temple. He filed a complaint with the PS but at the request of the residents of the locality Pt. Laxmi Narain performed pooja as his employee. On 01.09.2014, the complainant found that Nitya Nand Joshi is constructing a wall on the said property and accused Ashok Kanojia vs. Sunil Kumar & Anr. Page No . 3 of 3 Sunil Kumar produced a forged Registry dated 07.06.1966. Complainant was also shown as exparte decree in civil suit No.204/11. It is the case of the complainant that the said decree has been obtained by fraud. No action was taken by the police despite intimation. CW2 has produced Khasra Girdawari of the year 201114 and jama bandi of the year 197475.
3. The law with respect to summoning of accused is well settled in the case reported as Pepsi Foods Ltd. & Ors V. Special Judicial Magistrate & Ors [AIR 1998 SC 128], wherein it is held by Hon'ble Apex Court that "summoning of an accused in a criminal case is a serious matter. Criminal Law can not be set into motion as a matter of course. It is not that the complainant has to bring only witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary as well in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of accused."
Similarly in the case of D.K. Pandey V. State [2010 (VII) AD (Delhi) 881], it has been held that before passing summoning order, it is obligatory on the part of the Ld. MM to consider materials and evidence placed on record in the light of the offences committed and analyze it so as to come to the conclusion whether commission of offences in terms of the provisions of law was disclosed or not.
Ashok Kanojia vs. Sunil Kumar & Anr. Page No . 3 of 3
4. In this case, the complainant has not produced the probate in his favour as neither the certified copy of the same was filed nor any witness was summoned to prove the same. Since the case of the complainant is completely dependent upon the probate, his case does not stand proved nor has the complainant placed on record the certified copy of the civil suit, which he alleges has been decreed by fraud. Complainant has also not placed on record any proof that he had filed any application or petition to declare the decree with respect to property in question as null and void nor has there been any finding by the court that the said decree has been obtained by fraud. The complainant also not shown any proof of the construction on the property in question.
5. No delivery of the property has been made by the complainant and hence offence of cheating is not made out. Similarly there is no evidence to show as to what document has been forged and how. No original or certified copy of the documents, claimed to have been forged, have been placed on record.
6. In light of aforesaid discussion, the case of the complainant does not stand proved. Prima facie no offence is made out against the accused persons. Hence, no ground for summoning the accused persons is made out. Accordingly, the complaint stands dismissed. File be consigned to Record Room after due compliance.
(Prayank Nayak) MM02(KKD/SHD)/Delhi Ashok Kanojia vs. Sunil Kumar & Anr. Page No . 3 of 3 14.08.2018 Digitally signed by PRAYANK PRAYANK NAYAK NAYAK Date:
2018.08.14 17:03:15 +0530 Ashok Kanojia vs. Sunil Kumar & Anr. Page No . 3 of 3