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Delhi District Court

Brijesh Tanwar vs The State (Nct Of Delhi) on 23 April, 2022

          IN THE COURT OF MR. DHARMESH SHARMA
      PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
             PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision No.05/2021
CNR No. DLND1­006912­2020

In re:
1. Brijesh Tanwar
   S/o Late Sh. Satpal Singh Tanwar
   R/o CB­342, Ring Road, Naraina
   New Delhi­110028

2. Deep Chand
   S/o Sh. Sunhera
   R/o WZ 80B, Naraina Village,
   New Delhi ­110010                                          ......Revisionists

         Versus

The State (NCT of Delhi)
Through Prosecution Branch,
Patiala House Courts,
New Delhi
         Date of Institution                  :         05.01.2021
         Date of hearing arguments            :         13.04.2022
         Date of order                        :         23.04.2022
Appearances:
Sh. Ajit Nair, Advocate for the petitioners­revisionists.
Sh. Dharam Chand, Addl. PP (substitute) for the State.

ORDER:

1. This order shall decide the present Criminal Revision filed by the revisionists­petitioners/accused persons under Section 397/399 CR­05/2021 Brijesh Tanwar & Anr. v. State Page 1 of 9 Code of Criminal Procedure, 1973 assailing an order dated 30.09.2020, whereby charge has been framed against the revisionists­ petitioners/accused persons for committing offences punishable under Sections 420/467/468/471/120­B of the IPC followed by order dated 06.10.2020 whereby the plea of the learned Counsel for the revisionists­ petitioners/accused persons against framing of charge was also dismissed.

FACTS:

2. Briefly stated, a final police report/charge­sheet in the present matter was filed on 05.07.2013 and the gist of which is that the complainant Smt. Chanan Kaur W/o Late Sh. Sohan Lal Toora claimed that she had purchased the property in question falling in Khasra No. 1002, plot No. 24 measuring 200 Sq. Yards in CB area, Ring Road, Naraina falling with the jurisdiction of PS Naraina by virtue of sale documents viz. Power of Attorney, Letter of Possession, Will etc. and the possession of the said plot was delivered to her by the erstwhile owners, namely Om Prakash S/o Sh. Hukum Singh, Satpal & Deep Chand both S/o Sh. Sunhera, upon which she constructed a boundary wall of 9 feet height and a huge room with other facilities in the year 1974­75; and she claimed that she has been enjoying uninterrupted use and occupation of the plot since 13.05.1974; and she alleged that the revisionists­ petitioners/accused persons Brijesh Tanwar and Deep Chand in criminal conspiracy with each other forged certain documents pertaining to the CR­05/2021 Brijesh Tanwar & Anr. v. State Page 2 of 9 said property with a view to apply to the Cantonment Board for getting the said property freehold. On completion of investigation, both the revisionists/ accused persons have been arraigned for trial for alleged forging of documents pertaining to the aforesaid property.

3. Suffice to state that arguments were addressed on the point of charge on 30.09.2020 and the Ld. Trial Court was pleased to frame charge but it appears that the two accused persons left the Court without signing the charge and thus Non­Bailable Warrants for were issued for 06.10.2020, on which day the two accused persons appeared and the ld Court was pleased to cancel the warrants subject to payment of find of Rs. 500/­ each. It is borne out from the trial Court Record that Mr. Ajit Nair, learned Counsel for the revisionists­petitioners/accused persons addressed arguments on point of charge and the following order was dated 06.10.2020:­ "Present: Sh. Naween Kumar, Ld. APP for the State.

Sh. Ajit Nari, Ld. Counsel for both accused with both accused.

Perused. Heard.

Having regards to facts and circumstances of the case, NBWs against the accused are cancelled subject to fine of Rs. 500/­ each upon him. Fine realized.

Robkar be issued.

At this stage, Counsel for the accused persons has vehemently argued that he wishes to argue on point of charge on legal and technical points. Counsel has been informed that arguments were heard on previous date itself when only the accused persons were present and he had left the Court without any prior knowledge or consent of this Court. However, upon his insistence, arguments on his behalf on the said points have been heard.

Counsel for the accused persons has argued that the CR­05/2021 Brijesh Tanwar & Anr. v. State Page 3 of 9 complainant in the present case was not holding any Power of Attorney executed by the owner of the impugned property any, hence, he has challenged the locus standi of the said complainant stating that he did not have any knowledge about the offence or the alleged transaction of transfer of the property. He has also argued that, in fact, ownership of the impugned property has also not been established as the alleged owner Ms. Chanan Kaur had filed a civil suit for declaration of title on 29.04.2008 prior to filing of the present FIR. He argued that she is a permanent resident of United Kingdom. He has also pointed out that IO has not investigated regarding the title of the property and has not recorded the statement of said Chand Kaur. Hence, he has prayed that prima facie no offence qua the accused persons is made out as there is technical flaw in the investigation.

I have considered the submission of Counsel for accused persons.

Ld. APP for the State has already argued on the previous date that any person having knowledge of the offence can lodge a complaint. He also cited a judgment of Hon'ble Supreme Court of India. The law is also settled that any person can set the criminal law in motion once he becomes aware about the alleged offence. As regards the arguments of Counsel for the accused persons regarding technical flaw in the investigation, the same are a matter of trial and he accused persons will get ample opportunity to cross examine IO on the said points at the relevant stage. Further, the said Ms. Chanan Kaur is already a witness as per the list of witnesses. The issue regarding ownership of the property would be beyond the powers of this Court to decide as the same is a civil matter.

Hence, from the material available on record prima facie offence under Section 420/467/468/471/120B IPC is made out against the accused. Separate charge framed upon the accused, to which they have been pleaded not guilty and claim trial.

PW/material witnesses be summoned through IO/SHO for PE on 02.12.2020.

Sd­ MM­02/PHC/ND 06.10.2020."

4. The impugned two orders are assailed in the present revision petition inter alia on the grounds that the complainant is an NRI residing in United Kingdome and the Ld. Trial Court in framing the charge has completely overlooked the fact that the complainant Smt. Chanan Kaur is failing to substantiate as to how she became owner and acquired the possession of the property in question; and that the complaint filed Sh. Munish Sharma as SPA Holder of the complainant is non est in law as he has no personal knowledge of the facts since the property as per the complainant was purchased in the year 1974 and evidence has been collected by the Police to suggest that the SPA was personally conversant with the facts and circumstances of the case; and that the Ld. Trial Court overlooked the fact that Smt. Chand Kaur has already filed a Civil litigation seeing inter alia a declaration that she is lawful owner and in possession of the suit property, and thereby entitled to full enjoyment without any hindrance or interference form any quarter. Incidentally, it may be noted that erstwhile owners, namely Deep Chand and Satpal have since expired. In his his written submissions, learned Counsel for the revisionists­petitioners/accused persons has relied on decision in the cases of Suraj Lamp &Industries(P) v. State of Haryana & Anr. 2011 X AD (SC) 365;A.C. Narayanana v. State of Maharashtra&Anr, 2015 Crl. L.J. 1434;Rajender Singh Sachdeva v. State(NCT of Delhi), 2008 [2] JCC 979; Bhagwanti v. State, 94 (2001) DLT 632; State (Govt of NCT) v. Sandeep Kumar, 2017 I AD (Crl.) (DHC) 333; and Ram Dilawari & Anr. v. State of NCT of Delhi, 2015 VIII AD (Delhi) 322.

DECISION:

5. I have given my thoughtful consideration to the submissions made by the learned Counsel for the petitioners­revisionists/accused persons and the learned Addl. PP for the State/respondent. I have perused the relevant record of the present revision petition and case law cited at the Bar.

6. At the outset, the present revision petition is devoid of any merit. First thing first, the charge has already been framed against the accused persons vide order dated 30.09.2020 and there was no question of review of such order by the Ld. Trial Court on the subsequent date of hearing i.e., on 06.10.2020. Since the petitioner­revisionist is assailing the impugned order in criminal revision under Section 397 of the Cr.P.C., avoiding long academic discussion, it would be expedient to refer to the decision in State of M.P. v. Deepak, (2019) 13 SCC 62, in which an earlier decision on the scope and ambit of Section 397 Cr.P.C was considered in case titled as Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 and it was held as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well­founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance CR­05/2021 Brijesh Tanwar & Anr. v. State Page 6 of 9 with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well­accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories afore­ stated. Even framing of charge is a much advanced stage in the proceedings under Cr.P.C."

7. In view of the aforesaid proposition of law, reverting to the instant case, the plea of the Ld. Counsel for the revisionists that the prosecution is miserably failing to show any documentary evidence supporting the claim of the complainant or that his special power of attorney Sh. M.K. Sharma is not competent to institute and testify for want of personal knowledge of the factual background, cannot be considered at this stage of the case. The veracity and the truthfulness of the allegations of the complainant and other witnesses could only be tested during the course of trial. The Court is not supposed to conduct a CR­05/2021 Brijesh Tanwar & Anr. v. State Page 7 of 9 surgical operation and embark on examining the material on the record at this stage of the case. It is well settled proposition that the test for framing of charge against the accused persons is that if the version of the complainant is left unrebutted or uncontroverted, it is likely to result in conviction of the revisionists.

8. The case law relied upon by Ld. Counsel for the revisionist has no bearing at this stage of the case. Reliance on the decision in the case of Suraj Lamp & Industries (P) v. State of Haryana & Anr. (supra) laying down legal position that "SA/GPA/Will transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances" is inapplicable in a criminal case where allegedly forged documents have been prepared by the accused persons. It has to be appreciated that proposition of law laid down in any case cannot be read divorced from contextual background or facts and circumstances of such case. The cited case of A.C. Narayanana v. State of Maharashtra & Anr. (supra) is a decision which was given after recording of the evidence of the parties and conclusion of trial. The decisions in Bhagwanti v. State and State (Govt of NCT) v. Sandeep Kumar (supra), are cases where the charges were quashed inter alia under Section 304­B of the IPC and were passed in view of peculiar facts concerning the matter.

9. Further, the defence version that accused Brijesh Tanwar had purchased the property in question from deceased Satpal Tanwar and CR­05/2021 Brijesh Tanwar & Anr. v. State Page 8 of 9 Deep Chand vide registered sale deed dated 16.09.2000 for valuable consideration cannot be considered either at this stage of the case. Merely because the revisionists rely on a registered sale deed and the photocopies of the revenue record is no conclusive proof of their title to the subject property. Lastly, whether or not the special power of attorney has knowledge or no knowledge of the facts relating to this case, cannot be assumed or questioned at this stage, which can only be determined during the course of trial.

10. In view of the foregoing discussions, I am unable to find out any illegality, infirmity or impropriety committed by the Ld. Trial Court in framing the charge against the petitioners­revisionists/ accused persons. Hence, the present revision petition is dismissed. The petitioners­revisionists/ accused persons shall appear before the Ld. Trial Court for further proceedings on 05.05.2022.

11. Trial Court, if any, along with copy of the order be sent to the Ld. Trial Court. File of revision petition be consigned to Record Digitally signed by Room. DHARMESH DHARMESH SHARMA SHARMA Date: 2022.04.23 16:44:01 +0530 Announced in the open Court (DHARMESH SHARMA) rd on 23 April, 2022 Principal District & Sessions Judge (NDD) Patiala House Courts, New Delhi CR­05/2021 Brijesh Tanwar & Anr. v. State Page 9 of 9