Delhi District Court
Rohtash Kumar vs The State (Govt. Of Nct Of Delhi) on 21 February, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 499/2019
CNR No.: DLCT01-010961-2019
Rohtash Kumar
S/o Sh. Ram Kumar
R/o E-141, Shastri Nagar,
Delhi-110052
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Smt. Firdos Begum
W/o Sh. A.J. Shahnawaz
3. A.J. Shahnawaz
S/o Sh. Mohd. Jaan
Both Resident of:
3382, Bagichi Achhaji, Bara Hindu Rao,
Delhi-110006
..... Respondents
Date of Institution : 16.08.2019
Date of Arguments : 17.01.2022
Date of Judgment : 21.02.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 12.02.2019 (In short 'the impugned order') arising from the complaint case vide Case No. 537246/16 titled as 'Smt. Firdos Begum & Anr. vs. Rohtash Kumar & Ors.' under Section 200 Cr.P.C. whereby Ld. MM-04, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') summoned the petitioner.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 1 of 11 BRIEF FACTS:
2. The respondent No. 1 and 2 (Hereinafter referred to as 'the complainant No. 1 and 2 respectively') instituted a complaint case under Section 200 Cr.P.C. against the petitioner and the accused No. 2 and 3 (not summoned by the trial Court).
3. The complainant No. 2 is husband and attorney of the complainant No. 1.
4. The case of the complainants is that the complainant No. 1 purchased a shop measuring 23 sq. yards situated at ground floor of property No. M-119, Shastri Nagar, Delhi-110052 (In short 'the said property') from the petitioner vide sale deed dated 05.08.2005 registered on 05.09.2005 with Sub-Registrar-I, Delhi.
5. The case of the complainants is that the petitioner and the accused No. 2 assured that the said property is free from all sorts of encumbrances like sale, mortgage, gift, lien, decree, burden, charges, security, surety, dispute, notifications, court injunction, acquisition, complications, attachment, notices, wills, legal flaws etc. and they continued in possession of the said property since then and they were regularly depositing property tax etc. The petitioner handed over complete chain of title documents. As per chain of title documents, the petitioner purchased the said property from Mohd. Saleem who purchased the said property from Naresh Kumar. Naresh Kumar had purchased the said property from Nanak Chand, attorney of Anant Ram Sharma.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 2 of 11
6. The case of the complainants is that Anant Ram Sharma had purchased the said property from Mansa Ram who had purchased it from Gulab Singh on 08.04.1980. The accused No. 2 is the property dealer who witnessed the sale deed executed in favour of the complainant No. 1.
7. The case of the complainants is that the petitioner and the accused No. 2 and 3 had knowledge that the title of the said property was not clear and still they convinced the complainants to purchase the said property. The said property is part of property No. M-119 which is a plot of 100 sq. yards. The accused No. 2 is also a witness of title documents i.e. General Power of Attorney, Special Power of Attorney, Will and Receipt executed by Mohd. Saleem in favour of the petitioner on 15.10.1998 as well as title documents i.e. General Power of Attorney and Special Power of Attorney executed by Naresh Kumar in favour of Mohd. Saleem on 31.10.1996.
8. The case of the complainants is that on 01.08.2014, they came to know about litigation in respect of the said property when a Court Bailiff visited the said property that the petitioner was not the owner of the said property and some other person was claiming ownership of the said property. On 07.10.2014, the Court Bailiff taken possession of the said property in execution of decree dated 06.01.2010. The accused No. 1 gave offer to the complainants to purchase the said property on payment of its market rate i.e. Rs. 22,00,000/-.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 3 of 11
9. The case of the complainants is that the petitioner and the accused No. 2 and 3 committed fraud upon them by selling a property not owned by the petitioner. The complainants made complaint to local police on 19.05.2016 and thereafter, they made complaints to senior officers of police. Therefore, the complainants filed a complaint case under Section 200 Cr.P.C. for summoning and prosecution of the petitioner and the accused No. 2 and 3 for offences punishable under Section 418/420/448/506/120B/34 of 'The Indian Penal Code, 1860' (Hereinafter referred to as 'IPC'). PROCEEDINGS BEFORE TRIAL COURT:
10. In pre-summoning evidence, the complainant No. 1 and 2 appeared as CW-1 and CW-2.
THE IMPUGNED ORDER:
11. The trial Court, vide the impugned order, summoned the petitioner, as under:
"In pre-summoning evidence complainant Smt. Firdos Begum examined herself as CW-1 and also placed on record the documents i.e. copy of GPA in favour of complainant No. 2 Ex.CW1/B, copy of complaint to SHO Ex.CW1/C, copy of complaint to ACP Ex.CW1/D, copy of complaint to DCP Ex.CW1/E, copy of complaint to Commissioner of Police Ex.CW1/F, copy of visiting card of accused No. 2 mark A, electricity bills (8) in her name mark B (colly), copy of receipt of property tax mark C (colly) and copy of judgment and decree dated 06.01.2010 mark D. Further, the other complainant A J Shahnawaz also stepped into the witness box. Both reiterated the averments mentioned in the complaint.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 4 of 11 After going through the complaint, evidence adduced and hearing the counsel for the complainant this court is of the opinion that there is sufficient material to summon the accused No. 1 Rohtash Kumar only. There are only vague averments against the other accused persons and therefore, no prima facie case is made out against them.
Accordingly accused No. 1 Rohtash Kumar be summoned U/s 420 IPC on filing of PF for 23.05.2019."
GROUNDS OF REVISION:
12. Feeling aggrieved and dissatisfied with the summoning order, the petitioner impugned the said order on the grounds, as under:
(a) The trial Court did not consider that the complainant No. 1 continued in possession of the said property till 07.10.2014;
(b) The complainants had verified title documents of the petitioner before purchasing the said property;
(c) The petitioner had no knowledge of the pendency of the civil suit vide Suit No. 245/87 (New No. 238/09) titled as 'Sher Singh & Ors. vs. Nanak Chand & Ors.';
(d) The petitioner was not a party to the said civil suit;
(e) The petitioner had no knowledge of decree dated 06.01.2010 as well as Execution No. 166/14 titled as 'Sarla Devi & Ors. vs. Nanak Chand & Ors.';
(f) The trial Court did not put questions to the complainants as to how the accused No. 2 and 3 are in possession of the said property;
(g) The accused No. 2 and 3 are main conspirators and trial Court committed error in summoning the petitioner alone; and
(h) The dispute is civil in nature.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 5 of 11 APPEARANCE:
13. I have heard arguments of Mr. S.C. Sagar, Advocate for the petitioner, Mr. Amit Dabas, Ld. Addl. PP for the State / respondent No. 1 and Mr. Absar Ahmed, Advocate for the complainants and carefully examined the trial Court record. CONTENTIONS OF THE PETITIONER:
14. Ld. Counsel for the petitioner contended that the petitioner had no knowledge of Civil Suit No. 245/87 (New No. 238/09) instituted by legal heirs of Sher Singh against Nanak Chand and Mansa Ram. He contended that the petitioner was not a party to the said civil suit. He contended that the petitioner was a bonafide purchaser of the said property. He contended that the petitioner had executed sale deed registered on 05.09.2005 and delivered possession of the said property to the complainants. He contended that the petitioner was neither a party to the said suit nor had he any knowledge of the said suit.
He contended that the petitioner's wife had also filed objection in the said civil suit which was dismissed on 23.08.2013. He contended that the trial Court did not summon the real conspirators i.e. the accused No. 2 and 3. He contended that the complainants have already filed a civil suit against him for recovery of damages in the sum of Rs. 27,30,000/-. He contended that the petitioner handed over complete chain of title documents to the complainants. He contended that trial Court did not put questions to the complainants as to how the accused No. 2 and 3 are in possession of the said property.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 6 of 11
15. Ld. Counsel for the petitioner contended that the dispute is civil in nature and the complainants have given it a criminal colour. He contended that the accused No. 2 and 3 alongwith previous vendor, namely, Mohd. Saleem cheated the petitioner. He contended that there was no fraudulent misrepresentation or dishonest intention on the part of the petitioner. He contended that the accused No. 2 and 3 should be also summoned. He contended that the impugned order should be set-aside.
CONTENTIONS OF THE STATE / RESPONDENT NO. 1:
16. Ld. Addl. PP for the State contended that the trial Court summoned the petitioner on considering the complaint, documents and pre-summoning evidence. He contended that there is no infirmity in opinion of the trial Court that there are sufficient grounds to proceed against the petitioner. CONTENTIONS OF THE COMPLAINANTS:
17. Ld. Counsel for the complainants contended that the petitioner had sold the said property on false representation. He referred sale deed to contend that sale deed mentions that the said property is ancestral property of the petitioner having acquired from his fore-father. He contended that sale deed mentions that the said property was free from decree, dispute, injunction and there was no legal defect in title of the vendor. He contended that the petitioner sold the said property, which was already under litigation, to the complainant No. 1 without disclosing the dispute pertaining to the said property.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 7 of 11 ANALYSIS AND DISCUSSION:
18. Section 204 Cr.P.C. provides that the trial Court has the jurisdiction to summon the accused where there is sufficient ground for proceeding.
19. Summoning of an accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.
20. There is, prima facie, material that the petitioner had sold the said property to the complainant No. 1 vide sale deed registered on 05.09.2005 Ex.CW1/A. There is a recital in the said sale deed that the petitioner acquired the said property from his fore-father and the said property is the ancestral property of the petitioner. The said sale deed was witnessed by the accused No. 2, namely, Richhpal. The said accused No. 2, namely, Richhpal was also a witness to General Power of Attorney, Special Power of Attorney, Will and Receipt dated 15.10.1998 executed by Mohd. Saleem in favour of the petitioner and General Power of Attorney and Special Power of Attorney dated 31.10.1996 executed by Naresh Kumar in favour of Mohd. Saleem.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 8 of 11
21. There is a covenant in the sale deed Ex.CW1/A that the said property is free from encumbrances, inter alia, decree, dispute, injunctions and there was not defect in the title of the petitioner. It is an admitted fact that the possession of the said property was taken by the Court Bailiff in execution of decree dated 06.01.2010 in Civil Suit No. 245/1987 (New No. 238/2009) on 07.10.2014. There is sufficient ground to proceed against that the petitioner under Section 420 IPC. The petitioner had sold the said property to the complainants on misrepresentation that the said property was his ancestral property without disclosing the dispute pertaining to the said property pending adjudication before the Civil Court in Suit No. 245/1987 (New No. 238/2009).
22. The issues, whether the petitioner had knowledge of pendency of the said civil suit, whether the petitioner was a bonafide purchaser of the said property, whether the petitioner did not have any dishonest intention to cheat the complainant No. 1 and effect of misrepresentation by the petitioner that the said property is his ancestral property, can only be gone into at the time of framing of charge in this case.
23. The trial Court applied its mind to the averments made in the complaint and considered evidence led by the complainants and the documents filed on record. 24 There is no infirmity in opinion of trial Court that there is sufficient material on record to proceed in this case and summon the petitioner for offence under Section 420 IPC.
Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 9 of 11 CONCLUSION:
25. Therefore, this Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set- aside.
26. Accordingly, the criminal revision petition filed by the petitioner is dismissed.
27. Trial Court record alongwith a copy of judgment be sent to trial Court. Revision file be consigned to record room.
Digitally signedSANJAY by SANJAY SHARMA SHARMA Date: 2022.02.21 17:16:07 +0530 Announced in the open Court SANJAY SHARMA-II on this 21st February, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 10 of 11 Rohtash Kumar vs. State & Ors. CNR No.: DLCT010109612019 Crl. Revision No. 499/2019 21.02.2022
Present : Mr. S.C. Sagar, Advocate for the petitioner.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent No. 1.
Mr. Absar Ahmed, Advocate for the respondent No. 2 and 3.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2022.02.21 17:16:26 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 21.02.2022 Crl. Rev. No. 499/2019 Rohtash Kumar vs. State & Ors. Page No. 11 of 11