Delhi District Court
O.P. Sukhija vs State on 30 November, 2012
ID No. 02406R0222632012
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE - 04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Revision No. 50/12
ID No. 02406R0222632012
O.P. Sukhija
s/o late Sh. Sudner Dass Sukhija
r/o FU26, Ptimapura,
New Delhi - 110088 ..........revisionist
Versus
State ..........respondent
Instituted on : 07th September, 2012
Argued on : 19th November,2012
Decided on : 30th November,2012
O R D E R
1. This revision petition is directed against the order dated 31.03.2012, passed by Learned Metropolitan Magistrate (South East District), in a complaint case (CC no. 47/1) titled as "O. P. Sukhija vs Sadanand and others" u/s 200 Cr. P. C Ld. Trial Court took cognizance and summoned Accused no. 1, 2, 3 and accused no. 6 only under sections 406/468/120B IPC. Revisionist is aggrieved because accused number 4,5 and accused number 7 to 11 listed in the complaint have not been summoned by the Trial Court.
2. I have heard submissions advanced by Sh. Sourabh Leekha Ld. Counsel for the revisionist and Learned Addl. PP for the State and have perused the trial Court record carefully.
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ID No. 02406R0222632012 3 Background facts leading to the filing of this revision are that Smt. Jamuna Devi W/o Late Sh. Sunder Dass Sukhija, mother of the revisionist, accused no. 1 and Late Sh. Dayanand Sukhija, and mother in law of Accused no. 2, had purchased on 07/06/1954, a property measuring 200 sq. yards bearing no. 143, Sant Nagar, East of Kailash, New Delhi110065. Vide registered Will (in urdu) dated 18/05/1974 (Ex.CW1/1), she bequeathed the same in equal 1/3rd proportion in favour of her three sons i.e. revisionist accused No. 1 and Sh. Dayanand Sukhija. After the demise of Late Smt. Jamuna Devi, Sh. Sadanand Sukhija filed a suit for declaration in the Court at Faridabad with respect to the Plot No. 5, Block No. 5, situated at Spring Field colony, Faridabad Distt, Faridabad, Haryana, which originally belonged to Late Smt. Jamuna Devi, wherein vide a Deed of Compromise dated 01/02/2008 (Ex CW1/2) between Sh. Sadanand Sukhija and the revisionist, Sh. Sadanand Sukhija after acknowledging 1/3rd Share of the revisionist in the said property compensated revisionist towards his 1/3rd share as per will dated18/05/1974. Vide General Power of Attorney dated 19/05/2008 (Ex.CW1/19), Sh. Sadanand Sukhija transferred his 1/3rd undivided share in "the Property", based on the will dated 18/05/1974, in favour of Smt. Santosh Sukhija.
4. During lifetime of late Smt. Jamuna Devi, property in dispute was in the possession of and use of the family of the revisionist and Late Sh. Dayanand Sukhija. After the demise of Late Sh. Dayanand Sukhija his wife O.P. Sukhija vs State - CR No. 50 of 2012 2/16 ID No. 02406R0222632012 Smt. Santosh Sukhija continued to stay in her portion while the portion belonging to the revisionist was lying vacant and locked by the revisionist. In the year 2010, the revisionist approached Sh. Sadanand Sukhija and Smt. Santosh Sukhija for partition of "the Property in dispute" and on receiving no reply from them filed a Suit for Partition in the Court at Delhi wherein Sh. Sadanand Sukhija and Smt. Santosh Sukhija appeared and informed that "the Property in dispute" has already been sold, whereupon it came to the notice of the revisionist that now Sh. Inderpreet Singh and Mrs. Gulshan Kaur (Accused No. 10 and 11) were claiming to be the alleged owner of the property who had thereon also filed the copies of the entire chain of property/ownership in respect of "the Property in dispute" before the Court. Pursuant to the enquiry being made by the revisionist, it became clear that the alleged ownership of Accused No. 10 and 11 was based on forged and fabricated documents which were prepared by the accused persons in connivance with each other and thereon the Criminal Complaint against all the accused persons was initiated by the revisionist before the Ld. Trial Court.
5. It is stated that as per the documents, the ground floor, first floor and roof rights in the property in dispute was allegedly transferred by way of an unregistered agreement to sell dated 22.02.1991(Ex. CW1/4) by Late Smt. Jamuna Devi in favour of Sh. Mukesh Punani, who vide a sale deed dated 18.08.2006 (Ex. CW1/5) allegedly sold the said portion to Smt. Santosh Sukhija (accused no. 2) who is his real sister, acting as Power of Attorney O.P. Sukhija vs State - CR No. 50 of 2012 3/16 ID No. 02406R0222632012 holder of Late Smt. Jamuna Devi, whereas, after the death of Late Smt. Jamuna Devi on 16.11.1992, the said alleged power of attorney also stood revoked automatically and thus the said sale deed of 18/08/2006 was illegal and void. It is alleged that even the signatures of Late Smt. Jamuna Devi on the alleged power of attorney and other documents are forged and fabricated. The alleged sale deed in para 13 clearly mentions that the original owner (Late Smt. Jamuna Devi) was alive and had not revoked the said POA, despite the fact that both Sh. Mukesh Punani and Smt. Santosh Sukhija were aware that Late Smt. Jamuna Devi had expired in 1992.
6. On enquiry, revisionist came to know that after the demise of Late Smt. Jamuna Devi, her son, Sh. Dayanand Sukhija applied for and got the said property mutated in his name in the year 1999 vide (Ex. CW1/6) claiming to be owner of entire "Property in dispute" without the knowledge or information of the Revisionist in a completely fraudulent and mischievous manner by filing an NOC (Ex. CW1/6) which contained forged signatures of the revisionist. It is alleged that after the demise of late Sh. Dayanand Sukhija, her wife Smt. Santosh Sukhija applied for and got the property mutated from MCD in 2005 (Ex. CW1/7) on the ground that after the demise of her husband she became the owner of the entire property. It is submitted that if property stood mutated in the name of Sh. Dayanand Sukhija on 24.12.1999 and after her death the same was got mutated in the name of her wife Smt. Santosh Sukhija on 16.09.2005 as the owner of the entire property, then the O.P. Sukhija vs State - CR No. 50 of 2012 4/16 ID No. 02406R0222632012 sale deed dated 18.08.2006 whereby said property was allegedly sold by Sh. Mukesh Punani to Smt. Santosh Sukhija was illegal and void and a forged document to usurp the title of the said property. In 2008, the act of Smt. Santosh Sukhija obtaining a General Power of Attorney in her favour from Sh. Sadanand Sukhija in respect of his 1/3 undivided share in "the Property in dispute", based on the will dated 18/05/1974, shows that till 2008, "the Property in dispute" was in joint ownership of the Revisionist, Sh. Sadanand Sukhija and Sh. Dayanand Sukhija (through his legal heirs) and not of Sh. Mukesh Punani. Based on said illegal and void sale deed, Smt. Santosh Sukhija (Accused No. 2) in connivance and in conspiracy with other accused persons fraudulently and with dishonest intention sold the Ground and First Floor of the said property to Late Sh. Rohtas Kumar Sharma vide sale deed dt. 2/6/2008 (Exhibit CW1/8) who had thereon vide a Power of Attorney made her wife Smt. Manju Sharma (Accused no. 7), owner of same.
7. It is submitted that basement of the property in dispute was shown to have been sold by Late Smt. Jamuna Devi vide an unregistered Agreement to sell dated 22.02.1991 to Sh. Mukesh Punani, when infact as per the valuation report dated 20.09.1999 (Ex. CW1/10) filed before MCD it is clearly mentioned that the basement portion was constructed in the said property in the year 199798 which shows that the basement could not be sold to Sh. Mukesh Punani in 1991, when no such basement was in existence till 1998.
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ID No. 02406R0222632012
8. It is alleged that Sh. Mukesh Punani later sold entire basement portion vide unregistered agreement to sell and General Power of Attorney both dated 09.04.1999 to Smt. Deepika Malik, when infact as per the sub registrar record, Smt. Deepika Malik (accused no. 6) was shown to have purchased the same from Late Sh. Dayanand Sukhija vide a registered sale deed dated 09.04.1999(Ex.CW1/11) which was further admitted by Smt. Deepika Malik in her statement made to the police and also before the Ld. MM on 07/07/2012 and not from Sh. Mukesh Punani proving therein that the unregistered agreement to sell and General Power of Attorney dated 09.04.1999 vide which Sh. Mukesh Punani claimed to have sold the basement portion to Smt. Deepika Malik were prepared with malafide intention in connivance with other accused persons to cheat the revisionist of his lawful rights. Even the unilateral sale of the basement by Late Sh. Dayanand Sukhija to Smt. Deepika Malik was illegal and without authority, since the said property in whole was in joint ownership of the revisionist Sh. Sadanand Sukhija and Sh. Dayanand Sukhija in equal share, which is indicated from the General Power of Attorney dated 19/05/2008 whereby Sh. Sadanand Sukhija had given his rights in respect of his 1/3 undivided share in "the Property in dispute", based on the will dated 18/05/1974, in favour of Smt. Santosh Sukhija, and thus Sh. Dayanand Sukhija was not sole owner of the basement portion of the property.
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ID No. 02406R0222632012
9. It is submitted that the accused conspired and playing fraud upon revisionist and it is clear since the unregistered agreement to sell and GPA vide which Sh. Mukesh Punani had allegedly sold basement to Smt. Deepika Malik and the Registered Sale deed vide which Late Sh. Dayanand Sukhija had sold the same basement to Smt. Deepika Malik both are of same date i.e. 09.04.1999 and also the sale consideration was paid thereon vide same DD/Cheque/Cash.
10. As per the documents, half of basement of the property in dispute was shown to have been sold by Smt. Deepika Malik to Smt. Kunti Khanna vide an agreement to sell and General Power of Attorney dated 24.05.2000, whereas in reality Smt. Deepika Malik had sold the half portion of the basement portion in the property in question to Sh. Ram Singh Khanna (Late husband of Smt. Kunti Khanna) vide registered sale deed dated 24.05.2000 (Ex.CW1/12) and never to Smt. Kunti Khanna (accused no. 8). The said fact was confirmed by Smt. Kunti Khanna in her written statement to that effect in the pending Suit for Injunction for said property before the Civil Court. Agreement to sell and General Power of Attorney vide which Smt. Deepika Malik had allegedly sold half basement to Smt. Kunti Khanna and the Registered Sale deed vide which Smt. Deepika Malik sold the same basement to Sh. Ram Singh Khanna, both are of same date i.e. 24.05.2000 which shows that accused persons were aware of both sets of documents. O.P. Sukhija vs State - CR No. 50 of 2012 7/16
ID No. 02406R0222632012
11. It is alleged that Smt. Kunti Khanna is part and parcel of and an active participant in the entire conspiracy to cheat and misappropriate "the Property in dispute" is apparently when based on a forged agreement to sell and General Power of attorney dated 24.05.2000, she further sold the half portion of basement to Sh. Jagdamba Singh, vide a Registered General Power of Attorney dated 31/05/2010 (Ex. CW1/15) wherein it was categorically mentioned by Smt. Kunti Khanna that she had purchased the basement portion from Smt. Deepika Malik and there is no mention of the correct fact that she infact had become alleged owner of half basement portion because the same half basement portion was actually purchased by her late husband from Smt. Deepika Malik and after the demise of her husband she become alleged owner only after getting the relinquishment deed (Ex. CW1/13) executed from her two sons in respect of half portion of basement. It is alleged that even the registered irrevocable General power of Attorney dated 31.05.2010, vide which the half basement portion was allegedly sold by Smt. Kunti Khanna to Sh. Jagdamba Singh was prepared on EStamp bearing certificate no. IDDL 03113132567956I dated 28.05.2010 was also forged and fraudulently prepared since the same has been shown to have been registered by Sub RegistrarV on 17.05.2010 i.e. even before the date of purchase of EStamp (i.e. 28.05.2010) and even before the execution of the said GPA between the parties on 31.05.2010, showing that all the accused persons were actively involved in the conspiracy to illegally misappropriate the property in question O.P. Sukhija vs State - CR No. 50 of 2012 8/16 ID No. 02406R0222632012 and to cheat the revisionist.
12. It is argued that at the time of selling the remaining half basement portion by Smt. Deepika Malik (Accused No. 6) to Sh. Jagdamba Singh (Accused No. 9) vide registered irrevocable General power of Attorney dated 17.05.2010 (Exhibit CW1/14) Smt. Deepika Malik had infact categorically stated that she became owner of said property by purchasing the same from Sh. Mukesh Punani despite knowing and later admitting before the Court that she purchased the property not from Sh. Mukesh Punani but from Late Sh. Dayanand Sukhija and thus the said GPA also smacks of conspiracy and connivance between accused persons to illegally misappropriate the property in dispute and to cause unlawful and wrongful loss to revisionist. It is submitted that Sh. Jagdmaba Singh purchased the different portion of "the Property in dispute" in connivance and in conspiracy and for the benefit of Sh. Inderpreet Singh and Smt. Gulshan Kaur, who cannot by any stretch of imagination be considered as Bonafide purchaser, since ultimately it was Sh. Jagdamba Singh, who in connivance and in conspiracy with Sh. Inderpreet Singh and Smt. Gulshan Kaur who had prepared the forged set of documents with active assistance of the other accused persons despite the fact that all the said accused persons are well aware of the original set of registered set of sale deeds and their dates and the same is proved from the fact that the unregistered and forged documents are also prepared incidentally for the same date vide which the sellers and purchasers have been changed by the accused O.P. Sukhija vs State - CR No. 50 of 2012 9/16 ID No. 02406R0222632012 persons just to somehow make Sh. Inderpreet Singh and Smt. Gulshan Kaur the owners of the said property to cheat and defraud the revisionist.
13. It is argued that further the fact that Sh. Jagdamba Singh had purchased the half basement portion from Smt. Deepika Malik on 17/05/2010, remaining half basement portion from Smt. Kunti Khanna on 31/05/2010 and the First and Second Floor with Roof rights from Smt. Manju Sharma on 17/03/2010 (Ex. CW1/9) and after joining all the said portions, sold the entire "Property in dispute" within few days thereof vide Sale Deed dated 21/06/2010 (Ex. CW1/16) to Sh. Inderpreet Singh and Smt. Gulshan Kaur clearly shows that Sh. Jagdmaba Singh is a conduit and coconspirator alongwith Sh. Inderpreet Singh and Smt. Gulshan Kaur and other accused persons summoned by the Ld. Trial Court involved in misappropriating the "the Property in dispute" to the detriment of the revisionist. It is urged that the fact that all the sale of half basement portion by Smt. Deepika Malik on 17/05/2010, remaining half basement portion by Smt. Kunti Khanna on 31/05/2010 and the First and Second Floor with Roof rights by Smt. Manju Sharma on 17/03/2010 and the resultant sale of the entire Property to Sh. Inderpreet Singh and Smt. Gulshan Kaur on 21/06/2010, had taken place only after the Suit for Partition has been filed by Sh. Om Prakash Sukhija of which the notice has been issued to Smt. Santosh Sukhija, Sh. Sadanand Sukhija clearly proves a conspiracy hatched by all the accused persons for the ultimate benefit of Sh. Inderpreet Singh and Smt. Gulshan Kaur just to cheat and O.P. Sukhija vs State - CR No. 50 of 2012 10/16 ID No. 02406R0222632012 defraud the revisionist. It is submitted that the said sale was prepared during the pendency of Suit for Partition and was bad as per Section 52 of Transfer of Property Act, 1882 whereby Sh. Inderpreet Singh & Smt. Gulshan Kaur ceased to be a bonafide Purchaser and all the aforesaid illegal acts were carried out by the accused persons just to deprive the revisionist of his legal and lawful rights over the property in question at the behest and at the instructions of Sh. Inderpreet Singh and Smt. Gulshan Kaur (accused no. 10 and 11), who are the ultimate beneficiary of the property in dispute, and are involved in various such dubious and illegal land deals in Delhi.
14. Ld. Counsel for the revisionist submits that impugned order dated 30.03.2012 by not summoning all the accused was erroneous, illegal and was contrary to the facts and law. He submits that trial court failed to appreciate that despite forged and fabricated documents based on which Inderpreet Singh and Smt. Gulshan Kaur claimed to be the purchaser of the property in question, other accused persons namely Sandeep Sukhija, Ms. Nishant Kurup, Smt Manju Sharma, Kunti Khanna and Jagdamba Singh were equally involved in the fraud and forgery and misappropriation of property in question. He submits that the main question to be considered is that whether there was sufficient grounds to proceed against accused Sandeep Sukhija, Nishant Kurup , Manju Sharma, Kunti Khanna, Jagdamba Singh, Inderpreet Singh and Smt. Gulshan Kaur and not whether there was sufficient ground and primafacie evidence for conviction, as observed by Ld. Trial Court. O.P. Sukhija vs State - CR No. 50 of 2012 11/16
ID No. 02406R0222632012
15. Ld. Counsel submits that Trial court failed to take into consideration the documents filed by the revisionist which clearly show that accused Sandeep Sukhija, Ms. Nishant Kurup, Manju Sharma, Kunti Khanna, Jagdamba Singh were involved in preparing forged and fabricated documents just to give benefit to Inderpreet Singh and Smt. Gulshan Kaur. Learned Trial Court observed that Manju Sharma, Kunti Khanna, Jagdmaba Singh, Inderjeet Singh and Gulshan Kaur were bonafide purchaser of the property . Sandeep Sukhija and Nishant Kurup had no concern with the property. At this stage, on the face of aforesaid, allegations against these persons, these observations were unwarranted and Court had not to consider the correctness or falsity of allegations made in the complaint.
16. Learned counsel for the revisionist argued that trial Court has ignored the fact that there was unregistered sale dated dated 24.05.2000 and the registered sale deed purported to have been executed between Deepika Malik in favour of Kunti Khanna and the registered sale deed dated 24.05.2000 , executed between Deepika Malik in favour of Ram Singh Khanna who was husband of Smt. Kunti Khanna. Thereafter, on 31.05.2010, Kunti Khanna allegedly sold half of the basement portion to Sh. Jagdamba , claiming that she was the owner of the portion of the basement, after purchasing it from Deepika Malik. Ld. counsel for the revisionist submits that Smt. Kunti Khanna was never the original purchaser of the half portion in the Basement of the Property in dispute from Smt. Deepika Malik, rather it was his husband, O.P. Sukhija vs State - CR No. 50 of 2012 12/16 ID No. 02406R0222632012 Sh. Ram Singh Khanna, who had actually purchased the said half portion of the basement from Smt. Deepika Malik vide a Registered Sale Deed dt. 24/05/2000. She was an active participant and a Coconspirator alongwith other accused persons to cheat and defraud Sh. Om Prakash Sukhija, she later on vide an Unregistered Agreement to Sell dated 24/05/2000 had fraudulently shown to have purchased the said half basement portion from Smt. Deepika Malik and had later vide a Registered Irrevocable General Power of Attorney dated 31/05/2010 had allegedly sold the said half basement portion to Sh. Jagdamba Singh claiming therein categorically that she become owner of half basement portion after purchasing the same from Smt. Deepika Malik and had thus sold the same to Sh. Jagdamba Singh as an owner of ½ of the basement portion.
17. It is urged that Smt. Kunti Khnanna in her written statement filed before the Court of Ms. Manika, Civil Judge, Saket Court, Delhi in Civil Suit for Permanent and Mandatory Injunction (Suit NO. 382/2011) filed by Sh. Om Prakash Sukhija categorically admitted her signature on the Registered Irrevocable General Power of Attorney dated 31/05/2010 and the fact that the said document was infact registered in her presence. Since the title of Smt. Deepika Malik itself was defective and the Ld. Trial Court had summoned her one of the accused who is involved in cheating and defrauding Sh. Om Prakash Sukhija, Smt. Kunti Khanna who had allegedly purchased the said portion from Smt. Deepika Malik is equally liable to be prosecuted for O.P. Sukhija vs State - CR No. 50 of 2012 13/16 ID No. 02406R0222632012 cheating, fraud and criminal conspiracy alongwith other accused persons.
18. It is submitted that Smt Manju Sharma, despite being aware of the discrepancies and forgery done by Sh. Mukesh Punani and Smt. Santosh Sukhija and his late husband (Sh. Rohtas Sharma) kept quite and rather helped the accused persons by executing a Irrevocable General Power of Attorney in favour of Sh. Jagdamba Singh based only upon the defective and deceptive title received by her husband from Mrs. Santosh Sukhija. It is argued that she was also an active participant and coconspirator in the conspiracy to cheat and defraud and ultimately to misappropriate the entire property of Sh. Om Prakash Sukhija so as to cause wrongful harm and loss to Sh. Om Prakash Sukhija. He argued that Sh. Jagdmaba Singh, who alongwith the other accused persons, had actually illegally purchased the Basement portion (Half portion from Smt. Deepika Malik and Half portion from Smt. Kunti Khanna) and the Ground and First Floor with roof rights from Smt. Manju Sharma, entirely at the behest and in connivance and in conspiracy with Sh. Inderpreet Singh and Smt. Gulshan Kaur, who are the ultimate beneficiary of the Property in dispute which actually belonged to Sh. Om Prakash Sukhija alongwith his two brothers. It is submitted that Jagdamba Singh, in connivance and in conspiracy with Sh. Inderpreet Singh and Smt. Gulshan Kaur prepared the forged set of documents with active assistance of the other accused persons and all the said accused persons were well aware of the original set of registered set of sale deeds and their dates and the same is also shown from O.P. Sukhija vs State - CR No. 50 of 2012 14/16 ID No. 02406R0222632012 the fact that the unregistered and forged documents are prepared incidentally on the same date vide which the sellers and purchasers have been changed by the accused persons just to somehow make Sh. Inderpreet Singh and Smt. Gulshan Kaur the owners of the said property which legally belongs to Sh. Om Prakash Sukhija and his brothers.
19. Ld. counsel for the revisionist submitted that it was Smt. Deepika Malik and Smt. Kunti Khanna vide their separate written statements filed before the Court of Civil Judge, Saket Courts in the pending suit for permanent and mandatory injunction, that various unregistered documents vide which Smt. Deepika Malik and Smt. Kunti Khanna respectively are shown to be the owner of their respective basement portion were actually prepared, formulated and got executed by and on behest of Sh. Jagdamba Singh who was acting as a conduit for Sh. Inderpreet Singh and Smt. Gulshan Kaur. It is argued that Sh. Inderpreet Singh and Smt. Gulshan Kaur, who were the ultimate beneficiary of the said conspiracy and connivance amongst accused persons are also the actual and real mind behind to misappropriate the property by making various forged and fabricated documents. It is submitted that Sh. Inderpreet Singh and Smt. Gulshan Kaur are actually the real estate broker/builders who are involved in such spurious deals in the past and who had further also managed the police report in their favour to prejudice the Ld. Trial Court. It is argued that a grave injustice has been caused to Sh. Om Prakash Sukhija by letting off the ultimate beneficiary of the aforesaid forgery O.P. Sukhija vs State - CR No. 50 of 2012 15/16 ID No. 02406R0222632012 and conspiracy to cheat and misappropriate the said property of Sh. Om Prakash Sukhija and by proceeding against some of the accused persons while the ultimate and true beneficiary of the said cheating have been let off .
20. The attention of the Court is drawn towards the fact that stamp regarding registered sale deed (Ex. CW1/15) dated 17.05.2010 which was executed by Kunti Khanna to Sh. Jagdamba and the Estamp thereof were purchased on 28.05.2010 and documents were executed on 31.05.2010 regarding half portion of property in question. Documents dated 12.03.2010; 17.03.2010; 17.05.2001; 31.05.2010 and 21.06.2010 were executed after suit for partition was filed by the revisionist , which was pending adjudication and all those were the parties. This Court finds that the view taken by Learned Trial Court that no material is placed by complainant, is erroneous. It seems that all the documents placed on record by the complainant were not considered and noticed carefully by the Learned. Trial Court.
21. In the result, case is remanded back to the Learned. Trial Court with the direction to consider all the documents on record and decide afresh as regards the case of complainant with respect to the remaining persons, after hearing the revisionist. TCR be sent back alongwith a copy of this order. Revisionist shall appear before the Learned Trial Court on 18.12.2012. Revision is allowed accordingly. Revision file be consigned to record room.
announced in the (Vinay Kumar Khanna)
open court on Additional Sessions Judge04(SE)
30th November 2012. Saket Court/New Delhi
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