Delhi District Court
Sh. Vijay Kapoor vs Sh. Gopi Chand on 12 July, 2018
1
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
UID No. 55913/2016
Criminal Revision no 26/1/16
P.S. Patel Nagar
Sh. Vijay Kapoor
S/o Sh. P.C. Kapoor,
R/o C22, 3rd Floor, Fateh Nagar,
New Delhi.
..... Revisionist/complainant
Versus
1. Sh. Gopi Chand,
S/o Sh. Dalpe,
R/o 21/16, Old Rajinder Nagar,
New Delhi.
2. Smt. Panchi Devi,
W/o Sh. Kanshi Ram Thakur,
R/o 46/12, East Patel Nagar, New Delhi.
3. Sh. Kishore Kumar,
S/o Sh. Kanchi Ram Thakur,
R/o 46/12, East Patel Nagar, New Delhi.
4. Smt. Swarna Thakur,
W/o Sh. Kishore Kumar,
R/o 46/12, East Patel Nagar, New Delhi.
CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 1 of 13
2
5. Smt. Neena Thakur,
W/o Sh. Ashok Kumar,
R/o 18/45 East Patel Nagar,
New Delhi.
6. Sh.R.P. Gupta, Notary,
Asaf Ali Road.
....... Respondents/Accused
Date of filing: 31.05.2016 Date of arguments: 05.07.2018 Date of order: 12.07.2018 O R D E R
1. This revision petition is filed by the revisionist under section 397/401 of Code of Criminal Procedure, (hereinafter referred as Cr.PC) against the impugned order dated 02.05.2016 passed by the court of Sh. Deepak Dabas, the then Ld. ACMM (West), Tis Hazari Courts, Delhi whereby the complaint was dismissed.
2. The revisionist had filed a complaint under section 200 Cr.PC in the court of the Ld. CMM on 27.06.2014. The complainant also filed an application under section 156 (3) Cr.PC alongwith the complaint. The Ld. Trial court called the Action Taken CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 2 of 13 3 report from the SHO concerned and vide order dated 05.08.2014, the application under section 156 (3) Cr.PC was dismissed. Thereafter, the complainant was granted opportunity to lead the pre summoning evidence. The complainant examined himself as CW 1 and Sh. Hemchander Balliff, posted in the office of SDM, Rajouri Garden as CW 2. The Ld. Trial court after hearing the arguments on the point of summoning, was pleased to dismissed the application under section 200 Cr.PC.
3. The revisionist/complainant being aggrieved by the order of dismissal of the complaint under section u/s 200 Cr.P.C has filed the present revision petition.
4. It is stated that the Ld. Trial court has fails to appreciate that the report given by the Collector of stamp shows that the alleged stamp papers were purchased on 16.02.2005, therefore the same cannot have been forged and given to the proposed accused on 31.05.2004 prior to its purchase. That the Ld. Trial CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 3 of 13 4 court has wrongly held that there is no material on record to make out a prima facie case and there is no element of conspiracy. That the proposed accused persons had willfully and knowingly prepared false documentary evidence and used the same to drag the revisionist in false criminal case with serious allegations. That the FIR No. 522/07, under section 420/467/468/120B/34 IPC was registered on the complaint of proposed accused no. 1 wherein he alleged that five 'No Objection Certificates' were given to him on 31.05.2004 by the revisionist. It is prayed that in view of the grounds, the order passed by the Ld. ACMM may kindly be set aside and accused persons be summoned to face the trial.
5. The notice of the revision petition was issued to the respondents. The respondents being served put the appearance through their counsel. The revision petition is strongly opposed by Ld. Counsel for respondents.
6. I have carefully perused the material on record and heard the CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 4 of 13 5 arguments advanced by Sh. Vijay Kapoor. Ms. Seema Singh, Ld. Counsel for respondents addressed the arguments on the revision petition.
7. The revisionist had filed the complaint on the ground that the proposed accused no. 1 in collusion with other accused persons had forged and fabricated 5 'No Objection Certificates' and got the complainant falsely implicated in a case FIR No. 522/07, PS Patel Nagar for commission of the offence under section 420/467/468/471/120B of IPC. The Ld. Trial court was pleased to dismissed the complaint on the ground that the complainant has not filed the original NOCs or had disclosed about their whereabouts. It is also observed that the mere fact that 5 stamp papers in question were purchased by accused no 1 i.e. Gopi Chand do not ipso facto leads to a conclusion that he had forged them, fabricated them and had got them attested in back date more particularly in view of the fact that FSL had not expressed any opinion regarding the same. The Ld. Trial court CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 5 of 13 6 further observed that accused no. 1 had purchased the said five StampPapers, but it cannot be presumed that he had forged and fabricated them as no material is available on record for raising such presumption.
8. The complainant to prove his allegation examined himself as CW 1 and deposed in terms of the complaint. The complainant has relied upon the following documents:
(1) The complaint dated 23.06.2014 Ex. CW 1/A (2) The certified copy of the order dated 28.10.2009 on the writ petition Ex.CW 1/B (3) The NO Objection Certificates Mark A to Mark E (4) The copy of the Fir bearing no. 522/07 Ex. CW 1/C (5) The record of the Collector Ex. CW 1/D (6) Certified copy of the discharge order dated 09.05.2012 Ex.
CW 1/E (7) Certified copy of the order of Sessions court dated 08.04.2013 Ex. CW 1/F. CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 6 of 13 7
9. The CW 2 Sh. Hemchand Balliff posted in the office of SDM, Rajouri Garden has produced the relevant record i.e. Stamp vendor register pertaining to year 2005. CW 2 has proved that as per entry at Sr. No. 28004, 28005, 28006, 28007 and 28008, the stamp papers of Rs. 10 were issued in the name of Sh. Kishore Kumar, Ms. Neena Thakur, Ms. Panchi Devi, Ms. Nikki Thakur and Sh. Ashok Kumar which were purchased by Sh. Gopi Chand.
10.I have placed reliance on the following case law on the point of summoning passed by Hon'ble Supreme Court of India. In Indian Oil Corporation Vs NEPC India Ltd. (2006) 6 SCC 736, it is held as under: "13 while on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely c civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 7 of 13 8 also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangles in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."
The Hon'ble Supreme Court of India in Pepsi Food Ltd. Vs Special Judicial Magistrate (1998) 5 SCC 749 has observed as under: "28 Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the 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 in support thereof and would that be sufficient for the complaint to succeed in bringing CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 8 of 13 9 charge home to the accused. It is not that Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinies the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
11. It is clear from the perusal of the above case law that summoning of an accused in a criminal case is a serious matter. The criminal law cannot be set into motion as a matter of course. The Magistrate is expected to carefully scrutinize the evidence brought on record and his witnesses to elicit answers to find out the truthfulness of the allegations. The Magistrate must satisfy himself about the commission of the offence alleged and the involvement of the accused persons for the commission of the alleged offence.
12. In the complaint, the revisionist has alleged that the accused CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 9 of 13 10 No. 1 in collusion with other accused persons had forged and fabricated 5 NOC's and got him falsely implicated in case FIR No. 522/07. The whole case of the revisionist/complainant lies regarding forgery and fabrication of the 5 NOC's. It is clear from the perusal of the evidence produced by the revisionist/complainant on record that there is no direct evidence to support the allegations of the complainant regarding forgery and fabrication of the NOC's. The revisionist/complainant had not witnessed the forgery or fabrication of these documents. Even the CW2 examined by the revisionist/complainant has not witnessed the same.
13.The revisionist/complainant by way of circumstantial evidence wants to prove his case. The revisionist/complainant has relied upon the testimony of CW2 who deposed that the stamp papers on which the NOC's were prepared were issued on 31.05.2004. The purchase of the stamp papers is not the sufficient circumstantial evidence to justify summoning of the CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 10 of 13 11 accused persons. The law regarding circumstantial evidence is also well settled. To summon a person on the basis of circumstantial evidence, the chain of the events must be closely knitted with each other leaving no loose end. There should be no break in the chain. The chain of the events should not be broken to prove commission of the offence. The circumstances must be so strong which rebut the innocence of the accused.
14.The Ld. Trial Court has rightly observed that only the photocopy of the NOC's were sent to the FSL during the investigation and original documents were never sent to the FSL. The revisionist/complainant has also not produced the original NOC's during the evidence. It is clear that original NOC's have not reached in the court for the perusal at any point of time.
15.The FSL could not give any conclusive opinion regarding the genuineness of the NOC's in the absence of the original. The Ld. Trial Court has rightly observed that mere fact that five CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 11 of 13 12 stamp papers in question were purchased by the respondent No. 1/ accused No. 1 Gopi Chand do not ipso facto reach to the conclusion that he had forged and got them attested in back date. There is no material on record which lead to the conclusion that the respondent No. 1/ accused No. 1 Gopi Chand had forged and fabricated the NOC's. The police had also failed to establish the forgery and the fabrication of the NOC's during the investigation of case FIR No. 522/07.
16.The observation of the Ld. Trial Court regarding issuance of the show cause notice under by Ld. Registrar General of Hon'ble Delhi High Court Section 340 Cr.PC as to why criminal case be not lodged against the revisionist and one Seema Thakur, is not disputed.
17.The Ld. Trial Court has also correctly observed on the basis of the record that the concerned Ld. Metropolitan Magistrate while passing the discharge order in case FIR No. 522/07 has nowhere observed that 5 NOC's were forged or fabricated by CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 12 of 13 13 the respondent No. 1/accused No. 1 Gopi Chand.
18.In view of the above discussions, I am of the considered opinion that there is no illegality or infirmity in the order dated 02.05.2016 passed by the Ld. Trial Court. The Ld. Trial Court has passed the impugned order dated 02.05.2016 in consonance with settled proposition of law. Accordingly, the revision petition filed by the revisionist is dismissed.
19.Revision file be consigned to record room after completion of necessary formalities.
20.Trial court record be sent back along with copy of this order. Announced in the open court today i.e. 12th July, 2018 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI 12.07.2018 This order contains 13 pages and all pages bears my signatures.
(DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI 12.07.2018 CR No.55913/2016 Vijay Kapoor Vs. Gopi Chand & Ors. 13 of 13