Delhi District Court
Sh. Ram Kumar Tiwari vs The State (Govt. Of N.C.T. Of Delhi) on 19 October, 2016
Criminal Revision No.202/16
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 202/16
Under Section : 467/420/468/471/120-B IPC
Police Station : M.S. Park
FIR No. : 219/13
Unique I.D. No. : 444092016
In the matter of :-
Sh. RAM KUMAR TIWARI
S/o. Sh. Raghuveer Tiwari,
R/o. 4650/2-A, Gali No.7,
New Modern Shahdara, Delhi-93.
.........REVISIONIST
VERSUS
THE STATE (GOVT. OF N.C.T. OF DELHI)
..............RESPONDENT
Date of Institution : 11.08.2016
Date of receiving the case in this court : 12.08.2016
Date of reserving order : 03.10.2016
Date of pronouncement : 19.10.2016
Decision : Petition is partially allowed.
ORDER
1. Vide this order, I shall decide present revision petition directed against two orders dated 05.05.2016 and 03.06.2016, passed by the trial court in a case titled as State v. Raj Kumar Sharma etc., bearing FIR No.219/13, under Section 467/420/468/471/120-B IPC. Vide impugned order on the point of charge dated 05.05.2016, the trial court fixed the matter for framing of charge and vide impugned order dated 03.06.2016, trial court framed charges against accused persons including revisionist herein for offences punishable under Section 420/467/468/471/34 IPC.
Page 1 of 9 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16
2. Briefly stated, the relevant facts of the case are that complainant Smt. Pushp Lata Sharma made a complaint to SHO PS M.S. Park alleging that she had shifted to Delhi in August 2012, after retiring from her service as a teacher in Sh. Ganganagar, Rajasthan. She planned to buy a property in Delhi and for that purpose she requested her nephew Manoj Kumar to help her. She along with Manoj Kumar came in touch with accused Ram Kumar Tiwari, who was well known property dealer in that area. Mr. Ram Kumar Tiwari introduced complainant to Sh. Naseem Ahmed and Sonu, who claimed themselves to be money investors. All these three accused persons showed property no.12-B, new number H.No.1/4348, Ashok Marg, Loni Road, Ram Nagar Extension, Shahdara, Delhi to the complainant and introduced her to accused Raj Kumar Sharma. Raj Kumar Sharma claimed himself to be owner of that property. Complainant negotiated for the deal and accused Raj Kumar Sharma agreed to sell that property for total consideration of Rs.40,50,000/-. An agreement to sell was executed between complainant and Sh. Raj Kumar Sharma on 28.08.2012, which was witnessed by Sh. Ram Das and Sh. Manoj Kumar Sharma. Complainant paid Rs.10 lac as advance money to Raj Kumar Sharma on execution of that agreement. As per agreement Raj Kumar Sharma had to hand over the possession of that property to the complainant on or before 05.12.2012. On 30.08.2012 accused Ram Kumar Tiwari and Naseem approached complainant and told her that they would get the sale deed executed in her favour on 31.08.2012 and on that pretext they asked complainant to pay Rs.17,50,000/- and got that payment made to Sh. Raj Kumar Sharma. On 31.08.2012 complainant was asked to wait at home with assurance that she would be called at the office of registrar for execution of sale deed, but thereafter all the accused persons kept on extending the time till evening and in the evening they Page 2 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16 told complainant that registrar did not give the time for execution of sale deed. Thereafter, accused Ram Kumar Tiwari, Naseem Ahmed, Sonu and Raj Kumar Sharma kept on extending the time on one or other pretext. On 04.12.2012 complainant telephonically called Sh. Raj Kumar Sharma and Raj Kumar Sharma asked her to come at the office of registrar Shahdara/ Seelampur on 05.12.2012 at 10:00 AM for execution of sale deed. Complainant visited that office on 05.12.2012, but no one turned up till 11:30 AM. Complainant tried to make call to all accused persons, but none of them picked up her call. Next day, accused Ram Kumar and Naseem came to the house of complainant and gave some excuses on behalf of Raj Kumar Sharma for not turning up at the office of sub- registrar. They further asked to extend the time, but complainant refused for the same and demanded her money back. Sh. Ram Kumar Tiwari made a call to accused Raj Kumar Sharma on telephone and he promised to return double money of the complainant, as per terms and conditions of the agreement. He sought time of 10 days to make this payment. Thereafter, Raj Kumar Sharma along with Ram Kumar Tiwari approached complainant on 14.12.2012 for further extension of time, but on refusal of the complainant they started threatening the complainant for not returning back the money. Complainant along with her nephew contacted accused Naseem, who informed that there was some dispute in respect of property in question. Thereafter, complainant made further inquiry and came to know that accused Raj Kumar Sharma was not the owner of property in question, rather one Sh. Kamal Kishore was the owner. Thus, complainant realised that she was cheated on the basis of mis- representation of the facts by Raj Kumar Sharma in a conspiracy with other accused persons.
Page 3 of 9 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16
3. All the accused persons were summoned by the trial court and vide impugned order, ld. MM decided to frame charges against all accused persons for offences under Section 420/467/468/471/34 IPC. GROUNDS OF REVISION :-
4. Being aggrieved of the impugned orders, revisionist has preferred this revision petition on the following grounds :-
● That the trial court passed the impugned order on the point of charge on 05.05.2016 and framed the charges under Section 420/467/468/471/34 IPC on 03.06.2016. The trial court did not follow the rule that the charge under proper Sections shall be framed against the accused persons according to their specific role played in the commission of the offence.
● That the trial court did not appreciate that there was no material on the record which could show that revisionist had dishonest or fraudulent intentions at the time of introducing the complainant to Raj Kumar Sharma.
● That the trial court did not appreciate that there was no evidence to show that revisionist knowingly made false representation dishonesty or fraudulent. It would not attract the charge of cheating only because the complainant had entered into agreement in respect of sell and purchase of said property. That the introducer had no fraudulent or mala fide intentions in respect of cheating the persons at the initial stage.
● That the trial court did not appreciate that revisionist only introduced complainant to co-accused Sh. Raj Kumar Sharma and he is not the owner of the property nor any document related to sell purchase or the property between Pushp Lata and Sh. Raj Kumar Sharma has been executed in his presence as well as no document bears signature of Page 4 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16 the revisionist. Under these circumstances, no charge is made out against the revisionist.
● That the trial court did not appreciate that the revisionist had put his signature as a witness when the consideration amount has been received by Raj Kumar Sharma, but as per the CFSL report the signatures of the revisionist did not match with the signature which has been put on the documents in respect of receiving the consideration amount by Sh. Raj Kumar Sharma from Pushp Lata Sharma. There is no allegation that the revisionist had ever forged any document in any manner to induce the complainant to enter in the said sale property. ● That aforesaid facts and circumstances and submissions show that the Sections of 467/468/471 IPC are attracted against the revisionist and he is entitled to be discharged from these Sections of IPC. ● That the trial court did not appreciate that there was no proper meeting of mind between the accused persons as there was no evidentiary documentary evidence or any other evidence on record. ● That the trial court did not appreciate that the complainant was duty bound to verify all the relevant information from the registrar office and from other source prior to handing over such huge amount to Sh. Raj Kumar Sharma. But the complainant had not done any such inquiry or made any effort to find out the truth of the facts related to the property. ● That the trial court did not appreciate that there was no material on the record which could show that the intentions of the revisionist had been dishonest or fraudulent intentions at the time of introducing the complainant to co-accused Raj Kumar Sharma, who was the owner of the property in respect of which the entire transactions have been taken place between the complainant and Mr. Raj Kumar Sharma.Page 5 of 9 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16 ARGUMENTS ON BEHALF OF PETITIONER AND STATE :-
5. Ld. counsel for petitioner made arguments on the line of grounds taken in the revision petition, to submit that neither there are specific allegations of petitioner being owner of property in question or about his knowledge that the property was not in the name of accused Raj Kumar Sharma. He further submitted that there are no allegations of forgery and ingredients of these offences are not satisfied in this case.
6. Ld. Addl. PP submitted that the allegations made by the complainant make it clear that petitioner acted in conspiracy with other accused persons, specially Raj Kumar Sharma to persuade the complainant to enter into this agreement and to deliver money. Though, the property in question was not in the name of Raj Kumar Sharma. Therefore, petitioner is liable to be charged for all the offences with aid of Section 120-B IPC. FINDINGS :-
7. I have given due consideration to the materials placed on the record. The prosecution has alleged that the property in question was not in the name of Sh. Raj Kumar Sharma, still he entered into an agreement to sell this property in favour of complainant and received money from the complainant on this account.
8. The question is that whether any offence under Section 420/467/468/471/ 34 IPC is made out against the petitioner on the basis of case presented by the prosecution? The role of petitioner was to introduce the complainant to accused Raj Kumar Sharma, to show his house for the purpose of sale and to persuade the complainant to enter into this agreement to sell. The agreement to sell was executed by accused Raj Kumar Sharma without being owner of property in question. Thus, there was a deception played upon the complainant to part with her money in the name of purchasing this property from Raj Kumar Sharma. So much Page 6 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16 of allegations to make out the case of cheating punishable under Section 420 IPC. It is true that petitioner was not owner of this property and he did not take any money from the complainant in this transaction. However, the allegations do show that he played an active role to represent that this property belonged to accused Raj Kumar Sharma, being a property dealer. If a property dealer projects a particular person to be owner of a particular house, it is assumed that he has verified such fact. Therefore, if that person is not found to be owner of that property, then it has to be prima facie assumed that even the property dealer had falsely projected that person as the owner. It would be for the petitioner to explain that under what circumstances be projected Raj Kumar as owner of the property. The allegations made by complainant show that petitioner not only introduced her to accused Raj Kumar Sharma, but he also persuaded her to make payment of money at different times and he also sought extension of time for execution of sale deed by Raj Kumar Sharma from time to time. So much of circumstances do point out something fishy on the part of petitioner, so as to indicate that he was part of the conspiracy to persuade the complainant to enter into this agreement and to make payment to accused Raj Kumar Sharma. There are many transactions, which take place behind the purchaser. Therefore, it was not expected from the complainant to tell what actually commission was paid to the petitioner by accused Raj Kumar Sharma. It is suffice to observe that petitioner was a part of conspiracy to cause wrongful loss to the complainant, out of a game of deception. Therefore, I do not find merit in the contention of the petitioner regarding absence of any material to show his involvement in respect of offence under Section 420 IPC. The only modification is required to add Section 120-B IPC in that charge.
Page 7 of 9 (Pulastya Pramachala)Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16
9. Now coming to the question of other offences under Section 467/468/471 IPC, it is imperative to know if there was forgery as defined in Section 463 IPC. Section 463 IPC talks about making of false document to support any claim or title etc.
10. A full bench of Supreme Court in Ram Narayan Popli v. CBI, (2003) 3 SCC 641, had occasion to deal with the ingredients of forgery and while dealing with this question, the court observed as follows :-
"The first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any communities."
11. The court further observed that "the definition of the offence of forgery declares the offence to be completed with a false document is made with specified intention. The questions are (I) is the document false, (ii) is it made by the accused and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty."
12. The aforesaid observations of the Supreme Court make it amply clear that in order to constitute forgery, the first ingredient, which requires to be established is making of a false document. While dealing with question of making of false document, Supreme Court in Mohd. Ibrahim & Ors. v. State of Bihar (2009) 8 SCC 751, held as under :-
"In short, a person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tempered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his sense."
13. In the present case, it is not alleged by prosecution that a document was prepared i.e. agreement to sell by the accused persons including petitioner, in the name of actual owner i.e. Sh. Kamal Kishore. It is a case Page 8 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.202/16 wherein agreement to sell was executed claiming title over a property, without being owner of the same. Chargesheet filed by IO is silent in respect of any other document, if alleged to be forged by any of the accused persons including petitioner. In that situation, I do find that the case presented by prosecution does not satisfy the ingredients of forgery and hence, the offences under Section 467/468/471 IPC are not made out against the petitioner because all of these offences talk about forgery. DECISION :-
14. In view of my foregoing discussions, I find that the impugned order dated 05.05.2016 requires to be modified to say that petitioner is liable to be charged for offence under Section 420 IPC read with Section 120-B IPC and he is entitled for discharge for offences under Section 467/468/471 IPC. Revision petition is accordingly partially allowed.
15. The trial court is directed to re-frame the charges in accordance with this order. Trial court record along with copy of order be sent back to the trial court.
File of revision be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 19.10.2016 Additional Sessions Judge (Shahdara) (This order contains 9 pages) Karkardooma Courts, Delhi Page 9 of 9 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi