Delhi District Court
Jagan Nath Sharma vs Rajneesh Kr. Sharma on 13 September, 2011
IN THE COURT OF SH. RAJ KAPOOR,
ADDITIONAL SESSIONS JUDGE (WEST02) , THC DELHI.
Criminal Rev. No. 156/2/11
IN THE MATTER OF :
Jagan Nath Sharma
s/o Late Sh. Gobind Ram
R/o 272/4, New Janak Puri,
near Grover School,
Saleem Tabri,
Ludhiana, Punjab
..............Revisionist
Versus
1. Rajneesh Kr. Sharma
s/o Lt. Sh. Radhy Shyam Sharma
R/o C2/34, Janakpuri, New Delhi - 58.
Also at: 824, St. No. 11, Field Ganj,
Ludhiana, Punjab.
2. Pritam Kumar s/o Sh. Bansidhar Sharma
R/o 884, Yamuna Nagar, Haryana.
3. Ram Lal Sharma s/o Sh. Gela Ram
R/o B98/2, Derawal Nagar,
Delhi.
4. Sub Registrar,
Office of SubRegistrar,
Janakpuri, New Delhi.
................Respondents
13.09.2011
ORDER
Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 1 / 8
1. This revision petition is directed against the order dated 05.07.2011 passed by ld. ACMM ,West Distt. Tis Hazari Courts, Delhi in complaint case titled as 'Jagan Nath Sharma Vs. Rajneesh Kumar Sharma & Ors' (hereafter referred as impugned order) whereby ld. trial court dismissed the complaint case filed u/s 200 Cr.PC of revisionist.
2. Briefly the factual matrix of the case is that there is a property dispute between the revisionist and the respondents with regard to property bearing no. C2/34, Janakpuri, New Delhi. Allegedly, the said property has been obtained by the respondents dishonestly by using deceitful means. In this regard revisionist had filed a complaint case u/s 200 Cr.PC along with application u/s 156 (3) Cr. PC against the respondents for the offences punishable u/s 403/ 406/ 420/ 467/ 468/ 471/ 506/ 120B IPC. The application u/s 156 (3) Cr. P.C. was dismissed by ld. trial court on 11.01.2011. Thereafter, ld. trial court followed due course of law and dismissed the complaint case vide impugned order dated 05.07.2011 observing that:
Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 2 / 8 "Prima facie the record, if seen, does not support the factum of the deceased having of unsound mind. The record has been produced in xerox form and pertains to very short period from 21.03.2007 to 29.03.2007. Even the said period does not at all describe the factum of any mental unsoundness of the deceased to infer the circumstances of execution of the documents by the deceased in condition of his unsoundness of mind. In the absence of any such record, the contention of the complainant is highly unbelievable.
Having given my thoughtful consideration to the submissions, I find the complainant does not reveal the sufficient material warranting the order of summoning the accused persons. Present is the case where the complainant has challenged the execution of 'Will' and 'Gift Deed' before civil court against accused persons. The material present in the complaint does not attract the ingredients of the offences alleged in the complaint against accused persons."
3. Feeling aggrieved with the impugned order dt. 05.07.2011 revisionist filed this revision petition on the grounds that impugned order is bad in law and against the facts and circumstances of the case. Revisionist also argued and submitted that impugned order is based on presumption, conjectures and surmises and as such the same is not sustainable in the eyes of law. He further submitted that at the stage of issuance of process, only a prima facie case is required to be seen against the accused. It is submitted that revisionist is a senior citizen and deceased Baldev Raj Sharma was his real elder brother. Deceased Baldev Raj Sharma died on 21.02.2008 at Ludhiana leaving Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 3 / 8 behind the revisionist as well as sister Smt. Bimla Prabhakar. Deceased Baldev Raj Sharma was blind by birth and was unmarried at the time of his death. It is argued and submitted that in the last week of February 2008, revisionist visited the office of DDA, Vikas Sadan, New Delhi for getting one half share of house no. C2/34, Janakpuri, New Delhi. He submitted the requisite documents with the DDA officials through Registered post on 10.03.2008. On 17.03.2008 revisionist came to know that a 'conveyance deed' has already been executed in favour of deceased Baldev Raj Sharma with the office of Sub Registrar, Janakpuri, Delhi. The petitioner went to the Sub Registrar Office at Janakpuri and there he came to know that respondent no.1 has got the 'Gift Deed' and 'Will' executed in his favour from deceased Baldev Raj Sharma regarding his immovable and movable property on 08.03.2007. On knowing these facts, revisionist filed a civil suit for declaration of the alleged documents as null and void before ld. Civil Judge, Delhi against respondents. During the course of pendency of civil case Respondent no.1 had also filed a Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 4 / 8 Probate case no.90/08 for the grant of Probate on the basis of the said alleged 'Will' but revisionist was not made party in the said petition. Revisionist was never summoned since respondents did not take steps to file PF and RC to serve the close relatives of the deceased. It s also argued and submitted that deceased Baldev was not possessing sound mind and prior to his demise he was undergoing treatment of Neurology therefore, he was not competent and capable to execute the alleged documents i.e. 'Gift Deed' and 'Will' dated 08.03.2007 therefore, all the alleged documents have been manufactured, manipulated, forged and fabricated by the respondent no.1 with the help and association of the other respondents. Again it is argued and submitted that revisionist in support of his case had examined only one witness namely Jagan Nath Sharma, himself. He further submitted that a prima facie case has been made out against the Respondents. In support of his contentions ld. counsel has relied upon the judgment 'Amrit Khera Vs. Govt. of NCT of Delhi & Ors. 171 (2010) Delhi Law Times 607' wherein it has been observed that :
Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 5 / 8 '"Criminal Procedure Code, 1973 - Sections 2 (d), 156 (3), 200 - Complainant - Cognizance - FIR - threat calls received by petitioner - police refused to register FIR . Magistrate dismissed application of complainant under section 156 (3) observing no technical or scientific investigation was required for registering FIR. Petitioner was having only phone number of caller and police had resources to find out name of the caller and other particulars of caller by approaching service providers. .............. The other option available tot he Magistrate is to send the complaint to the appropriate police station under section 156 (3)After investigating the complaint the police submit a report under section 173 (2) on which a Magistrate may or may not take cognizance under section 190."
Ld. counsel has also relied upon the judgments '2008 [4] JCC 2347 - Puran Mal Gupta & Anr. Vs State & Anr.' and '(2005) 4 SCCs 370 - Iqbal singh Marwah and Anr. Vs Meenakshi Marwah and Anr. On the strength of these citations ld. Counsel submitted that where forgery of a document is committed prior to that document being produced or given in evidence in a proceedings in any court would render the victim of such forgery or forged document remediless in cases where the court may not consider it expedient in the interest of justice to make a complaint. It is also argued that when a written complaint filed before a Magistrate discloses a cognizable offence,the Magistrate may take cognizance upon the same under section 190 of Cr. PC and proceed with the same in accordance with the provisions of chapter XV. On these grounds ld. counsel for the revisionist submitted that revision petition be allowed and impugned order be set aside. Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 6 / 8
4. Contrary to it, ld. APP submitted that as per the medical report, deceased Baldev Raj was neither blind by birth nor he was of unsound mind at the time of execution of 'Will' dated 08.03.2011 as well as 'Gift Deed' dated 08.03.2011. On these grounds ld. APP submitted that revision petition of the revisionist does not deserve any merit to succeed at this stage.
5. I have perused the entire case file and gone through the submissions of revisionist and ld. APP as well. I have also perused the judgments as relied upon by the revisionist's ld. counsel. The judgments / citations are not applicable in the present case since facts of the present are entirely different. In the case in hand, material as well as evidence available on record do not inspire the confidence to the factum that deceased was of unsound mind. The record which were produced before ld. tria court were in xerox form and pertains to very short period from 21.03.2007 to 29.03.2007. Even the said period does not at all describe the factum of any mental unsoundness of the deceased to infer the circumstances of execution of the documents by the deceased in condition of his unsoundness of mind. In the absence of any such Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 7 / 8 record, the contention of the revisionist is highly unbelievable. Besides, revisionist has challenged the execution of 'Will' and 'Gift Deed' before civil court against respondents. Further making a prima facie view by the court concerned is purely discretionary matter which empowers the ld. ACMM to cut edge for the purpose of propriety whether a prima facie case is made out or not. Hence, exercising of discretionary power by the ld. trial court does not appear illegal and improper. Therefore, it will not be expedient to interfere with the order of ld. ACMM at this stage. Thus, I do not find any infirmity/ illegality/ impropriety in the order dt. 05.07.2011 passed by ld. Trial court. Hence, in the facts and circumstances of the case, the revision petition is dismissed. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 13.09.2011 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):THC DELHI Crl. Rev. No.156/2/11 Jagan Nath Sharma Vs Rajneesh Kr Sharma etc 8 / 8