Delhi District Court
Kumar Date vs State (Govt. Of Nct Of Delhi) on 25 January, 2020
IN THE COURT OF SH. GULSHAN KUMAR,
ADDITIONAL SESSION JUDGE 03
SOUTH EAST DISTRICT, SAKET COURTS
NEW DELHI
IN THE MATTER OF
Digitally
signed by
CNR NO. DLSE010043582018 GULSHAN
CR NO. 377 OF 2018 GULSHAN KUMAR
KUMAR Date:
2020.02.10
Sharafat Ahmed, 15:40:57
S/o Sh. Khalil Ahmed, +0530
R/o House No. F-61,
Batla House, Jamia Nagar,
New Delhi-110025 .......... Revisionist
Versus
State (Govt. of NCT of Delhi) .......... Respondent
DATE OF INSTITUTION : 24.05.2018 DATE OF RESERVING ORDER : 25.01.2020 DATE OF PRONOUNCEMENT :25.01.2020
1. Vide this order I shall dispose of criminal revision petition under Section 397 Cr.P.C. filed by the revisionist against orders dated 24.01.2018 and 17.03.2018 passed by Ld. Metropolitan Magistrate (hereinafter referred to as impugned orders) wherein it was ordered to frame charge against the revisionist and charge under Section 420/467/468/120B IPC was framed against the revisionist.
CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 1 of 152. The brief facts of this case are that police filed the chargesheet under Section 420/468/471/34 IPC against the revisionist before Ld. Trial Court. The complainant Javen Khan got lodged an FIR No. 937/12 stating therein that he was the mechanic of embroidery machine and knew accused Shamim Alam (declared PO) who had been doing the same work for the last 1012 years. Accused Shamim told him that Sharafat Ahmed @ Monu is known to him having the business of jeans and there is heavy profit in the said business and Shamim can get procured big profit to complainant in the said business. Complainant further told that he gave Rs.80,00,000/ in installments to both. Complainant further told that accused gave him the profit two times and for the last four months they did not give any profit and despite repeated demands they also did not return Rs.80,00,000/ to him. The complainant further alleged that when he demanded the money from them, accused Shamim Alam transferred the property no. F35, Nafis Road, Batla House by executing the papers in his name dated 26.09.2012. He further stated that on 21.11.2012, at about 7:00PM, accused Sharafat Ahmed came to above stated flat and claimed himself as the owner of the flat. Then he came to know that Shamim Alam has sold the property by cheating by forging the paper in his name. Both the accused have took money from so many persons in the name of profit in jeans business. Complainant told that Shamim Alam issued five cheques drawn on Jamia Co CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 2 of 15 operative Bank for Rs.80,00,000/ to him saying that after knowing cash in account, complainant can encash the cheques but the complainant never found cash in that account. Shamim Alam in collusion with his friend Sharafat Ahmed grabbed crores of rupees from him and from other persons as such legal action be taken against them. Thereafter, complainant made complaint on 23.11.2012, at about 3:15PM, PS Jamia Nagar and thereafter FIR has been registered against accused persons under Section 420/468/471/34 IPC. Thereafter, IO collected the rent agreement from the revisionist Sharafat Ahmed dated 25.09.2012 by which the property no. F35, Nafis Road, Batla House was given on rent to Shamim Alam. IO also procured the forged GPA and other papers executed by Shamim Alam in favour of the complainant in respect of property no. F35, Batla House, Delhi. Both accused were arrested. During the course of investigation, various persons came and told that they have also been cheated by accused by taking money from them as loan and the same have not been repaid. Various loan agreements and cheques were taken from persons. The specimen signatures of accused Shamim and Sharafat were obtained during the investigation. Thereafter, on completion of investigation, IO filed the chargesheet under Section 420/468/471/ 34 IPC against both accused before Ld. Trial Court. Thereafter, arguments on charge were heard by Ld. Trial Court and written arguments were also filed. Thereafter, Ld. Trial Court CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 3 of 15 passed order dated 24.01.2018 for framing of charge against the revisionist and vide order dated 17.03.2018 charge was framed against the revisionist. Hence, against these orders, the present criminal revision petition has been filed.
3. Ld. Additional PP for State/respondent submits that the order of Ld. MM does not suffer from any infirmity or illegality. It is further argued that the revisionist had received huge money from various other witnesses on the pretext of returning their money with profit, but he never returned even the principal amount to the claimant and further, he cheated the said witnesses. The revisionist had executed documents regarding receiving of money from such witnesses and thus, the said documents cannot be ignored at this stage. Moreover, the revisionist had given one Memorandum of Understanding at the time of his bail wherein he undertakes to discharge his liability by way of payment to the aggrieved persons. At the stage of charge, the Hon'ble Court has to see only the grave suspicion regarding the involvement of accused in the commission of offence and in the present case, there is sufficient evidence to frame the charge against the revisionist and therefore, the Ld. Trial Court had rightly framed the charges against the revisionist and hence, the revision petition is liable to be dismissed.
4. Ld. Counsel for revisionist has argued that there are so CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 4 of 15 many defects and instances in the chargesheet which show that the revisionist Sharafat Ahmed is innocent. In fact main accused Shamim cheated various persons including the revisionist Sharafat Ahmed and now he is absconding. Everything was in the knowledge of IO who supposed to investigate the matter fairly did very illegal and unethical act by making revisionist Sharafat Ahmed as accused. It is further argued that the present matter is civil in nature. It is further argued that revisionist Sharafat Ahmed never met the complainant and any other witnesses and he saw the complainant for the first time at his house bearing No. F35, Batla House as a trespasser. The said house was in the ownership of revisionist Sharafat Ahmed and complainant himself stated that the other accused Shamim Alam gave him the forged papers of house to him. In fact, the complainant and Shamim Alam both played fraud with revisionist by trespassing in his property. Revisionist Sharafat Ahmed also came to know that Shamim gave the forged papers to various persons to get money from them who were completely unknown to the revisionist. Later on, Sharafat Ahmed filed the suit for possession in respect of his property bearing no. F 35, Nafis Road, Batla House, Delhi against complainant Javed Khan vide suit no. 6591/2016 which was decreed in favour of revisionist Sharafat Ahmed vide judgment and decree dated 23.05.2017. Further, Ld. Counsel for the revisionist argued on the lines of his revision petition and grounds thereof.
CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 5 of 155. I have heard and considered the submissions of the parties and have perused the record.
6. Before proceeding further, I deemed it fit to reproduce Sections 420/467/468/120B of the Indian Penal Code which are read as under-
Section 420 IPC-Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, after or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 467 IPC-Forgery of valuable security, will, etc. - Whoever forges a document which purports to be valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 6 of 15 money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 468 IPC-Forgery for purpose of cheating. - Whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Section 120B IPC-Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
7. It was held by Hon'ble High Court of Delhi in case titled CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 7 of 15 as "Ashok Kumar Nayyar Vs. The State" on 01.05.2017 that "it was well settled in Prafulla Kumar Samal case that the Court has to sift the evidence and determine whether a grave suspicion about commission of offence exists on the basis of the materials. Kurane case is an authority for the proposition that if there are two versions or two inferences can be reasonably drawn, the version favourable to the accused has to be accepted by the Court so long as it is a reasonable one".
8. The Hon'ble Supreme Court of India in case of "Nitya Dharmananda @ K. Lenin & Anr. Vs. Sri Gopal Sheelum Reddy reported at 2017 SCC on Line SC 1430" held that -
"... at the stage of framing of charge, the accused cannot ordinarily move under Section 91. However, the Court being under the obligation to impart justice and to uphold the law is not debarred from exercising its power, if the interest of justice in a given case so require even if the accused may have no right to invoke Section 91 Cr.P.C. to exercise this power the Court is to be satisfied that the material available with the investigator, not made part of the chargesheet has crucial bearing on the issue of framing of charge"
9. In "Panduram Sitaram Bhagwat Vs. State of Maharashtra 2005(1) Crime 104 (SC)" the Hon'ble Supreme CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 8 of 15 Court of India has observed that-
.... a lady would not "put her character at stake" may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decision where charges under Section 376 and 354 of IPC have been found to have been falsely advanced.
10. In "Union of India Vs. Prafulla Kumar Samal & Anr., AIR 1979 3 SCC 4", the Supreme Court of India while dealing with the powers under Section 227 of the Code of Criminal Procedure has held that "a judge is not required to act merely as a "post office"
of "mouthpiece" of the prosecution but has to consider the broad probabilities of the case and the total effect of the evidence".
11. It was held by Hon'ble High Court of Delhi in case titled as "Rupinder Kaur Vs. State & Other in Crl. Rev. P. 363/13"
that-
It is well settled in Prafulla Kumar Samal case that it two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused.CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 9 of 15
12. It was held in the case of "K. P. Raghavan & Anr., Vs. M. H. Abbas & Anr.(1) [1978] S.C.R. 287" that-
" No doubt a Magistrate enquiring into a case under Section 209, Cr.P.C. is not to act as mere Post Office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session."
13. In the case of "Almohan Das & Ors. Vs. State of West Bengal(2)" it was held as under-
"A Magistrate holding an enquiring is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment; and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit; it is the duty to discharge the accused; if there is some evidence on which a conviction may reasonably be based, he must commit the case."
14. In the aforesaid case the Court was considering the scope and ambit of Section 209 of the Code of 1898. Thus, on a consideration of the authorities mentioned above, the following principles emerges-
(1) That the Judge while considering the question of CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 10 of 15 framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 11 of 15 the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
15. It was held in "Rajiv Thapar & Others Vs. Madan Lal Kapoor (2013) 3 SCC 330" as under-
.... that the allegations leveled by the complainant far from being sound appears to be almost nonexistent; there was no reason why any specification has not been given. On general allegations, charge cannot be framed. Criminal jurisprudence is firm. A man is presumed to be innocent unless proven guilty. A person is also not to be asked to face trial and suffer not only the humiliation of a long protracted litigation but also cannot be asked to suffer the pressure of an exercise which on the factual matrix, as narrated above, would be an exercise in futility as the allegations in the complaint taken as a whole would not be sufficient to uphold the impugned order.
16. Section 420 IPC (Cheating and dishonestly inducing delivery of property)- The essential ingredients of offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 12 of 15 person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
17. Section 120B IPC (Punishment of criminal conspiracy)- Definition of "criminal conspiracy" given in Section 120A reads as follow:
Section 120A IPC- When two or more persons agree to do, or cause to be done, - (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
(i) The elements of a criminal conspiracy have been stated to be : (a) an object to be accomplished; (b) a plan or scheme embodying means to accomplish that CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 13 of 15 object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means; and (d) in the jurisdiction where the statute required an overt act.
18. In the present case, on bare reading and perusal of contents of chargesheet it appears that the present case is of civil nature. There is no ingredients of cheating and forgery found anywhere against the revisionist Sharafat Ahmed. The complainant himself stated that he gave money to accused persons to get profit in jeans business. Complainant gave Rs.80 Lacs in installments and also received profit from accused persons, but for the last four months the accused persons neither gave the profit nor the principal amount. It is clear that the alleged facts give cause of action to file civil recovery case against the accused. There is no inducement or enticement on the part of accused Sharafat Ahmed to get any money from the complainant. Investigating Officer did not inquire the complainant as to how he arranged such huge money for investment. In the present case, FSL report is also not against the revisionist Sharafat Ahmed. No signatures on any document matched with the signatures of revisionist Sharafat Ahmed. Furthermore, one document executed regarding receiving CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 14 of 15 of money from one person on his witness, does not bear the signatures of revisionist and the another document pertains to some business and there is no criminal element in noncompliance of the said document, if any.
19. Keeping in view the above discussion and law laid down by Hon'ble Supreme Court of India, the orders dated 24.01.2018 and 17.03.2018 passed by Ld. MM are set aside. Revisionist namely Sharafat Ahmed stands discharged for the offence under Section 420/467/468/120B IPC. Accordingly, criminal revision petition stands allowed.
Criminal Revision Petition Record be consigned to record room.
Trial Court Record, if any, be sent back to court concerned along with copy of order.
Copy of the Order be given dasti.
ANNOUNCED IN THE OPEN COURT (GULSHAN KUMAR)
ON 25.01.2020 ASJ03, S.E., SAKET COURTS
NEW DELHI
CR No. 377/18 Sharafat Vs. State (Govt. of NCT of Delhi) Page 15 of 15