Delhi District Court
Gulshan Kumar Arora vs State Of Nct Of Delhi on 2 February, 2023
IN THE COURT OF SHRI SUBHASH KUMAR MISHRA
ADDL SESSIONS JUDGE-07, SOUTH EAST DISTRICT:
SAKET COURT: NEW DELHI
CR No. 624/2017
1. Gulshan Kumar Arora
S/o Lt. Sh. Asa Nand (since deceased)
2. Ms. Reeta Arora
W/o Lt. Sh. Gulshan Kumar Arora,
R/o H.No. M-11, G.F. Lajpat Nagar-III,
New Delhi
..........Petitioners
Vs.
1. State of NCT of Delhi
Through Addl. PP
2. Prem Mohan Bharadwaj
R/o Flat No.5, H.No.359,
360, 361, Subhash Market,
K.M. Pur, New Delhi
..........Respondents
Date of institution: 08.12.2017
Judgment reserved on : 02.02.2023
Judgment pronounced on : 02.02.2023
JUDGMENT
1. This revision petition is directed against the order of Ld. Trial Court passed on 07.11.2017 in the case titled "State Vs. Gulshan Arora & Anr." bearing No.93550/2016, whereby Ld. Trial Court found sufficient material on the record to frame charges against the petitioners under section 420/120-B IPC and against order dated 08.11.2017 vide which the charges were framed.
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2. Shorn of unnecessary details, alleged facts of the case are that petitioner no.2/Smt. Reeta Arora i.e wife of petitioner no.1/Sh. Gulshan Arora agreed to sell a flat measuring 30 sq. yards on plot no.360 to Smt. Neetu Bhardwaj @ Neetu Sharma i.e. wife of respondent no. 2 (hereinafter referred to as complainant), vide agreement dated 26.10.2007 for a consideration of Rs.5 lac. The said agreement was witnessed by petitioner no. 1.
Subsequently, a registered sale deed was executed on 04.01.2008 by petitioner no. 2 wherein the property, sold to Smt. Neetu Bhardwaj @ Neetu Sharma, was mentioned as "flat bearing Pvt. no.5, Second Floor built on approx. 400 sq. feet (38 sq. meters), out of khasra no.627/12 min of property bearing MCD no. 360, situated at Subhash Market, Kotla Mubarak Pur, New Delhi- 110003". However, the petitioners, instead of giving possession of a flat on plot no.360, deceitfully gave possession of a smaller flat on plot no.359 to Smt. Neetu Bhardwaj @ Neetu Sharma.
3. An FIR was registered and after completion of investigation a charge sheet was filed against the petitioners under section 420/34 of IPC.
4. Counsel for petitioners argued that the flat as agreed by the parties was given to the complainant's wife because the flat was sold to her in 2008 and since then she had been residing therein with her family without any objection but suddenly an FIR was registered with an inordinate and unexplained delay on 13.06.2012 propelled by an ulterior motive.
He argued that the complainant's wife also availed a housing loan from Bank of Maharashtra and had the agreed flat not been Gulshan Kumar Arora & Anr. Vs. State & Anr. Page 2 Of 10 given to the complainant's wife then loan would not have been sanctioned by the bank.
He further argued that plot no.359, 360 and 361 measuring 30 Sq. yards, 280 Sq. yards and 61 Sq. yards respectively were purchased by petitioner no.2, however, after construction thereon it cannot be ascertained as to which flat is situated on which plot.
He also argued that date, time and place are missing from the charge framed by the Ld. Trial Court and hence, the same is not in consonance with the provisions of Cr.PC. Further, there was no intention of deceive the complainant's wife, when the inducement was made and hence charge under section 420 of IPC is not made out. He also argued that there is no material on the record to frame charge under section 120-B of IPC.
It was also argued by him that in the agreement to sell it was clearly mentioned that in case of any dispute the same should be sent to arbitration and therefore, it was a civil wrong for which a criminal case should not have been instituted.
5. Counsel for respondent no.2 argued that both the petitioners handed over a smaller flat that too on plot no.359 to the complainant's wife in order to cheat her. He also argued that the loan was taken on the basis of the documents executed between parties i.e. on the basis of flat on plot no.360 but the physical possession of flat on plot no.359 was given to the complainant's wife.
6. I have heard the arguments and have gone through the Ld. Trial Court record including the case laws relied on.
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7. In support of his arguments, counsel for the petitioners relied on following judgments:-
(a) Mrs. Nanda Khemka & Anr. Vs. State NCT of Delhi & Anr. 2016 (155) DRJ 544.
(b) Arun Bhandari Vs. State of UP (2013) 2 SCC 801.
(c) M/s Indian Oil Corporation Vs. M/s NEPE India Ltd. & Ors., 2006 (3) SCC Cri 736.
(d) V.Y. Jose & Anr. Vs. State of Gujarat & Anr. (2009) 3 SCC 78.
(e) S.W. Palanitkar & Ors. Vs. State of Bihar & Anr. 2002 (1) SCC 241.
(f) Ramesh Dahyalal Shah Vs. The State of Maharashtra & Ors. (Hon'ble Bombay HC).
(g) Jaswantrai Manilal Akhaney Vs. State of Bombay (Hon'ble Bombay HC).
(h) K.L. Agarwal Vs. State of U.P. & Anr. (Hon'ble Allahabad HC).
(i) G.V. Rao Vs. L.H.V. Prasad & Ors. (2000) 3 SCC
693.
(j) Murari Lal Gupta Vs. State of Haryana & Ors. (Hon'ble P&H HC).
(k) MD. Ibrahim & Ors. Vs. State of Bihar & Ors. (2009) 8 SCC 751.
(l) G. Sagar Suri and Anr. Vs. State of UP. & Ors. [2000 (2) SCC 636].
(m) State of Kerala Vs. V.A. Pareed Pillai & Anr., (1972) 3 SCC 661.
(n) All Cargo Movers (l) Pvt. Ltd & Ors. Vs. Dhanesh Badarmal Jain & Anr., AIR 2008 SC 247.
(o) State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 SUPP (1) SCC 335.
(p) The Commissioner of Police Vs. Devender Anand.
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8. In Trisuns Chemical Industry Vs. Rajesh Agarwal and Others JT 1999 (6) SC 618, Hon'ble Apex Court held that such reasonings cannot be appreciated that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement, but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement.
Therefore, mere presence of an arbitration clause does not absolve a wrongdoer from the criminal action if the act is otherwise an offence and remedy under criminal laws can be resorted to despite the presence of such clause in any agreement. Hence, arguments of the counsel for petitioners in this regard holds no water.
9. As per section 212 (1) of Cr.PC, the charge shall contain time and place of the alleged offence and the person against whom it was committed, which are reasonably sufficient to give the accused notice of the matter with which he is charged.
In the instant case, the charge framed by Ld. Trial Court, specifically mentions the dates on which the agreement to sell and sale deed were executed. It also mentions that the offence was committed in respect of the wife of the complainant. Though the place of the offence is not mentioned therein yet the particulars mentioned in the charge are very much sufficient to give notice to the petitioners of the matter with which they are charged with.
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10. As far as the arguments regarding of delay in registration of FIR is concerned, as per section 468 of Cr.PC, there is limitation upon taking cognizance of an offence after the lapse of a particular time period. However, there is no provision in law which stops a person from registration of an FIR after the lapse of a certain time period.
11. Further, any person can report to the police about the commission of a cognizable offence and it is not required that only a victim of such offence should report the offence to the police. Hence, the arguments that the husband of the victim had no locus to register the instant FIR holds no water.
Moreover, the instant complaint has been filed against petitioner no.1 stating therein that he had induced the victim to enter into the agreement to sell. Moreover, he is also a witness to the agreement to sell and therefore, prima facie there is sufficient material on record to show the involvement of him as well, in the commission of the alleged offence.
12. In the State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors. AIR 1996 SC 1744, it was observed by Hon'ble Apex Court that if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into and the materials brought on record by the prosecution has to be accepted as true at that stage.
13. Further, in the State of Rajasthan Vs. Fatehkaran Mehdu, Gulshan Kumar Arora & Anr. Vs. State & Anr. Page 6 Of 10 (2017) 3 SCC 198, Hon'ble Apex Court has held that scope of interference under Section 397 Cr.P.C, at a stage, when charge had been framed, is well settled and at this stage, the Court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if, put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure.
14. Moreover, in Amit Kapoor vs. Ramesh Chander and Another, (2012) 9 SCC 460, Hon'ble Apex Court also held that the object of section 397 Cr.P.C is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction of the higher court is very limited one and where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there Gulshan Kumar Arora & Anr. Vs. State & Anr. Page 7 Of 10 is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
15. In Asim Shariff vs. National Investigating Agency, (2019) 7 SCC 148, it was held by Hon'ble Apex Court that it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. But at the same time, it also held that it is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record.
16. In Mahendra Prasad Tiwari vs. Amit Kumar Tiwari and Ors, Crl. Appeal No. 1210/2022 decided by Hon'ble Apex Court on 12.08.2022, it was held that the truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial and at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person.
17. Hence, considering the law laid down by the Hon'ble Apex Court in the aforesaid judgments, it is clear that at the stage of framing of charge, the court has to see only a prima facie case Gulshan Kumar Arora & Anr. Vs. State & Anr. Page 8 Of 10 against the accused and it is not supposed to examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction.
18. It means that if the evidence available on the record prima facie shows that there is likelihood that it can be proved during trial, the charge should be framed.
19. In the instant case, prosecution has placed on record copies of two registered sale deeds. One in favour of one Asha Gautam, whose flat is situated on the first floor just below the flat of the complainant's wife and another in favour of Pratyushi Aggarwal, whose flat is situated on the third floor just above the flat of the complainant's wife. It is pertinent to mention that in the said registered sale deeds, the said flats are mentioned to be situated on plot no. 359.
20. Further, aforesaid sale deeds have been executed by respondent no.2/ Smt. Reeta Arora on 25.07.2009 and 13.01.2009 wherein the area of the flats are mentioned as 26 Sq. metre and 25.083 Sq. metre whereas in the sale deed of the wife of the complainant the area of the flat is mentioned as 38 Sq. mts.
21. Therefore, from the material on record it can be prima facie seen that the flats, just above and below the flat of the complainant's wife, are situated in plot no.359 and all the said flats have different area as per the registered sale deed.
Hence, the question naturally arises as to how the flat of the complainant's wife is situated on plot no.360 as per agreement Gulshan Kumar Arora & Anr. Vs. State & Anr. Page 9 Of 10 dated 26.10.2007 and sale deed dated 04.01.2008.
22. In the instant case, without holding a trial it cannot be known if the transaction was purely civil in nature on the basis of the admitted documents and the allegations made in the FIR.
Prima facie, there is allegation that there was a guilty intention to induce the complainant's wife to part with money for a bigger flat on plot no.360 whereas she was given a smaller flat on plot no.359. Therefore, it is not a case where it could be said that even if the allegations in entirety are accepted, no case is made out.
23. Having discussed as above, this court finds that the impugned orders are correct and do not suffer from any illegality or impropriety and need no interference. Accordingly, the revision petition stands dismissed.
24. Nothing observed herein above shall have any bearing on the merit of the case.
25. TCR be sent back along with a copy of this order. File be consigned to record room, as per rules.
(Subhash Kumar Mishra) Additional Sessions Judge-07, South-East, Saket Courts, ND 02.02.2023 Gulshan Kumar Arora & Anr. Vs. State & Anr. Page 10 Of 10