Delhi District Court
S.M.Zulfiqar Alam vs State on 29 January, 2019
IN THE COURT OF ADDITIONAL SESSIONS JUDGE03(NE),
KARKARDOOMA COURTS, DELHI.
PRESIDED OVER BY: LALIT KUMAR, DHJS
CR No. 07/18
S.M.Zulfiqar Alam
s/o late M.Alam,
r/o F68, Dilshad Colony,
Delhi95. Revisionist
Versus
1 State
2 Sabir
s/o Majeed
3 Avid
s/o Majeed
Both r/o F.No.E82, Gali no.4,
Chand Bagh, Delhi94.
Also At:
Kasba Bilaspur,
Greater Noida,
Gautam Buddha Nagar201301
4 East Delhi Municipal Corporation,
Throughits Commissioner,
419, Udyog Sadan,
Patparganj Industrial Area,
Patparganj,
N.Delhi96 Respondents
CR No.07/18 S.M.Zulfiqar Alam Vs State 1/12
Date of assignment : 23.01.2018
Date of Arguments : 11.01.2019
Date of Pronouncement : 29.01.2019
ORDER
1 Vide the present revision , revisionist has challenged the impugned order dated 11.12.2017 whereby Ld.Trial Court of Sh.Devender Kumar Garg, Ld.CMM/North East, KKD Courts dismissed the application u/s 156(3) Cr.PC of the revisionist/ complainant for registration of FIR in CC no.1115/17 titled as 'S.M.Zulfiqar Alam vs Sabir and ors'.
2 The brief facts which are relevant for deciding the present revision are that respondent no.2 Sabir was the owner of property bearing no.E82, Gali no.4, Chand Bagh, Delhi94 and revisionist/complainant and respondent no.2 Sabir entered into an agreement to sell dt.24.02.2016 in respect of sale of First Floor and Second floor of the said property for a sum of Rs.52,85,000/. Respondents/accused demanded the entire payment in cash, but the revisionist/complainant insisted for some payment in cheques and remaining in cash by withdrawing the same from his account as well CR No.07/18 S.M.Zulfiqar Alam Vs State 2/12 as his wife account. The revisionist/complainant paid the entire amount by cash and cheques and the respondent no.2 issued receipts and possession letters. The revisionist/complainant kept his belongings including computer, books, chairs, tables and other items in the premises and locked the premises. The revisionist/complainant applied for and obtained electricity connection from BSES. The respondents no.2 and 3 raised illegal construction in the said property upto 6th floor and also sold the parking area allotted to the revisionist/complainant, to someone else who is running tailoring and stitching shop and on inquiry, respondents no.2 and 3 started abusing and threatening the revisionist/complainant of dire consequences. Thereafter, revisionist/complainant lodged complaints dt.26.10.16 and 02.03.2017 with the respondent no.4 EDMC regarding such illegal construction and selling. The respondents no.2 and 3 got furious and broke open the lock of the revisionist/complainant's house and stolen all his belongings and put their own locks, to which the revisionist/complainant lodged complaints dt.27.03.2017 with DCP (East), dt.08.06.2017 with SHO, but no action was taken by the police against the respondents/accused persons. When the police did not register the FIR against the accused persons despite complaints, the revisionist/complainant filed a complaint case u/s 200 Cr.PC alongwith application u/s 156(3) Cr.PC for registration of FIR against the respondents no.2 & 3. Status report was filed by the police wherein it was wrongly stated that the entire sale amount of CR No.07/18 S.M.Zulfiqar Alam Vs State 3/12 Rs.52,85,000/ was to be paid by cheque, but the revisionist/complainant had only paid Rs.15,50,000/ by cheque and remaining amount was not paid. The police instead of registering the FIR against the respondent no.2 & 3 on the complaint of the revisionist/complainant, registered a false case bearing FIR no.528/17, U/s 420/467/468/471/120B IPC, PS Gokalpuri against the revisionist/complainant in respect of the said property. Ld.CMM vide an order dt.11.12.2017 declined the prayer of the revisionist u/s 156(3) Cr.PC for registration of the FIR and fixed the matter for examination of revisionist/complainant and his witnesses for 27.03.2018.
3 Being aggrieved by the impugned order of rejecting the application of the revisionist/complainant u/s 156(3) Cr.PC for registration of the FIR, revisionist/complainant has approached this court on the following grounds:
(a) The order of the Ld.Trial Court is erroneous and bad in law as it has failed to appreciate that the revisionist/complainant in his complaint has specifically alleged that the respondents/accused broke open the lock of the house of revisionist/complainant and stolen all his belongings which were sold to him by the respondent no.2 and it is only the police who can recover the belongings of the revisionist/complainant which can be done only after registration of the FIR.
CR No.07/18 S.M.Zulfiqar Alam Vs State 4/12
(b) The Ld.Trial Court further erred in not appreciating that even if there was any forgery of possession letter by revisionist then also it was incumbent upon the police to send the possession letter to FSL for expert opinion and that can only be done after registration of the FIR, but the Ld.Trial Court erred in overlooking this vital aspect and declined to direct registration of FIR.
(c) The Ld.Trial Court grossly erred in not following the settled proposition of law if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. In the present case, the possession letters, final receipt and the photographs showing possession of the revisionist/complainant over the property under sale clearly shows that the respondents no.2 and 3 had issued these documents after receiving the entire consideration amount of the property. Thereafter, the respondents no.2 & 3 illegally trespassed into the property of the revisionist/complainant, removed all his valuable belongings from the said property and respondent no.2 further cheated the revisionist/complainant as the intention of the respondents no.2 & 3 from the very beginning was dishonest and fraudulent.
(d) The Ld.Trial Court has failed to appreciate the status report filed by the police. In the status report, it was wrongly mentioned that the revisionist had to pay the sale consideration by way of cheque and infact there was no such clause in the agreement to sell.
(e) The Ld.Trial Court has failed to appreciate that the CR No.07/18 S.M.Zulfiqar Alam Vs State 5/12 respondent no.2 fraudulently got an FIR no.528/17, PS Gokalpuri registered against the revisionist regarding alleged forgery of possession letter and receipts. The revisionist/complainant lodged a complaint with DCP on 27.03.2017, whereas the respondent no.2 lodged a complaint with the police on 01.04.2017 and 20.04.2017 with the police i.e.prior to the lodging of complaint by the respondent no.2.
(f) The Ld.Trial Court has also failed to appreciate that the possession letter dt.24.02.2016 is being signed in presence of witnesses Mohd.Nazim and respondent no.3 Avid, but in the complaint filed by the respondent no.2, he has concealed this fact before the court as the respondent no.2 has never raised any suspicion on this document, rather the respondent no.2 admitted that he does not even know Musarraf Ali i.e.the witness in the possession letter dt.20.10.2016. Even the respondent no.2 has not questioned the signature of another witness i.e.Mohd.Nazim who appended his signatures as a witness in agreement to sell dt.24.02.2016, GPA dt.24.02.2016, final receipt dt.20.10.16 and in another possession letter dt.20.10.2016. Thus, all these goes to show that these documents were executed by the respondent no.2 in favour of the revisionist/complainant in the presence of the witnesses.
4 Notice of the revision petition was issued to the respondents/accused persons and respondents no.2 & 3 have filed their reply stating that the revision petition filed by the revisionist/complainant is not maintainable and CR No.07/18 S.M.Zulfiqar Alam Vs State 6/12 is liable to be dismissed. The order passed by the Ld.Trial Court is a reasoned order, based on the facts of the case and as such does not call for any interference. That the revisionist/complainant entered into an agreement to sell with the respondent no.2 on 24.02.2016 and revisionist/complainant has paid a sum of Rs.15,50,000/, but as per agreement to sell, the revisionist/complainant had to pay a sum of Rs.52,85,000/ to the respondent no.2. The total agreed amount was to be paid as per the terms and conditions of the agreement between the parties and in case, the respondent no.2 fails to execute the necessary documents in favour of the revisionist/complainant, the revisionist/complainant was entitled to receive double of the earnest money and in case of failure, the earnest money shall stand forfeited automatically.
5 It is further submitted by the respondents in their reply that the revisionist/complainant got an electricity connection in the property under sale on the basis of forged and fabricated possession letter without paying the remaining amount of Rs.37,35,000/ to the respondent no.2 and, therefore , the respondent no.2 filed a criminal complaint against the revisionist/complainant, upon which an FIR bearing no.528/17 at PS Gokalpuri was registered against him. Thereafter, the revisionist/complainant filed the criminal complaint titled as S.M.Zulfiqar Vs Sabir and another, in which after hearing the arguments of the revisionist/complainant, Ld.Trial Court has passed the impugned order thereby rejecting the application u/s 156(3) Cr.PC for registration of the FIR against the respondents no.2 & 3. That the revisionist/complainant has not CR No.07/18 S.M.Zulfiqar Alam Vs State 7/12 furnished any proof regarding possession of the property in question nor any proof has been furnished to show that he had purchased the computers and law books which he had kept in the said property. That the revisionist/complainant has filed a false complaint to DCP on 27.03.2017 wherein he has alleged that he had visited the property in question on 25.03.2017 and found that the room was opened and some muscle men alongwith respondent no.2 was sitting in the said property. That the revisionist/complainant being an Advocate did not take any step to call the police at 100 number, however only a formal complaint was made to DCP on 27.03.2017 i.e. after two days of the alleged incident. Revisionist/complainant in the said complaint has not mentioned the date of his visit to the said property and has simple alleged that the respondents/accused were illegally occupying the property by breaking the locks, committing theft and raising illegal construction. That the revisionist/complainant did not mention the allegations against the respondents/accused in the complaint filed before SHO, which he has levelled in the complaint filed by him before DCP. The signature on the agreement to sell dt.24.02.2016 and forged possession letter dt.20.10.2016 are totally different. The report of the IO shows that the revisionist/complainant has never been in possession of the property and it remained in possession of the respondent no.1. Complaint case which has been filed by the revisionist/complainant is in retaliation to the FIR lodged by the police against him. The revisionist/complainant has forged and fabricated the possession letter and final receipt dt.20.10.16 which is the subject matter of the FIR no.528/17. The revisionist/complainant has not CR No.07/18 S.M.Zulfiqar Alam Vs State 8/12 filed any civil suit either for recovery of possession of premises nor has filed any case for recovery of his money allegedly paid by him to the respondent/accused.
6 I have heard Sh.Anwar Khalil, Ld.Counsel for the revisionist/complainant and Ld.Counsel for respondents no.2 and 3 and Ms.Monika, Ld.Counsel for respondent no.4. I have also carefully perused the record.
7 Case of the complainant is that an agreement to sell dt.24.02.2016 was executed between the revisionist/complainant and the respondent no.2 in respect of sale of first and second floor of property bearing no.E82, Gali no.4, Chand Bagh, Delhi94 for a total sum of Rs.52,85,000/and the revisionist/complainant paid the entire amount by cheque and the respondent no.2 issued final receipt and the possession letter. However, the status report filed by the police reveals that the revisionist/complainant had only paid Rs.15,50,000/ by cheque and the remaining amount of Rs.37,35,000/ was not paid and , therefore, respondent no.2 Sabir has not given the physical possession of the property in question to the revisionist/complainant. The Status Report further mentions that during investigation, respondent no.2 Sabir was found in possession of the property in question which fact has been confirmed by the locality people and the revisionist/complainant was not found in possession of the said CR No.07/18 S.M.Zulfiqar Alam Vs State 9/12 property. Therefore, since the entire amount has not been paid by the revisionist/complainant, question of issuing final receipt and possession letters by the respondent no.2 does not arise.
8 It is also relevant to mention that revisionist/complainant did not mention the date of his visit to the property in question and also being an advocate, he did not take any action when somebody had broken the lock and looted the belongings lying in the said property. He has only given a formal complaint to the DCP on 27.03.2017 i.e. after two days of the alleged incident. Moreover, the revisionist/complainant did not mention the allegations against the respondents in his subsequent complaint made to the SHO, PS Gokalpuri dt.08.06.2017.
9 It may also be seen that the revisionist/complainant filed the complaint before the Ld.Trial Court only after registration of FIR no.528/17 dt.13.09.17 against him. Even before filing the application u/s 156(3)Cr.PC, the provisions of section 154 Cr.PC are not complied with by the revisionist/complainant as the revisionist/complainant has not filed the complaint u/s 154(1) Cr.PC to the SHO and thereafter complaint u/s 154(3) Cr.PC before the DCP rather he has filed his first complaint dt.27.03.2017 before the DCP and thereafter his second complaint dt.08.06.2017 before the SHO. This can get support from the judgment titled as Priyanka Srivastava and Anr Vs State of U.P CR No.07/18 S.M.Zulfiqar Alam Vs State 10/12 and ors. III(2015) SLT 431 of Suprem Court of India, as cited by respondents/accused in support of their case wherein it has been observed that there has to be prior applications under sections 154(1) and 154(3) Cr.PC while filing a petition u/s 156(3) Cr.PC.
10 Furthermore, the revisionist/complainant till date has not filed any civil suit either for recovery of possession of the property in question nor has filed any case for recovery of money allegedly paid by him to the respondent no.2, which shows his malafide intention.
11 There is one another point which requires consideration is that the revisionist/complainant has neither filed on record nor has furnished any proof that he was in possession of the property in question. The revisionist/complainant has also not furnished any record to show that he had purchased computer, books, chairs, tables and other items in the premises which were stolen by the respondent no.2. So far as alleged possession letter in favour of revisionist/complainant is concerned that is a matter of investigation in FIR no.528/17 u/s 420/467/468/471/120B IPC of PS Gokalpuri which has been registered by the respondent no.2 against the revisionist/complainant in respect of the same property.
12 Keeping in view the facts and circumstances of the case, the order of the Ld. Trial Court dt.11.12.2017 for declining to direct CR No.07/18 S.M.Zulfiqar Alam Vs State 11/12 registration of FIR u/s 156(3) Cr.PC is upheld and the revision of the revisionist/complainant is dismissed. With these observations, this criminal revision is hereby disposed off. Trial Court Record be sent back to the Ld.Trial Court alongwith a copy of order to the Ld.Trial Court.
File be consigned to record room.
Digitally
signed by
LALIT
LALIT KUMAR
KUMAR Date:
2019.01.29
17:04:29
+0530
Announced in open court (LALIT KUMAR )
today on 29th January, 2019 Additional Sessions Judge03
(NE): Karkardooma Courts, Delhi.
CR No.07/18 S.M.Zulfiqar Alam Vs State 12/12