Delhi District Court
Shushant Gupta vs State Of N.C.T Of Delhi on 17 July, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. REVISION No. 240 of 2019
CNR No. : DLST-01-004315-2019
1. SHUSHANT GUPTA
S/o SURYA KANT GUPTA
R/O H. NO. B-1/45,
SAFDARJUNG ENCLAVE,
NEW DELHI.
2. ANITA GUPTA
W/O SURYA KANT GUPTA
R/O H. NO. B-1/45,
SAFDARJUNG ENCLAVE,
NEW DELHI ......... REVISIONISTS
VERSUS
1. STATE OF N.C.T OF DELHI
THROUGH PUBLIC PROSECUTOR
SAKET COURTS, NEW DELHI
2. RAJEEV AGGARWAL
S/O LT. SH. MAHAVIR SARAN AGGARWAL
R/O LT-0410001, PARAS TIEREA,
SECTOR-137, NOIDA,
GAUTAM BUDHDHA NAGAR,
U.P.-201301 ........ RESPONDENTS
DATE OF INSTITUTION : 04.07.2019
ARGUMENTS HEARD ON : 17.07.2023
DATE OF JUDGMENT : 17.07.2023
RAKESH
KUMAR
SINGH
Digitally signed by
RAKESH KUMAR Cr Rev 240/2019 Sushant Gupta and Ans. Vs. State and Anr Page 1 of 6
SINGH
Date: 2023.07.17
16:48:02 +0530
JUDGMENT
This is a revision petition filed against the order dated 28.03.2019 whereby the Ld. Trial Court chosen to direct framing of charge against the present revisionists for offence punishable u/s 466/471/34 IPC.
2. Both the sides have been heard. Record perused.
3. It appears that one Anita Gupta filed a maintenance application on behalf of her mother and father to claim maintenance from her brother Rajeev Aggarwal and in that maintenance application the Ld. Judge raised a query about locus of the said Anita Gupta. This prompted the said Anita Gupta to bring a power of attorney to the notice of the Ld. Judge but the Ld. Judge was of the view that since the power of attorney was executed subsequent to the institution of maintenance application, the said Anita Gupta could not have maintained the application. Consequently, the maintenance application was dismissed vide order dated 11.11.2013. The said Rajeev Aggarwal was having doubt over the genuineness of the power of attorney and therefore he triggered the criminal machinery and ultimately, upon directions of a Ld. Magistrate, FIR no. 273/2014 was registered in PS Saket for offences punishable u/s 420/468/471/34 IPC. The police investigated the matter and came up with a charge-sheet against Anita Gupta and her son Sushant Digitally signed by Cr Rev 240/2019 Sushant Gupta and Ans. Vs. State and Anr Page 2 of 6 RAKESH RAKESH KUMAR KUMAR SINGH SINGH Date:
2023.07.17 16:48:22 +0530 Gupta. When the time came for consideration on charge, a Ld. Magistrate passed an order on 28.03.2019 indicating that offence u/s 471 read with Section 466 IPC was only made out. It is the said order which is under challenge in this revision petition.
4. Ld. Counsel for the accused argued that mother of Anita Gupta has stated in the statement under Section 164 Cr. P.C. that she and her husband had authorized to file maintenance application and therefore, no charge can be made out. The Ld. Counsel for respondent on the other hand argued that at the stage of charge, value of available evidence cannot be considered against each other and therefore the Ld. Magistrate was justified in framing the charge.
5. The Ld. Magistrate in the order dated 28.03.2019 has made following observation:
"I have put to the counsel for the accused whether any complaint/FIR has been lodged by the accused persons claiming that the sample cheque used for sample was also forged. Ld. Counsel for accused has submitted that no such complaint has been made by the accused persons. In view thereof, I have to assume that no dispute has been raised before any authority that the said sample cheque is not genuine. Therefore, there is sufficient material for me, in the form of expert opinion, to conclude that the signatures of Sh. Mahavir Saran Aggarwal are forged. However, there is no material to show that the forgery was actually committed by accused persons as the FSL has not given any such finding.
Next, photocopy of this very Power of Attorney produced before the court where maintenance petition was filed by the accused persons on Digitally signed by RAKESH RAKESH KUMAR Cr Rev 240/2019 Sushant Gupta and Ans. Vs. State and Anr Page 3 of 6 KUMAR SINGH SINGH Date:
2023.07.17 16:48:29 +0530 behalf of the alleged executor of the said Power of Attorney.
Counsel for the accused argued that this photocopy was filed after Sh. Mahavir Saran Aggarwal had already expired and therefore, the maintenance petition was at that stage only pending for Smt. Pushpa Aggarwal and had lost its relevance as far as Sh. Mahavir Saran Aggarwal was concerned.
I do not agree with the said submission for two reasons. Firstly, petition was initially filed on behalf of both Sh. Mahavir Saran Aggarwal and Smt. Pushpa Aggarwal on the premise that the accused was: authorized to file such a petition. It is immaterial whether the said Power of Attorney was produced at later stage after death of one of the party. Secondly, once a document is held to be forged, it becomes immaterial if there are multiple executors, and the forgery is only qua one of th executors. Using that document is an offence. It is immaterial at this stage to see whether any benefit could have been derived by accused persons since Sh. Mahavir Saran Aggarwal had already expired. Using a forg document in court is an offence. Therefore, charge under Section 4 read with Section 466 of IPC is made out".
6. I am of the view that at this prima facie state, there is no requirement to ascertain as to whether expert report is to be believed or the statement of mother should be believed. This can be done after recording of evidence. Prima facie the said Anita Gupta has clearly used a forged power of attorney in the court and therefore, she may be liable u/s 471 read with Section 466 IPC.
7. One thing needs a clarification here that though Section 471 IPC is mentioned in Section 195 Cr.P.C, in the present case Digitally signed by RAKESH RAKESH KUMAR Cr Rev 240/2019 Sushant Gupta and Ans. Vs. State and Anr Page 4 of 6 KUMAR SINGH SINGH Date:
2023.07.17 16:48:38 +0530 the power of attorney was not custodia legis and therefore, the bar u/s 195 Cr.P.C. is not attracted.
8. However, Sushant Gupta, son of the Anita Gupta has not used the power of attorney anywhere. There is no allegation in the charge-sheet about any usage by the said Sushant Gupta. He appears to have been made an accused simply because he is one of the witnesses to the power of attorney. If simply by signing a document as witness, a person is to be held criminally liable, the liability should have been fastened also upon the second witness which is not the case here. Ld. Counsel for complainant/ respondent argued that Sushant Gupta is son of the main culprit and therefore, his complicity should be inferred, whereas the other witness is not so placed. I am unable to find any justification to make such an inference. For preparing a power of attorney or for using it to file maintenance application, there was neither any necessity nor any occasion to enter into any kind of criminal conspiracy. Sushant Gupta is son of the main culprit Anita Gupta and every son is expected to accept the dictum of his mother. The Sushant Gupta has seen only signed the power of attorney as a witness and therefore he cannot be treated as a maker of false document or an user of forged document.
Consequently, neither of the section charged by the Ld. Magistrate is attracted in respect of the said Sushant Gupta. He should be discharged.
9. In view of the aforesaid discussion, order on charge Digitally signed by RAKESH Cr Rev 240/2019 Sushant Gupta and Ans. Vs. State and Anr Page 5 of 6 RAKESH KUMAR KUMAR SINGH SINGH Date:
2023.07.17 16:48:46 +0530 against Anita Gupta is upheld but the same is set aside so far as Sushant Gupta is concerned. The Ld. Magistrate shall re-frame the charge only against accused Anita Gupta. The revision is partly allowed and is disposed off.
10. TCR along with the copy of this judgment be sent to the Trial Court.
11. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 17th DAY OF JULY, 2023 RAKESH Digitally by RAKESH signed KUMAR KUMAR SINGH Date: 2023.07.17 SINGH 16:48:52 +0530 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI Cr Rev 240/2019 Sushant Gupta and Ans. Vs. State and Anr Page 6 of 6