Delhi District Court
Akhil Kumar Sharma vs Mukesh Kumar Sharma on 12 September, 2024
Criminal Revision no.111/2024
AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA
& OTHERS
12.09.2024
Present: Revisionist in person with counsel Sh. Sudhir
Baliyan.
Ms. Neetika Sharma, counsel for R-1 & R-2.
Sh. Avadesh Kumar Tiwari, Counsel for R-3 & R-4
along with R-3 & R-4 in person.
ORDER:-
1. By way of this order, I shall dispose of the revision petition filed by the revisionist / complainant under Section 397 r/w Section 401 Cr.P.C. against the impugned order dated 14.02.2024 passed by Ld. Trial court by which the application u/s 156(3) CrPC has been dismissed and the complaint u/s 200 CrPC has been rejected.
2. Aggrieved by the said impugned order, the revisionist has filed the revision petition on the following grounds: -
That the trial court has failed to appreciate that the complaint disclosed the commission of cognizance offences by the respondent no. 1 to 4.
(a) That the trial court has failed to appreciate that the respondent no. 1 to 4 have committed the offences punishable u/s 406/420/467/468/471/193 IPC and section 81/82 of the Registration Act.
(b) That the trial court has failed to appreciate that the police assistance is required to collect the evidence as all the evidences are beyond the control of the revisionist.CR No. 111/2024
AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 1/19
(c) That the trial court has failed to appreciate that the complaint could be only dismissed after examining the complainant on oath and without resorting to the said procedure, the complaint could not have been dismissed.
(d) That the trial court has failed to appreciate that the respondents have not filed any such will allegedly executed by late Sh. Jai Pal Sharma during his life time by which the father of the revisionist has been debarred from all the movable and immovable properties of his father.
(e) That the trial court has passed the impugned order in a routine and mechanical manner.
3. It is prayed that the impugned order may be set aside and the SHO PS Anand Vihar may be directed to register FIR against the respondents no.1 to 4 to investigate the matter properly.
4. The respondent no.2 has filed reply to the revision petition. It is stated that in the event of rejection of complaint at the pre-cognizance stage due to finding of preliminary enquiry, there is no need for the court to follow the procedure u/s 200/202/203 CrPC. It is contended that no investigation / collection of evidence is required by the police as all the evidence is available with the revisionist. The respondents have fully cooperated with the police officers and provided the relevant documents on the basis of which a detailed preliminary report has been filed by the police before the Ld. Trial Court. It is stated that subject matter of the relinquishment deed is already seized in the family partition suit. It is further stated that there is abnormal delay in filing the criminal prosecution by the CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 2/19 revisionist. The revisionist had come to know about the change in municipal tax record in the year 2018 itself. It is contended that the criminal proceedings initiated by the revisionist is counter blast to the civil proceedings to arm- twist the respondents because the civil proceedings are time consuming and an attempt to coerce the respondents to succumb to the demands of the revisionist and to avoid the payment of stamp duty. It is stated that the impugned order is well reasoned. It is further stated that the ingredients of offences leveled by the revisionist against the respondent nos.1 to 4 are not fulfilled. It is further stated that after the death of Smt. Sushma Sharma, the relinquishment deed has lost its essence and is irrelevant now. It is contended that the respondents has no role in changing the tax records. The respondent no.2 has prayed for dismissal fo the revision petition.
5. The respondent no.3 and 4 have filed detailed separate reply in which it is contended that the impugned order is well reasoned and calls for no interference.
6. I have heard the Ld. counsel for the parties and perused the records carefully. I have also gone through the written submissions filed by the parties.
7. The Ld. Counsel for the revisionist has argued that the father of the revisionist namely Sh. Lokesh Sharma was one of the legal heir of Lt. Sh. Jai Pal Sharma. He submitted that after the death of Sh. Jai Pal Sharma, the property in question has devolved upon all his legal heirs. He further submitted that the respondents no.1 to 3 without disclosing names of all the legal heirs of Lt. Sh. Jai Pal Sharma CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 3/19 relinquished their rights in favour of Smt. Sushma Sharma and on the strength of the said relinquishment deed, Smt. Sushma Sharma got changed her name in the municipal tax records in respect of the property in question. He submitted that there is a mention of unregistered Will in the impugned order allegedly executed by Lt. Sh. Jai Pal Sharma by which the father of the revisionist has been debarred but the said Will has not been produced by the respondents no.1 to 3 in the civil suit nor along with the ATR filed before the Ld. Trial Court because no such Will ever existed. He further submitted that the respondents no. 1 to 4 have made false statements at the time of registration of relinquishment deed to the Registrar and therefore they have committed the offences punishable u/s 81/82 of Registration Act. He further submitted that the Ld. Magistrate has passed the impugned order rejecting the complaint without giving an opportunity to the revisionist to lead the evidence and therefore the said order cannot be sustained. He further submitted that the complaint disclosed the commission of cognizable offences by the respondent nos.1 to 4 and for collection of evidence, assistance of police is required. He further submitted that the impugned order may be set aside and the SHO concerned may be directed to register the FIR against respondent nos.1 to 4 and investigate the matter in accordance with law.
8. He has relied upon Navin Kumar Rai Vs Surendra Singh and others 2024 SCC Online SC 145, Mona Panwar Vs High Court of Judicature of Allahabad (2011) 3 Supreme Court Cases 496, Sh. Y. N. Sreenivasa Vs the CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 4/19 State of Karnataka and others Writ Petition No. 15451 of 2019 (GM-RES), Chiman Lal Vs. Datar Singh and others 1997 SCC Online Raj 355.
9. The Ld. Counsel for respondent no. 1 and 2 has argued that there is no illegality in the impugned order. She further argued that the Ld. MM did not take the cognizance of the complaint and rightly rejected the same without taking evidence of the complainant. She further argued that the respondent no.1 to 3 have only relinquished their share / rights in favour of Smt. Sushma Sharma i.e. their mother by virtue of relinquishment deed dated 03.06.2002. She further argued that Smt. Sushma Sharma has passed away and thereafter, the relinquishment deed has lost its essence and all the legal heirs are on equal footing after the death of Smt. Sushma Sharma. She further argued that the revisionist is in the possession of the property in question and civil suit for partition instituted by the father of revisionist is already pending before the civil court for adjudication. She further submitted that the criminal proceedings has been initiated by the revisionist to harass and arm-twist the respondent no.1 to 3 to succumb to their illegal demands. She further argued that no body is disputing the rights of the revisionist/ his father in the property in question. She further submitted that there is no inducement to the revisionist/ his father to deliver or part away the property and the property is in possession of the revisionist nor any criminal breach of trust and the respondents have not committed any forgery of the documents and therefore the ingredients of the offences leveled in the complaint are missing. She has prayed for CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 5/19 dismissal of the revision petition with heavy cost for dragging the respondents into the frivolous litigation when the respondent nos.1 to 3 are not disputing the share of the revisionist / his father in the property in question. She has relied upon D.K. Pattanaik and Another Vs. The SHO Nallabelly PS Warangal & Anr, 2008 SCC Online AP 5, Mariam Fasihuddin & Anr Vs. State by Adugodi Police Station & Anr Criminal Appeal no.335/2024, Gopal Das Sindhi & others Vs State of Assam and another, 1961 SCC Online SC 251, Shakuntala Devi Vs State of UP and others, 2002 SCC Online All 1455.
10. The Ld. Counsel for respondent no. 3 and 4 has also argued that there is no illegality in the impugned order. He further submitted that respondent no.3 has relinquished her share in favour of her mother by way of relinquishment deed. She has not committed any forgery of the documents. He further submitted that the share of the revisionist in the property is not denied. He further submitted that there is no wrongful gain or loss to any of the party by execution of relinquishment deed and hence there is no cheating. He further submitted that the respondents are not denying share of the revisionist/ his father in the property in question. He further submitted that the respondent no.4 is only a witness in the relinquishment deed and he has nothing to do with the property in question and he has been falsely dragged into the present litigation. He has submitted that present revision petition is liable to be dismissed.
11. Perusal of the trial court record reveals that the revisionist has filed the complaint u/s 200 CrPC for the CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 6/19 offences u/s 406/420/467/468/471/193 IPC. The case of the revisionist is that Sh. Jai Pal Sharma was owner of property bearing no. A-20, Surajmal Vihar, Delhi. Sh. Jai Pal Sharma has expired on 23.09.2001 leaving behind three sons, two daughters and wife. The revisionist is the son of Sh. Lokesh Sharma one of the son of late Sh. Jai Pal Sharma. The grandmother of the revisionist namely Smt. Sushma Sharma has expired on 09.09.2016. Both the grand parents had died intestate and therefore after their death their legal heirs became the owner of the above property in equal shares. After the death of Smt. Sushma Sharma, the respondents no.1 to 3 started harassing the father of the revisionist which compelled him to seek partition of the above property but the respondents did not bother to accede to the request of partition of the property and in this regard the father of the revisionist also served a demand notice for partition dt. 17.03.2020. Thereafter due to Covid 19 pandemic, lock down was imposed and at that time the father of the complainant came to know that demand of property tax in respect of the above property for the period of 2004 to 2018 has been made on 16.02.2018 in the name of Smt. Sushma Sharma. The father of the revisionist also found a registered relinquishment deed registered on 04.06.2002 executed by Mukesh Kumar Sharma, Seema Sharma, Reema Sharma in favour of Smt. Sushma Sharma whereas there were total six legal heirs of late Sh. Jai Pal Sharma and thus the respondents no. 1 to 3 played fraud and concealed the names of two legal heirs i.e. the father of the revisionist and one uncle and prepared the forged and fabricated relinquishment CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 7/19 deed to grab the share of other legal heirs. The father of the revisionist has also filed a suit for partition and declaration which is pending in KKD court. The father of the revisionist made a complaint to SHO PS Vivek Vihar but the police has not registered any FIR. The father of the revisionist expired on 27.04.2021 and due to non registering of the FIR by the police, the revisionist filed the complaint case under Section 200 Cr.P.C. read with Section 156 (3) Cr.P.C.
12. The Ld. ACMM called for the Action Taken Report from the police which was received and thereafter vide impugned order dt. 14.02.2024, finding that no cognizable offence is made out from the averments made in the complaint dismissed the application u/s 156(3) Cr.P.C. and the complaint u/s 200 CrPC was rejected.
13. Aggrieved by the impugned order dt 14.02.2024, the revisionist has referred the present revision petition.
14. From the pleadings of the parties and arguments advanced, it is not in dispute that late Sh. Jai Pal Sharma was the owner of the property bearing no. A-20, Surajmal Vihar, Delhi having purchased the same vide registered conveyance deed dt 11.05.1997 from DDA. It is also not in dispute that Sh. Jai Pal Sharma has expired on 23.09.2001 leaving behind his wife namely Smt Sushma Sharma, three sons namely Lokesh Chand Sharma (father of the revisionist) (since expired), Mukesh Sharma respondent no.1, Satender Sharma (since expired), two daughters i.e. Smt. Seema Sharma respondent no.2, Smt. Reema Sharma, respondent no.3. It is also not in dispute that Sh. Jai Pal Sharma has died intestate. It is also not in dispute that Smt CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 8/19 Sushma Sharma has also expired on 09.09.2016 and she also died intestate and all the legal heirs of late Sh. Jai Pal Sharma and Smt. Sushma Sharma i.e. Lokesh Sharma, Mukesh Sharma, Satender Sharma, Seema Sharma and Reema Sharma became equal owners in the above said property.
15. The gravamen of the offence is the relinquishment deed dated 03.06.2002 by which the respondent no. 1 to 3 have relinquished their right, title and interest in favour of their mother Smt. Sushma Sharma. The revisionist claims that after the death of his grandmother Smt. Sushma Sharma, the respondent no.1 to 3 started harassing his father, therefore his father sought partition of the above said property and during that time his father came to know that the property tax in respect of said property for the period 2004 to 2018 was paid on 16.01.2018 in the name of his grandmother Smt Sushma Sharma. It is further grievance of the revisionist that in the relinquishment deed, the respondent no.1 to 3 have not revealed the names of two other legal heirs i.e. his father and one uncle namely Satender Sharma and this has been done in order to grab the property and thus the respondents no.1 to 4 cheated the revisionist and created false and fabricated relinquishment deed besides committing the forgery of documents and other offences under Registration Act.
16. At the outset, it may be noted that the revisionist has claimed that the respondent nos.1 to 4 have committed the offences punishable u/s 406/420/467/468/471/193 IPC and under Sections 81 & 82 of the Registration Act.
CR No. 111/2024AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 9/19
17. For attracting the provisions of Section 406 IPC, there has to be entrustment of the property or any dominion over the said property and the property to whom it has been entrusted or given the dominion has dishonestly misappropriated or converted to his own use. However, in the present case, the respondent nos.1 to 4 were not entrusted with the above property by the revisionist or his father. It is also not in dispute that the said property is still in the name of late Sh. Jai Pal Sharma and as such the same has not been misappropriated or converted by respondent nos.1 to 4 in their own names or disposed of. Therefore, Section 406 IPC is not made out.
18. For attracting the provisions of Section 420 IPC, again there has to be inducement to deliver any property to any person with dishonest intention and thereafter there has to be corresponding wrongful gain to the person so deceiving and wrongful loss to the person so deceived. Again, in this case, the revisionist has not been induced to deliver any property. The property is still in the name of late Sh. Jai Pal Sharma. There is no wrongful gain or wrongful loss to anyone by execution of relinquishment deed by respondent nos.1 to 3 in favour of their mother Smt. Sushma Sharma as after the death of Smt. Sushma Sharma, there is no effect of the said relinquishment deed on the rights of the legal heirs of late Smt. Sushma Sharma and late Sh. Jai Pal Sharma. Similarly, for attracting the provisions of Section 467 and 468 IPC, there has to be a forgery of document and the said forgery must be for the purpose of cheating and as per Section 471, the forged document has to be used as a CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 10/19 genuine. In the relinquishment deed, the respondent nos.1 to 4 have not forged the signatures of the revisionist or his father or anyone else. The respondent nos 1 to 3 have only relinquished their share in favour of Smt. Sushma Sharma.
19. Section 193 IPC provides for punishment for false evidence which is not the issue in this case.
20. The Ld. Counsel for the revisionist has vehemently argued that the respondent nos.1 to 3 have not disclosed the names of all the legal heirs in the relinquishment deed and have omitted the names of Sh. Lokesh Sharma and Sh. Satender Sharma and as such they have given a false statement to the Sub Registrar at the time of registration of the said relinquishment deed and thus they have committed the offences punishable u/s 81 and 82 of the Registration Act.
21. A perusal of the relinquishment deed dated 03.06.2002 would show that the releasors, namely, Mukesh Kumar Sharma, Dr. Seema Sharma and Smt. Reema Sharma have relinquished their share in property no. A20, Surajmal Vihar Delhi in favour of Smt. Sushma Sharma, the releasee. The relevant portion of the relinquishment deed may be reproduced as under : -
"Pursuant to their wish as mentioned above the releaser is hereby release the relinquish all their rights in interest in the said property and hereby declare and affirm that will have no claim, no objection, no right to concern in the said property, same property vests subsequently will stand in favour of the said releasee.CR No. 111/2024
AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 11/19 That now the releasee have become the sole and shall have rights to sell or to mortgage or to transfer the same to any other person without any interference or disturbance from the releassors."
22. Thus the above covenants made in the relinquishment deed would show that the releasors namely respondent no. 1 to 3 i.e. Mukesh Sharma, Seema Sharma and Reena Sharma have relinquished their rights only in the above property and that the releasee i.e. Smt. Sushma Sharma will have sole right to sell or mortgage or transfer the property without any interference from the releasors. It in no manner has affected the rights of the remaining legal heirs of late Sh. Jai Pal Sharma and Smt. Sushma Sharma.
23. Thus, I do not find any merit in the contention of the Ld. Counsel for the revisionist that the respondent no. 1 to 3 by way of relinquishment deed has conferred sole and exclusive ownership rights in favour of Smt. Sushma Sharma. By the relinquishment deed dt 03.06.2002, they have only relinquished their rights and interest in the property in question in favour of Smt. Sushma Sharma.
24. I find substance in the contention of the Ld. Counsel for respondent nos.1 to 4 that even otherwise after the death of Smt. Sushma Sharma, the said relinquishment deed has become infructuous and further in the absence of any testamentary instrument, all the legal heirs of late Smt. Sushma Sharma and late Sh. Jai Pal Sharma have become owners of their respective shares in the above said property.
25. It is also fairly submitted by the Ld. Counsel for respondent nos.1 to 4 that the respondent nos. 1 to 3 are not CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 12/19 disputing the share of the father of revisionist or of the revisionist in the property in question being one of the legal heirs. It is also informed that the father of the revisionist has already filed a civil suit for partition which is pending before the District Court, Karkardooma, Delhi and in the said case also, in the written statement, the respondent no. 1 to 3 have not disputed the share of the father of the revisionist as per law or as to be determined by the court.
26. The Ld. Counsel for the revisionist has argued with vehemence that the Ld. Trial Court has relied upon some copy of unregistered Will in the impugned order, but no such Will was ever executed by late Sh. Jai Pal Sharma by which father of the revisionist was debarred from the rights in the property of late Sh. Jai Pal Sharma and further the same has not been placed on record because no such Will ever existed.
27. A perusal of the Trial Court record shows that the copy of the unregistered Will allegedly executed by late Sh. Jai Pal Sharma is placed alongwith the status report filed by the police and that is why the Ld. Trial Court has referred in para no.3 of the impugned order that IO has also placed on record the alleged Will of late Sh. Jai Pal Sharma as per which father of complainant namely Lokesh Sharma was debarred from the right in the property of Sh. Jai Pal Sharma.
28. Be that as it may. The Ld. Counsel for respondent nos.1 to 4 have submitted that they are not relying or staking any claim in the property in question on the basis of said unregistered Will and they are not disputing the share of the CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 13/19 father of the revisionist in the property left behind by late Sh. Jai Pal Sharma and the said categorical stand has also been taken in written statement filed before the Ld. District Court where suit for partition is pending.
29. In view of the above position and stand taken by the respondent nos. 1 to 3, no substance is left in the submission of the Ld. Counsel for the revisionist regarding existence or no existence of unregistered Will allegedly executed by late Sh. Jai Pal Sharma.
30. The Ld. Counsel for the revisionist has also submitted that the respondents have committed the offences punishable u/s 81/82 of the Registration Act.
31. The Ld. Counsel for the respondents vehemently submitted that this ground was never taken before the Ld. Trial Court and this is a new ground taken in the revision petition which cannot be considered by this court.
32. Of course, the said contention regarding commission of offences punishable u/s 81/82 of the Registration Act was not raised before the Ld. Trial Court and that is why there is no findings on the same have been given. However, since the revisionist has pressed the said provisions before this Court, it is deemed fit to consider the same.
33. Section 81 of the Registration Act provides for penalty for incorrectly endorsing, copying, translating or registering document with intent to injure.
34. A bare perusal of Section 81, it is clear that the same is not applicable in this case.
35. Section 82 provides Penality for making false statement, delivering false copies or translation / false CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 14/19 personation and abetment. It provides that Whoever - (a) intentionally make any false statement, whether on oath or not, and whether it has been recorded or not, before any officer executing in execution of this Act, in any proceedings or enquiry under this Act; or
(b).....
(c)....
(d).....
shall be punishable with imprisonment for a term which may extend for seven years with fine or with both.
36. Based on the above said provisions, the Ld. Counsel for the revisionist has submitted that the respondent no. 1 to 3 by omitting the name of father of revisionist and his uncle as legal heirs of late Sh. Jai Pal Sharma in the relinquishment deed have made false statement and therefore have committed the offence punishable u/s 82 of the Registration Act.
37. I am afraid to accept the said contention. Firstly, for attracting the provisions of Section 82, there has to be mens rea on the part of the person making false statement which in this case is missing. The respondent no. 1 to 3 in the relinquishment deed have only relinquished their shares and rights in the property in question and they have not harmed or caused any prejudice to the rights of any other legal heirs. Secondly, as per RTI report filed by the revisionist himself in which it was requested to PIO MCD, Delhi that who has made the application/request to incorporate the name of Smt. Sushma Sharma in the records. The answer to the said request furnished by MCD is Smt. Sushma Sharma. As CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 15/19 such, it is apparent that it was Smt. Sushma Sharma who had made the said application / request to EDMC to incorporate her name in the records for the property in question and the said application/request was not made by the respondent no. 1 to 3. As per section 82, the false statement has to be made intentionally before any officer acting in execution of the Registration Act or any proceedings or enquiry under the said Act. Lastly, it was submitted by the respondent no. 1 to 3 that they were under the mistake of fact as informed by their mother because of unregistered Will that two sons, namely, Lokesh Sharma and Satender Sharma were debarred by Sh. Jai Pal Sharma in the property and, therefore, their names were omitted as legal heirs in the relinquishment deed.
38.. The ld. Counsel for the respondents have vehemently submitted that the revisionist is resorting criminal proceedings with malafide intention to arm-twist the respondents because he is not interested in paying the stamp duty and disposal of the civil suit is taking time. It was also submitted that the revisionist had come to know about the change of name of Smt. Sushma Sharma in the MCD records in the year 2019 but despite that he has filed the criminal complaint in 2023 and, therefore, the complaint is barred by latches. It was further submitted that in para 3 (XIII) of the revision petition, the revisionist has claimed that the respondents had got the property transferred / mutated in their own names, while as a matter of fact the property has not been transferred in the name of respondents and the property is still in the name of late Sh. Jai Pal CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 16/19 Sharma and therefore the revisionist has made the false and mischievous statement.
39. It is also submitted that in the revision petition it is stated that the relinquishment deed has been used by the respondents much prior to the death of Smt. Sushma Sharma in the year 2002 before EDMC to change the record on the basis of forged Deed. However, the said contention is contrary to the RTI reply filed by the revisionist himself which shows that it was Smt. Sushma Sharma who had applied before MCD for change of her name in the records and not the respondent no. 1 to 3.
40. It was also submitted that the respondent no.4 is only an attesting witness of the relinquishment deed and therefore he cannot be said to have committed the offences as alleged in the complaint, however he has been dragged into the litigation to harass him.
41. The ld counsel for the revisionist has relied upon Naveen Kumar Rai, Shri Y.N. Sriniwasa and Mona Panwar (supra).
42. I have gone through the said judgments, however the same are not applicable in the facts of the present case.
43. The Ld. Counsel for the revisionist has also relied upon Chiman Lal to argue that the Magistrate should not have summarily rejected the complaint without giving any opportunity to the complainant to lead pre summoning evidence. I have gone through the said judgment and do not find any merit in the contention of the counsel for the revisionist that the Magistrate was not competent to reject CR No. 111/2024 AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 17/19 the complaint out rightly without giving an opportunity to the complainant to lead pre-summoning evidence.
44. In Gopal Dass Sindhi and others, the Hon'ble Supreme court has held that Chapter XVI would come into play only if the magistrate has taken the cognizance of an offence on the complaint filed before him, because section 200 states that a magistrate taking cognizance of the offence at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the magistrate. If the magistrate had not taken cognizance of the offence on the complaint field before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. We cannot read the provisions of section 190 to mean that once a complaint is filed, a magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in section 190 to mean 'must'.
45. Similarly, in S.Manimekhala vs. State of Kerala, it has been held that, "If the complaint on the face of it does not at all make out an offence, then the Magistrate may reject the complaint. This power of rejection at the pre cognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Section 203 Cr.P.C. since the latter power of dismissal is one which can be exercised only at the post cognizance stage".
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46. Accordingly, there is no merit in the contention of Ld. Counsel for the revisionist that the Magistrate was not competent to reject the complaint without affording an opportunity to the complainant to lead pre summoning evidence.
47. In view of the aforesaid discussions, in my considered opinion there is no infirmity or illegality in the impugned order. The Ld. Trial Court has rightly found that from the averments made in the complaint, no cognizable offence is made out. The necessary ingredients of section 406/420/467/468/471/193 IPC and section 81/82 of the Registration Act are missing and the Ld. Trial Court has rightly dismissed the application u/s 156(3) CrPC and rejected the complaint u/s 200 CrPC. The impugned order is well reasoned and calls for no interference. Consequently, the present revision petition is hereby dismissed.
48. TCR be sent back to the concerned Court along with copy of this order.
49. Revision file be consigned to Record Room after necessary compliance. Digitally signed by BALWANT BALWANT RAI BANSAL RAI Date:
BANSAL 2024.09.13
16:29:44
+0530
(Balwant Rai Bansal)
Special Judge, NDPS
Shahdara Distt./KKD/12.09.2024
CR No. 111/2024
AKHIL KUMAR SHARMA Vs. MUKESH KUMAR SHARMA & OTHERS Page 19/19