Delhi District Court
B. P. Rastogi vs State on 12 July, 2016
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No.53/2016
ID No. 02406R0110982016
1. B. P. Rastogi
S/o Late Sh. Diwan Singh
2. Piyush Rastogi
S/o Sh. B. P. Rastogi
Both R/o F52, Green Park,
New Delhi. . . . . Revisionists
Through: Shri Rakesh Kakar
Advocate
versus
State
...... Respondent
Through: Sh. M. Zafar Khan,
Addl. Public Prosecutor
__________________________________________________________
Date of Institution : 21.03.2016
Date when arguments were heard : 13.05.2016
Date of Judgment : 12.07.2016
JUDGMENT :
1. Challenge in the present Criminal Revision Petition filed under section 397/399 of The Code of Criminal Procedure, 1973 CR No.53/16 1 of 12 (in short "Cr.P.C.") is to the order dated 20.02.2016 passed by learned Metropolitan Magistrate (in short "MM")08, SouthEast District, Saket Courts, New Delhi in case FIR No.262/2012 titled as State Vs. B. P. Rastogi & Another, Police Station Amar Colony.
2. Ms. Shefali Thakur made complaint dated 21.03.2012 against revisionists to SHO police station Amar Colony, New Delhi who did not take any action on her complaint. Therefore, she filed an application under section 156 (3) Cr.P.C. The application of complainant was allowed on 20.07.2012. SHO police station Amar Colony was directed to register an FIR against revisionists under relevant provisions of law and investigate the matter. Pursuant to the directions of learned MM, FIR under section 420/468/471/120B of The Indian Penal Code, 1860 (in short "IPC") was registered in the case.
3. Matter was investigated as per law. Both the revisionists were found involved in the commission of offence in the case. Therefore, on conclusion of investigation, they were chargesheeted to face trial.
4. Prima facie, sufficient material was found to frame charge against revisionists for offence under section 420/468/471/120B IPC. Hence, learned MM vide order dated 20.02.2016 ordered for CR No.53/16 2 of 12 framing of charge against them.
5. Revisionists, feeling aggrieved by impugned order dated 20.02.16 passed by learned MM, have preferred the present petition.
6. On notice, respondent appeared through Additional Public Prosecutor to contest the petition. No formal reply to the petition of revisionists has been filed by the respondent.
7. I have heard and considered the submissions advanced by Shri Rakesh Kakar, learned counsel for revisionists and Shri M. Zafar Khan, learned Additional Public Prosecutor for State and carefully perused record of the case.
8. The relevant portion of the order passed by learned MM is reproduced hereunder for ready reference and better appreciation : "The prosecution, during investigation collected the original cancellation of GPA which were seized by IO and verified from the office of Sub Registrar, Kashmiri Gate which were found genuine. Further, as the mutation was not done in their names due to objection of the complainant, they forged an NOC to get the same done in their names and also used it with the Skyway Construction Company. The same is also on record. Both the accused persons furnished information to CR No.53/16 3 of 12 MCD as well as construction company and were obtaining rent from a tenant company by subletting it. Both have caused wrongful loss to the complainant and wrongful gain to themselves".
9. After relying upon judgments titled as State of Bihar Vs. Ramesh Singh 1977 4 SCC 39, Superintendent and Remembrancer Affairs, West Bengal Vs. Anil Kumar Bhunja & Others 1980 1 SCR 323 and State of Delhi Vs. Gyan Devi & Others 2000 8 SCC 239, learned MM held that in view of this settled law and the material on record / documents received from the complainant, MCD, Office of Sub Registrar and from the tenant and builder company and upon careful perusal of judicial records, she was of the opinion that prima facie, offence under section 420/468/471/120B IPC is made out against both the accused i.e. B. P. Rastogi and Piyush Rastogi. Hence, learned MM ordered for framing of charge for the aforesaid offences against the revisionists.
10. As per case of prosecution, the complainant alleged that her mother had purchased property i.e. Shop bearing no. 505, Plot No. 60, 5th Floor, Nehru Place, New Delhi19 and she died intestate. Thus, she became owner of onethird of the property. She further alleged that both the revisionists being her brother CR No.53/16 4 of 12 and father threatened her to get the shop transferred in their name by submitting forged and fabricated documents. She further alleged that they got the property mutated in their names. They also kept at misappropriating the rent of the shop. She stated that in 2001, she had executed a GPA in favour of accused B. P. Rastogi which she later got cancelled.
11. Learned counsel for revisionists submitted that complainant herself executed a General Power of Attorney in favour of her father i.e. revisionist no. 1 on 16.06.2001 and got the same registered in the Office of Sub Registrar Delhi and the GPA was duly witnessed by revisionist no. 2. He further submitted that complainant had given all the powers to revisionist no. 1 including to get the mutation of the said property from concerned authorities and also to sign on the prescribed forms and to enter in the agreement. He further submitted that the complainant just after six months of the execution of GPA, all of a sudden cancelled the GPA on 16.09.2002 in the court of Sub Registrar Delhi and the said cancellation was never intimated to revisionist no. 1 either by issuing notice or by writing any letter or by any other mode and thus, revisionist no. 1 had no intimation for cancellation of GPA on 16.01.2002. He further submitted that revisionist no. 2 who is real brother of complainant had also CR No.53/16 5 of 12 signed the GPA as a witness along with other witnesses and he was also not informed about the cancellation of GPA. It was submitted by learned counsel for revisionists that revisionists have not committed by any offence and the claim of complainant as alleged by her is civil dispute. He further submitted that complainant has already filed a civil case against revisionists for a suit for recovery of arrears of rent, rendition of account, partition, permanent and mandatory injunction much prior to registration of FIR against the revisionists. He further submitted that since the date of cancellation of GPA i.e. on 16.01.2002, complainant has never made a single attempt to claim the rent in the said property nor sought partition of the said property by issuing any notice or filing any case against the revisionists. Learned counsel for revisionists further submitted that learned MM failed to appreciate the entire material on record and on the basis of wrong assumption of facts and law, she ordered for framing of charge against revisionists.
12. Per contra, it was submitted by learned Additional PP for State that learned MM has rightly ordered for framing of charge against revisionists on the basis of material available on record. He further submitted that there is no infirmity or illegality in the impugned order of learned MM which calls for interference by CR No.53/16 6 of 12 this court.
13. A Court of Session u/s 397 Cr.P.C. may call for and examine the record of proceedings before any inferior Court situate within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court and may exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391 of Cr.P.C.
14. Chapter XIX of Cr.P.C deals with the Trial of Warrant Cases by Magistrates. The provisions contained in Section 239 and section 240 Cr.P.C. are relevant for deciding the matter in issue in this case. They are reproduced here under for ready reference: "239. When accused shall be discharged - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
CR No.53/16 7 of 12
240. Framing of charge - (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried".
15. A bare look at the aforesaid provisions of law shows that at the time of consideration on the point of charge, the Magistrate is required to look into the police report and the documents send alongwith it. No other documents are to be considered at this stage. Accused is given opportunity of being heard at the point of charge. The documents submitted by accused if any, is not to be considered at this stage.
16. It was held in Raj Kumar Sharma Vs State of Delhi, 2010 (I) C. C. Cases (HC) 337 that the Court is not required to see the probative value of different material, which had been filed alongwith the charge sheet at the time of framing of charge. Court at the time of framing of charge is not expected to do meticulous CR No.53/16 8 of 12 dissection or evaluation of evidence produced by prosecution.
17. In State of Orissa Vs Debendra Nath Padhi, JT 2004 (10), SC 303, it was held that at the stage of framing of charge, roving and fishing enquiry is impermissible. It is well settled that at the stage of framing of charge, the defence of the accused cannot be put forth. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and the documents submitted there with and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police.
18. In the case in hand, as per the contentions of revisionists themselves, complainant had executed General Power of Attorney in favour of revisionist no. 1 on 16.06.2001 in respect of property in question. The said GPA was witnessed by revisionist no. 2. The said GPA has already been cancelled by complainant on 16.01.2002. The defence of revisionists is that they have no knowledge regarding cancellation of GPA by the complainant. It is a matter of trial as to whether the complainant after cancellation of GPA had duly intimated the same to revisionists CR No.53/16 9 of 12 or not. The triable issues cannot be adjudicated at the time of framing of charge. The courts are not supposed to evaluate and scrutinize the evidence in minute details at the stage of consideration on charge. At this stage, on the basis of material available on record, the court is required to form prima facie opinion as to whether there is sufficient material to frame charge for a particular offence or not.
19. So far as availing of civil and criminal remedy by complainant is concerned, law is well settled on this aspect. In the case of M/s Medchi Chemicals and Pharma P. Ltd. Vs. M/s Biological E Ltd. and Others bearing Crl. Appeal No. 233/2000 decided by Hon'ble Apex Court on 25.02.2000, it was held that both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact, "they are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is CR No.53/16 10 of 12 completely barred. The two types of actions are quite different in content, scope and import.
20. Applying the aforesaid dictum of law in the present case, in my view, filing of civil suit by complainant does not debar her from taking criminal action against the revisionists for their alleged acts.
21. The Investigating Officer collected original cancellation of GPA and verified the same from the office of Sub Registrar, Kashmiri Gate which has been found genuine. The revisionists have reportedly applied for mutation of property in question in their names but due to objection of the complainant the same could not be done. The revisionists are alleged to have forged an NOC to get the property mutated in their names and also used it with the Skyway Construction Company. Both the revisionists furnished wrong information to MCD as well as construction company and they obtained rent from a tenant company by subletting it. The aforesaid alleged act of revisionists clearly show that they caused wrongful loss to complainant and wrongful gain to themselves.
22. For the aforesaid reasons, I am of the view that after considering the material on record, learned MM has rightly ordered for framing of charge against revisionists for offence CR No.53/16 11 of 12 under section 420/468/471/120B IPC. I do not find any illegality, impropriety or perversity in the impugned order of learned MM. The revision petition lacks merit. Same is hereby dismissed.
23. A true copy of judgment along with TCR be sent back to learned trial court concerned. Revision file be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 12.07.2016 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No.53/16 12 of 12