Delhi District Court
M.C Gupta S/O Late Jiya Ram vs Sharda Dube (Correct Name Shobha Dube) on 7 October, 2011
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IN THE COURT OF SH. J. R. ARYAN
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Date of Institution: 04.07.2011
Date of judgment reserved on:01.10.2011
Date of decision: 07.10.2011
CR No. 43/2011
M.C Gupta S/o Late Jiya Ram
R/o B1(G.F) Shamnath Apartment
Civil Lines, Delhi54. ...... petitioner
Versus
Sharda Dube (Correct name Shobha Dube)
W/o Late Sharad Dube
R/o 28, Central Lane
Bengali Market, New Delhi1.
State(NCT of Delhi) ....... Respondents
ORDER:
1. Petitioner in this revision impleaded as accused No.1 in a private complaint and summoned for offences U/s 465/467/468/471 & 209 read with 120B IPC with accused No.2 & 3 has challenged this summoning order on the ground that none of the alleged offences could be said to have been prima facie made out from the complaint allegations. It is contented that primarily where petitioner entered in to an agreement to buy a part of the property which Sh.Aditya Prasad Dube impleaded as accused No.2 in the complaint had offered to sell that part of the property and entered in to :2: that agreement to sell in favour of the petitioner, entire transaction being a genuine, executed between two genuine seller and buyer and there being no legal bar for transfer of the said property and at the most dispute if any between the complainant and the seller Aditya Prasad Dube being completely a civil nature dispute, no question would arise that any forgery was committed as the document i.e agreement to sell would not fall in the definition of ''false document'' define in Section 464 IPC. I heard ld counsel Sh.Rakesh Kumar appearing for the petitioner and counsel Ms.Inderjit Kaur appearing for complainant, respondent No.1 in the present revision. Question for consideration arose;
If a person having relinquished a right, title and interest in a property in which he was the jointcoowner in favour of coowner and when subsequently having already filed a suit challenging the relinquishment deed proceeded to enter in to an agreement to sell with a third person offering to sell that part of the property which he had relinquished, will it constitute/creating and executing a false document and consequently to bring it within the parameters of forgery. Facts in the present case to understand the above point for consideration are that Sh.Sharad Dube filed complaint for above stated offences on 14/12/2009 against present petitioner M.C Gupta as accused No.1, complainant's cousin Aditya Prasad Dube as accused No.2 and Aditya Prasad Dube's son Tarun Dube as accused No.3. Undisputedly complainant's father Niranjan Prasad Dube and accused No.2's father Ajit Prasad Dube inherited a house property 28 :3: Central Lane Bengali Market, Delhi in equal share from their father Rai Bahadur Anand Prasad Dube after demise of their father.
2. Ajit Prasad Dube executed a will dated 29/6/1981 bequeathing his share in the property in favour of his four sons in equal proportion and consequently on demise of Ajit Prasad Dube, his son present accused th No.Aditya Prasad Dube became owner of 1/8 share in the house property. Ajit Prasad Dube had expired on 25/8/1984 and Niranjan Prasad Dube expired on 3/8/1984. Legal heirs from these two ancestors then divided the property in question which comprised an area 494.34 sq.yds by physical demarcation and agreement to that effect was executed on 18/9/1986.
3. Accused No.2 Aditya Prasad Dube and another coowner his brother th Sh.Kapil Dube relinquished their 1/8 share each in favour of complainant Sh.Sharad Dube and executed a registered relinquishment deed on 26/3/2002. Under these relinquishment deeds physical possession of their shares was also handed over in favour of complainant Sh.Sharad Dube and it came to be specifically recorded in the relinquishment deeds.
4. Complainant along with his family was out of India from 20/5/2008 till 27/5/2008 and when he came back to India he found that he had been dispossessed from the portion of the property which accused No.2 had relinquished in the year 2002. Complainant filed a civil suit U/s 6 of the Specific Relief Act. Civil court appointed a local commissioner for spot visit and report regarding possession of the disputed part of the property so as :4: to dispose of interim injunction application. Local Commissioner advocate by his report dated 20/11/2008 confirmed possession of plaintiff and accused No.2 & 3 and accused No.1 was not found in possession of any portion of the said property. Ld ADJ Civil Court directed parties to maintain statusquo in terms of report of the local commission. At that stage accused No.2 & 3 projected the ''agreement to sell'' in question where under. They claimed to have sold the suit property in favour of accused No.1 and photocopy of the agreement to sell dated 14/11/2008 along with an undated possession slip were filed. Complaint allegations are that these documents have been created as false documents fraudulently or dishonestly to defeat the plaintiff's right and title in property and to defeat her summary suit for possession. When accused No.2 had relinquished his share in the property in question and if he projected this ''agreement to sell in favour of accused No.1 and fraudulently or dishonestly projected a case before the court to have delivered possession of suit property to accused No.1 in order to defeat the summary suit for recovery of possession and where accused No.1 being well aware of all above stated facts was part of a conspiracy for the offences of forgery then accused persons were liable to be summoned and tried for the said offences. It is a matter of record that petitioner on the basis of this ''agreement to sell'' got himself impleaded as defendant in the suit through an application Under Order 1 Rule 10 CPC.
5. It has been argued by ld petitioner's counsel that where Aditya :5: Prasad Dube entered in to an agreement to sell and he did not personate to act as a person or by an authority of a person who he knew was not that person then there was no question of accused Aditya Prasad Dube to have executed a false document. Petitioner accused claimed to be a bonafide purchaser and particularly any dispute between complainant and Aditya Prasad Dube being entirely a civil nature dispute, the summoning of petitioner accused was illegality and order impugned was liable to be set aside. It is further contented that relinquishment deed referred to in the complaint was not binding on Aditya Prasad Dube as it had not been made in favour of the person being clause I or clause II legal heirs of releasor, there would not be a question of Aditya Prasad Dube have committed any forgery.
6. Counsel Ms. Inderjit Kaur for the complainant submitted that where Aditya Prasad Dube having executed a relinquishment deed in the year 2002 if executed an agreement to sell on 14/1/2008 in respect of property which he had already relinquished in the year 2002 and also executed a letter of possession undated purporting thereby to have delivered possession of that property to accused No.1 it amounted to execution of false document and since it was intended to defeat right and title of the complainant dishonestly, summoning of accused persons was well within the jurisdiction of ld Magistrate. Ld counsel relied upon Supreme Court judgment reported as 2008 (9) SCC 140 where scope of Revisional Court for evaluation and appreciation of evidence has been described as limited :6: one where Magistrate found a prima facie case made out for summoning of accused. Ld counsel referred to provisions of Section 464 IPC and pointed out explanationI which provides that even man's signatures of his own name could amount to forgery and on this point ld counsel referred to explanation (e) as illustration to explanation. She relied upon a judgment by High Court reported as AIR 1954 Mysore 19 wherein the essential ingredients of offences of forgery i.e deceit or intention to deceive has been discussed. It has been held that two essential elements to constitute offence of forgery were,
1. There must be deceit or intention to deceive
2. Actual or possible injury to some person.
What constitutes making of a document depends essentially upon the nature and the use it was intended .
In that case the accused got printed a false marriage invitations issued under the names of two persons announcing the celebration of marriage of the accused with the complainant who was a young woman of about 20 years inheriting property worth about thirty to forty thousands. Neither the complainant nor the persons under whose names they were issued had authorised the accused to print such invitations and in fact no marriage was fixed between the accused and the complainant. The accused distributed those invitations to friends and relatives and also caused them to be published in the newspapers with intent to deceive and cause injury to the complainant.
It was held that marriage invitations were forged instruments and fell within the definition of false document.
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7. Ld counsel relied upon another Nagpur judgment reported 1953 Crl.L.J 979 wherein it came to be held that even if a person had a legal claim or title to the property he would be guilty of forgery if he counterfeited documents in order to support it.
8. To my considered view the complainant counsel was justified in her arguments that if Aditya Prasad Dube executed registered deed of relinquishment in the year 2002 and then in November 2010 after complainant in whose favour suit property had been released by Aditya Prasad Dube had filed a summary suit seeking possession of the suit property alleged to have been trespassed by Aditya Prasad Dube and his son then agreement to sell in respect of suit property by Aditya Prasad Dube in favour of petitioner accused No.1 could well fall within the definition of a false document. Execution of this document as per complainant allegations was a fraudulent or dishonest so as to defeat complainant's suit for possession. Petitioner was alleged to be well aware of all the facts in which this false document of agreement to sell came to be executed by accused Aditya Prasad Dube. Complaint allegations were further supported by ''letter of possession'' undated whereby possession of the suit property was shown to have been delivered to petitioner accused but then Local Commissioner in that civil suit by his report dated 20/11/2010 specifically mentioned that only accused No.2 & 3 and the plaintiff were in possession of the house property. There is a very little scope for revisional court to take up analysis of the evidence brought by :8: complainant before ld MM whereby ld MM has found a prima facie case made out for summoning accused persons for the offences mentioned in the order. There appears no illegality in the summoning order dated 8/3/2011 challenged in this revision. The revision is without merits and is dismissed.
Announced in the Open (J.R.ARYAN) court on 07/10/2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
:9: CR No.43/11 M.C Gupta Vs Sharda Dube Present: Respondent person Addl. PP for State.
Vide separate order revision is dismissed. Revision file be consigned to record room. Copy of the order be sent to ld trial court by 15/10/2011.
(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
07/10/2011.