Delhi District Court
South District: Saket District Courts vs S.B. Chaudhary on 23 July, 2014
IN THE COURT OF MANOJ JAIN: ASJ/ SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Revision Number : 11/2014
Unique ID No. 02406R0054912014
1 V.K. Trehan,
Son of late Dr. B.R. Trehan. .....Revisionist No. 1/Complainant No. 1
2 Rita Trehan,
Wife of Vijay Kumar Trehan. .....Revisionist No. 2/Complainant No. 2
3 Rahul Trehan,
Son of Vijay Kumar Trehan. ....Revisionist No. 3 /Complainant No. 3
All residents of:
8140, Sector B, Pocket-11,
Vasant Kunj, New Delhi-110070.
versus
1 S.B. Chaudhary
Son of late M.L. Chaudhary,
Resident of B-1-143, Sushant Lok, Phase-1,
Gurgaon. ...........Respondent No. 1/(A-1)
2 B.B. Chaudhary,
Resident of 7, Forest Lane, Anupam Garden,
Village Neb Sarai, Mehrauli,
New Delhi. ...........Respondent No. 2/(A-2)
3 Yash Arora,
Resident of 7, Forest Lane, Anupam Garden,
Village Neb Sarai, Mehrauli,
New Delhi. ..........Respondent No. 3/(A-3)
4 Pankaj Sethi,
C/o Mr. Prem Sethi,
Paradise Estate Agents,
151/A, Club Road, Sainik Farm,
New Delhi-110062. ...........Respondent No. 4/(A-4)
Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 1 of 8
5 Prem Sethi,
Paradise Estate Agents,
151/A, Club Road, Sainik Farm,
New Delhi-110062. ..........Respondent No. 5/(A-5)
6 SHO,
PS Neb Sarai,
Mehrauli, New Delhi. ...........Respondent No. 6/(A-6)
7 Municipal Corporation of Delhi,
23rd Floor, Civic Centre,
Minto Road, New Delhi-02. ..........Respondent No. 7/(A-7)
Date of institution of Revision : 05.03.2014
Date on which case was received on
transfer by this Court : 21.04.2014
Date of conclusion of arguments : 19.07.2014
Date of Order : 23.07.2014
Particulars related to impugned order:
Complaint Case Number : 148/1/11
Date of impugned order : 16.11.2013
Name of learned Trial Court : Ms. Manisha Tripathy
Learned MM-06, Saket.
Memo of Appearance
Sh. Anurag Abhishek, learned counsel for revisionists.
Sh. Ravinder Narayan, learned counsel for respondent no. 1 & 2.
Sh. L.M. Asthana, learned counsel for respondent no. 3.
Ms. Sarayu K.R., learned proxy counsel for respondents no. 4 & 5.
Ms. Promila Kapoor, learned counsel for respondent no. 7.
ORDER
1 Complainants filed a complaint which was registered as CC No. 148/1/2011. They were directed by the learned trial court to lead pre- summoning evidence and they examined seven witnesses.
Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 2 of 82 Learned trial court, vide impugned order dated 16.11.2013, summoned A-1 S.B. Chaudhary for offences punishable u/s 420/406 IPC. It also held that complicity of no other accused stood revealed.
3 Taking exception to such order, it has been claimed in revision that there was sufficient material to have summoned A-3, A-6 & A-7. It has thus been prayed that impugned order may accordingly be partly set aside and said three accused (s) may be summoned.
4 For the sake of convenience, I would be referring to the parties as per their nomenclature reflected in the complaint case.
5 During course of the consideration, Sh. Anurag Abhishek, learned counsel for complainants reiterated that he did not have any grouse whatsoever qua non-summoning of A-2, A-4, & A-5.
6 Let me, in said backdrop, evaluate whether there is enough material to summon A-3, A-6 & A-7.
7 Trial court record has been summoned. I have carefully perused the same and minutely scrutinized the allegations appearing in the complaint and also considered the deposition of all the seven witnesses examined by complainants.
8 I would mince no words in commenting that there is hardly any material reflecting any sort of involvement or complicity of MCD or SHO of concerned police station. They have been unnecessarily made accused. Even if it is assumed that MCD had carried out any act of demolition of any portion of the boundary wall of the property of complainants, there is nothing Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 3 of 8 to indicate that such act of demolition was in pursuance to any criminal conspiracy. Similarly, complainants have not been able to substantiate their case against the concerned SHO. Even if it is assumed for the sake of arguments that police had not taken any step on the basis of report of complainants, such alleged inaction on the part of police would not make them a co-conspirator.
9 Let me now come to the real issue and find out whether there is sufficient material to proceed against A-3 Yash Arora or not.
10 Briefly stated, as per the case of complainants, they are owners of land admeasuring 1165 square yards (86'x122') situated in Khasra No. 249, Village Nebsarai, Mehrauli, New Delhi along with proportionate share of 117 square yards in common (undivided and indivisible walking track) and also of 95 square yards in common (undivided and indivisible road). Such property was purchased by complainants from A-1. Sale consideration was Rs. 4.5 lacs. Agreement-to-sell was executed way back on 24.01.2000. At the time of purchase, it was open land with only a small structure meant for cowshed/ servant quarter. According to complainants, they had installed iron grill on said plot of land with the verbal permission of local police. Complainants, however, wanted to erect a boundary wall to protect and secure their such property.
11 In March 2011, A-1 approached complainant no. 1 and offered to erect a brick boundary wall at said plot falsely representing and assuring that he was having good relation with police and MCD and induced complainants to part with a sum of Rs. 1 lac. Such amount was paid to him on 08.08.2011 as an advance to get done such job of erection of brick boundary wall.
Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 4 of 812 However, when complainant no. 1 visited said plot on 07.11.2011, he found area of his plot relatively smaller in size. He got the same measured and found that the brick wall had come inside his area by 23'6"x122'. A-1 was confronted who even offered to buy back the property. Complainants, however, requested police to investigate the matter. According to complainants, accused persons, in collusion with MCD authorities, got portion of boundary wall demolished. According to complainants, all the accused had conspired together and taking benefit of the busy schedule of the complainant, part of the said property of the complainants was sold by A-1 to A-3 and the illegally grabbed portion of 23'6"x122' is in his possession in terms of criminal conspiracy.
13 As far as A-1 S.B. Chaudhary is concerned, as already noticed above, learned trial court has summoned him for commission of offences u/s 420/406 IPC. He has not taken any exception to such order either.
14 As regards A-3 Yash Arora, his counsel Sh. Asthana has contended that he has been unnecessarily made an accused and learned trial court, rightly, did not summon him. I have seen the impugned order and learned trial court has observed that merely because accused no. 3 Yash Arora is allegedly in possession of the encroached upon portion and merely because he had purchased the land from A-1, would not be sufficient to fasten criminal liability upon him more so when there was nothing on record to suggest that he had any knowledge that such alleged encroached land was owned by the complainants.
15 I have carefully seen the deposition of complainants. Their evidence merely indicates that they had subsequently found that portion of land, which had been encroached upon, was under illegal possession of Sh.
Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 5 of 8Yash Arora. They all also deposed that Yash Arora had claimed that such portion had been sold to him by A-1 S.B. Chaudhary but he could not produce any paper to substantiate such claim.
16 A criminal court cannot be called upon to adjudicate title. This essentially is within the domain of civil court only. I am told that a civil suit has already been filed by the complainants in which A-1 and A-3 are parties besides MCD and such civil suit is at the stage of completion of pleadings. Complainants have thus already taken a right path by filing a civil suit which forum would be in the best position to adjudicate the title and to pass a decree, if required, for the purpose of restoring back the possession.
17 A-1 has been summoned by learned trial court as he caused wrongful loss to complainants by getting the brick wall constructed in illegal manner and thereby shortening his area of property. There is nothing whatsoever to infer the complicity of A-3. He was not in the picture when amount of Rs. 1 lac had been entrusted by complainants to A-1 on 08.08.2011 for said erection work.
18 There is nothing to demonstrate and portray any connivance or conspiracy between A-1 & A-3. A-1 had sold piece of land to complainants and in the similar manner, he also allegedly sold part of land to A-3. Whether these transfers are legitimate or not or whether the occupation and possession is in terms of such transfer documents or not, can be appropriately established by civil court only.
19 According to complainants, there is implied conspiracy between A-1 & A-3 as A-3 is in illegal possession of encroached upon portion. It has also been claimed that A-3 has not been able to show any document showing Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 6 of 8 sale of said portion by A-1 in his favour. Thus, it has been argued that holding back documents is itself suggestive of criminal conspiracy. However, I do not find any merit in such contention. It is the primary and foremost duty of the complainants to first prove their case and it is only when such initial burden is discharged, its adversary can be called upon to explain any fact. Merely because A-3 is not showing any document would not lead to the inference that he is in hands-in-glove with A-1.
20 I would lay emphasis that complainants have come up with a very specific case. They have claimed that they were having the possession of the entire piece of land along with the common areas. They allegedly received the possession in January 2000 and if they are to be believed then it was only in November 2011 that they noticed that a part of their land had been encroached upon. In order to substantiate such version, complainants should have examined their neighbours in order to demonstrate that they had actually received the physical possession of the entire property way back in the year 2000. There is no statement coming from any neutral corner and I cannot digest the long hiatus of 11 years in a nonchalant manner. No photograph of the disputed boundary wall has either been placed on record. Though Action Taken Report filed by the police pales into insignificance as learned trial court, while rejecting the same, directed complainant to lead evidence yet fact remains that police had observed that such boundary wall was an old boundary wall and was not recently constructed one and the police had also recorded statements of various residents of the area including one Sh. Deepak Mishra, Secretary of Welfare Society of that area who claimed that Sh. Yash Chopra had been residing in his property for quite some time and there was no alteration in existing boundary of his property and in the property owned by complainants. In such a backdrop, complainants should have examined their neighbours to clearly indicate that Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 7 of 8 they were in actual and physical possession of entire area since inception. I do not find any material which may evidently suggest the participation of A-3 in usurping of land or depicting any nexus between him & A-1.
21 In view of my foregoing discussion, I do not find any illegality or impropriety in the impugned order. Findings given by learned Trial Court are in complete consonance with the pre-summoning evidence.
22 Revision petition is accordingly dismissed.
23 Copy of this order be sent to learned Trial Court along with Trial Court Record.
24 File pertaining to Revision Petition be consigned to Record Room.
Announced in the open court On this 23rd day of July 2014. (MANOJ JAIN) ASJ/ Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi Criminal Revision No. 11/2014 Vijay Kr. Trehan Vs. S.B. Chaudhary etc. Page 8 of 8