Delhi District Court
In ''Debender Nath Bhattacharya And Ors vs State'' Cited As Air on 5 February, 2008
IN THE COURT OF SH ANAND SWAROOP AGGARWAL, METROPOLITAN
MAGISTRATE, KARKARDOOMA COURTS, DELHI
Complaint Case No. 2330/1
U/s 420 IPC
PS : Khajuri Khas, Delhi
In the matter of :
I.P. SINGH
S/O SH. HARCHANDI
R/O 1092, GALI NO. 16
BLOCK-D, KHAJOORI KHAS
DELHI
VERSUS
1. SMT. BALESH PUNDIR
W/O SH. S.P. SINGH
R/O 18/1, LAL QUARTER
GHAZIABAD, U.
2. S.P. SINGH
S/O SH. MAN SINGH
R/O 18/1, LAL QUARTER
GHAZIABAD, U.P
05/02/2008
1. Today, case is fixed for orders on the point of summoning of the
accused persons. Complainant has filed the present complaint for the alleged
offence punishable U/s 420 IPC committed by the respondents/accused
persons. In the pre-summoning evidence, complainant has examined four CWs namely CW1 Sh. I.P Singh, the complainant himself. CW2 Smt. Chander Kaur, wife of the complainant. CW3 Sh. Dhanender Kumar Premi, nephew of the complainant and CW3 (this witness ought to have been examined as CW4 but inadvertently he has been examined as CW3) Sh. Vijender Partap, Computer Operator, Central Bank of India. I have already heard Sh. Sh. Swaran Singh, Adv. for complainant on point of summoning on 15/01/08. On 15/01/08 matter was adjourned to 24/01/08 for orders but on 24/01/08 order could not be passed because of the busy schedule of the court. Also on the said date, only one Steno was available and other Steno stood withdrawn.
2. In my considered opinion in coming to a decision as to whether a process should be issued, the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between the probability of conviction of the accused and establishment of the prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him.
Further in a case reported as ''Pepsi Foods Ltd and Anr. V/s Special Judicial Magistrate and Anr.'' VI (1998) SLT 102-IV (1997) CCR 108 (SC) (1998) 5 SCC 749, the Supreme Court held:-
''Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of the allegations made by the complainant and the evidence both oral and documentary in support thereof and decide would that be sufficient for the complainant to succeed in brining charge home to the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to be complainant and his witnesses to elicit answers to find out the truthfulness of the allegations is prima facie committed by all or any of the accused''.
In ''Debender Nath Bhattacharya and Ors V/s State'' cited as AIR 1972 SC 1607, it has been ruled as under:-
''An order of dismissal of a complaint U/s 203 has to be made on judicially sound grounds. It can only be made where the reasons given disclosed that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant but the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show essential incidents of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patents absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed U/s 203''.
Being guided by the above mentioned principles on the point whether accused be summoned to face trial or not, in my opinion as a cumulative of the following reasons the present complaint merits dismissal.
1. As per the complainant, respondents No. 1 could not have handed over/transferred the property i.e House No. 186, Blcok-C, Govindpura Colony, Ghaziabad, U.P (hereinafter referred to the property in question) in the name of the complainant inasmuch as the said house has been mortgaged by the responent/accused to Punjab Nation Bank, Govindpuram, Ghaziabad, U.P by getting sanctioned the loan of Rs. 3,00,000/- on 21/07/04. Further as per the version of the complainant, the factum that respondent has taken a loan of Rs.
Three lakhs from PNB by mortgaging the property in question had not been disclosed to the complainant when agreement (mark C) was executed between the complainant and the respondent No. 1 regarding the sale of the property in question. As per the complainant, he was ready and willing to comply with the terms and conditions of mark C and the complainant had reach the office of Sub-registrar, Ghaziabad with the remaining consideration of Rs. 18,65,000/- on 25/08/05, 26/08/05 and 29/08/05 but the accused did not turn up for executing the sale deed in favour of the complainant.
To prove that property in question stood mortgaged with the PNB by the respondent, complainant herein is relying upon the document which is marked as mark A. The document mark A is one page document. It contains only three lines wherein there is reference to Rs. Three lakhs being given through cash order No. 297767 dated 26/06/04. After perusing the said document, it is not at all clear as to what reference/relationship this paper mark X has got with the property in question/respondent in the present case. It so appears that document mark A is part and partial of some other detailed document inasmuch as document mark A is having Sl. No. 21 mentioned on top of it. But complete document has not been brought on record by the complainant herein. No other evidence has been brought on record by the complainant except the oral depositions of the CW1 and CW2 to prove that property in question had in fact been mortgaged with PNB against a loan of Rs. Three lakhs. Complainant had preferred not to call any bank official to prove that property in question had been mortgaged with the PNB for a sum of Rs three lakhs. As such in my opinion it can be said that complainant has failed to prove on judicial record that the property in question had been mortgaged by the respondent with the PNB for a sum of Rs. Three lakhs.
2. As per the version of the complainant, property in question stood mortgaged with the PNB against a loan of Rs. Three lakhs. In that eventuality, complainant herein must be taken as if he was having constructive notice/knowledge of the said factum.
Also in the facts and circumstances of this case it cannot be said that the respondents had made any false representation to the complainant herein while entering into an agreement mark C with the complainant. In the agreement mark C, there is no averment from the side of the respondents to the effect that the property in question is free from all encumbrance, etc. The only avermentrs which has been made in the said agreement with regard to the property in question is that respondent No. 1 is the owner and in possession of the property in question and the said averment is, as a matter of fact, admittedly true and correct.
Further as per the depositions made by CW2, respondents had shown her certain photocopy documents as per which respondent No 1 was the owner of the property in question. If paper mark A is part and partial of the ownership documents of the property in question in all likelihood complainant must have come to know about mortgage of the property in question for a sum of Rs. Three lakhs with the PNB, Govindpuram, Ghaziabad. In that eventuality, it cannot be said that factum of, if so, property in question having been mortgaged with the PNB was concealed from the complainant herein at the time of execution of the agreement mark C between the parties.
3. As per para-4 of the agreement mark C, it has been specifically mentioned if the respondent No. 1 fails to execute the sale deed in the name of the complainant herein/any person nominated by him in that eventuality complainant will be having, without any objection from the side of the respondent No. 1, the right of getting the sale deed executed in his favour/person nominated by him through court. In such circumstances in my opinion, civil remedies are open to the complainant herein and in the facts and circumstances of this case, criminal action like the present case does not lie.
4. As per the complainant on 25/08/05, 26/08/05 and 29/08/05, he had reached the office of the Sub-registrar with balance in consideration so that sale deed can be executed in his favour. To prove this factum complainant has, besides himself and his wife, examined CW3 Dhanender Kumar and produced/proved on the record documents Ex. CW1/A, CW1/B, CW1/C, CW1/D, CW1/E and CW1/F. One fail to understand as to why CW3 Mr. Dhanender Kumar was not cited as attesting witness on the above referred to the documents, if he had visited the office of Sub-registrar alongwith the complainant. Also in the complaint with before the court there is no averment that on 25/08/05, 26/08/05 and 29/08/05, CW3 Mr. Dhanender Kumar was available with the complainant at the Sub-registrar Office with the remaining sale consideration for getting the sale deed executed in faovur of the complainant. In my opinion, present matter is of purely civil nature and no offence is found to have been committed by the respondents. As such complaint is hereby dismissed. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY i.e ON 05/02/08 (ANAND SWAROOP AGGARWAL) Metropolitan Magistrate Karkardooma Courts, Delhi