Indian Kanoon - Search engine for Indian Law

Delhi District Court

Shri Sarabjeet Singh vs The State ( Nct Of Delhi ) on 10 October, 2011

                             Page No. 1 of 12

                 IN THE COURT OF SH. YOGESH KHANNA 
               ADDITIONAL SESSIONS JUDGE - 02 (SOUTH)
                       SAKET COURTS, NEW DELHI
                                                                                
                                                Date of Institution : 29.07.2008
                                                Argument heard on : 22.9.2011
                                                 Date of Decision : 10.10.2011


CR No. 52/2008


IN THE MATTER OF : 

Shri Sarabjeet Singh
S/o Late Shri Daleep Singh
R/o : B­4/3, Vasant Vihar,
New Delhi.                                                 ..... Revisionist

                                   Versus

1.    The State ( NCT of Delhi )
2.    Shri Anup Sharma
      S/o Late Shri Jagdish Chand Sharma
3.    Shri Ajay Sharma
      S/o Late Shri Jagdish Chand Sharma
4.    Smt. Urmil Sharma
      W/o Late Shri Jagdish Chand Sharma

      All residents of : 
      D­16­G, Hauz Khas Enclave,
      New Delhi.                                           ..... Respondents

O R D E R :

CR No. 52/08 Sarabjeet Singh v. State & Ors.

The brief facts of the revision are that a complaint dt. 24.8.2006 was filed by the revisionist against the respondents before the court of Ld. MM seeking a direction to the SHO of Police Station Hauz Khas,New Delhi, to register the FIR on an application u/s. 156(3) CrPC, for offences punishable u/s. 420/506/120­B IPC against the accused persons / respondents herein and to investigate the matter, per provisions of CrPC and further to summon, try and punish them for the offences, as stated above. Along with the complaint, various documents were annexed. The status report was called from the concerned Police Station and later vide order dt. 13.10.2006 FIR was directed to be registered and also to conduct proper investigation into the matter.

The status reports were filed by SI R. D. Pandey, I.O. and ultimately challan was filed wherein no offence was found to have been committed by respondents no. 2 to 4 herein, and that the charge sheet was filed U/s 420 IPC, on the basis of the evidence placed on record, against respondent no. 5 Shri Badrinath Sharma. The respondents no. 2 to 4 herein were put in column no. 2 of the charge sheet dated 8.5.2009.

Last para of the charge sheet dt. 8.5.2007 is relevant, wherein it is mentioned that the police, after due investigation of the matter and on going through the record , has found that no case is made out against the CR No. 52/08 Sarabjeet Singh v. State & Ors.

respondents no. 2 to 4 herein, yet placed them in coloum no.2 and stated that if the court intends to summon them, it may do so. Since in charge sheet, the police, after due investigation, has alleged a case u/s. 420 IPC only made out against accused Badrinath Sharma and since the police did not book the respondents no. 2 to 4 herein, so the petitioner filed a protest petition, against the charge sheet, filed in FIR No. 647/2006 on 8.5.2007. SI R. D. Pandey filed reply dated 14.2.2008 to the said protest petition.

The arguments were heard on the protest petition and by the impugned order dt. 21.5.2008, the Ld. MM dismissed the said protest petition saying that the complainant is guilty of concealing of material facts in the complaint.

Simultaneously, a short order of even date, was also passed wherein after going through the charge sheet, annexed documents and statement of witnesses, recorded u/s. 161 CrPC, the ld. MM took cognizance of the offence against respondent no. 5 Sh. Badrinath Sharma. Thus accused Badrinath Sharma was summoned.

The complainant filed the present revision petition, alleging that by not passing an order on merits, the Ld. MM had not exercised the jurisdiction vested in it and further by discharging the respondents no. 2 to 4, herein, the Ld. MM has committed a grave illegality.

CR No. 52/08 Sarabjeet Singh v. State & Ors.

On facts, it is alleged by the respondents herein that the complainant entered into an agreement to sell with the respondents herein, for purchase of a property no. D­16­G, admeasuring 247­9/10, sq. yards in Hauz Khas Enclave, New Delhi , situated at Village Kharera on Delhi Qutab Road, New Delhi. The said property was originally purchased by Smt. Kasto Devi W/o Pandit Mangat Ram on 22.5.1956 from DLF Housing & Construction Ltd. The said Smt. Kasto Devi constructed a three storeyed building on the said land. However she died on 2.2.1977 leaving behind an un­registered WILL dt. 28.10.1976 bequeathing the entire ground floor in favour of her younger son Jagdish Chander Sharma and rest of the property, i.e. above ground floor in favour of his elder son Badrinath Sharma. It is alleged that respondents had applied for a probate of the said WILL but did not supply the copy of the same to the complainant. It is the case of the complainant that the respondents no. 2 to 4 herein allege to the complainant to be sole owners of the ground floor of the impugned property and whereas respondent no. 5 Shri Badrinath Sharma claimed himself to be an absolute owner of its 1st and 2nd floor. The complainant entered into an agreement to sell with respondents herein vide agreement to sell dt. 19.6.2006 for purchase of the ground floor portion for an amount of Rs. 1,71,00,000/­ and paid an advance of Rs. 25 lakhs. The period for CR No. 52/08 Sarabjeet Singh v. State & Ors.

completion of the transaction was 45 days from the date of agreement. Simultaneously, the revisionist entered into another agreement to sell dt. 19.6.2006 with respondent Shri Badrinath Sharma for purchase of first and second floors with roof rights of the same property, for a total consideration of RS. 33,00,000/­ and claims to have paid Rs. 5 Lakhs to him.

It is alleged that later, on receipt of legal notices, sent by one Anita Sharma W/o Anil Sharma and Manju D/o Badrinath Sharma, who also claim to be the co­owners of the property, the revisionist came to know that respondents were not the absolute owner. Subsequently, the revisionist also found that the 2nd floor of the said property was mortgaged with Punjab National Bank, Jhandewalan, New Delhi, which continued to be mortgaged till the date of agreement to sell and respondent no. 5 concealed this fact from the complainant. To prove the conspiracy between all accused, the revisionist relied upon affidavits given by respondents no. 2 to 4 herein and by accused Badrinath Sharma, in favour of each other.

Thus the arguments of the revisionist is three fold viz, a.The impugned order is not passed on merits but on technical grounds ; b.That the Ld. MM failed to observe that the accused persons were not the absolute owners of the property ; and CR No. 52/08 Sarabjeet Singh v. State & Ors.

c. That the affidavits given by respondents herein and by Badrinath Sharma showed conspiracy to cheat the revisionist ;

Heard.

A perusal of impugned order, clearly shows that the ld. MM was well aware of the allegations & material against the respondents herein. This controversy was further put to rest by a short order dt. 21.5.2008, wherein Ld. MM had clearly stated that she has gone through the charge sheet, annexed documents and statement of witnesses recorded u/s. 161 CrPC.

Another aspect to look into the matter is though the protest report was filed, per Bhagwant Singh v Commissioner of Police, AIR 1985 SC 1285, wherein it was held that while accepting the cancellation report, though there is no obligation on a Magistrate to issue a notice to the injured person or to a relative of the deceased for providing such injured person, an opportunity to be heard at the time of consideration of the report, yet he may give notice to the informant.

In this case, the cancellation report was never filed by the IO. Rather a challan was filed. However, even despite filing of challan, the Ld. MM, though was not bound to give an opportunity to the complainant herein to file a protest petition, nevertheless granted an opportunity and CR No. 52/08 Sarabjeet Singh v. State & Ors.

ultimately disposed of the said protest petition vide the impugned order.

Further a bare perusal of the complaint show that though the complainant claim to have been cheated by the respondents no. 2 to 4 herein, being not the sole owners of the ground floor of the property, but he himself has stated in his complaint that the said property was a self acquired property by Smt. Kasto Devi W/o Lt Sh. Mangat Ram, who by an un­registered WILL dt. 28.10.1976, had bequeathed the entire ground floor in favour of her younger son Late Jagdish Chander Sharma and rest of the property above the ground floor, in favour of her elder son Badrinath Sharma. Now admittedly, Smt. Anita Sharma W/o Anil Sharma and Smt. Manju D/o Shri Badrinath Sharma, the objectors, were the grand children of Smt. Kasto Devi & children of Sh. Badrinath Sharma. The Hindu Succession Act, says that the self acquired property of a mother devolves upon her children and not upon her grand children in case her children are alive. Thus, it devolved upon Jagdish Chander and Badrinath Sharma, the sons of Late Kaasto Devi. Even other­wise, an un­registered WILL was executed by Smt. Kasto Devi, and she herself had bequeathed her property in favour of her sons and not her grand children. Thus giving of legal notices, by Anita Sharma and Manju Sharma, could not have deterred the complainant, to avoid the deal. It is an admitted fact that Anita Sharma and CR No. 52/08 Sarabjeet Singh v. State & Ors.

Manju Sharma were the children of Badrinath Sharma. Hence, so far as the share of Late Jagdish Chander Sharma is concerned, it fell into the hands of the respondents no. 2 to 4 herein; could never be disputed. It is also important to mention that Anup Sharma, a respondent no. 2 herein, sent a letter dt. 19.7.2006, just ten days prior to the expiry of the period of the agreement dt. 19.6.2006 asking the complainant to clear the balance payment and it was clearly stated in the said letter dt. 19.07.2006 that time was an essence of the agreement and that the respondents no. 2 to 4, wish to shift their belongings from the impugned property. Instead of making the payment, the petitioner sent a legal notice dt. 24.7.06, calling upon the respondents no. 2 to 4, to return the amount of Rs. 30 lakhs with interest etc. However the said notice was replied by the respondents no. 2 to 4 vide reply dt. 28.7.2006, wherein the respondents no. 2 to 4 reiterated their stand that they are the absolute owners of the ground floor of the impugned property and they intend to purchase another property and had already got an approval of loan of Rs. 75 Lakhs from ICICI Bank and have already spent a huge amount for the purchase of the said property. Further the respondents herein, stated that they are still ready & willing to sell the property, in compliance to the agreement dt. 19.6.2006. The complainant, however, did not come forward to complete the agreement CR No. 52/08 Sarabjeet Singh v. State & Ors.

and instead filed a complaint alleging cheating and criminal intimidation. The facts enumerated in the complaint, prima facie, show that the complainant alleges that the respondents herein are not the absolute owners, primarily, due to sending of legal notices by Smt. Anita Sharma and Smt. Manju Sharma, the grand children of Late Smt. Kasto Devi. However, admittedly, the said objectors are the children of Badrinath, who admittedly is an owner of 1st floor and 2nd floor of the property. So, even other­wise , there was no dispute qua compliance of agreement dt. 19.6.2006 for ground floor of the property. Thus, the allegations, do not support the cause of petitioner to summon respondents no. 2 to 4 herein for an offence u/s. 420 IPC.

Coming to conspiracy part, the complainant has alleged that the respondents no. 2 to 4 has given an affidavit dt. 19.6.2006 wherein they had stated that Badrinath has entered into an agreement to sell dt. 19.6.2006 for the sale of the 2nd floor with entire place over and above 2nd floor and that they have no objection to it. A similar affidavit dt. 19.06.2006 was given by Badrinath wherein he stated that he has no objection if the respondents no. 2 to 4 herein, enters into an agreement to sell with the complainant, for the ground floor of the impugned property. Bare perusal of these two affidavits do not, at all, suggest any conspiracy CR No. 52/08 Sarabjeet Singh v. State & Ors.

between the respondents but simply record the factum of giving no objections to each other, for entering into the sale transaction, of their respective portions.

Lastly, coming to the criminal intimidation under section 506 IPC, the complainant / petitioner, in ground J of his petition has alleged as follows :­ " That all the accused persons on various occasions threatened that they have high connections with police officers and politicians and also with some gangsters and they will get the complainant killed if he ever again visit them or approach the Court or police for appropriate legal action. The said accused persons stated that complainant's life and life of his family is in danger and they can cause any bodily injury to complainant's family members and complainant and they will go scot­free."

To appreciate it in proper prospective, I would like to refer to Narender Kumar Jain vs. State of NCT of Delhi & Anr., 2010 (3) JCC 1746, wherein it has been held that where there is no specific allegation in the complaint that what precisely was the threat and where and when it was given, and if, primarily, it is a civil property dispute and that the CR No. 52/08 Sarabjeet Singh v. State & Ors.

allegations are vague and general in nature, it cannot become a sole basis of prosecution u/s. 506 IPC.

I would further like to observe that in this case, the investigating officer , after making thorough investigation, though did not feel it proper to proceed against respondents no. 2 to 4 herein yet left it to the discretion of the court to summon such respondents. The Ld. MM applied her mind on the charge­sheet and confirmed the view of the investigating officer. Does it mean that if a view favours an accused it is always wrong.

In the present case, the Ld. MM dealt with the charge sheet; protest petition; reply of the IO and only then she gave her observations in the impugned order. It is very strange to note that on the one hand the complainant has filed a complaint against the respondents no. 2 to 4 herein, alleging cheating by the respondents on the ground they had induced him to purchase the ground floor, falsely claiming themselves to be the absolute owners of their share, but on the other hand the complainant has filed a suit for specific performance against the respondents asking them to execute the sale deed in his favour. This shows that the complainant himself is not clear of his stand, as to if the respondents herein are the absolute owners or not.

CR No. 52/08 Sarabjeet Singh v. State & Ors.

Further, to prove cheating one has to prove the intention to cheat right from inception. If the dispute between the parties is essentially a civil dispute resulting from a breach of contract, even the non refund of the money of advance, would not constitute an offence of cheating per Dalip Kaur & Ors. Vs. Jagnar Singh & Anr., criminal appeal no. 1135 of 2009 decided on 07.07.2009. It is to be noted that in the present case, the respondents herein, had even deposited an amount of Rs. 25 lakhs, in one of the litigations, amongst them, they had received from the complainant herein.

Hence I am of the considered view that the Ld. MM had neither exceeded jurisdiction nor avoided to exercise it, as alleged. There is no force in this revision petition and is dismissed. Revision file be consigned to record room. Trial court record be returned with copy of this order.

The contention, that even despite dismissal of this revision petition, the complaint may continue, per section 210 CrPC, is a matter to be considered by the Ld. MM.

Announced in open court                                      (Yogesh Khanna)
       on 10.10.2011                                   ASJ(02), South District
                                                                Saket Courts

                                             CR No. 52/08 Sarabjeet Singh v. State & Ors.