Delhi District Court
State vs . Bina Ramani on 7 September, 2015
IN THE COURT OF SH. SANJEEV JAIN:ADDL.
SESSIONS JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
UID No. 02406R0135992015
Criminal Revision no. 28/15
FIR NO. 493/2006
P.S. Hauz Khas
State vs. Bina Ramani
State (Govt. NCT of Delhi)
Through Public Prosecutor, Delhi .........Petitioner
Vs.
Ms. Bina Ramani
W/o Mr. George Mailhot
R/o 234, Westend Marg,
Saidulajab, New Delhi 110030 ....Respondent/accused
Date of Institution : 21.04.2015
Date of allocation : 22.04.2015
Date of arguments : 20.08.2015
Date of order : 07.09.2015
Criminal revision no. 28/2015 07.09.2015 Page no. 1/24
Revision Petition U/S 397/399 of The Code of Criminal
Procedure (in short "Cr.P.C") against the impugned
order dated 14.01.2015 passed by the Court of Sh. Vivek
Kumar Gulia, Ld. Chief Metropolitan Magistrate, South,
Saket Courts, New Delhi, in case FIR No. 493/06 U/S
420/467/468/471/120B IPC of P.S. Hauz Khas, whereby
the accused Bina Ramani has been discharged U/S
420/467/468/120B IPC.
Present: Sh. Pravin Rahul, ld. Addl. PP for the State.
Sh. Kawal Nain, advocate for respondent/
accused.
ORDER
1. Brief facts of the case are that FIR No. 493/2006 U/S 420/467/468/471/120B IPC was registered in P.S. Hauz Khas against the respondent Ms. Bina Ramani (hereinafter at some places referred as "accused"). As per prosecution case, during investigation of Jessica Lal murder case in FIR No. 287/1999 P.S. Mehrauli, it was revealed that accused Bina Ramani was running a RestroBar in the name and style of "Once Upon a Time" without any valid license for serving liquor. The owner of the said restaurant had simply obtained a license from MCD for running a eating house. The Criminal revision no. 28/2015 07.09.2015 Page no. 2/24 restaurant was also registered with DCP (licensing). It was found that the photocopies of the relevant documents submitted by accused Bina Ramani for obtaining license from Health Department of MCD for running an eating house named "Once Upon a Time" at Mehrauli Road, New Delhi i.e. Rent receipts pertaining to property of 199091, "No Objection Certificate" of the land lord dated 09.09.1997, Ration Card and Bills of different shops, were forged. As per prosecution, lease of the property was granted to accused Bina Ramani vide rent note dated 08.05.1986 with specific condition that property would not be used for running restaurant. In order to neutralize the effect of that condition, accused prepared forged "No Objection Certificate" dated 09.09.1997 purportedly issued by one of its previous owner Sh. Diwan Chand. As per prosecution, the date mentioned below the forged signature of Sh. Diwan Chand on the "No Objection Certificate" was in the handwriting of the accused George Mailhot. During investigation, it was found that rent receipt was also forged to show that the accused was running restaurant in 199091. Son and nephew of Sh. Diwan Chand have confirmed about forged signature on "No Objection Criminal revision no. 28/2015 07.09.2015 Page no. 3/24 Certificate" and rent receipts. It was also revealed during investigation from the office of concerned FSO that ration card was not issued by the authorities concerned.
2. After investigation of the case, chargesheet was filed in June 2013 i.e. after more than 7 years of registration of FIR. Vide impugned order dated 14.01.2015, ld. Chief Metropolitan Magistrate (in short "CMM") discharged all other accused except Bina Ramani. Ld. CMM discharged the accused Bina Ramani from all other offences except U/S 471 IPC and directed to frame the charge against accused Bina Ramani accordingly for the offence U/S 471 IPC.
3. Alongwith the criminal revision petition, an application for condonation of delay was filed by petitioner/State on the ground that there is a delay of 8 days due to processing and obtaining the permission from the concerned officers for filing of revision petition. After hearing ld. Addl. PP for the State and ld. counsel for respondent, in my view, there is satisfactory explanation in respect of the delay in filing of revision petition. Therefore, the delay in filing of revision petition is condoned. Criminal revision no. 28/2015 07.09.2015 Page no. 4/24
4. The impugned order dated 14.01.2015 passed by ld. CMM is challenged by ld. Addl. PP mainly on the basis of following grounds/arguments:
(a) That ld. CMM did not consider that rent note dated 08.05.1986 purportedly issued by Sh.
Diwan Chand stating that the premises could not be used for the restaurant and the fact that forged "No Objection Certificate" dated 09.09.1997 was prepared by accused for taking license from MCD and DCP (licensing).
(b) Ld. CMM failed to appreciate the fact that accused Bina Ramani was the only beneficiary of the forged documents, which she purposely used to get the license. Ld. CMM did not consider the law laid down by Hon'ble Supreme Court of India in case titled as "Bank of India vs. Yeturi Maredi Shankar Rao & Anr. 1987 SCR (2) 87".
(c) That at the time of framing of charge, ld. Trial Court was not permitted to go into the probative value of the evidence and the material brought Criminal revision no. 28/2015 07.09.2015 Page no. 5/24 on record by the prosecution was required to be accepted as correct.
5. Ld. counsel for respondent/accused contested the revision petition mainly on the following grounds:
i. That as per the admitted case of prosecution, accused Bina Ramani was the owner of the property i.e the restaurant and therefore there cannot any dishonest intention to get the license. ii. That there was no complaint from the previous owner of the property Sh. Diwan Chand in his life time and therefore, the allegations of dishonest or fraudulent intention on the part of accused on the basis of complaint of other persons was not sustainable.
iii. That no dishonest or fraudulent intention was prima faciely established by the prosecution. Even the charge U/S 471 IPC could not be framed by ld. CMM.
iv. That U/S 397 r/w Section 399 and Section 401 Cr.P.C, Sessions Court and the Hon'ble High Court has similar and concurrent jurisdiction to Criminal revision no. 28/2015 07.09.2015 Page no. 6/24 entertain the revision petition. Sessions Court and Hon'ble High Court can exercise revisionary power under these provisions suo motu.
v. That once a revision petition is brought before the Sessions Court or Hon'ble High Court, the Court is empower to check the proprietary, legality or correctness of the proceedings of subordinate Courts and no separate revision petition is required by the respondent. vi. That U/S 468(3) Cr.P.C, the limitation is to be determined with reference to the offence charged as laid down by Hon'ble Supreme Court in "State of H.P vs. Tara Dutt 2000 (1) SCC 230 and several other cases by our own High Court. Because the applicant/accused has been charged only for the offence U/S 471 IPC, she may be punished U/S 465 IPC for maximum period of two years and the limitation period for filing chargehseet for such offence was three years in accordance with section 468 Cr.P.C.
Criminal revision no. 28/2015 07.09.2015 Page no. 7/24 vii.That the charge framed by ld. Trial Court U/S 471 IPC, which is punishable for a maximum period of two years in accordance with Section 465 IPC is hopelessly barred by limitation and therefore, the accused should be discharged on the ground of limitation provided U/S 468 Cr.P.C.
6. I have carefully considered the Trial Court Record, the contention of ld. Addl. PP for the State and ld. counsel for the respondent/accused. I have also gone through the written submissions filed on record.
7. In an authority reported as Union of India Vs. Prafulla Kumar Samal And Anr, AIR 1979 SC 366, while dealing with the question of charge, it was observed by the Hon'ble Supreme Court, in paragraph 10, as under:
"Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1)That the Judge while considering the question of framing the charges under Section 227 of the Code has the Criminal revision no. 28/2015 07.09.2015 Page no. 8/24 undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2)Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceedings with the trial.
(3)The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but no grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4)That in exercising his jurisdiction under Section 227 Criminal revision no. 28/2015 07.09.2015 Page no. 9/24 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad possibilities of the case, the total effect of the evidence and the documents produced before the court, and the basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial".
8. Section 397 Cr. P.C. confers the revisional jurisdiction upon the Sessions courts to examine the record so as to ascertain the impropriety, illegality or incorrectness in the order of Ld. Trial Court. It is a discretionary jurisdiction which is to be invoked when there is some miscarriage of justice and glaring defect of a serious nature has resulted or there is glaring defect in Criminal revision no. 28/2015 07.09.2015 Page no. 10/24 procedure or manifest error on the point of law which resulted in miscarriage of justice.
9. The main contention of ld. Addl. PP for the State is that ld. CMM failed to consider that the forged documents were submitted by accused Bina Ramani for obtaining license from the MCD as well as from DCP (licensing) and she was the only beneficiary of the forged documents, therefore, the offence U/S 468/109 IPC was also made out for framing of charge. The contention of ld. Addl. PP is mainly based on the law laid down by Hon'ble Supreme Court of India in case of Bank of India vs. Yeturi Maredi Shankar Rao and Anr (supra). In Bank of India's case, accused was a Bank Employee, who was withdrawing the money from the bank account of complainant by using the withdrawal form and misappropriated the same. Accused signed on the reverse of the withdrawal form to withdraw the money. However, the authorship of signature on withdrawal form could not be proved by the prosecution. In these facts, the Hon'ble Supreme Court held that offence U/S 467/109 IPC or offence U/S 471 IPC was established. In my opinion, the facts in Bank of India's case before Hon'ble Supreme Court was Criminal revision no. 28/2015 07.09.2015 Page no. 11/24 entirely different from the facts of this case and therefore, this case is not squarely applicable in the present case. I do not find any force in the contention of ld. Addl. PP that ld. Trial Court could not examine the material on record and was required to accept the material placed by the prosecution as true and correct. It is settled position of law that at the stage of charge for limited purposes, the Court may weigh and shift the evidence to assess whether there is a prima facie case against accused. At the stage of charge, court may discharge the accused if the charges are found groundless. If the Court comes to the conclusion that two equally plausible views are possible from the facts of the case, accused may be discharged.
10. Ld. CMM has given detailed reason in the impugned order dated 14.01.2015 for his findings and relied on the case titled as Mohammed Ibrahim and Ors vs. State of Bihar and Another (2009) 8 Supreme Court cases 751. Ld. CMM observed that:
"In respect of accused George Mailhot the chargesheet only mentions that the date below the forged signature of previous Criminal revision no. 28/2015 07.09.2015 Page no. 12/24 owner of the property on forged NOC appears to be in his handwriting but since the FSL report clarified that in absence of original documents it is not possible to express a definite opinion and considering that he was not in picture at any time while applying for MCD license or for registration with DCP (Licensing) and all the application and documents bear signatures of accused Bina Ramani only, it emerges that there is no evidence to suggest that he colluded with accused Bina Ramani or actively participated in the commission of alleged offences. In respect of offences of cheating, it is seen that neither MCD department nor DCP office made any complaint alleging deceiving or misrepresentation on the part of accused. On perusing the documents, it Criminal revision no. 28/2015 07.09.2015 Page no. 13/24 becomes clear that concerned department became aware of using forged ration card in 1999 only but it opted not to take any legal action against accused. It is also noteworthy that before registration of FIR in this case, MCD license and DCP registration of the restaurant had already been cancelled. In absence of any specific complaint alleging deceiving or fraudulent or dishonest inducement, prosecution for cheating is not sustainable [Ref 2009 (4) JCC 2753]".
11. After careful consideration of material on record, I do not find any error, irregularity or illegality in the observation of ld. CMM in respect of discharge of accused Bina Ramani for the offences U/S 420/467/468/120B IPC. Therefore, in my opinion, prayer of the petitioner/State in the revision petition for framing of charge U/S 468/109 IPC against accused Bina Ramani is without any merits and the revision petition is liable to be dismissed. Criminal revision no. 28/2015 07.09.2015 Page no. 14/24
12. Ld. counsel for respondent argued that in revision petition Court may also consider the contention of respondent/accused for discharge of accused without any separate revision petition. U/S 397 r/w Section 399 and Section 401 Cr.P.C, Sessions Court may exercise the revisionary power suo motu by calling the record. In support of his contentions, ld. counsel has cited cases titled as "State vs. Bakshish Singh 2012(1) AD (Delhi) 452 (DB); Durga Devi @ Smt. Asha Rani vs. Vinod Kumar 2005 Legal Eagle (Delhi) 352 and K. Panduranga vs. S.S.R. Veluswami and Anr. 2003 (8) SCC 625". After careful consideration, there cannot be any disagreement that Sessions Courts or the Hon'ble High Court may suo moto call the record of the subordinate Court U/S 397 r/w Section 399 and Section 401 Cr.P.C and may assess the legality and correctness of the proceedings. Therefore, in my view, no separate petition is required by the accused to press his prayer for the revision of impugned order dated 14.01.2015 passed by ld. CMM and for his discharge.
13. There is no dispute that the FIR in this case was registered U/S 420/467/468/471/120B IPC on 04.08.2006 Criminal revision no. 28/2015 07.09.2015 Page no. 15/24 and the chargesheet was filed on or about 21.06.2013 i.e. after about seven years of the registration of FIR. From these facts, it is clear that offence was revealed atleast at the time of FIR on 04.08.2006 and the limitation period U/S 468 Cr.P.C started atleast from the date of FIR.
14. Ld. counsel for respondent argued that U/S 468(3) Cr.P.C, the limitation period is to be determined with reference to the offences charged by the Court as laid down by the Hon'ble Supreme Court in the case titled as State of H.P. Vs. Tara Dutt (supra). In support of his arguments, ld. counsel has also cited the cases titled as "C.H. Satyanarayan vs. State 2012 (132) DRJ 652; Hema Bhalla vs. State 2002 RLR 130(N); Vipin Kalra vs. State 2002 RLR 43(N); Arun Vyas vs. Anita Vyas 1994(4) SCC 690; Uday Shankar Awasthi vs. State of U.P. 2013 (2) SCC 435; Kishan Chand Chopra vs. State 1998(72) DLT 738 (DB) and Surender Kumar Yadav vs. State 2000 (84) DLT 289 (DB)".
15. In the case titled as C.H. Satyanarayan vs. State (supra), the Hon'ble High Court observed that:
Criminal revision no. 28/2015 07.09.2015 Page no. 16/24 "14. As regards the third contention of the petitioner, I am in agreement with the contention of the petitioner that the prosecution is barred by limitation, as Section 468 Cr.P.C creates a bar for taking cognizance of the offence after the expiry of the prescribed period of limitation.
Section 468(2)(b) Cr.P.C provides the period of limitation as one year if the offence is punishable with imprisonment for a term not exceeding one year. The offence under Sections 272/273 IPC is punishable with imprisonment for a term not exceeding six months, thus valid cognizance of the offence could be taken within the period of one year from the date of commission of the offence, while as, in the instant case the FIR was registered on 04.09.1998 and the Criminal revision no. 28/2015 07.09.2015 Page no. 17/24 chargesheet was filed and cognizance was taken on 28.10.1999. I am of the considered opinion that the bar of limitation created by Section 468 Cr.P.C cannot be avoided by adding section 328 IPC for which no limitation period has been prescribed. The mere fact that in the chargesheet certain offences are such for which no limitation period has been prescribed under section 468 Cr.P.C does not lead to the conclusion that the court is empowered to take cognizance of the offences which are finally made out against the accused beyond the period of limitation."
16. In the case of Hema Bhalla vs. State (supra), the Hon'ble High Court observed that:
"3.................... Once the learned MM had come to the conclusion that the offence under Section 380 IPC was not made out Criminal revision no. 28/2015 07.09.2015 Page no. 18/24 against the petitioner, it was incumbent upon the Magistrate to see whether charge for the offence under Section 448 IPC can be framed or cognizance can be taken for the said offence after the period of limitation. It appears that both the courts below did not take this aspect of the matter into consideration and proceeded on the presumption that once chargesheet has been filed for the offences for there is no limitation prescribed not only for the cognizance but the charge can also be framed beyond the period of three years. There was apparently erroneous presumption they proceeded on.
4. Merely in the chargesheet certain offences are such cognizance for which is not subject to any limitation does not mean that the court is empowered to take Criminal revision no. 28/2015 07.09.2015 Page no. 19/24 cognizance beyond the period of limitation for the offence which is found to have been actually committed. It is the court which is required to peruse and scan the material and the facts of the case to arrive at conclusion which particular offence is made out for the purpose of framing charge and trial and not to follow blindly as to the offence referred to or resorted to in the chargesheet filed by the police.
5. Having once come to the conclusion that the offence which the petitioner can be accused of or tried is punishable under Section 448 IPC there was no option open to the Magistrate and for that purpose learned ASJ than to resort to the provisions of Section 468 Cr.P.C as sub clause (c) of subsection (2) provides that Criminal revision no. 28/2015 07.09.2015 Page no. 20/24 the period of limitation shall be three years if the offence is punishable with imprisonment for a term of one year but not exceeding three years."
17. The careful perusal of above cited judgments makes it clear that limitation period cannot be extended by the prosecution by adding offence in the chargesheet and the limitation period will be determined with reference to the charges actually made out against the accused at the time of framing of charge.
18. Section 471 IPC provides that whoever fraudulently or dishonestly uses a forged document as genuine knowingly or having reason to believe the same to be a forged document, he shall be punished in the same manner as if he had forged such documents. The punishment for forgery is provided U/S 465 IPC as imprisonment which may extend to two years, or with fine, or with both. So the combined reading of Section 471 IPC and Section 465 IPC makes it clear that for the offence U/S 471 IPC, accused may be sentenced maximum to the extend of two years, or with fine, or with both. Section 468 (2)(c) Cr.P.C. provides three Criminal revision no. 28/2015 07.09.2015 Page no. 21/24 years limitation period, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, for the offence U/S 471 IPC, which is punishable maximum for an imprisonment of two years in accordance with Section 465 IPC, the maximum limitation U/S 468(2)(c) Cr.P.C is three years. As per section 469 Cr.P.C, the period of limitation will commenced either from the date of offence; or where the commission of the offence was not known to the person aggrieved or to the police officer, the first day on which such offence comes to the knowledge of aggrieved person or to the police officer, whichever is earlier; or on the first day on which the identity of the offender is known to the aggrieved person or to the police officer. In the present case, identity of the accused was never in dispute. Atleast it may be assumed that the offence and the offender came to the knowledge of the police officer conducting the investigation on the date of FIR in the year 2006. Admittedly, the chargesheet was filed in the year 2013 after about six years and therefore, the cognizance and framing of charge for the offence U/S 471 IPC was clearly barred by limitation.
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19. In the case of Nextle India Ltd. vs. State 1999(81) DLT 283, it was held that "in case the prosecution against the respondent was barred by limitation, his conviction and sentence are nonest and this illegality apparent on the face of the record goes to the root of the matter".
20. In view of above discussion and the cases referred by ld. counsel for respondent/accused, in my opinion, the framing of charge U/S 471 IPC against accused, which is punishable maximum with the imprisonment of two years is clearly barred by limitation U/S 468 Cr.P.C. Therefore, the proceedings and the charge against respondent Ms. Bina Ramani is nonest and illegal, which cannot sustain in the eyes of law.
21. In view of above discussion, revision petition filed by State is dismissed.
In view of bar of limitation, the impugned order dated 14.01.2015 passed by ld. CMM in respect of framing of charge against accused Bina Ramanni U/S 471 IPC is set aside. Accordingly, accused Bina Ramani is discharged. Her personal bond and surety bond stands discharged. Criminal revision no. 28/2015 07.09.2015 Page no. 23/24
22. Accused Bina Ramani has already submitted personal bond and surety bond in the sum of Rs. 25,000/, in accordance with Section 437A Cr.P.C.
23. Copy of order be sent to ld. trial Court alongwith Trial Court record. File be consigned to record room after due compliance.
Announced in the open court
on 07.09.2015 (Sanjeev Jain)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Court
New Delhi
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