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[Cites 13, Cited by 0]

Delhi District Court

Jai Kishan Sharma vs . Jai Prakash Sharma Cr 80/15 (55817/16) on 17 September, 2019

Jai Kishan Sharma Vs. Jai Prakash Sharma           CR 80/15 (55817/16)



         IN THE COURT OF SHRI AJAY GULATI
    ADDITIONAL SESSIONS JUDGE ­05: WEST : DELHI.
                                       CR No. 80/2015 (55817/16)
   Sh. Jai Kishan Sharma
   S/o Sh. Surat Singh
   R/o 61, The Palm,
   Plot No. 13­B, Sector­6,
   Dwarka, New Delhi.                           ....... Petitioner


                                 Versus


   (1) Sh. Jai Prakash Sharma                                        ......
       S/o Sh. Surat Singh
       R/o H­3, Kunwar Singh Nagar,
       Main Najafgarh Road,
       Nangloi, Delhi.

   (2) Sub Inspector Sh. Sudesh Ranga/
       3053/ the then S.I. at PS Nangloi,
       Delhi.

   (3) Insp. Ran Singh Kuhar,
       No. D1­620, the then S.H.O.
       PS Nangloi, Delhi;
       now ACP Retired.                            Respondents
Result: Dismissed Page 1 of 19

Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) Date of Institution : 15.04.2015. 

Date of Reserving Judgment                 :   06.09.2019
Date of Judgment                           :   17.09.2019

Judgment in Revision under Section 397 Cr.P.C. against the order dt. 17.03.2015 passed by the Court of Sh. Harvinder Singh, ld. MM, West, THC, Delhi.

1. The Petitioner is aggrieved by the order of refusal of ld. MM, West district to summon the proposed accused nos. 1 to 3 in the complaint preferred by the Petitioner herein against respondents no.1 to 3 i.e. accused nos. 1 to 3 before the Ld. MM. The complaint was filed with the allegations that respondent no.1 (accused no.1 before the ld. Trial Court) forged and fabricated documents regarding ownership of H.No. E­20, Kunwar Singh Nagar, Nangloi, Delhi in conspiracy with accused nos. 2 & 3 (Respondents no. 2 & 3 in the present petition) so as to deprive the Complainant/Petitioner of his rightful ownership over the said property. Qua respondents no.2 & 3 (accused no.2 & 3 before the Result: Dismissed Page 2 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) ld. MM), the specific allegations were of committing criminal breach of trust, conspiring with respondent no.1 so as to cheat the Petitioner and of criminal intimidation.

2. Notice of the Revision Petition was issued to the respondents and the Trial Court record was summoned.

3. A brief factual recapitulation is necessary to appreciate the merits of the arguments addressed. Petitioner and respondent no.1 are real brothers and both have staked claim to ownership of H.No. E­20, Kunwar Singh Nagar, Nangloi, Delhi. The original owners of the said property were Smt. Bhan Devi, Shri Ram, Shri Ram Chand etc. who executed a Sale Deed in favour of Sh. Jai Kumar Bapgonda Patil on 29.06.1974. To that extent, the chain of documents produced by the Petitioner and Respondent no.2 before the Investigating Officer of FIR No. 92/2003 is common. At this stage, it needs a highlight that FIR No. 92/2003 was lodged at the instance of Respondent no.1 herein against the Petitioner herein wherein Charge­sheet has been filed. The FIR was filed u/s 420/468 and 471 IPC with the accompanying allegations against Result: Dismissed Page 3 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) the Petitioner qua property no. E­20, Kunwar Singh Nagar, Nangloi, Delhi. However, the subsequent chain of ownership documents qua the Petitioner and Respondent no.1 is different. The Petitioner claims that Sh. Jai Kumar Bapgonda Patil sold it to Mr. Bhagirath, whose wife and one son (i.e. Smt. Phool Kunwar and Vijay) executed a Relinquishment Deed in favour of Sh. Vikram Singh Shekhawat. The property was purportedly further sold by Mr. Vikram Singh Shekhawat to one Sh. Iqbal Singh, from whom the Petitioner claims to have purchased the said property.

4. Respondent no.1 on the other hand produced ownership documents mentioning therein that subsequent purchaser Sh. J.K. Bapgonda Patil appointed Sh. Shashikant Shankar Bhoj as his GPA holder in respect of property no. E­20, from whom respondent no.1 claims to have purchased the property no. E­20 i.e. Sh. S.S. Bhoj sold the property as attorney of Sh. J.K. Bhapgonda Patil.

5. During the course of investigation of FIR no. 92/2003, it was revealed that the Relinquishment Deed executed in favour of Sh. Vikram Singh Shekhawat, purportedly by his mother and brother, Result: Dismissed Page 4 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) was found to be 'not genuine'. Statement of Sh. Jai Kumar Bapgonda Patil was also recorded who confirmed that he never executed a GPA in favour of Sh. Bhagirath but had executed the GPA in favour of Sh. S. S. Bhoj.

6. It is not in dispute that Petitioner had filed complaints against respondents no. 2 & 3 before the competent police authorities for initiating action against respondents no. 2 & 3 for carrying out partisan investigation of FIR no. 92/2003. Respondent no.2 was the investigating officer of the said FIR whereas respondent no.3 was the then SHO of Police station where the said FIR was lodged. It also needs a highlight that subsequent preliminary inquiry conducted by the ACP Vigilance against respondents no.2 & 3 held that respondents no.2 & 3 did probably conduct the investigation of FIR no. 92/2003 in a partisan manner i.e. the probability could not be ruled out. Consequently, in 2009, Joint C.P. of Delhi recommended initiation of disciplinary inquiry against respondents no. 2 & 3. The inquiry was however subsequently withdrawn on administrative grounds, which were to await the investigation being conducted in FIR no. 92/2003 by the Crime branch, to which Result: Dismissed Page 5 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) further investigation of the said FIR had been transferred in view of the allegations being levelled against the police officers. The order of dropping of disciplinary proceedings was challenged by the Petitioner before the Hon'ble High Court of Delhi by way of a Civil Writ Petition which dismissed the challenge of the Petitioner (herein) to the dropping of the department proceedings against respondents no.2 & 3, vide Judgment dt. 05.12.2017.

7. As already highlighted at the outset, in the complaint filed by the Petitioner against respondents no. 1 to 3, allegations levelled were of criminal breach of trust (qua respondent no.2), forging documents (qua respondent no.1), conspiracy (qua respondent nos. 1,2 & 3) and criminal intimidation (qua respondents no. 3 & 4). One of the allegations levelled was with regard to illegal handing over of Car bearing no. DL­4C­N­1634 to respondent no.1 by respondent no.2 after seizing it illegally from the Petitioner during the course of investigation, purportedly of FIR no. 92/2003.

8. Vide the impugned order, ld. MM declined to summon the proposed accused no. 1,2 & 3 (respondents no.1 to 3 herein) for the Result: Dismissed Page 6 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) following reasons :

(1) The first allegation of criminal breach of trust qua respondent no. 2 was pertaining to the allegedly illegal act of respondent no. 2 who, after seizing original documents of property bearing no. E­20, Kunwar Singh Nagar, Nangloi, Delhi from the Petitioner herein, during the course of investigation of FIR No. 92/2003, handed over one of the original documents i.e. Sale Deed dt. 29.06.1974 executed by Smt. Bhan Devi and others in favour of Sh. Jai Kumar Bapgonda Patil to respondent no.1 herein. It was contended by the Petitioner before the ld. MM that the said document was seized alongwith 11 other documents on 09.04.2003 and which finds a reflection in the seizure memo dt. 09.04.2003. At this stage, it needs a highlight that in the seizure memo, specific details of seized documents were not mentioned. It was only mentioned that 'X' number of original and photo copied documents pertaining to property no. E­20, Kunwar Singh Nagar had been seized. Subsequently, when the investigation of the said FIR was transferred to DIU Cell, before the IO/ACP Lal Singh, respondent no.1 produced the same original Sale Result: Dismissed Page 7 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) Deed dt. 29.06.1974. Consequently, it was submitted before the ld. MM that having taken the original sale deed from the Petitioner by respondent no. 2, the same was without authorisation and in breach of law taken out from the police file and handed over to the respondent no.1. It was thus argued that that (alleged) act of Respondent no.2 was a clear case of criminal breach of trust.

The Ld. MM dealt with this contention by observing that though the seizure memo dt. 09.04.2003 makes a mention of about 12 original and photocopied documents having been seized by the IO (i.e. respondent no.2 herein), the Sale Deed dt. 29.06.1974 is only of two pages. Ld. MM thereafter concluded that it does not stand to reason that the complainant i.e. the Petitioner herein, would not have objected to documents being seized vide a seizure memo wherein the most important document which was being seized i.e. sale deed, had not been mentioned, despite the fact that complainant was a practicing advocate. Ld. MM did not find the contention of complainant inspiring primarily on the ground that a longstanding Advocate would not have signed on the seizure memo Result: Dismissed Page 8 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) in which the details of the documents had not been mentioned. It appears that the ld. MM was not convinced that respondent no.2, as IO of the FIR no. 92/2003, had seized original sale deed dt. 29.06.1974.

(2) Qua the allegations of illegal seizing of Car bearing no. DL­ 4C­N­1634 by proposed accused no.2 (respondent no. 2 herein) from the complainant, partisan investigation of FIR no. 92/2003, and proposed accused nos. 2 & 3 conspiring with proposed accused no.1 in forging/fabricating documents, ld. MM held that the said acts would certainly fall within the scope of offence of Section 120B (Part­II) IPC but for which necessary Sanction u/s 197 Cr. P.C. would be required in order to proceed further with the complaint against the accused nos. 2 & 3. Ld. Trial court however further observed that after dropping of department proceedings against proposed accused nos. 2 & 3, since the complainant had moved to the Hon'ble High Court of Delhi seeking directions to the Police authorities for reinstating the disciplinary proceeding with further directions to them to grant sanction of prosecution under section 140 of the D.P.Act, it would be appropriate to wait for the Result: Dismissed Page 9 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) decision of the Hon'ble High Court of Delhi since the decision of the Hon'ble High Court of Delhi would be binding on the police administration and thereafter, if directed by the Hon'ble High Court of Delhi to proceed with the prosecution of proposed accused no. 2 & 3, this complaint can be proceeded further with. Qua the allegations against proposed accused no.1 regarding preparation of forged and fabricated documents, since no evidence had been brought on record by the complainant to that effect, ld. MM held that there was no evidence to summon proposed accused no.1 for those offences.

9. As highlighted above, the ld. MM had though declined to summon the proposed accused persons but observed that in case the Hon'ble High Court of Delhi allowed the Prosecution of proposed accused nos. 2 & 3 (i.e. Respondent no. 2 & 3 herein), the complaint would be revived.

10. At this stage, it needs a highlight that the Civil Writ Petition filed by the Complainant challenging the dropping of disciplinary proceedings against proposed accused no. 2 & 3 (respondents no. 2 Result: Dismissed Page 10 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) & 3 herein) was subsequently dismissed by the Hon'ble High Court of Delhi vide order dt. 05.12.2017 wherein the Hon'ble High Court found no fault with the order of the competent authority to drop the disciplinary proceedings on administrative grounds so as to await the conclusion of the investigation of FIR no. 92/2003 by the Crime Branch, as had already been highlighted at the outset.

11. It needs a further highlight that Crime Branch has already filed Charge­sheet against the Petitioner in FIR No. 92/2003.

12. In this backdrop, I have carefully considered the rival submissions and perused the record in detail.

13. So far as the allegation against respondent no.2 with regard to illegal handing over of Car after seizing it from the Petitioner and giving it to respondent no.1 is concerned, same is not supported by any evidence. Although the ld. MM has not touched upon this aspect but since this Court has gone through the record, it requires a specific highlight. The Car in question was allegedly seized by respondent no.2 in June, 2002 when the FIR no. 92/2003 had not Result: Dismissed Page 11 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) even been registered. The application for seeking Superdari of the Car was moved by the Petitioner in August, 2003 i.e. more than a year later to when it was allegedly seized by respondent no.2 in response to which, respondent no.2 had filed a reply to the effect that the Car had been handed over by the Petitioner to respondent no.1 voluntarily since the Car was in the ownership of respondent no.1. Further, it was clarified by respondent no.2 that since FIR no. 92/2003 had not been registered at that point of time, the Car was never made the case property of FIR no. 92/2003. However, Respondent no.2 admitted that he had approached the Petitioner in regard to the dispute regarding the Car between Petitioner and Respondent no.1. In view of the reply submitted by respondent no.2, the ld. MM dismissed the application for Superdari as being not maintainable. The said order was never challenged by the Petitioner, atleast the judicial record does not show it. Qua the allegation against respondent no.1 of forging and fabricating documents, the ld. MM correctly observed that during the course of investigation of FIR No. 92/2003, it had been established that the chain of documents produced by the respondent no.1 were genuine whereas the documents produced by the Petitioner were not Result: Dismissed Page 12 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) genuine. Consequently, since there was nothing on record to show that the chain of documents relied upon by respondent no.1 had been forged, ld. MM was correct in declining the summoning of respondent no.1 (proposed accused no.1) under the sections pertaining to the offence of forgery. Even the Hon'ble High Court in its judgment dt. 05.12.2017 (in the Civil Writ filed by the Petitioner herein) observed that documents of the petitioner and his brother (respondent no.1 herein) were sent for CFSL comparison and the report of the FSL is against the Petitioner.

14. So far as the allegation pertaining to criminal breach of trust having been committed by Respondent no.2 is concerned i.e. taking out a seized document from the police file and handing it over to respondent no.1, it needs a highlight that when the Petitioner moved an application seeking Superdari of the documents seized by respondent no.2 vide seizure memo dt. 09.04.2003, reply was filed by the then IO wherein he specifically admitted that the said documents had been seized but were still required for further investigation of FIR no. 92/2003. In the application for Superdari, the Petitioner (accused before the Court Result: Dismissed Page 13 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) in FIR no. 92/2003) had specifically mentioned about the seizing of original sale deed dt. 29.06.1974.

15. In view of the reply filed by the then IO/Insp. N.R. Nayyar, DIU, West to the Superdari application moved by the Petitioner, the Petitioner withdrew the application for the reason that investigation of FIR no. 92/2003, during the course of which the document had been seized, was still in progress.

16. In view of the above referred documents which are a part of the judicial record of the ld. Trial Court i.e. Superdari application moved by petitioner and reply filed to the same by the then IO, the finding returned by ld. MM that original sale deed consists of only two pages whereas documents seized by the IO were much more as per the seizure memo, and hence, allegation of complainant (Petitioner herein) has no force, cannot be sustained.

17. Once the IO/Insp. N.R. Nayyar himself had admitted to seizure of sale deed dt. 29.06.1974 during the course of investigation of FIR no. 92/2003 by the previous IO, ld. MM was wrong in Result: Dismissed Page 14 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) returning its finding qua this allegation. It seems that the above highlighted judicial record escaped the attention of ld. MM even though it finds a mention in the pre­summoning evidence of the complainant/petitioner. So far as the need to seek permission u/s 140 of the D.P.Act for prosecuting Respondents no.2 & 3 is concerned, contention of the ld. Counsel for the petitioner that the same is not required, is not tenable. It was contended by the ld. Counsel that the nature of offence allegedly committed by respondent no. 2 & 3 cannot be said to be acts done under the colour of duty or authority, or in excess of any such authority so as to warrant seeking previous sanction of the Administrator u/s 140 of the Delhi Police Act. In this regard, it needs a highlight that Petitioner himself had moved an application u/s 140 of the D.P. Act for seeking necessary permission. Same was initially granted but was subsequently withdrawn, in view of the dropping of the disciplinary proceedings against respondent no.2 & 3. Even before the Hon'ble High Court, in the Writ Petition filed by the Petitioner herein, for seeking necessary directions to the police authorities to recommence department inquiry against respondent no. 2 & 3 herein, a prayer was made by the petitioner for directing the Result: Dismissed Page 15 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) competent authority to grant sanction for prosecution u/s 140 of the D.P. Act. As has already been highlighted, the petition was dismissed by the Hon'ble High Court. Having failed in his attempt to secure necessary directions for grant of sanction for prosecution of Respondent no. 2 & 3 (herein) from the Hon'ble High Court of Delhi, Petitioner has now changed his stand before this Court to contend that sanction is not required only. I am unable to accept the submission. Assuming for the sake of argument that sale deed dt. 29.06.1974 was handed over by Respondent no. 2 to Respondent no.1 in the course of investigation of FIR no. 92/2003, same was an act in excess of the authority of Respondent no.2 and which would warrant previous sanction of the Administrator, as laid down in Section 140 of the Delhi Police Act.

18. It needs a highlight that as per the reply filed by Insp. N.R. Nayyar dt. 09.12.2003, DIU/West, each of the documents seized vide seizure memo dt. 09.04.2003, were in the file. The original sale deed dt. 29.06.1974 was seized by IO Lal Singh from respondent no.1 on 25.03.2004. Much before the seizure of said document by IO Lal Singh of DIU/West, the investigation of the Result: Dismissed Page 16 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) case had already been handed over to the DIU/West branch, as is patent from the reply filed by Insp. N.R. Nayyar, DIU/West, reference of which has been made above. At that point of time, the reply filed by Insp. N.R. Nayyar clearly mentions that each of the seized documents by the previous IO were in the police file. Therefore, before grant of sanction of Prosecution u/s 140 of Delhi Police Act, this crucial aspect would have to be considered by the competent authority since the allegation against respondent no. 2 is that he took out the document i.e. Sale deed from the case file and handed over to respondent no.1.

19. Even the disciplinary inquiry, which was initiated against respondent nos. 2 & 3 but dropped lateron, has subsequently been withdrawn vide order dt. 10.03.2014 in view of the filing of Charge­sheet by the Crime Branch against the petitioner in FIR no. 92/2003.

20. Petitioner has also challenged the impugned order on the ground that the ld. MM erroneously exercised his authority u/s 202 of the Cr.P.C. and directed investigation. It has been contended that Result: Dismissed Page 17 of 19 Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) investigation could have been directed by the ld. MM only in case where the accused is residing at a place beyond the jurisdiction of the Court.

I am unable to agree with the contention raised. Sub Section 1 of Section 202 of the Cr.P.C. specifically lays down that "in a complaint of which the MM is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding".

21. Consequently, it is clear from the bare perusal of sub section 1 of Section 202 of the Cr.P.C. that the Magistrate can exercise his discretion to appoint an investigating officer for the purpose of deciding whether or not to issue process. Infact, such an exercise of authority is mandatory when the accused is residing at a place beyond the area in which the Magistrate is exercising his jurisdiction.

Result: Dismissed Page 18 of 19

Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16)

22. In conclusion, though this Court does not concur with the reasoning recorded by ld. MM for not summoning Respondent no.2 qua the allegation of criminal breach of trust since the said finding is against the judicial record i.e. the record speaks that original sale deed dt. 29.06.1974 was seized by respondent no.2 during the course of investigation of FIR no. 92/2003, this Court is also of the opinion that for the prosecution of Respondent no.2 & 3, necessary sanction u/s 140 of the Delhi Police Act would be necessary. Qua the allegation of forging of documents by Respondent no.1, this Court concurs with the ld. MM that there is no evidence on record warranting summoning of respondent no.1 on the allegation of forgery/forging of documents. Consequently, for the foregoing reasons, the present Revision Petition stands declined.

23. Trial Court record be sent back alongwith copy of this judgment. After due compliance, Revision file be consigned to Digitally record room. signed by AJAY GULATI AJAY Date: 

                    GULATI         2019.09.18
Announced in open Court.           14:14:38    (Ajay Gulati)
                                   +0530
Dated: 17.09.2019                          ASJ­05/THC/West/ Delhi.


Result: Dismissed                                     Page 19 of 19

Jai Kishan Sharma Vs. Jai Prakash Sharma CR 80/15 (55817/16) Result: Dismissed Page 20 of 19