Delhi District Court
Cricket Association vs . State Of West Bengal Air 1971 Sc 1925 on 5 October, 2020
CT No. 467716/16
Rajender v. Bajrangi Chaudhary & Ors.
PS Sangam Vihar
05.10.2020
Present: Counsel for the complainant.
None for accused persons.
ORDER
1. This order of mine shall decide the question of charge against the accused persons.
2. The story of the complainant is that he had purchased a property bearing no. I-10/957A, Sangam Vihar, New Delhi measuring 150 sq. yards (hereinafter called as 'property in question') from the accused no.1 in the year 2000 and documents dated 22.04.2000 were executed in this regard by accused no.1 in favour of the complainant. That property was constructed consisting of four rooms at the back and open area/gallery in the middle and two rooms in the front facing the road diving block I and block K of Sangam Vihar. That the belongings of the complainant including television, bed and household articles were kept in the front room of the said property and since the year 2000 complainant had been in possession of the same. That in the year 2004, accused no.1 approached the complainant and asked to let out the four rooms at the back for accommodation of his labourer which was agreed by the complainant, however front two rooms were locked by the complainant.
3. It is further alleged that on 01.07.2011 at about 11.30 am, the complainant received a telephonic call from his neighbour living near the 1 property in question informing that accused no.1 to 4 and their accomplices had entered into the property in question of the complainant during the last night and were carrying on construction/demolition work. That complainant was out of Delhi and he called the police by dialing 100 number and at about 12.30 PCR Van came and police officer SI Chaman Lal reached there and stopped the construction/demolition. That on 02.07.2011, the complainant reached the property in question and it was found that the locks of two front rooms were broken and his belongings were missing. That accused no.1 to 4 were present there and that they had carried the demolition and construction. On being confronted regarding the construction/demolition work by them, they threatened the complainant and thereafter complainant filed a written complaint on 03.07.2011 before the PS Sangam Vihar and DCP concerned. It is also alleged that on 02.07.2011, all the accused persons alongwith their accomplices had also abused the complainant and had wrongfully confined him and had threatened to kill him, if he was seen again at that place. Accordingly the present complaint has been filed against the present accused persons.
4. After completion of PSE, all four accused persons were summoned by Ld. Predecessor of the court vod 11.05.2017 for the offences punishable u/s 457-II/380/506-II/34 IPC. After appearance of all the accused persons, they were granted bail and subsequently pre- charge evidence was led on behalf of the complainant. In pre-charge evidence, complainant has examined himself as CW-1 in which he proved the documents regarding purchase of property in question as Ex.CW1/A (colly). Again he examined one Sanjay Singh as CW-2, one Radhey Shyam as CW-3 and one Suraj Singh as CW-4. All the witnesses were duly cross examined on behalf of the accused persons and thereafter pre-charge evidence was 2 closed by complainant vide separate statement dated 29.02.2020. Arguments on the point of charge have been heard on behalf of both the parties.
5. It has been argued by counsel for the complainant that from the document Ex.CW1/A (Colly) it is clear that the property in question was purchased by the complainant from accused no.1. It is submitted that the execution of document Ex.CW1/A has been proved by testimony of CW-3 & CW-4. It is further submitted that two rooms in the front of the said property were in possession of the complainant and only the four room at back were let out to the accused no.1, however as deposed by CW-1 on oath, the accused persons illegally trespassed in the said rooms belonging to the complainant and also committed theft of his belonging from these rooms. That they also threatened the complainant to kill on 02.07.2011. It is argued that incidence of theft has been duly proved by testimony of CW-2 namely Sanjay who was the ye witness to the same. Accordingly, it is contended that all the accused persons are liable to be charged for the offences, they were summoned vod 11.05.2017.
6. On the other hand, Ld. Counsel for the accused persons has firstly drawn the attention of the court towards the contradictions in the version of the complainant regarding execution of document Ex.CW1/A (colly). It is submitted that complainant when examined as CW-1 deposed in his cross-examination that documents were not prepared in his presence and signatures of neither party were taken before the Notary. Again that he admitted in his cross-examination that the documents were signed in the shop of one Dharampal and the office of notary was situated in the basement of the said shop only, however he could not explain why the documents were not got signed before the Notary. It is submitted that as deposed by him only that the said notary was known to him, however 3 surprisingly complainant did not approach him. It is further submitted that complainant himself admitted that previous chain of document of the said property was also not taken by him from the accused no.1 which further raises the question on his credibility. It is submitted that as deposed by complainant, he used to visit the property in question only once or twice in a year, however the property in question is located at the distance of merely 2-3 km from his house in Sangam Vihar. Again his credibility is questioned by the fact that he was not aware regarding the electricity connection obtained in the said property. In this regard, it is submitted that document Ex.CW1/A (colly) are forged documents and were never executed by accused no.1. Regarding the alleged possession of two rooms in front of the property in question, it is submitted that there is no rent agreement or any other document to establish the said version of the complainant and this is a false story created by the complainant. It is further submitted that as deposed by complainant in his cross- examination, he had received the call from one neighbour namely Vijay Badana regarding destruction of the building and nothing is stated if there was any alleged theft. Accordingly there are material contradictions in the version of CW-1 and in the version stated in the complaint. Similarly, contradictions have been pointed out in the testimony of CW-2 to CW-4. It is submitted that present case has been filed by the complainant to create undue pressure upon the accused persons. Accordingly, it is prayed that present accused persons are entitled to be discharged and complaint is liable to be dismissed.
7. Before going into the merits of contentions, it is worth to discuss the scope of law in this regard. Section 244 Cr.PC provides that a Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245 Cr.PC empowers a 4 Magistrate to discharge the accused. Section 245 (1) Cr.PC provides that after taking all the evidence as referred to in section 244 Cr.PC, where the court considers that no case has been made out against the accused, the Magistrate shall discharge him. Section 245 (2) Cr.PC additionally empowers a Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Reference in this regard may be made to a decision of Hon'ble Supreme Court of India in Cricket Association Vs. State of West Bengal AIR 1971 SC 1925 wherein it was observed that the provision in Section 245 (2) Cr.PC has been provided to prevent undue harassment to the accused being caused due to a proceeding which is based on a groundless charge. In the matter of Lamba Vs. Tarun 1988 Crl.J.610 PH, the Hon'ble High Court enumerated the grounds on which the accused soon after his appearance is entitled to claim a discharge at any previous stage i.e. even before the conclusion of pre charge evidence. The grounds are enumerated herein below:
(1) Any technical defect, such as want of sanction for prosecution;
(2) In competence of the complainant to file the complaint; or (3) Inherent improbability or falsity of the allegations in the complaint.
8. In view of this legal position now let me advert to the merits of the present case. It is to observe that the entire case of the complainant is primarily based upon the documents placed on record as Ex.CW1/A (colly) vide which he had allegedly purchased the property in question from accused no.1. However, I am of the view that the execution of these documents is surrounded with cloud of doubts for several reasons. Firstly, 5 it can be observed that the documents were allegedly attested by one Notary namely H.C. Chaudhary, however admittedly the complainant was not present before the said notary when the documents were attested. Undoubtedly, the attestation can be done only when the parties signing the document are present before the concerned Notary, however the complainant did not go to the Notary for the reasons known to him only. This happened despite the fact that admittedly the office of said notary was situated in the basement of the shop of Dharampal, where the documents were allegedly signed and even said notary was personally known to the complainant. Not only this but it is further surprising to note that complainant had purchased the said property from accused no.1 without inquiring about the ownership of accused no.1 himself, as complainant did not seek any documents of previous ownership of the said property from accused no.1. The said act of the complainant becomes more questionable for the reason that admittedly he had also purchased some other property before the present property, as deposed by him in his cross-examination and therefore he certainly can be presumed to be well aware being diligent while purchasing any property. It can be further observed that allegedly the document was signed in shop of one Dharmpal, however the complainant failed to examine said Dharampal, who was the material witness. No explanation has been given in this regard. Regarding the witnesses examined as CW-3 & 4 to prove the execution of these documents, it is to observe that as deposed by CW-4 he had not signed any other document except GPA, however perusal of Ex.CW1/A provides that apart from GPA, agreement to sell and receipt also bear the signature of one witness apart from Radhey Shyam, who is alleged to be Suraj Singh. Again there are also contradiction sin the version of CW 3 regarding the presence of the persons at the spot. Moreover, the law is well settled by catena of judgments of Hon'ble Apex 6 Court that document including GAP, Agreement to Sell, Affidavit and receipt of money do not transfer the title of the property and cannot substitute a sale deed as provided u/s 54 of TPA. In these circumstances, there is no reason to rely upon the document Ex.CW1/A (Colly).
9. It is to further observe that to establish the offence u/s 457-II IPC, it is imperative on the part of the complainant that he was in possession of the house in which house-trespass was committed by the accused persons. Said possession can be certainly either immediate possession or constructive possession. Now, to establish the said possession of two rooms of property in question, there is no other evidence on record except the bare statement of the complainant to the effect that four rooms at the back were let out by him to the accused no. 1 and the two rooms in front were locked by him. The version of the complainant is not corroborated by any other evidence including oral or documentary. The complainant did not examine any of the neighbour of the property in question to support his version. Surprisingly, one of the neighbour namely Vijay Bhadana, who had allegedly called the complainant on 01.07.2011 regarding the alleged destruction by the accused persons himself was not examined by the complainant. The name of said neighbour was also not mentioned in the list of witnesses annexed with the complaint. No reason has been given on behalf of the complainant for non-examination of such material witness and rather . Accordingly, I am of the view that the very basis ingredient of Section 457 IPC is not made out.
10.It is to further observe that allegedly when complainant had made a call to PCR, it was one police official namely SI Chaman Lal, who reached at the spot and had stopped the construction, however complainant had not stated even a single word how did he come to know the name of said police official, who had reached at the spot and again no explanation has 7 been given why the complainant did not examine the said police official as a witness. At no point of time, any effort was made on behalf of the complainant to get summoned the said police official, who was a material witness to support the version of the complainant regarding the alleged incidence of destruction/construction by the accused persons. Surprisingly name of this police official is not even mentioned in the list of witnesses filed with the complaint.
11. Now coming to the offence punishable u/s 380 IPC, it is to observe that the possession of the complainant in the said dwelling house is again the basic ingredient to attract the said offence, however as discussed above, there is no evidence to establish the possession of the complainant in two rooms in front of the property in question. Regarding the evidence of CW-2 namely Sanjay Singh, it is to observe that his testimony is not reliable in any manner for several reasons. Firstly, the credibility of the said witness is questionable for the very fact that he did not remember the house number of the property wherein he was allegedly working as an electrician on the date of the incidence, however he vividly remembered the house number of the property in question. Secondly, as deposed by the said witness himself, he had seen the accused breaking the lock of the room which was inside the main building, however as per the version of the complainant himself, the said room was not in his possession but was in possession of accused no.1 only. Accordingly even if the accused persons had broken the lock of the room inside the building, it cannot amount to any offence. Thirdly, as deposed by him he had seen accused persons namely Bajrangi and Kailash while taking away TV, bed and other household articles, however he could not tell by which means the said articles were taken away by the accused persons. Again the witness also failed to explain why he did not report the matter to any person 8 including the owner of the house, where he was working, regarding the said incidence of alleged theft. Further, it is also important to observe that as deposed by the said witness the incidence of theft had taken place on 30.06.2011, however as per the version of the complainant, he received the call from his neighbour pertaining to incidence on the preceding night of 01.07.2011. Last but not the least, it is also important to observe that name of this witness was nowhere mentioned in the entire complaint or in the list of witnesses filed with the complaint and even in the testimony of CW-1/complainant, it was nowhere stated if he had any knowledge regarding said witness. Accordingly, it appears that said witness namely Sanjay Singh is an interested witness, who deposed as being asked by the complainant only. In this regard, it can be also observed that he admitted in his cross-examination that he was working with Vijay Badana, who is the same person who had allegedly called the complainant regarding the incidence in question.
12. In view of aforesaid discussion, I am of the view that there are inherent improbabilities in the entire case of the complainant. Not only the execution of the basic document as relied by the complainant i.e Ex.CW1/A is in question but the possession of the complainant in the two rooms of the property in question is also not established. Again the happening of the alleged occurrence of 30.06.2011 or 01.07.2011 is also surrounded with clouds of doubt. The complainant has failed to examine material witnesses to support his version and the testimony of the witnesses examined by him as CW-2 to CW-4 is not reliable, for the reasons discussed above. Accordingly, in these circumstances, I am also not inclined to believe the version of the complainant regarding the alleged incidence dated 02.07.2011 regarding threats given by the 9 accused persons to the complainant, which is again uncorroborated by any other witness.
13.Consequently, all the accused persons are hereby discharged for all the offences. Bail bonds of accused persons are hereby cancelled. Sureties stand discharged.
14.File be consigned to record room after due compliance.
(Vivek Kumar Agarwal) MM-04, South, Saket New Delhi/05.10.2020 It is certified that this judgment contains 10 pages and each page bears my signatures.
(Vivek Kumar Agarwal) Metropolitan Magistrate-04, South, New Delhi/05.10.2020 10