Delhi District Court
S. K. Kaushik vs . State & Ors. on 8 December, 2017
CR No.23/2017
S. K. Kaushik Vs. State & Ors.
IN THE COURT OF Dr. V.K. DAHIYA, SPECIAL JUDGE :
CBI (P.C. ACT) : DWARKA COURTS, NEW DELHI.
Criminal Revision No. 23/17
IN THE MATTER OF :
Shri S. K. Kaushik,
S/o Sh. H. C. Kaushik
R/o A7/1, Indira Park Extension,
Uttam Nagar,
Delhi110 059. ....Revisionist/Petitioner
Versus
1. State,
Through its Addl. Public Prosecutor
Department of Prosecution
District Courts Dwarka, Delhi.
2. Vikas Singh
S/o Parma Ram
R/o RZC3/52, Mahavir Enclave
New Delhi. ....Respondents
Date of Institution : 04.05.2017
Date of conclusion of arguments : 03.11.2017
Date of Decision : 08.12.2017
1/15
CR No.23/2017
S. K. Kaushik Vs. State & Ors.
: ORDER :
1. Vide this order I shall dispose of this petition preferred against the impugned order dated 15.04.2017 whereby the application of the petitioner u/s 210 Cr.P.C. has been dismissed.
2. Brief facts relevant for disposal of the present petition are like this. The respondent/complainant has filed a suit in respect of Plot bearing no. (old no. P20), New No.13, Gali no.8, Jagdamba Vihar, West Sagarpur, admeasuring 100 sq. yards, bearing Khasra No. 245/351 (hereinafter referred to the said plot). It is averred that the cheque bearing no. 792906 has been given by the accused/petitioner for discharging the rent liability and the said cheque was dishonored on presentation. Thereafter, petitioner despite receipt of legal notice has not made the payment hence the 138 proceedings were initiated against the petitioner/accused. Ld. Trial Court has taken cognizance against the accused.
3. Thereafter, the petitioner/accused moved an application disclosing therein that the petitioner was working in 2/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
Indian Airlines as a security Assistant and due to the recession in the aviation industry, the salaries of the airlines staff was not paid in time, therefore, the petitioner was in financial crunch and he was looking for some financial assistance from someone. The petitioner met Sh. Kedar Singh who introduced him to Parma Ram, who told him that he is working in Delhi Police, and he can give him some loan on interest. The petitioner was reluctant to deal with police personnel but on account of his need, the petitioner take a loan of Rs.3 lakhs against the interest of 5.5% per month. The said Parma Ram refused to enter into a loan agreement with the petitioner by stating that he is a government employee. The petitioner did not paid the interest and the Parma Ram pressurized him to pay the interest on the loan amount, therefore, the petitioner requested the Parma Ram to wait for some time and told him that petitioner will pay the loan amount soon.
4. Parma Ram in November 2006 came to the petitioner and asked him that he needs some documentation to be done to make his loan account to be secured and Parma Ram asked petitioner to be present before the subregistrar on 01.12.2006.
3/15 CR No.23/2017S. K. Kaushik Vs. State & Ors.
The said Parma Ram told the petitioner that he want some agreement executed in favour of Smt. Shanti Devi, wife of Parma Ram. Parma Ram got signed at one blank stamp paper of Rs.5000/ by the petitioner purportedly to be used for loan documentation and further Parma Ram asked the petitioner to appear before the subregistrar and petitioner will have to say only his name as S. K. Kaushik, S/o Sh. H. C. Kaushik and nothing more. Thereafter, the petitioner appeared before the sub registrar and disclosed his name as told by Parma Ram. Parma Ram told him that the copy of the registered documents will be available after 57 days. Thereafter, the petitioner whenever asked Parma Ram the copy of the loan agreement executed between him and Shanti Devi he kept avoiding the said delivery of documents.
5. The petitioner finally paid the loan amount of Rs.3 lakhs in month of August 2017. Thereafter, the petitioner was asked to pay the interest by Parma Ram and petitioner sought some time to pay the interest. The petitioner could not pay the interest and Parma Ram got furious and started threatening the petitioner with dire consequences. Thereafter, Parma Ram sought 4/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
recovery of interest by sending some muscle men at the school of the wife of the petitioner. The petitioner made a complaint to Parma Ram regarding the misbehavior extended to the wife of the petitioner at the hands of Vikas, s/o Parma Ram. Parma Ram told the petitioner that his son Vikas Singh would have done this out of some misunderstanding. Parma Ram mounted pressure on the petitioner in the year 2008 and thereafter, started harassing the petitioner and his other family members. Parma Ram calculated the interest @ 5.5% which was more than the principle amount of Rs.3 lakhs. Parma Ram also threatened the petitioner to charge an interest of 7% on the loan amount of Rs.3 lakhs.
6. Thereafter, Parma Ram approached the petitioner in the month of August 2008 and asked him to give him a cheque so that the payment of interest on the loan amount be discharged. The petitioner gave a blank cheque to Parma Ram in the name of his son Vikas Singh. The said cheque was presented with amount of Rs.3 lakhs as Parma Ram has filled the amount of Rs.3 lakhs, otherwise, the petitioner had asked not to fill such hefty amount. Vikas Singh, S/o Parma Ram visited the petitioner at Harsh Publsic School in April 2010 and threatened him. The petitioner 5/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
sought time to pay the interest amount to Parma Ram. Vikas Singh further told him that petitioner has mortgaged a plot baring no. RZP20 measuring 100 sq. yards out of khasra no. 245 & 351, situated in the area of Village Nasirpur, colony known as West Sagarpur, New Delhi to Parma Ram against the said loan amount of Rs.3 lakhs and they would sell the plot and recover the interest amount. The petitioner told this fact to his wife that he never pledged the said plot to Parma Ram and Parma Ram also told that his son Vikas Singh has told this fact due to some misunderstanding only. The petitioner started paying interest to Parma Ram but the petitioner received summons of case u/s 138 N. I. Act from Dwarka Courts and petitioner was shocked to see the sale deed allegedly executed by the petitioner in favour of Smt. Shanti Devi on 01.12.2006. The complaint contains averments that the petitioner has not paid the rent of 20 months in respect of the said plot, whose sale deed allegedly executed by the petitioner in favour of Smt. Shanti Devi.
7. The petitioner has never executed sale deed in favour of Smt. Shanti Devi in as much a loan agreement dated 01.12.2006 was executed at the office of SubRegistrar on one 6/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
page whereas the sale deed consists of five pages. The respondent have also forged the signatures of the petitioner on the cheque in question as the same bears the signature of the petitioner thrice whereas the petitioner has signed the cheque only once. The cheque in question was given to Parma Ram in lieu of the loan amount. The said plot was purchased by petitioner on 08.05.1998 through sale documents executed by Bajrang Das and thereafter the petitioner got the sale deed registered on 06.02.2006 in the name of his wife Sunita Kaushik in respect of the said plot and running a school in the name of Education Society namely, Pt. Hukam Chand Education Society.
8. The petitioner appeared in the court where 138 N.I. Act proceedings are pending and put forth the defence that the cheque in question was in respect of loan amount and the same was not issued for any rent amount to be paid by the petitioner to Shanti Devi. Thereafter, Parma Ram pursuaded the petitioner to go for mediation for settlement and for an amount of Rs.3 lacs, Parma Ram would leave his claim qua the said plot. The petitioner being afraid of the said threats extended by Parma Ram agreed to settle the dispute and matter was referred to 7/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
Mediation but Parma Ram has forged the signatures of his son Vikas on the mediation form. Thereafter, Parma Ram managed the proceedings by incorporation of the word rent in the said settlement agreement instead of the word 'interest' as was agreed upon between the parties.
9. Thereafter Parma Ram filed a suit for recovery of possession, rent and mesne profit on the basis of forged sale deed allegedly executed by petitioner in respect of the said plot. The petitioner was fed up with the cheating committed by Parma Ram. Therefore, he filed a complaint with SHO, DCP etc, and the petitioner also came to know that Shanti Devi has also filed a complaint against petitioner. Thereafter the petitioner also filed a complaint u/s 200 read with section 156 (3) CrPC for registration of FIR against accused Parma Ram, Shanti Devi and Vikas Singh etc. which is pending for consideration. Smt. Shanti Devi got lodged the FIR No.299/16, PS Sagar Pur, u/s 420/120B IPC, the averments of which pertains to the matter pending u/s 138 N.I. Act against the petitioner.
10. The petitioner has filed an application u/s 210 CrPC before the ld. Trial court where proceeding u/s 138 N.I. Act is 8/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
pending for calling a report from the IO of the FIR No.299/2016 as the factum of ownership of Shanti Devi, mother of complainant Vikas Singh is under investigation in the above said case in respect of the said plot in as much as the cheque in question is alleged to have been issued in lieu of the said plot.
11. It is submitted by counsel for the petitioner that subject matter of all the three cases namely, (i)complaint u/s 138 N.I. Act, (ii) FIR No.299/2016, PS Binda Pur, u/s 420/120B IPC,
(iii) complaint title S. K. Kaushik Vs. Parma Ram in which FIR bearing no.0249/17, u/s 420/468/471/406/448/120B/34 IPC has been lodged against Parmaram, Vikas Singh and Santosh Devi is the same.Therefore, by invoking the provision of section 210 CrPC all these cases be tried together and till the investigation by the police is pending, the proceeding of the trial u/s 138 N.I. Act be stayed,. It has been further submitted that ld trial court has wrongly dismissed the application through impugned order without appreciating the legal preposition laid down by superior courts so far as interpretation of section 210 CrPC is concerned. In this regard he has relied upon " State Vs. Har Narain" 1976 Crl. J. 562, "The State of Andhra Pradesh Vs. Cheemalpati 9/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
Ganeswra Rao & anr." 1963(2) Crl. J. 871' "G. Sri Hari Vs. Nandkishore Lahoti & anr." 2003 Crl. J. 643, "Zee News Limited Vs. State" 2016 Crl. J. 3706.
12. Per contra ld. Counsel for the State duly assisted by ld. Counsel for the respondent has contended that there is no substance in this petition being not maintainable in as much as the impugned order is interlocutory one. Ld. Trial court has passed the impugned order after appreciating the correct principle of law. None of the conditions as provided for u/s 210 CrPC is present. In the facts and circumstances of the present case, therefore, this petition devoid of merits deserves to be dismissed.
13. I have heard ld. Counsel for the petitioner as well as ld. Counsel for the respondents and have gone through the material available on record.
14. It may be noted that law with regard to the applicability of section 210 CrPC is concerned, is settled by 10/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
Superior court in as much as Zee News (supra) it has been observed as under :
"73. A bare perusal of Section 210 Cr.P;.C. would show that the purpose of the said provision is only to ensure streamlining of the justice dispensation system when there are more than one proceeding, namely, a private complaint i.e. a complaint case and one arising out of a police case in relation to the same offence. The expression "offence" has been explained and interpreted broadly in Jhar Narain (1976 Cri.L.J. 562 (Del)) (supra) and Namathoti (2000Cri.L.J. 4831) (supra) and Joseph (1982 Cri.L.J. 595 (Ker) (supra). In Har Narain (supra), this Court observed :
"..............As long as the facts under investigation by the police include the facts mentioned in the complaint case, then it will be make no difference if the police come to the conclusion that offences not mentioned in the complaint have been committed by the accused................"
"74. The purpose of Section 210, Cr.P.C. has been commented upon by the Supreme Court in Sankaran Moitra (AIR 2006 SC 1599) (supra). The said decision has been taken note of by the High Court of Punjab & Haryana in Naresh Batra (supra) in relation to the judgment of the Supreme Court in Sankaran Moitra (supra), inter alia, reads as follows :
".................the Hon'ble Supreme Court has observed that this Section is intended to ensure that the private complaints do not interfere with the course of justice. It is meant to prevent harassment to the accused twice. This is also to obliviate anomalies, which might arise from taking cognizance of the same offence more than once. It is further noted that this Section can be 11/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
invoked, when the following conditions are satisfied i.e. :
(i) there must be a complaint pending for enquiry or trial.
(ii) investigation by police must be in progress in relation to the same offence;
(iii) a report must have been made by the police officer under Section 173;
(iv) Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case."
Therefore, as per the mandate of superior courts above said four conditions must be satisfied in case the application u/s 210 CrPC is to be allowed and in Zee News case application u/s 210 CrPC was dismissed as the condition as laid down in citation 210 (2) CrPC was not satisfied with liberty to the petitioner (therein) to invoke the said provision at appropriate stage. In the same manner in G Sri Hari (supra) the N.I. proceedings u/s 138 of the Act as well as the FIR registered u/s 420 IPC were arising out of the same cheque and therefore, both the said cases were clubbed. In Har Narain (supra) it was observed that as long as the fact under investigation by the police include the fact mentioned in the complaint case, then it will make no difference if the police come to the conclusion that offence not mentioned in the complaint have been committed by 12/15 CR No.23/2017 S. K. Kaushik Vs. State & Ors.
the accused. In that case the facts contained in the police report and complaint was found to be same. Therefore, power u/s 210 was invoked and complaint case and police case were ordered to be tried together. So far as the case C. Ganeshwar Rao is concerned, that pertains to the interpretation of same transaction and it was observed that the expression same transaction means "whether a transaction can be regarded as the same would necessarily depend the same on the facts and circumstances of each case."
15. With the above said proposition of law I would like to advert to the facts of the present case. The petitioner is facing the legal proceedings under section 138 iof N I Act out of which present revision petition has arisen and he wants that the trial of these legal proceedings be clubbed with the two other FIRs pending in the court of competent jurisdiction i.e. (i) FIR No.299/16, PS Sagar Pur, u/s 420/120B IPC and (ii) FIR bearing no.0249/17, u/s 420/468/471/406/448/120B/34 IPC and till then proceedings u/s 138 of N.I. Act be stayed in terms of the provision u/s 210 (1) Cr.P.C.
13/15 CR No.23/2017S. K. Kaushik Vs. State & Ors.
16. It may be noted that in the complaint out of which the present petition has arisen, the complainant is Vikas Singh and petitioner is the accused whereas in FIR No.(ii) petitioner is the complainant and Vikas Singh, complainant (in N.I. proceedings) is one of the accused persons in FIR No.(ii). Therefore, basic ingredients of the provision section 210 CrPC is not available in the fact of the present case so far as FIR No.(ii) is concerned. As far as FIR No.(i) is concerned in that case complainant is Shanti Devi, mother of Vikas Singh, complainant (in N.I. proceedings) and accused persons are the petitioner and his wife Smt. Sunita Kaushik wherein it is alleged that petitioner and his wife has cheated Smt. Shanti Devi in as much as petitioner (herein) has cheated the Shanti Devi by getting a sale deed registered in her name in respect of the said plot which was already sold by petitioner (herein) to his wife Smt. Sunita Kaushik. Therefore, by any stretch of imagination, the contents of complaint u/s 138 of N. I. Act cannot be held to be same as that of the contents of FIR No.
(i). Therefore, there is no scope for invoking the provision of section 210 CrPC as contended by petitioner in the present petition in view of the observations made above.
14/15 CR No.23/2017S. K. Kaushik Vs. State & Ors.
17. From the above discussions, I am of the opinion that Ld. trial court has taken a plausible view of the material on record and I found no ostensible reason to take a different view which has already been taken by trial court. This petition is devoid of merits and deserves to be dismissed and is hereby dismissed.
Needless to say that nothing stated herein shall tantamount to any expression of my opinion on the merits of the case.
Copy of this order be sent to the ld. trial court for the purposes of record. Trial court record be sent back immediately and this file be consigned to record room.
Announced in the Open Court.
On the 8th day of December, 2017 (Dr. V.K. DAHIYA) SPECIAL JUDGE : CBI (P.C. ACT) DWARKA COURTS, NEW DELHI.
15/15