Delhi District Court
Sh Ashwani Kumar Sharma vs State on 20 January, 2018
IN THE COURT OF SHRI RAMESH KUMAR ADDL SESSIONS JUDGE
NORTH DISTRICT: ROHINI : DELHI
Criminal Revision Number : 178/17
Sh Ashwani Kumar Sharma
S/o Sh B.N. Sharma
R/o Flat No.-18, New Vindhyachal CGHS,
Plot No.0-41, Sector-13
Rohini, Delhi-110085
.........................Revisionist.
Versus
1. State
2. Khem Singh Rana
S/o Sh Kishori Lal Rana
Flat No. A-2, Sheetal Apartment,
Sector-14, Rohini, Delhi-85
3. C.M. Sharma
S/o Not known
Present address:- not known
Last Known Address:-
332, Sainik Vihar, Delhi-110034
4. Ms. Shashi Bhalla
Ex-Chief Manager
Oriental Bank of Commerce,
East Patel Nagar Branch,
New Delhi
Resident of: House No. 28/16
Punjabi Bagh Extension. Delhi-26
..........................Respondents.
Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 1 of 9
Date of institution of Revision : 06/10/2017
Date of Allocation : 07/10/2017
Date of conclusion of arguments :20/01/2018
Date of Judgment :20/01/2018
Particulars related to impugned order
CC No. : 104/1/12
PS : Prashant Vihar
Date of impugned order : 07.06.2017
Name of learned Trial Court : Ms Kadambari Awasthi
MM-04 (North): Rohini Courts,
Delhi
Memo of Appearance
Sh Pankaj Kumar, Ld Counsel for Revisionist.
Sh Girish Giri, Ld Addl PP for State.
JUDGMENT
1. The present is a judicial verdict on a revision petition filed against the order, dated 07.06.2017, passed by the Ld Trial Court.
2. Present revision petition has been filed by the revisionist namely, Ashwani Kumar Sharma, against the order, dated 07/06/2017, vide which Ld Trial Court had dismissed the complaint of the revisionist filed U/s 200 Cr.PC.
3. Trial Court Record summoned and perused.
4. The brief facts of the case are that, a complaint was filed by the revisionist, Ashwani Kumar Sharma, to the effect that , the complainant is the owner of a flat bearing no. 18, New Vindhyachal Co- operative Group Housing Society, Sector-13, Rohini, Delhi, the possession of said flat was given to the complainant by the society on Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 2 of 9 31.05.1998. After getting the possession of the flat, complainant kept the flat locked as he had already been provided with an accommodation by MTNL, New Delhi. It is further alleged, in the complaint, that the said flat was not rented to anyone by the complainant and it was kept vacant for his own personal use. The complainant was transferred from Delhi to Chandigarh in April, 2000 and thus he shifted to Chandigarh and he kept his flat under lock and did not rent out to anyone. In the first week of March, 2003, the complainant came to know that a stranger, whom the applicant had never met, had occupied the flat of the complainant without the knowledge and consent of the complainant. Thereafter, complainant issued notice, dated 07.03.2003, to accused no.1 for vacating the flat. Complainant met accused Khem Singh Rana, on 16.03.2003, and he came to know that he was the employee of Oriental Bank of Commerce and the said flat was rented to Oriental Bank of Commerce, by some C.M. Sharma i.e. accused no.2 and that the bank was paying rent @ Rs. 4000/- per month to C.M. Sharma w.e.f. November 2001, on the basis of lease deed, which was executed by accused no.2 C.M Sharma, with the bank. It is further alleged, in the complaint, that the complainant met accused no.2 on 17.03.2003, who took the complainant to Oriental Bank of Commerce, East Patel Nagar Branch, where the accused No.1 was also present and the matter was taken to Chief Manager i.e. accused No.3. It is further allged that the concerned Chief Manager, agreed to pay the monthly rent to the complainant w.e.f April 2003, on making a formal request. Upon that, complainant gave a letter on the same day i.e. 17.03.2003. Thereafter, the alleged accused no.1 requested the complainant that he be allowed to stay in the flat for one year and Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 3 of 9 assured him that, thereafter, he would vacate the flat, as and when asked by the complainant. The complainant was assured that the flat was let out to the bank so the complainant should have no worry regarding the vacation of the said flat. The complainant further alleged that, after getting such assurances and to avoid any litigation, the letter Annexure A2 was submitted to the bank by the complainant and the bank started paying rent to the complainant w.e.f April 2003. The complainant further alleged that when the complainant asked for vacation of the said flat and issued two legal notices dated 05.12.2008 and 31.12.2009 to the Branch Manager, OBC Bank, Patel Nagar Branch and also sent a representation, dated 09.07.2009, to the Chairman of the bank to evict their employee i.e. accused no.1 and to hand over the vacant possession of the said flat to the complainant. In reply to such notices, the bank replied, vide legal notice dated 18.01.2010, stating that, at no point of time, any lease agreement was ever executed by the bank with the complainant or with Mr C.M. Sharma in respect of the said flat and the bank had no role to play in it as there was no privity of contract between the bank and the complainant. It is alleged by the complainant that he was cheated by all the accused persons, who were acting in conspiracy with each other to cheat and to deceive the complainant for the purpose of keeping the flat in illegal occupation. The complainant filed the RTI and, in reply dated 30.03.2010, the accused no.2 had shown himself as the owner of the flat in question. Complainant filed the written complaint, dated 02.07.2010 to the DCP, Outer District, Delhi and he also approached the Commissioner of the Police and filed a written complaint, dated 16.09.2010, but no action was taken. Hence the complaint case was Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 4 of 9 filed by the complainant.
5. After the receipt of the complaint, Ld Trial Court called upon the action taken report and subsequently CE was recorded and later on, after hearing the arguments, on the point of summoning, ld Trial Court dismissed the application of the complainant, U/s 200 Cr.PC.
6. Aggrieved from the said order, revisionist, Ashwani Kumar Sharma, has preferred this revision petition. It is contended by Ld Counsel for the revisionist that Ld Trial Court, has erred in law as well as on facts in dismissing the complaint of the petitioner, while passing the impugned order, dated 07.06.2017 and it deserves to be set aside. It is further contended that the impugned order is illegal, erroneous and against the facts and circumstances of the case and material on record. It is further contended that the findings and reasoning of Ld Trial Court, in the impugned order, are totally perverse and not sustainable in the eyes of law and the impugned order has been passed by Ld MM in extreme hurry without considering the facts and material available on record. It is further contended that Ld Trial Court has committed an error of law apparent on the face of the record, since there are clear, unambiguous and specific allegations against all the accused persons in the complaint as well as in the evidence of the complainant recorded by the Court, at the stage of pre-summoning evidence and the allegations are duly supported by the documentary evidence pleaded by the petitioner before the Ld MM. It is further contended that, at the time of taking cognizance of offence and issuing summons to accused persons, Ld Trial Court has just to see whether Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 5 of 9 prima facie case is made out or not on the basis of allegations made in the complaint and evidences brought, at the pre-summoning stage and Ld MM is not required to consider and assure the final outcome of the case. It is further contended that the Ld MM has failed to appreciate that letter, dated 29.11.2001, written by respondent no.3 C.M Sharma, in which he has claimed himself to be the owner of flat in question and offered the flat to respondent no.2 Khem Singh Rana and another letter, dated 29.11.2001, which has been written by accused No.1 Khem Singh Rana and submitted to General Manager of OBC, alongwith a copy of aforesaid offer letter, written by C.M. Sharma, informing therein that accused No.1 has taken the flat in question on rent from C.M. Sharma clearly constitutes the offences of Forgery of Valuable security, i.e. forgery for the purpose of cheating and using as genuine a forged document or electronic record. It is further contended that Ld Trial Court has also failed to take note of settled legal preposition that photo copy of a forged valuable security would equally be a forged document to constitute offences of forgery related to documents or its use and, thus, even if the original letters are not traceable, the prima facie, offence are made out. It is further contended that Ld Trial Court failed to appreciate that from the statement of the petitioner as well as documents available on record, it is crystal clear that respondent No.2, had illegally occupied the flat of the petitioner with the help of respondent no.3 by breaking the lock of the flat of petitioner and by creating forged and fabricated documents, in which they were assisted and facilitated by the respondent no.4 and, thus, they all acted in criminal conspiracy with each other in order to illegally occupy the flat of the petitioner. It is further contended that Ld MM Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 6 of 9 failed to appreciate the fact, that prior to the year 2010, the petitioner had no knowledge of the fraud being played by the respondent no.2 in as much as he was assured by the accused persons that the flat has been taken on rent by the bank. It is further contended that availing the civil remedy by the petitioner for vacation of his flat does not create a bar to file a criminal complaint as both the remedies are mutually exclusive and co-exist. It is further contended that Ld Trial Court erred in holding that there is not sufficient material available on record to summon the accused persons, whereas, as a matter of fact, there is sufficient material available on record to summon the accused persons for commission of offences. It is further contended that the impugned order, is absolutely wrong, illegal and arbitrary, which has in fact occasioned a failure of justice and, hence, the same is liable to be set aside.
7. I have heard the contentions of Ld counsel for the revisionist and Ld Addl PP for State and have given my thoughtful consideration to the aforementioned contentions and carefully gone through the Trial Court record.
8. In the order, dated 07.06.2007, Ld Trial Court has concluded, vide its opinion, that there is no sufficient material available on record to summon the accused persons, under section 448, 453, 420,467, 468, 471,474 and 120B IPC. The contributory delay and negligence on the part of complainant is also not explained which lead to the destruction of evidence, if any, against the accused persons, in the case.
Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 7 of 99 In the Action taken Report filed by the police, before Ld Trial Court, it has come on the record fiile that, upon that the matter is of civil nature and civil litigation is already pending between the parties.
10 In the complainant's evidence, revisionist has reiterated the facts of his complaint and stated that, in order to cheat him, accused persons used to sent bank draft in the envelope of bank, having a stamp of bank, so that, he may remain under the impression that the bank is his actual tenant and the bank is paying monthly rent to him.
11 In the present matter, it may be pointed out that the incident, as alleged had taken place in the year 2002-2003. However, complaint was filed, in the month of August 2010. Thus, there is inordinate delay in filing the present case before Ld Trial Court. Further, it has transpired from the record file that complainant was receiving the rent for the flat no. 18, New Vindhyachal Co-operative Group Housing Society, Sector-13, Rohini, Delhi. Further, complainant has not made any complaint to the police authorities, initially, when he came to know that someone is residing in his flat, unauthorizedly, and it is also an admitted fact that complainant started receiving the rent to the tune of Rs.4000/- from the bank as stated by the complainant, in his complaint. Keeping in view the fact that complainant had kept receiving the rent of the flat in question, I am of the considered view that Ld Trial Court was fully justified in coming to the conclusion that there is no sufficient material available on record to summon the Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 8 of 9 accused persons under section 448, 453, 420,467,468,471 and 120B IPC and the contributory delay and negligency on the part of complainant is also not explained which lead to the destruction of evidence, if any, against the accused persons. Further, as per action taken report, the civil litigation is also pending between the property, with respect of the same. Hence, the matter being of the civil nature, and further that, the original documents, as relied by the complainant, are not available, and only the copies of the same had been obtained, hence, it cannot be said that there is sufficient material on record to summon the accused persons U/s 448,453,420, 467, 468, 471, 474 and 120B IPC.
12 In view of the above discussions, I am of the considered view that there is no illegality, infirmity or irregularity in the order of Ld Trial Court and there is no ground to set aside the same. Accordingly, the present revision petition is dismissed.
13 A copy of this, order, be sent to learned Trial Court along with the trial court record.
14 File related to Revision Petition be consigned to the Record Room.
Announced in the open court (Ramesh Kumar)
On this 20th of January, 2018 Addl Sessions Judge-5
North District: Rohini Courts,
Delhi
Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 9 of 9
Ashwani Kumar Sharma Vs State etc Cr Rev no. 178/2017 Page 10 of 9