Delhi District Court
Ram Kumar Sharma vs Gopal Das Banal on 27 January, 2024
IN THE COURT OF MS. GEETANJALI
ADDITIONAL SESSIONS JUDGE (FTC)-03: SOUTH EAST
DISTRICT, SAKET COURTS: DELHI
CR. REV. NO. 560/2019
CNR NO. DLSE01-007076-2019
SHRI RAM KUMAR SHARMA
S/O SH. SHIV CHARAN SHARMA
R/O H. NO. 722, SECTOR 28,
FARIDABAD, HARYANA.
.........PETITIONER
Versus
1. SHRI GOPAL DASS BANSAL
S/O SH. D. P. BANSAL
R/O H. NO. C-100, AMBEDKAR NAGAR,
NEW DELHI-110062
2. SHRI ABDUL BASIT
S/O SH. ABDUL SAMI
R/O H. NO. 85, BLOCK E,
JAWAHAR PARK, KHANPUR,
NEW DELHI
.........RESPONDENTS
Date of filing : 09.09.2019
Date of arguments : 25.01.2024
Date of judgment : 27.01.2024
JUDGMENT
Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 1 of 11
1. The present revision under Section 397 Cr.PC filed by the petitioner/ complainant assails the order dated 08.08.2017 in CC no.613489/2016 passed by Ld. Metropolitan Magistrate-02, South East District, New Delhi whereby the Ld. Judge summoned the respondents only u/s. 508/34 IPC.
2. The impugned order has been challenged on the grounds that same is neither tenable nor sustainable in the eyes of law as the same is wrong on facts and bad in law; that the Ld. Trial Court passed the impugned order hurriedly without appreciating the facts of the case; that revisionist neither prayed nor adduced any evidence for summoning u/s. 508/34 IPC; that the Ld. Trial Court failed to appreciate the fact that the contents of the registered documents can only be proved by providing opportunity for the same; that that the Ld. Trial Court also ignored the contents of fraud committed by respondents while getting the sale deed registered; that the Ld. Trial Court failed to appreciate the fact that revisionist never intended to sell the roof right of the ground floor as the roof of the ground floor already had the construction over it; that the Ld. Trial Court failed to appreciate the fact that evidences adduced by the witnesses disclose the commission of offence u/s 420/468/471/506/120B IPC. In view of the same, it has been prayed the order dated 08.08.2017 passed by Ld. MM be set aside.
3. The present revision petition is accompanied with the application u/s 5 of the Limitation Act. By way of the present application, petitioner has sought condonation of delay of 570 days in filing the present revision petition on the grounds that petitioner came to know that about the section Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 2 of 11 under which the respondents were summoned after receiving notice in revision petition no.611/2017 preferred by the respondents; that he was suffering from heart problem which aggravated with the passage of time; that he tried to amicably resolve the issue with the respondents and offered to take the amount back; that due to the above reasons petitioner did not prefer the present revision petition however in the compelling circumstances revisionist had no other choice but to file the same; that delay of 570 days is neither intentional nor deliberate. In view of the same it has been prayed that delay may kindly be condoned.
4. Notice of the revision petition was issued to the respondents. However, no reply was filed on their behalf.
5. The Trial Court record was summoned and perused. I have heard counsels for both the parties and perused the record.
6. Before going into the merits of the case, I will first decide the application u/s 5 of the Limitation Act. The petitioner has sought condonation of delay of around 570 days firstly on the ground that initially he had no knowledge about the sections under which the respondents were summoned and secondly on the ground of his ill health.
6.1 From the aforesaid, it seems that neither the petitioner nor his counsel were diligent enough in pursuing the matter. Not only that petitioner was careless as well in pursuing his case. Secondly the plea of the medical condition is not supported by any medical document. The abovesaid reasons cannot be called to be sufficient reasons so as to give him benefit under Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 3 of 11 Section 5 of the Limitation Act. Generally the courts including Hon'ble Supreme Court adopt a liberal approach in considering application for condonation of delay on ground of sufficient cause under Section 5 of the Act. However, the concept such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. Reliance is placed on judgment Lanka Venkateswarlu vs. State of Andhra Pradesh AIR 2011 SC 1199. 6.2 "Sufficient cause means that the party should not have acted in a negligent manner or there was want of bona fide on his part in view of facts and circumstances of a case or it cannot be alleged that the party "has not acted diligently" or "remained inactive". The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely advise to cover an ulterior purpose. Reliance is placed on judgment titled as Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629. In view of the aforesaid discussion, I conclude that petitioner has failed to show sufficient reason for not filing the appeal within the stipulated period.
7. Coming to the merits of the case, a complaint u/s. 200 Cr.PC for the offences committed u/s. 420/468/471/506/120-B IPC was filed by the petitioner against respondents i.e. accused Ram Kumar Sharma and another accused Abdul Basit. The case of the complainant was that he is the owner Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 4 of 11 and in possession of the premises i.e. plot no. B/153, Okhla Industrial area, Phase-II, New Delhi and the premise was declared freehold by DDA vide conveyance deed dated 02.01.2013; that the said premises was consisting of one tin shed at the time of initial allotment but the association of DDA shed of Okhla, Phase-I and II sent a representation to DDA for permission to replace the shed with pucca roof and accordingly DDA permitted the shed owners to replace the shed with pucca roof with the restriction that the height of the roof will not exceed the top level of the shed i.e. 20 feet; that thereafter, the above said shed was replaced with concrete roof at ground floor and T-Iron and stone roof at first floor within specified permitted limit of 20 feet height; that accused Ram Kumar Sharma approached the complainant for the purchase of the roof right of the first floor for the purpose of working of small unit of fabrication or packaging which required open space with sunlight facilities; that complainant agreed to sell the roof rights of the first floor of the said property to the accused Ram Kumar Sharma for working of small unit of fabrication or packaging which required open space, for a total consideration of Rs.30 lakh out of which Rs.15 lakhs was to be paid to wife of complainant; that out of the said Rs.15 lakhs payable to the wife of the complainant, accused Ram Kumar Sharma paid sum of Rs.10 lakhs in cash and paid the amount of Rs. 5,00,000/- through cheque on 03.09.2012 vide agreement to sell; that the balance sale consideration amount of Rs. 15,00,000/- was to be paid to complainant through cheque at the time of execution of title document; that complainant Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 5 of 11 got the said property freehold vide conveyance dated 02.01.2013 and requested accused Ram Kumar Sharma to pay the remaining balance sale consideration and to execute the title documents but he avoided the same on pretext or other; that accused Ram Kumar Sharma called the complainant and his wife at the office of Sub-Registrar, Mehrauli on 07.03.2013 where one person from the office of Deed Writer hurriedly obtained their signatures on the same without allowing them to go through the same and the sale deed was got registered without their appearance before the Sub-Registrar, Mehrauli; that complainant did not doubt the intention of the accused Ram Kumar Sharma since he received whole of the consideration amount; that after 2-3 days accused Abdul Bashit came to the said premises and starting measuring the same and digging the earth for erection of pillars inside the staircase; that on further inquiry it was revealed that accused Ram Kumar Sharma planned to construct three storeys on the existing structure, contract of which was given to accused Abdul Basit; that being surprised, complainant rushed to the office of Sub-Registrar where it was revealed that accused Ram Kumar Sharma obtained his signature on the document vide which he purported to have sold the roof rights of the ground floor and above on the said premises which was never intended by him; that complainant requested accused Ram Kumar Sharma to file suitable amendment in the sale deed but he refused and also threatened him with dire consequences; that when accused Ram Kumar Sharma did not pay any heed to his requests then he filed the civil suit during the course of which dispute Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 6 of 11 was agreed to be settled with intervention of the neighbours with the stipulation that complainant will file rectification deed which will be signed by accused Ram Kumar Sharma before the Sub-Registrar; that on 03.04.2013 complainant alongwith his counsel went to the office of Sub- Registrar for rectification deed where confrontation broke out between them on some clauses and both the accused abused complainant, caught hold of his collar and manhandled his counsel and also threatened the complainant that he will be killed like Deepak Bhardwaj and that too at his own place; that both of them tried to terrorize the complainant and his counsel by their acts and words. The matter was reported to the police. After leading pre- summoning evidence, both the accused persons were summoned only under section 506/34 IPC vide the impugned order however inadvertently it has been mentioned as section 508/34 IPC. 7.1 The ground of challenge under the present revision petition is that respondents committed fraud while getting the sale deed registered since revisionist never intended to sell the roof right of the ground floor as the roof of the ground floor already had the construction over it and the evidences adduced by the witnesses disclose the commission of offence u/s 420/468/471/506/120B IPC. For the purpose of convenience the relevant provisions are reproduced below:
"Section 415 and 420 IPC:
415. Cheating- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 7 of 11 consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "Cheat".
420. Cheating and dishonestly inducing delivery of property- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
468. Forgery for purpose of cheating- whoever commits forgery, intending hat the [document or electronic record forged] shall be used for he purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to file.
7.2 The points requiring proof under this section are:
(1) That the document in question is a forgery. (2) That the accused forget it.
(3) That in forging it he intended that it shall be used for the purpose of cheating.
471. Using a genuine a forged [document or electronic record]- whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 8 of 11 knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
7.3 The ingredients of Section 471 are :
(1) there must be fraudulent or dishonest use of a document as genuine and (2) the person using it must have knowledge or reason to believe that the document is a forged one.
7.4 120B provides punishment for criminal conspiracy which is defined in section 120-A IPC. The constituent elements of the offence of criminal conspiracy are:-
(1) An agreement between two or more persons;
(2) to do an illegal act or;
(3) to do a legal act by illegal means and;
(4) an overt act done in pursuance of the conspiracy.
8. Coming to the offence of cheating, there are two elements i.e. deception and dishonest intention to do or omit to do something. Neither mere deception nor mere dishonesty is a criminal offence. To establish the offence of cheating, the complainant must show not only that he was induced to do or not to do something, but that this induced act or omission or his part caused or was likely to cause him some harm or damage in body, mind, reputation or property. In the given facts and circumstances, complainant i.e. petitioner has no where alleged that respondent no. 1 Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 9 of 11 dishonestly induced him to deliver his property. Rather he has stated that he believed him since he received the whole of the consideration amount. In his own words, he did not even doubt the intention of respondent no. 1 even at that time when he was made to sign the documents without going through the same.
8.1 To make out an offence of cheating the accused should be proved to have made to the complainant a statement which he knew to be a false statement, the element of dishonest or fraudulent intention, on the part of the accused should be there in his statement. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale-deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under section 420 of the Code.
9. Coming to the offence of forgery for the purpose of cheating u/s. 468 IPC, it is not the case of the petitioner that respondent no. 1 forged Cr. Rev. 560/2019 Ram Kumar Sharma Vs. Gopal Dass Bansal Page No. 10 of 11 his signatures on the sale deed and when there is no forgery of document how it can be said to be using forged document as genuine one. Thus the applicability of section 471 IPC is also ruled out. Furthermore it has no where been alleged that both the respondents were acting in concert for some illegal gain.
10. In view of the aforesaid discussion and overall facts and circumstance of the case, I came to the conclusion that I find no infirmity or irregularity in the impugned order except the inadvertent error in mentioning the section under which the respondents were summoned which is section 506 IPC and not section 508 IPC and the order is accordingly modified. The revision filed by the revisionist/ petitioner is accordingly dismissed with above said modification in the order.
11. Copy of this order be sent to the Ld. Trial Court alongwith trial court record. File of the present revision be consigned to record room.
Digitally signed by GEETANJALITyped to the direct dictation and GEETANJALI Date:
announced in the open court 2024.01.27
15:44:47
on this 27 th day of January, 2024 +0530
(Geetanjali)
Addl. Session Judge(FTC)-03
South East District, Saket Courts,
New Delhi
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