Delhi District Court
Sh. H.P. Sharma vs State (Govt. Of Nct Of Delhi) on 5 October, 2018
Criminal Revision No.10/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 10/2017
Under Section : 200 Cr.P.C.
CC No. : 882/2013
PS : Preet Vihar
CNR No. : DLET01-000590-2017
In the matter of :-
1. SH. H.P. SHARMA
S/o. Late Sh. R.L. Sharma,
R/o. D-45, Ramprastha, Ghaziabad, U.P.
2. SH. MANOJ SHARMA
S/o. Sh. H.P. Sharma,
R/o. D-45, Ramprastha, Ghaziabad, U.P.
.............PETITIONERS
VERSUS
1. STATE (GOVT. OF NCT OF DELHI)
2. SH. PRAVEEN MEHRA
W/o. Sh. Wazir Chand Mehra,
R/o. 6, Madhuban, I.P. Extension,
Delhi-110092. ............RESPONDENTS
Date of Institution : 17.01.2017
Date of receiving in this court : 31.07.2018
Date of reserving order : 15.09.2018
Date of pronouncement : 05.10.2018
Decision : Petition is allowed.
ORDER
1. This revision petition is directed against the order dated 22.11.2015, passed by trial court in a complaint case titled as Praveen Mehra v. Manoj Sharma & Anr., bearing CC No.882/2013, under Section 200 Cr.P.C. Vide impugned order dated 22.11.2015, trial court summoned Page 1 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 Manoj Sharma and H.P. Sharma (petitioners herein) as accused for offence under Section 506(Part-I) IPC.
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this petition are that respondent no.2/Sh. Praveen Mehra filed a complaint case under Section 200 Cr.P.C. against Sh. Manoj Sharma and Sh. H.P. Sharma (petitioners herein). In his complaint, complainant alleged that both accused Manoj Sharma and H.P. Sharma were his tenants. He had filed a civil suit for their eviction in the High Court of Delhi and a decree of possession was passed by the court. The possession of tenanted property was handed over by the accused persons. Complainant had been receiving various threatening calls and demand of extortion from the accused persons. Accused no.1 asked for Rs.1 crore as consideration to vacate the tenanted premise and he also threatened to lodge false cases against the complainant and threatened to eliminate complainant. The accused persons lodged false complaint against complainant in respect of his property and complainant had not taken such threat seriously till the time both accused increased the pressure upon him to meet their illegal demands. Complainant also received one anonymous letter and in that letter there was reference to false and frivolous complaint against complainant in respect of his property. Such letter was sent at the behest of accused persons, to put pressure upon him. Complainant lodged complaint with police, but no action was taken by them. Hence, he approached the MM with his complaint under Section 200 Cr.P.C.
3. Ld. ACMM (East) on the basis of evidence led by complainant, passed summoning order against both accused firms for offence Page 2 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 punishable under Section 506 (Part-I) IPC.
GROUNDS : -
4. Being aggrieved of the impugned order dated 22.11.2015, petitioners herein have preferred present petition mainly on the following relevant grounds, which are as follows :-
● That electronic record containing information is not admissible, as requirements under Section 65B of Evidence Act were not satisfied and CD was not accompanied by proper certificate in terms of Evidence Act.
● That original source of CD of recorded conversation was not disclosed by complainant. CD/DVDs are not admissible without a proper certificate under Section 65B of Evidence Act as genuineness.
● That original recording in digital voice recorders/mobile phones need to be preserved as they may get destroyed. CD/DVD could not be exhibited as evidence. Oral testimony or expert opinion is also barred and the recording/data in CD/DVD do not serve any purpose for the conviction.
● That trial court acted in an arbitrary, biased and prejudicial manner and summoned petitioners for offence under Section 506 (Part-I) without looking into the record placed before it. ● That trial court did not appreciate that no prima facie case has been made out against petitioners. Name of Sh. Manoj Sharma is not mentioned in the said false discussion/transcript of the said alleged recorded conversation of CD.
● That ld. ACMM failed to appreciate that CD of alleged recorded conversation of petitioners is fake and manipulated by complainant. Same is no longer proved.Page 3 of 10 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 ● That trial court presumed that any lawful act may not amount to an offence. Petitioner no.2/Sh. Manoj Sharma filed a complaint on 21.03.2014 to SHO, PS Madhu Vihar, against illegality and irregularities of respondent no.2 and Sh. Manoj Sharma should not be penalized for the same.
● That trial court did not appreciate that petitioner no.2 Sh. Manoj Sharma was not even referred in the said alleged fake recorded conversation.
● That trial court did not appreciate that there was no demand of Rs.1 crore as alleged in the said conversation, then how it could be presumed as a threat made by petitioners. ● That the material/CD was not supplied to the petitioners and same was not within parameters of provisions of Indian Evidence Act.
ARGUMENTS :-
5. Ld. counsel for petitioners made arguments on the lines of grounds taken in the petition. He further argued that complaint and testimony of complainant is totally silent in respect of date of threats or date of recording of threat call. He further submitted that the certificate furnished with CD of alleged recording is defective and is not in compliance of provision under Section 65B of Evidence Act. He further submitted that in the entire transcript of alleged recording, there is no reference to any threat or demand.
6. As far as anonymous letter is concerned, same could not be attributed upon the accused persons, in absence of any evidence to show origin of such letter. Even the contents of this letter was not threatening in nature. Ld. counsel referred to Section 79 IPC to submit that accused persons, other wise cannot be precluded from Page 4 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 filing any complaint or application under RTI Act before any forum.
7. On the other hand, in the written argument, respondent no.2/complainant supported the impugned order on the grounds that complainant has not only proved the case for offence under Section 506 IPC, but also for offence under Section 384 IPC. It is further mentioned in the argument that there is specific allegation regarding threat being given to get complainant eliminated from Delhi. It is also mentioned that CW2 deposed that he had been threatened by the accused persons over phone. It is further mentioned that the case laws relied upon by petitioners are not applicable and defect in certificate under Section 65B of Evidence Act is curable, which can be rectified at any stage.
8. Ld. counsel for petitioners relied upon certain judgments in support of his contentions, which are as follows :-
● Surinder Suri v. State of Haryana & Ors., 1996(2) RCR (Criminal) 701.
● Amitabh Adhar & Anr. v. NCT of Delhi & Anr., 2000 SCC OnLine Del 292.
● Sonali Verma v. Ranbir Sharma & Anr., 1999 SCC OnLine Del 1009.
● Sumit Kumar Gupta & Ors. v. State, 2012 SCC OnLine Cal 6803.
● Chandru Deo Singh v. Prokash Chandra Bose @ Chabi Bose, 1963 AIR (SC) 1430.
● Mehmood Ul Rehman v. Khazir Mohammad Tunda, VI (2015) SLT 556.
● Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473. ● Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., 1999 [1] JCC [SC] 41.
9. Respondent no.2 relied upon certain judgments in support of his contentions, which are as follows :-
● Krishna Kumar Variar v. Share Shoppe, Criminal Appeal Nos. 961-962 of 2010, decided by Supreme Court on 03.05.2010.Page 5 of 10 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 ● Bhushan Kumar & Anr. v. State & Anr. (2012) 5 SCC 424. ● S.K. Sinha v. Videocon International Ltd. & Ors. (2008) 2 SCC
492.
● Shafhi Mohammad v. State of Himachal Pradesh, SLP (Criminal) No.2302/17 with Ravinder Singh @ Kaku v. State of Punjab, SLP (Criminal) No.9431/11 and State of Punjab v. Ravinder Singh @ Kaku & Anr. SLP (Criminal) No.9631-9634/ 2012, decided on 03.04.2018.
● U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi & Anr. (2009) 2 SCC 147.
● Kundan Singh v. State, CRL.A. 711/2014, decided by High Court of Delhi on 24.11.2015.
● Kishan Tripathi @ Kishan Painter v. State, 2016 IV AD (Delhi)
94. APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
10.The trial court summoned both petitioners herein for offence under Section 506 (Part-1) IPC, though refused to summon them for offence under Section 384 IPC. It was observed by the trial court that the threat (as per case of complainant) is not an attempt to commit extortion as the threat is not imminent. Trial court further observed that it is not the case of complainant that accused were threatening to level false allegations against him or his family member, rather the allegation is that accused are threatening to point out some irregularities committed by complainant and his family members.
However, trial court further observed that as the threats were made to cause alarm to the complainant, hence, prima facie case for offence under Section 506 IPC was made out.
11.If I look into the testimony of CW1, CW2 and CW3, I find that CW1 referred to deliberation between both the parties in respect of the dispute related to tenanted premises. He further deposed that the conversation during the meeting was recorded by his son and the CD Page 6 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 was proved as Ex.CW1/A. He also proved the anonymous letter as Ex.CW1/B and the transcript of recorded conversation as Ex.CW1/C. He deposed that accused persons had not paid the rent and had been harassing him in one way or other way by making false complaint at one place or the other and they were also applying RTI in respect of properties of his children. He concluded his testimony by saying that accused persons used to threaten him and his brother earlier on phone of his son and used to demand money to vacate the premises.
12.CW2 was brother of CW1. In his testimony, he also deposed that accused persons avoided to pay rent and started threatening them through telephone that they would not vacate the premises unless they were paid heavy amount. He further submitted that accused persons also sent anonymous letter Ex.CW1/A (wrongly so mentioned) from a fake address and in fake name. He also deposed that accused extended threat to them and started making false complaints about property of his son. Accused even started filing RTI with respect to other properties. They felt scared by such acts of the accused. It was also threatened to them that accused persons knew some one in Delhi Administration and they could harass tenants of complainant in other property. In response to court query regarding details of phone calls, time and phone number of the caller as well as receiver, CW2 deposed that the conversation was recorded, which is already Ex.CW1/A.
13.CW3 was son of the complainant, who deposed that he had recorded conversation during the meetings, in the CD, which is already Ex.CW1/A and transcript of that conversation is already Ex. CW1/C. He also referred to the same threats regarding receiving letter from Page 7 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 fake address and complaint being made to many government departments etc.
14.I have perused the transcript of the recorded conversation, which according to the complainant related to threats given by accused persons. I am unable to find any element of threat in the contents of this recorded conversation. The transcript very well shows that both parties i.e. Praveen Mehra, Anil Mehra, Sunil Sharma, H.P. Sharma, all had been deliberating over the issues among them and such conversation cannot be termed as threats being given to the complainant. Therefore, I find that the claim of complainant regarding threats received by him during such conversation is based on misconception. I am not giving much importance to the certificate under Section 65 of Evidence Act at this stage, as the same is rectifiable mistake and hence, same could be rectified at subsequent stage.
15.Now I shall dealt with the anonymous letter, which was placed by complainant on the record. This letter was sent to Chief Manager, DSIDC, making some complaints in respect of a plot and making allegations that conversation of the plot was taken on the basis of false and forged document. There were some more allegations therein. If the court start treating such letter containing allegations against a person, as threats for that person, then I am afraid that on the basis of complaint moved by complainant herein under Section 200 Cr.P.C, even the named accused persons (petitioners herein) could take such plea that they were threatened by virtue of such complaint being made against them. Hence, for apparent reasons, such letter cannot be accepted as an instance of threat being given to the complainant so as to constitute an offence under Section 506 Page 8 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 IPC. I have straightaway given such conclusion, though it is also true that there is no evidence on the record to connect the petitioners as sender of this letter.
16.Apart from these two aforesaid instances of threats, I find that there is just vague allegation written in the complaint, but not so deposed by any of the witnesses of complainant, regarding elimination of the complainant. Basically such fact was to be specifically deposed by the complainant himself, if he had actually received such threats. He was also required to explain the date, time and place of such threat being given to him. However, no such fact has been testified by the complainant.
17.The trial court had in fact, concluded that alleged threats did not amount to extort money from the complainant. Still, summoning order was passed on the basis that alarm was caused to the complainant. Simplicitor alarm being caused to any person is not sufficient to constitute offence under Section 506 IPC. There has to be criminal intimidation, as the root cause for causing such alarm. Such threat must satisfy the ingredients of Section 503 IPC and I find that same is missing in this case.
18.In view of my foregoing discussions, observations and findings, I find that the impugned order is not sustainable in the eyes of law, because the required ingredients for offence under Section 506 IPC were not satisfied, on the basis of evidence led by complainant. Though, in the written argument, complainant pleaded before this court that Section 384 IPC should be also added, however, this is a petition on behalf of named accused persons and not on behalf of the complainant. Therefore, complainant cannot be granted such relief, because he did not opt to challenge that order. Even otherwise, on Page 9 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.10/2017 merits, I do find that even ingredients of Section 384 IPC are not satisfied by the evidence led by complainant. Hence, revision petition is allowed and impugned order dated 20.11.2015 is hereby set aside. Both petitioners stand discharged.
19.TCR be sent back along with copy of order. File be consigned to record room, as per rules. Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court PRAMACHALA No.3, Karkardooma Courts, Delhi Date: 2018.10.05 17:53:15 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 05.10.2018 Special Judge (PC Act) CBI, East (This order contains 10 pages) Karkardooma Courts, Delhi Page 10 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi