Delhi District Court
Gurpreet Singh vs The State (Govt. Of Nct Of Delhi) on 19 February, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 58538/2016
CNR No.: DLCT01-015439-2016
Gurpreet Singh
S/o Sh. Inderjeet Singh
R/o H. No. 25, Road No. 42,
Punjabi Bagh, New Delhi
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. Ashok Kumar Jain
S/o Late Padam Singh Jain
R/o 4341, Pahari Dhiraj,
New Delhi-110006
..... Respondents
Date of Institution : 05.11.2016
Date of Arguments : 17.12.2021
Date of Judgment : 19.02.2022
JUDGMENT
1. The criminal revision petition under Section 397 read with Section 401 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against order dated 09.08.2016 (In short 'the impugned order') arising from complaint case No. 525193/16 (Old No. 22/1) titled as 'Gurpreet Singh vs. Ashok Kumar Jain' whereby Ld. MM-06, Central District, Tis Hazari Courts, Delhi (In short 'the trial Court') dismissed an application under Section 156 (3) Cr.P.C. filed by the petitioner seeking registration of FIR under Section 420/467/468/471/120B of 'The Indian Penal Code, 1860' (In short 'IPC') against the respondent No. 2. Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 1 of 16 BRIEF FACTS:
2. The petitioner filed an application under Section 156 (3) Cr.P.C. for registration of case under Section 420/467/ 468/471/120B IPC against the respondent No. 2 on the averments that the petitioner is a tenant in respect of Shop No. 5194, Main Road, Sadar Bazar, Delhi-110006 (In short 'the said property'). The said property was in the name of deceased Sultan Singh. Earlier, Govind Prasad Sumat Prasad Jain was a tenant in respect of Shop No. 5193-94, Sadar Bazar, Delhi-110006. As per agreement, the petitioner had taken the said shop on rent after paying an amount of Rs. 20,00,000/- to the said tenant and the respondent No. 2 used to receive rent on behalf of deceased Sultan Singh. The respondent No. 2 and Nirmal Kumar Jain had taken an amount of Rs. 10,00,000/- each as security. The petitioner received possession of the said property in March, 1993.
3. The case of the petitioner is that the respondent No. 2 filed an eviction case wherein the respondent No. 2 claimed himself as owner of the said property. The respondent No. 2 claimed that the said property is mutated in his name in Municipal record. The respondent No. 2 denied that the said property was in the name of deceased Sultan Singh. The respondent No. 2 claimed that the said property is an ancestral property and it came to his share through an arbitration award which was made rule of the court by the Court of Sh. Ravi Kumar, Sub-Judge in 1973.
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4. In the said case, main contention of the petitioner was that the respondent No. 2 is not the owner of the said property and he was collecting rent on behalf of deceased Sultan Singh.
5. It is further case of the petitioner that the respondent No. 2 filed a civil suit against MCD titled as 'Ashok Kuma Jain vs. MCD & Ors.' which was pending in the Court of Sh. Daya Prakash, the then Civil Judge, Tis Hazari Courts, Delhi for restraining Municipal Corporation of Delhi (MCD) from cancelling mutation of the said property. In the said case, MCD, in its reply, stated that mutation of the said property was already cancelled on 13.07.1999 as the respondent No. 2 did not produce original certified copy of arbitration award in respect of the said property despite several opportunities.
6. The case of the petitioner is that the respondent No. 2 and Nirmal Jain got property No. 5193, Sadar Bazar, Delhi-110006 mutated in their names on the basis of an arbitration award dated 04.12.1973 and thereafter, the respondent No. 2 got the said property mutated in Municipal record in his name after cutting and inserting property No. 5194/XIII, Sadar Bazar, Delhi in the said arbitration award. Mr. Jaswant Singh raised objection to forgery committed by the respondent No. 2 and thereafter, MCD cancelled mutation in respect of the said property as there was a cutting on the photocopy of the arbitration award. The arbitration award mentioned 'property' and 'not properties'.
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7. According to the petitioner, the said property was never partitioned between legal heirs of the deceased Sultan Singh. The respondent No. 2 committed forgery in the arbitration award in Suit No. 576/1973 after cutting '5193' and inserting '5193-94' therein. Despite several requests, the respondent No. 2 has not transferred the said property in the name of the petitioner. The respondent No. 2 committed a cognizable offence punishable under Section 420/467/468/471/ 120B IPC. There is need of custodial interrogation of the respondent No. 2 and comparison of handwriting of the respondent No. 2 with the forged arbitration award. The amount of Rs. 10,00,000/- paid by the petitioner to the respondent No. 2 is to be recovered. The petitioner cannot collect evidence and there is need of field investigation. The petitioner filed a complaint dated 07.05.2014 with PS Sadar Bazar vide DD No. 60B. However, local police neither registered FIR nor taken any action.
ACTION TAKEN REPORT:
8. On being directed, SI Sanjay Kumar Singh, PS Sadar Bazar, Delhi submitted Action Taken Report (ATR). Relevant part of the said report is reproduced verbatim, as under:
"Inquiry into the above mentioned allegations has been conducted. The concern file of mutation of property No. 5193 and 5194, ward XIII, Sadar Bazar, Delhi in the office of MCD, SP Zone, Delhi have been checked and certified photocopies of relevant documents on the basis of mutation was got done, have been obtained.
Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 4 of 16 It is revealed that mutation of property No. 5193 mentioned above is pending in the MCD office. Mutation of property No. 5194, mentioned above has been got done in the name of Ashok Kumar Jain. It is important to mention here that in the photocopy of order of Ld. Civil Judge Sh. Ravi Kumar in the file of mutation for property No. 5193 in the office of MCD the awarded property is mentioned as 5193/XIII without any cutting or insertion of any words or figure. But in the file of property No. 5194 the photocopy of said order bears cutting over mentioned property No. 5193/XIII and on the typed figure insertion of figure 5193-94 has been made in hand writing.
It is also revealed that affidavit of no objection from the legal heirs of Late Jaswant Singh Jain was taken by Ashok Jain for mutating the property No. 5194 mentioned above in his favour. One of the legal heir Sh. Rajiv Jain S/o Late Jaswant Singh was shown the certified photocopy of affidavit of no objection obtained from the office of MCD. He verified the said affidavit and told that although he had made the said affidavit but he was not given alternate property by Ashok Kumar Jain as promised in settlement agreement dated 23.07.11.
It is further revealed that on the basis of affidavit / NOCs from the legal heirs of Jaswant Singh mutation of property No. 5194 mentioned above was made by MCD in favour of Ashok Kumar Jain.
During in the course of inquiry the documents related to chain of ownership on the said property No. 5194 could not be produced by any of the parties. The alleged replied that by virtue of soul arbitration award by Sh. Sumat Prakash Jain which was made a rule of court of Sh. Ravi Kumar, Sub Judge, First Class, Delhi in suit No. 576/73 dated 18.9.74 he became owner / landlord of property No. 5193-94, Main Sadar Bazar, Delhi. He could not produce the original order of Hon'ble Court and replied that correction in the municipal No. was originally made by the copying branch of the court which was duly accepted by all the concerned parties as well as Hon'ble High Court of Delhi in suit No. CS 173/2003 while passing the order in his favour confirming ownership in property No. 5193-94, Main Sadar Bazar, Delhi.
Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 5 of 16 It is further submitted that mutation of property No. 5194 has been made by MCD in favour of Ashok Kumar Jain on the basis of above mentioned NOCs of legal heirs of Jaswant Singh Jain and photocopy of soul arbitration award submitted by Ashok Kumar Jain in MCD office which bears cutting on the property No. in the orders of Hon'ble Sub Judge mentioned above. Whereas mutation of property No. 5193 is pending wherein the photocopy of said orders of Hon'ble of Sub Judge does not bear any cutting on the property No. (photocopy enclosed).
In the absence of original award issued by Hon'ble Sub Judge, which was issued in year 1973 and due to death of Jaswant Singh, the allegations of forgery in mentioning property No. in the said award of Hon'ble court could not be ascertained."
THE IMPUGNED ORDER:
9. Relevant part of the impugned order is as under:
"5. Reverting back to the facts mentioned in the application filed under Sec. 156 (3) Cr.P.C., no cognizable offence is made out in the present case which requires investigation by the police as the evidence to prove the offence, if any, are within the knowledge, reach and control of complainant himself. Therefore, present is not the fit case to exercise the discretion u/s 156 (3) Cr.P.C.
6. In view of the same, application u/s 156 (3) Cr.P.C. is accordingly stands dismissed. Complainant is given opportunity to lead pre-summoning evidence in support of his case. Put up for pre-summoning evidence on 16.12.2016."
GROUNDS OF REVISION:
10. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition on the grounds, as under:
(a) The police is under a legal duty to register FIR and investigate the case in a cognizable offence;
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(b) The trial Court did not appreciate that the petitioner cannot collect evidence. There is need of investigation to ascertain the person who prepared forged document;
(c) The trial Court did not appreciate that there is need of field investigation to trace 'unknown persons';
(d) There is need of custodial interrogation to ascertain scribe of documents;
(e) Police cannot refuse registration of FIR on the grounds of reliability, genuineness and credibility of the information; and
(f) The impugned order is against law and resulted into miscarriage of justice.
REPLY BY THE RESPONDENT NO. 2:
11. In reply, the respondent No. 2 stated that the petitioner filed the petition to harass him. He stated that he is owner and landlord of the said property. He stated that the petitioner is a tenant in the said property. He stated that he filed an eviction petition against the petitioner in 2013. He stated that the complaint was filed after 13 years on the basis of hearsay facts pertaining to ownership of the respondent No. 2 and interpolation in the arbitration award. He stated that the petitioner has filed a forged copy of order dated 04.12.1973. He stated that civil suit filed by the respondent No. 2 against MCD was dismissed before the year 2010. He stated that MCD had cancelled mutation in collusion with Late Jaswant Singh. He stated that the petitioner is making payment of rent @ Rs. 396/- per month vide cheques and money orders against proper rent receipts. He stated that said property was mutated on the basis of settlement deed dated 23.07.2011 on 21.09.2012.
Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 7 of 16 APPEARANCE:
12. I have heard Mr. Gagan Preet Singh, Advocate for the petitioner, Mr. Amit Dabas, Ld. Addl. PP for the State / respondent No. 1 and Mr. R.P. Tyagi, Advocate for the respondent No. 2 and perused written arguments filed by the petitioner.
CONTENTIONS OF THE PETITIONER:
13. Ld. Counsel for the petitioner contended that the complaint disclosed commission of a cognizable offence. He contended that the trial Court committed grave error of law in refusing direction to police to register FIR and investigate the case. He referred copies of arbitration award to contend that copy of arbitration award submitted for mutation of property No. 5193/XIII, Sadar Bazar, Delhi had no cutting or writing whereas copy of arbitration award submitted for mutation of the said property had cutting and writing. He contended that '5193' was erased and thereafter, '5193-94' was written in arbitration award. He contended that arbitration award made rule of the Court by Sh. Ravi Kumar, Sub-Judge, Tis Hazari Courts, Delhi in Suit No. 576/1973 had no cutting therein on the property number. He referred status report to contend that the respondent No. 2 had submitted forged arbitration award for mutation of the said property in his name. He contended that MCD official produced file pertaining to mutation of property No. 5193 and 5194, Sadar Bazar, Delhi. He contended that the respondent No. 2 has taken false plea in his reply.
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14. Ld. Counsel for the petitioner referred the documents produced by MCD that the respondent No. 2 submitted an application dated 09.02.1998 for mutation of property No. 5193/XIII, Sadar Bazar, Delhi-110006 alongwith copy of the arbitration award, which had no cutting on municipal number of the property. He contended that the property No. 5193/XIII, Sadar Bazar, Delhi-110006 was mutated in the name of the respondent No. 2 and Nirmal Kumar Jain on 23.02.1998. He contended that thereafter, the respondent No. 2 got the said property mutated in his name after committing forgery in the arbitration award. He contended that the respondent No. 2 filed an application for mutation of the said property on 08.06.1998 on the basis of forged arbitration award and the said property was mutated in the name of the respondent No. 2 and Nirmal Kumar Jain on 19.06.1998. He contended that Jaswant Singh filed a complaint with MCD on 03.03.1999 pertaining to forgery of the arbitration award for mutation of the said property in his name by the respondent No. 2. He contended that in absence of field investigation, it cannot be ascertained as to who prepared forged arbitration award. He contended that there is need of custodial interrogation of the respondent No. 2 to ascertain identity of scribe of the forged arbitration award and other 'unknown persons' involved in commission of offence of forgery. He contended that the impugned order should be set- aside and a direction be issued to police to register FIR and investigate the case.
Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 9 of 16 CONTENTIONS OF THE RESPONDENT NO. 1:
15. Ld. Addl. PP for the State contended that the dispute is related to forgery in the arbitration award dated 18.09.1974. He contended that the entire evidence is available or within reach of the petitioner. He contended that there is no need of police investigation.
CONTENTIONS OF THE RESPONDENT NO. 2:
16. Ld. Counsel for the respondent No. 2 contended that the respondent No. 2 inducted the petitioner as tenant in the said property and he is receiving rent against rent receipts from him. He contended that the respondent No. 2 had filed an eviction petition against the petitioner in the year 2013. He contended that the petitioner has filed a photocopy of certified copy of a forged arbitration award. He contended that the respondent No. 2 had taken certified copy of the arbitration award on 27.04.1976. He contended that typist had typed wrong property number which was corrected by hand and the said correction was duly initialled by the person who prepared the said certified copy. He contended that the said property has come to the share of the respondent No. 2 vide settlement deed dated 23.07.2011 in CS (OS) 173/2003. He contended that the respondent No. 2 got the said property mutated in his name on the basis of no objection from legal heirs of Late Jaswant Singh and settlement deed dated 23.07.2011 vide mutation letter dated 21.09.2012. He contended that the complaint does not disclose commission of any cognizable offence.
Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 10 of 16 ANALYSIS OF THE IMPUGNED ORDER:
17. The trial Court passed the impugned order on the ground that the evidence is within knowledge, reach and control of the petitioner.
ANALYSIS:
18. On careful examination of trial Court record and documents furnished by MCD, it is evident that Late Sultan Singh was survived by his wife, namely, Smt. Sunheri Devi and sons, namely, Jaswant Singh, Ashok Kumar Jain (the respondent No. 2) and Nirmal Kumar Jain. There was an arbitration agreement between legal heirs of Late Sultan Singh for reference of dispute to sole arbitration of Sumat Prasad Jain vide arbitration agreement dated 18.05.1973. Arbitration award dated 06.06.1973 passed by Sole Arbitrator, namely, Sumat Prasad Jain was made rule of the court under Section 17 of 'The Arbitration Act, 1940' vide order dated 18.09.1974 in Suit No. 576/73 titled as 'Jaswant Singh and Sunheri Devi vs. Ashok Kumar Jain and Nirmal Kumar Jain' by the Court of Sh. Ravi Kumar, Sub-Judge, First Class, Delhi.
19. The respondent No. 2 applied for mutation of property No. 5193/XIII, Sadar Bazar, Delhi-110006 on 09.02.1998. He submitted an affidavit, indemnity bond alongwith a copy of order dated 18.09.1974 in Suit No. 576/73 making the arbitration award that the respondent No. 2 and Nirmal Kumar Jain are absolute owners of property No. 5193/XIII, Main Sadar Bazar, Delhi as the rule of the court.
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20. Pursuant thereto, MCD mutated property No. 5193/XIII, Main Sadar Bazar, Delhi in the name of the respondent No. 2 and Nirmal Kumar Jain. Thereafter, the respondent No. 2 applied for mutation of the said property vide application dated 08.06.1998. He filed an affidavit, indemnity bond and a copy of arbitration award dated 18.09.1974 having cutting on '5193' and addition of '5193-94'. Thereafter, MCD mutated the said property in the name of the respondent No. 2 and Nirmal Kumar Jain on 19.06.1998. Late Jaswant Singh filed a complaint with MCD on 03.03.1999 regarding forgery in the arbitration award made rule of the Court on 18.09.1974.
Thereafter, MCD cancelled mutation of the said property in the name of the respondent No. 2 on 11.08.1999.
21. Prima facie, there is sufficient material that the respondent No. 2 forged an arbitration award dated 06.06.1973 which was made rule of the Court on 18.09.1974 in Suit No. 576/73 and used it for mutation of the said property in his name The complaint and the material on the file of the trial Court disclosed commission of cognizable offences under Section 467 and 471 IPC. Subsequent settlement between the petitioner and legal heirs of Late Jaswant Singh, vide settlement deed dated 23.07.2011 in CS No. 173/2003, and mutation dated 21.09.2012 thereon are not relevant. The relationship of landlord and tenant between the petitioner and the respondent No. 2 is immaterial. There is, prima facie, material that a forged document was used for mutation of the said property.
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22. In Ramdev Food Products (P) Ltd. vs. State of Gujarat, (2015) 6 SCC 439, Hon'ble Supreme Court of India held as under:
"20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156 (3) of the Cr.P.C. cannot be given mechanically.....
22.1. The direction under Section 156 (3) of the Cr.P.C. is to be issued, only after application of mind by the Magistrate....."
23. In Subhkaran Luharuka & Anr. vs. State, (2010) 170 DLT 516, Hon'ble Delhi High Court observed as under:
"42. Thus, there are pre-requisites to be followed by the complainant before approaching the Magistrate under Section 156 (3) of the Code which is discretionary remedy as the provision proceeds with the word 'May'. The Magistrate is required to exercise his mind while doing so. He should pass the orders only if he is satisfied that the information reveals commission of cognizable offences and also about necessity of police investigation for digging out of evidence neither in possession of the complainant nor can be procured without the assistance of the police. It is thus not necessary that in every case where a complaint has been filed under Section 200 of the Code the Magistrate should direct the police to investigate the crime merely because an application has also been filed under Section 156 (3) of the Code even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, may be with the assistance of the Court or otherwise,....."
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24. In M/s. Skipper Beverages P. Ltd. vs. State, 2002, Crl. L.J. NOC 333 (Delhi), Hon'ble High Court of Delhi held as under:
"7. It is true that Section 156 (3) of the Code empowers a Magistrate to direct the police to register a case and initiate investigations but this power has to be exercised judiciously on proper grounds and not in a mechanical manner. In those cases, where the allegations are not very serious and the complainant himself is in possession of evidence to prove his allegations there should be no need to pass orders under Section 156 (3) of the Code. The discretion ought to be exercised after application of mind and only in those cases where the Magistrate is of the view that the nature of the allegations is such that the complainant himself may not be in a position to collect and produce evidence before the Court and interest of justice demand that the police should step into help the complainant. The police assistance can be taken by a Magistrate even under Section 156 (3) of the Code after taking cognizance and proceeding with the complaint under Chapter XV of the Code."
25. In Gulab Chand Upadhyaya vs. State of U.P., (2002) 44 ACC 670, Hon'ble Allahabad High Court held that:
"22. But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no "investigation" would normally be required and the procedure of complaint case should be adopted. The facts of the present case given below serve as an example. It must be kept in mind that adding unnecessary cases to the diary of the police would impair their efficiency in respect of cases genuinely requiring investigation. Besides even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr.P.C. order investigation, even thought of a limited nature."
Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 14 of 16 CONCLUSION:
26. The case of the petitioner is based on documentary evidence available with MCD and the arbitration award dated 06.06.1973 made rule of the court on 18.09.1974 in Suit No. 576/73. He may summon the record of MCD and the said case. There is no need of any field or forensic investigation. The evidence is either available or within reach of the petitioner. In case the petitioner is in need of any document, it may invoke Section 91 Cr.P.C. The Magistrate can direct investigation by the police under Section 202 (1) Cr.P.C.
27. Therefore, this Court does not find any legal infirmity or material illegality or jurisdictional error in the impugned order which would occasion injustice, if it is not set- aside. Accordingly, the criminal revision petition filed by the petitioner is dismissed. Trial Court record alongwith a copy of judgment be sent to trial Court. Revision file be consigned to Digitally signed record room. SANJAY by SANJAY SHARMA SHARMA Date: 2022.02.19 16:19:05 +0530 Announced in the open Court SANJAY SHARMA-II on this 19th February, 2022 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 15 of 16 Gurpreet Singh vs. State & Anr.
CNR No.: DLCT010154392016 Crl. Revision No. 58538/2016 19.02.2022 Present : Mr. Gagan Preet Singh, Advocate for the petitioner.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent No. 1.
Mr. R.P. Tyagi, Advocate for the respondent No. 2.
Vide separate judgment, the criminal revision petition filed by the petitioner is dismissed. The revision file be consigned to record room. Digitally signed SANJAY by SANJAY SHARMA SHARMA Date: 2022.02.19 16:19:14 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi NK 19.02.2022 Crl. Rev. No. 58538/2016 Gurpreet Singh vs. State & Anr. Page No. 16 of 16