Delhi District Court
O. P. Kapoor vs The State on 6 July, 2009
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IN THE COURT OF SH. DHARMESH SHARMA, ADDITIONAL
DISTRICT & SESSIONS JUDGE, DELHI.
Criminal Revision Petition No. 08/08
1. O. P. Kapoor
S/o Late Sh. Mela Ram Kapoor
2. Lalit Kapoor
S/o Shri O.P. Kapoor
3. Anil Kapoor
S/o Shri O.P. Kapoor
4. Arun Kapoor
S/o Shri O.P. Kapoor
All residents of A-2/30, Safdarjung Enclave,
New Delhi .......Petitioners
Versus
The State
Govt. of NCT of Delhi.
Service to be effected through
Chief Public Prosecutor .......Respondent
CRIMINAL REVISION PETITION UNDER SECTION 397 OF THE
CODE OF CRIMINAL PROCEDURE FOR SETTING ASIDE /
QUASHING THE SUMMONING ORDER DATED 18.5.2002
WHEREBY THE COGNIZANCEWAS TAKEN BY THE LD.
METROPOLITAN MAGISTRATE OF THE OFFENCE UNDER
SECTION 420/468/471/120-B INDIAN PENAL CODE IN FIR
NO.159/99, P.S. KASHMIRI GATE, DELHI.
Appearance
Sh. Anil Sharma, Adv. for the petitioners/revisionists
Mr. Vijay Babbar, Adv. for the complainant Sh. Raman Kapoor.
ORDER
1. This Order shall decide a Criminal Revision Petition u/s 397 of the Code of the Criminal Procedure for setting aside / quashing the summoning order dated 18.05.2002 whereby Sh. Ajay Pandey, Learned Metropolitan Magistrate has taken 2 cognizance of offence against the accused persons / petitioners / revisionists for committing an offence u/s 420/468/471/120-B of IPC in FIR No. 159/1999 Police Station Kashmiri Gate, Delhi.
2. Facts briefly stated are that the present FIR came to be recorded on the complaint dated 01.08.1998 by respondent complainant Raman Kapoor who informed the Police that he was a partner in M/s Kapoor Sons & Company in terms of the Partnership Deed dated 01.04.1988 and he has been cheated by other partners who are family members i.e his father Sh. O. P. Kapoor, brothers Anil Kapoor, Lalit Kapoor, Arun Kapoor and mother Smt. Sarla Rani in criminal conspiracy with Sh. Y.P. Mahna, Advocate in collusion with Sh. K. R. Shukla, Adv. and Sh. S. L. Sharma, Accountant by forging his signatures and fabricating a Dissolution Deed dated 31.03.1992. He alleged that he left India in the year 1989 to settle his business in Bogota, Columbia and never visited India till 1997 and the Dissolution Deed dated 31.03.1992 was fabricated to deprive him of the assets and benefits of the partnership and all the accused persons have wrongfully gained themselves by such unlawful acts of cheating.
3. Inspector R. S. Chauhan, from Criminal Offences Wing, Crime Branch, investigated the matter and submitted final report u/s 173 Cr.P.C dated 01.03.2001 to the effect that the dispute between the complainant and his family members was essentially a Civil dispute and there was no case to proceed against the accused persons. The Court was not satisfied with the final report and directed the Police for further investigation and submit a report after FSL opinion in regard to the vital documents involved in this case including certain correspondence which were relied upon by the parties. After further investigation, final report was then filed by the same Investigating Officer on 02.02.2002 inter alia giving an opinion that impugned Dissolution Deed dated 31.03.1992 was signed by the complainant Raman Kapoor, through, Smt. Sarla Rani his mother who gone to Lima and Bogota, Columbia during the relevant time. It was reiterated that the dispute was of a Civil nature and it was recommended that there is no material to prosecute any of the accused persons 3 shown in Column no. 2 of the final report. Learned Metropolitan Magistrate vide order dated 18.02.2002 observed that the final report reveals that the complainant was not present in India when the impugned Dissolution Deed dated 31.03.1992 was executed and he observed that the accused persons got benefited in the partnership as their share was increased as a consequence of retirement of the complainant from the partnership and, therefore, he was pleased to take cognizance of offence u/s 420/468/471/120B of IPC and issued summons against the accused. Aggrieved thereof, accused persons. Petitioners preferred Criminal Revision WP (Crl) No. 872/2004 Crl. M. A. No. 5723/2005 and Crl. M. A. No. 11963/2005 wherein Hon'ble Mr. Justice Shiv Narayan Dhingra, Judge, High Court of Delhi vide order dated September 20, 2007 directed the petitioners / revisionists to take recourse by challenging the impugned order in Revision before the Sessions Court to consider the entire facts and that is how the petitioners are now before this Court.
4. The impugned order dated 18.02.2002 is assailed in the Revision primarily on the grounds that complainant Raman Kapoor has already initiated Civil proceedings by filing Suit No. 920/1998 for "Dissolution of Partnership and rendition of accounts" and the criminal prosecution on the same facts is nothing but pressure tactics; that complainant Raman Kapoor had decided to voluntarily retired from the business of the partnership firm as per letters dated 15.02.1992 and 24.04.1992, the signatures of which as per the FSL report has been proved to be that of the complainant and typed on a typewriter in Bogota, Columbia; that their mother Smt. Sarla Rani, now deceased, had gone to Lima and Bogota in the State of Columbia where complainant was running his business in his own right and to the exclusion of partnership business in India and the complainant has signed the Dissolution Deed at the behest of his mother that in the Civil proceedings initiated by the complainant, the matter has been referred to Arbitration which has been conducted by Hon'ble Mr. Justice P. K. Bhari (Retired) Judge High Court of Delhi who has already passed an interim award which under challenge before the High Court of Delhi; that the Learned 4 Metropolitan Magistrate has not applied his mind to the entire range of controversy between the parties and has passed a mechanical order and the entire proceedings against the accused persons shall be nothing but an abuse and misuse of the process of law.
5. Mr. Anil Kumar, Ld. Counsel for the petitioners / revisionists has urged that in the initial complaint dated 01.08.1988, no allegations were made by the complainant Raman Kapoor regarding any criminal conspiracy as between his father and other accused persons and rather he had alleged that signatures of Arun Kapoor and Lalit Kapoor were also forged on the impugned. Dissolution Deed dated 31.03.1992 since they were also outside India during the relevant time. He pointed out that in view of the pendency of the Civil Suit, the present criminal proceedings shall be gross misuse of the process of law particularly when Sh. S. L. Sharma, Accountant Mr. K. R. Shukla and Y. P. Mahna Advocates are not before the Court. He took me through the contents of the letters dated 12.02.1992 and 24.04.1992 which were admittedly signed by the complainant indicating his intention to retire from the partnership business and he referred to the FSL report bearing no. 99/D/0992 dated 24.09.1999 and subsequent report dated 17.12.2001 wherein the signatures of the complainant have been verified to be genuine and not forged. It was vehemently urged that though the complainant was not in India during the relevant time, he had signed the Deed during the visit of deceased mother which was corroborated by her passport entries inter alia to the effect that she was in Lima w.e.f 25.02.1992 to 20.04.1992 and Bogota w.e.f 20.04.1992 to 15.06.1992 and came back to India on 16.06.1992. Lastly, he urged that there is no material on record to suggest that the questioned documents have been forged by the petitioners. He has relied on decision in; State of Haryana v. Ch. Bhajan Lal 1991(1) RCR 383; State of Haryana v. Parmanand 1995 Cri.L.J396 (P&H); S.N. Palanitkar v. State of Bihar A.I.R. 2001 SC 2960; Prem Singh v. State of Haryana 2002 (2) RCR 825 (P&H); Ajay Mitra v. State of M.P. A.I.R 2003 (SC) 1069; State of H.P. v. Mast Ram (2004) 8 SCC 660; Suresh v.
5Mahadevappa 2005 (1) (JCC) 405 (Delhi); Indian Oil Corporation v. NEPC India Ltd. (2006) 6 SCC 736.
6. Per contra, Mr. Babbar Ld. Counsel for the respondents urged that admittedly petitioner was a partner to the extent of 21% share; that while leaving to establish his business in Bogota, he left certain documents signed in blank with his father which were fabricated. He argued that letters dated 15.02.1992 and 24.04.1992 were fabricated by the accused persons and he pointed out that had the complainant entertained any intention to quit the partnership firm, there was no occasion for his father to write letter dated 21.12.1992 wherein he had threatened the complainant to clear certain dues to the firm failing which his share in the firm shall be disposed of. He also took me to the contents of another letter dated 15.01.1993 purportedly written by accused Anil Kapoor wherein accused Anil Kapoor tried to console the complainant that he should not feel disturbed by what father had said since their father did not tolerate any delay in payment of money and complainant was assured of his investment being safe in the business of M/s Kapoor Sons & Company besides other family firms Continental Film and Ropas International.
7. Sh. Babbar, Ld. Counsel for the respondents also referred to the fact that FSL report clearly establishes that impugned Dissolution Deed dated 31.03.1992 bearing a forged date and he referred to the disciplinary proceedings conducted by Bar Counsel of Delhi whereby Sh. K. R. Shukla, Adv. Who was an attesting witness to the impugned deed was held guilty of misconduct since it was found that he had attested the deed at the behest of other accused persons. He also referred to Form No. V regarding the notice of change in the constitution of the firm purportedly bearing his client's signatures dated 19.12.1994 while admittedly he was not in India. Lastly, he referred to the interim award dated 01.05.2005 and final award dated 23.04.2009 passed by Hon'ble Mr. Justice P. K. Bhari (Retd.) Judge, High Court of Delhi as an Arbitrator wherein inter alia Dissolution Deed dated 31.03.1992 has been held to be invalid. In his submissions he has relied on decision in Oriental Insurance Co. Ltd. and Ors 6 v. State of Bihar and Anr. Crl. Misc. Nos. 23171 /2000 with 8617/2001 dt. 03.12.2003 (Patna High Court) 210; Mrs. Dipti Pal and Another v. Sibyendu Sekhar Lahiri and Another 2005 (4) Crimes 484 (Cal.); and Vimal v. Sukumar Anna Patil and Another 1981 Crl. L. J. 210 Bombay High Court.
8. I have given my anxious consideration to the submissions made by learned counsel for the parties and I have also perused the relevant record of the case including the trial court record.
9. First thing first, a plea was taken that the present revision petition is barred by limitation as it was filed long beyond the prescribed period of three months from the impugned order dated 18.05.2002 on 08.10.2007. I am afraid the plea cannot be accepted in view of the observations made by the Hon'ble Judge, High Court of Delhi in order dated September 20, 2007 inter alia to the effect that the delay in filing the revision before the Court of Session, if any, shall be condoned since the petitioners / revisionists were pursuing the Writ Petition (criminal) in the High Court.
10. Second aspect of the case is that there could be no quarrel regarding the powers of the Magistrate while considering Final Report / Charge Sheet or Challan filed by the Police. The Magistrate is not bound to accept the findings in the final report u/s 173 (2) Cr.P.C and may decline to accept the cancellation report and issue process against the accused persons. Reference in this connection can be had to recent decisions in Sanjay Bansal v. Jawahar Vats AIR 2008 SC 207; 2007 (4) RCR (Crl.)
995. The only issue that concerns this Court in this revision is:
whether or not there are sufficient grounds disclosed in the final report u/s 173 Cr.P.C dated 02.02.2002 so as to justify the taking of cognizance of the offence and consequently justify the action of the Ld. Magistrate to issue process against the accused persons?
11. In a recent case titled S. K. Sinha v. Videocon International Limited AIR 2008 SC 1213; 2008 (2) RCR (Crl.) 38 in reference to Section 190 and 200 of the Criminal Procedure Code, it was observed as under:7
"The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means -'become aware of' and when used with reference to a Court or a Judge, it connotes 'to take notice of -judicially'. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view of initiating proceedings in respect of such offence said to have been committed by someone. 'Taking cognizance' dos not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance..........."
12. In the said view, at the cost of repetition, on the conspectus of the entire material on record, the following grounds emerge that could be said to have weighed in the mind of Learned Metropolitan Magistrate:-
i). admittedly the complaint Raman Kapoor was residing and running his business all the time from Bogota, Columbia during the period from 1989 to 1997 and never came to India; and
ii) the complainant was a partner in the business to the extent of 21% share and his version that he had kept few papers singed in blank with his father is quite plausible and could not be discarded at this stage:
iii) at the time of purported execution of dissolution deed dated 31.03.1992, complainant was not in India and the FSL report dated 24.09.1999 suggests that the date on the dissolution deed was forged and in the report the authorship of the signatures of the complainant was not established;
iv) prima facie bare perusal of the Dissolution Deed dated 31.03.1992 would show that arrangement was worked out in a manner which was mere beneficial to the accused persons with the complainant getting a raw deal;
v) had the accused intended to get out of the partnership business, prima facie there was no occasion for the father of the accused writing letter dated 21.12.1992 as also by accused Anil Kapoor writing letter dated 15.01.1993;
8vi) assuming that Smt Sarla Kapoor had gone to Lima and Bogota, Columbia, none of the attesting witnesses had accompanied her;
13. While summarizing the above said material which could have weighed in the mind of the Ld. Magistrate while taking cognizance of the offence, it needs to be reminded that at this stage of the case it is difficult to render an opinion on the consistencies or inconsistencies in the case of the complainant or the probative value or the genuineness of the letters dated 15.02.1992 and 24.04.1992 relied upon by the accused persons allegedly indicating intention of the complainant to retire from the business. Again, the plea that Smt. Sarla Rani deceased mother of the complainant had gone to Lima and Bogota, Columbia and prevailed upon her son i.e. the complainant to sign the impugned Dissolution Deed is something which cannot be considered at the stage of the commencement of proceedings under Chapter XVI of the Cr.PC. There are issues raised from both the sides which cannot be commented upon at this stage. If the defence version i.e the version of the petitioners is accepted, it would amount to giving a judgment on merits of the case which stage has not yet arrived.
14.In the said view of discussion, I find that the Learned Metropolitan Magistrate has not committed any illegality or impropriety nor there is any infirmity or perversity in passing of the impugned order dt. 18.05.2002. The revision petition filed by the petitioners is, therefore, without any merits and hereby dismissed. However, nothing contained therein shall tantamount to an expression of opinion on the merits of the case.
15.The Trial Court Record be sent back immediately to the Court concerned for further proceedings as per law. A copy of this order be also sent along with the record. The revision file be consigned to the record room.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA) TODAY: ON 06.07.2009. ASJ-II, NORTH DISTRICT, DELHI.
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