Delhi District Court
Davinder Singh vs State (Nct Of Delhi on 1 March, 2014
IN THE COURT OF DR. VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
(1) CR No.59/13
Davinder Singh
S/o Late Sh. Santokh Singh
R/o Block No.9/004
Heritage City, M.G.Road
Gurgaon ...Revisionist
Vs.
State (NCT of Delhi ...Respondent
(ii) CR No.60/13
Amninder Pal Singh
S/o Davinder Singh
R/o Block No. 9/004
Heritage City, M.G.Road
Gurgaon, Haryana ....Revisionist
Vs.
State (NCT of Delhi) ....Respondent
CR No. 59/13, 60/13 & 61/13 1 01.03.2014
(iii) CR No. 61/13
Gurjinder Kaur
W/o Sh. Ravinder Singh
R/o H70, Ashok Vihar, Phase1
Delhi52 ....Revisionist
Vs.
State (NCT of Delhi) ....Respondent
Date of Institution: 26.03.2013
Reserved for orders on: 01.02.2014
Order announced on: 01.03.2014
ORDER
1. Vide this order, I shall dispose off three revision petitions filed by the petitioner bearing Nos. CR No. 59/13, 60/13 and 61/13 against the impugned order dated 21.01.2013 whereby the Ld. Trial Court has charged the accused persons/petitioners for offences under section 467/471/10B IPC.
2. Brief facts of the case are that the complainant is a businessman and wanted to purchase a factory in Naraina Industrial Area. He contacted Sh. Manjeet Singh, property dealer and a deal for purchase of property No. A91/1, Naraina Indl. Area, Phase1, New Delhi ( hereinafter referred to as the said property) consisting of entire basement, ground floor and first floor was stuck through him. The said property was CR No. 59/13, 60/13 & 61/13 2 01.03.2014 purchased by the complainant for a sum of Rs. 95,000/, out of which Rs. 25 Lacs was paid by way of cheque to Sh. Davinder Singh and Sh. Paramjeet Singh, both these brothers claimed themselves to be the exclusive joint owners of the said property. He also paid a sum of Rs. 10 lacs in cash to them for physical possession of entire first floor of the said factory. Accused also produced the documents of the said property executed in their favour to show that they are the joint owners of the said property.
3. Both accused assured to get the said property mutated in their names from DDA and executed a sale deed in favour of the complainant on 31.01.2005. On their request the date for execution of the sale deed was further extended till 28.02.2005 and thereafter extended till 31.03.2005 on the ground that due to certain objections by DDA, accused have not been able to get the said property mutated in their names.
4. As accused were making false excuses and were not executing the sale deed in favour of the complainant even on the extended date i.e., 31.03.2005, therefore, he became suspicious and contacted the concerned department of DDA. On inquiries, it was revealed that accused persons had already submitted a copy of the Will dated 12.04.2000 for getting the said property in question mutated in their name. The applicant CR No. 59/13, 60/13 & 61/13 3 01.03.2014 further came to know that the said Will allegedly executed by the testator Sh. Santokh Singh had been recently got registered by accused persons on 04.03.2005, whereas Sh. Santokh Singh expired on 08.12.2000.
5. On further inquires it was revealed that in fact, Sh. Santokh Singh executed a registered Will dt 26.06.1998 in which accused Paramjeet Singh was not given any share in the said property and Sh. Paramjeet Singh has falsely claimed himself to be the joint owner of the said property alongwith his brother Sh. Davinder Singh , who had induced the complainant to purchase the said property for such a hefty amount. Accused have fabricated the Will dated 12.04.2000 and have not filed any copy of earlier registered will dt 26.06.1998 with DDA, executed by Sh. Santokh Singh and on comparison of the signatures of Santokh Singh on both the said Wills, the same appeared to be different and did not signate each other.
6. The complainant had suspicion that the Will in question was got notarised by the sellers form one Sh. Arun K. Gupta, Notary Public and same is ante dated. The said will dt 12.04.2000 is a unregistered document and has been recently got registered on 04.03.2005 i.e., after about four years and three months from the date of death of Santokh Singh. There is no specific mention regarding cancellation/revocation of earlier CR No. 59/13, 60/13 & 61/13 4 01.03.2014 Will dated 26.06.1998. No independent witness signed the said Will. The Amninder Singh and Gurjinder Kaur are the marginal witnesses on the said Will, who are the real son and daughter of beneficiary Sh. Davinder Singh. The complainant was also surprised to know that a complaint dt 17.04.2005 was filed in PS by Smt Surinder Karu, w/o. Late Sh. Jaswinder Singh, sister in law of Davinder Singh and Paramjeet Singh in which she had claimed that the Will presented by her brother in law in DDA is a forged one and that she was the joint owner of the said property. The complainant contacted Smt. Surinder Kaur and she has shown a MOU and affidavit dt 28.12.2001 signed by Sh. Davinder Singh. Had the Will dated 12.04.2000 been in existence, Sh. Davinder Singh would not have entered into MOU dt 28.12.2001 with his Bhabhi Smt. Surinder Kaur, w/o. Late Sh. Jaswinder Singh.
7. As per Clause 10 of affidavit, Sh. Davinder Singh agreed that in the event of the said property jointly owned being sold, he shall sell the property alongwith Smt. Surinder Kaur and her son namely Prabhjot Singh as joint sellers and sale proceeds/consideration will be divided in equal proportions but now Sh. Davinder Singh has tried to sell the said property alone without associating his Bhabi Smt. Surinder Kaur and nephew Sh. Prabhjot Singh, which also amount to cheating. The Property Dealer Sh. Manjeet Singh had witnessed the Indemnity CR No. 59/13, 60/13 & 61/13 5 01.03.2014 Bond dt 07.12.2004, filed with the DDA by alleged persons. In the said bond it is mentioned that said Will dated 12.04.2000 is a final Will, showing Sh. Davinder Singh and Sh. Paramjeet Singh as total beneficiaries of property in question in equal share. After receiving a sum of Rs. 35 Lacs, the accused are making false excuses and are not executing the sale deed. They have claimed themselves to be the joint owners of the said property on the basis of a false and forged Will dated 12.04.2000 and played a fraud upon the complainant. Accused are not even returning double the amount of earnest money as per the agreement to sell dt 24.08.2004. The said persons had prepared the above forged documents and cheated him by hatching a criminal conspiracy with each other.
8. After completion of the investigation, charge sheet was filed before the ld. Trial Court. The ld. Trial Court vide impugned order framed charge against respondent.
9. Feeling aggrieved by the impugned order on charge the present petition has been filed.
10. It is contended on behalf of petitioner that the impugned order passed by the ld. Trial Court is having no substance in the eyes of law as the same is based on the conjuncture and surmises. Complainant has no locus standi to CR No. 59/13, 60/13 & 61/13 6 01.03.2014 file the present complaint as the will dated 12/4/2000 was never acted upon in the transaction/agreement to sell entered into between the parties in respect of the said property as the agreement to sell dated 24.8.2004 was executed between the parties did not contain any recital in respect of the will in question. The agreement to sell was executed on the basis of one perpetual lease deed dated 29.6.1973. The investigating officer has also made such observations in his chargesheet. Further more, Manjit Singh who was the mediator and an attesting witness of the agreement to sell dated 24.8.2004 has also stated that will in question has never been acted upon in the said transaction.
11. It is further contended that another FIR no. 701/05 dt 16/12/05 P.S. K. Nagar under Sec. 420/467/468/471/34 IPC was registered, regarding the Will dated 12.04.2000 alleging that the same is forged and fabricated, but the said FIR has been quashed by the Hon'ble High Court of Delhi on 08/08/2007 as the matter was settled between the parties. It is further contended that ld. Trial Court has not appreciated the facts that no offence under Sec. 467/468 IPC read with section 120B IPC is not made out against the petitioner as there is no evidence on record to infer that the petitioner has forged such document/will. The observations made by the ld. Trial Court in the impugned order is also contrary to the FSL in as much as CR No. 59/13, 60/13 & 61/13 7 01.03.2014 that accused Davinder Singh has forged the signature upon the will dated 12/4/2000 by putting his signature in place of late Sh. Santok Singh, but the FSL report clearly depicts that the admitted signature of the deceased Sardar Santok Singh has not tallied/signated with the questioned signature on the alleged forged will.
12. It is further contended that no offence under Section 471 IPC is made out as the alleged forged documents has not been used by the petitioner fraudulently or dishonestly as genuine. The Ld. Trial Court has not taken into consideration the settled principle of law that if two views are possible then a view in favour of the petitioner has to be taken even at the stage of framing of charge. At the stage of charge only the evidence is to be sifted and weighed only for the limited purpose as to whether prima facie case is made out against the accused or not and meticulous examination of the evidence on record including documents/material on record for the purpose of ascertaining whether the petitioner is involved in the offence is not to be gone into at this stage.
13. From the bare perusal of the charge sheet, not to talk on grave suspicion, even no suspicion is present against the accused. In support of his contention reliance is placed upon:
Century Spinning and Manufacturing Co. Ltd Vs State of CR No. 59/13, 60/13 & 61/13 8 01.03.2014 Maharashtra, AIR 1977 SC 1489 State of Karnataka Vs L. Muniswami and others, 1979 Cri.L.J. 154; Union of India Vs Prafulla Kumar Samal and another, (1990) 4 SCC 76; Niranjan Singh Karan Singh Punjabi Vs Jitendra Bhimraj Bijjaya, 1994 Supp(2) SCC 707; State of U.P. through CBI Vs Dr Sanjay Singh and another (paras 1922), 2000 SCC (Cri) 311; State of Madhya Pradesh Vs S.B. Johari and others, 2002 (1) JCC 172; Dilawar Balu Kurane Vs State of Maharashtra; L.K. Advani and others Vs CBI, 1997 JCC (294)High Court of Delhi.
14. Per contra, ld. State counsel has contended that prima facie offence is made out against the accused and on bare perusal of the charge sheet, it is clear that the accused persons incollusion with the other has forged alleged will and even presented the same for registration before Sub Registrar, therefore, prima facie it can be concluded that the accused persons have forged the Will in question and used the same to cheat and defraud the complainant, therefore, prima facie case under section 467/471 IPC is made out against the accused and these petitions being devoid of merits deserve to be dismissed.
15. I have heard both the parties and have also gone through the record carefully.
16. At the very outset, it may be noted that investigation CR No. 59/13, 60/13 & 61/13 9 01.03.2014 of this case was conducted by the investigating officer in a very scientific manner and he had gone into the fact thread bare and first investigating officer SI Sukhdev Singh had conducted the preliminary inquiry from three angles; first is whether the will dated 12/4/2000 was forged by the accused persons and submitted the same with the DDA to get the said property mutated in their own name; second whether the accused Sh Davinder Singh misappropriated the amount to complainant to the extent of Rs. 35 lac by claiming that they were joint owners of the said property which belong to a firm namely M/s. Asian Prnting Machinery Company; thirdly the use of the alleged forged will in the office of L&DO, INA Delhi by the accused persons to get the said property mutated in their own names.
17. During the course of the investigation, it transpired that the Sd Santokh Singh has executed registered will deed dt 10/11/1997, dated 26.6.98 and third will dated 12/4/2000 duly registered with Sub Registrar.
18. The accused had withdrawn the will probate filed by them in respect of will dated 12/4/2000 as dismissed as I.O. got verified the signature of Sardar Santokh Singh from FSL and handwriting expert has opined that signature on will dated 22.4.2000 did not match with the admitted signature of Santokh Singh as well as of the accused persons. Thereafter, investigation CR No. 59/13, 60/13 & 61/13 10 01.03.2014 was transferred to SI Ashish Girotra and accused persons along with Surender Kaur wife of late Sh Jasvinder Singh joined the investigation and they stated that in terms of MOU dated 28.12.2001 they compromised and S. Davinder Singh is allocated basement, ground floor and first floor of the said property. Even complainant Paramjit Singh had stated to the I.O. he entered into agreement of the said transaction in respect of the said property through Manjeet Singh and said property belongs to M/s. Asian Printing Machinery in terms of the perpetual lease deed dated 26/4/1973. As per the partnership deed dated 9.7.1971 of M/s Asian Printing Machinery, accused Davinder Singh, S. Paramjit Singh and deceased S Santokh Singh were three partners and after the death of Santokh Singh the said partnership has not dissolved in the year 1971. All these facts were within the knowledge of the complainant and even the sale consideration has been paid by way of account payee cheque dt 24/8/2004 in favour of M/s Asian Printing Machinery Company the alleged will dated 12/4/2000 was never acted upon at any point of time by the accused persons, even at the time of entering into agreement with the complainant and even as per clause 10 of the affidavit dated 28/12/2001, executed by Sardar Davinder Singh, it was the firm that the sale proceed of consideration qua the said property distributed as per the share of all LRs, therefore, as per the investigation no offence of cheating was ever committed by the accused persons.
CR No. 59/13, 60/13 & 61/13 11 01.03.2014
19. It is settled law that in the event of warrant case being instituted on the police report, the Magistrate under section 240 Cr.PC, upon such consideration provided under section 239 Cr.PC, is of the opinion that there is a ground for presuming that accused had committed an offence triable under this chapter, the Magistrate shall frame charge in writing against the accused. Otherwise also, law is well settled that if, a prima facie case, is made out against the accused, charge is to be framed because at the stage of charge the judge is empowered to sift and way the evidence for the limited purpose of finding out whether or not, a prima facie case, against the accused persons has been made out and when the material placed before the court disclosed grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
20. It is relevant to note here that judicial view is that at the stage of framing of charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused/petitioner and the court is not required to appreciate evidence to conclude whether material produce are sufficient or not for convicting the accused and on the basis of material on record, a court come to the conclusion that CR No. 59/13, 60/13 & 61/13 12 01.03.2014 commission of the offence is a probable consequence, a case for framing of charge exists in another words if the court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused had committed the offence. Therefore, at the stage of framing of charge, probative value of the material on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.
21. It may be noted that to attract the provisions of Section 467 IPC, it must be the case of prosecution that the documents in question is false documents within the meaning of Section 464 IPC and it was forged by the accused with the intent mentioned in Section 463 IPC. It may be noted here that to attract the provisions of Section 463 IPC, the forgery as mentioned in Section 463 IPC has to be made out. The offence U/s 463 i.e. forgery, consists of the fact that the accused should have made a false document or a part of such document and second essential ingredient will be that accused forged the said document with one of the intent mentioned in the said section namely intention to cause damage or injury to any person or to the public, or to support any claim, or title or cause any person to part with the property or to enter into an expression or implied agreement or that intent to commit fraud or that fraud CR No. 59/13, 60/13 & 61/13 13 01.03.2014 may be committed. Therefore, mere knowledge of the accused that the documents might cause injury to another person is not sufficient to attract section 463 IPC but it must be established that the accused has intention to defraud the other person. The intention necessary for an offence U/s 463 IPC cannot be inferred merely from the consequence that may be anticipated from the action of accused. There must be evidence from which intention and dishonesty can be legitimately inferred. Therefore, if accused does an act or omission, the said act or omission by itself will not constitute an offence of forgery in the absence of dishonest or fraudulent intention on the part of the accused persons and a mere making of a false document will not amount to forgery. The essential ingredient of Section 467 IPC is that it must be proved by the prosecution that the documents in question was forged by the accused person and the document is one of the kind mentioned in the section. Therefore, one of the essential ingredients of this Section 467 IPC is that there must be a forgery as defined in Section 463 IPC. Making an offence under section 467 IPC is not mere making of false documents at all but after making of false documents, the accused commits forgery further. In the same way provisions of Section 471 IPC consists of two things namely knowledge or reasonable belief on the part of the person using said documents. The documents is a forged one and secondly fraudulent and dishonest use of the forged documents.
CR No. 59/13, 60/13 & 61/13 14 01.03.2014
22. Now adverting to the facts of the present case, it may be noted that the complainant has stated that the petitioner/accused having entered into an agreement to sell a property on the basis of the alleged forged Will. But during the course of investigation, IO has found that though this will be a false one but the accused persons had not entered into an agreement to sell on the basis of this Will, otherwise, they have detailed/incorporated the lease deed as the title of the document on the basis of which they entered into agreement to sell in respect of the said property with the complainant. As per investigation, even the sale consideration has been passed on to the accused persons by way of A/c payee cheques in favour of the partnership firm in which Sardar Santok Singh happened to be a partner alongwith accused Amarjeet Singh and Devender Singh. So, as per the investigation conducted by the IO alleged forged Will had never been acted upon by the accused persons, so far as, the agreement to sell in respect of the said property is concerned. The present FIR was lodged by the complainant after having receiving an information that the alleged Will which has never been subject matter of agreement to sell with the accused persons, has been a subject matter in some other FIR bearing No. 701/2005 U/s 420/467/471/34 IPC PS K. Nagar which is already being stand quashed by the Hon'ble High Court as discussed above and the criminal proceedings arising out of CR No. 59/13, 60/13 & 61/13 15 01.03.2014 the said forged Will had come to an end and said Will has become nonest in the eyes of law. Otherwise also, the complainant in that FIR has entered into compromise with the accused persons in respect of the said property. Therefore, it can be concluded that accused might have forged the Will but they had not acted upon the said forged Will in the agreement to sell in question and had not received any money/movable property from the complainant by using the alleged forged Will. Therefore, the essential ingredients of section 467 IPC is not made in the present case that the accused persons had after making a false documents committed any forgery upon the complainant and, if any, such false document prepared by the accused persons, such document has already been quashed by the Hon'ble High Court of Delhi in the quashing petition preferred by the parties. Therefore, accused persons/petitioners have never used the forged Will with the purpose of receiving money or other valuable security.
23. So far as, offence under section 471 IPC is concerned. It may be noted that this allegedly forged Will has neither been used fraudulently or dishonestly by the accused persons as genuine. Although, accused might be having knowledge that the said Will is forged one but as per prosecution story, the alleged forged Will has never been used by the accused persons.
CR No. 59/13, 60/13 & 61/13 16 01.03.2014
24. From the above discussion, I am of the opinion that no offence is made out from the bare perusal of the chargesheet against the accused persons. Therefore further proceedings against the accused persons would be an abuse to the process of law. As such, these petitions are hereby allowed and impugned orders are hereby set aside. The petitioners are hereby discharged.
25. TCR be sent back to the Ld. Trial Court alongwith copy of this order for information.
26. Copy of this order be also placed in the judicial file of criminal revisions No. 60/13 and 61/13.
27 File be consigned to record room.
Announced in the open court (Dr. Vijay Kumar Dahiya)
on the1st day of March, 2014 ASJ/ Dwarka Courts
New Delhi
CR No. 59/13, 60/13 & 61/13 17 01.03.2014