Delhi District Court
Abha Tyagi vs Delhi Energy Development And Another ... on 4 June, 2013
1
IN THE COURT OF SH. NAROTTAM KAUSHAL, SPECIAL JUDGE
(PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution: 05.10.2011
Date of arguments: 04.06.2013
Date of order: 04.06.2013
CC No. 13/2011
ID No. 02401R0483042011
FIR No.03/2008
PSACB
U/sec.13(1)(d) and 13(2) POC Act
r/w/sec.420/468/471/406/379/120B IPC
State Versus
(1) Kanwar Pal Singh @ Kunal
(2) Sanjay Gupta
(3) N.S. Rana
(4) D.K. Solanki
(5) Dinesh Prasad Yadav
ORDER
1. This order will dispose of objections to framing of charge. Accused N.S. Rana, D.K. Solanki and Dinesh Prasad Yadav have been charge sheeted for offences punishable u/s 13(1) (d) and 13(2) POC Act and accused Kanwar Pal singh @ Kunal and Sanjay Gupta have been charge sheeted for offence punishable u/s 420/468/471/406/379/120B IPC.
2. Prosecution case in nutshell is that one Honda City car bearing No. DL1CH3016 was purchased by one Praveen Soni from the registered owner Manish Mittal on 8.10.2006 for consideration of Rs. 2,50,000/. The vehicle was given on hire by Praveen Soni to accused Kanwar Pal Singh (A1). A1 further handed over possession of the vehicle to one Jugal Kishore Sharma as surety towards Gold taken from Jugal Kishore Sharma. Jugal Kishore Sharma further handed over possession of vehicle to his relative Sh. Ranesh Kumar Sharma. On 3.7.2007 the vehicle was reported to be stolen from the house of aforesaid Ranesh Kumar Sharma. DD No. 42A was recorded on the PCR call. SI Dinesh Prasad Yadav (A5) was appointed 2 investigating officer on the aforesaid PCR call of the theft of the vehicle. On 28.9.2007 the vehicle in question was recovered from a parking lot as unclaimed vehicle and deposited in PS Saraswati Vihar. Registered owner of the vehicle Manish Mittal was informed by the police station about the recovery of vehicle. However, Praveen Soni (complainant) responded to this call and sought the release of the vehicle on superdari. The same was declined to him as he had not been entered as registered owner of the vehicle in the records of Transport Authority. In the meantime Kanwar Pal Singh, (A1) forged sale documents i.e. Form No. 29 and 30 and with the help of Sanjay Gupta ( A 2 ) and got the vehicle transferred in the name of A1. At the time of transfer of vehicle in the name of accused No. 1, at the Transport Authority, Mall Road, New Delhi, N.S. Rana (A3) Motor Vehicle Inspector and D.K. Solanki (A4) dealing clerk in the transport authority abused their position as public servants and accepted Rs. 1,000/ as illegal gratification and transferred the aforesaid vehicle in the name of (A1). Accused No. 5, who was investigating officer in the theft report of vehicle, had submitted a wrong report to felicitate the transfer of vehicle in the name of accused No. 1.
2.1 In support of its case the Investigating Officer recorded the statement of several witnesses, importantly, being complainant Praveen Soni, registered owner Manish Mittal and one Deepak Pasricha. Forms No. 29 and 30 presented for transfer of the vehicle to the Transport Authority were sent to FSL for comparison of signatures of registered owner with admitted signatures of Manish Mittal. Signatures were reported to be not tallying, which indicated offence u/s 468/471/420 IPC to have been committed by accused No. 1 and accused No. 2.
2.2 Before adverting in details to the allegations and evidence of the aforesaid offences against accused No. 1 and accused No. 2, I shall look into the allegations for offences punishable under POC Act qua against accused No. 3, 4 and 5.
3.1 The material evidence and allegations against accused No. 3 and 4 are similar. They are alleged to have demanded and accepted Rs. 1000/ as pecuniary advantage, as motive or reward for transferring the 3 vehicle in the name of accused No. 1, by abusing their position as public servants. It is argued by Shri Mehta, Ld. Additional PP for the State that the documents submitted by accused No. 1 were so apparently fabricated and forged, lacking credibility that accused No. 3 and 4 could not have transferred the vehicle, unless they abused their positions as public servants. Signatures on Form No. 29 and 30 were opined to be forged, by FSL, Rohini. Pollution Under Control (PUC) certificate relied upon by accused No. 1 was with respect to some other vehicle. Insurance cover note could not have been issued as the vehicle was in the custody of police. Thus the charge for offence u/s 13(1) (d) and 13(2) PC Act was made out against accused No. 3 and 4.
3.2 Sh. C. Harishankar and Shri Sanjay Gupta, Ld. counsels for accused No. 3 and 4 respectively have argued that the signatures of Manish Mittal on Form No. 29 and 30, more or less tally with signatures on Form No. 26 which were the admitted signatures before the Transport Authority. The Transport Authority not being an expert could not have been gone into finer details, as to the naked eye the signatures apparently tallied. PUC certificate ofcourse was not in order, that is why an objection had been raised by accused No. 4 demanding a fresh PUC Certificate. The insurance cover note had no illegality or irregularity, as there is no requirement for the vehicle to be inspected, for a third party insurance. It is accepted practice in the insurance circles to issue policy certificate in the name of person holding Form No. 29 and 30, as sale in his favour is already concluded and it is only transfer of registration in the records of Transport Authority which may be pending. As regards the irregularity in PUC Certificate it is argued that Rule 55 of Central Motor Vehicles Rules 1989 envisages only Certificate of registration and Certificate of insurance to be submitted along with requisite forms for transfer of registration. There was no mandate of law requiring submission of PUC certificate . Relevant documents having been submitted, there was no reason for the transport officials to have declined transfer of registration. It is further submitted that accused No. 3 and 4 had satisfied themselves by seeking a report from the IO of DD No. 42A ( accused No. 5 ) that the vehicle was not involved in any 4 theft case. It is further argued by Ld. counsel that there is absolutely no evidence on record in support of allegations of demand and acceptance of the amount of Rs. 1,000/ towards illegal gratification. The only evidence to this effect has come in the disclosure statement of accused No. 2 Sanjay Gupta, which is not admissible evidence, having lead to no recovery. 3.3 Shri Murari Tiwari Adv. Counsel for accused No. 5 has argued that the police verification report submitted by accused No. 5 has no false avernments. Sh. Tiwari has raised legal/technical objection to taking cognizance against accused No. 5; to the effect that sanction u/s 19 of the POC Act to prosecute accused No. 5 having been initially declined, could not have been granted afresh on reappreciation of the same material. In support of his arguments Sh. Tiwari has relied upon law laid down in Abha Tyagi Versus Delhi Energy Development and another 2002 III AD ( Delhi ) 641.
4. I have heard the Ld. Counsels and perused the record. I find merits in the arguments of Sh. Sanjay Gupta Advocate for A3 and A4 that signatures of Manish Mittal on Forms No. 29 & 30 when compared with admitted signatures on Form No. 26 cannot lead to a categoric inference that the signatures do not tally. Primafacie signatures look to be similar, when observed by a person who is not an expert and is not aided by any scientific instrument. Insurance cover note, which is of third party insurance, would not mandatorily require inspection of the vehicle by the insurer. PUC (Pollution Under Control ) certificate is not the requirement under Rule 55 of Central Motor Vehicles Rules, to be submitted along with the form of transfer of ownership. Accused No. 3 and 4 had further satisfied themselves by seeking police report that the vehicle was not involved in a case of theft. The steps thus taken by accused No. 3 and 4 before transferring the ownership of vehicle, do not indicate patent abuse of office. Irregularities, if any, can be justifiably explained to be possible errors of judgment or negligence. In the absence of any evidence of pecuniary advantage or exchange of illegal gratification, framing charges for offence punishable u/s 13 (1) (d) and 13 (2) POC Act do not seem warranted. Exchange of illegal gratification , if any, was between accused 5 No. 1 & 2 on one hand and accused No. 3 & 4 on the other hand. IO has not recorded statement of any witnesses, who might have seen any such exchange of illegal gratification. Reference to exchange of illegal gratification by accused No. 2, in his disclosure statement cannot be said to be admissible evidence. I am thus of the, considered, opinion that the evidence collected by the IO as regards offences punishable under POC Act against accused No. 3 and 4 raise only a suspicion; which is not sufficient, so as, to call for framing of charge. Evidence is definitely not sufficient so as to lead to conviction. The Hon'ble High Court of Delhi in L.K. Advani Vs CBI 1997 (66) DLT 618 held that charge should not be framed if the evidence is grossly insufficient to lead to conviction. It was held as under: "If the evidence before the Court is of such type which if unrebutted and unchallenged by way of crossexamination would not be sufficient enough to convict the accused ultimately then the court would not be justified in framing the charge against the accused. The court at that stage is under no obligation to make an elaborate enquiry by sifting an weighing the material to find out a case against the accused beyond a reasonable doubt, which it is required to do at the time of the final hearing. The Judge at that preliminary stage is simply required to find out that there was material which may lead to the inference that the accused has committed an offence. In other words, the court would be justified in framing the charges against an accused, if the prosecution has shown the seed in the form of the incriminating material, which has got the potential to develop itself into a full fledged tree of conviction later on."
I, therefore, find no sufficient material with regard to framing of charges for offence punishable under POC Act qua accused No. 3 and 4. 5.1. As regards accused No. 5, the technical objection raised by Shri Tiwari Advocate is meritorious. While dealing with a similar situation where the authority granting sanction of prosecution had reviewed its order, by reappreciation of the same material and granted sanction which had been declined earlier, the Hon'ble High Court of Delhi in Abha Tyagi 6 Versus Delhi Energy Development and another 2002 III AD ( Delhi ) 641 held as under: "There is also force in submission of Ld. Counsel for the petitioner that the grant of sanction would amount to review by the competent authority of its earlier orders. In fact since this would amount to a review earlier the competent authorities had declined exercise the power since they were of the opinion that that there is no authority to do so. This aspect has been considered in the impugned order but the view taken is that the judgment would be relevant where prosecution was granted and thereafter it was sought to be reviewed. This reasoning is unsustainable. The principle of law would be the same whether the decision was to grant or not to grant the prosecution and the same was sought to be changed and reviewed.
The Supreme Court has held in Dr. (Smt.) Kuntesh Gupta's case that power of review cannot be exercised unless it is specifically conferred. This view has been followed by the Division Bench of this court in Dhanpatmal Virmani Senior Secondary School's case. The competent authority undoubtedly derives its powers as granted in terms of the said Act. No such power of review has been conferred under the said Act. In view of the competent authority having exercised its power, in the absence of a power of review, the authority could not have reviewed its earlier decision."
5.2 Thus the sanction for prosecution of accused No. 5 which had been earlier declined by the competent authority could not have been reviewed and subsequently granted by reappreciation of the same material. It is not the case of the prosecution that some more material was collected or some material was not put up at the initial stage, before the authority granting sanction; which could have created a situation for review of the previous decision. Thus this court cannot take cognizance of the offence punishable under POC Act with respect to accused No. 5. Therefore, charge can also not be framed.
6. For the reasons in paras No. 4 & 5, I hold that charge for 7 offence punishable under POC Act cannot be framed against accused No. 3 to 5. They are accordingly discharged for the aforesaid offences.
7. There are no allegations against accused No. 3 to 5 for offence u/s 420/468/471/406/379/120B IPC. Having held that no charge for offence punishable under POC Act is made out, this court being a Special Court for POC Act cases, loses it jurisdiction to conduct the trial . Therefore, without making any comments on the merits of allegations qua accused No. 1 and 2 for offence punishable u/s 420/468/471/406/379/120 B IPC, this court is of the opinion that further proceeding henceforth should be conducted before a Magistrate of competent jurisdiction. Accused No. 1 and 2 are, therefore, directed to appear before Ld. CMM, Delhi for appropriate orders on 11.07.2013.
8. Accused No. 3 to 5 are discharged. Their bailbonds are canceled and sureties are discharged. Ahlmad is directed to send the file to the court of Ld. CMM, Delhi for 11.07.2013.
Announced in the open Court (NAROTTAM KAUSHAL)
on 04.06.2013. SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS