Delhi District Court
Sh. Raj Kumar vs ) State on 7 May, 2014
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Criminal Revision No.20/14
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Crl. Revision No. : 20/14
Unique I.D. No. : 02402R0390682013
In the matter of :-
Sh. Raj Kumar
S/o Sh. Jaswant Singh,
R/o 435/A-1, Gali No. 3,
Bhola Nath Nagar, Shahdara,
Delhi-110032.
.....Revisionist
VERSUS
1) State
2) Sh. Dilbagh Singh
S/o Sh. Late Sh. Sarjeet Singh
R/o Village Mirch, PO: Kirari
Charkhi Dadri, Bhiwani, Haryana.
3) Sh. Ram Babu Sharma
S/o Late Sh. Chattar Pal
R/o A-306, LIG Flats, Pocket E
GTB Enclave, Delhi-110093.
4) Sh. Bagh Singh
S/o Sh. Hazara Singh
R/o 20/215, Kalyanpuri
Delhi-110091.
5) Mistri Singh Sandhu
S/o Late Sh. Mirchu Singh Sandhu
R/o 116, 117, 118, K-Block
Jahangirpuri, Delhi-110033.
.... Respondents
Page 1 of 6 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi
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Criminal Revision No.20/14
Date of Institution : 02/12/2013
Date of receiving the case in this court : 22/01/2014
Date of reserving order : 24/04/2014
Date of pronouncement : 07/05/2014
Decision : Revision is allowed.
ORDER
This is a criminal revision petition challenging the order dated 09.09.2013, passed by Sh. Muneesh Garg, ld. Metropolitan Magistrate, Karkardooma Courts, Delhi. Vide impugned order, ld. Metropolitan Magistrate dismissed the application of the petitioner herein, which was filed U/s 156 (3) Cr.P.C.
2) Briefly stated the relevant facts of this case are as follows :-
Petitioner herein filed a complaint U/s 200 Cr.P.C. along with application U/s 156 (3) Cr.P.C before the trial court. In the complaint, he alleged that accused Ram Babu Sharma was known to him for last several years and in the first week of 2009, this accused approached the complainant with offer for purchase of a piece of land bearing property No. 35, situated at Jhilmil, Tahirpur, Shahdara, Delhi-32. Complainant was told that he could earn benefit out of this transaction. This accused brought accused Dilbagh Singh, who claimed to be owner of this land, on the basis of a registered Will allegedly executed by Smt. Ram Kala. It was told to the complainant that Smt. Ram Kala had expired and on the basis of Will and GPA executed by her, accused Dilbagh Singh had applied for mutation of this property in the revenue department. However, the same was under challenge by some other persons and a civil case was also pending in the Tis Hazari Court. However, both accused persons assured the complainant that this land belonged to Dilbagh Singh and they induced him to enter into an agreement to purchase this land, which was Page 2 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :3: Criminal Revision No.20/14 settled at initial payment of Rs. 5 lakhs to accused Dilbagh Singh. Believing upon the words of the accused persons, complainant entered into an agreement to purchase this land on 16.05.2009 with accused Dilbagh Singh and he paid Rs. 5 lakhs to him.
The legal heirs of Smt. Ram Kala had filed the suit for partition involving the property in question and accused Dilbagh Singh had moved an application for his impleadment in that case. Complainant had been also taken to attend the hearing of that case and complainant came to hear from the opposite parties that the alleged Will of Smt. Ram Kala was forged. Complainant was given a photocopy of that Will and complainant applied under RTI Act to verify the execution of that Will but he came to know that it was no so executed. Complainant when confronted both the accused persons with such discovery of fact, both accused assured him that the reply given under RTI Act was wrong and they again handed over certified copy of Will to the complainant. Complainant once again, verified the execution of registration and such Will and GPA and came to know that it was not registered in the office of Sub-registrar. Meanwhile, complainant also came to know from other sources that accused Dilbagh Singh had also entered into an agreement to sell in respect of same property with some third person namely Manoj and thus, he came to realize that he was cheated by the accused persons. He made complaint to the police but no action was taken by the police and consequently, he field a complaint and application in question.
3) While dealing with the application U/s 156 (3) Cr.P.C., the trial court called for status report from the police and in the status report, police gave opinion that no case was made out and it was purely a civil dispute between the parties. The trial court, after perusal of the record and the status report, observed that the report filed by the police gave Page 3 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :4: Criminal Revision No.20/14 cogent reasons for non-registration of the FIR on the basis of their conclusion that complainant was having prior knowledge that the property was a disputed one. The trial court rejected the contention of police that it was a civil dispute only, but it further observed that from the facts of the case and status report of police, it appeared that the complaint was possessed of sufficient documents, details and evidence to pursue his complaint case U/s 200 Cr.P.C. On the basis of such observation, the trial court dismissed the application U/s 156 (3) Cr.P.C, vide impugned order.
ARGUMENTS :-
4) Ld. Counsel for the revisionist argued that the complainant/petitioner is not possessed of all the evidence related to this case. He submitted that the allegations made by the complainant constitute an offence of cheating as well as forgery of Will and GPA. In order to establish that the Will and GPA were forged, scientific investigation is required to be conducted and the original of such documents are required to be recovered, which can be done by an investigating agency only.
5) I have given due attention to the rival contentions made by ld. Counsel of revisionist and the material placed on the record.
6) In this case, though the trial court observed that this is not a simplicitor case of civil dispute only, but it did not find any necessity of investigation to be conducted by the police. However, if we carefully analyze the allegations made by the complainant, then it becomes apparent that complainant himself is not in possession of original Will and GPA, as he was allegedly provided certified copies of such documents showing that such documents were validly executed and registered at the office of Sub-registrar. The reply given under RTI Act made complainant aware that these documents were not so executed and registered. Now Page 4 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :5: Criminal Revision No.20/14 the question is that from which source such documents were obtained or prepared by the alleged accused persons? Another question is that if such documents were forged, then who forged it? Another question would be that where are the original documents, which can be used to compare the signature of the relevant parties with their admitted/subsequent signatures? These questions cannot be answered by the complainant and he cannot be expected to conduct his own inquiry to find out answer to aforesaid questions. There may be other questions also, arising out of investigation being done in the case. Therefore, it is well reflected that complainant cannot be expected to have all evidence in his possession, to prove his allegations of forgery. He can at the most make oral statement regarding the deception played by the alleged accused persons and can produce the reply obtained by him under the RTI Act. However, so much of evidence cannot help the court in reaching the just and right conclusion, regarding the veracity of allegations made by the complainant. Therefore, I do find that the trial court committed error in observing that the complainant is in possession of all the required evidence. Since a cognizable offence is well disclosed by the complainant, it is duty of the State machinery to investigate into the same, in order to find the relevant piece of evidence and to give a final conclusion. The status report filed by the police shows that the concerned IO gave his opinion on the basis of his presumptions, rather than on the basis of any particular evidence. He has not given any particular opinion/finding regarding the allegations of forgery of Will and GPA. In these circumstances, the trial court should have exercised its power U/s 156 (3) Cr.P.C. in favour of the complainant, in order to reach the just conclusion and hence, I find that the trial court failed to exercise its jurisdiction and power, as per law. The judgment of M/s Skipper Beverages Pvt. Ltd. Vs. State, 2001 IV AD (Delhi), does Page 5 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi :6: Criminal Revision No.20/14 not say that such discretion is to be exercised with blind eyes. It says that the discretion ought to be exercised after proper application of mind, keeping in view the nature of allegations, where the complainant himself may not be in the possession to collect and produce the evidence before the Court.
7) Therefore, in view of my aforesaid observations, the impugned order dated 09.09.2013 is hereby set-aside. This revision petition is allowed. SHO of PS- M.S. Park is hereby directed to register FIR on the basis of complaint made by the complainant herein under relevant provisions and to impartially investigate the same. The trial court shall call for the report of compliance and investigation, in order to see that the investigation is being properly done by the police.
8) Trial court record be sent back to the trial court, through ld. CMM, Shahdara, Karkardooma Court, Delhi along with copy of this order. Revisionist is directed to appear before the ld. trial court on 12.05.2014 at 02.00 PM.
File of revision be consigned to record room, as per rules.
Announced in the open court today i.e 07/05/2014 (PULASTYA PRAMACHALA) Additional Sessions Judge Shahdara, Karkardooma Court, Delhi Page 6 of 6 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi