Delhi District Court
Sh. Harish Kumar vs Sh. Jagjit Singh on 29 August, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE01
( WEST), TIS HAZARI COURTS, DELHI..
SCJ No. 629458/16
Sh. Harish Kumar
................Plaintiff
vs
Sh. Jagjit Singh
.............Defendant
29.08.2016
ORDER
Vide this order I will dispose of the application U/s 340 Cr.PC filed
on behalf of defendant no.3 Sh. Balbir Singh for initiating criminal
proceedings against defendant no.4 Sh. Shyam Sunder and plaintiff Sh.
Harish Kumar.
For the sake of convenience, the applicant herein i.e. Defendant no.3 is
referred to as defendant no.3 itself and not an an applicant. Further respondent
no.1 i.e. Defendant no.4 and respondent no.2 i.e. Plaintiff, are also similarly referred like in the main suit.
1. Though the facts of the case need no reiteration but the same is very briefly reproduced. The factual matrix leading to the main suit bearing no. 683/2006 (new no.608545/16/04) as per plaintiff was that defendant no.1, Sh. Jagjit Singh Bedi, was the recorded owner of property bearing no. 17/1A, Tilak Nagar, New Delhi18 vide registered perpetual lease deed registered executed in his favour 1 by the Land & Development Office, Ministry of Urban Development, Government of India. Defendant no.1 had executed a General Power of Attorney in favour of his son i.e. defendant no.2 Sh. Gurvinder Singh Bedi, on 22.02.1994 in respect of half portion of private shop/room measuring 7'5'' x 15', one room measuring 13'10'' x 7'3'' at front side alongwith 3'' feet canopy wall built therein SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 fitted with electric connections in running condition.
2. It was further stated that defendant no.3 Sh. Balbir Singh was a tenant of defendant no.1 in the suit property and was running business of footwear under the name and style of "Manchanda Boot House". Defendant no.1 had initiated eviction proceedings against defendant no.3 vide Eviction Petition No. 144/80 and during the pendency of said proceedings, defendant no.1 and 2 had arrived at a settlement with defendant no.3 and the said eviction petition was withdrawn vide Order dated 03.03.1994. As per agreement dated 28.02.1994, defendant no.1 and 2 agreed to sell a portion of the suit property admeasuring 7'.5'' x 15' to defendant no.3 and various documents were executed in favour of defendant no.3 in this regard such as a registered Will dated 28.02.1994, an irrevocable Special Power of Attorney dated 28.02.1994, an irrevocable General Power of Attorney, an Agreement to sell dated 28.02.1994 for a consideration of Rs. 25,000/ and an Affidavit dated 28.02.1994 declaring and affirming that defendant no.1 had transferred all his ownership/ possession rights of shop no.1 in favour of defendant no.3.
3. Defendant no.3 therefore, became an Agreement purchaser in possession of the said portion of the property occupying the same in part performance of the agreement. Later on, the remaining portion of the above property was also transferred in the name of defendant no.3 by defendant no.2 as an Attorney of defendant no.1, on 04.03.1994, vide Agreement to sell, receipt for Rs. 24,000/, Special Power of Attorney, Will, Affidavit and duly registered General Power of Attorney, all documents executed on 04.03.1994. Accordingly, defendant no.3 became agreement purchaser and continued to remain in actual SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 physical possession of two portions as aforesaid which together constitute the "suit property" herein.
4. It was further stated in the plaint that on 07.02.2000, defendant no.3 entered into an agreement with the plaintiff to transfer his rights and possession in the suit property to plaintiff for a total consideration of Rs.1,80,000/. Accordingly, he executed Special Power of Attorney in favour of defendant no.4 Sh. Shyam Sunder, authorizing him to sell the suit property to plaintiff and also to execute all the requisite documents. An Affidavit dated 07.02.2000 was also executed by defendant no.3 in this regard. Defendant no.4 in turn, executed an Agreement to sell for Rs.1,80,000/ in which he acknowledged having received the said amount from plaintiff, a receipt for Rs.1,80,000/, a possession letter acknowledging delivery of possession of suit property, duly registered GPA, Affidavit, all documents dated 16.02.2001, in favour of plaintiff.
5. It was further stated that defendant no.3 did not deliver the actual physical possession of suit property to plaintiff as undertaken by him and on 01.03.2001, he executed an undertaking in favour of plaintiff that he would deliver the possession of suit property to the plaintiff within two months. An Affidavit to this effect was also executed by defendant no.3. However defendant no.3 did not deliver the possession of suit property to plaintiff even then. Thereafter on 21.05.2001, in order to reassure the plaintiff, he executed a fresh set of documents i.e. Agreement to sell, receipt, general power of attorney, possession letter, indemnity bond, Will and Affidavit in favour of plaintiff.
6. It was alleged by plaintiff that defendant no.3 had since became dishonest and did not hand over the possession of suit property to him despite SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 receiving the entire sale consideration and has infact resiled from agreement entered with the plaintiff. Accordingly, the plaintiff preferred a suit seeking Specific performance for execution of Sale Deed of suit property in his favour and to hand over the possession of the same besides other reliefs.
7. Suit was contested only by defendant no.3. Upon completion of trial, vide Judgment dated 16.03.2016, the suit of plaintiff was decreed qua specific performance and possession of suit property bearing shop no. 1, admeasuring 7'5'' x 15' and 5' x 23' at front portion of property bearing no. 17/1A, Tilak Nagar, New Delhi18. Separate Judgment damages / mesne profits has also been passed in favour of plaintiff today, after completion of enquiry under Order XX Rule 12 (1) (c) CPC.
8. Through this application, the contention of defendant no.3 herein is that in order to defraud him, the plaintiff and defendant no. 4, who are brotherin laws, have placed on record certain forged and fabricated documents allegedly executed interse as they want to grab the suit property of defendant no.3 which is worth over Rs. One Crore, for only Rs. 1,80,000/.
9. It is further alleged that the entire claim of plaintiff and defendant no.4 is based on two forged and fabricated documents i.e. unregistered Special Power of Attorney and Affidavit both dated 07.02.2000 which are Ex. PW1/O and Ex. PW1/P in the main suit and are allegedly executed by defendant no.3 in favour of defendant no.4. With regard to above documents, it is submitted that they do not contain the signatures of defendant no.3 and the court can itself compare the disputed signatures with the genuine ones or send it to CFSL for examination.
10. It is further stated that the possession delivery letter Ex. PW1/S SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 executed by defendant no. 4 is also bogus as defendant no.3 has been in possession of the suit property for last about 24 years and defendant no.4 or plaintiff have not been in its possession at any point of time. In view of the same, it is prayed that an inquiry be made against the offence committed by plaintiff and defendant no. 4 with respect to above two documents i.e. Special power of attorney Ex. PW1/O and Affidavit Ex. PW1/P and a complaint be made for registration of case under relevant provisions of IPC against both plaintiff and defendant no. 4.
11. Reply has been filed only by the plaintiff to the above application contending that the application lacks material particulars and the provisions of Section 340 Cr.PC are not attracted in the facts and circumstances of the present case. It is alleged that the application was filed by defendant no.3 with the sole intent and purpose to delay early disposal of the case and also to cover up his lapse, lacunas, negligence, willful act and dishonesty.
12. It is further stated that Special power of attorney Ex. PW1/O and Affidavit Ex. PW1/P are just a piece of evidence where voluminous evidence have been adduced by plaintiff and the effect of such piece of evidence on the broad concept of administration of justice is minimal, particularly in view of the fact that the defendant no. 3 had executed an Undertaking on 01.03.2001 and fresh set of documents on 21.05.2001 including Agreement to sell, Receipt, GPA, Will, Indemnity bond etc. However defendant no. 3 had confined the present application only to the documents Ex. PW1/O and Ex. PW1/P.
13. It is further stated that the claim made by defendant no. 3 in the application was the defence pleaded by him which already stands struck of by the SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 court and defendant no.3 was attempting to improve on his own case by distorting facts. It is further stated that the discretion vested in the court should not be exercised in favour of defendant no. 3 in view of the false and frivolous assertions made in the application and also in view of the conduct of defendant no.3 in pursuing the proceedings in the suit. The application was also not in the public interest.
14. Plaintiff also alleges that this application is filed to satisfy a private grudge of the litigant and the same should not be allowed. The application deserves to be dismissed due to want of existence of mens rea behind the alleged act. It is further stated that it is not expedient to warrant holding of an inquiry U/s 340 Cr.PC on the application. Plaintiff has further submitted that proceedings need to be initiated against defendant no. 3 as well as his counsel Mr. Ravi Sharma, for deliberately befooling the court under the provisions of 340 of Cr.PC for their willful act and commission.
15. Plaintiff further stated that there is no explanation at all as to when and how defendant no.3 for the first time, came to know about alleged forgery or fabrication of the documents Ex.PW1/O and Ex.PW1/P. It was denied that the signatures of defendant no. 3 on the above documents were forged and fabricated and it was argued that even suggestion was not given to witness PW1 in his crossexamination about the alleged forgery and fabrication of above documents. As per plaintiff, he has placed all relevant documents on record and the documents being relied by him are genuine and correct. Other contentions raised in the application were denied by plaintiff and prayer was made for dismissal of the application.
SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11
16. No reply was filed by defendant no.4. Arguments were addressed by both sides on the above application. Ld. Counsel for plaintiff has relied on various judgments in support of his arguments as follows Alok Ranjan and Ors. Vs. CBI and Ors. Crl.M.C. 456 and 3325/2012 (Delhi High Court) Date of Decision 04.03.2016; Iqbal Singh Marwah and Anr vs. Meenakshi Marwah and Anr. (2005) 4 SCC 370; Indraprastha Power Generation Co. Ltd. Vs. Faheem Baig & Ors. 2015 (148) DRJ 167; Rugmini Ammal (dead) By LRs. Vs. Narayana Reddiar And Anr. (2007) 12 SCC 611; Punjab Tractors Ltd. Vs. International Tractors Ltd. 2010 (167) DLT 490; Formosa Plastics Corporation USA Vs. Lt. Governor 2011 (183) DLT 747 and ; Vishal Kapoor Vs. Sonal Kapoor LPA No. 322/2014 (Delhi High Court) Date of decision 02.09.2014, which are on record.
17. I have perused the record and also duly considered the rival contentions. In view of the facts alleged in the application, it would be pertinent to refer to paras 19 to 21 of my judgment dated 16.03.2016 in the main suit whereby preliminary decree of Specific performance and Possession was passed in favour of plaintiff, wherein I have made certain observations qua the above documents Ex. PW1/O and Ex. PW1/P. The relevant paras of the Judgment are as under: SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 "19. As far as the case of the plaintiff is concerned, he has not only examined himself in order to prove his case but also PW2 who signed documents i.e. Ex. PW1/XA to Ex. PW1/XG as a witness. These documents have been purportedly executed by defendant no.3 in favour of plaintiff. This witness PW2 as already observed above, has not been crossexamined. Even though defendant no.3 denies having executed any SPA in favour of defendant no.4, however, I do not find any crossexamination being done by defendant no.3's counsel on the aspect that SPA Ex. PW1/O and the accompanying Affidavit Ex. PW1/P have not been executed by defendant no.3. In view of nonexamination of plaintiff on the above documents, the said documents will be deemed to be not disputed. Hence, in view of the same, the consequent documents executed by defendant no.4 in favour of the plaintiff, also cannot be disputed since defendant no.4 has admitted those documents such as Agreement to Sell, Receipt, GPA, etc. Ex. PW1/Q to Ex. PW1/U, during admission/denial of documents in terms of Order XII CPC.
20. It can further be seen that as per plaintiff, defendant no.3, thereafter even himself executed many documents in favour of plaintiff such as Undertaking, Agreement to Sell, GPA, Receipt, etc. which are Ex. PW1/V, Ex. PW1/W, Ex. PW1/XA to Ex. PW1/XG.
In the said undertaking Ex. PW1/V and Affidavit Ex. PW1/W, defendant no.3 admits having received the entire consideration from plaintiff and also sought two months more time to vacate the suit SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 property. As far as the question of genuineness of these documents are concerned, the defence of defendant having denied his signature, cannot be looked into as his defence is struck off.
21. Even otherwise, it is worth stating that defendant no.3 has not filed any counter claim or a separate suit seeking declaration that the above documents be declared as null and void. It also appears that defendant no.3 has also not registered any FIR or filed any criminal case against the plaintiff or defendant no.4 for having allegedly misused the documents or for having made forged documents, despite having knowledge of its existence, as no such fact regarding filing of criminal case, has been brought to the notice of the court. Any prudent person would have immediately taken steps to prevent misuse of those documents."
18. Nothing more requires to be added so as to show that this application is not maintainable in view of my categorical observations in the above judgment. I have also observed in the above judgment that defendant no.3 is himself unsure whether he had signed those documents which are allegedly executed in favour of plaintiff or whether his signatures were forged on them since he has stated that he was asked to sign on various blank documents by defendant no.4. So defendant no.3 is himself not confident of truthfulness of the defence which he wished to take. Infact in the written statement of defendant no.3 (though struck off), no specific averment is made by him that the Special Power of Attorney Ex. PW1/O and Affidavit Ex. PW1/P were forged and fabricated or that his signatures were forged on them by the plaintiff or defendant no.4, except making a general SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 allegation that the documents relied by plaintiff were forged and fabricated.
19. It has further been rightly submitted by counsel for plaintiff that defendant no.3 has only disputed his signatures on the above two documents in this application but purportedly he had himself executed many other documents in favour of plaintiff under his own signatures such as Undertaking, Affidavit, Agreement to Sell, GPA, Receipt, etc. which are Ex. PW1/V, Ex. PW1/W, Ex. PW1/XA to Ex. PW1/XG but he has not made similar allegations of forgery of his signatures qua those documents. The plaintiff is not only relying on documents purportedly executed in his favour by defendant no.4 on behalf of defendant no.3 but also the documents executed by defendant no.3 himself, subsequently in his (plaintiff's) favour. Hence defendant no.3 ought to have expressly denied his signatures even on those later documents in this application but he has not done so for reasons best known to him. Infact this can be deemed to be an implied admission of his signatures on documents Ex. PW1/V, Ex. PW1/W, Ex. PW1/XA to Ex. PW1/XG as they are later documents. Hence even otherwise, defendant no.3's contention regarding forgery of his signatures on Special Power of Attorney Ex. PW1/O and Affidavit Ex. PW1/P is not sustainable.
20. In Indraprastha Power Generation Co. Ltd. Vs. Faheem Baig & Ors. 2015 (148) DRJ 167, it was held by Hon'ble Delhi High Court that : "The purpose of Section 340 CrPC is to provide a safeguard against vexatious or frivolous prosecution. Section 340 is not permitted to be employed as handmaid of private persons to achieve their revengeful attitude against another person. Care has to be taken that a Court of law is not employed as a tool by SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 litigants for achieving their own ends. The Court has to see whether prosecution is undertaken in the interest of justice and not to satisfy the private grudge of litigant. Before setting the criminal law into motion the Court has to exercise great care and caution and has to arrive at a satisfaction that there is reasonable foundation for the charge in respect of which prosecution is directed. No prosecution is to be directed unless there is reasonable probability of conviction. The legislature by using the words "appears to have been committed" in Section 340 of the CrPC has shown an intention that there must be sufficient material before the Court to show that an offence within the meaning of Section 340 of the CrPC is likely to have been committed. Proceedings under Section 340 of the CrPC are not to be resorted to, to hamper the fair trial of a civil dispute."
21. In my considered opinion, this application is not maintainable on merits even prima facie. Hence there is no point in referring to other judgments filed by plaintiff which are applicable where the court is of the opinion that there may have been some material to show falsehood/forgery, etc. committed by one of the parties but it may not be expedient in the interest of justice to proceed against the said party.
The present application u/s 340 Cr.P.C. accordingly, stands dismissed. File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal) SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11 today on 29.08.2016 Civil Judge 01 ( West)/Delhi SCJ No. 629458/16 Harish Kumar vs Jagjit Singh 11/11