Delhi District Court
Sunil Kumar Gupta vs . Ashok Kumar Gupta& Ors. 1 on 21 January, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN METROPOLITAN
MAGISTRATE, WEST, THC NEW DELHI
Sunil Kumar Gupta ........... Complainant
Vs.
Ashok Kumar Gupta & Ors. ........... Respondent/respondents
PS Paschim Vihar C C No.63/1/14 ORDER ON SUMMONING
1. Vide this order I shall decide the point of summoning of accused person u/s 200 Cr.P.C.
2. The briefly stated facts as per the complaint are that Sh. Rameshwar Das Gupta had, father of the complainant purchased a property i.e B-2/206, Paschim Vihar, New Delhi admeasuring 200 Sq. Yards(hereinafter referred to as 'the property') by way of Conveyance Deed dated 23.04.2001. Sh. R. D. Gupta expired intestate on 27.06.2009 and his wife Smt. Bhagwati Gupta expired on 26.02.2011. Thereafter, a suit for share in the above said property was filed by the complainant's sister Smt. Rita Singhal. However, eventually the matter was resolved. Ms. Rita Singhal and Usha Rani Gupta(accused Sunil Kumar Gupta Vs. Ashok Kumar Gupta& ORS. 1 no.2) surrendered their undivided shares in the favour of accused no.1 and the complainant. Hence, the accused no.1 and complainant became the absolute and joint owners of the property. It has been averred that the complainant is in possession of first floor of the property while accused no.1 is in possession of the ground floor. The second floor has been sold to one Suman Kumar Aneja on 07.10.2013. The complainant and accused are joint owners of the third Floor. It has been alleged that the complainant wanted to get registered the first floor and his share in the third floor of the property in his name but the accused is preventing him from doing so by taking recourse to illegal actions. He is creating problems by stopping the water supply and hiding the keys to the main gate/terrace/common areas. They had even threatened to implicate the complainant in false cases. Despite various complaints to the police, no action has been taken.
3. To lead evidence, the complainant himself has entered into the witness box as CW-1. He has corroborated the averments made in the complaint. He has deposed that there was property dispute between him, the accused Ashok Kumar Gupta and his sister Usha Rani Gupta and Rita Singhal. However, the dispute has been settled in the Hon'ble High Court of Delhi. The order of the Hon'ble High Court dated 19.09.2011 is Mark A. Both sisters have relinquished their rights in the property in favour of the complainant and the accused no.1. He has further deposed that on 26.09.2011, the complainant Sunil Kumar Gupta Vs. Ashok Kumar Gupta& ORS. 2 and the accused no.1 had entered into a Collaboration Agreement with one Vinod Kumar Gupta. Copy of the said Agreement is Mark B. It was agreed that one floor each was to be taken by the complainant and accused no.1. Second floor was sold to one Sh. Suman Kumar Aneja and third floor was to be sold to a third party by both the owners in joint capacity. The witness has further deposed that on 02.06.2013 when he came to the first floor of the property, he found that a big lock was put on the main door. When he asked his brother i.e accused no.1 about the same, the accused shouted at him and asked him to go away. He also threatened him with a knife. On 03.07.2014 again the complainant came to his house and broke open the lock of the main door and entered into the house. His brother immediately made a call on 100 number. The police took the complainant and his family as well as the accused to the police station. During discussion, the accused revealed the he has a MOU signed by the complainant whereby he had agreed to share the sale proceeds up to 60 per cent of the third floor to the accused. The complainant asked him many times to produce the said MOU but he has failed to do so. The complainant issued a legal notice to him on 25.08.2014 which is Ex.CW1/A. The witness further deposed that the accused is not allowing him to enter in the property or to use the parking area or the roof area. He has also stopped the water supply and electricity supply to the complainant's portion and is continuously threatening the complainant. Sunil Kumar Gupta Vs. Ashok Kumar Gupta& ORS. 3
4. Pre-summoning evidence was closed by statement of the complainant dated 13.10.2015.
5. I have heard the arguments made by Ld. Counsel for complainant and perused the record carefully. Ld. counsel for complainant has submitted that the accused persons be summoned for offence under Section 406/452/464/471/506 read with Section 34 IPC.
6. Before proceeding further, let us first discuss the relevant provisions of law for the purpose of this case. Section 406 IPC prescribes punishment for criminal breach of trust and the same is defined under Section 405 IPC which is reproduced verbatim here:-
"Section 405. Criminal Breach of Trust- Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
7. The most important ingredient of Section 405 IPC is "entrustment of property to the accused". The expression 'entrustment' means that "the Sunil Kumar Gupta Vs. Ashok Kumar Gupta& ORS. 4 person entrusting, by some real and conscious volition has imposed on the person to whom he delivers the goods, some species of fiduciary duty" (Lake vs Simmons 1972 AC 487). In order that money be 'entrusted' to the accused person, it should be transferred to him in circumstances which show that notwithstanding its delivery , the property continues to vest in the prosecutor and the money remains in possession of the accused in capacity of a bailer only. However, in the case at hand, no property was entrusted by the complainant on the accused persons within the meaning of Section 405 IPC. Hence, no offence under Section 406 IPC is made out against the accused persons.
8. Section 452 prescribes punishment for offence of House-trespass after preparation for hurt, assault or wrongful restraint. Section 464 prescribes punishment for making a false documents, while Section 471 prescribes punishment for using a forged document, fraudulently as genuine.
9. Section 506 Indian Penal Code prescribes the punishment for criminal intimidation. The offence of Criminal intimidation has been defined u/s 503 IPC. The said Section is reproduced verbatim here.
"Section 503 IPC. Criminal Intimidation- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to Sunil Kumar Gupta Vs. Ashok Kumar Gupta& ORS. 5 do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation: A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
10.In the case at hand, apparently, the dispute between the parties pertains to the immovable property i.e property no. B-2/206, Paschim Vihar, Delhi. From the perusal of the entire complaint and the statement of CW-1 it appears that the accused no.1 had threatened the complainant to relinquish his rights in the fourth floor of the property in favour of the accused. He has further restrained the complainant from using the common areas of the property. However, there is no evidence whatsoever put forth by the complainant to show that the accused is in possession of any Memorandum of Understanding, whereupon the signatures of the complainant have been forged. Hence, the court is of the view that no offence of forgery or preparation of false documents is made against the accused. Also, no instance of house trespass or criminal trespass is mentioned by the complainant.
11. Section 341 prescribes punishment for Wrongful restraint and the same is defined under Section 339 IPC, as a voluntarily obstruction of the way of any person to prevent him from proceeding in any direction in which that person Sunil Kumar Gupta Vs. Ashok Kumar Gupta& ORS. 6 has a right to proceed.
12.In the case at hand, from the overall testimony of the complainant witness and the documents on record, it appears that the accused no.1 has prima facie committed the offence of wrongful restraint and criminal intimidation punishable under Section 341 IPC and Section 506 (Part-I) IPC respectively. However, as far as accused no.2 is concerned, nothing incriminating has come on record against her in the entire complaint. CW-1 has not deposed anything against the accused no.2. No allegations have been made against her either in the complaint or in the testimony of CW-1. Hence, the court is of the view that no offence is made out against the accused no.2 and she is not required to be summoned in the present case.
13.In view of the above discussion, accused no.1 Ashok Kumar Gupta is summoned for offence under Section 506 (Part-I) IPC and under Section 341 IPC. Accused no.2 is not summoned as no offence is made out against her. Let accused Ashok Kumar Gupta be summoned on filing of PF within 7 days from today.
14.Put up for appearance of accused no.1 and for further proceedings on 08.03.2016.
Announced in the open court (SAUMYA CHAUHAN)
on 21.01.2016 METROPOLITAN MAGISTRATE-07
WEST, TIS HAZARI COURT/NEW DELHI
Sunil Kumar Gupta Vs. Ashok Kumar Gupta& ORS. 7