Delhi District Court
Lt.Col (Retd) Baruna Madan vs State on 3 January, 2022
1
IN THE COURT OF MS. HEMANI MALHOTRA
ADDITIONAL SESSIONS JUDGE-09 (WEST), TIS HAZARI, DELHI
CNR NO:DLWT01-006555-2020
Criminal Revision No.167/2020
LT.COL (RETD) BARUNA MADAN
W/O MEHERESH LALIT
A-38/1, MAYAPURI INDUSTRIAL AREA,
PHASE-1, DELHI
........... REVISIONIST
VERSUS
1. STATE
2. MS. MAMTA NAGPAL
W/O RAJESHWAR NAGPAL
BN-105, 2ND FLOOR,
SHALIMAR BAGH WEST,
DELHI
..........RESPONDENTS
AND
CNR NO:DLWT01-006556-2020
Criminal Revision No.168/2020
WING COMMANDER MANIKA MADAN
W/O GROUP CAPTAIN M.M. BOPANNA,
AIR FORCE STATION, HALWARA,
LUDHIANA,
PUNJAB
......... REVISIONIST
VERSUS
1. STATE
CR Nos.167 & 168 of 2020 Page 1 of 12
2
2. MS. MAMTA NAGPAL
W/O RAJESHWAR NAGPAL
BN-105, 2ND FLOOR,
SHALIMAR BAGH WEST,
DELHI
..........RESPONDENTS
Date of Institution : 19.12.2020
Date of receiving by this court : 04.02.2021
Date of conclusion of arguments : 21.12.2021
Date of announcement of Order : 03.01.2022
ORDER
1. The present two revision petitions of captioned numbers are preferred by the revisionists against the impugned orders dated 15.12.2020 and 19.12.2020 passed by the Court of Ms. Neha Pandey, Learned MM-03 (West)/THC/Delhi in complaint case No.3379/2020 PS Maya Puri titled as Mamta Nagpal Vs. Baruna Madan and Ors. whereby the learned MM directed registration of FIR against the revisionists.
2. The brief facts necessary for disposal of the present revision petitions are that the complainant Mamta Nagpal filed a complaint under Section 156 (3) Cr.P.C. r/w Section 190 Cr.P.C. alleging that property bearing No.A-38/1, Mayapuri Industrial Area Phase-I, Mayapuri, New Delhi-64 (herein after referred to as "The Property") was owned by M/s Madan Printers through its sole proprietor late Sh. Baldev Raj Madan. Sh. Baldev Raj Madan expired on 11.01.2013 and by virtue of last Will dated 27.2.2012 executed by her late father Sh. Baldev Raj CR Nos.167 & 168 of 2020 Page 2 of 12 3 Madan in her favour and to the exclusion of her siblings Baruna Madan and Manika Madan (revisionist nos.1 and 2), she had become the owner. The complainant had entrusted 'The Property' to Meheresh Lalit, Baruna Madan and Manika Madan in the capacity of caretakers and with respect to other ancillary works related to tenants in 'The Property'. At the time of entrustment, Meheresh Lalit was already running a company under the name and style of M/s Prime Infotech and the original documents of 'The Property' were in possession of Manika Madan and Baruna Madan. After the death of their father, the relationship between the three sisters namely complainant Mamta Nagpal and revisionist Nos.1 and 2 i.e. Manika Madan and Baruna Madan became strained. Pursuant thereto, suit for partition with respect to 'The Property' was filed by Manika Madan in the Hon'ble High Court of Delhi wherein a status quo order was passed on 07.07.2015.
3. It was further alleged that sometime in December 2019, the complainant came to know that M/s Eminent Audio Visual Pvt. Ltd. (EAVPL) got itself registered in the office of Registrar of Companies on 17.06.2016 by mentioning its registered office as Left side portion of the first floor of 'The Property'. On further enquiry with ROC, it transpired that Lalita Thakur, Mehresh Lalit, Akhilesh Prajapati, Neeraj and one Surendra are/were Directors of EAVPL from 17.06.2016 to December 2019. The complainant confronted Baruna Madan, Manika Madan and Mehresh Lalit, but they were unresponsive. Hence, on the basis of the allegations, offences under CR Nos.167 & 168 of 2020 Page 3 of 12 4 Sections 405/406/410/411/414/34 IPC r/w Sec.120B IPC were made out against the respondents.
4. On receipt of the complaint, the Learned MM called for the status report from the concerned SHO. Pursuant thereto, status report dated 12.10.2020 was filed by Inspector Ghanshyam Kishore, PS Maya Puri wherein it was stated that on enquiry, it was found that there was a property dispute between the three sisters i.e. the complainant, revisionist Nos.1 and 2 regarding the estate of their late father, Sh. Baldev Raj Madan including 'The Property'. Qua the same, various litigations were pending before district courts and the Hon'ble High Court of Delhi. The revisionists had challenged the unregistered Will dated 27.02.2012 and had placed reliance upon the registered Will dated 13.05.2011 whereby late Sh. Baldev Raj Madan had bequeathed his estate equally to all his three daughters. Vide order dated 07.07.2015, the Hon'ble High Court of Delhi had directed all the parties to maintain status quo in 'The Property' and vide order dated 03.02.2017, the Hon'ble High Court had directed that the rent from 'The Property' was to be deposited in the bank account of M/s Madan Printers.
5. It was also stated in the status report that on enquiry from Lalita Thakur, it transpired that M/s EAVL though registered at the address of 'The Property' was not functioning from 'The Property' but was functioning from a premises in Naraina. Due to inadvertent mistake of her Chartered Accountant, who submitted Forms and other documents before ROC, wrong affidavit was filed stating that she was the owner CR Nos.167 & 168 of 2020 Page 4 of 12 5 of 'The Property'. Lalita Thakur also submitted that she was a tenant in 'The Property' and the said fact was an undisputed fact as the same had been admitted by her in various civil cases filed by the complainant.
6. After perusing the detailed status report dated 12.10.2020, the learned MM passed the impugned order dated 15.12.2020 which was subsequently modified on 19.12.2020 directing registration of FIR against the revisionists and Lalita Thakur. It is these impugned orders which have been challenged before this Court.
7. I have heard the lengthy arguments addressed by learned counsels for the complainant and the revisionists. I have also meticulously perused the Trial Court record and judgments relied upon by the parties.
8. It was firstly, urged by the learned counsels for the complainant that the revisions in question were not maintainable as the direction to register FIR is not revisable. In support of their contentions, they relied upon citations titled as GIRISH KUMAR SUNEJA VS. CENTRAL BUREAU OF INVESTIGATION reported as 2017 AIR 3620; ANJU CHAUDHARY VS. STATE OF U.P. & ANR. , reported as 2012 (13) SCR 901 and KISHAN LAL VS. DHARMENDRA BAFNA & ANR. in CRL.APPEAL NO.1283 OF 2009 decided on 21.07.2009. To resist the arguments of learned counsels for complainant, the learned counsels for revisionists relied upon judgments titled as KISHAN LAL VS. DHARMENDRA BAFNA AND ORS. in CRL.APPEAL NO.1283 OF 2009 decided on 21.07.2009; OMPRAKASH AND ORS. VS. STATE AND ORS. in CRL.M.C. 1152/2010 & CRL.M.A. 4088/2010 decided on 10.01.2012; RUKMINI AMMA SARADAMMA VS. KALLYANI SULOCHANA AND CR Nos.167 & 168 of 2020 Page 5 of 12 6 ORS. in CIVIL APPEAL NO.5403/1992 decided on 16.12.1992; GABRANI INFRASTRUCTURE PVT.LTD. VS. UNITECH HI-TECH DEVELOPERS LTD. & ORS. in CRL.M.C. 1989/2016 decided on 05.10.2016; AMIT KAPOOR VS. RAMESH CHANDER AND ORS. in CRL.APPEAL NO.1407/2012 decided on 13.09.2012; MANOHAR SINGH AND ORS. VS. STATE AND ORS. in CRL.M.C. 1952 AND 1959/2009 decided on 10.04.2013; T.ARIVANDANDAM VS. T.V. SATYAPAL AND ORS. in SPECIAL LEAVE PETITION (CIVIL) NO.4483/1977 decided on 14.10.1977 and KISHORE SAMRITE VS. STATE OF U.P. AND ORS. decided on 18.10.2012.
9. The arguments of learned counsels for complainant that the present revisions were not maintainable as the impugned order was interlocutory in nature and was not revisable does not hold any water. In NISHU WADHWA VS. SIDDHARTH WADHWA & ANR. reported in W.P. (CRL.) 1253/2016 decided on 10.01.2017, the Hon'ble High Court of Delhi referred to a catena of judgments passed by the other High Courts and also relied upon the Judgment of AMAR NATH VS. STATE OF HARYANA reported as (1977) 4 SCC 137 wherein, connotation of an "Interlocutory Order" was discussed. In AMAR NATH (SUPRA) it was observed as follows:
"The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an CR Nos.167 & 168 of 2020 Page 6 of 12 7 order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court." (emphasis supplied) It was then observed by the Hon'ble High Court of Delhi as under:-
"12. It is trite law that once directions are passed by the learned Magistrate under Section 156(3) Cr.P.C. directing registration of FIR he becomes functus-officio. [See (2016) SCConline Del 5490 M/s. Gabrani Infrastructure Pvt. Ltd. Vs. M/s. Unitech Hi-Tech Developers Limited & Ors and MANU/GJ/7486/2007 Randhirsinh Dipsinh Parmar vs. State of Gujarat & Ors.]. Thus, disposing of an application under Section 156(3) Cr.P.C. amounts to adjudication of a valuable right whether in favour of accused or the complainant.
The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Cr.P.C. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the Police can summon him for CR Nos.167 & 168 of 2020 Page 7 of 12 8 investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Cr.P.C. and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156 (3) Cr.P.C. is not an interlocutory order and a revision petition against the same is maintainable." (emphasis supplied)
10. From the bare reading of the aforesaid judgment, it is, thus, abundantly clear that the impugned order/s is not interlocutory in nature and revision petition against the same is maintainable.
11. Now adverting to the facts of the instant case, the Status Report dated 12.10.2020 reflects that admittedly, dispute between the complainant and revisionists qua ownership of 'The Property' is subjudice before the Hon'ble High Court in CS(OS) 1900/2015 and Test.Case 4/2016. Also, that vide order dated 07.07.2015, the Hon'ble High Court had directed the parties to maintain 'status quo'. Thus, in view of the litigations pending between the parties, not only qua 'The Property', but also the entire estate of late Sh. Baldev Raj Madan, the allegation that complainant had entrusted 'The Property' to the revisionists after the death of her father in January 2013 does not appeal to logic. It is also an undisputed fact that the revisionists herein have challenged the unregistered Will dated 27.02.2012, on the basis of which complainant has claimed to have become the owner of 'The Property' to the exclusion of her siblings. Rather, the revisionists are claiming equal share in 'The Property' on the basis of registered Will 13.05.2011 CR Nos.167 & 168 of 2020 Page 8 of 12 9 purported to have been executed by late Sh. Baldev Raj Madan. In such a scenario, it is rather improbable that the revisionists would have admitted the ownership of 'The Property' by the complainant and would have meekly become Trustees of 'The Property' on behalf of complainant.
12. Be that as it may, presuming that revisionists were indeed Trustees of 'The Property' in that situation, can it be said that any act / misconduct on the part of Directors (present and erstwhile) of EAVPL would impliedly implicate the revisionists? In my considered opinion, the answer to this question is negative.
13. The affidavit in question was purportedly submitted by Lalita Thakur and not the revisionists. Thus, it cannot in the wildest of imagination be implied that revisionists had any role to play in the submission of affidavit or to submit such an affidavit, their permission was required by Lalita Thakur. Admittedly, Lalita Thakur is a tenant in 'The Premises' in which EAVPL was registered. In that capacity, she did not require any permission from any quarter to open a company in the tenanted premises.
14. So far as, registration of EAVPL in ROC on 17.06.2016 on the basis of false affidavit is concerned, the affidavit is alleged to have been submitted by Lalita Thakur which does not require any overt act on the part of the revisionists. The offence of using a false affidavit or making a false declaration is punishable under Sections 198, 199 and 200 of the IPC which are non-cognizable offences for which no direction for registration of FIR can be given.
CR Nos.167 & 168 of 2020 Page 9 of 12 1015. The law with respect to the role of MM when deciding application U/s 156(3) Cr.PC is well settled. In SUBHAKARAN LUHARUKA & ANR. VS. STATE (GOVT. OF NCT OF DELHI), 2010 (3) JCC 1972, it was held as under:-
(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called for before passing final orders.
iii) The Magistrate, when approached with a Complaint under Section 200 of the Code, should invariably proceed under Chapter XV by taking cognizance of the Complaint, recording evidence and then deciding the question of issuance of process to the accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under Section 202 of the Code.
(iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the Code when an application under Section 156(3) of the Code is also filed along with a Complaint under Section 200 of the Code if the Magistrate decides not to take cognizance of the Complaint. However, in that case, the CR Nos.167 & 168 of 2020 Page 10 of 12 11 Magistrate, before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre-requisites as aforesaid, but, additionally, he should also be satisfied that it is necessary to direct Police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the Court at the instance of complainant, and the matter is such which calls for investigation by a State agency. The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code.
16. In the instant case, the learned MM not only ignored the facts emerging from Status Report but also ignored the provisions of IPC and Cr.P.C. The learned MM blindly believed the bald allegations made against the revisionists Baruna Madan and Manika Madan in the alleged complaint filed by Mamta Nagpal. Not a single document by the complainant was placed on record to even prima facie suggest that there was connivance and conspiracy of any kind between Baruna Madan and Manika Madan on the one hand and Directors of EVAPL (present or erstwhile) on the other. Furthermore, the learned MM also did not take into account the pending litigations between the parties which are subject matter before the Hon'ble High Court and other courts. The duty cast on the learned MM, while exercising power U/s 156(3) Cr.PC cannot be marginalised. The impugned order/s on the very face of it reflects non application of mind and utter disregard of guidelines as mandated in the judgment of SUBHAKARAN (SUPRA).
17. In view of my detailed discussion, the impugned order/s dated 15.12.2020 and 19.12.2020 passed by learned MM directing registration of case FIR and initiation of investigation against CR Nos.167 & 168 of 2020 Page 11 of 12 12 revisionists (Baruna Madan and Manika Madan) and Lalita Thakur are set aside being illegal and passed without application of mind. Resultantly, revision petitions bearing Nos.167/2020 and 168/2020 are allowed.
Trial court record be sent back along with the copy of this order. Revision files be consigned to the record room.
Digitally signedAnnounced on 3rd January, 2022 HEMANI by HEMANI MALHOTRA MALHOTRA Date: 2022.01.03 (HEMANI MALHOTRA) 16:17:59 +0530 ASJ-09 (West)/THC/Delhi CR Nos.167 & 168 of 2020 Page 12 of 12