Delhi District Court
M. T. Malik vs State And Others on 1 October, 2013
ID No. 02406R0305302012
IN THE COURT OF ADDITIONAL SESSIONS JUDGE - 04
AND SPECIAL JUDGE (NDPS)
SOUTH EAST: SAKET COURTS: DELHI
Criminal Revision No. 68/2012
ID No. 02406R0305302012
M. T. Malik
s/o Sh. Salahuddin
r/o B-50, Flat no. 401,
Johri Farm, Jamia Nagar
New Delhi
..........revisionist
Versus
State and others ..........respondent
Instituted on : 07th November,2012
Argued on : 28th September ,2013
Decided on : 01st October, 2013
ORDER
1. This revision is directed against the order dated 27.11.2012, passed by Ms. Sumaya Chauhan Learned Metropolitan Magistrate- Saket Courts, New Delhi, whereby applications u/s 319 Cr. P.C for summoning respondents was dismissed in a complaint case (CC No. 18/1/2010).
2. I have heard submissions advanced by Sh. A. Aleem Learned counsel for the revisionist and Sh. S. I Hasan, Sh. Azaz Khan as well as Sh. K. K. Dutta counsels for respondents .
3. In brief, facts leading to the filing of this revision petition, are that complainant/revisionist purchased a flat in the year 2003 from Aayaj Ali Khan (A-2) and Murshid Ali Khan (A-3). A close relationship developed between complainant and accused persons . They started calling the wife of complainant as their sister and used to visit the house of the complainant. It is M. T. Malik vs SHO and ors. CR No. 67 of 2012 1 ID No. 02406R0305302012 stated that accused persons allured complainant to invest money in construction work, which would fetch huge profits. On this, complainant and his wife agreed to invest their money in construction work through accused persons. Wife of complainant sold plot at measuring 310 sq. yards in DLF, Dilshad Plaza, Ghaziabad and entered into two collaboration agreements. One agreement was between complainant and Rashid and Sabu and other was between complainant's wife and Amjad Ali Khan. The construction work was entrusted to Ayaz Ali Khan (A-2). The cost required for construction work was to be borne by the complainant and his wife. It was agreed that all the documents relating to sale of complainant and his wife in the above two agreements shall be signed only by the complainant and his wife. It was agreed that after realization of total amount, the profit would be shared as 65% by the complainant and his wife and 25% by the accused persons. It is stated that after six months of construction, accused persons started creating troubles to the complainant/revisionist on one pretext or the other. It is alleged that accused persons took Rs. 25,76,000/- from various proposed buyers and executed agreement to sell claiming to be the owner of the flats without the knowledge and permission of complainant and his wife. It is alleged that accused persons committed fraud and cheating upon the complainant and his wife. Complainant/revisionist filed a complaint and a case FIR No. 183/2008 was registered under section 406/448/506/467/471/34 IPC at Police Station Jamia Nagar.
4. On conclusion of investigation, charge sheet was filed against accused Ayaz Ali Khan and Murshid Ali Khan. Since, both accused were M. T. Malik vs SHO and ors. CR No. 67 of 2012 2 ID No. 02406R0305302012 declared Proclaimed Offender. Trial Court examined 15 witnesses under Section 299 Cr. P. C. Ms. Mahvish Malik (CW-1). Amir Ali (CW-2). Mohd. Imran (CW-3). Ms. Mazda Begum (CW-4). Ms. Fatima Khatoon (CW-5). Syed Izharul Hasan (CW-6). Nasim Ahmed (CW-7). Aizaz Ahmed (CW-8). Mushtaq Ahmed (CW-9). Mohd. Amjad Khan (CW-10). Mohd. Zafar Hussain (CW-11). Inspector Shahid Khan (CW-12). Mohd. Ehteshamul Hasan (CW-13). M. T. Malik (CW-14). SI Jitender Singh (CW-15). HC Rajinder Singh (CW-16). On 10.07.2012, an application under Section 319 Cr. P. C was moved by the complainant/revisionist for summoning of other accused persons. On 27.11.2012, Learned Trial Court dismissed the application vide impugned order. Aggrieved with said order, this revision is preferred by revisionist.
5. Sh. A. Aleem Learned Counsel appearing for revisionist submits that Trial Court dismissed the application filed under Section 319 Cr.P. C without appreciating the evidence on record. It is submitted that the buyers of flats are the co-conspirators alongwith accused persons who are PO and these persons purchased the flats despite knowing that the documents were forged. It is submitted that as per FSL report (Ex. CW15/A) , the documents of ownership pertaining to Amir Ali (CW-2) Mohd. Imran (CW-3) Majida Begum (CW-4) and Naseem Ahmed (CW-7) are reported as forged.
6. Learned counsel submitted that Amir Ali (CW-2), Mazda Begum (CW-4), Syed Izharul Hasan (CW-6), Nasim Ahmad (CW-7), Aizaz Ahmed (CW-8), Mushtaq Ahmed (CW-9) were the buyers and witnesses to the sale of flats in question and they were unable to find any material . M. T. Malik vs SHO and ors. CR No. 67 of 2012 3
ID No. 02406R0305302012
7. Learned counsel pointed out that IO of the case namely, Sh. Jitender singh who has been examined as CW.15 admitted that he had not investigated this deliberately to safeguard illegal occupiers of the flats and their witnesses. IO admitted that he recorded the statements of Mushtaq Ahmad, Syed Izharul Hassan and Mohd. Imran on 23.01.2010 to cover up the flaws in the investigation and to save the illegal occupier and their witnesses, co-conspirator who have given several dated and undated complaints which he have filed in the charge sheet to confuse the Hon'ble Court and to save the culprits from their due what they deserve.
8. IO (CW-15) admitted that, he had not investigated that once Smt. Majida Begum received the alleged papers of ownership on 15.12.2007 and she/her husband made the full and final payment and after two days they received threats from the complainants then why she made the payment of Rs. 3,00,000/- on 14.01.2008, Rs. 3,55,000/- on 19.01.2008 and Rs. 1,05,000/- later on date is not legible."
9. It is submitted that IO (CW-15) admitted that inspite of the fact that papers upon which the illegal occupiers of the flats were claiming ownership proved forged even then he had given the statement before the Ld. ACMM that these persons are themselves victims and he made this statement without seeking any legal opinion from the prosecution. CW-15 admitted that he never called the complainant in the police station to confront with the alleged illegal occupiers of the flats who were claiming the ownership upon the basis of proved forged documents to confront that these documents were handed over to them by the complainant and one Ayaz Ali Khan(PO). M. T. Malik vs SHO and ors. CR No. 67 of 2012 4
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10. It is submitted that complainant (CW.11) stated that IO Sh. Jitender Singh told him orally that please get this case transferred to some other agency as not only the IO but the SHO was helpless in doing the needful due to the pressure. It is urged that Mohd. Naseem's claim of purchasing the same from Smt. Malik is proved false as document on the basis of which he is claiming ownership is proved , forged by FSL report.
11. Learned counsel submits that Nasim Ahmad (CW-7) deposed that in two years upto the year mid 2008 he given payment to Ayaz Ali Khan of Rs. 5,55,000/-. He further deposed that he has been given all the documents in the month of February and he sold the flat to Amir Ali in the month of February 2008". This fact is contradicted with his statement U/s 161 Cr. P.C. recorded by the IO. He deposed that "he was called in the police station only in the year 2010 while the complainants CW.7/C & D when shown to the witness, he admitted his signature and this fact speaks about his involvement in the preparation of the forged documents, forcefully taking the possession and later on selling the flat to other person namely Amir Ali upon the basis of aforesaid documents.
12. It is alleged that Amir Ali (CW-2) despite knowing that the documents of forged on the basis of which he purchased the flat in question from Mohd. Naseem till date had not lodged any complaint/FIR against Mohd. Naseem shows that both have conspired with each other for usurping the flat of the complainants wife.
13. It is argued that Mohd. Naseem alleged purchaser admitted in his examination in chief that the collaboration agreement between the M. T. Malik vs SHO and ors. CR No. 67 of 2012 5 ID No. 02406R0305302012 complainants wife and one Amzad Ali so he knowingly entered into the agreement to sell and purchase exhibit CW.7/E with Ayaz Ali Khan as owner (P.O.) and he further admitted that he received the notices from the police in the month of February end while the documents by which he sold the flat are having the date of 03.05.2008 clearly establishing the conspiracy between Mohd. Naseem and Amir Ali and the witnesses.
14. Smt Mazida Begum (CW-4) claimed ownership on the basis of the documents proved forged while in her statement before the court deposed that she did not know about anything in respect of the payment while in her statement U/s. 161 Cr.P.C. she said that she had given payment to Ayaz Ali Khan. She further deposed that she had signed upon the documents upon the asking of her husband and she doesn't know anything.
15. Syed Izharul Hassan (CW-6) deposed in his examination before the Trial court that he had received the papers in the month of December 2007 and till then he had given only Rs. 6,00,000/- including Rs. 2,00,000/- by a Postdated cheque to Ayaz Ali Khan, while to this complaint dated 10.09.2008 which is exhibit CW.6/A he said that in the month of December 2007 he received the papers and had given full and final payment, received threats after two days but refused to make extra payment while the advanced receipt cum agreement to sell and purchase exhibit CW.4/A is showing that payments were made as 3,00,000/- on 14.01.2008, 3,55,000/- on 19.01.2008 and 1,05,000/- date is not legible. It is submitted that IO admitted that he has not investigated this aspect with clear motive of saving Smt. Majida Begum, her husband namely Syed Izharul Hassan and her witness namely Ehtesham M. T. Malik vs SHO and ors. CR No. 67 of 2012 6 ID No. 02406R0305302012 Ul Hassan and Phool Hassan respectively.
16. Learned counsel contended that Ehtesham Ul Hassan (CW-13) deposed that "at the time of handing over of documents, Syed Izharul Hassan has given Rs. 2,00,000/- and he saw the cash by his own eyes while Syed Izharul Hassan who has been examined as CW.6 had deposed that he has given a post dated cheque of Rs. 2,00,000/- at the time of handing over of documents to Izharul Hassan." It is submitted that CW-13 be summoned because he deposed that the signature of Majida Begum was already on the papers when the same was handed over to Syed Izharul Hassan speaks itself that the witness is not a true witness and he had not seen anything rather he is deposing falsely and is in conspiracy with Majida Begum and her husband Syed Izharul Hassan. It is submitted that the contradictions particularly the mode of payment as well as the payment of Rs. 7,60,000/- in the year 2008 clearly speaks that aforesaid Majida Begum, her husband Syed Izharul Hassan and her witnesses were conspired with each other.
17. It is argued that Smt. Fatima Khatoon (CW-5) claiming ownership upon the basis of proved forged documents. Mushtaq Ahmed (CW-9) entered into an agreement with Ayaz Ali Khan (PO) knowing that he is not the owner and examined as CW.9 had deposed that registry was done by Smt. Mahvish Malik proved forged by FSL. report exhibit CW-15/A. It is submitted that Ezaz Ahmed, son-in-law of Mushtaq Ahmed and husband of Smt. Fatima Khatoon deposed that the handwriting is not mine but admitted the signature on (Ex. CW8/B) at point 'A' and when the document was read over that "the GPA and the other documents of the said flats are in the name M. T. Malik vs SHO and ors. CR No. 67 of 2012 7 ID No. 02406R0305302012 of Smt. Fatima Khatoon and the same were signed as seller by Smt. Mahvish Malik (the signatures proved forged by F.S.L. exhibit CW15/A). It is argued that Aftab Ahmed and Mohd. Farooq were not cited as witnesses upon the advanced receipt cum agreement to sell and purchase dated 11.12.2006 (Ex.CW.5/C) .
18. Learned counsel argued that Mohd. Imran alleged purchaser of the flat in question is claiming ownership upon the basis of GPA etc. dated 17.12.2007 Ex.CW.1/A proved forged by F.S.L. report Ex.CW.15/A. Mohd. Zafar Hussain admitted in his deposition that Smt. Malik had not signed the aforementioned documents in his presence. It is contended that Kalimuddin Khan is neither cited nor examined as witness. Mohd. Imran (CW-3) deposed that they are advocates so there is no requirement to go for documentation while the facts is that Ayaz Ali Khan(PO) was the builder/supervisor and not the advocate. It is submitted that Mohd. Imran (CW-3) had received the papers of ownership on 19.12.2012 proved as forged by FSL (Ex. CW 15/C) but the last payment of Rs. 25,000/- was done by him to Ayaz Ali Khan in the 10.01.2008 as per the advance receipt cum agreement to sell and purchase dated 21.03.2007 exhibit as CW.3/G. IO/SI Jitender Singh (CW-15) admitted in his deposition that he and his superior officers were hand in glove in saving the illegal occupiers of the flat, their witnesses and other conspirator with ulterior motivation and thereby instrumental in filing the charge sheet only against the named accused namely Ayaz Ali Khan and his brother Murshid Ali Khan and deliberately chooses to cite the illegal occupiers and their witnesses as prosecution witness to save the accused persons. M. T. Malik vs SHO and ors. CR No. 67 of 2012 8
ID No. 02406R0305302012
19. Learned counsel submitted that Trial Court has not gone through the testimony of Jitender Singh (CW-15) and also the testimony of aforesaid other witnesses namely, Amir Ali (CW-2), Syed Izharul Hasan (CW-6) and Naseem Ahmad (CW-7). He submitted that Ms. Mahvish Malik (CW-1) deposed that she has not signed any other paper except the collaboration agreement (Ex. CW1/A). Ms. Mazda Begum (CW-4) deposed that she was asked to sign the document by her husband Izarul Hasan. Ms. Fatima Khatoon (CW-5) deposed that flat was purchased by her father. Izharul Hasan (CW-6) husband of Majida Begum deposed that he paid Rs. 4,00,000/- in cash and Rs. 2,00,000/- by cheque. Aizaz Ahmed (CW-8) , Mushtaq Ahmed (CW-9) deposed that registry was done by Smt. Mahvish Malik. Mohd. Zafar Hussain (CW-11) admitted that Smt. Mahvish Malik had not signed the documents in his presence when he put his signatures as witnesses. Ehtashmul Hasan (CW-13) deposed that at the time of handing over documents Syed Izharul Hasan gave Rs. 2,00,000/- on the asking of M. T. Malik . He deposed that signatures of Mazda Begum was already on the papers when the same were handed over to Syed Izharul Hasan who conspired with Mazda begum Izharul Hasan and Ehteshmul Hasan to grab the flat of the wife of complainant without purchasing the same from her and without making any payment to her.
20. Attention of the Court was drawn again towards the testimony of SI Jitender Singh (CW-15) who, deposed that he had not investigated whether Majida Begum received papers of ownership on 15.12.2007 and she/her husband made the full and final payment . He admitted that papers M. T. Malik vs SHO and ors. CR No. 67 of 2012 9 ID No. 02406R0305302012 upon which the illegal occupiers of the flats were claiming ownership proved forged even then, he had given the statement before the Trial Court and stated that these persons were themselves victims and that he had made this statement without seeking any legal opinion from the prosecution. CW-15 admitted that illegal occupants of the flats had given the payment to Ayaz Ali Khan (PO) even then, he had not made accused the persons who were claiming ownership upon the basis of forged documents. IO/CW-15 admitted that he never called the complainant in the police station to confront with the alleged illegal occupiers of the flats who were claiming the ownership. He admitted that he never investigated that the illegal occupier of the ground floor namely, Aamir Ali and that once the documents of Mohd. Naseem were proved forged then there is no explanation by him as to why he had not lodged the FIR of cheating against him. Attention of the Court is also drawn towards statement of complainant (CW-11) who stated that IO/Jitender Singh told him orally that to get this case transferred to some other agency as not only he (IO) but SHO was helpless in doing the needful due to the pressure.
21. IO/Respondent no. 3 in his reply submitted that statement was not dictated by Learned APP of Court as he was not present in the Court. He recorded his statement of his own and it was completed in 4 to 5 lines. It is submitted that M. T. Malik had put questions to him in the form of cross examination and got recorded the statement by manipulating words and lines in his actual reply and statement. He further submitted that on 03.02.2012, he was not feeling well and could not hear the dictation properly which was given by revisionist, who manipulated and added some words and lines. It is M. T. Malik vs SHO and ors. CR No. 67 of 2012 10 ID No. 02406R0305302012 submitted that he never concealed any document and had investigated the case properly.
22. Sh. S. I. Hasan and Sh. Azaz Khan Learned counsels appearing for respondents submitted that impugned order is not maintainable and is an interlocutory order. It is submitted that there is no infirmity in the order. Learned counsel appearing for respondents submits that two complaints u/s 156 (3) Cr. P. C. were filed. One was filed by M. T. Malik and other was filed by purchasers of property in question i.e. A-82/5A. Shaheen Bagh, Abul Fazal Enclave-II, Jamia Nagar, New Delhi - 110025. He submits that after making enquiry, SHO PS Jamia Nagar had filed its report before Trial Court . After filing of charge sheet, complainant-M. T. Malik had filed a protest petition which was also dismissed by Trial Court vide order dated 18.11.2010. Against the said order , M. T. Malik had preferred filed a criminal revision in the Court of Learned Additional Sessions Judge which was also dismissed . Learned counsel argued that complainant filed this criminal revision on the same allegations and facts which were taken by him in the criminal revision against dismissal of protest petition.
23. Sh. K. K. Datta counsel appearing for respondent no. 3 to respondent no. 17 submitted that complainant black mailed and demanded money from the respondents against which a complaint u/s 156 (3) Cr. P. C filed by respondents. On the basis of complaint of respondents as well as status report filed by SHO, Learned Trial Court vide order dated 12.06.2008 observed that there were counter allegations by parties, wherein non- applicants Mazda Begum, Nasim Ahmed and Mohd. Imran level allegations M. T. Malik vs SHO and ors. CR No. 67 of 2012 11 ID No. 02406R0305302012 against complainant black mailing them to extort money. SHO PS Jamia Nagar was directed to register a case FIR no. 183/2008 against Ayaz Ali Khan and Murshid Ali, both brothers of wife of complainant-M. T. Malik. It is submitted that during trial Ayaz Ali Khan and Murshid Ali were declared Proclaimed Offender. It is submitted that proceeding under the State case and Criminal Case u/s 200 Cr. P. C are separate proceedings u/s 210 Cr. P. C and these proceedings are required to be stayed. Learned counsel submits that there was no order to proceed u/s 299 Cr.P. C in the complaint case. It is further submitted that it is a civil nature of dispute between the parties.
24. Before summoning, Otherwise the potential accused have no right to hearing but in this revision, respondents were given opportunity of being heard as application u/s 319 Cr.P. C for impleading them as accused was dismissed.
25. Impugned order whereby application u/s 319 Cr. P. C was dismissed is not an interlocutory order. In "Mohit Alias Sonu and another vs State of Uttar Pradesh and another (2013) 7, SCC 789", it was held that order whereby complainant's application u/s 319 Cr. P. C was rejected, is not an interlocutory order within the meaning of Section 397 (2) Cr. P. C. If a protest petition u/s 156 (3) or 173 (8) Cr.P. C moved by the complainant is dismissed would not lead to automatic dismissal of application u/s 319 Cr.pc. Court can draw independent conclusion at each stage of the case, in accordance with law. The basic requirements for invoking section 319 Cr. P. C. is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused M. T. Malik vs SHO and ors. CR No. 67 of 2012 12 ID No. 02406R0305302012 in that case, has committed an offence for which that person could be tried together with the accused already arraigned. Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First, that the other person has committed an offence and second, is that for such offence that other person could as well be tried alongwith the already arraigned accused. Court has to go through the entire evidence on record, if there is any material on record to proceed further against any other who is not charge sheeted.
26. A discretion is conferred on the Court which can be discerned from the words "the Court may proceed against such person. The discretionary power has to be exercised only to achieve criminal justice. A judicial exercise is called for, keeping in mind entire conspectus of the case, including the stage at which the trial has proceeded and the quantum of evidence collected till then.
27. On perusal of statement of witnesses, this Court finds that observation of Learned Trial that there is no incriminating material against alleged accused persons named in application u/s 319 Cr. P. S is erroneous. FSL report (Ex. CW15/A) on record indicates that Ms Mehvish Malik has not executed the alleged papers of the ownership (Ex. CW2/I to N) pertaining to Naseem Ahmad. FSL report shows signatures of Mehvish malik on the said documents on the basis of which they are claiming ownership, are forged.
28. Therefore, if it has come on record that alleged papers of ownership are forged, therefore the purchasers, who have allegedly purchased from Mehvish Malik, as well as relatives of purchaser who played M. T. Malik vs SHO and ors. CR No. 67 of 2012 13 ID No. 02406R0305302012 their role as well as the witnesses, who signed those prima-facie forged documents in the light of statement of IO/CW-15 who deposed that he had not investigated the case deliberately to safeguard the occupier of the flats and the witnesses and Since the main accused, who were chargesheeted are PO, the complainant's version regarding complicity of other persons requires reconsideration. It is incumbent upon the Court to consider the evidence as a whole and to comprehend the role and complicity of each of the alleged persons, on the anvil of the test noticed above. It has to be borne in mind that in such case, no direct evidence shall be forthcoming. It is from adjoining circumstances considered in its entirety, that the Trial Court has to draw an inference about common intention or conspiracy to cheat and using and preparing forged documents.
29. At this stage of revision, it will not be proper for this Court to examine the evidence minutely and substitute its own opinion except to observe that there is an error apparent on the face of record. Therefore, impugned order dated 27.11.2012 being erroneous, deserves to be set aside and recalled. Consequently, case is remanded back to the learned trial court with direction to properly consider the evidence on record as a whole and decide application u/s 319 Cr. P. C afresh, in accordance with law. 30 Revision petition stands disposed of accordingly. TCR be sent back alongwith a copy of this order. Revision file be consigned to Record Room.
announced in the (Vinay Kumar Khanna) open Court ASJ-04 & Spl. Judge (NDPS) South East, on 01st October , 2013 Saket Courts, New Delhi M. T. Malik vs SHO and ors. CR No. 67 of 2012 14 ID No. 02406R0305302012 M. T. Malik vs SHO and ors. CR No. 67 of 2012 15 ID No. 02406R0305302012 M. T. Malik vs SHO and ors. CR No. 67 of 2012 16