Delhi District Court
Neeraj Jain vs . State I.D. No. 244/18 on 27 November, 2018
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
Neeraj Jain Vs. State I.D. No. 244/18
CNR No. DLSH010065812018 date of institution : 29.09.2018
Criminal Revision No.51/18 decision reserved on: 14.11.2018
PS : EOW Crime Branch date of decision : 27.11.2018
In the matter of
Neeraj Jain son of Late Chaman Lal Jain
resident of C12, Sector30, Noida, (U.P.) ..Revisionist/Petitioner
Versus
State (NCT of Delhi) ...Respondent
J U D G M E N T [On revision petition arising from order dated 26.07.2018 on the point of framing of formal charge by the trial court of Sh. Ajay Garg, Ld. Chief Metropolitan Magistrate, Shahdara, Karkardooma, Delhi in FIR No. 61/2010, PS EOW, Crime Branch, State Vs. Neeraj Jain].
1. (Introduction) There was a chargesheet (followed by supplementary chargesheet consisting FSL result) against petitioner u/ss 420/468/471/406 IPC, however, by order dated 26.7.2018, it was held that charge u/ss 420/471 IPC is made out against petitioner, which was formally framed on 26.7.2018 itself by the trial court. The petitioner is feeling aggrieved by the order of trial court as well as framing of Crl.R. No. 51/18 Neeraj Jain Vs. State Page 1 of 7 formal charge against him and he filed the petition under consideration to assail it.
2.1 (Brief matrix of case) What happened complainant Arvind Kumar Jain and the petitioner/accused Neeraj Jain entered into agreement to sell of property no. D84, Sector 40, NOIDA, UP for total consideration of Rs.90 lakhs. The petitioner in possession of the property represented and shown general power of attorney in his favour and also shown the complainant other original paper to sell it, consequently complainant gave earnest/advance of Rs.25 lakhs to the petitioner. The petitioner/accused had kept original agreement to sell to pursue the authorities for completion transaction. Later the petitioner avoided to materialize the transaction and petitioner had absconded bu located. The matter was reported to the police but not action, later on filing of application U/s 156(3) Cr.P.C., this FIR was registered and investigation was carried, it result into the chargesheet.
In investigation it surfaced that Smt. Laxmi was original allottee of property, however, it was purchased by Shri Ashok Gupta, who further sold it to Shri Vishnu Nath Aggarwal. The said Shri Vishnu Nath Aggarwal appointed the petitioner Neeraj Jain as caretaker of the property as well as he gave original documents to Neeraj Gupta, being property dealer, to see buyer. However, later Neeraj Gupta abandoned it without returning the original papers. These persons in series are arrayed as witnesses (except Smt. Laxmi).
2.2 The trial court analysed the submissions of both sides and came to the conclusion that on the basis of statement of complainant & Crl.R. No. 51/18 Neeraj Jain Vs. State Page 2 of 7 witnesses and FLS result, prima facie it makes out u/s 420/471 IPC and accordingly formal charge was framed.
3.1 (Plea in revision petition) - The petitioner is in his revision petition; also supplemented with oral submissions by Sh. Varun Chugh, Advocate; assails the impugned order and framing of formal charge on many grounds, with certain 'ifs and buts' that investigation is incomplete or improper. There is neither collection of original agreement nor expert opinion against the petitioner, how it could be construed cheating or use of forged document. Nonjudicial stamp paper was issued to BSES. The notary public failed to authenticate attestation of agreement to sell. The trial court passed the order without considering material on record. This is gist of revision petition. Thus, petitioner deserves discharge of charge of section 420/471 IPC by setting aside the impugned order and formal charge.
Moreover, the record was also referred that there is no document in favour of accused collected show that he was owner of the same or ever since entered into any agreement or at least any receipt obtained by complainant for such an huge amount. All these circumstances entitle the petitioner for discharge.
3.2 (Plea of respondent/State) - Whereas on the other side, Sh. Vineet Kumar, Ld. APP for the State has reservations that impugned order is a reasoned order and reasons have been derived from the material on record, the charge is made out as framed and there is nothing to perverse the finding given by the trial court. The contentions raised by the petitioner have been dealt by the trial court in the order.
Crl.R. No. 51/18 Neeraj Jain Vs. State Page 3 of 7Otherwise, grounds as projected in the revision petition are subject matter of appreciation of evidence, it cannot be weighted at this stage. Therefore, for want of any illegality or irregularity in the order or formal charge framed, the revision petition is liable to be dismissed.
4.1 (Findings with reasons) - The contentions of both the sides are considered in the light of provisions of law, the precedent referred and the trial court record (of main chargesheet and supplementary charge sheet) summoned. During submissions it was inquired as to how the petitioner came into possession of that property, it was clarified that petitioner was just a caretaker and later he returned the property to the principal.
While assessing the material from the point of framing of charge or discharge, the criteria is laid down in sections 227/228 of Cr.P.C. and the test is not the proof of ingredients of offence, since it is test after trial. It is to be seen as a prime facie view whether on the face of record, it makes out that the offence has been committed. With this background of law, now the other aspects are taken.
4.2 The revision petition is answered as dismissed for the following reasons :
(i) it will not give any benefit to the accused that original agreement to sell or power of attorney in favour of accused have not been filed with chargesheet, since complainant clearly narrates that he was shown original documents and original agreement to sell was kept by accused to pursue the authorities, Crl.R. No. 51/18 Neeraj Jain Vs. State Page 4 of 7
(ii) Ashok Kumar Gupta and Vishnu Nath Aggarwal are also in the list of prosecution witnesses; Vishnu Nath Aggarwal confirms that he had given possession of property to caretaker Neeraj Jain and also asked him to see its buyer vis a vis for that purposes, he was given original papers. Thus, it is prima facie corroborating the fact of showing original papers to complainant by the petitioner/accused while making deal,
(iii) after registration of FIR, the petitioner/accused persuaded for compromise of matter with the complainant to return Rs.25 lakhs received and a sum of Rs.15 Lakhs was kept with one Mr. Subhash Chand Jain, which was later taken back by petitioner and receipt of was executed; there is statement of S/Shri Subhash Chand Jain, Dhan Kumar Jain and Mahender Kumar Goyal. There is FLS result that the receipt of Rs.15 lakhs is bearing signature of petitioner/accused.
The petitioner's explanation that receipt was pertaining to some other financial transaction will not give him benefit for two reasons first it is his defence, which is yet to be proved and second the prosecution witnesses S/Shri Subhash Chand Jain, Dhan Kumar Jain and Mahender Kumar Goyal talks about compromise of this FIR/transaction of return of amount to the complainant;
(iv) the scientific opinion on agreement to sell could not be given by expert because original agreement to sell was asked for, which was not made available and there is no opinion at all on that document, hence it is subject matter of trial, Crl.R. No. 51/18 Neeraj Jain Vs. State Page 5 of 7
(v) it was lease hold property or it could not be sold or it ought to be verified by the complainant, this will also not help the petitioner/accused at this stage, since it is matter of trial vis a vis original agreement to sell was kept by the petitioner to complete requisite formalities, find mention in the FIR,
(vi) whether separate receipt essential, when agreement to sell does not spell out for issue of separate receipt of Rs.25 lakhs vis a vis in the agreement itself, there was acknowledgment of amount? It is question of trial?,
(vii) the nonjudicial stamp paper was issued in the name of BSES or it was not notarized by concerned Notary Public, whether it will be determinant at this stage, answer will negative in view of other facts of the case,
(viii) by showing documents in original to complainant, a power of attorney in favour of petitioner and also possession of property to the complainant vis a vis to induce him to buy property, knowing well the the petitioner cannot entered into agreement to sell or sell the property or receive amount; is it not punishable cheating and use of those documents? and
(ix) the investigation was or not, proper or complete, it is not within the scope of revision petition as the order assailed is finding on the point of framing of charge.
On these terms revisions petition is disposed off as there is nothing perverse discovered in the said order. However, any expressions given Crl.R. No. 51/18 Neeraj Jain Vs. State Page 6 of 7 in the present order will not be construed any opinion on the merits of the case.
Copy of this judgment alongwith TCR be sent back to trial court forthwith.
Announced in open court today Tuesday, Agrahayana 6, Saka 1940 (Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 27.11.2018 Digitally signed by INDERJEET SINGH INDERJEET Location: Shahdara District, Karkardooma SINGH Courts Date: 2018.11.27 17:13:53 +0530 Crl.R. No. 51/18 Neeraj Jain Vs. State Page 7 of 7