Delhi District Court(2) Raghu Nath Singh vs State on 17 September, 2018Crl. Revision No. 56114/2016

        IN THE COURT OF MS. SMITA GARG, 
 ADDITIONAL  SESSIONS JUDGE ­ FAST TRACK COURT, 
    WEST DISTRICT, TIS HAZARI COURTS, DELHI. 

Crl. Revision No. 56114/2016
CNR No. DLWT01­002950­2015
 
In re: 
          
(1)      Babu Lal 
          S/o Late Sh. Lok Man Ram, 
          R/o B­2/39, Paschim Vihar, 
          New Delhi

(2)      Raghu Nath Singh
           S/o Sh. Tula Ram, 
           R/o WZ­359, V&PO,  
           Naraina, New Delhi                               ...... Petitioners

                               Versus 
        State                                             .......Respondent 


        Date of filing of revision petition      :  20.11.2015
        Date of pronouncement of judgment   :  17.09.2018

JUDGMENT:1.     This revision petition underSection 397CrPC lays challenge to
       order dated 24.08.2015 and 28.09.2015 passed by the Ld. MM­Babu Lal & Anr.  v. State                                 Page No.  1/ 13Crl. Revision No. 56114/201607 (West) in State case arising out of FIR No. 426/09 P.S.
       Paschim Vihar whereby charges for the commission of offences
       underSection 468/471/420/120BIPC were framed against the
       petitioners herein.2.     The brief background relevant for the disposal of the revision
       petition is as under:2.1    The complainants, Suresh Kumar and Ramesh Kumar, are the
       younger brothers of the petitioner no.1 herein. On 29.06.2009,
       they filed a complaint case underSection 200CrPC alongwith
       an application underSection 156 (3)CrPC against the petitioner
       no.1 and Delhi Development Authority alleging that on
       03.12.1981, they had purchased the property bearing no. B­2/39,
       Paschim Vihar, Delhi (hereinafter referred to as 'the property in
       question') from one Raghunath Singh (i.e. the petitioner no.2)
       against consideration and that Raghunath Singh had executed
       one Agreement to Sell, Special Power of Attorney, General
       Power of Attorney, Will and a registered Receipt of Payment all
       dated 03.12.1981 in their favour; that after the purchase of
       property in question, the entire joint family started residing
       therein but as the family grew, the complainants shifted to
       separate accommodations and petitioner no.1 continued to liveBabu Lal & Anr.  v. State                                Page No.  2/ 13Crl. Revision No. 56114/2016in the property in question; that upon coming to know in the
       year 1999 that the petitioner no.1 had applied with DDA for
       conversion of the property in question from lease hold to free
       hold in his name, the complainants made enquires and found
       that the petitioner no.1 had furnished the forged copy of
       Agreement to Sell, Special Power of Attorney and General
       Power of Attorney alongwith a false affidavit dated 23.12.1999
       of petitioner no.2 with DDA for the purpose of said conversion. 
2.2    Vide order dated 12.10.2009, Ld. MM allowed the application
       underSection 156(3)CrPC preferred by the complainants and
       directed SHO P.S Paschim Vihar to register an FIR and
       investigate the case. Pursuant thereto, the present FIR no.
       426/09     U/s    420/468/471/120BIPCwas    registered      on
       14.10.2009. Investigation was undertaken. During the course of
       investigation, the statement of the complainants were recorded
       wherein they alleged that the petitioner no.1 Babu Lal had
       inserted his name in place of the name of the complainant
       Ramesh Kumar by erasing the same in the agreement to sell
       dated 03.12.1981 and had applied for the conversion of the
       property in question from lease hold to free hold on the basis of
       the said document. They also provided the copy of a declaration
       dated 24.03.2009 made by the petitioner no.2 wherein he hadBabu Lal & Anr.  v. State                                Page No.  3/ 13Crl. Revision No. 56114/2016acknowledged that he had executed the agreement to sell dated03.12.1981 in favour of the complainant Ramesh Kumar. The
       investigating agency collected from DDA the copy of the
       agreement to sell dated 03.12.1981 submitted by the petitioner
       no.1 and sent it to FSL for examination. As per the FSL report
       dated 31.01.2012, marks of eraser/alteration were observed in
       the document. After the completion of investigation, charge­
       sheet was filed by the police against the petitioner no.1 on
       06.10.2012. Petitioner no.2 was kept in column no. 12 as
       suspect.2.3    Ld. MM took cognizance of the offences and summoned the
       petitioner no.1 & 2 on 30.11.2012 and 22.03.2013 respectively.
       After considering the police report underSection 173CrPC and
       the documents annexed thereto, the Ld. MM was of the opinion
       that charges for the commission of offences punishable underSection 468/471/420/120BIPC were made out against the
       petitioners. Pursuant to order on charge dated 24.08.2015, the
       charges were framed against the petitioners on 28.09.2015.
            Aggrieved therefrom, the petitioners have preferred the
       present revision petition.3.     I have heard the counsel for the petitioners, APP for the StateBabu Lal & Anr.  v. State                               Page No.  4/ 13Crl. Revision No. 56114/2016and counsel for complainants. The trial court record has also
       been perused.4.     The counsel for the petitioners has submitted that the petitioner
       no.1 had purchased the property in question on 03.12.1981
       from the petitioner no.2, who was the original allottee from
       DDA and that at the time of purchase, the petitioner no.2 had
       executed Agreement to Sell, Affidavit, Special Power of
       Attorney, General Power of Attorney in favour of petitioner
       no.1 but the petitioner no.1 had got executed Receipt of
       payment and Will        from petitioner no.2 in favour of the
       complainant Ramesh Kumar as at that time, the family was
       living as a single unit under the guardianship of petitioner no.1.
       He submitted that with the passage of time, both the
       complainants shifted from the property in question as they had
       no right in the same but on coming to know that the petitioner
       no.1 had applied with DDA for conversion of the property from
       lease hold to free hold in his name on the basis of General
       Power of Attorney and Agreement to Sell dated 03.12.1981, the
       complaint case was filed by the complainants. The counsel for
       the petitioners assailed the order on charge on the ground that
       the same has been passed by the trial court in a mechanical andBabu Lal & Anr.  v. State                                Page No.  5/ 13Crl. Revision No. 56114/2016routine manner without appreciating the fact that the FSL report
       dated 31.01.2012 rules out any interpolation in the name of the
       purchaser and falsifies the allegation of the complainants that
       the petitioner no.1 had erased the name of the complainant
       Ramesh and in its place, got inserted his name. He contended
       that the trial court completely ignored that FSL report which
       establishes that the name of the petitioner no.1 (i.e. Babu Lal)
       was not added after erasing some name but the marks of
       eraser/alteration were between the space after the word "Babu
       Lal" and before the word "S/o" and that the words which were
       alleged to have been erased was innocuous in nature. He argued
       that the trial court also failed to consider that while the
       signatures of the petitioner no. 1 & 2, which appear on both the
       pages, have not been disputed, there is no signature of the
       complainant Ramesh Kumar on the document in question and
       that the complainants had failed to produce any agreement to
       sell in their favour. On the basis of above submissions, it has
       been sought that the orders dated 24.08.2015 and 28.09.2015 be
       set aside and the petitioners be discharged in the case.On the other hand, APP for the State, being assisted by the
       counsel for the complainants, contended that there is noBabu Lal & Anr.  v. State                                  Page No.  6/ 13Crl. Revision No. 56114/2016infirmity or illegality in the order passed by the Ld. MM and
       therefore, the revision petition is liable to be dismissed.5.     It is trite that at the stage of framing of charge, the court is
       required to evaluate the material and documents on record with
       a view to find out if the facts emerging therefrom, taken at their
       face value, disclose the existence of all the ingredients
       constituting the alleged offence. At that stage, the court is not
       expected to go into the probative value of the material on
       record. What needs to be considered is whether there is a ground
       for presuming that the offence has been committed and not a
       ground for convicting the accused has been made out. Even
       strong suspicion founded on material which leads the court to
       form a presumptive opinion as to the existence of the factual
       ingredients constituting the offence alleged would justify the
       framing of charge against the accused in respect of commission
       of that offence.InUnion of India v. Prafulla Kumar SamalAIR
       1979 SC 366, the Hon'ble Apex Court laid down the following
       principles to be kept in mind while considering the aspect of
       charge:Babu Lal & Anr.  v. State                                   Page No.  7/ 13Crl. Revision No. 56114/2016(i)       That the Judge while considering the question of framing the
               charges underSection 227of the Code has the undoubted power to
               sift and weigh the evidence for the limited purpose of finding out
               whether or not a prima facie case against the accused has been
               made out;(ii) Where the materials placed before the Court disclose grave
          suspicion against the accused which has not been properly
          explained the Court will be fully justified in framing a charge and
          proceeding with the trial;(iii) The test to determine a prima facie case would naturally depend
           upon the facts of each case and it is difficult to lay down a rule of
           universal application. By and large however if two views are
           equally possible and the Judge is satisfied that the evidence
           produced before him while giving rise to some suspicion but not
           grave suspicion against the accused, he will be fully within his
           right to discharge the accused; and(iv) That in exercising his jurisdiction underSection 227of the Code
          the Judge which under the present Code is a senior and
          experienced Court can not act merely as a Post­Office or a mouth­
          piece of the prosecution, but has to consider the broad
          probabilities of the case, the total effect of the evidence and the
          documents produced before the Court, any basic infirmities
          appearing in the case and so on. This however does not mean that
          the Judge should make a roving enquiry into the pros and cons of
          the matter and weigh the evidence as if he was conducting a trial.6.         Before going into the factual aspect of the case, it would be
           appropriate to note the essential ingredients of the offences in
           question.Section 415IPC defines cheating thus:"415. Cheating­ Whoever, by deceiving any person,Babu Lal & Anr.  v. State                                         Page No.  8/ 13Crl. Revision No. 56114/2016fraudulently or dishonestly induces the person so
                 deceived to deliver any property to any person, or to
                 consent that any person shall retain any property, or
                 intentionally induces the person so deceived to do or omit
                 to do anything which he would not do or omit if he were
                 not so deceived, and which act or omission causes or is
                 likely to cause damage or harm to that person in body,
                 mind, reputation or property, is said to Cheat."Explanation­ A dishonest concealment of facts is a
                 deception within the meaning of this section.Section 468IPC prescribes punishment for the offence of
       forgery for the purpose of cheating. Forgery has been defined inSection 463IPC as under:"463. Forgery­Whoever makes any false documents or
                 false electronic record or part of a document or
                 electronic record, with intent to cause damage or injury,
                 to the public or to any person, or to support any claim or
                 title or to cause any person to part with property, or to
                 enter into any express or implied contract, or with intent
                 to commit fraud or that fraud may be committed
                 commits forgery."Using as genuine a forged document is punishable underSection 471IPC. It provides:"471. Whoever fraudulently or dishonestly uses as
                genuine any document which he knows or has reason to
                believe to be a forged document shall be punished in the
                same manner as if he had forged such document."Section 120AIPC defines the offence of Criminal Conspiracy,
       which is punishable underSection 120BIPC:Babu Lal & Anr.  v. State                                       Page No.  9/ 13Crl. Revision No. 56114/2016"120A­When two or more persons agree to do, or cause
                 to be done:­(i) an illegal act, or(ii) an act which is not illegal by illegal means, such an
                 agreement is designated a criminal conspiracy.Provided that no agreement except an agreement to
                 commit an offence shall amount to a criminal
                 conspiracy unless some act besides the agreement is
                 done by one or more parties to such agreement in
                 pursuance thereof.Explanation­ It is immaterial whether the illegal act is
                 the ultimate object of such agreement, or is merely
                 incidental to the object.7.     Upon testing the First Information Report, statements recorded
       underSection 161CrPC and other material on record on the
       touchstone of the principleslaid down bythe Superior Courts,
       there can be no doubt that there exist the grounds to presume
       that the petitioners have committed the offences underSection
       468/471/420/120Bof Indian Penal Code. At this stage, the case
       of the prosecution can not be thrown out by disbelieving the
       allegations levelled by the complainants. Admittedly, the
       petitioner no.2 was the original allottee of the property in
       question from DDA and had executed the documents for
       sale/transfer of the property in question on 03.12.1981. Out of
       the documents so executed, one Will and Receipt of paymentBabu Lal & Anr.  v. State                                     Page No.  10/ 13Crl. Revision No. 56114/2016both dated 03.12.1981 executed in favour of the complainant
       Ramesh Kumar were duly registered with the office of Sub­
       Registrar, Kashmiri Gate and one GPA dated 03.12.1981
       executed by the petitioner no.2 in favour of petitioner no.1 was
       duly registered with office of Sub­Registrar, Noida, Gautam
       Budh Nagar. The remaining documents including the agreement
       to sell dated 03.12.1981, which is the document in question,
       were the unregistered documents. Since the copy of the
       agreement to sell dated 03.12.1981, attested on 24.09.1999, was
       submitted by the petitioner no.1 with the office of DDA for the
       purpose of conversion of the property in question from lease
       hold to free hold in his favour, notice underSection 91CrPC
       was given to him during the course of investigation to produce
       the original document. However, the petitioner no.1 failed to
       produce the original agreement to sell and took contradictory
       stands for the non production thereof. Initially, he stated that the
       original document had been filed in a civil suit between the
       parties pending before the Hon'ble High Court of Delhi but later
       on, he alleged that it had been stolen from his house by the
       complainant Suresh Kumar. Here it is pertinent to observe that
       no complaint had been lodged by the petitioner no.1 against the
       complainant Suresh Kumar qua the alleged theft. The copy ofBabu Lal & Anr.  v. State                                 Page No.  11/ 13Crl. Revision No. 56114/2016agreement to sell dated 03.12.1981 furnished by the petitioner
       no.1 with the office of DDA was sent to FSL for examination.
       In respect of the first paragraph on the first page of the
       document, FSL opined as under in its report dated 31.01.2012:"I. The type writings in the red enclosed portion marked
                 'Y' tally with the rest of the type writings of exhibit Doc.
                 marked 'X' in size, design, relative location of
                 corresponding characters/words and also the
                 corresponding character/words superimpose over each
                 other.II. The marks of eraser/alteration are observed in the
                 type writings marked 'Y' between the words 'Include' &
                 'Successors' at IInd line and 'Shri Babu Lal' & 'S/o' at
                 IIIrd Line. "It is the case of the prosecution that after erasing the name of the
       complainant Ramesh Kumar, the petitioner no.1 inserted his
       name Babu Lal in its place. Since the original document was not
       produced by the petitioner no.1, it could not be ascertained if the
       words 'Babu Lal' had been typed after erasing the words
       'Ramesh Kumar' but the eraser mark observed in the space
       between the words 'Babu Lal',(which has 7 alphabets as against
       the word 'Ramesh Kumar' which has 11 alphabets) and the word
       'S/o' in the copy of the agreement to sell does indicate that some
       alteration in the document had been made. It is the petitioner
       no.1, who had submitted the said copy of the agreement to sellBabu Lal & Anr.  v. State                                       Page No.  12/ 13Crl. Revision No. 56114/2016with DDA and would have been the beneficiary of the
       conversion of the property in question in his name by DDA.
       Apart from the FSL report dated 31.01.2012, the investigation
       agency had also collected a report of a private handwriting
       expert from the complainants, which is also against the
       petitioner no.1 and forms part of the charge sheet. Further, the
       declaration dated 24.03.2009 made by the petitioner no.2 in
       favour of the complainant Ramesh Kumar also lends support to
       the case of the prosecution. Considering all the above material
       on record, the trial court rightly formed the opinion that prima
       facie case was made out for framing charges for the commission
       of offences underSection 468/471/420/120BIPC against the
       petitioners.8.     In the light of above discussion, I find no infirmity in the orders
       dated 24.08.2015 and 28.09.2015 passed by the Ld. MM. The
       revision petition is without merits and is, accordingly,
       dismissed.File of revision petition be consigned to record room.Digitally signedSMITA   by SMITA GARGDate:GARG    2018.09.18
                                                     17:17:30 +0530


Announced in the open court                             (Smita Garg)
on 17.09.2018                           Addl. Sessions Judge­FTC, (West)
                                                Tis Hazari Courts, Delhi.Babu Lal & Anr.  v. State                                    Page No.  13/ 13