1 IN THE COURT OF SHRI A.K.KUHAR ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT SAKET COURT COMPLEX, NEW DELHI Crl. Rev. No. 18/15 [ENTITY] S/o Late Shri Mangal Sain Sharma R/o CC-140/A, Shalimar Bagh New Delhi Petitioner VERSUS The [ENTITY] (Govt. of NCT of Delhi) Respondent Computer ID No: 02406R0309432015 Date of institution : 28.09.2015 Date of arguments : 08.02.2016 Date of order : 11.02.2016 ORDER
1. By this order I shall dispose of the Criminal Revision petition under [SECTION] [ACT] read with [SECTION] [ACT] challenging order dated 16.05.2015, whereby the Ld. CMM (South), [ENTITY] has framed charges against the petitioner for the offences under [SECTION] [ACT], [SECTION] [ACT] and [SECTION] [ACT] in FIR No. 73/08 of PS-EOW. Notice of the revision was issued to the [ENTITY]. Trial Court Record (TCR) was summoned for perusal.
2. I have heard the arguments from the Ld. counsel for the petitioner as well as from the Ld. Additional Public Prosecutor. Before adverting to the submissions made by them, the allegations against the revisionist in the FIR No. 73/08 may be considered.
3. This FIR has been registered on the complaint of Captain [ENTITY]. He made a complaint that he met Sh. [ENTITY] (accused/revisionist) through one [ENTITY] and [ENTITY], who had retired from Punjab National Bank and [PRECEDENT] [ENTITY] vs. [ENTITY] was doing the work of property dealing. The complainant [ENTITY] wanted to purchase a property and he was told by the accused/revisionist that he knows one Wing Commander [ENTITY], who is willing to sell his property no. E-14/4A, Vasant Vihar, New Delhi. The complainant was shown title documents in respect of the said property by the accused/revisionist. The consideration amount of Rs. 4 Crore was agreed upon. The complainant then paid Rs. 5 Lacs in cash to the accused/revisionist on 24-25 February, 2006. In token of receipt of this amount, he signed one paper slip acknowledging the receipt of Rs. 5 Lacs. After some time, the accused/revisionist asked the complainant for a sum of Rs. 25 Lacs as token money on behalf of Wing Commander [ENTITY]. The complainant, therefore, gave a crossed cheque of Rs. 25 Lacs bearing no. 473026 dated 12.05.2006 drawn on Union Bank of India, New Delhi in favour of Wing Commander [ENTITY]. The complainant was assured that the cheque will be handed over to Wing Commander [ENTITY] and thereafter, he would sign the Agreement to Sell/Memorandum of Understanding with regard to sale of property no. E-14/4A, Vasant Vihar, New Delhi. The balance amount of Rs. 3.54 Crores was to be paid within 70 days from 25.02.20906. There after the accused/revisionist did not make contact with the complainant. After about 10 days, the complainant was assured that memorandum/agreement would be signed by Wing Commander [ENTITY] and thereafter, the cheque will be presented for encashment. However, when the complainant inquired from his bank, he learnt that the cheque has already been encahsed by Wing Commander [ENTITY] on 24.05.2006 without signing of Agreement to Sell and Memorandum of Understanding. This cheque was encashed through Punjab National Bank, Shalimar Bagh Bank, New Delhi. After some time the accused/revisionist gave a Memorandum of Understanding signed by Wing Commander [PRECEDENT] [ENTITY] vs. [ENTITY] Singh Nayar with regard to sale of property in question on 28.09.2006 in presence of Mr. [ENTITY] and [ENTITY]. In this MOU, it is mentioned that cheque no. 473026 dated 12.05.2006 was an advance for the property to [ENTITY]
4. The complainant also stated that he had also purchased one property from the accused/revisionist i.e. D-419/420 Measuring 380 Square Yards in Swarup Nagar Colony, Village-Libas Pur, Delhi for a sum of Rs. 1,60,000/- and the Sale Deed for this property was executed on 28.09.2006 before the Sub-Registrar, Narela, Delhi. The complainant again met the accused/revisionist in December, 2006 and informed him that he is ready to make the payment and asked for execution of Sale Deed. However, he was informed by the accused that the owner Wing Commander [ENTITY] was in the process of getting the property free hold and settling family dispute. Ultimately, the complainant issued a legal notice on 15.09.2007 to Wing Commander [ENTITY] and the accused/revisionist.
5. Wing Commander [ENTITY] replied to the notice through his counsel stating that he never authorised the accused/revisionist [ENTITY] to make a deal with regard to his property i.e. E-14/44. Vasant Vihar. He also stated that the cheque of Rs. 25 Lacs was not encashed by him. The accused/revisionist [ENTITY] also replied to this notice and took the plea that this amount of Rs. 25 Lacs by way of a cheque was received by him towards consideration for the sale of property at Village-Libas Pur and this cheque was encahsed in the joint account pertaining to [ENTITY], the accused/revisionist and [ENTITY].
6. On this complaint the FIR was registered by EOW Cell and during the investigation it transpired that the account in the joint name of [ENTITY] and [ENTITY] was [PRECEDENT] [ENTITY] vs. [ENTITY] opened on 22.05.2006 wherein [ENTITY] himself has introduced the said [ENTITY] and this cheque was presented and encashed on 24.05.2006. Further investigation from the Rationing Authority, revealed that the Ration Card No. 722391 dated 26.09.1993 in the name of [ENTITY], was used for opening this account. However, the office of Food and Supply Circle-20 Rajapur village informed that this Ration Card was never issued by their office. It was also found that the account was opened in the joint name of revisionist and [ENTITY] son of [ENTITY]. The father's name of Wing Commander [ENTITY] also happens to be [ENTITY]. The accused [ENTITY] has given a letter to the Manager of Punjab National Bank that Wing Commander [ENTITY], son of Sh. [ENTITY] was his [ENTITY] and he was residing at D-149, Swarup Nagar, Delhi.
7. During the further investigation, the signatures of the accused [ENTITY] were tallied with the signature on receipt of Rs. 5 Lacs dated 25.02.2006 and his admitted signatures and as per the FSL report, receipt bears the signature of the accused. With regard to the signature of Wing Commander [ENTITY] on the Memo of Understanding dated 27.09.06, the FSL, [ENTITY] report opined that the signatures were of Wing Commander [ENTITY], but the second opinion was given by the CFSL, Lodhi Road as per which the questioned signatures mark Q-90 and 93 on this Memorandum of Understanding did not tally with the admitted signatures of Wing Commander [ENTITY].
8. In nut shell allegation against the applicant/accused is that he cheated the complainant of Rs. 30 Lacs on the pretext of selling of the property no. E-14/4A, Vasant Vihar, New Delhi, which was owned by Wing Commander [ENTITY] and secondly he got opened an account in the joint name with one [ENTITY] at Punjab National Bank, Shalimar Bagh by introducing him in the [PRECEDENT] [ENTITY] vs. [ENTITY] bank and by furnishing the fake identity proof of his ration card.
9. The Ld. counsel for the revisionist has argued that it is a false case registered against the petitioner. He submitted that the investigating agency tried to frame up the accused/revisionist by procuring the CFSL report qua signatures of [ENTITY] on the Memo of Understanding. He also submitted that the payment of Rs. 25 Lacs vide cheque no. 473026 dated 12.05.2006 was received by him on account of sale of his house situated at Swarup Nagar Colony, Village-Libas Pur to the complainant [ENTITY]. He argued that in fact it is the revisionist, who has been cheated by the property dealers. He argued that the revisionist was forced to get the sale deed executed in favour of [ENTITY] for a paltry sum of Rs. 1,60,000/- for a 380 Square Yards plot, while the value of this plot is in Crores. He submitted that this itself shows the manipulation and fabrication on behalf of complainant and his accomplices. The Ld. counsel submitted that when the revisionist received the notice from [ENTITY], he sent a reply wherein he stated all these facts.
10. The learned counsel for the revisionist has also submitted that the police had not conducted proper investigation and overlooked the complaint made by the revisionist, which led to the registration of FIR No. 157/08. He submitted that the receipt dated 25.02.2006 and the Memorandum of Understanding dated 27.09.2006 are forged documents. He submitted that the Memorandum of Understanding dated 27.09.2006 in respect of property no. E-14/4A [ENTITY] is not signed by the petitioner/ revisionist. He also submitted that the allegations of making payment of Rs. 5 Lacs on 25.02.2006 to the petitioner does not find mention in the notice dated 15.09.2007 issued by the complainant.
11. Ld. counsel for the revisionist relied upon the following judgments in support of his contentions :-
(i) [ENTITY] vs. N.M. Jain in Crl. Rev. P. 586/2004 [PRECEDENT] [ENTITY] vs. [ENTITY] (ii) [PRECEDENT] in Crl. [CASE NUMBER] (iii) [PRECEDENT] (iv) [PRECEDENT] (v) [PRECEDENT] (vi) Rakesh Kumar Gupta vs. [ENTITY] 2010 (1) JCC 433
12. The position of law on framing of charge is well settled. In a Magistrate triable offence in warrant cases, an accused sent for trial can be discharged under [SECTION] [ACT] if the charge is found to be groundless. If the Magistrate is of the view that "there is a ground for presuming that the accused has committed an offence triable under the chapter." He shall frame a charge in writing. Therefore, at this stage, Court does not appreciate the material and evidence on record to ascertain whether they are sufficient for the conviction of the accused. At this stage, if the material on the record shows a prima facie case, then the framing of charge would be justified. In the case [PRECEDENT], the Hon'ble Supreme Court has expressed its view that "The first to determine a prima facie case would naturally depend upon the fact 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 give rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused."
13. Thus, if the material on the record gives rise to "grave suspicion" then the framing of charge would be justified. [SECTION] [ACT] require a Magistrate to consider the police report and the documents sent with it under [SECTION] [ACT] If after considering this material, the Magistrate forms the view that the charge against the accused is "groundless", he would be justified to discharge the accused. The Magistrate can therefore, sift and weigh the evidence for limited purpose of finding out whether or not a prima facie case [PRECEDENT] [ENTITY] vs. [ENTITY] has been made out.
14. Now coming to the facts of the present case, the Ld. CMM in the impugned order dated 12.02.2015 has considered the facts of the case and has laid emphasis on the handwriting expert opinion which says that the accused had received Rs. 5 Lacs and the said Wing Commander [ENTITY] has not owned the signatures on the Memorandum of Understanding dated 27.09.2006 handed over by the revisionist to the complainant.
15. The Ld. Additional Public Prosecutor has drawn the attention of the Court to the account opening documents whereby a joint account was opened in Punjab National Bank by the accused with one [ENTITY]. He submitted that the accused has introduced [ENTITY] and had placed a ration card with the bank, which was found to be fake. Not only that, he has also submitted his own election I card and PAN card at the time of opening of this account. He has also placed one photograph of [ENTITY] alongwith his own photograph on the documents. Not only that he has also issued a letter addressed to Chief Manager of Punjab National Bank, Rajendra Place wherein he mentioned that [ENTITY], son of [ENTITY] is working with him as [ENTITY] and he is residing at D/149, Swarup Nagar, Delhi. It is pertinent to note that D/149, Swarup Nagar is the same house, which the revisionist claimed to have sold to complainant forcibly under pressure. The FSL report allso shows that the letter dated 20.05.2006 addressed to Chief Manager of Punjab National Bank, Rajendra Place has been signed by the accused [ENTITY] and the FSL Report also confirmed that the account opening form in the joint name of [ENTITY] and [ENTITY] also bear the signatures of the accused/revisionist.
16. The Ld. Addl. Public Prosecutor has therefore, argued that the amount of Rs. 25 Lacs has been credited in the joint account [PRECEDENT] [ENTITY] vs. [ENTITY] opened by the accused/revisionist with the said [ENTITY] which appeared to be the fictitious person.
17. I have taken into account the submissions made by the Ld. counsel for the revisionist. He has a different version of the case. As per his submissions, it is the revisionist, who has been cheated by [ENTITY] and Wing Commander [ENTITY]. With regard to the payment of Rs. 25 Lacs by the cheque, he had taken the plea that his amount was in fact for the sale of his house to [ENTITY], but now they have concocted a different story.
18. This case has a complex factual matrix and it is only at the trial that the real truth will come out. Unless all the persons are examined in the Court and the truth is extracted from them, one cannot assume merely on the basis of submissions in the Court that the revisionist/accused has been falsely implicated in this case. The Ld. CMM has framed a charge after considering the factual matrix, which does not justify the opinion at this stage that the charge is "groundless" against the revisionist.
19. In view of above, I do not find any illegality in the impugned order dated 16.05.2015 of framing of charge against the revisionist for the offence punishable under [SECTION] [ACT]. Therefore, the revision petition stands dismissed.
20. Trial Court Record (TCR) be sent back with a copy of this order.
21. The criminal revision file be consigned to Record Room Announced in the open Court on 11th February, 2016 ([ENTITY]) Special Judge (NDPS) South District: [ENTITY] [PRECEDENT] [ENTITY] vs. [ENTITY]