Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 1 of 40 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 13.04.2010 % Judgment delivered on: 17.05.2010 + CRL.REV.P. 832/2006 JITENDER NATH ..... Petitioner Through: Dr. Harish Uppal, Advocate. versus RAM PHAL BANSAL & ANR. ..... Respondents Through: Mr. Manoj Ohri, APP for the State with Insp. Mukesh Tyagi, EOW. Mr. K.K.Sud, Senior Advocate with Mr. Navin Chawla, Mr. Rajiv Awasthi and Mr. Kunal Malhotra, Advocates for respondent no.2. AND CRL.M.C. 7311-15/2006 RAJNEESH GOENKA & ORS. ..... Petitioners Through: Mr. K.K.Sud, Senior Advocate with Mr. Navin Chawla, Mr. Rajiv Awasthi and Mr. Kunal Malhotra, Advocates. versus STATE & ANR. ..... Respondents Through: Mr. Manoj Ohri, APP for the State with Insp. Mukesh Tyagi, EOW. Dr. Harish Uppal, Advocate for respondent no.2. CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? : No 2. To be referred to Reporter or not? : Yes 3. Whether the judgment should be reported in the Digest? : Yes Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 2 of 40 J U D G M E N T VIPIN SANGHI, J. CRL R.P. NO.832/2006 & CRL MC NOS.7311-15/2006 1. By this judgment, I propose to dispose of the aforesaid two petitions. 2. Crl. R.P. No.832/2006 has been preferred by Shri Jitender Nath under section 397 read with section 401 and 403 and section 482 of the Cr. P.C with a prayer to set aside that portion of the order dated 15.9.2006 passed by the learned Metropolitan Magistrate, whereby he has refused to take cognizance of the offence allegedly committed by respondent no.1, Sh. R.P. Bansal under section 201 IPC read with section 120B IPC and, consequently, to issue summons to respondent no.1, who had been named in the charge sheet as accused no.7 in column no.4. 3. Crl M.C. No.7311-15/2006 has been preferred by the petitioners, viz. Rajneesh Goenka, Sh. B.K. Rana, Sh. Kamal Gaind, Sh. S.R. Chanan and Sh. Sewak Balkishan Gupta, who are named as accused Nos.2 to 6 (not necessarily in the same order) in the charge sheet filed in the Court of the Metropolitan Magistrate, to seek quashing of FIR No.119/1997 under section 448/468/471/120B IPC registered at police station, Chittaranjan Park, New Delhi (investigated by the Crime Branch) and the proceedings emanating therefrom. They also challenge the summoning order dated 15.9.2006 passed by the learned Metropolitan Magistrate, New Delhi pursuant to filing of the Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 3 of 40 charge sheet, summoning the petitioners/accused under sections 420/448/471/120B IPC. Both the petitions relate to the same FIR and charge sheet. 4. I have heard the arguments of learned counsels in both the petitions and proceed to decide the same by this common judgment. 5. The petitioners in Crl. M.C. Nos.7311-15/2006, who are accused in case FIR No.119/1997 as aforesaid, claim to be the elected representatives of the society called “Shri Sanatan Dharam GK-II Sabha”, which is a registered society under the Societies Registration Act. It is stated that the society has approximately 1400 members and its aims and objects (as per the rules and regulations of the society) are to run a temple, a charitable dispensary, a library, a school and to hold various social and religious activities. The affairs of the society are run from a temple known as Sanatan Dharam Mandir, Greater Kailash- II, New Delhi which is situated on a land admeasuring about 2 acres. The said society is functioning for more than 30 years. 6. The petitioners allege that respondent no.2 viz. Shri Jitender Nath was earlier in control of the affairs of the society for more than 20 years. It is alleged that respondent no.2 used his influence and muscle power for carrying out illegal activities and misappropriation of funds, and used the said temple for his personal gains and benefits. It is alleged that the petitioners and other members submitted a requisition to the then General Secretary, Sh. S.M. Aggarwal for holding an Extraordinary General Body Meeting. The Extraordinary General Body Meeting was called on 2.3.1997 and the members present in the Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 4 of 40 meeting decided to form an ad-hoc committee. It is also alleged that it was further resolved unanimously, that free and fair elections should be held within two months from 2.3.1997. The petitioners claim that petitioner no.1 was elected as the President of the ad-hoc committee. It is stated that free and fair elections were held on 19.4.1997 and the newly elected executive committee took over charge from the ad-hoc committee. It is further alleged that respondent no.2 fearing defeat in the elections, did not participate in the election process. 7. On 10.03.1997, respondent no.2 made a complaint to the local police which was registered as FIR No.119/1997 under section 448 IPC at police station Chittaranjan Park, New Delhi. In the said complaint, it had, inter alia, been alleged that Sh. Rajneesh Goenka and others, on their own, without serving any notice to the General Secretary under clause 12(c) of the constitution of the Sabha called a so-called General Body Meeting and got themselves appointed as President and members of the ad-hoc committee as per their version. It was alleged that no General Body Meeting was ever held. It was alleged that the executive committee is not being allowed to function independently because Sh. Rajneesh Goenka and others had stationed their goondas in the Mandir. It was alleged that the goonda elements deployed by Sh. Rajnish Goenka and others had tampered with the cash chest, almirahs, Secretary’s almirahs which were locked and the keys whereof were with the complainant and others. It was alleged that criminal trespass had taken place, for which a regular complaint had been made on 04.03.1997 to the S.H.O., P.S. C.R. Park, New Delhi. Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 5 of 40 8. It appears that on the basis of the investigation (earlier conducted by the local police of P.S. Chittaranjan Park, which was later transferred to the Economic Offence Wing, Crime Branch) the charge sheet dated 17.03.2006 was filed by the investigating agency, inter alia, alleging that the petitioners had forged three documents, namely, the requisition dated 3.1.1997 for holding Extraordinary General Body Meeting and fresh elections, purportedly signed by 31 persons; notice dated 4.2.1997 purportedly fixing the Extraordinary General Body Meeting on 2.3.1997, allegedly signed by 36 persons; and the attendance register dated 2.3.1997, allegedly signed by 61 persons, and Sh. Ram Phal Bansal committed the offence under section 201 read with section 120B by causing the disappearance of the aforesaid documents. 9. The charge sheet narrates that on the basis of the investigation conducted and bank records, Section 420 I.P.C. was added on 03.03.1998 after material was collected to the effect that a new account in the name of Sanatan Dharam Greater Kailash-II Sabha had been opened at State Bank of Indore, G.K.-II and was being operated instead of the old bank account in the name of Sanatan Dharam,Greater Kailash-II Sabha. As per the charge sheet, as the case was based upon three documents, namely, (i) requisition dated 03.01.1997 to the General Secretary of the Sabha for holding general body meeting and the elections purportedly signed by 31 signatories; (ii) notice dated 04.02.1997 purportedly signed by 36 persons for attending the general body meeting on 02.03.1997 and (iii) extract of Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 6 of 40 attendance register dated 02.03.1997 purportedly signed by 62 persons, during investigation Sh. B.K. Rana, Sh. Sevak Bal Kishan Gupta, Sh. Rajnish Goenka, Sh. S.R. Chauhan and Sh. Kamal Gaind were interrogated at length and their specimen signatures and writings were obtained in the light of the three disputed documents. Similarly, the specimen signatures of various persons/members who are named in the three disputed documents were also obtained and the same were referred to GEQD/Chandigarh. Efforts were made to procure the originals of the three disputed documents, but the accused persons did not produce the same. The stand taken by the accused persons was that the documents were sent to the office of their Advocate Sh. R.P. Bansal. 10. As per the charge sheet, the requisition dated 03.01.1997 was purportedly signed by 31 members/signatories most of whom had denied their signatures on this requisition in their statements recorded under Section 161 Cr. P.C. Sh. S.M. Aggarwal, the then General Secretary of the Sabha, had also denied receiving any such requisition. The charge sheet also noted that a look at these three disputed documents showed that most of the names appear in the same serial number, which showed that the documents were signed in one go. These documents had initially been signed by Sh. Rajnish Goenka, meaning thereby that these documents had originated through him. One Sh. S.S. Verma had also sworn an affidavit dated 10.04.1997 stating that all the signatures at serial Nos.51 to 60 on the attendance register were taken at their residence (S-361, Greater Kailash-II), and Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 7 of 40 they did not attend any general body meeting. In the attendance register dated 02.03.1997 the name of Sh. R.L. Mathur appeared at two serial numbers i.e. 11 & 62. 11. The charge sheet further notes that in Crl. M. (Main) No.661/2008 i.e. the bail application/petition of Sh. Rajnish Goenka, the counsel for the accused Rajnish Goenka, viz. Sh. R.P. Bansal had assured the Court in the hearing held on 05.05.1998 that the necessary documents shall be supplied and that the petitioner shall cooperate with the prosecution, but on 05.08.1998 Sh. R.P. Bansal, counsel for the petitioner, Sh. Rajnish Goenka informed the court that the original documents had been lost and that they are not in a position to produce the originals. As per the charge sheet, from the aforesaid it appeared that these documents were intentionally concealed/destroyed/lost with the motive that they may not be used/verified by the investigating agency and the veracity/genuineness of these documents may not be verified. The charge sheet states that it is, therefore, clear that Sh. R.P. Bansal was very much instrumental in concealing/destroying the three documents aforesaid, which were important in the case. It further records that Sh. R.P. Bansal had been named in FIR No.164/2005 dated 03.05.2005 under Sections 420/468/471/448/341/201/120 IPC registered at P.S. Chandni Chowk, Delhi, which reflects on his conduct. It states that from the version/statement of the signatories on those documents it was apparent that the said documents are forged documents. Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 8 of 40 12. The charge sheet further records that from the statements of Tek Bahadur, Shiv Narain, Sudershan Kumar Chopra and Tilak Singh it was revealed that on 02.03.1997 Sh. Rajnish Goenka, Sh. B.K. Rana, Sh. S.R. Chahan and Sh. P.R. Gulati entered into the premises of Sanatan Dharam, Greater Kailash-II Sabha and snatched the keys and in this way grabbed the seat and encroached the premises of Sanatan Dharam Greater Kailash-II Sabha. The charge sheet also refers to the statement of Sh. Dalip Singh son of Sh. Bachan Singh (a key maker) which also reveals that accused B.K. Rana along with some other persons showed him a green Gullak and asked him to make the keys of the lock of the Gullak. On the instructions of Dalip Singh, he made the keys, but the lock could not be opened being junked and they made him to open the cash box (Gullak). The charge sheet also refers to the statements of the staff and employees of Sanatan Dharam Greater Kailash-II Sabha about the involvement of the accused persons in the whole episode. The charge sheet lists the names of 31 persons, who denied signing or attending any meeting in their statements under Section 161 Cr.P.C.; 11 persons who filed affidavits denying signing or attending any meeting, and; 12 persons whose specimen signatures had been obtained. The charge sheet also points out a few other discrepancies found in the photocopy of the attendance register dated 02.03.1997 in the following words: “On giving a look at the photocopy of attendance register dt. 2.3.97, it is found that though the names of Thakur Nanak Singh has been written, but his signatures are not there. Though his signatures are there on the documents dated 3.1.97 and 4.2.97 and but Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 9 of 40 these signatures are his forged signatures, as per his statement. Serial No.9 is missing in attendance register dated 2.3.97. It is important that the name of Sh. R.L. Mathur is written at two places i.e. serial no.11 & 62 of the same document. Verma family members, who have been mentioned at serial nos.51 to 60 on the document dated 2.3.97 have stated that signatures were taken on the pretext of enrolling new members.” 13. The concluding paragraph of the charge sheet reads as follows: “From the investigation conducted so far, it is clear that accused persons mentioned in col. 4 hatched a criminal conspiracy and prepared the forged documents i.e. requisition for holding Extraordinary General Body Meeting dt. 3.1.97; Notice dt. 4.2.97 for attending Extraordinary General Body Meeting and attendance register of the extraordinary Body Meeting dt. 2.3.97. Later on, on the basis of those documents accused persons captured the seats of Sanatan Dharam GK-II Sabha and criminally trespassed the offices/premises etc. of Sanatan Dharam GK-II Sabha, as all the three documents in original are not available, therefore, considering the conduct of the accused persons circumstances and the statements recorded, there names have been kept in column no.4 of the chargesheet i.e. on recognizance four accused namely P.R. Gulati, S.R Chanan, S.B.K. Gupta and Kamal Gaind had already been arrested and were released on bail before quashing of the FIR. Thus all the accused persons placed in column no.4 have hatched a criminal conspiracy in collusion and connivance with each other and in pursuance to his an offence punishable u/s 201/420/448/468/471/120B IPC have been committed by them. Accused P.R. Gulati has been reported expired, through the document in this regard is not available. This is sufficient evidence against the accused persons to challan them. Trial of the case may kindly be initiated by calling the accused persons through notices and witnesses through summons.” Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 10 of 40 14. Mr. K.K. Sud, learned senior advocate made his submissions in Crl MC No.7311-15/2006 on behalf of the five petitioners/accused who have been summoned by the learned Magistrate after the filing of the charge sheet and upon taking cognizance, in respect of the offences under section 420/448/468/471/120B IPC. The submission of Mr. Sud is that the dispute essentially is one between two factions claiming authority to manage the affairs of Shri Sanathan Dharam Sabha, GK-II, New Delhi. The dispute raised by the complainant/respondent no.2 in Crl. MC No.7311-15/2006 related to the requisition of an Extraordinary General Body Meeting; the holding of the meeting and the resolutions passed there at. He submits that these disputes are essentially civil in nature and do not involve any criminality. 15. He submits that the petitioners had filed a writ petition under Article 226 of the Constitution of India being W.P. (Crl) No.3/1998 to seek the quashing of FIR 119/97 registered at police station, Chittaranjan Park, New Delhi, on the complaint of respondent no.2. The said writ petition was allowed by a Division Bench of this court on 16.10.1998, holding that the question whether the petitioners have, or have not been validly elected is a dispute of a civil nature and such disputed questions of fact would have to be decided on the basis of evidence to be lead in the civil suit. It was further held that, in case, during the pendency of the civil suit it is shown that some documents were tampered with, law will take its own course and at that stage prosecution can be directed to be lodged against the persons found to have committed forgery. Similarly, it had been held that the act of Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 11 of 40 rival group claiming to have come in occupation under a bonafide claim or right, on the basis of a meeting alleged to have been held, would not fall within the category of criminal trespass, but it may at best amount to a trespass of civil nature for which the matter would have to be dealt with and decided in civil proceedings and not in criminal proceedings. The mere fact that the petitioners had opened a fresh account in the name of the society and operated the same, without operating the bank account earlier maintained by the erstwhile executive committee, would not bring their conduct under the mischief of section 420 IPC. 16. Mr. Sud submits that the Supreme Court had set aside the decision of the Division Bench of this court in Criminal Appeal No.561/1999, titled Jitendra Nath v. State (NCT of Delhi) & Ors. However, the court held that after the completion of investigation, the final form may be submitted either in the shape of a charge sheet or a final report, whereafter the learned Magistrate shall apply his mind and proceed in accordance with law. The court preserved the rights of the petitioners to challenge the summoning order, if the trial court decided to take cognizance and summon the petitioners. The court further clarified that it had not expressed any opinion one way or another on the merits of the case. 17. Mr. Sud further submits that the charge sheet dated 17.3.2006 was filed by the Inspector LBR Section Economic Offence Wing, Crime Branch under section 201/420/448/468/471/120B IPC. In the meantime, a suit had been filed on behalf of Shri Sanatan Dharam GK- Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 12 of 40 II Sabha through one Sh. A.K. Kohli, who claims to be its treasurer, being Suit No.768/1997 to seek perpetual injunction, inter alia, against the petitioners in Crl MC No.7311-15/2006. The reliefs sought in the suit were to restrain the defendants from interfering in the affairs, working, management, control and possession of property of the plaintiff Sabha. He submits that the said suit had also been premised on the same set of averments, i.e. that the aforesaid three documents: the requisition dated 3.1.1997 for holding Extraordinary General Body Meeting and fresh elections, purportedly signed by 31 persons; notice dated 4.2.1997 purportedly fixing the Extraordinary General Body Meeting on 2.3.1997, allegedly signed by 36 persons; and the attendance register dated 2.3.1997, allegedly signed by 61 persons, were forged and fabricated. Consequently, the same issues arose before the Civil Court in the said suit. 18. The said suit had been listed before the court, inter alia, on 19.3.2002. On the said date, the court while dealing with I.A. No.1230/2000 (which was an application moved by two persons, Sh. M.L. Sharma and Sh. Gopal Krishan Sharma seeking intervention), by agreement of parties, proceeded to direct the holding of fresh elections for the Sabha. For smooth conduct of elections, Hon’ble Mr. Justice J.D. Jain, a retired judge of this court was appointed as an observer. Further orders were passed in this suit on 30.5.2002 in relation to the electoral college. 19. The matter was carried in appeal in FAO (OS) No.204/2002 and the Division Bench made certain orders with regard to the holding of Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 13 of 40 the proposed elections. The elections were eventually held under the supervision of Hon’ble Mr. Justice J.D. Jain and he submitted his report dated 30.6.2002 before the court. The said report was considered by the court while hearing Suit No.768/1997 on 23.7.2002. The court recorded that fresh elections to the committee had been held and that the new executive committee had taken over and was looking after the management of the trust. Accordingly, it was conceded by the plaintiff in the suit before the court that nothing further survived in the suit and the suit was accordingly disposed of. 20. On the same day, another suit being Suit No.2088/2001, filed by one Sh. B.D. Mehendiratta, also seeking various reliefs of permanent injunction against, inter alia, the petitioners herein on the same premise, was also disposed of, in view of the fact that the elections had been held under the supervision of the court observer and the new executive committee had taken over the complete charge of the management of the society. 21. The submission of Mr. Sud, therefore, is that with the disposal of the aforesaid two suits, all disputes pertaining to elections and management of the said Sabha stood resolved. The issues regarding the authenticity of the aforesaid three documents and the takeover of the management of the Sabha by the petitioners paled into insignificance with the resolution of the dispute regarding elections and management. He submits that such disputes between warring factions do not involve criminality. Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 14 of 40 22. Mr. Sud also referred to sections 448, 441, 420, 415, 468, 463, 464 and 471 of the IPC to submit that the essential ingredients of the offences contained in the said sections are, prima facie, not made out and therefore, the learned Magistrate has erred in taking cognizance and issuing summons to the petitioners on the basis of the charge sheet filed by the prosecution. 23. Dr. Uppal, learned counsel for respondent no.2, submits that the decision of the Supreme Court, setting aside the judgment of the Division Bench of this Court came to be passed on 19.08.2004, by which date the elections under the supervision of the Court Observer, Mr. Justice J.D.Jain(retd.) had already been held and the aforesaid two suits stood dismissed as withdrawn. He submits that if the contention of the petitioners that with the withdrawal of the aforesaid two suits the conduct of the petitioners, regarding which the FIR No.119/1997 had been registered, stood regularized/condoned, there would have been no occasion for the Supreme Court to have passed the order dated 19.08.2004 setting aside the judgment of the Division Bench of this Court and directing that investigation shall now proceed in accordance with law and upon completion thereof final form shall be submitted, which may either be in the shape of charge-sheet or final report and upon receipt of the same, the learned Magistrate shall apply his mind and proceed in accordance with law. 24. He submits that the holding of the elections under the supervision of the Court Observer had taken place much after the registration of the FIR and the conduct of the petitioners, which was Crl. R.P. No.832/2006 & Crl. M.C. Nos.7311-15/2006 Page 15 of 40 under investigation in the said FIR, pertained to the period prior to the holding of these elections under the orders of the Court. The criminality involved in the actions of the accused could not be washed away, merely on account of the fact that the subsequent elections had been held under the supervision of the Court Observer. He has also referred to the charge-sheet in question in support of his submission that the learned Magistrate had rightly taken cognizance and summoned the petitioners. 25. Dr. Harish Uppal made submissions in Crl.Rev.No.832/2006 wherein the petitioner, Jitender Nath has challenged that portion of the order dated 15.09.2006 whereby the learned M.M has, inter alia, held that there is no material to show that the respondent, Shri Ramphal Bansal had any common intention with the other accused and therefore did not take cognizance and did not issue summons against him in respect of an offence u/s 201 read with Section 120B IPC. 26. Dr. Uppal submits that the respondent, Shri Ramphal Bansal had knowledge of the fact, or at least had reason to believe that his clients, i.e. accused nos.1 to 6 had committed the offence of forgery and the other offences detailed in