Test Cas.No.19/2004 Page 1 of 65 *IN THE HIGH COURT OF DELHI AT NEW DELHI + TEST.CAS.No.19/2004 Reserved on : 1st June, 2010 Date of Decision : 18th November, 2010 % SANJEEV KUMAR MITTAL ..... Petitioner Through : None. versus THE STATE ..... Respondents Through : Mr. Sanjeev Mahajan, Adv. for R-2. Dr. Arun Mohan, Sr. Adv. as amicus curiae. CORAM :- HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may YES be allowed to see the Judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? JUDGMENT Cr.M(M)No.6721/2010 1. Respondent No.2 has filed this application under Section 340 of the Code of Criminal procedure for holding an inquiry and to make a complaint to the concerned Magistrate against the petitioner under Sections 193, 196, 199 and 200 of the Indian Penal Code. This case demonstrates the extent and type of malaise which clogs the wheels of the justice delivery system. It is an instance of how litigants make false averments of facts in the pleadings and raise untenable contentions with impunity. Thereafter litigation, on controversies supposedly arising out of these false averments are dragged on for years in Test Cas.No.19/2004 Page 2 of 65 the hope that the other side will succumb to buy peace. If the other side does not so ‗settle‘, in the end, he is hardly compensated and remains a loser. There is little fear of law in the minds of the unscrupulous. 2. Background Facts 2.1 The background facts of this case as stated herein (except where they relate to the record of this suit) are based on the objections and submissions of respondent No.2 and investigations by the police in relation to an earlier FIR, and are therefore not to be taken as final findings of this Court. 2.2 Ram Pyari, widow of Late Shiv Shankar was issueless. She had a brother, Rajinder Nath and a nephew (brother‘s son), named, Dr. (Col.) Kotu Kumar Phull who is respondent No.2 in these proceedings. It appears that she treated respondent No.2 as her own son. 2.3. Ram Pyari owned property bearing No.D-50, Greater Kailash Enclave-II, New Delhi measuring 300 sq.yrds. where she lived. 2.4. Ram Pyari expired on 31st August, 2002 leaving behind duly registered Will dated 3rd May, 1999 registered with Sub Registrar, Hauz Khas, New Delhi as document 582 in Additional Book No.-III, Volume No.9 on pages 185 and 186 on 3rd May, 1999, whereby she bequeathed the aforesaid property to her nephew Dr. (Col.) Kotu Kumar Phull, respondent No.2. This Will bears the photograph Test Cas.No.19/2004 Page 3 of 65 and thumb impression of the deceased in addition to her signatures. 2.5. On 31st October, 2003, respondent No.2 applied for mutation of the aforesaid property to DDA on the basis of the Will dated 3rd May, 1999 in pursuance to which DDA carried out the mutation on 12th December, 2003. Thereafter, on 27th January, 2004, respondent No.2 applied for conversion of the said property from leasehold to freehold. At this stage, DDA received a letter dated 20th February, 2004 from the petitioner stating that he had purchased the subject property from Late Ram Pyari in 1998 through Agreement to Sell, Will and GPA. The contents of the said letter are reproduced hereunder:- ―I like to inform you that I had been purchased above said property from Smt. Ram Pyari w/o late Shri Shiv Kumar r/o D-50, Greater Kailash Enclave- II in 1998 through Agreement to Sell and also after some time the allottee had given all document, include her Will, G.P.A. and DDA documents in my name through sub-registrar office.‖ 2.6. On 12th March, 2004, the petitioner also published a public notice in the newspaper to the effect that Late Ram Pyari has executed a Memorandum of Understanding and a Will in favour of the petitioner with respect to the subject property. Respondent No.2 was in US at that time and he received a phone call from India intimating him about the aforesaid public notice whereupon he sent a Test Cas.No.19/2004 Page 4 of 65 complaint to Delhi Police through e-mail on 21st March, 2004. 2.7. Apprehending registration of FIR, on 12th April, 2004, i.e., three weeks after the complaint to the police, the petitioner filed the petition for probate before this Court on the basis of the Will and Memorandum of Understanding (MOU), both dated 11th May, 1999. 2.8. On 19th April, 2004, the police registered FIR No.95/2004, PS Chitranjan Park, New Delhi against the petitioner. The petitioner applied for anticipatory bail on the ground that he has already filed the probate petition before this Court and vide order dated 12th January, 2004, the petitioner was granted anticipatory bail by this Court. 2.9. The Will dated 11th May, 1999 set up by the petitioner as well as the registered Will dated 3rd May, 1999 in favour of respondent No.2 was sent by the police to FSL. Vide report dated 27th December, 2005, FSL opined that the Will and MOU set up by the petitioner were forged and the Will dated 3rd May, 1999 in favour of respondent No.2 was genuine. The FSL report is Annexure-B (Colly.) along with I.A.No.7298/2007. 2.10. The police filed a chargesheet against the petitioner on 15th May, 2007. The supplementary chargesheet was filed by the police on 29th March, 2008 and the case is now pending before the concerned Metropolitan Magistrate, New Delhi. Copy of the chargesheet is Test Cas.No.19/2004 Page 5 of 65 Annexure-B (Colly.) along with I.A.No.7298/2007 whereas the supplementary chargesheet is Annexure-R2 to this application. 2.11. The chargesheet filed by the Economic Offences Wing records that the petitioner was a habitual cheat who had been implicated in two other criminal cases of cheating pending trial bearing No.FIR No.253/2001 and FIR No.518/2000, PS Vasant Kunj in which Non Resident Indians (NRIs) were the victims. It is further recorded that the petitioner did not cooperate with the investigation. According to police, the petitioner‘s address mentioned in the petition is fake. The addresses of the witnesses on the Will dated 11th May, 1999 are also incorrect. 3. The Petition, its Pendency and dismissal 3.1. The petition for grant of probate filed by the petitioner, Sanjeev Kumar Mittal in respect of the estate of Late Ram Pyari filed in this Court on 12th April, 2004 was registered as Testamentary Case No.19/2004. 3.2. The aforesaid petition was based on an unregistered Will dated 11th May, 1999 propounded by Sanjeev Kumar Mittal purporting to be of Late Ram Pyari. The petition was duly signed and verified by Sanjeev Kumar Mittal and was supported by his affidavit. The petition was accompanied by the affidavit of Rajat Kumar who deposed that the Will was executed in his presence. Test Cas.No.19/2004 Page 6 of 65 3.3. The petition was also accompanied by the list of properties and the affidavit of the value of the assets. The alleged original Will and original MOU, both dated 11th May, 1999 were filed along with the petition. 3.4. On 29th April, 2004, the petition was adjourned to 23rd July, 2004. On 30th April, 2004, the petitioner filed I.A.No.2934/2004 to prepone the date (possibly because police investigation was in progress). By order dated 7th May, 2004, the preponement was allowed and the case was taken up on the same day and an ex-parte order was passed restraining respondent No.2 (nephew and legatee in the prior Will) from dealing with the subject property. 3.5. Respondent No.2 filed the objections dated 23rd September, 2004 to the probate petition on various grounds inter alia:- 3.5.1. The alleged Will and MOU are forged and fabricated. 3.5.2. The petitioner was an absolute stranger to the testator‘s family. 3.5.3. The petitioner did not even attend the cremation of Late Ram Pyari and never tried to contact respondent No.2 when he was in India after the death of Ram Pyari. 3.5.4. No member of the family or neighbours of Late Ram Pyari had ever seen the petitioner or even remotely heard about him. It is highly improbable that Late Ram Pyari would execute the Will in favour of the petitioner whom she had never met. 3.5.5. The police has registered FIR No.95/2004 against the petitioner who has obtained bail from this Court on the ground of the pendency of the probate petition. Test Cas.No.19/2004 Page 7 of 65 3.5.6. The petitioner is a habitual criminal having 40-50 criminal cases pending against him and few cases are exactly of the same nature wherein the petitioner has tried to misappropriate the properties on the basis of fake and fictitious Wills. The petitioner keeps an eye on valuable properties which are bequeathed to NRIs by way of Wills and attempts are made to misappropriate such properties. 3.5.7. FIR Nos.518/2000 and 253/2001, P.S. Vasant Kunj have been registered against the petitioner on similar charges on embezzlement of properties located in Vasant Kunj based on fabricated and fictitious Wills. 3.5.8. The petitioner was a resident of Hapur, UP and the address mentioned in the Will and the probate petition, namely, 1219, Katra Satya Narain, Chandini Chowk, Delihi was false. 3.5.9. The statements made in the alleged Will and MOU, both dated 11th May, 1999 are false. It was stated that Late Ram Pyari had no relatives except respondent No.2 whereas she had many relatives including her real brother, Rajinder Nath Phull residing at East Patel Nagar, Delhi whom she frequently visited. 3.5.10. Late Ram Pyari had no issue and therefore, she had been treating respondent No.2 (brother‘s son) as her own son since his birth. 3.5.11. Respondent No.2 was a NRI and he worked with United States Army as Colonel prior to taking early retirement in April, 2003. Respondent No.2 had been visiting India from time to time to take care of Late Ram Pyari. Rajinder Nath Phull (father of respondent No.2 and brother of Late Ram Pyari) was staying at East Patel Nagar, Delhi and was also taking care and providing all sort of help to Late Ram Pyari who used to regularly visit her brother and stay there. 3.5.12. All the bank accounts of Late Ram Pyari were in joint names of respondent No.2, his wife and son. Late Ram Pyari also nominated respondent No.2, his wife and son in the records of the cooperative society in respect of the suit property. The alleged Will dated 11th May, 1999 was executed within one week of the prior registered Will dated 3rd May, 1999. Test Cas.No.19/2004 Page 8 of 65 3.5.13. Respondent No.2 took retirement from United States Army in April, 2003 and returned back to India and stayed here from August, 2003 to February, 2004 and got the suit property mutated in his name in December, 2003 and also discussed the potential sale of the suit property for which he shared the title documents including copy of the registered Will with the potential buyers. It appears that the petitioner obtained the copy of the registered Will bearing the signatures of Late Ram Pyari and forged the Will dated 11th May, 1999. 3.5.14. The statement made in the alleged Will dated 11th May, 1999 that Late Ram Pyari had not been keeping good health and was at the fag end of her life was also false as she was keeping good health at that time and she went to Japan in the month of June, 1999 to stay with respondent No.2 who was serving with United States Army and was posted at Japan at that time. Late Ram Pyari stayed with respondent No.2 in Japan for nearly nine months from June, 1999 till March, 2000 and again joined respondent No.2 in United States from March, 2001 to October, 2001. In March, 2001, Late Ram Pyari had injured her back before traveling to United States of America but despite that she undertook twenty hour journey primarily because of the love and affection for respondent No.2 and her faith that respondent No.2 would get her better treatment. Between May, 1985 and October, 2001, Late Ram Pyari spent nearly 40 months with respondent No.2 in United States, Japan and Germany. 3.5.15. The petitioner was a dreaded criminal and targeted the properties of NRIs with the same modus operandi. 3.5.16. Along with the aforesaid objections, respondent No.2 placed on record the following documents:- (i) Copy of the registered Will dated 3rd May, 1999. (ii) Copy of the mutation dated 12th December, 2003 by DDA. (iii) Copy of the passport of Late Ram Pyari indicating the journeys undertaken by her. (iv) Copy of the FIR Nos.95/2004 by the police against the petitioner. Test Cas.No.19/2004 Page 9 of 65 3.6. The petitioner did not file the rejoinder to the objections filed by respondent No.2 despite number of opportunities granted on 3rd November, 2004, 8th February, 2005 and 9th May, 2005. 3.7. On 18th January, 2005, respondent No.2 placed on record the original registered Will dated 3rd May, 1999. 3.8. On 4th December, 2007, respondent No.2 placed on record the chargesheets filed against the petitioner in FIR Nos.253/2001 and 518/2000. 3.9. The Economic Offences Wing, Crime Branch, Delhi Police filed two applications bearing I.A.Nos.7564/2004 and 4670/2005 seeking permission of this Court to take the photographs of the original Will dated 3rd May, 1999, MOU dated 11th May, 1999 and the Will dated 11th May, 1999 and to take certified copies of the said documents for seeking an expert opinion. Both these applications were allowed by this Court vide orders dated 10th November, 2004 and 1st August, 2005 and the Investigating Officer of the Police was permitted to take the photographs of the said documents. 3.10. On 27th December, 2005, the Forensic Science Laboratory (FSL) submitted a report to the Economic Offences Wing, Crime Branch, Delhi Police in which they opined that the Will and MOU, both dated 11th May, 1999, propounded by the petitioner does not bear the signature of Late Ram Pyari and were forged. It was further opined that the Test Cas.No.19/2004 Page 10 of 65 registered Will dated 3rd May, 1999 of Late Ram Pyari in favour of respondent No.2 is a genuine document. The copy of the report of the FSL was placed on record by respondent No.2 on 2nd July, 2007 along with I.A.No.7298/2007. 3.11. On 15th May, 2007, the Economic Offences Wing, Crime Branch, Delhi Police filed the chargesheet against the petitioner under Sections 420, 467, 468 and 471 of the Indian Penal Code. It was observed in the chargesheet that the petitioner was a habitual/professional cheat involved in two other cases bearing FIR Nos.253/2001 and 518/2000 in which also NRIs were victims like the present case. 3.12. On 29th March, 2008, the police filed the supplementary chargesheet in which it was stated that the address of the petitioner given in the alleged Will, namely, 1219, Katra Satya Narayan, Chandini Chowk, Delhi was fake. It was further stated that the address of the witness Rajat Kumar mentioned in the Will was also fake. The copy of the supplementary chargesheet was filed by respondent No.2 along with Cr(M)No.6721/2010. 3.13. On 25th March, 2009, the issues were framed and the petitioner was directed to file list of witnesses within two weeks and evidence by way of affidavit within four weeks and the case was listed for fixing the date of cross- Test Cas.No.19/2004 Page 11 of 65 examination of the petitioner‘s witnesses on 5th May, 2009. 3.14. On 5th May, 2009, the petitioner sought further time to file the evidence by way of affidavit whereupon last opportunity was granted to the petitioner. The petitioner did not file the affidavit and further opportunity was granted on 10th September, 2009 and 11th January, 2010. The petitioner filed the list of witnesses on 11th January, 2010 but no evidence by way of affidavit was filed. The names of six witnesses in the list are petitioner himself, Rajat Kumar, Ashok, Jagmeet Singh Virk, Rajesh Goel and Rajiv Suri 3.15. On 5th April, 2010, the petitioner was directed to file his affidavit as well as affidavits of the witnesses of the Will within one week and produce the petitioner and the two witnesses of the Will for cross-examination on 27th April, 2010. However, the needful was not done whereupon one more opportunity was granted to the petitioner on 27th April, 2010 subject to the cost of `25,000/- and the case was fixed for 11th May, 2010. 3.16. The petitioner stopped appearing on 11th May, 2010 and there was no appearance on behalf of the petitioner on 14th May, 2010, 17th May, 2010 and 18th May, 2010. 3.17. On 18th May, 2010, respondent No.2 filed an application in Court under Section 340 of the Code of Criminal Procedure for prosecution of the petitioner under Sections Test Cas.No.19/2004 Page 12 of 65 193, 196, 199 and 200 of the Indian Penal Code. Considering the non-appearance of the petitioner to be deliberate and intentional, the Testamentary Case No.19/2004 was dismissed on 18th May, 2010 for non- prosecution of evidence as well as for default of appearance with cost of `2,00,000/- and the injunction orders dated 7th May, 2004 and 25th March, 2009 were vacated and the application under Section 340 of the Code of Criminal Procedure was kept for consideration. 3.18. Considering the serious offenses against administration of justice, Dr. Arun Mohan, Senior Advocate was appointed as amicus curiae. The learned amicus curiae and the learned counsel for respondent No.2 were heard at length on 26th May, 2010 and 1st June, 2010 when the matter was reserved for order. 3.19. On 3rd July, 2010, the counsel for the petitioner inspected the Court record. 4. Application under Section 340 of the Code of Criminal Procedure 4.1. Respondent No.2 has filed this application for prosecution of the petitioner under Sections 193, 196, 199 and 200 of the Indian Penal Code on the ground that the petitioner has deliberately and willfully made absolutely false statements on oath in the petition as well as the affidavit to deprive respondent No.2 of the title of the property in question and has sought probate of a forged Will. Test Cas.No.19/2004 Page 13 of 65 4.2. It is submitted that the petitioner has forged the Will and MOU, both dated 11th May, 1999, and has filed the present petition on the basis of forged Will and MOU. It is submitted that the petitioner has played fraud upon the Court and if the action is not taken against him, such persons would be encouraged to file false cases in the Court. 4.3. The learned amicus curiae submits that the offences against administration of justice and criminal contempt of Court are made out and the complaint be filed before the concerned Magistrate for having filed the petition containing false averments and based on forged documents. The learned amicus curiae, Dr. Arun Mohan has also made detailed submissions on the procedure for conducting the inquiry and has also cited several decisions. 5. Facts which lead to the conclusion 5.1. This court is of the prima facie view on the basis of the following facts that the propounded Will is not genuine and false averments have been made in the petition for grant of probate:- 5.1.1. The petitioner was not related to the deceased Late Ram Pyari. The petitioner was not seen by any relative of the deceased in her lifetime. The petitioner was not even present at the time of cremation of the deceased. There was also no communication by the petitioner for a period of two years after the death of Late Ram Pyari and no claim to the property was made during the said period. Test Cas.No.19/2004 Page 14 of 65 5.1.2. The addresses of the petitioner as well as that of the witnesses to the Will are fake as per the investigation by the police. The identity of the witnesses of the Will is also not established nor are they traceable by the police. 5.1.3. The signatures of the deceased on the Will have been found to be forged by the Central Forensic Science Laboratory. 5.1.4. The petitioner is involved in two other cases of cheating in which also NRIs are the victims like in the present case. The details of the two cases are given in the chargesheet filed by the police. 5.1.5. In the petition for probate, the petitioner has concealed the letter dated 20th February, 2004 (reproduced in para 2.5.) written to Delhi Development Authority in which he claimed the ownership over the subject property on the basis of Agreement to Sell, GPA, Will, etc. 5.1.6. In the Will propounded by the petitioner, it is stated that the petitioner took care of the deceased during the fag end of her life. However, no material or evidence was placed on record by the petitioner in this regard despite number of opportunities granted. 5.1.7. The propounded Will does not specifically acknowledge the existence of the prior registered Will. 5.1.8. The deceased remained alive for three years after the propounded Will but did not register the alleged Will. 5.1.9. As per the propounded Will, 50% of the property had to be donated to different religious trusts which have not been specified. 5.1.10. The petitioner pursued the petition for six long years and then vanished. No reply was filed to the objections of respondent No.2 and no evidence was placed on record despite number of opportunities granted. The petitioner is still following up these proceedings having inspected the Court record as late as on 3rd July, 2010. 5.2. On these facts and events, this Court is of the prima facie view that the petitioner is liable for being prosecuted for Test Cas.No.19/2004 Page 15 of 65 the offenses committed by him. However, learned amicus curiae submits that an inquiry be conducted through the police before final orders are passed. The learned amicus curiae has made detailed submissions in this regard which are recorded in the succeeding paras. 6. Litigation in our courts 6.1. Inasmuch as the facts of this case are demonstrative and this Court cannot be oblivious to the problems afflicting the judicial system, I shall now examine certain general issues on how litigation with false claims is filed, or false defences are put forward, and then continues to remain pending, consuming the Court‘s time and resources. The result is that courts are overloaded and there is delay in disposal. 6.2. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Hon‘ble Supreme Court noted: ―For many centuries, Indian society cherished two basic values of life i.e. ‗Satya‘ (truth) and ‗Ahimsa‘ (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has over- shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and Test Cas.No.19/2004 Page 16 of 65 unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.‖ 6.3. In Padmawati and Ors v. Harijan Sewak Sangh, 154 (2008) DLT 411, the learned Single Judge of this Court (S.N. Dhingra, J.) noted as under: ―6. The case at hand shows that