Vilas Rao Koli v. State of NCT of Delhi & Anr

1. The present revision petition has been filed impugning the order dated 24.05.2018 passed by the Court of Shri Priyank Nayak, the learned Metropolitan Magistrate-03, Shahdara District, Karkardooma, Delhi [‘Trial Court’] in complaint Case R. No. 3480/16 registered at Police Station [P.S] Farsh Bazar. Arguments on behalf of the Petitioner

2. Learned counsel for the Petitioner states that Respondent No. 2 was the owner of the property bearing no. 111/208 at Ground Floor, Gali Ganga Ram, Chhota Bazar, Shahdara, Delhi (‘Subject Property’). He states that the said property consists of three shops and had already been let out by Respondent No. 2 2.1. He states that on 03.10.2000[1], the Subject Property was transferred in favour of the Petitioner herein by Respondent No. 2 on the basis of General Power of Attorney (‘GPA’) executed by wife of Kunj Behari Lai Sharma. He states that the Petitioner, thereafter, became the lawful owner of the subject property and had informed this fact to the tenants.

2.2. He states that the sale in favour of the Petitioner was duly witnessed by the son of Respondent No. 2. He states, however, when the Petitioner herein approached the tenants for collecting the rent, the tenants declined to pay the rent on the pretext that the Subject Property has been purchased by them from Respondent No. 2. He states that the tenant relied upon purported transfer documents dated 28.11.2000, 29.11.2000 and 21.12.2000 executed in their favour by Respondent No. 2. He states that Respondent No. 2 as well confirmed having executed the transfer documents dated 28.11.2000, 29.11.2000 and 21.12.2000 in favour of the respective tenant(s).

2.3. He states that Respondent No. 2 was not left with any right, title or interest for the Subject Property, after having transferred the same in favour of the Petitioner on 03.10.2000. And in these facts, the Petitioner herein was constrained to file a criminal complaint against the Respondent No. 2 and the tenants, who were arrayed as accused numbers 1 to 5 with respect to the purported transfer documents executed on 28.11.2000, 29.11.2000 and 21.12.2000.

2.4. He states that, in the meantime, the Petitioner herein has also filed a civil suit bearing no. 665/09 before the competent Civil Court at (N/E) Karkardooma Courts (‘civil suit’) for recovery of physical possession of the Subject Property against Respondent No. 2 and the tenants. He states that Documents comprising Agreement to Sell (‘ATS’), irrevocable general power of attorney (‘GPA’), receipt and Will before the Sub-Registrar, Seelampur Delhi.

SINGH the said civil suit has since been decreed in his favour on 17.09.2011 and the said decree has been upheld by the Addition District Judge–01 (North–east) Karkardooma Court, Delhi vide judgment dated 11.02.2014 (‘Appellate Court’).

2.5. He states, however, the tenants continue to illegally occupy the Subject property and though the execution proceedings are pending, the Petitioner herein has still not received the physical possession of the Subject Property.

2.6. He states that the Trial Court vide impugned order dated 24.05.2018 has dismissed the subject criminal complaint on the finding that the Petitioner herein cannot maintain a complaint as the Petitioner herein is not the party to the transfer/conveyance documents dated 28.11.2000, 29.11.2000 and 21.12.2000. The Trial Court held that the Petitioner cannot be said to have been cheated within the meaning of Section 415 of IPC.

2.7. He further states that though the Petitioner herein does not dispute the finding of the Trial Court that the Petitioner herein was not cheated since the transfer of the property vide documents dated 03.10.2020 in favour of the Petitioner is absolute. He, however, states, that the action of the Respondent No. 2 in attempting to sell the Subject Property to the tenants in November/December 2000 despite having already sold the Subject Property to the Petitioner is an act of cheating and can be maintained at the instance of any third party as well.

3. None appears on behalf of the Respondent No. 2. Analysis and conclusion

4. This Court has heard the Petitioner and perused the record.

5. Before adverting to the facts of the present case it would be imperative to refer to the judgments which would enunciate the scope of SINGH exercising the power under Revisional Jurisdiction by this Court.

5.1. The Supreme Court in the case of Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 held that the revisional power of the High Court cannot be equated with the power of an Appellate Court. The relevant paragraph reads as under: “.... 14. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Section 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction....” (Emphasis supplied)

5.2. Further the Supreme Court in the case of Girish Kumar Suneja v. CBI[2] opined that the revisional jurisdiction of High Court is discretionary in nature and cannot be invoked by a party as a matter of right. The relevant para reads as under: