Akeel Ahmad v. State & Ors.

1. This petition under Section 482 Cr.P.C has been filed by the complainant before the learned Trial Court, being aggrieved by the order dated 14th March, 2019 passed by the Additional Sessions Judge, Shahdara, Karkardooma Courts in the revision petition CR No.13/17 filed by the petitioner against the order dated 26th July, 2017 of dismissal of his complainant under Section 203 Cr.P.C., passed by the learned ACMM (Shahdara).

2. The petitioner had filed a complaint case alongwith an application under Section 156(3) Cr.P.C. before the Metropolitan Magistrate Shahdara. An FIR was directed to be registered and FIR No. 230/2006 under Sections 2022:DHC:1738 417/419/420/465/466/467/468/120B IPC, PS Anand Vihar was registered. But the investigating agency filed a Cancellation Report as the investigations did not reveal the commission of any offence. However, the petitioner being dissatisfied, sought the revival of his complaint, which was allowed on 4th December, 2007. The petitioner examined seven witnesses in support of the complaint, the CW-7 being himself.

3. After considering all these materials, the learned ACMM vide the order dated 26th July, 2017 considered there was no material upon which to summon the proposed accused persons. Thus, it dismissed the complaint. A revision petition was filed before the learned Additional Sessions Judge who, vide the impugned order dated 14th March, 2019, concluded that the Revision Petition was bereft of any merit and dismissed the same.

4. Before this court, it has been urged by Mr. Ankit Singh, learned counsel for the petitioner that the learned courts below had not properly applied their minds and had, therefore, passed erroneous orders.

5. It may be noted that while dealing with a petition under Section 482 Cr.P.C., this Court does not exercise an appellate jurisdiction. The petitioner is required to point out the errors that have been committed by the courts below which has resulted in miscarriage of justice. It appears that the petitioner has been unsuccessful in this attempt.

6. Learned counsel for the petitioner submitted that the learned courts below had overlooked the documentary evidence which clearly showed that the respondents No.2 and 3 had impersonated the original allottee being Ms. Swarn Lata, D/o Mr. Harish Chand, to illegally sell the property being Plot No.184 measuring 355.50 sq. yards in the area now known as Saini Enclave at Vikas Marg, Delhi. It was submitted by the learned counsel that the original perpetual Lease Deed 6th November, 1975, registered with the Sub-Registrar Office, Delhi. was executed by the DDA in favor of Saini Co-operative Building Society. The sub-lease of Plot No.184 was executed in favour of Ms. Swarn Lata, D/o Harish Chand vide perpetual Sub-Lease Deed dated 3rd April, 1976 which was also duly registered before the Sub-Registrar on 15th June, 1976.

7. Learned counsel drew attention to the details in the stamp affixed on the document to submit that the fabrication of the document took place when instead of writing Ms. Swarn Lata, D/o Harish Chand, the name of Smt. Swarn Lata, wife of S.R. Saini, got recorded. It is the contention of the learned counsel that in separate civil proceedings being Civil Suit No.357/08 titled Ms. Swarn Lata Vs. Amit Modi, an Intermediate Exam Certificate was filed by the respondent No. 2 to establish her identity, but the witness who had come from the University of Rajasthan had clearly deposed that the Roll Number on this Intermediate Certificate belonged to Ms. Usha Kashyap.

8. Thus, in order to defraud the petitioner who had purchased the plot through an Agreement to Sell for a consideration of Rs. 10,00,000/- from Ms. Swarn Lata, D/o Harish Chand, documents had been created by the respondents. Hence, it was submitted that the dismissal of his complaint was unjustified. It was, therefore, prayed that the complaint be restored and the respondents be summoned to face trial.

9. Ms. Manjeet Arya, learned APP for the State contended that all investigations had revealed that the allegations made by the petitioner were false. It was submitted that the petitioner had failed to produce the Ms. Swarn Lata, D/o Harish Chand, who he claims was the true owner. It is further submitted that the documents were very old and the stamp of the Sub-Registrar clearly disclosed that the sub-lessee, though the daughter of Harish Chand, was married to S.R Saini and no fraud appears to have been committed nor any document fabricated or forged. It was submitted that the complaint was rightly dismissed by the learned ACMM and rightly upheld by the learned Sessions Court.

10. The learned counsel for the petitioner has relied on the judgements of the Supreme Court in Shivjee Singh v. Nagendra Tiwary, (2010) 7 SCC 578 and Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, and the decision of a Coordinate Bench of this court in Niti Munjal v. State, 2007 SCC OnLine Del 641, to submit that the non-examination of one witness could not be fatal to the complaint and that while passing an order on summoning, the courts were not called upon to meticulously weigh and examine the material brought on record. Thus, the learned MM in doing so had misdirected itself.

11. I have heard the counsel and have carefully perused the record as well as the cited judgments.

12. In Neeti Munjal (supra), it was held that while issuing summons, extraneous material ought not to be considered. But what is to be noted in the present case is that the conclusions of the courts below are founded on the evidence that had been led by the petitioner himself. Therefore, it cannot be said that the Trial Court had considered extraneous material to dismiss the complaint.

13. As regards the decisions in Shivjee Singh(supra) and Bhushan Kumar(supra), they deal with different aspects, inasmuch as, in both cases, it was held that summoning requires no explicit reasoning. But in the present case, the complaint was dismissed and therefore the learned Trial Court had to justify and give reasons for the dismissal. While giving those reasons, reference has been made to the evidence led by the petitioner. Therefore, it is not a case of a mini trial having been held or the defence of the proposed accused having been considered.

14. It is clear from the record that the learned ACMM and the learned ASJ have only focused on what was brought by the petitioner by way of evidence, to conclude that there was no merit in the complaint. Rather, both the courts below had concluded that it was the petitioner who was attempting to play a fraud by relying on fictitious documents.

15. The learned Sessions Court has correctly evaluated the orders of the learned ACMM to conclude that the best evidence had been withheld by the petitioner. The person by the name Ms. Swarn Lata, D/o Harish Chand also described in the registration as Ms. Swarn Lata, wife of S.R. Saini, appears to be the respondent No.2, but the petitioner, in order to create a spurious character, has claimed that the allottee was an unmarried lady and had remained so throughout her life. Despite the record in the Cancellation Report that no such person had been brought forward by the petitioner, he never made any effort to produce Ms. Swarn Lata to be examined before the learned MM. Both the courts below found this to be a telling fact and drew an inference against the petitioner. This court finds no error in the inferences so drawn. This is not a case, like the case of Neeti Munjal(supra), as the most vital witness was not produced by the complainant.