"REPORTABLE"
4#
* HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3641/2007 & Crl. M.A. No. 13301/2007
Date of decision: 03.12.2008
# T.S. BASSALI ..... PETITIONER
! Through : Mr. O.P. Khadaria, Adv.
Mr. Deepak Khadaria, Adv.
Versus
$ STATE OF DELHLI .......RESPONDENT
^ Through : Mr. Lovkesh Sawhney, APP.
SI Kumar Kundan
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
ARUNA SURESH, J. (Oral)
1. Impugning the order of the learned Additional Sessions Judge dated 9.10.2007, whereby the Trial Court dismissed the revision petition of the petitioner against the order on charge dated 1.2.2004 passed by learned Metropolitan Magistrate and framed charges against Crl.M.C. No.3641/2007 Page 1 of 10 the petitioners and other accused for offences under Sections 419, 420, 468, 471 read with Section 120B IPC, present petition has been filed seeking quashing of FIR No. 266/2000 as well as the impugned order of the Additional Sessions Judge.
2. Petitioner was working as an Assistant Engineer, Technical Section with Land & Development Office, Ministry of Urban Development, New Delhi from where he retired on 31.12.1996. Complainant Madhav Dass P. Raisinghani was allotted House No. 17, Block No. M-II, Lajpat Nagar, New Delhi, by Government of India, Ministry of Rehabilitation vide allotment letter No. 1/LN/C-39/52 dated 22.04.1952 and possession of said house was handed over to the complainant on 16.05.1992. Accordingly, a lease deed as well as a conveyance deed was executed in favour of the complainant by the Managing Officer, Regional Settlement Commissioner Office, New Delhi on 3.8.62 duly registered with the Sub-Registrar of Delhi on 18.08.62, Government of India floated a scheme for getting the leasehold properties converted into freehold properties. Consequently, complainant filed an application being application No. 2381 on 28.03.2000 with the Land & Development Officer, Nirman Bhavan, Crl.M.C. No.3641/2007 Page 2 of 10 New Delhi for getting the said property converted into freehold. Along with this application, he also annexed a challan in the sum of Rs.19,000/-, DD No. 3780 drawn on Punjab National Bank, CPDC, Delhi dated 18.03.2000 and Indemnity Bond dated 21.03.2000. Complainant was called by Vigilance cum Legal Officer, Ministry of Urban Development and Poverty Alleviation, Land & Development Office, Nirman Bhawan, New Delhi to be present before the said officer on 24.08.2000 along with the Identity Card, Ration Card and original documents of the said property. When complainant visited the office, he was surprised to know that though he was alive and had not executed any document in favour of any person regarding the said property, the said property had been mutated in favour of Shri Ram Niwas on the basis of forged Will dated 22.06.1990 which was annexed with a false death certificate of the complainant indicating that complainant has expired on 18.06.1992 though, without looking into the original documents of lease deed and conveyance deed, the officials of L&DO were not entitled to entertain any application for mutation, especially when the original lease deed was in favour of the complainant.
Crl.M.C. No.3641/2007 Page 3 of 10
3. After getting the property mutated in his name, Ram Niwas filed another set of documents before the L&DO for getting the leasehold property converted into freehold property in his name. He submitted his application form with his photograph, challan form with a fees of Rs. 37,280/-, indemnity bond dated 6.6.96 indicating that he was in physical possession of the property, affidavit dated 7.6.96 that there was no unauthorized construction and also an affidavit dated 5.8.96 to the effect that he had lost the lease deed. To cover up his illegal designs, he also issued a notice in the newspaper Hindustan Times of 20.06.96 reporting loss of the original lease deed. All these documents were processed in the office of Property Section L&DO. Deputy L&DO called Ram Niwas to be present in his office on 13.08.1996 at 2 p.m. along with two witnesses for execution of the conveyance deed. The then Superintendent, Shri Dharam Singh put a note on the file "Party present and submit the following documents for execution of the deed: Affidavit Loss of lease deed P-8/C 2 newspaper cutting Loss of the Lease Deed at P- 10/C-3, Original substitution letter dated 14.6.96 it is for seen. On view of the above Lease Deed is put up for approval sign please". This note was signed on 13.8.96 Crl.M.C. No.3641/2007 Page 4 of 10 by T.S. Bassali, the present petitioner who was Assistant Engineer at the relevant time. On the same day, Ram Niwas attended the office of the petitioner and conveyance deed was executed in his favour by the petitioner. As per the conveyance deed, it was witnessed by one Jagdish Prasad and Jasbir Singh. An application was also submitted by Ram Niwas on that day for refund of excess amount paid towards the conversion charges, which application was also signed by the petitioner after it was processed by the then Superintendent Dharam Singh. Ram Niwas received cheque for Rs. 9,220/- regarding the return of excess money. Ram Niwas got the conveyance deed registered in his name in the office of the Sub-Registrar on 21.08.1996 and also got the property mutated in the office of the MCD, Lajpat Nagar in his own name.
4. During the course of investigation, it was revealed that signatures of the witnesses; Jagdish Prasad and Jasbir Singh; which were required to be obtained by Shri Dharam Singh; the then Superintendent and Shri T.S. Bassali; the petitioner, the then Assistant Engineer, in their presence before the issue of conveyance deed, were put by Ram Niwas as Jagdish Prasad and Jasbir Singh and therefore, the presence of the said two Crl.M.C. No.3641/2007 Page 5 of 10 witnesses were fabricated and their signatures forged. Petitioner was arrested and was released on bail.
5. Learned counsel for the petitioners has urged that the alleged acts committed by the petitioner were in the discharge of his official duty and therefore, even if the petitioner had retired, sanction under Section 197 Cr.P.C. was required before prosecuting the petitioner. No specific sanction was obtained by the respondent and therefore, FIR is liable to be quashed against the petitioner. He has referred to:
1. R.Balakrishna Pillai v. State of Kerala & Anr. - AIR 1996 SC 901.
2. P.K. Choudhury v. Commander 48 BRTF (GREF)
- III (2008) SLT 440.
3. Raghunath Anant Govilkar v. State of Maharasthra and Ors. - 2008 III AD (S.C.) 153.
4. R.R. Gautam & Anr. v. State & Anr. - 2008 IV AD (Delhi) 179.
6. Learned Additional Public Prosecutor for the State has refuted the submission of the learned counsel for the petitioner and has argued that petitioner committed offence of cheating and forgery in conspiracy with the other officials of the department as well as Ram Niwas and other persons who had signed as witnesses and Crl.M.C. No.3641/2007 Page 6 of 10 other private persons in getting the property mutated in the name of Ram Niwas and subsequently getting it converted into freehold and also enabling Ram Niwas to get the sale deed registered and property mutated in his name and the acts of the petitioner therefore cannot be considered to have been done or committed during the discharge of his official duties. His acts of forgery and connivance in commission of forgery with other persons, especially Ram Niwas cannot be given colour of duty so as to necessitate the sanction as required under Section 197 Cr.P.C. for prosecuting the petitioner. Therefore, the State, according to him, was within its right to file the chargesheet against the petitioner and others and trial court rightly took cognizance of the offences and framed charges against the petitioner. Indisputably, petitioner was working as Assistant Engineer at the time of commission of offence and he retired from services on 31.12.1996.
7. As per notification dated 6.1.1995, petitioner being Assistant Engineer was empowered to sign all contracts and assurances of property relating to matters falling within the jurisdiction of Land & Development Officer; all contracts, deeds or other instruments relating to or for the purpose of enforcement of the terms and Crl.M.C. No.3641/2007 Page 7 of 10 conditiona of the sale/lease deeds of the Government Built Property in Delhi/New Delhi etc.
8. Vide office order dated 23.1.1995, it was made clear that Assistant Engineers would execute conveyance deeds in respect of conversion cases with immediate effect. Vide letter dated 2.8.96 issued by deputy Land & Development Officer, Mr. T.C. Hingorani, Ram Niwas was required to be present in person in the office on 13.08.1996 at 2 p.m. along with two witnesses and documents as detailed therein. Thus, it is clear that Ram Niwas was required to bring two independent witnesses with him to witness the execution of the conveyance deed and this conveyance deed was to be executed by the petitioner in the presence of the witnesses and he was also required to obtain the signatures of the witnesses on the conveyance deed in his presence.
9. The investigation has indicated that the conveyance deed was purported to have been witnesses by Jagdish Prasad and Jasbir Singh. It was also signed by the petitioner. Perusal of the conveyance deed indicated that petitioner had signed this document in the presence of the said two witnesses. However, there were no such persons by the name of Jagdish Prasad Crl.M.C. No.3641/2007 Page 8 of 10 and Jasbir Singh present at the time of execution of the conveyance deed. The names of witnesses and their addresses were fabricated and forged by Ram Niwas. Ram Niwas signed the conveyance deed as Jagdish Prasad and Jasbir Singh in the presence of the petitioner. Prima facie, it cannot be said that petitioner acted within his official duties or in discharge of his official duties in conniving with Ram Niwas to sign for himself as well as for witnesses by impersonating himself as Jagdish Prasad and Jasbir Singh. This act of the petitioner was nothing but a conspiracy with Ram Niwas with a view to help him (Ram Niwas) in his wrongful gain and getting property transferred and then getting it freehold in Ram Niwas's name. It is not a case of exercise of official duties, a case of negligence or a bona fide mistake, which could be given colour of office. It is nothing but an apparent fraud and forgery committed by Ram Niwas in connivance with the petitioners.
10. Under these circumstances, no sanction under Section 197 Cr.P.C. was required to be obtained by the respondent-State before filing the chargesheet against the petitioner. It is also pertinent to mention here that petitioner never raised this legal issue either before the Crl.M.C. No.3641/2007 Page 9 of 10 trial court or before the revisional court and it has been raised for the first time only in the present petition seeking quashing of FIR.
11. Hence under the facts and circumstances of the case, I find no merits in the present petition. I do not find any illegality and infirmity in the order of the learned Metropolitan Magistrate or of the Revisional Court dated 9.10.2007. Hence petition is hereby dismissed.
(ARUNA SURESH) JUDGE December 03, 2008 rd Crl.M.C. No.3641/2007 Page 10 of 10