Praveen Kumar vs Government Of N.C.T. Of Delhi & ...
1998 Latest Caselaw 921 Del

JUDGMENT

Devinder Gupta, J.

1. The grievance of the petitioner is that with respect to the incident dated 9.5.1998 and what followed later, F.I.R., as required under Section 154 of the Code of Criminal Procedure, 1973, (hereinafter referred to as "the Code"), has not been registered on information (Annexure-P.7), which was conveyed at 7.35 p.m. on 9.5.1998 to the police and on the complaint dated 8.6.1998. Instead of registering FIR on the petitioner's version, the police by anti-dating registered FIR No. 352/98 of P.S. Lajpat Nagar for offences under Sections 448/380/420/467/468/471/34, I.P.C. at the behest of Mr. Nalwaya and facilitated him making entry to that portion of the property in question, which earlier was tenanted to Mr. Nalwaya, which he voluntarily had surrendered on 18.3.1998 by a deed of compromise (Annexure-P.4). Accordingly, the following reliefs are claimed in this petition filed under Article 226 of the Constitution of India:

"(i) directing the respondent to register FIR on the complaint of the petitioner and his brother;

 

      (ii)  directing  the respondent to restore  possession  of  first floor  and  basement  of the property bearing No.  C-8,  East  of Kailash to the petitioner, 
 

      (iii)  transfer the investigation in FIR No. 352/98, P.S.  Lajpat      Nagar, to Crime Branch." 
 

2. It is alleged that in October, 1996 the petitioner as an attorney of Arnold Masih the owner, inducted Mr. Nalwaya as a tenant in the basement and first floor of C-8, East of Kailash, New Delhi. There has been persistent default in payment of rent. Cheques issued by Mr. Nalwaya towards payment of rent had bounced. As such in addition to filing criminal complaint under Section 420, I.P.C. and 138 of the Negotiable Instruments Act, a suit for possession was also filed against Mr. Nalwaya in April, 1997. During pendency of these proceedings a compromise, out of Court, was arrived at on 18.3.1998. It was reduced in writing (Annexure-P.4). Mr. Nalwaya on the same day surrendered possession. On 3rd April, 1998 the petitioner got the suit dismissed as withdrawn because of compromise (order annexure-P.5). The petitioner thereafter took steps to get the premises repaired/renovated/painted and also got security guard posted outside the building. Abruptly on 9.5.1998 Mr. Nalwaya with the help of 8/10 persons barged into the premises, assaulted the guard and painter, who were working on the first floor. Guard Satinder Prasad and painter Inderjit suffered grievous injuries. Complaint (Annexure-P.7) was made at 7.35 p.m. by the security guards. Police came, but instead of arresting Mr. Nalwaya and his associates, the guard and painter were taken to Police Station and were made to sit till 11 p.m. The petitioner and his brother also reached Police Station. They also were made to sit and were again asked to attend Police Post, the next day for recording their statements. Police officials took bunch of keys, papers and original compromise deed, ostensibly with a view to register petitioner's complaint against Mr. Nalwaya. It was not done. Therefore, the petitioner and his brother sent telegram to the Commissioner of Police. Instead of registering complaint against Mr. Nalwaya, case was registered against the petitioner falsely implicating him in commission of the alleged crime. Efforts were made thereafter by the police to put Mr. Nalwaya in possession of the premises when security guards were directed to be removed.

3. Petition has been opposed by respondents by filing reply on the affidavit of Shri Jai Singh, S.H.O., Police Station Lajpat Nagar, New Delhi stating that one Mridual Nalwaya is a tenant of the petitioner in respect of premises No.C-8, East of Kailash, New Delhi. The said premises was taken on rent in the year 1996 @ Rs. 22,000/- per month and he was running his company office from the basement and first floor of the said premises. In May, 1997 Mridul Nalwaya along with his family shifted to Bombay but his articles and goods worth about Rs.50/- lakhs were lying in the tenanted premises. On 1.5.1998 Mridul Nalwaya was informed by his Counsel that the suit filed by the petitioner has been withdrawn. He reached Delhi on 9.5.1998 and found most of his goods and articles missing from the premises. The reply further states that on the same day an information was received vide D.D. No. 20 at Police Post Garhi to the effect that some persons have entered the aforesaid premises and out of them one has been caught. The said D.D. was entrusted to HC Virender Singh, who upon receipt of the same reached the spot where one Vinod Kumar was present and he stated that Shri Mridual Nalwaya had vacated the premises on 18.3.1998 after executing a compromise deed. However, this fact was denied by Shri Mridual Nalwaya. In the meantime, SI K.C. Kaushik also reached the spot and directed both the parties to come to the Police Post Garhi on 10.5.1998 along with their respective documents. On 10.5.1998 both the parties appeared before SI K.C. Kaushik and Vinod Kumar produced the compromise deed. However, Shri Mridul Nalwaya denied his signatures on the said deed and said that they were forged and further stated that he had never signed such a deed. Upon this a case under Sections 448/380/420/468/471/34, IPC was registered at P.S. Lajpat Nagar vide FIR No. 352/98 and the investigations were entrusted to SI K.C. Kaushik. The reply further states that on 10.5.1998 while the enquiries were being made Shri Vinod Kumar requested the police that he was not feeling well and would come again and left the police station but thereafter he never turned up. Statements of various persons were recorded under Section 161, Cr.P.C. who stated that the premises are in possession and occupation of Shri Mridul Nalwaya and his goods were removed by the landlord and some other persons. Rajinder Singh, Parveen Kumar (petitioner) were arrested by the police of P.S. Delhi Cantt. on 19.7.98 after their disclosure with regard to the removal of goods from the aforesaid premises. Police of P.S. Delhi Cantt. informed the police of P.S. Lajpat Nagar of this fact. As such they were arrested in the above noted case. Vinod Kumar was also arrested. Pursuant to their disclosure statements stolen articles worth Rs. 6 to Rs. 7 lakhs were recovered. The reply further states that during investigation compromise deed along with specimen signatures of Shri Mridual Nalwaya were sent to Forensic Science Laboratory and as per their opinion the signature of Shri Mridual Nalwaya are forged. However, the signatures of other persons including the witness are genuine. During investigation it was also revealed that the goods were removed on 14.4.1998 and therefore, on 16.4.1998 security guards were deployed at the premises. On 9.5.1998 Mridul Nalwaya of his own accord came to the premises and occupied it. The police officials of P.S. Lajpat Nagar has no role to play in the restoration of possession. It is also stated in the reply that complaints of the petitioner were got duly enquired into not only by the deponent but by the Public Grievance Cell, South Delhi also but the allegations could not be substantiated. The petitioner also filed rejoinder stating his version further. We have heard learned Counsel for the parties.

4. At 7.35 p.m. on 9.5.1998 on receipt of Wireless Message, DD No. 20 was entered that some Goondas had entered house C-8, East of Kailash, the same was entrusted to Head Constable Devinder Singh, who is stated to have gone on the spot. On recording of the statement, which Mr. Nalwaya gave on the spot with respect to the incident alleged to have happened at 6 p.m. on that day and going through the documents produced by the opposing parties,the police proceeded to register FIR No. 352/98 for offence under Sections 448/380/420/467/468/471/34, I.P.C. There are additional circumstances, which deserve to be taken note, of namely, the guard Satinder Prasad got himself treated only on 12.5.1998 from private doctor; the painter Inderjit got medical certificate from a private doctor, which is dated 10.5.1998 and was taken to Guru Teg Bahadur Hospital only on 16.5.1998; nothing is stated at the time of withdrawal of suit by the petitioner that Mr. Nalwaya had delivered physical and vacant the possession to the petitioner; the suit was at the stage of framing issues. It was withdrawn without notice to Mr. Nalwaya or to his Counsel; copy of compromise was not placed on the record of civil suit; a complaint was sent to the police by the petitioner that despite vacation by Mr. Nalwaya even on 19.4.1998 car of Mr. Nalwaya was still lying parked within the property; the fact of filing of suit on 16.4.1998 for injunction by one Bhagwan Singh, a near relation of the petitioner against the petitioner with respect to the premises in question. Because of these circumstances and for others, which are apparent on re-cord, we are of the view that the respondent, in view of the verification, which was got conducted on the petitioner's complaint, was justified in not registering FIR. Whatever is being stated by the petitioner now is by way of defense in the case registered against him cognizance of which was taken on the facts as disclosed in the statement of Mr. Nalwaya. There is no prayer for quashing of the FIR registered on the statement of Mr. Nalwaya. In view of the circumstances noticed by us, we do not find it to be a fit case to issue direction for registration of a separate case on the petitioner's complaint. We are not going into the merits of the case set up by the petitioner lest his defense might get prejudiced. There is nothing on record to prima facie suggest that FIR registered on the complaint of Mr. Nalwaya has been predated. Circumstances on record do suggest otherwise. There is also no question of allowing the prayer of restoration of possession in view of the being highly disputed questions of fact, particularly in the absence of any prima facie material on record that police facilitated Mr. Nalwaya entry into the premises and of the fact that while withdrawing the suit by the petitioner it was not disclosed that he had got the possession from Mr. Nalwaya.

5. In view of the above, the writ petition is dismissed making it clear that the observations made herein will not prejudice the case of the petitioner on merits.