Ashok Malik vs State Of Delhi
1999 Latest Caselaw 48 Del

JUDGMENT

N.G. Nandi, J.

1. Petitioner/accused, who is alleged to have committed offences under Sections 384/507/120-B/34 IPC prays for relief under Section 439 of the Criminal Procedure Code.

2. It is alleged that a telephone call was received on 25.8.1998 by Priya Malik, daughter of the complainant from one Abu Salem of Dubai inquiring about the complainant and as the complainant was not available, his daughter was asked to request the complainant to contact the caller on telephone No. 00971506845036 in Dubai. The complainant was informed about the said telephone, received from Dubai by his daughter on his return; that thereafter again a telephone was received and the caller inquired about the property opposite C.R. Park from him and also as to the capacity in which Mr. Ashok Malik was living in that property; that the complainant informed the caller that his tenancy was with M/s. Modi Rubber Ltd. whereupon the caller told the complainant that he knew everything and knew Modes personally and also told him to inquire about his name and deeds from any police commissioner in Delhi and also referred to the name of Gulshan Kumar and asked the complainant to make inquiries about him and let him know within two days; that M/s.Modi Rubber Ltd. has been rented out property bearing No. C10, Chirag Enclave, New Delhi by the complainant in 1980 and that Mr. Ashok Malik, Director of the said company has been in occupation of the said property; that Mr. Malik has been off and on demanding that the complainant should sell roof rights to him to construct a first floor; that the complainant had filed a suit for eviction against M/s.Modi Rubber Limited in April 1996 and Mr. Malik tried to get himself imp leaded in the said suit.

On the basis of the aforesaid complaint, which was lodged on 26.8.1998 before the Commissioner of Police formal F.I.R. was registered on 31.8.1998 in Police Station Lajpat Nagar, New Delhi.

3. It is submitted by Mr. Jaitley, learned counsel for the petitioner that no role is assigned to the petitioner in the complaint nor any overtact alleged; that there is no connection or nexus between the petitioner and Abu Salem suggested either from the F.I.R. or any other evidence; that though the F.I.R. is registered on 31.8.1998, there is no reference to the telephonic conversation of 28.8.1998, which allegedly took place between Abu Salem and the complainant; that the transcription of conversation recorded in Audio Cassette on 28.8.1996 and the subsequent statement of 31.8.1998 are concoction only to suggest connection between the petitioner and Abu Salem; that there is nothing to show that Abu Salem or Romesh Sharma were working in concert with the petitioner; that it may be that Abu Salem and/or Romesh Sharma had their own agenda independent of/unconnected with the petitioner and that there is nothing to show that petitioner has any connection with Abu Salem and Romesh Sharma or any of them; that in the complaint it is not alleged that he was threatened in any manner by Abu Salem and that no offence under Section 384/507 I.P.C. is made out; that according to the petitioner terrace rights were agreed to be sold to the petitioner by the complainant, for which the petitioner had served the complainant with the notice dated 14.2.1998 much prior to the complaint; that chargesheet is filed in Court. In substance, it is stated that there is no case made out under Sections 384/507 IPC and there is no connection between the petitioner and Abu Salem primafacie shown nor any over tact alleged against the petitioner and the telephone call of 25.8.1998 does not suggest threat by the caller to the complainant and only inquiry in connection with the property was made by the caller Abu Salem.

4. It is not disputed that the complainant filed a Civil Suit for ejectment against M/s. Modi Rubber Limited and the property is in occupation of the petitioner and in the said suit the petitioner tried to get himself imp leaded, which motion was withdrawn on 1.6.1998. According to the petitioner the alleged oral agreement was in respect of the terrace rights whereby the complainant agreed to sell the terrace rights to the petitioner for the construction of first floor. Ejectment of M/s. Modi Rubber Limited as far as portion of the property let to M/s. Modi Rubber Limited and in actual occupation of the petitioner is one thing and the alleged agreement to sell by the complainant in respect of the roof rights for construction of the first floor by the petitioner is another thing.

5. The papers of investigation have been placed for my perusal by the learned Special Prosecutor for the respondentState. It is suggested therefrom that the complainant is the owner of property bearing No. C10, Chirag Enclave, New Delhi, rented out to M/s. Modi Rubber Limited. The printout of the details of telephone calls made from cellular phone of Romesh Sharma suggests the telephone calls made to telephone No. 00971506845036 at Dubai. It is suggested that three telephone calls on 12.8.1998 were made. Then again on 25.8.1998 one telephone call was made to Dubai on the said telephone number. It is also suggested that on 9.10.1998 one telephone call and on 11.10.1998 two telephone calls were made to Dubai on this telephone number. This would primafacie suggest that prior to the first telephonic conversation between Abu Salem from Dubai and the complainant on 25.8.1998, there was telephonic talk between Abu Salem and Romesh Sharma on 12.8.1998 also. That on 25.8.1998 also there was a telephonic conversation between Romesh Sharma and Abu Salem i.e. the date on which first telephonic conversation took place between the complainant and Abu Salem from Dubai. It is also suggested that the telephone call made on 25.8.1998 from cellular phone of Romesh Sharma to Abu Salem at Dubai was at 1758 hours whereas as per the complaint, the telephone call, which was received at the place of the complainant in the evening of 25.8.1998, was at 6 P.M. It is also suggested from the printout of the calls made from the cellular phone of Romesh Sharma that thereafter there have been telephonic conversation between Romesh Sharma and Abu Salem. The papers of investigation also contain recovery of the documents from the house of Romesh Sharma and the documents recovered and seized related to property bearing No. C10, Chirag Enclave, New Delhi. The Mahanagar Telephone Nigam Limited (MNTL) record shows the details of calls made to telephone No.00971506845036. It is suggested that on 25.8.1998 one call at 18:48 hours and two calls on 28.8.1998, one at 11:20 and the other at 15:32 hours were sent to telephone No.00971506845036.

6. It may be seen that the telephonic conversation, which allegedly took place between Abu Salem and the complainant, was at 3.34 P.M. on 28.8.1998. The transcript of conversation recorded in audio cassette has been placed for my perusal. It is primafacie suggested therefrom that the conversation was in respect of property bearing No. C10, Chirag Enclave, New Delhi. The caller, referred to as AS, is alleged to have stated that he has purchased this property from Ashok i.e. the petitioner. The said transcript of conversation primafacie suggests the threat given by the caller to the complainant, if he did not agree to sell this property as desired by the caller. The name of the petitioner is specifically referred to by the caller in this telephonic conversation as the person from whom the caller is said to have purchased the property.

7. Vide Notice dated 14.2.1998, the petitioner alleged oral agreement to sell the roof rights in his favour by the complainant. In the ejectment suit, filed against M/s. Modi Rubber Limited by the complainant, the petitioner tried to get himself imp leaded but the said prayer was later on withdrawn on 1.6.1998, as suggested from the papers of investigation. On 25.8.1998, telephone calls from the cellular phone of Romesh Sharma to telephone No. 00971506845036 and immediately thereafter a telephone call from telephone No. 00971506845036 in Dubai to the complainant, which was received by the daughter of the complainant; telephone call on 28.8.1998 at 18:48 hours to telephone No.00971506845036 from the telephone of the complainant and again telephone calls from complainant's telephone to telephone No. 00971506845036 at Dubai prima facie suggest the telephonic conversation and the threat administered to the complainant in connection with the sale of the property bearing No.C10, Chirag Enclave, New Delhi of the ownership of the complainant, which is in occupation of the petitioner and the transcript of conversation recorded in audio cassette on 28.8.1998 at 3.34 P.M. prima facie suggesting the purchase of the said property by the caller AS from the petitioner would suggest the connection between the petitioner and the caller AS as regards the deal of the property bearing No.C10, Chirag Enclave, New Delhi.

8. It may be seen that the F.I.R. is registered on the basis of the complaint with regard to the telephonic conversation, which took place in the evening of 25.8.1998. The complaint before the Commissioner of Police is filed on 26.8.1998. Formal F.I.R. is registered on 31.8.1998 by the police at P.S. Lajpat Nagar, New Delhi. The transcript of conversation is recorded in audio cassette on 28.8.1998 at 3.34 P.M. It is obvious that the reference to telephonic conversation on 28.8.1998 would not find place in the complaint, which is lodged on 26.8.1998 before the Commissioner of Police and obviously the statement of the complainant would be recorded only subsequent to 28.8.1998, which statement is recorded on 31.8.1998 and there would obviously be no reference in the complaint dated 26.8.1998 to the threat administered in the telephonic conversation on 28.8.1998.

The attempt to get imp leaded by the petitioner in the ejectment suit, which was in respect of the whole property; the claim staked in respect of the roof rights for construction of first floor on the basis of alleged agreement to sell, coupled with the transcript of audio cassette recorded, referring to the petitioner as also the telephone calls to and from Dubai, as suggested from record, would primafacie suggest the involvement of the petitioner.

9. Considering the papers of investigation and the gravity of the offence the petitioner would not be entitled to the discretion of bail and the petition is liable to be dismissed. Order accordingly.