Sanjay Mahajan & Another vs State And Another
1999 Latest Caselaw 1009 Del

ORDER

K.S. Gupta, J.

1. This petition under Section 482 Cr.P.C. seeks the quashing of FIR No. 146/97 under Sections 420/468/471/506/120-B/34 IPC PS Preet Vihar against the petitioners.

2. Said FIR No.146/97 was lodged by Ms. Mina Gupta, a stenographer (respondent No. 2) inter alia, alleging that house No. 17, defense Enclave, Delhi belonged to her father who died on 11th April, 1985. She is the only heir of him. On 12th April, 1995, she called Rakesh Mahajan, a property dealer, for letting out room(s) in the said house. On 22nd April, 1995, she let out one room to Sanjay Mahajan, petitioner No.1 on a monthly rental of Rs. 2,000/-. On 23rd May, 1995, she left for Calcutta to see her relatives. On 28th June, 1995 when she came back, she found that petitioner No. 1 had given that room to one Satish Loomba on receiving Rs. 3 lacs from him. Before her departure to Calcutta, petitioner No.1 has constructed a room on the backside of the house in place of garrage and when she objected, he assured to pay rent at the enhanced rate of Rs. 3,000/- per month. Thereafter, petitioner No.1 further constructed 3-4 rooms in the back portion of the house and in September 1995, he started using them and also sub-let some of them. After vacation of the room by said Satish Loomba on 3rd May, 1997, possession thereof was taken by petitioner No.1. She had opened account No. 3540 with State Bank of India, Swasthya Vihar branch in the year 1985 which was later on closed as she did not deposit any amount therein. In January 1997, she was called by the manager of Syndicate Bank, Nirman Vihar branch who enquired about the business she was doing as huge amounts were being deposited in her account. She told him that she had not opened any account in that bank. After checking the bank records, manager told her that she had been introduced by petitioner No.1. Bank staff advised her to get a case registered against petitioner No.1 as he was doing fictitious business in her name regarding which she was unaware. Thereafter, the told petitioner No.1 to accompany her to the said branch of Syndicate Bank upon which he showed a revolver and warned her that if she visited the Syndicate Bank again, he would shoot her. He also warned her not to speak anything against him. After 2-3 days, she again visited the said bank and gave in writing to close the account in her name. She has come to know that petitioner No.1 and Manu Bansal, petitioner No. 2 have got the said house transferred in their names on the strength of forged documents. Petitioners have further forged her signatures for the purpose of opening account in her name in the said bank and, therefore, legal action may be taken against them.

3. Petitioners claim of having purchased aforesaid house No. 17, defense Enclave from respondent No. 2 for a sum of Rs. 12 lacs, which amount was deposited in account No.17517 in the name of respondent No.2 with Syndicate Bank, Nirman Vihar branch. This amount is alleged to have been withdrawn by respondent No. 2 through cheques dated 7th February, 1997 for Rs. 3 lacs, dated 13th February, 1997 for Rs. 3 lacs, dated 20th February, 1997, 1997 for Rs. 3 lacs, dated 25th February, 1997 for Rs.1 lacs, again dated 25th February, 1997 for Rs. 50,000/- and again dated 25th February, 1997 for Rs. 50,000/-. In connection with the sale, respondent No.2 is stated to have executed Agreement to sell, General power of attorney, Special power of attorney, Will, Possession letter and receipt for Rs. 12 lacs, all dated 29th January, 1997. These documents bearing the thumb impressions in addition to signatures together with specimen thumb impressions of respondent No.2 S-1 and S-2, were sent for comparison to Finger Print Bureau, Delhi Police, Delhi. FPB report dated 9th September, 1997 placed at pages 253 to 255 of the trial court record goes to show that the questioned thumb impressions Q2-D on General power of attorney, Q3-B, Q3-C on the Will, Q4-B, Q4-C on the Special power of attorney and Q6-B on the receipt for Rs.12 lacs, all dated 29th January, 1997. are inter se identical and are further identical with left hand thumb impression marked S-2 of respondent No. 2. In respect of the remaining questioned thumb marks appearing on the said documents, it has been observed in the said report that no opinion can be given regarding them as either they are partial, blurred, smudged or do not disclose sufficient number of ridge details in their relative positions for comparison. Aforesaid documents alongwith said six cheques, account opening form dated 15th January, 1997, specimen signature card on which passport size photograph of respondent No.2 is affixed pertaining to account No.17517 in the name of respondent No. 2 with Syndicate Bank, Nirman Vihar branch allegedly bearing the signatures of respondent No.2, specimen signatures and writings marked S1 to S19, account opening form in respect of account No. 3540 with State Bank of India, Swasthya Vihar branch and the two cheques dated 26th March, 1997 and 13th February, 1997 drawn in that account admittedly bearing the signatures of respondent No. 2 marked as A1, A1/1, A1/2, A2, A3, A3/1 and A-3/2 etc. were also sent by the Investigating Officer for comparison of signatures to Forensic Science Laboratory, New Delhi and the report of the Laboratory dated 28th January, 1998 is placed at pages 259 to 261 of the trial court record. This report notices that the person who wrote signatures and writings marked S1 to S19. A1, A1/1, A1/2, A2, A3, A3/1 and A3/2 also wrote the signatures and writings marked Q1, to Q4, Q6 to Q33 and Q35 to Q86 which include the signatures on aforesaid Agreement to sell, General power of attorney, Will, Special power of attorney, Possession letter, receipt of Rs.12 lacs, Income-tax Form No.34-A, account opening form of Syndicate Bank, Nirman Vihar branch, specimen signatures given in Syndicate Bank, Nirman Vihar branch and also six cheques for a total sum of Rs.12 lacs drawn on the said bank. Detailed reasons for arriving at the said conclusion are incorporated in the above report dated 28th January, 1998 itself.

4. It seems that on the strength of the said two reports dated 9th September, 1997 and 28th January, 1998 etc. the Investigating Officer after obtaining approval from the superior police officers, moved the trial court for discharge of the petitioners stating that the transaction of sale of the said house was genuine but that request was declined by the order dated 4th April, 1998 noticing that even if both the said reports are taken note of, the allegations pertaining to Section 506 IPC levelled against the petitioners which derive support from the statement of respondent No. 2 recorded under Section 164 Cr.P.C., still stand. Needless to repeat that those allegations relate to the proposed visit of petitioner No.1 and respondent No. 2 to Syndicate Bank, Nirman Vihar branch to confirm the opening of said account No. 17517 by respondent No. 2 wherefrom Rs. 12 lacs were withdrawn through aforesaid six cheques which as per the said FSL report bear the signatures of respondent No. 2. Allegations in question are obviously connected with the sale transaction which fact was not considered by the trial court at the time of the passing of the said order.

5. It is not in dispute that the petitioners filed Suit No.189/97 against respondent No. 2 for possession of two rooms, latrine and bathroom forming part of said house No.17. defense Enclave and mesne profits which was decreed ex parte by the order dated 25th September, 1997 by an Addl. District Judge, Delhi. It is further not in dispute that initially Ms. Mina Gupta, complainant was not imp leaded as a respondent in the present petition but notice was ordered to be issued to her by the order dated 18th May, 1998. Amended memo of parties impleading her as respondent No. 2 was also filed on 10th July, 1998. Pursuant to the notice, respondent No. 2 put in appearance on 9th September, 1998 and sought time to engage a counsel and the case was postponed to 28th October, 1998. Again at the request of respondent No. 2, case was adjourned to 9th December, 1998 on 28th October, 1998. Again at her request, case was postponed to 3rd February, 1999 on 9th December, 1998. In the meantime on 12th January, 1999, Crl. M. No. 349/99 was filed by her. On 15th January, 1999, she was represented by Sh. Neeraj Tiwari, Advocate and notice of said Crl. M. No. 349/99 was ordered to be issued for the date fixed, i.e. 3rd February, 1999. Again on 3rd February, 1999 and 16th March, 1999, Sh. Neeraj Tiwari put in appearance for respondent No. 2. On 18th May, 1999, case was adjourned to 5th August, 1999 as the lawyers were on strike and on that date Sh. Abhijat Chatterjee, Advocate put in appearance for respondent No. 2. It was disclosed that chargesheet has been filed against the petitioners under Section 506 IPC. File of the trial court was thus ordered to be secured for 1st September, 1999. In the meantime, without any direction by this Court, an additional affidavit of respondent No. 2 was filed on 30th August, 1999 supporting the averments made in the FIR. It is pertinent to note that an application dated 18th May, 1998 under Order IX Rule 13 CPC was filed for setting aside the ex parte judgment and decree dated 25th September, 1997 before the concerned Addl. District Judge. During the pendency of that application, another application under Section 151 CPC was filed by respondent No.2 on 12th January, 1999 supported by her affidavit for dismissing the said application filed under Order IX Rule 13 CPC and by the order dated 27th January, 1999, respondent No. 2's application under Order IX Rule 13 CPC was dismissed as withdrawn. In para No. 3 of the said application under Section 151 CPC dated 12th January, 1999 it is stated that respondent No. 2 has compromised the matter with the petitioners out of Court and no dispute remains between them. In aforesaid Crl. M .No. 349/99 filed in the present petition which is supported by affidavit, it is, inter alia, stated that with the intervention of common friends and respectable members of the society, she has arrived at a settlement with the petitioners; that she has also filed an application before the concerned Addl. District Judge for withdrawal of the application filed under Order IX Rule 13 CPC and that in view of the settlement, she does not wish to pursue the aforesaid FIR No.146/97 and the same may thus be quashed together with the criminal proceedings arising therefrom. It may be noticed that in the said additional affidavit filed on 30th August, 1999 by respondent No. 2, she does not deny the factum of the filing of the application under Section 151 CPC for withdrawal of the application under Order IX Rule 13 CPC and the order passed thereon on 27th January, 1999 by the concerned Addl. District Judge, moving of said Crl. M. No. 349/99, settlement arrived at between the parties and also the execution of power of attorney by her in favour of Neeraj Tiwari, Advocate who moved the said two applications and also appeared on her behalf on three dates in this petition. Summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course and the Court should not hesitate to exercise the power of judicial review albeit discretionary in appropriate cases under Section, 482 Cr.P.C. (See : M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate and Ors., AIR 1998 SC 128). In view of both the aforementioned reports dated 9th September, 1997 and 28th January, 1998 and what is stated in the application filed under Section 151 CPC dated 12th January, 1999 before the concerned Addl. District Judge and said Crl.M. No. 349/99 filed in this petition as also the facts and circumstances of the case, it would tantamount to abuse of process of law if the criminal proceedings based on aforesaid FIR No. 146/97 are allowed to go on against the petitioners.

6. Therefore, the petition is allowed and the said FIR and the Criminal Proceedings arising therefrom presently pending before Sh. Deepak Garg, M.M., Karkardooma courts are hereby quashed.