I.N. Ajbani vs Narain Dass P. Godwani And Anr.
2007 Latest Caselaw 1320 Del

JUDGMENT

S. Ravindra Bhat, J.

1. Heard counsel for the parties.

2. In this revision an order of the learned Additional Sessions Judge (hereafter referred to as the revisional court) setting aside the order of the Magistrate, whereby the application of the petitioner for discharge was rejected, has been impugned by the informant/complainant.

3. The undisputed facts are that on 1.8.1987 accused respondent No. 2 and the petitioner entered into an agreement for letting out of the premises II-D/41B, Lajpat Nagar-II, New Delhi. The second respondent/accused is tenant and the petitioner is the landlord. The premises let out were a basement. One of the conditions, namely, Clause (3) inter alia postulated that the tenant would be entitled to a separate electricity connection for which the landlord petitioner would furnish a no objection certificate. It is not disputed that the tenant was enjoying electricity at the time when the premises were let out in 1987. Apparently, the electricity connection was disconnected some time in 1996. The tenant respondent alleged that the landlord did this unilaterally; the latter, however, disputed it. The fact remains that electricity connection was disconnected. The tenant thereafter moved the Rent Controller under Section 45 of Delhi Rent Control Act and his application was rejected.

4. The landlord alleged (and it was the basis for the FIR) that the tenant had procured certain documents purporting to be a trade licensee from the MCD; on the basis of such fabricated material he managed to secure electricity connection to the basement premises without his authority. The complaint culminated in an FIR lodged on 24.9.1996. The FIR alleged commission of offences under Sections 420/467/468/471 IPC. The investigation proceeded in the case and thereafter a charge sheet was filed.

5. After filing of the charge sheet, the accused tenant moved an application for discharge under Section 245. The trial court, however, by its order considered the materials including the documents and averments of the applicant before it and rejected the request on 10th December, 2001. The trial court was of the opinion that there were sufficient materials to proceed against the accused for the offences under Sections 420/468 IPC.

6. The matter was carried in revision to the learned Additional Sessions Judge. The learned Additional Sessions Judge considered a letter dated 18.4.1996 written to the Chief Minister by the complainant landlord's father. The court proceeded to analyze the Rent Deed dated 9.4.1987 which had initially created the tenancy and reasoned apparently that no objection was forthcoming at the outset. Therefore, it concluded that offence of cheating under Sections 415 could not be made out. As far as forgery was concerned, the revisional court held as follows:

Now, coming to the forgery of the documents. The rent deed disclosed that the complainant who is now deceased vide para no. 9 at page No. 3 of the Rent Deed has bound the tenant i.e. Revisionist that he shall be liable to pay enhanced ground rent, regularization charges, penalties imposed for other than Residential use of Basement floor. Therefore, the complainant has consented to the Revisionist to use the Basement floor other than residential purpose impliedly. The condition No. 3 on page No. 2 has made out that the Tenant shall arrange separate electric meters and connection in his own name at his own costs for the said Basement Floor rent out to him, and the Landlord shall sign all no-objection letters for obtaining the separate connection from D.E.S.U. by the Tenant. This goes to show that the Revisionist was entitled to get separate connection and the complainant was to give no objection certificate in this regard. In the proceedings before A.R.C. In the Written Statement the complainant re-affirmed that he has given no objection certificate and in case he find difficulty, he could further given no objection certificate during the proceedings. The complainant is now no more. The tenant lived for 9 years up to 1996. The complainant had no problem for 9 years and when the 9 years were to expire he proceeded to file the complaint. Therefore the action on the part of the complaint was afterthought. Mere vague allegations are not sufficient to constitute offence of forgery. Therefore, offence Under Section 468 of IPC is also not made out.

7. Learned Counsel for the petitioner urged that the court had not adverted to trade license which was the basis for the electricity supply to the premises. It was contended that these two documents were in fact forged and were not part of the record of the MCD. He further submitted that the court was influenced by the original tenancy agreement which had undisputedly assured no objection to the tenant but the question was whether the restoration of supply for granting of fresh electric supply in 1996 was on the basis of no objection actually given by the landlord. On the basis of the materials, the court could not have appreciated any documents or materials furnished by the accused tenant.

8. In order to ascertain the correct position the MCD was also issued notice in this case. According to the counsel on 26.3.1996 a letter had been written by the Corporation to the Assistant Engineer, the then Delhi Electric Supply Undertaking (DESU) that the license No. 65311 under its ad hoc policy was in fact not even issued by it to the tenant. The MCD disclaimed any responsibility in that regard and alleged that the document was a forged one. The letter reads as follows:

The Asstt. Engineer(PS)NZD

Delhi Electric Supply Undertaking

Nizamuddin West, New Delhi

Sir,

With reference to your letter No. XD/NZD/a/1339 dated 18.3.96 regarding confirmation of license No. 65311, issued under ad hoc Policy to Sh. Narain Dass P. Godhani S/o Shri P. Godhani for storage of plastic goods at D-41/B, Lajpat Nagat-II (Basement) New Delhi. In this connection it is informed that the records of Licencing Deptt. Has been got checked and it is confirmed that this office has not issued any trade license to Shri Narain Dass P. Godhani. The allged license, a photo copy of which enclosed by you is forged one. The signatures and G-8 receipt Nos. recorded on the said license are all ficticious.

Administrative Officer

Central Zone

M.C.D., Lajpat Nagar

New Delhi.

9. Mr. Ahuja, learned Counsel for the respondent tenant submitted that the course taken by the revisional court is unexceptionable. According to him, the court reasoned correctly that the landlord had furnished his no-objection in the proceedings under Section 45 before the Rent Controller. He sought to place reliance upon the averments in that regard as well as the order of the learned Rent Controller which recorded that according to the counsel no-objection has been given. He further submitted that at this stage it is unfair to require respondent tenant to face trial. Learned Counsel further submitted that the flimsiness of the allegations are discernable from the fact that though MCD alleged that the documents relied upon were false, it took no steps in that regard or even lodged an FIR or complaint. In these circumstances, learned Counsel urged that this Court should decline to exercise its jurisdiction.

10. The dispute here is whether the restoration of electric supply was premised upon a genuine no-objection and whether the documents furnished by the respondent tenant were indeed issued by the MCD. The MCD in its letters dated 1.3.1996 and 26.3.1996, confirmed that the trade license in question which admittedly led to the electric supply being restored to the premises were not issued by it. It even went to the extent of saying that the copy of the letter was a forged one. This is a matter of record which has not been denied. About the other issue, namely, whether the no-objection was given by the landlord, the position is not as clear. This is in view of the fact that in the replication which is a part of the record of this case filed before the Additional Rent Controller, the tenant had stated that the landlord had never given any no-objection certificate to the petitioner.

11. Having considered the materials on record, I am of the opinion that the view taken by the revisional court cannot be sustained. It appears that the revisional court was persuaded to act as it did on the basis of its interpretation of the original Rend Deed. It nowhere discussed whether any other materials which were on record such as the letter of the MCD disclaiming to have ever issued the trade license. It is settled law that the points or questions which the defense may be permitted to take during the trial cannot be considered by the criminal court at the charge framing stage (ref: State of Orissa v. Debendra Nath Padhi ). Therefore, I am of the opinion that the impugned order requires to be set aside. Ordered accordingly. The matter is remitted to the trial court for proceeding further in accordance with law. Parties are directed to appear before the trial court on 20th August, 2007.

The revision petition is disposed off, in the above terms.

Order dusty.