Ashok Bhadauria And Ors. vs State [Along With Crl. Rev. P. ...
2008 Latest Caselaw 677 Del

ORDER

S. Muralidhar, J.

1. These are three sets of petitions raising similar questions. Accordingly they are being disposed of by this common judgment.

2. Criminal Miscellaneous Case No. 3189-95/2006 under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeks to challenge the order dated 22nd April 2006 passed by the learned Additional Sessions Judge (ASJ), New Delhi setting aside an order dated 23rd March, 2004 passed by the learned Metropolitan Magistrate (MM), New Delhi discharging the Petitioners and directing the learned MM to frame a charge and proceed with the trial in accordance with law.

3. Criminal Revision Petition No. 59 of 2007 filed under Section 397/401 read with Section 482 CrPC challenges the orders dated 9th October, 2006 passed by the learned MM in FIR No. 10/1998 registered at Police Station defense Colony deciding to frame charges against the Petitioners and framing charges.

4. Criminal Revision Petition No. 107 of 2007 by Shri R.L. Kapoor and Shri Nandkishore Bindra also seeks to challenge the aforementioned orders dated 9th October, 2006/9th December, 2006 passed by the learned MM.

5. The facts in brief leading to the filing of these petitions is that the complainant Majpr Pavinder Ahluwalia is the son of Brig. A.S. Ahluwalia and Smt. Charanjeet Ahluwalia. Brig. Ahluwalia out of his own earning came to acquire the property at D 4, defense Colony (hereafter the property ) on which was built a building consisting of ground and first floors and an Annexe. Initially the property was made part of the HUF consisting of Brig. Ahluwalia as the Karta. Later a complete partition was effected. It is claimed by the petitioners that as a result of the partition the ground floor portion of the property fell to the share of Smt. Charanjeet Ahluwalia, the first floor and barsati portions of the property to Brig. Ahluwalia and the Annexe to the son. On 25th July 1997, Brig. Ahluwalia expired. According to the Petitioners one week prior to his death, on 19th July 1997, Brig. Ahluwalia executed a Will disinheriting his son Major Pavinder Ahluwalia and bequeathing his share of the property in its entirety to his wife Smt. Charanjeet Ahluwalia. It is stated that the relationship between mother and son deteriorated thereafter.

6. On 25th May, 1995 Major Pavinder Ahluwalia and his sister Smt. Komal Ahluwalia jointly filed Civil Suit No. 192 of 1995 in the Court of the Senior Civil Judge, New Delhi against Smt. Charanjeet Ahluwalia and the eldest daughter Smt.Kokila Hejmadi for a declaration of their one-fourth share each in the property and for an injunction restraining the defendants from alienating the ground and first floors of the property and from dispossessing the plaintiffs from the second floor of the property. On 21st August, 1995 an ex parte interim order restraining the defendants from selling, alienating or parting with possession of the property was passed by the Civil Court in an application filed under Order XXXIX CPC in the in the said suit.

7. On 1st February 1996 Smt.Ahluwalia filed an application under Order 9 Rule 7 CPC for vacating the ex parte interim order. In it she claimed that she had on 14th August 1995 entered into an agreement for sale of the ground floor of the property to Shri R.C.Goel, Petitioner No. 3 herein; that she had agreed to sell the first floor to Shri Prashant Bahaduria, Petitioner No. 2. Later on 11th September 1996 she filed a written statement in the suit.

8. On 2nd January 1998 Major Pavinder Ahluwalia lodged a complaint with the police alleging that with a view to avoiding the said interim order of injunction dated 21st August 1995, the petitioners and Smt.Ahluwalia entered into a conspiracy and prepared an ante-dated agreement to sell of 14th August 1995 agreeing to sell the property to Shri R.C.Goel Petitioner No. 3 in Crl. Misc. (C) No. 3189-95 of 2006. It is further alleged that Shri R.L. Kapoor and Shri Nand Kishore Bindra, petitioners 5 and 4 respectively in Crl. Misc. (C) No. 3189-95 of 2006 were the witnesses who attested the said agreement to sell and were therefore part of the conspiracy.

9. The investigations by the police led to the filing of the charge sheet on 6th October 2001. After narrating the contents of the complaint received from Major Pavinder Ahluwalia, the charge sheet noted that there were three separate agreements to sell dated 14th August, 1995 entered into by Smt. Ahluwalia with Shri R.C. Goel, Shri Ashok Bhaduria and Shri Parshant Bhaduria to sell the ground, first and second floors respectively to each of them. The three agreements were witnessed by Shri R.L.Kapoor and Shri Nand Kishore Bindra. It was stated that Smt. Ahluwalia executed three wills on 9th October, 1995 in favor of the three purchasers. The wills were attested by Lt. Col. T.M. Singh and Shri Shyamsunder Singh, Petitioners 6 and 7 in Crl.Misc. 3189-95 of 2006. The charge sheet noted inter alia that the agreements to sell were sent for examination to the Forensic Science Laboratory (FSL) and that its report showed that the stamp papers on which the agreements to sell were drawn up and shown to have been purchased on 5th August, 1995 were in fact purchased on 1st September, 1995. It also noted that Smt. Ahluwalia expired on 15th January, 1997.

10. After examining the charge sheet and perusing the documents, the learned MM by an order dated 23rd March, 2004 held as under:

It is clear from the record that there is nothing incriminating against accused persons as the property in question has been sold by the deceased mother of the complainant during her life time to the accused person for which she has received payment vide pay order which have also been encashed. It has also been admitted by the deceased mother of the complainant during the life time to the accused person.

Therefore, I am of the considered opinion that as there is nothing incriminating against accused persons no offence is made out against the accused and they merit to be discharged.

I am fortified in my opinion by the judgment of the Supreme Court of India reported in 1996 J.C.C. 507 in Satish Mehra v. Delhi Administration and Ors. wherein their Lordships have expressed a similar view that when a judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date.

Therefore, in view of the foregoing reasons I am of the opinion that no offence as made out against the accused persons and there is nothing incriminating against them accused persons are hereby discharged. Their bail bonds and surety bonds are cancelled. Their respective sureties are discharged. File be consigned to record room.

11. Aggrieved by the aforementioned order Crl. Revision Petition No. 31/2004 was filed by the State in the Court of the learned ASJ. It was submitted on behalf of the State before the learned ASJ that there was sufficient material on record to show that the agreement to sell had been antedated for by-passing the order of interim injunction passed by the civil court on 25th August, 1995. While allowing the revision petition, the learned ASJ by the impugned order dated 22nd April, 2006 came to the following conclusions:

Ld. Metropolitan Magistrate has taken in consideration the certified copies of the pleadings of civil litigation between the parties. I am of the opinion that Ld. Metropolitan Magistrate has erred in considering those documents because at the stage of framing of charge, a trial court cannot consider the documents of the accused. The accused will have an ample opportunity to confront the witnesses with the said documents or to prove those documents in their defense evidence. In State of Orissa v. Devender Nath Padhi, the Full Bench of Hon ble Supreme Court said that there is no provision in Cr.P.C. which grants the accused any right to file any material or document at that stage. The Full Bench of Hon'ble Supreme Court overruled the Subhash Mehra case in which Supreme Court taken contrary view.

Ld. defense Counsel argued and submitted the written argument before the trial court and his argument that there is no intention to cheat because the accused persons had made full payment to Smt. C. Ahluwalia. I am of the opinion that as per the investigation the accused respondents had conspired with Smt. C. Ahluwalia in ante dating the agreement so that the effect of the stay order by civil court is given go by and thereby complainant is cheated. In these circumstances I am of the opinion that Ld. Metropolitan Magistrate has gravely erred in discharging the accused persons. I am of the opinion that the prima-facie case Under Section 420/467/468/471 IPC read with Section 120-B IPC is disclosed against all the accused persons for cheating the complainant by ante dating the three agreements to sell prior to the date of the order of the civil court as well as for conspiring to forge fake wills having forged signatures of Smt. C. Ahluwalia in view of the above discussion I set aside the order of the Ld. Metropolitan Magistrate.

The learned ASJ concluded the said order dated 22nd April, 2006 with the observation that written submission filed by the learned Counsel for the respondent shall be considered at the stage of final arguments by learned Metropolitan Magistrate.

12. When the case resumed before the learned MM on 19th October, 2006 an order was passed deciding to frame charges and on the same date, charges were framed. The order dated 9th October, 2006 only does not actually discuss any of the material on record and holds that charge can be framed today and plea of accused Parshant Bhaduria can be recorded on next date of hearing. Thereafter the charges were framed against the petitioners on 5 different counts under Section 420, 467, 468, 471 read with 120 IPC. Aggrieved by the aforementioned orders, the present petitions have been filed.

13. Mr. P.N. Lekhi, the learned Senior Counsel, appearing on behalf of the two attesting witnesses to the agreement to sell, i.e., Shri R.L. Kapoor and Shri Nand Kishore Bindra submitted that there is absolutely no reasoning given in the impugned order of the learned ASJ as to why the order of the learned MM was being reversed apart from merely stating that the learned MM could not have relied on certain documents including the pleadings in the civil suit. He submits that the learned ASJ failed to appreciate the position of the two attesting witnesses vis-a-vis the alleged offences of cheating and forgery. Referring to the provisions of Section 68 of the Indian Evidence Act, 1872 and Section 3 Transfer of Property Act, 1882 which defines the word attested, Mr. Lekhi submitted that there is no liability attaching to an attesting witness as a result of appending a signature in the capacity of a witness to the execution of a document. He referred to the consequential framing of charges by learned MM and points out that it is not in conformity with the requirements of law as spelt out in Sections 212 and 213 CrPC. The charges were omnibus and vague, and nothing in the charge indicated that the two attesting witness actually knew that the documents they were attesting were forged. The attestation is only a proof of the fact of execution of the document, and cannot constitute proof of the manner of preparation of the document or even the purpose for which the document was prepared. He relied upon the judgments in Seth Beni Chand (since dead) v. Smt. Kamla Kunwar , N. Kamalam (dead) v. Ayyasamy and Bhagat Ram v. Suresh . He also placed reliance upon the judgment in Burdett v. Spilsburry [1842-43] X Clark and Finnelly, 340.

14. Mr. H.S. Phoolka, the learned Senior Counsel, appearing for the other petitioners submitted that there is a fundamental error in the impugned order of the learned ASJ in proceeding on the basis that the learned MM had relied on material that did not form part of the case record, and therefore had acted in contravention of the law as explained by the Supreme Court in State of Orissa v. Debendra Nath Padhi . Referring to the list of documents appended to the charge sheet Mr. Phoolka pointed out that the documents referred to by the learned MM were very much part of the documents produced by the prosecution and not by the accused as wrongly presumed by the learned ASJ. It is submitted that the impugned order of the learned ASJ was a non-reasoned one. Both Mr. Lekhi and Phoolka pointed out that the order of framing charges and the charges framed as well did not satisfy the requirement of law. They submitted that the petitioners will confine their prayer to seeking remand of the revision petition filed by the State to the learned ASJ for a fresh consideration on merits after giving the accused a full opportunity of being heard.

15. Mr. Pawan Behl, the learned APP, appearing for the State contended that the fact that an agreement to sell was dated 14th August, 1995 whereas the stamp paper on which it was typed out was purchased only on 1st September 1995, was tell-tale evidence which would support the order of the learned ASJ directing the framing of the charges against the Petitioners. He submits that even the attesting witnesses cannot escape liability in such an event by pleading ignorance of the fact of forgery by tampering with the dates of purchase of the stamp paper. According to Mr. Behl, if the evidence is read as a whole, it would justify the framing of a charge. The impugned orders should not be interfered with if they can be sustained on an independent reasoning based on the material on record. He submits that the pleadings in the civil suit, even if forming part of the documents along with the charge sheet, do not advance the case of the petitioners since those documents were filed after the death of Smt. Charanjeet Ahluwalia. Without prejudice to these submissions, Mr. Behl submits that if the matter is to be remanded to the learned ASJ for a fresh consideration of the States revision petition on merits, then a time schedule should be set for its expeditious disposal.

16. This Court finds that the learned ASJ has in the impugned order dated 22nd April, 2006 proceeded on the basis that the learned MM had considered the documents of the accused and that in view of the decision of the Supreme Court in Debendra Nath Padhi there is no provision in the Cr.P.C. which grants the accused any right to file any material or document at that stage. This appears to be factually incorrect. It is seen from the list of documents appended to the charge sheet that the documents referred to by the learned MM in the order dated 23rd March, 2004 form part of the said list. For instance, Serial No. 3 is the photocopy of the Will dated 19th July, 1997. Serial No. 4 is the copy of the pleadings in Crl. Misc. (Main) No. 163 of 1998, copy of a suit No. 192 of 1995 filed before the Senior Civil Judge, Delhi as well as the application and written statement filed therein by Smt.Ahluwalia. This Court is, therefore, unable to agree with the reasoning of the learned ASJ that the learned MM had committed an error in referring to certain documents produced by the accused. Clearly, the aforementioned documents placed along with the charge sheet, have been produced by the prosecution and not by the accused.

17. Having committed the aforementioned error, the learned ASJ did not consider it necessary to discuss the merits of the case but straightway recorded the conclusion that the prima-facie case Under Section 420/467/468/471 IPC read with Section 120-B IPC is disclosed against all the accused persons for cheating the complainant by ante dating the three agreements to sell . The learned ASJ did not give any reasons for the conclusion.

18. Even the learned MM, after remand, did not discuss the material on record while deciding to frame charges. The charges framed do not contain the minimum particulars stipulated in Sections 212 and 213 CrPC in relation to each of the accused.

19. For the aforementioned reasons, this Court is of the view that since there has been no consideration of the materials on record by either the learned ASJ, or on remand by the learned MM, the revision petition should be remanded to the learned ASJ for a fresh determination in accordance with the law. The interests of justice will be served if it is directed that the learned ASJ should complete this exercise within a reasonable time frame.

20. Accordingly the impugned order dated 22nd April, 2006 passed by the learned ASJ and the consequential orders dated 9th October, 2006 passed by the learned MM deciding to frame charges and framing charges are hereby set aside. The States Criminal Revision Petition No. 31 of 2004 titled State v. Ashok Bhadauria and Ors. will now be restored to the file of the learned ASJ for consideration on merits after taking into account all the contentions raised by the Petitioners and the State in these petitions before passing a fresh order in accordance with law. The learned ASJ should endeavor to hear the arguments afresh and dispose of the revision petition by a reasoned order on or before 31st August, 2008. The parties will appear before the learned ASJ on 30th April, 2008 for directions.

21. With the above directions, the petitions are disposed of with no orders as to costs.

22. A copy of this order be sent to the court of the learned ASJ on or before 25th April, 2008. Trial court record be sent back immediately. Order dusty to the parties.