T.S.Bassali vs State Of Delhi
2008 Latest Caselaw 2140 Del

                        "REPORTABLE"
                                           4#
*           HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. 3641/2007 & Crl. M.A. No. 13301/2007

                               Date of decision: 03.12.2008

#     T.S. BASSALI                        ..... PETITIONER

!             Through :        Mr. O.P. Khadaria, Adv.
                               Mr. Deepak Khadaria, Adv.

                             Versus

$     STATE OF DELHLI                .......RESPONDENT

^           Through :          Mr. Lovkesh Sawhney, APP.
                               SI Kumar Kundan

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not? Yes

     (3) Whether the judgment should be reported
         in the Digest ?                     Yes

ARUNA SURESH, J. (Oral)

1. Impugning the order of the learned Additional Sessions

Judge dated 9.10.2007, whereby the Trial Court

dismissed the revision petition of the petitioner against

the order on charge dated 1.2.2004 passed by learned

Metropolitan Magistrate and framed charges against

the petitioners and other accused for offences under

Sections 419, 420, 468, 471 read with Section 120B

IPC, present petition has been filed seeking quashing

of FIR No. 266/2000 as well as the impugned order of

the Additional Sessions Judge.

2. Petitioner was working as an Assistant Engineer,

Technical Section with Land & Development Office,

Ministry of Urban Development, New Delhi from where

he retired on 31.12.1996. Complainant Madhav Dass P.

Raisinghani was allotted House No. 17, Block No. M-II,

Lajpat Nagar, New Delhi, by Government of India,

Ministry of Rehabilitation vide allotment letter No.

1/LN/C-39/52 dated 22.04.1952 and possession of said

house was handed over to the complainant on

16.05.1992. Accordingly, a lease deed as well as a

conveyance deed was executed in favour of the

complainant by the Managing Officer, Regional

Settlement Commissioner Office, New Delhi on 3.8.62

duly registered with the Sub-Registrar of Delhi on

18.08.62, Government of India floated a scheme for

getting the leasehold properties converted into freehold

properties. Consequently, complainant filed an

application being application No. 2381 on 28.03.2000

with the Land & Development Officer, Nirman Bhavan,

New Delhi for getting the said property converted into

freehold. Along with this application, he also annexed a

challan in the sum of Rs.19,000/-, DD No. 3780 drawn

on Punjab National Bank, CPDC, Delhi dated

18.03.2000 and Indemnity Bond dated 21.03.2000.

Complainant was called by Vigilance cum Legal Officer,

Ministry of Urban Development and Poverty Alleviation,

Land & Development Office, Nirman Bhawan, New

Delhi to be present before the said officer on

24.08.2000 along with the Identity Card, Ration Card

and original documents of the said property. When

complainant visited the office, he was surprised to

know that though he was alive and had not executed

any document in favour of any person regarding the

said property, the said property had been mutated in

favour of Shri Ram Niwas on the basis of forged Will

dated 22.06.1990 which was annexed with a false death

certificate of the complainant indicating that

complainant has expired on 18.06.1992 though, without

looking into the original documents of lease deed and

conveyance deed, the officials of L&DO were not

entitled to entertain any application for mutation,

especially when the original lease deed was in favour of

the complainant.

3. After getting the property mutated in his name, Ram

Niwas filed another set of documents before the L&DO

for getting the leasehold property converted into

freehold property in his name. He submitted his

application form with his photograph, challan form with

a fees of Rs. 37,280/-, indemnity bond dated 6.6.96

indicating that he was in physical possession of the

property, affidavit dated 7.6.96 that there was no

unauthorized construction and also an affidavit dated

5.8.96 to the effect that he had lost the lease deed. To

cover up his illegal designs, he also issued a notice in

the newspaper Hindustan Times of 20.06.96 reporting

loss of the original lease deed. All these documents

were processed in the office of Property Section L&DO.

Deputy L&DO called Ram Niwas to be present in his

office on 13.08.1996 at 2 p.m. along with two witnesses

for execution of the conveyance deed. The then

Superintendent, Shri Dharam Singh put a note on the

file "Party present and submit the following documents

for execution of the deed: Affidavit Loss of lease deed

P-8/C 2 newspaper cutting Loss of the Lease Deed at P-

10/C-3, Original substitution letter dated 14.6.96 it is

for seen. On view of the above Lease Deed is put up for

approval sign please". This note was signed on 13.8.96

by T.S. Bassali, the present petitioner who was

Assistant Engineer at the relevant time. On the same

day, Ram Niwas attended the office of the petitioner

and conveyance deed was executed in his favour by the

petitioner. As per the conveyance deed, it was

witnessed by one Jagdish Prasad and Jasbir Singh. An

application was also submitted by Ram Niwas on that

day for refund of excess amount paid towards the

conversion charges, which application was also signed

by the petitioner after it was processed by the then

Superintendent Dharam Singh. Ram Niwas received

cheque for Rs. 9,220/- regarding the return of excess

money. Ram Niwas got the conveyance deed registered

in his name in the office of the Sub-Registrar on

21.08.1996 and also got the property mutated in the

office of the MCD, Lajpat Nagar in his own name.

4. During the course of investigation, it was revealed that

signatures of the witnesses; Jagdish Prasad and Jasbir

Singh; which were required to be obtained by Shri

Dharam Singh; the then Superintendent and Shri T.S.

Bassali; the petitioner, the then Assistant Engineer, in

their presence before the issue of conveyance deed,

were put by Ram Niwas as Jagdish Prasad and Jasbir

Singh and therefore, the presence of the said two

witnesses were fabricated and their signatures forged.

Petitioner was arrested and was released on bail.

5. Learned counsel for the petitioners has urged that the

alleged acts committed by the petitioner were in the

discharge of his official duty and therefore, even if the

petitioner had retired, sanction under Section 197

Cr.P.C. was required before prosecuting the petitioner.

No specific sanction was obtained by the respondent

and therefore, FIR is liable to be quashed against the

petitioner. He has referred to:

1. R.Balakrishna Pillai v. State of Kerala & Anr. -

AIR 1996 SC 901.

2. P.K. Choudhury v. Commander 48 BRTF (GREF)

- III (2008) SLT 440.

3. Raghunath Anant Govilkar v. State of

Maharasthra and Ors. - 2008 III AD (S.C.) 153.

4. R.R. Gautam & Anr. v. State & Anr. - 2008 IV

AD (Delhi) 179.

6. Learned Additional Public Prosecutor for the State has

refuted the submission of the learned counsel for the

petitioner and has argued that petitioner committed

offence of cheating and forgery in conspiracy with the

other officials of the department as well as Ram Niwas

and other persons who had signed as witnesses and

other private persons in getting the property mutated

in the name of Ram Niwas and subsequently getting it

converted into freehold and also enabling Ram Niwas to

get the sale deed registered and property mutated in

his name and the acts of the petitioner therefore cannot

be considered to have been done or committed during

the discharge of his official duties. His acts of forgery

and connivance in commission of forgery with other

persons, especially Ram Niwas cannot be given colour

of duty so as to necessitate the sanction as required

under Section 197 Cr.P.C. for prosecuting the

petitioner. Therefore, the State, according to him, was

within its right to file the chargesheet against the

petitioner and others and trial court rightly took

cognizance of the offences and framed charges against

the petitioner. Indisputably, petitioner was working as

Assistant Engineer at the time of commission of offence

and he retired from services on 31.12.1996.

7. As per notification dated 6.1.1995, petitioner being

Assistant Engineer was empowered to sign all contracts

and assurances of property relating to matters falling

within the jurisdiction of Land & Development Officer;

all contracts, deeds or other instruments relating to or

for the purpose of enforcement of the terms and

conditiona of the sale/lease deeds of the Government

Built Property in Delhi/New Delhi etc.

8. Vide office order dated 23.1.1995, it was made clear

that Assistant Engineers would execute conveyance

deeds in respect of conversion cases with immediate

effect. Vide letter dated 2.8.96 issued by deputy Land

& Development Officer, Mr. T.C. Hingorani, Ram Niwas

was required to be present in person in the office on

13.08.1996 at 2 p.m. along with two witnesses and

documents as detailed therein. Thus, it is clear that

Ram Niwas was required to bring two independent

witnesses with him to witness the execution of the

conveyance deed and this conveyance deed was to be

executed by the petitioner in the presence of the

witnesses and he was also required to obtain the

signatures of the witnesses on the conveyance deed in

his presence.

9. The investigation has indicated that the conveyance

deed was purported to have been witnesses by Jagdish

Prasad and Jasbir Singh. It was also signed by the

petitioner. Perusal of the conveyance deed indicated

that petitioner had signed this document in the

presence of the said two witnesses. However, there

were no such persons by the name of Jagdish Prasad

and Jasbir Singh present at the time of execution of the

conveyance deed. The names of witnesses and their

addresses were fabricated and forged by Ram Niwas.

Ram Niwas signed the conveyance deed as Jagdish

Prasad and Jasbir Singh in the presence of the

petitioner. Prima facie, it cannot be said that petitioner

acted within his official duties or in discharge of his

official duties in conniving with Ram Niwas to sign for

himself as well as for witnesses by impersonating

himself as Jagdish Prasad and Jasbir Singh. This act of

the petitioner was nothing but a conspiracy with Ram

Niwas with a view to help him (Ram Niwas) in his

wrongful gain and getting property transferred and

then getting it freehold in Ram Niwas's name. It is not

a case of exercise of official duties, a case of negligence

or a bona fide mistake, which could be given colour of

office. It is nothing but an apparent fraud and forgery

committed by Ram Niwas in connivance with the

petitioners.

10. Under these circumstances, no sanction under Section

197 Cr.P.C. was required to be obtained by the

respondent-State before filing the chargesheet against

the petitioner. It is also pertinent to mention here that

petitioner never raised this legal issue either before the

trial court or before the revisional court and it has

been raised for the first time only in the present

petition seeking quashing of FIR.

11. Hence under the facts and circumstances of the case, I

find no merits in the present petition. I do not find any

illegality and infirmity in the order of the learned

Metropolitan Magistrate or of the Revisional Court

dated 9.10.2007. Hence petition is hereby dismissed.

(ARUNA SURESH) JUDGE December 03, 2008 rd