Smt. Ramesh Kumari & Anr. vs M/S Alaknanda Properties (P) Ltd.
2010 Latest Caselaw 5685 Del

          IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. M.C. Nos. 837-38/2006

%             Judgment decided on: 14th December, 2010

SMT. RAMESH KUMARI & ANR.                         .....PETITIONERS

                            Through: Mr. S.K. Sharma, Mr. Pankaj
                                     Vivek and Mr. Harsh, Advs.
                            Versus

M/s ALAKNANDA PROPERTIES (P) LTD.                 .....RESPONDENT

                            Through:   Mr. Harsh K. Sharma, Adv.
                                       for the respondent.


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers         No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?            No

       3. Whether the judgment should be                    No
          reported in the Digest?

A.K. PATHAK, J. (Oral)

1. By this petition under Section 482 of the Code of

Criminal Procedure, petitioners have prayed that the

complaint case no. 254/2001 titled as M/s Alaknanda

Properties (P) Ltd. Vs. Balbir Singh & Others pending before

the Metropolitan Magistrate, Karkardooma Courts, Delhi, as

also the summoning order, be quashed.

2. Factual matrix, relevant for the purpose of disposal of

this petition, is that the respondent filed a complaint under

Sections 192/218/383/386/405/409/420/423/425/426/

427/441/447/451/463/468/503/506 read with Section

120-B IPC and Section 34 IPC wherein 104 persons,

including the petitioners, were arrayed as accused. It was

alleged that respondent had purchased large chunk of land

situated in the village Kapashera from accused nos. 1 to 7

vide General Power of Attorney, Agreement to Sell, Will etc.

sometime in the year 1991-92. On 13th August, 1995, certain

persons claiming themselves to be representatives of

petitioner no.2 (accused no. 8) came to the land in question

and threatened to take forcible possession, therefore,

respondent was compelled to file a suit for permanent

injunction in this court against the accused nos. 1 to 7

wherein interim ex-parte order dated 17th August, 1995 was

passed whereby parties to the suit were directed to maintain

status quo. This order was served on the revenue officials

also. In spite of this, accused nos. 1 to 7, in connivance with

accused nos. 8 to 104, entered into fraudulent and dishonest

sale transactions in respect of piece of land involved in the

suit.

3. It may be noted here that accused nos. 11 to 24 and 104

are Revenue Officials; whereas accused no. 8 to 10 and 25 to

103 are the subsequent purchasers of the land at one or the

other stage. Petitioner no. 1 has been arrayed as accused no.

76. It was alleged that accused nos. 1 to 10 and 25 to 103

had entered the transaction of transfer of land in pieces

amongst each other in connivance with each other, in order

to deprive the respondent of its valuable ownership rights in

the above-mentioned immovable property as also to defeat

the suit filed by the respondent.

4. One of the directors of the complainant company

(respondent) entered in the witness box as CW1, at the pre-

summoning stage, in support of the averments made in the

complaint. Thereafter, learned Metropolitan Magistrate

ordered that a, prima facie, case was made out for

summoning the accused nos. 1 to 10 and 25 to 103 for the

offences under Sections 418/420/423 IPC read with Section

120-B IPC and 506 (Part-II) IPC, consequently, ordered for

their summoning. It may be noted that no reasons for

forming such a view had been given by the Metropolitan

Magistrate in his order, which, on the face of it is clearly

bereft of reasoning.

5. Petitioners filed a revision petition before the Additional

Sessions Judge against their summoning but the same came

to be dismissed on 24th July, 2003. That is how petitioners

are before this Court.

6. Relevant it would be to mention here that in the same

facts accused no. 49 had approached this Court for setting

aside of the summoning order and quashing of the complaint

by way of Crl. M.C. 4890/2005, which has been allowed by a

Single Judge of this Court on 1st October, 2007,

consequently, complaint has been quashed against the

accused no. 49.

7. From the averments made in the complaint, gist whereof

has been narrated in para 2 hereinabove, it is clear that the

petitioners had no dealings with the respondent at any stage.

They had not offered any piece of land for sale to the

respondents. In fact, they are the subsequent purchasers.

They have not even purchased the land from the main

accused nos. 1 to 7. They have come in picture much later.

They are not even related to accused nos. 1 to 7. Though it

has been mentioned in the complaint that petitioners were

aware about the fact that respondent had purchased the land

in question from the accused nos. 1 to 7 but the fact remains

that they were neither initially impleaded in the suit nor any

material has been placed on record of the Trial Court to show

that they had any knowledge about the sale transaction

between the accused nos. 1 to 7 and respondent no. 2.

Respondent had not annexed any document with the

complaint to substantiate this allegation. No public notice

had been given by the respondent in the newspaper informing

the general public at large that they had purchased the land

in question from accused nos. 1 to 7 or that the same is, in

fact, subject matter of the suit pending in this Court. All the

allegations of connivance are presumptive, which is clear

from the fact that all the subsequent purchasers en bloc have

been impleaded as accused. Mere oral statement in this

regard would not be sufficient, in the peculiar facts of this

case.

8. That apart, I find that respondent had taken

inconsistent stand at different stages with regard to the role

played by the petitioner no. 2. In para 8 of the complaint, it

has been categorically alleged that on 13th August, 1995

certain persons claiming to represent one Deepak Bhardwaj

(accused no. 8) came to the site and threatened

dispossession. It was further alleged that FIR No. 319/1995

dated 13th August, 1995 was registered under Sections

447/427/506/ IPC at Police Station Kapasehra regarding

this incident. However, perusal of copy of the FIR shows

that name of petitioner no.2 has not been mentioned therein.

In the FIR, it has been alleged that one Parasram, resident of

village Nathupur, along with some persons had trespassed

the property on that day. As against this, while in witness box,

CW1 has deposed that certain persons had trespassed the

property at the behest of accused nos. 1 to 7. The name of

petitioner No.2 has not been taken by her. This fact also makes a

dent about the veracity of version of CW 1 regarding the

connivance of petitioners with accused nos. 1 to 7.

9. Counsel for the respondent has placed reliance on Iridium

India Telecom Ltd. Vs. Motorola Incorporated & Ors. 2010 XI

AD (S.C.) 265 to contend that at this stage complaint cannot be

quashed, inasmuch as, the perusal of complaint supported by

statement of CW 1 disclosed ingredients of offence under which

petitioners have been summoned. I have perused the judgment

and in my view judgment relied upon by the respondent do not

advance the case of the respondent any further being in context of

different facts.

10. In this case petitioners being subsequent purchasers have

been impleaded. Petitioners had not even purchased land from

accused Nos. 1 to 7. They have no relations with the accused Nos.

1 to 7. That apart, statement of CW1 regarding role of petitioners

is not convincing. Petitioners had neither made any

misrepresentation nor induced the respondent to enter into sale

transaction, in respect of land in question, with the accused nos. 1

to 7. They were not even in picture when agreement to sell was

entered into between the respondent and accused Nos. 1 to 7.

Thus, ingredients of offence under Section 420 of the IPC are not

attracted qua the petitioners.

11. Similarly, ingredients of offence under Section 506(2) of the

IPC are also not attracted on the allegations made in the complaint

qua the petitioners. As regards petitioner No. 1 is concerned, no

such allegation has been made that she had extended any kind of

threat to the respondent. With regard to petitioner No. 2, as

already mentioned in the preceding para hereinabove, inconsistent

stand had been taken at different stages, inasmuch as, CW2 while

in witness box has not averred that it is the petitioner No. 2 who

had extended any threat at any stage. I am also of the view that

ingredients of offence under Section 423 of the IPC are not

attracted against the petitioners in the peculiar facts of the case.

There is nothing to indicate that a false statement had been made

by the petitioners in the agreement to sell, General Power of

Attorney etc. relating to the consideration regarding transfer of

land.

12. For the foregoing reasons, complaint case no. 254/2001 qua

the petitioners is quashed.

13. Petition is disposed of in the above terms.

A.K. PATHAK, J.

DECEMBER 14, 2010 ga