Delhi High Court

Ashok Kumar vs State on 19 October, 2010

Author: A. K. Pathak

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL. M.C. 2199/2010

%                               Decided on: 19th October, 2010

ASHOK KUMAR                                          ..... Petitioner
                         Through:     Mr. Sanjeev Soni, Adv.

                         Versus

STATE                                                ..... Respondent

                         Through:     Mr. M.P. Singh, APP


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

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?              Not necessary

2.     To be referred to Reporter or not?               Not necessary

3.     Whether the judgment should be reported
       in the Digest?                                   Not necessary


A.K. PATHAK, J. (ORAL)

1. Petitioner filed a complaint under Section 200 Cr.P.C. in

the court of Additional Chief Metropolitan Magistrate, Delhi

(ACMM) praying therein that the accused persons, namely,

Chameli Devi, Ram Chander, Sandeep, Pradeep and Deepak be

summoned and punished for the offences under Sections

341/506/34 IPC. It may be noted here that Chameli Devi is

real sister of the petitioner; whereas Ram Chander is husband

and Sandeep, Pradeep and Deepak are sons of Chameli Devi.

2. It was alleged in the complaint that the mother of

petitioner No.1 was owner of a house bearing No. 1319, Gali

No. 118, Talab Road, Shanti Nagar, Tri Nagar, Delhi. She died

on 14th December, 1978. After her death, petitioner became

exclusive owner of the aforesaid property by virtue of a Will

dated 10th January, 1978 left behind by her. Petitioner shifted

at the first floor of the said property along with his father after

the death of his mother. On the request of Chameli Devi, he

allowed her to live in one room at the ground floor purely on

license basis. Kitchen and toilet at the ground floor was also

in their use and occupation. Later on, at the request of

Chameli Devi and her husband, he permitted them to occupy

two more rooms and one shop at the ground floor. Chameli

Devi and her husband assured the petitioner that once they

would start earning sufficient money from their business and

their two daughters are married, they will vacate the ground

floor and shift to some other place. In spite of the fact that

husband of Chameli Devi started earning well and his two

daughters got married, property was not vacated. In the year

1992, petitioner requested his sister to vacate the ground floor

but to no effect, consequently, petitioner terminated the license

by serving a legal notice dated 19th August, 1992. Since

ground floor was not vacated in spite of the service of legal

notice, petitioner filed a suit for recovery of possession and

damages against them. Thereafter, behaviour of Chameli Devi,

her husband and sons (hereinafter referred to as „accused‟)

became hostile and they started creating nuisance thereby

forcing the petitioner to shift out from the first floor of the

property sometime in the year 1993. However, possession of

the first floor remained with the petitioner under his lock and

key.

3. During the pendency of the above suit, accused started

raising construction at the ground floor sometime in the year

1999. On petitioner moving appropriate application in the

suit, accused were restrained from raising any construction on

the first floor of the property vide order dated 25th January,

1999. As this order was violated, petitioner was forced to file

contempt petition in the said suit, which is since pending.

Even thereafter, accused continued with their nefarious

activities and started creating hurdles in the peaceful ingress

and egress of the petitioner and his family members to the first

floor of the property. Another application was filed in the

pending litigation, wherein accused made a statement on 3rd

April, 2003 that they will not prevent the petitioner and his

family members from visiting the property in question.

4. Despite undertaking given in the court that they will not

prevent access of the petitioner to the first floor, on 2nd May,

2007 at about 1:40 PM when the petitioner along with his wife

visited the suit property, accused forcibly and wrongfully

stopped them at the main entrance of the property in question

to enable them to reach at the first floor. Not only this,

accused persons also threatened that in case petitioner and

his wife made any attempt to enter in the premises, their

hands and legs will be broken. Petitioner made a call at

telephone No. 100, pursuant whereof PCR van arrived at the

spot and asked them to visit Police Post Shanti Nagar. Since

no action was taken against the accused as the local police

was hand in glove with them, petitioner even made a complaint

to higher police officers, but to no effect. Hence, the

complaint.

5. At the pre-summoning stage, petitioner stepped in the

witness box as CW4, his wife as CW3, his sister Kamla Moria

as CW1 and his brother-in-law R.L. Moria as CW2.

Statements of these witnesses were scrutinized by the Trial

Court meticulously. However, Trial Court did not find their

version inspiring and sufficient enough to form a, prima facie,

view that the accused had committed offences under Section

341/506 (1)/34 IPC. Trial Court further observed that the

complaint appears to have been filed to pressurize the accused

and to bargain with them in the civil proceedings.

6. Petitioner filed a Criminal Revision Petition No. 2/2010

before the learned Additional Sessions Judge, Delhi against the

order passed by the Trial Court which came to be dismissed on

31st March, 2010. Learned Additional Sessions Judge has

concurred with the view taken by Trial court. It was held that

no, prima facie, case was made out by the petitioner for

summoning of the accused. He was also of the view that the

statements of CW3 and CW4 did not inspire confidence and

were not sufficient to conclude that such an incident had in

fact taken place, more so when no independent witness was

examined, inasmuch as, civil litigation was pending between

the parties with regard to the ground floor of the property right

from 1992 onwards.

7. In the given facts, I am not inclined to interfere with the

concurrent findings of the courts below and take a different

view, than what has been taken on appreciation of evidence,

that too in exercise of inherent jurisdiction of this Court under

Section 482 Cr.P.C. Now a days it is noticed that there has

been a growing tendency in several commercial, matrimonial

and family matters to somehow entangle a person in a criminal

prosecution so as to achieve imminent settlement. In

Chandrapal Singh and Ors. v. Maharaj Singh and Anr. AIR

1982 SC 1238, it has been observed that a frustrated landlord

after having met his waterloo in the hierarchy of civil courts,

had further enmeshed the tenant in a frivolous criminal

prosecution which prima facie, appears to be an abuse of the

process of law.

8. Supreme Court in Indian Oil Corporation vs. NEPC

India Ltd. and Ors. 2006(7) Scale 286 has held as under:

"10. While on the issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriage/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal prosecution should be deprecated and discouraged."

(emphasis supplied)

9. In this case, admittedly, parties are litigating right from

1992 onwards over the immovable property left behind by

their mother. Bone of contention appears to be this

immovable property. In view of the ongoing civil litigation

between the parties, statements of CW3 and CW4 have to be

scrutinized meticulously and with care and caution even at

the preliminary stage. Both the courts below have done so and

concluded that the version of CW3 and CW4 with regard to the

incident does not inspire confidence. I have also perused their

statements and concur with the courts below. Both CW3 and

CW4 have corroborated each other while deposing in the

Court. Even though they have given parrot like version with

regards to the manner in which threat was extended but there

appears to be some improvement made by them, while

deposing in the court, vis a vis initial version as contained in

the telegram sent to Commissioner of Police immediately after

the alleged incident, in respect of the actual words spoken by

the accused. Immediately after the incident, CW3 alleges to

have sent a telegram to the Commissioner of Police on 2nd

May, 2007 stating therein that when he along with his wife

went to the first floor of the property at about 1:40 PM, Ram

Chander, Chameli Devi and their three sons forcibly stopped

them from entering in the premises and threatened that in

case they tried to go to the first floor they will get their hands

and legs broken. In other words, they will get their legs and

hands broken through some other persons. However, while

deposing in the court, they stated that accused threatened

them by saying that in case they tried to enter in the property

in order to reach at the first floor, their hands and legs would

be broken. In other words, they would themselves break the

hands and legs of the Petitioner and his wife. Be that as it

may, in the facts of this case, it appears that complaint has

been preferred by the petitioner in order to put pressure on

the accused to settle the civil litigation and to get the property

vacated.