Pawan Kumar Jain vs State & Another
2011 Latest Caselaw 1614 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on: March 14, 2011
                               Judgment delivered on: March 22, 2011


+      CRL.M.C. No.2556/2010 & CRL.M.A. No.13511/2010


       PAWAN KUMAR JAIN                                ....PETITIONER

                    Through:   Mr. M.R.Chawla, Advocate with
                               Mr. Gaurav Kaushik, Advocate and
                               Mr. Tushar Singh, Advocate.

                        Versus

       STATE & ANOTHER                      ....RESPONDENTS
                Through: Mr.Sunil Sharma, APP for R-1.
                         Mr.M.P.S.Kasana, Advocate for R-2.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This is a petition under Section 482 Cr.P.C. filed by the petitioner

Pawan Kumar Jain seeking quashing of the order dated 21.12.2005

passed by the learned Metropolitan Magistrate, Delhi in complaint case

No.36/1 P.S. Roop Nagar, Delhi titled "Naresh Kumar Aggarwal Vs.

Pawan Kumar Jain & Anr," whereby the petitioner and his co-accused

were summoned to face trial for the offences under Section

420/467/468/471/34 IPC in the complaint filed by respondent No.2.

2. Briefly stated, facts relevant for the disposal of this petition are

that the complainant Naresh Kumar Aggarwal, Devender Kumar Mittal

and his wife Kamini Mittal (since deceased) were co-owners of a

property at Mussoorie in Uttaranchal. The parties thereafter formed a

company M/s. Kumari Hotel Pvt. Ltd. It is stated that later on disputes

arose between the parties which resulted in filing of civil suit as well as

the proceedings before Company Law Board. The dispute between the

parties under Companies Act, 1956 came up before this Court and by

an order dated 24.05.1996, the learned Single Judge of this Court

dismissed the petition filed by respondent/complainant for winding up

of the company. The Division Bench of this Court by an order dated

25.05.2001 confirmed that order.

3. Respondent No.2 (complainant) in his above noted complaint

titled "Naresh Kumar Aggarwal Vs. Pawan Kumar Jain & Anr," claimed

that since he was finding it difficult to manage the property at

Mussoorie, he appointed the petitioner Pawan Kumar Jain as a General

Attorney vide General Power of Attorney (GPA) dated 03.12.2001. He,

however, subsequently revoked the GPA within a month thereafter on

08.01.2002. When the complainant/respondent No.2 visited the

property at Mussoorie in the first week of October, 2004, he learnt that

the petitioner Pawan Kumar Jain had, in active collusion with Devender

Kumar Mittal, sold the share of respondent No.2/complainant to him by

executing a sale deed in favour of Devender Kumar Mittal on the basis

of GPA dated 03.12.2001 by concealing the fact that it had been

revoked. It was also claimed by respondent No.2 in his complaint that

once the General Power of Attorney executed in favour of the petitioner

was revoked on 08.01.2002, the petitioner was left with no right or

power to sell or transfer the share of the complainant and also that

there was no occasion for the complainant to sell his share to Devender

Kumar Mittal as a civil suit in respect of same property was pending

adjudication, particularly in view of the restriction imposed under

Section 52 of the Transfer of Property Act, 1982. On the aforesaid

allegations, it was claimed that the petitioner, in conspiracy with his co-

accused Devender Kumar Mittal, is liable to be prosecuted for the

offences punishable under Section 465, 467, 468 and 471 read with

Section 34 IPC.

4. Learned Metropolitan Magistrate, on consideration of the

complaint and the preliminary evidence led by the respondent

(complainant) in inquiry found that the complainant/respondent No.2

was successful in making out a prima facie case justifying summoning

of the petitioner and his co-accused for the offences punishable under

Section 420, 467, 468 and 471 read with Section 34 IPC and he

accordingly summoned the petitioner and his co-accused.

5. Feeling aggrieved by the aforesaid summoning order, Devender

Kumar Mittal, co-accused of the petitioner filed a petition being Crl.M.C.

No.1857/2006 in the High Court for quashing of summoning order

against him. His petition was dismissed by learned Single Judge of this

Court by an order dated 08.02.2008. Devender Kumar Mittal filed an

SLP against the order of learned Single Judge and the Supreme Court

vide order dated 09.02.2010 allowed the appeal filed by Devender

Kumar Mittal and quashed the criminal proceedings against him on the

basis of aforesaid complaint. While parting with the appeal, the

Supreme Court, inter alia, observed thus:

"We, however, make it clear that we have not expressed any opinion, whatsoever, so far as the allegations levelled in the complaint against the third respondent. The complaint so far as the third respondent/accused no.1 is concerned the same is required to be dealt with in accordance with law on its own merits uninfluenced by the observations made in this order."

6. Learned counsel for the petitioner submits that foundation of the

complainant's case rests on the General Power of Attorney executed by

the complainant in favour of the petitioner which was undisputedly a

registered document. He submits that since GPA was a registered

document, it can be cancelled only by a registered instrument, which is

not the case as per the complaint. Therefore, there can be no illegality

in the petitioner executing sale deed on behalf of the

complainant/respondent No.2 in favour of his co-accused Devender

Kumar Mittal. In support of this contention, counsel for the petitioner

has referred to the judgment of Supreme Court in Chandrakant

Shankarrao Machale Vs. Parubai Bhairu Mohite(Dead), (2008) 6

SCC 745. In the said matter, the Supreme Court, while dealing with

the issue of alteration in the terms of the mortgage deed by way of an

unregistered deed of lease between the parties held that since the

deed of mortgage was registered, its terms could not have been varied

or altered by way of an unregistered document so as to change the

status of the party from a mortgagee to a lessee.

7. Learned counsel for the petitioner also relied upon the judgment

in S. Saktivel(Dead) Vs. M. Venugopal Pillai & Others, (2000) 7

SCC 104 wherein the Supreme Court with reference to Section 92

proviso (4) of the Indian Evidence Act held thus:

"6. In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral, in such situations it is always open to the parties to the contract to modify its terms and even substitute by a new oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by a new oral agreement. Where under law a contract or disposition is required to be in writing and the same has been reduced to writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or

substituted. There is another reason why the defendant- appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant, is allowed to be substantiated by parol evidence, it would mean rewriting of Ext. A-1 and, therefore, no parol evidence is permissible."

8. I have perused the above referred judgments. In the said

judgments, the Supreme Court has held that if a right is created in

favour of a party by virtue of a registered document, said right cannot

be extinguished, modified or altered by an oral contract or an

unregistered document. The facts in this case are distinguishable.

This case relates to cancellation of a registered General Power of

Attorney by the Principal without executing a registered

cancellation/revocation deed. The question is whether this is

permissible under law? Answer to this question lies in the fact whether

or not, a General Power of Attorney creates a right in favour of a

person who has been constituted as a Attorney on behalf of the

Executor of GPA. It is not the case of the petitioner that the General

Power of Attorney was executed in his favour for some consideration,

nor there is any clause in the General Power of Attorney restricting the

right of respondent No. 2 (Executor) of GPA to revoke the Attorney

executed in favour of the petitioner. On reading of the copy of the GPA

annexed to the petition, it is evident that this document was executed

without consideration and by virtue of this document, respondent No. 2

appointed the petitioner as his authorized attorney to do certain acts

on his behalf as detailed in the GPA. Thus, the General Power of

Attorney only created an agency in favour of the petitioner and

authorized him to act on behalf of the Principal i.e. respondent No. 2

and by virtue of the General Power of Attorney, respondent No. 2

extended a promise to anyone dealing with the petitioner in terms of

GPA that he would ratify the act of the petitioner. Thus, qua the public

at large, the GPA in question could be cancelled only through a

registered document. This however, is not true in case of the

petitioner, who had not acquired any right under the GPA. Therefore,

respondent No.2 being the Principal had every right to cancel or revoke

the authority of the petitioner to act on his behalf pursuant to the

registered GPA and this could be done orally or through an

unregistered document/communication. Once aforesaid option was

exercised by the respondent No. 2, the petitioner had no authority

whatsoever to act on behalf of the respondent No. 2 as the GPA by no

means, had conferred a personal right on the petitioner. Thus, this

court is of the view that once respondent No. 2/complainant had

cancelled the Power of Attorney executed in favour of the petitioner,

petitioner had no right to act as his Attorney on the strength of above

noted GPA. Since the petitioner has acted on the GPA after

cancellation by respondent No. 2 and executed a sale deed in favour of

Devender Kumar Mittal by concealing the fact of cancellation of GPA,

he has prima facie, committed the offence of cheating. In the instant

case, even the Sub-Registrar who registered the document has been

prima facie, cheated for the reason that had it been disclosed to him

that the GPA has been cancelled by respondent No. 2, he would not

have registered the sale deed executed by the petitioner on behalf of

the respondent No. 2.

9. Learned counsel for the petitioner has further submitted that

admittedly, a civil litigation between the parties was going on in

respect of the property in question. Therefore, the sale of share of

respondent No. 2 in the property by the petitioner as General Power of

Attorney of respondent No. 2 to Devender Kumar Mittal is hit by the

doctrine of lis pendens as laid down in Section 52 of the Transfer of

Property Act. In view of this, it is urged that no cause for prosecuting

the petitioner under Section 420/468/471 IPC is prima facie made out.

10. There is no merit in this contention. Section 52 of the Transfer of

Property Act provides a bar upon the parties to a litigation involving

any right to immovable property, to transfer or otherwise deal with

such immovable property in a manner so as to affect the rights of any

other person thereto under any decree or order which may be made

therein, except under the authority of the court and on such terms as it

may impose. This Section is basically specific to the civil dispute as to

the right to property but it cannot be taken as a defence to wriggle out

of a criminal offence by stating that the transaction involved transfer of

property which is prohibited by Section 52 of the Transfer of Property

Act. The core issue for consideration is whether the petitioner has

prima facie, committed the offence under Sections 420,468 & 471 IPC

for which, he has been summoned by the Metropolitan Magistrate vide

impugned order dated 21.12.2005.

11. In view of the discussion above, it is prima facie evident that the

petitioner had entered into a transaction of sale of share of respondent

No. 2 in the property at Mussoorie representing himself to be his

authorized attorney, despite of the fact, prima facie, General Power of

Attorney executed in his favour was revoked by the author i.e.

respondent no. 2. Thus, by concealing the aforesaid fact of

cancellation of his Power of Attorney, he not only induced Devender

Kumar Mittal to enter into transaction of sale but he also cheated the

Sub-Registrar by falsely misrepresenting that he was duly authorized

attorney of respondent No. 2 which led him to accept the document of

sale and register it. Thus, prima facie, he has committed an offence

under Section 420 IPC. It is alleged in the complaint that petitioner has

not even handed over the sale proceeds of the aforesaid transaction to

the respondent No. 2 and misappropriated the same. Thus, he also

prima facie, committed offence under Section 406 IPC. As per the

material on record, the petitioner has also prima facie used the

aforesaid General Power of Attorney, which was purportedly cancelled

by the respondent No. 2 as genuine for the purpose of registration of

sale deed in favour of Devender Kumar Mittal, therefore, a prima facie

offence under Section 471 IPC is also disclosed against the petitioner.

The offence under Section 468 IPC is however not made out because

admittedly, the General Power of Attorney was executed and got

registered by the complainant.

12. It is further contended on behalf of the petitioner that admittedly,

there is a long pending civil litigation going on between the parties in

respect of the property in question. Thus, it is apparent that dispute

between the parties is of civil nature and respondent No. 2

(complainant) has tried to give it a colour of criminal offence with a

view to harass the petitioner and wriggle out of the transaction of sale

of his share in favour of Devender Kumar Mittal.

13. I do not find merit in this contention. Law is fairly well settled

that criminal and civil dispute out of a same set of transactions

between the parties can proceed simultaneously and pendency of civil

litigation between the parties cannot come in the way of criminal trial if

the transaction alleged constitutes a criminal offence.

14. In view of the discussions above, the complaint filed by

respondent No.2 and the pre-summoning evidence do disclose

commission of offences punishable under Section 420/ 406/471 IPC by

the petitioner. However, offence under Section 468 IPC is not made

out. Thus, I find no reason to quash the summoning order dated

21.12.2005. However, the order is modified to the extent that offence

under Section 468 IPC is dropped and the offence under Section 406

IPC is added in the summoning order.

15. Petition is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE MARCH 22, 2011 pst/akb