Delhi High Court
Praveen Kumar Jain vs State & Ors. on 31 May, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment decided on: May 31, 2011
+ Crl.M.C. 2815/2008
PRAVEEN KUMAR JAIN .....PETITIONER
Through: Mr.R.N.Mittal, Sr. Advocate with
Mr. Manoj Kumar, Advocate.
Versus
STATE & ORS. .....RESPONDENTS
Through: Mr. Sunil Sharma, APP for R-1.
Mr.N.K.Sharma, Advocate for R-2 to
R-4.
R-5 & R-6 (proforma respondents)
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.(ORAL)
1. Praveen Kumar Jain, the petitioner herein, vide, this petition
under Section 482 of the Code of Criminal Procedure(CrPC) is
seeking quashing of summoning order dated 17 th March, 2008
passed by learned Metropolitan Magistrate in Complaint Case No.
36/01 titled 'Ishwanti Devi & Ors. Vs. Manoj Kumari & Ors.' qua him,
whereby the petitioner has been summoned to undergo trial for
offences under Section 420 IPC read with Section 120B IPC.
Crl.M.C.2815/2008 Page 1 of 7
2. Facts
relevant for the disposal of this petition are that
respondent No.2 Ishwanti Devi is the widow of Late Dharampal
Singh and respondents No.3 and 4 are her sons from the said
marriage. Respondent No.6 Joginder Singh is also the son of Late
Dharampal but from his first wife. Petitioner is the person to whom
respondent No.6 sold the disputed plot of land.
3. Respondents No.2 to 4 filed a complaint being CC No.36/1
titled `Ishwanti Devi and Ors. Vs. Manoj Kumari and Ors' claiming
that Dharampal Singh was owner of a plot measuring 200 sq. yards
being Municipal No.WZ-234A, Gali No.10, Hastsal Road, Uttam
Nagar, with a room constructed thereon. After the death of
Dharampal Singh, a family settlement took place pursuant to which
100 sq. yards of said plot along with the constructed room fell to the
share of respondent No.6 Joginder Singh and his brother whereas
remaining 100 sq. yards vacant area fell to the share of
complainants (respondents No.2 to 4). It is alleged in the complaint
that even after the settlement, respondent No.6 tried to take
forcible possession of 100 sq. yards of land which fell to the share of
respondents No.2 to 4 in the family settlement. Respondents No.2
to 4 were therefore constrained to file a suit for permanent
injunction wherein the statements of parties were recorded and
respondents No.2 to 4 withdrew the civil suit. Thus, respondent
No.6 came into possession of the vacant plot on behalf of all the
legal heirs of late Dharampal Singh.
4. The grievance of the complainants (respondents No.2 to 4) is
that despite of undertaking given before the court, respondent No.6
sold the share of the complainants (respondents No.2 to 4) to the
petitioner and executed the documents of transfer.
5. In support of her complaint, respondent No.2 Ishwanti Devi
examined herself, respondent No.3, Record Clerk, Office of Sub-
Registrar Janak Puri and a Record Clerk from Tis Hazari Courts. On
the basis of said preliminary evidence, learned M.M. summoned
respondents No.5 and 6 as well as the petitioner as accused person
to undergo trial for the offence under Section 420 IPC read with
Section 120B IPC.
6. Learned Shri R.N.Mittal, Senior Advocate appearing for the
petitioner has submitted that summoning of the petitioner Praveen
Kumar Jain under Section 420 IPC read with Section 120B IPC is
illegal and unwarranted for the reason that if the allegations in the
complaint are true, the petitioner who is a bona fide purchaser is
himself a victim of fraud. He contended that neither the complaint
nor the evidence led by the complainant in preliminary evidence
make out any case of complicity of the petitioner in conspiracy to
cheat, as such, the impugned summoning order qua the petitioner is
liable to be quashed.
7. Learned counsel for the respondent, on the other hand, has
submitted that the petitioner Praveen Kumar Jain was fully aware of
litigation between the parties. He was aware that Manoj Kumari
(respondent No.5) from whom he allegedly purchased the plot in
question through documents such as General Power of Attorney,
Agreement to Sell, Will, receipt and possession letter etc. was not
the owner of the plot and she had no right to sell the same. Despite
that, he intentionally entered into a conspiracy with respondents
No.5 and 6 to defeat the rights of respondents No.2 to 4 and entered
into a sham transaction of purchase of property from Manoj
Kumari(respondent No.5). Thus, his involvement in conspiracy is
prima facie apparent and he has been rightly summoned by the
learned M.M.
8. I have considered the rival contentions. Certified copy of the
complaint filed by respondents No.2 to 4 is annexed to the petition
as Annexure P5. Its authenticity is not disputed by respondents
No.2 to 4. On perusal of the complaint, it transpires that but for the
vague allegations regarding complicity of the petitioner with
respondents No.5 to 6 to cheat, there is no specific allegation
pertaining to facts and circumstances which may, prima facie, lead
to conclusion that petitioner was party to conspiracy and in order to
attain the object of conspiracy to cheat the complainant, he
indulged in execution of purchase documents pertaining to the plot
in question with respondents No.5 and 6. Only allegations against
the petitioner are in Paras 9 and 12 of the complaint which are
reproduced thus:-
"9. That the accused No.1 and 2 had full knowledge that they do
not have any power of Authority to sell or transfer to a third party
the property in question. Similarly in the absence of any document
of title with regard to the said property the accused No.3 knew it
well that the accused No.1 had no authority or power to execute any
document for the purpose of sale or transfer in his favour. In this
set of facts on the instigation of accused No.2 the accused No.1 has
intentionally and wilfully misrepresented herself as owner of the
property in question by concealing the material facts and accused
No.3 on intentionally entered into such illegal and unlawful act with
the accused No.1 and 2 and received the delivery of the property in
question. Therefore, all the accused have conspired with each other
for the abetment of the offence and put the complainants into
greater loss, and are liable to be punished.
..........
12. That all the accused have conspired and committed various
criminal offences while cheating the complaints in delivering and
taking over the possession of the property in question for which they
have become liable to be punished."
9. Aforesaid allegations, in my view, are general in nature.
Though, in Paras 9 and 12, it is generally stated that petitioner was
aware that respondent No.5 had no authority or legal right to sell
the property in question to him, he intentionally and wilfully entered
into conspiracy with respondents No.5 & 6 and received the delivery
of the property in question, but there is no specific allegation to
indicate how the petitioner was aware of the dispute between
respondents No.2 to 4 on one hand and respondents No.5 & 6 on the
other or that respondent No.5 had no right to sell the property in
question. Even the preliminary evidence does not spell out about
any meeting of mind between the petitioners and respondents No.5
and 6 which may show existence of conspiracy between petitioner
and respondents 2 to 4. Therefore, in my opinion, the complaint
does not disclose complicity of the petitioner in conspiracy to
commit offence under Section 420 IPC for which he has been
summoned. It may be noted that in Para 8 of the complaint,
respondents No.2 to 4 have admitted that they found the petitioner
in possession of the plot in question and when they asked as to how
he was in possession, he informed that he had purchased the
property from respondent No.5 and he even showed them the
documents of his title, namely, General Power of Attorney and duly
registered Will etc. From the aforesaid allegations, it is apparent
that petitioner is a bona fide purchaser and if respondent No.5 had
no right to sell the property, he himself is a victim. The trial court
has failed to take notice of this fact.
10. The result of above discussion is that neither the complaint nor
the evidence adduced by the complainant in preliminary enquiry,
prima facie, make out the complicity of the petitioner in the alleged
offence under Section 420 IPC or conspiracy to commit said offence.
Therefore, the continuation of the proceedings against the petitioner
on the basis of said summoning order would amount to abuse of
process of law. Accordingly, the summoning order of learned M.M.
dated 17.3.2008 qua the petitioner is hereby set aside and
petitioner is discharged.
11. Petition is disposed of accordingly.
(AJIT BHARIHOKE)
JUDGE
MAY 31, 2011
ks/akb
