Manoj Kumar vs The State (Nct Of Delhi) & Anr.
2012 Latest Caselaw 483 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI
+
                               Crl. MC No.4101/2011

                                                     Date of Decision: 24.01.2012
Manoj Kumar                                                     ...... Petitioner
                                Through:      Mr. Himal Akhtar, Advocate

                                          Versus

The State (NCT of Delhi) & Anr.                            ...... Respondents
                         Through:             Ms. Fizani Husain, APP for State
                                              with SI Vikash Kumar PS Seema Puri
And
+                               Bail Appln.43/2012
Manoj Kumar                                                     ...... Petitioner
                                Through:      Mr. Himal Akhtar, Advocate

                                          Versus

The State (NCT of Delhi) & Anr.                            ...... Respondents
                         Through:             Ms. Fizani Husain, APP for State
                                              with SI Vikash Kumar PS Seema Puri
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

1. The petitioner has filed these two petitions, one for grant of anticipatory bail and the other for quashing of FIR. The petitioner is an accused in case FIR No.212 of 2011 under Sections 420/406/467/468/471/506 IPC registered at Police Station Seema Puri. The said FIR came to be registered against him on the directions of learned MM under Section 156(3) Cr.PC.

2. An application for grant of anticipatory bail preferred by the petitioner on similar grounds was dismissed by learned ASJ vide order dated 14.11.2011.

The main grounds of complaint made by the complainant against the petitioner were that the complainant was suffering from fits from her childhood and so remained single and that the petitioner who is the husband of her sister was looking after her all affairs. He owned a flat bearing number A-130/2B, First Floor, Dilshad Extension-1, Delhi and sold the same to her and told her that he was in dire need of money and wanted to sell the said flat to her. He proposed her to purchase the said flat to which she agreed. She asked him to prepare the documents in her favour. On 10.4.2003, he took her to Sub-Registrar's office for registration of documents. He handed over some documents to her which were typed on stamp papers. He obtained her signatures on those papers. She being an illiterate lady, not able to read and understood, put her signatures upon those documents on his instructions and paid him the consideration price of Rs.2.60 lac. Thereafter, he proposed her to let out the said flat to someone to which she agreed. He introduced some person to her as a tenant from whom she would receive Rs.800/- per month as rent. She alleged that the petitioner used to collect rent from the tenant and hand over to her. She alleged that in the year 2006, he told her to get vacated the flat in order to avoid any mis- happening and so she got the same vacated and thereupon the petitioner again told her that there was some person who was in dire need of residential accommodation to which she agreed. Again, he used to collect rent and hand over the same to her. When she fell seriously ill and could not be able to visit the said flat, the petitioner stopped paying her the rent on the pretext that the tenant was not in a position to pay the same. In January, 2011 when the rent became due for 10-12 months, she contacted him and asked him to pay the rent to which he told that she was not the owner and so there was no question of paying any rent to her. He later told her that all the documents which were

executed were forged. In the meantime, the petitioner sold the said flat to one Rageshwari Rawat.

3. Based on these allegations, the complainant filed a complaint whereupon an FIR was directed to be registered. The petitioner challenged the said order in revision which came to be dismissesd vide order dated 14.11.2011 by learned ASJ.

4. The petitioner has sought quashing of the FIR and also in the meantime anticipatory bail by way of above two petitions.

5. While admitting that the GPA and other documents were executed by the petitioner in favour of the complainant and that the said flat has been sold by the petitioner to Smt. Rageshwari Rawat, learned counsel for the petitioner submitted that the GPA and other documents were executed without any consideration and due to love and affection by the petitioner for Smt. Nirmala Devi who was none else but her wife's sister. He submitted that not only her sister Sushma who is the wife of the petitioner, but other three sisters namely Madhu, Saroj and Neelam have also stated that the documents were executed by the petitioner in her favour due to love and affection and without any consideration. In this regard, he referred to their statements under Section 161 Cr.PC. The petitioner relied upon M/s Skipper Beverages Pvt. Ltd. v State [2001 IV AD (Delhi) 625] of this court. It is also submitted by learned counsel for the petitioner that the impugned order under Section 156(3) Cr.PC was passed by learned MM in a mechanical manner without application of mind and merely on the asking of complainant.

6. The plea that was taken by the petitioner that the documents were executed out of love and affection and without consideration was nothing but his defence. The plea that the sisters of the complainant have stated that the

execution of the documents by the petitioner in favour of complainant was out of love and affection and without any consideration cannot outweigh the allegations leveled against the petitioner as also the documents which prima facie seems to have been executed by the petitioner and were registered with the Sub-Registrar. All these are triable issues which could not be gone into at this stage. The allegations as contained in the complaint, as briefly noted above, cannot be outrightly brushed aside as well as the documents which were executed by the petitioner including the GPA, agreement to sell, Will, affidavits, receipts etc. The GPA as well as the Will were duly registered at the office of Sub-Registrar, whereas the other documents were notarized. A glance on these documents would clearly demonstrate that these documents were executed in favour of the complainant in respect of sale of the said property. Notice can be taken of the fact that the set of these documents are generally being executed in respect of sale transactions of immovable properties in Delhi.

7. Assuming what was stated by the petitioner to be correct that these documents were executed out of love and affection, but the fact remains that these documents having come in force and admittedly having been acted upon by the parties, could not be withdrawn, revoked or cancelled by the petitioner in the manner as the petitioner chose to do. If at all the petitioner had desired to cancel or withdraw or revoke these documents, there was a specific procedure prescribed by law for cancellation, revocation or withdrawal of such documents. Having divested himself of the property in question, may be without consideration, the petitioner was not authorized to dispossess the complainant and sell the property to third person for consideration. The allegations as set out in the complaint are of serious nature and cannot be

brushed aside at the threshold.

8. This Court in Naresh Jain v State [Bail Appln. 967/2012/2011 decided on 3.1.2012] observed as under:

12. The question of there being sale of the said property as claimed by the complainant and refuted by the petitioner, it is observed that such disputed questions of facts are triable by the trial court and it is neither appropriate nor possible at this stage to go into all this. As per the Supreme Court in Malwa Cotton & Spinning Mills Ltd. Vs. Virsa Singh Sidhu (2008) 17 SCC 147 when such disputed questions of facts are involved petition under Section 482 Cr.P.C. will not lie. The FIR cannot be quashed at the threshold. Having regard to the factual matrix of the case, the learned MM was of the opinion that prima facie case is made out against the petitioner.

Xxxxxx

18. In Ashabai Machindra Adhagale Vs. State of Maharashtra, 2009(1) Crimes 304(SC) the Hon'ble Supreme Court has held that the inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and more so when the evidence has not been collected and produced before the Court and the issue involved, whether factual or legal are of magnitude and cannot be seen in their true perspective without sufficient materials."

9. In view of my above discussion, having regard to the seriousness and gravity of the offence, I am neither inclined to grant the anticipatory bail to the petitioner nor quash the aforesaid FIR. Both the petitions are accordingly dismissed.

M.L. MEHTA, J JANUARY 24, 2012/rd