Seema Thakur vs Union Of India And Ors
2017 Latest Caselaw 899 Del

$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Reserved on: 25th January, 2017
                             Pronounced on: 16th February, 2017
+      Crl.M.A.19647/2012 (under Section 340 Cr.P.C), IA No.
       24788/2015 (under Section 151 CPC for directions), and IA
       No. 16243/2016 (under Section 151 CPC by SHO, Tughlak
       Road for directions) in CS(OS) 100/2010

       SEEMA THAKUR                                   ..... Plaintiff
                   Through:          Mr. Vijay Kapoor, attorney
                                     of the plaintiff
                         versus


       UNION OF INDIA AND ORS             ..... Defendants
                     Through: Mr. Kirtiman Singh and
                              Mr. Waize Ali Noor,
                              Advocates for D-1/UOI
                              Ms. Seema Singh, Advocate
                              for D-3
                              Mr. Gurman Chahal,
                              Advocate for the SHO
                              Tuglak Road

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                            ORDER

1. The civil suit CS(OS) No.100/2010, from which the issues being considered and adjudicated upon here arise, was instituted by Smt. Seema Thakur, wife of late Sh. Bansi Lal Thakur ("the first noticee") through her attorney Sh. Vijay Kapoor ("the second noticee") besides against the Union of India, through Ministry of Urban Development and Land and Development Office of the

Government of India (impleaded as first and second defendants), also showing in the array of parties, in the plaint as originally presented, the Municipal Corporation of Delhi (MCD) through its assessment and collection department as a defendant (fifth defendant). The record reveals that, on application subsequently made, by order dated 22.5.2013 passed by a division bench of this Court in RFA (OS) No. 42/2013, while the suit was restored (it having been earlier dismissed) by a learned single judge by order dated 18.02.2013, another defendant (sixth defendant) was added to the fray. The litigation though the suit, as it eventually crystallised, was essentially between the plaintiff on one hand and the three private defendants, they being Gopi Chand (third defendant), Sunita Wadhwa (fourth defendant) and Raj Kumar Bhatara (sixth defendant), the plaint praying for the following reliefs:-"

"1. The decree for declaring that the Agreement to Sale, General power of attorney, Special Power of Attorney, Will, Receipts/Affidavits and all the other documents alleged executed by the plaintiff in favour of the defendant No.3 on 31.5.2004 with respect to the Suit property (situated at 18/50, East Patel Nagar Market, New Delhi) is nullity and null and void in the eye of law and hence may be directed as cancelled,

2. The decree for declaring that the Conveyance deed dated 20.12.2004 executed by defendant Nos. 1 and 2 at the instance and in favour of the defendant No.3 with respect to the Suit property (situated at 18/50, East Patel Nagar Market, New Delhi) is nullity and null and void in the eye of law and hence may be directed as cancelled,

3. The decree for declaring that the conversion of the suit property from lease hold to free hold done by

defendant Nos. 1 and 2 at the instance and in favour of defendant No.3 with respect to the Suit property (situated at 18/50, East Patel Nagar Market, New Delhi) is nullity and null and void in the eye of law and hence may be directed as cancelled,

4. The decree for declaring that the Mutation Order dated 31.3.2005 (bearing No. Tax/KBZ/2004-05) with respect to the suit property allowed by MCD at the instance and in favour of the defendant No.3 and all the subsequent mutations with respect to the Suit property (situated at 18/50, East Patel Nagar Market, New Delhi) is nullity and null and void in the eye of law and hence may be directed as cancelled,

5. The decree for declaring that the Sale Deed dated 22.5.2006 with respect to the suit property executed by defendant No.3 in favour of defendant No.4 and all the subsequent sale deeds, if any, with respect to the Suit property (situated at 18/50, East Patel Nagar Market, New Delhi) is nullity and null and void in the eye of law and hence may be directed as cancelled,

6. The decree of possession in favour of the plaintiff and a decree of eviction against the defendant Nos. 3 and 4 or any other person/entity claiming through defendant Nos. 3 and 4 with respect to the Suit property (situated at 18/50, East Patel Nagar Market, New Delhi),

7. The decree of mesne profits of Rs. 7,50,000/- till the date of institution of the present suit,

8. The decree of mesne profits @ Rs. 15,000/- per month for future and pendentelite mesne profits against defendant Nos. 3 and 4 or any other person/entity claiming through defendant Nos. 3 and 4 with respect to the suit property (situated at 18/50, East Patel Nagar Market, New Delhi),

9. Decree for interest @ 8% to be calculated from the date of the institution of the present suit on the aforesaid amounts t be recovered,

10. Decree for awarding cost of the suit,

11. Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case."

12. A perusal of the pleadings of the plaintiff would show that the cause of action claimed by her pertained primarily to documents in the nature of Agreement of Sale, General Power of Attorney, Special Power of Attorney, Will, receipts and affidavits whereby she is shown to have transferred her right, title and interest in the suit property in favour of the third defendant on 31.5.2004. If this contention were to be upheld, further sale of the property in question by the third defendant to fourth defendant, and, in turn, by the fourth defendant in favour of the sixth defendant would also have to be declared as null and void or inconsequential. Thus, the prime relief was concerning declaration of the documents dated 31.5.2004 in favour of the third defendant.

13. The suit was contested and after pleadings had been completed, reference having been made to certain previous litigation between the parties, particularly suit bearing No. 141/2004 titled Smt. Panchi Devi vs. Smt. Seema Thakur and others and CS(OS) No. 2211/2003 instituted by the plaintiff against the other set of parties including third defendant herein, the learned single judge then in seisin of the case considered the application of the sixth defendant (IA No.3453/2014) praying for dismissal of the suit, inter alia, on the basis of "judicial admissions", invoking

Rule 6 of Order 12 of the Code of Civil Procedure, 1908 (CPC). By order dated 19.08.2015, the contentions of the sixth defendant in the above mentioned application under Order 12 Rule 6 CPC were accepted and the suit of the plaintiff was dismissed on two grounds namely she being not entitled to explain away the judicial admissions "of the transfer of title in the suit property having been made by her to defendant No.3" and also on the ground of "limitation".

14. By the above order, the learned single judge observed that he was of the opinion that the plaintiff had come to the Court "with a false case". Referring to the penal clause contained in Section 209 of the Indian Penal Code, 1860 (IPC), notice was issued to the plaintiff and her attorney (i.e. the first and second noticees herein) to show cause under Section 340 of the Code of Criminal Procedure, 1973 (Cr.P.C) as to why a criminal case be not lodged against each of them by the Registrar General of the Court or by sixth defendant in terms of permission to be granted by the Court.

15. Pertinent to mention here that the third defendant had earlier moved an application (Crl.M.A. 19647/2012) seeking initiation of inquiry and criminal prosecution under Section 340 Cr.P.C. against the attorney of the plaintiff (the second noticee) for having committed offences punishable under Sections 193, 199, 463 and 471 IPC in the judicial proceedings arising out of the above mentioned civil suit by having filed or produced "purported GPA" dated 25.1.2007, the declaration dated 11.8.2004 "alleged to be signed and executed" by the third defendant, thereby fabricating

false evidence and by filing of the plaint "incorporating false averments".

16. Per the pleadings set out, the plaintiff's case in CS(OS) 100/2010 primarily was that the suit property at one point of time was owned by Mr. Prem Nath Vig who had executed certain documents transferring the right, title and interest therein in favour of the plaintiff, the services of the third defendant at such stage having been engaged because he was working for gain as "a property dealer". It was the averment of the plaintiff that the third defendant engaged by the erstwhile owner for completing the sale proceedings and for conversion and mutation of the suit property had indulged in certain misrepresentation leading to the documents impugned in the suit being executed "fraudulently and mischievously" illegally showing the sale of the subject property by the plaintiff in favour of the third defendant. Besides various other documents, the plaintiff also relied upon a document in the nature of declaration purportedly executed by the third defendant on 11.8.2014 to the effect that he had never purchased the suit property from the plaintiff.

17. In above context, it also needs to be mentioned here that the attorney of the plaintiff (i.e the second noticee) had lodged the first information report (FIR) No. 33/2012 against the third defendant with police station Tughlak Road on similar allegations, the said FIR being still at the stage of investigation with the police, inter alia, pursuant to directions of the concerned Metropolitan Magistrate by order dated 15.11.2016. In that reference, the station

house officer (SHO) of police station Tughlak Road has made an application (IA No. 16243/2016) seeking handing over of some of the documents filed on record of this civil suit to be made available so that the police investigation into the alleged offences can be carried out and taken to the logical conclusion, the said application indicating that for such purposes the specimen and admitted signatures of the third defendant have already been collected, which material is to be sent with the questioned documents to the Forensic Science Laboratory (FSL).

18. It also must be noted that as per the pleadings in the application under Section 340 Cr.P.C. (Crl.M.A. 19647/2012), an FIR had been registered in police station Patel Nagar, it being FIR No. 522/2007 earlier at the instance of the third defendant making allegations in the nature of fraud, forgery, cheating, criminal conspiracy against the plaintiff and her attorney (the noticees) concerning these very transactions. It is stated that the plaintiff had absconded and would not surrender to the jurisdiction of the Metropolitan Magistrate in such context and, thus, had to be declared proclaimed offender. Reference is also made to yet another FIR it being FIR No. 89/2010 of police station Ranjit Nagar. Further, be it noted that in the application under Order 12 Rule 6 CPC (IA No.3453/2014) which led to the dismissal of the suit on the two grounds as mentioned earlier reference was made to the proceedings in the Court of Metropolitan Magistrate arising out of FIR No. 522/2007 of police station, Patel Nagar.

19. The application under Section 340 Cr.P.C. (Crl.M.A. 19647/2012) having been filed remained pending till the disposal of the suit by order dated 19.08.2015. In this context, the third defendant moved an application under Section 151 CPC (IA No. 24788/2015) praying for directions for proceedings to be commenced on the said application under Section 340 Cr.P.C. As noted above, the Court while dismissing the suit issued show cause notice to the plaintiff and her attorney under Section 340 Cr.P.C. and reply thereto was insisted upon. Reply to the show cause notice has been filed by the attorney (the second notice) which has been treated as reply on behalf of the plaintiff (the first noticee) as well. In this view, the application under Section 151 CPC (IA No. 24788/2015) having served its purpose stands disposed of.

20. Before proceeding further, it may be noted for completion of the narration that the decision of the learned single judge by order dated 19.08.2015 dismissing the suit on the basis of "judicial admissions" in the previous civil litigation between the parties and also on the ground of limitation was challenged by the plaintiff and her attorney in appeal, RFA (OS) No.97/2015, which, however, was dismissed by judgment dated 9.2.2016. The plaintiff and her attorney later filed a petition for review (review petition No. 222/2016) with specific reference to the directions in the order dated 19.8.2015 about initiation of criminal proceedings. The said review petition was dismissed by the learned division bench by order dated 6.5.2016 clarifying that the decision in the appeal primarily considering the contentions of the noticees against dismissal of the suit shall not be construed as a final expression on

the merits of such defence as may be taken up in the wake of show cause notice under Section 340 Cr.P.C.

21. The matter arising out of the show cause notice issued by order dated 19.08.2015 and the application under Section 340 Cr.P.C. (Crl.M.A. 19647/2012) has been heard against the above backdrop. With the assistance of the parties the record has been perused.

22. The learned single judge on the basis of "judicial admissions" as culled out from the pleadings or other material relating to the previously instituted suits, Suit No. 141/2004 and CS (OS) 2211/2003, observed that the plaintiff was "not entitled" to explain the same away with regard to transfer by her of the title in the suit property in favour of the third defendant and, on that basis, held the suit to be not entertainable, this in addition to the bar of limitation. Noticeably, the contentions of the plaintiff and her attorney with regard to misrepresentation or playing of fraud by the third defendant were not put to trial. Instead, it was held that the position taken by the plaintiff in the pleadings in the previous suits would not permit her to speak facts to the contrary. It is on the basis that the learned single judge was of the view that the suit instituted was in the nature of making of a "false claim in Court" within the mischief of the offence defined and provided for in Section 209 IPC.

23. When the third defendant, by his application under Section 340 Cr.P.C. (Crl.M.A. 19647/2012), alleged offences under Section 193 (punishment for false evidence), Section 199 (false statement

made in declaration which is by law receivable as evidence), Section 463 (forgery) and Section 471 (using as genuine a forged document or electronic document) of IPC, the prayer for prosecution on the allegation of plaintiff having made "false averments" in the plaint is also essentially concerning commission of offence under Section 209 IPC, the case of forgery having been particularly alleged with reference to GPA dated 25.1.2007 and declaration dated 11.8.2014 purporting to have been signed and executed by the third defendant.

24. It is trite that to impute criminality, element of mens rea has to be found. It is also well settled that it is sine qua non for initiation of criminal action by court under Section 340 Cr.P.C. that a satisfaction as to expediency of such course is reached. [Iqbal Singh Marwah vs. Meenakshi Marwah, (2005) 4 SCC 370].

25. Having regard to the overall facts and circumstances of the case leading to the dismissal of the suit by order dated 19.08.2015, which decision has since merged in the decision dated 29.02.2016 of the division bench in appeal and the fact that criminal cases have been registered and taken up by the police at the instance of both sides against each other, in the considered view of this Court, it is not a case where it would be expedient, or in the interest of justice, to add to the action under the criminal law by directing a complaint to be lodged under Section 340 Cr.P.C. read with Section 195 Cr.P.C.

26. As indicated earlier, the document in the nature of declaration dated 11.8.2004 purporting to have been executed by the third

defendant in favour of the plaintiff on which she placed reliance was not put to test or scrutiny for adjudication in the proceedings arising out of the civil suit. In these circumstances, it would not be just and proper for this Court to be holding a parallel inquiry into the genuineness or otherwise of such document particularly as it is not even alleged that such document was fabricated in the course of proceedings in the Court.

27. Thus, in the opinion of this Court, the issues raised by both sides against each other under the criminal law being already subject matter of requisite investigation, no action by this Court under Section 340 read with Section 195 Cr.P.C. being found to be "expedient" or in the interest of justice, these proceedings are brought to an end. The show cause notices issued by order dated 19.8.2015 are discharged and the application (Crl.M.A. 19647/2012) under Section 340 Cr.P.C. of the third defendant is disposed of with these observations.

28. The application of SHO Police Station, Tughlak Road (IA No. 16243/2016) for handing over of certain documents for purpose of investigation of FIR No.33/2012 does not call for judicial decision. It being ministerial in nature shall be considered for suitable directions by the Registrar General of this Court who shall pass necessary orders thereupon having regard to the background facts of the litigation and taking all necessary care and precaution to ensure the safety, proper custody and control of the documents in question. The SHO police station Tughlak Road is given liberty to

mention the said application for such purposes before the Registrar General.

(R.K. GAUBA) JUDGE FEBRUARY 16, 2017 nk