Delhi High Court

Avani Singh vs State (Nct Of Delhi) & Anr on 24 December, 2019

$~13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 24.12.2019
+      CRL.M.C. 6705/2019 and CRL.M.A. 43525/2019
       AVANI SINGH                                       ..... Petitioner
                          Through:      Mr. Bharat Singh and Mr. Suraj
                                        Prakash Pandey, Advs.
                          versus
       STATE (NCT OF DELHI) & ANR                ..... Respondents
                     Through: Mr. Panna Lal Sharma, APP for State
                               with SI Shiv Singh, PS - Saket, New
                               Delhi and SI Suraj Kumar, PS-
                               Kapashera, S.W.D.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

CRL. M.A. 43526/2019

1. Allowed, subject to all just exceptions.

2. Application is disposed of.

CRL.M.C. 6705/2019

3. Vide the present petition, the petitioner seeks direction thereby to

quash the Complaint Case No. 7003/2017 filed by the respondent No. 2

under Section 200 Cr.P.C, 1973 before the Ld. Metropolitan Magistrate,

Dwarka Court, New Delhi and summoning order dated 15.01.2019, whereby

the learned Trial Court has issued summons against the petitioner.

4. Brief facts of the case are that on 26.02.1994, the petitioner got

married with Lt. Col. Manish Kumar, who was son of Mr. Mahipal Singh,

complainant (respondent No. 2 herein). However, he died on 09.08.2013 due

to cancer. But, the Petitioner continued to live with her ex-husband's family

even after death of her husband.

5. On 10.07.2016, with the consent of Respondent No. 2, Petitioner re-

married with his nephew- Mr. Nirdesh Malik. Immediately thereafter, the

Respondent no.2 informed State Bank of India, Sector-10, Dwarka, New

Delhi (hereinafter referred to as SBI) about said remarriage of the petitioner.

The respondent No.2 also received acknowledgement letter dated

18.07.2016 issued by SBI with regard to information pertaining to

remarriage of the petitioner. Further, SBI also got confirmation from the

petitioner on phone about her remarriage.

6. In first week of September, 2016, the petitioner left for Nigeria to stay

with her present husband who has been working there for many years.

7. In December 2016, the Petitioner came to India from Nigeria

alongwith her husband. As family pension was still being credited in her SBI

account, since July, 2016, so she personally went to SBI and met the Bank

Manager and informed him that since, Respondent No. 2 had already

intimated to SBI about her remarriage, so why her family pension was still

being credited into her account. The Manager of SBI told her that she should

send a letter to the Army Authorities stating the fact that she has already

remarried and thus, the family pension be stopped from 11.07.2016

onwards.

8. Accordingly, Petitioner made a representation to the Additional

Directorate General Personnel and Services, AG's Branch, IHQ of MoD

(Army), New Delhi, thereby requesting for transfer/allocation of ordinary

family pension from Petitioner's Account to her two sons' account w.e.f

11.07.2016.

9. Despite her various requests made to the SBI and Army Authorities,

still, the same was not stopped, therefore, Petitioner again made request to

bank for stopping the family pension, however, still it was not stopped for

the reasons best known to them. On 03.04.2017, Petitioner again represented

to SBI, and finally, in May, 2017, payment of family pension was stopped

from being credited into the account of the Petitioner.

10. Learned counsel for the Petitioner submits that on 13.04.2017,

Petitioner refunded the entire amount of family pension from 10.07.2016 till

13.04.2017 in the account of Army Authorities. She did not use/withdraw

any amount from family pension account for her personal purpose.

However, Respondent No.2 filed a Criminal Complaint under Section

156(3) Cr.P.C. read with Section 200 Cr.P.C., 1973 before the Ld.

Metropolitan Magistrate, South West, Dwarka Court, New Delhi against the

petitioner for initiating proceedings under Sections 406, 420, 468, 471, 120B

and 34 of Indian Penal Code, 1860.

11. It is further submitted that on the aforesaid request made by the

Petitioner to SBI, the Bank stopped the family pension and also, recovered

the amount on 13.04.2017 from the petitioner which was credited in her

account as family pension. In that regard, the Bank also issued certificate to

the Petitioner. However, on 26.08.2017, the learned Metropolitan

Magistrate, South West, Dwarka Court, New Delhi after perusing the

detailed action taken report filed by the Police alongwith the relevant

documents was pleased to reject the aforesaid complaint made under section

156(3), Cr.P.C., 1973 and the learned Magistrate granted liberty to the

Respondent no.2 (Complainant) to produce witnesses for summoning of the

Petitioner in the aforesaid criminal complaint made under Section 200

Cr.P.C., 1973.

12. Being aggrieved by the order dated 26.08.2019 passed by the learned

Metropolitan Magistrate, the respondent No. 2 filed Revision Petition No.

454/2017 under Section 497 Cr.P.C. before the learned Additional Sessions

Judge, Dwarka Courts, New Delhi, however, same was dismissed vide order

dated 25.10.2017.

13. Learned counsel further submits that on 15.01.2019, the Ld.

Metropolitan Magistrate, South-West, Dwarka Courts, Dwarka, New Delhi

without considering the facts and material available on record as well as the

law, summoned the Petitioner by recording that the Petitioner filed a wrong

certificate in the month of January, 2017 before the Bank mentioning that

she was not married till said date and whenever she gets remarried, she will

inform the Bank. Whereas, the respondent No. 2 himself informed the bank,

immediately, after remarriage of petitioner solemnized on 10.07.2016 and

SBI issued acknowledgment letter dated 18.07.2016 in that regard, therefore,

the question of giving a wrong document by petitioner stating that she was

not married does not arise. Further, the Bank has recovered the amount of

family pension on 13.04.2017 which was credited into her account by

mistake.

14. However, Petitioner came to know about aforesaid summoning order

in the month of April, 2019, thereafter, on 10.05.2019 Petitioner came to

India from Nigeria and enquired about the present case. Learned counsel

submits that the matter before the learned Metropolitan Magistrate was

again listed for 07.09.2019 and 16.10.2019, however, the Petitioner could

not appear due to pendency of renewal of residence permit to be issued by

Nigerian Government. In the meantime, the Respondent no.2 moved an

application for early disposal of the complaint and got the Non- Bailable

Warrant issued against the petitioner for 16.10.2019. Due to the aforesaid

reasons, in the month of October, 2019, the Petitioner requested the Nigerian

Government for renewal of residence permit on an urgent basis and as such,

the same was allowed in the starting of first week of November, 2019.

Thereafter, the Petitioner came to India and appeared before the Ld.

Metropolitan Magistrate, South-West, Dwarka Courts, Dwarka, New Delhi,

who after considering the facts and circumstances, stayed the execution of

NBW against the Petitioner and directed to list the matter on 12.12.2019.

15. However, when the petitioner went to attend the court hearing in

Dwarka Court, respondent no.2 threatened her with dire consequences, if she

will not transfer the entire property in his or his grandsons' name. He also

threatened the petitioner that if she will not transfer it within one week, the

respondent No. 2 will get petitioner killed by Goons. However, the

petitioner silently left the court premises and went to her matrimonial home

at Gurgaon with her husband. On 14.11.2019, in the light of aforesaid

threat, Petitioner lodged a complaint to S.H.O., Police Station - Kapashera,

New Delhi against the Respondent No. 2, his wife, his son, namely, Mr.

Pankaj Kumar and Bank officials of State Bank of India, Dwarka, New

Delhi for harassing, torturing, criminally intimidating, defaming, cheating

and molesting the Petitioner.

16. It is submitted that in the month of December 2019, the counsel for

Petitioner made her records of the case available, which, on perusal, makes

it clear that the complaint case has been filed by the Respondent no.2 just to

harass the Petitioner and her husband with malafide intention to grab her

properties. Thus, the complaint and proceedings thereto deserves to be

quashed.

17. On the other hand, learned counsel appearing on behalf of the

Respondent No. 2/ complainant submits that the Petitioner re-married on

10.07.2016 and thereafter, on 16.01.2017, submitted proforma declaring that

she has not re-married during past six months and undertook to report as

such, promptly to the bank. Thus, she was aware on 16.01.2017 that she

remarried on 17.10.2016 and is not entitled for family pension, however, she

continued to have the pension and utilized the same for her personal

purposes. Since, she had submitted a wrong statement before the bank, thus,

she has cheated the grand children of Respondent No. 2 due to which they

could not get the benefit of family pension to which they were entitled w.e.f.

10.07.2016. Thus, the learned Trial Court has rightly issued summons based

upon the statement made by respondent No. 2 and witnesses from the bank.

18. Learned counsel further submits that in addition to the cheating, there

are various properties in the name of the Petitioner, which were financed by

Respondent No. 2 in the name of the Petitioner and after remarriage with the

present husband, the Petitioner was supposed to transfer each and every

property in the name of his grand children. Moreover, an amount of Rs.20-

25 lakhs is lying in the FDRs in the name of the Petitioner which she has not

transferred till date in the name of the children. Learned counsel submits that

since the Petitioner already remarried and her right in property accrued in

the present family w.e.f. 10.07.2016, but she is still enjoying the property to

which the grand children of Respondent No. 2 are entitled.

19. Heard learned counsel for the parties in length and interacted with the

parties in open Court.

20. It is not in dispute that the pension continued to be credited in pension

account of the Petitioner after 10.07.2016, when she remarried. It is also not

in dispute that on 18.07.2016, the bank acknowledged the information made

by the Respondent No. 2 regarding her remarriage on 10.07.2016. Thus, the

bank was supposed to stop the family pension of the Petitioner, however,

this did not happen. As per the letters, which are part of the present petition,

the Petitioner informed the bank regarding her remarriage on 20.01.2017.

Moreover, on 04.03.2017, the petitioner informed to the Army Authorities

regarding her remarriage and requested that pension be accordingly

modified.

21. Again on 03.04.2017, the petitioner requested the bank for stopping of

the family pension. However, this fact has been disputed by the learned

counsel for the respondent No. 2. But Respondent No. 2, who is present in

Court has not disputed that he himself informed the Bank about Petitioner's

re-marriage and to this affect, acknowledgment dated 18.07.2016 was issued

by the Bank.

22. It is also not in dispute that vide order dated 13.04.2017, the excess

amount credited in the account of the petitioner had been recovered by the

Bank on the instructions of the Army Authorities and on 20.04.2017, the

Bank issued the certificate to this effect to the Petitioner.

23. Regarding the properties, though not the issue in the present case, it is

not in dispute that some of the properties were purchased in the name of the

Petitioner. On perusal of the deposition of CW-1/ Respondent No. 2 made

before the learned Metropolitan Magistrate, he deposed that the Petitioner

had also kept various Fixed Deposits, which were kept in a Bank account

maintained with SBI, Sector - 10, Dwarka, New Delhi, which belongs to Lt.

Col. Manish Kumar, son of the complainant/ Respondent No. 2. The

petitioner had jointly purchased some immovable properties alongwith Lt.

Col. Manish Kumar and after remarriage of the petitioner, only his

grandsons are entitled to those properties and not the petitioner. The

Petitioner also took the gold jewellery along with her, after remarriage.

24. It is being stated at Bar by the petitioner, who is present in Court, that

she has transferred two properties, one in Dwarka and another in Dehradun

in the name of her children/ grand children of Respondent No. 2, though she

was the absolute owner of the said properties. She has only two properties in

her name, first, being a shop at Sohana Road, Gurugram (Haryana) as

absolute owner and second, a flat in Dwarka (Delhi) having 50% ownership.

It is also stated by the petitioner that a flat in Greater Noida was in the name

of her husband and she was the nominee, but without her consent, mutation

has been sanctioned in favour of her children, to which she never disputed.

However, the parties have liberty to approach the appropriate forum

regarding the property dispute, if any.

25. Be that as it may, the present complaint has been filed by the

Respondent No. 2, who is grandfather of children of the petitioner. This

Court put a specific query to the learned counsel for the Respondent No. 2

that neither the Bank nor the Army Authorities nor the children, whose share

was allegedly utilized by the Petitioner have made the complaint, but

however, the grandfather of the children has filed the complaint but under

what capacity?

26. To the aforesaid query, learned counsel for the Respondent No. 2

submits that the grandchildren are staying with the Respondent No. 2, he is

taking care of all their needs and being guardian, he has filed the complaint

on their behalf.

27. Moreover, he submits that there is no such ground taken by the

Petitioner for quashing of the complaint and summoning order in the present

petition.

28. For convenience, Section 420 IPC is reproduced as under: -

"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the

person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

As per the said provision, whoever, cheats and thereby dishonestly

induces the person deceived to deliver any property to any person, is guilty

of cheating.

29. In the present case, Respondent No. 2, who is complainant, has not

been induced to deliver any property to any person. Thus, the Respondent

No. 2, by any stretch of imagination, cannot be complainant in the present

case. If the petitioner continued to have family pension, for that purpose,

either the Bank or the Army Authorities are entitled to initiate proceedings

against the Petitioner, as per the law. But the Respondent No. 2 has no locus

in the present case to file the complaint.

30. For the purposes of the commission of an offence, the ill-intention and

mens rea is required. In the present case, from the facts narrated above, it is