Nalini Sharma vs Honble Lt. Governor & Ors.
2019 Latest Caselaw 5512 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: 28.08.2019
%                           Judgment delivered on: 08.11.2019


+       W.P.(CRL) 1330/2009           &    CRL.M.A.4228/2017             and
        CRL.M.A. 33381/2019

        NALINI SHARMA                                 ..... Petitioner

                           Through:       Mr. Prakash Gautam and
                                          Mr. Sandeep Kumar,
                                          Advocates.
                           versus

        HONBLE LT. GOVERNOR & ORS.                    ..... Respondents

                           Through:       Mr. G. M. Farooqui, APP for
                                          the State with Inspector Anil
                                          Jindal and SI Neeraj Kumar
                                          from PS-EOW.

                                          Mr. Dhanesh Relan, Standing
                                          Counsel for DDA with
                                          Ms. Komal Sorout and
                                          Ms. Gauri Chaturvedi,
                                          Advocates for DDA.
CORAM:

HON'BLE MR. JUSTICE BRIJESH SETHI

                           JUDGMENT

BRIJESH SETHI, J.

1. The instant petition has been filed by the petitioner Nalini

Sharma under Section 482 CrPC for quashing of the FIR No.

247/1988 dated 22.11.1988, under Section 420/468/471/120-B

IPC registered at P.S. Kotla Mubarakpur, New Delhi and charge-

sheet filed there under against her.

2. Concisely, the relevant facts of the present case are that

President of India (Lessor) through New Friends Cooperative

House Building Society Ltd. (Lessee)(herein after referred to as

'Society') had executed Perpetual sub-lease dated 05.09.1980 in

favour of Col. K.D.Gupta in respect of plot bearing no. A-133,

New Friends Colony, New Delhi (hereinafter referred to as 'suit

property').

3. Col. K.D.Gupta, the original allottee of the suit property

vide request letter dated 14.12.1984 made the petitioner Nalini

Sharma as his nominee and accordingly plot no. A-133 was

mutated in the name of petitioner by the DDA and Society also

accepted the request of transferring the rights of the suit property

in the name of petitioner herein.

4. It is the case of the petitioner that in the month of March,

1985, she had entered into an agreement to sell the suit property

in favour of one Mrs. Prabha Pawa. On account of some dispute,

Mrs. Prabha Pawa had filed a suit bearing no. 862/89 seeking

relief of specific performance and injunction against the threat of

DDA to resume the plot as well as relief against the cancellation

of the plot in favour of the petitioner. During the pendency of the

said suit, Mrs. Prabha Pawa had settled the matter with DDA and

deposited restoration charges, charges towards earned income,

damages, ground rent etc. Consequently, DDA had also executed

a conveyance deed on free hold basis in favour of Mrs. Prabha

Pawa. As per the prosecution case, it was noticed that the

mutation/transfer of various plots in various cooperative Group

Housing Societies including the above said Society, were done

by DDA on the basis of Will/nominations etc. As there were

complaints, therefore, an FIR No. 247/88 was registered against

the office bearers of the Society. During the course of

investigation, the name of other plot holders, including the

petitioner was also added. The FIR was based on the complaint

lodged by DDA.

5. It is contended by learned counsel for the petitioner that in

view of the admitted payment of the compounding fees as well as

the unearned increase along with interest and all the charges in

respect of conversion of suit property (which also stands now

transferred absolutely by way of conveyance deed in favour of

Smt. Prabha Pawa as an absolute owner), there is no warrant for

further continuation of the said proceedings qua the petitioner.

6. It is lastly argued that in various other matters relating to

the same criminal case bearing FIR No. 247/1988 dated

22.11.1988, the Hon'ble Court has quashed the FIR and,

therefore, on the ground of parity, the proceedings against the

petitioner be also quashed in the interest of justice.

7. Learned counsel for the petitioner in support of its case has

relied upon the following case law:-

Smt Anita Maria Dias & Anr Vs. The State Crl. A. No.199 of 2018 decided on 19.01.2018 by the Hon'ble Supreme Court.

8. I have gone through the above judgment passed by the

Hon'ble Supreme Court. This was a case of cheating and other

related offences where settlement was arrived at between two

private parties where there was no loss to the public exchequer

and no forgery or cheating was committed with any public

authority. Hence, the facts of the above judgment are

distinguishable from the facts of the present case and the same is,

therefore, not helpful to the petitioner.

9. Per contra, it is contended by Ld. APP for the State as

well as by Ld. Counsel for DDA that it is a clear-cut case of

cheating, forgery and wrong representation of Will on the part of

the petitioner. It is further submitted that it is the Will on the

basis of which petitioner claimed herself to be nominee of the

suit property which later on, after thorough scrutiny of

documents, found to be a case of transfer of property and not a

case of devolution of property after the death of the testator in

order to avoid the levy of unearned increase, since in case of

devaluation of property, the transferee has not to pay the

unearned increase. The Perpetual lease deed contemplates that in

the event of sale, the lesser shall be entitled to claim and recover

50% of the unearned increase in the value of the residential plot.

10. I have considered the rival submissions and gone through

the record.

11. Perusal of the record reveals that consequent to suit no.

862/1989 titled as Mrs. Prabha Pahwa vs. Mrs. Nalini Sharma

& Anr, DDA had executed and registered the lease deed in

favour of Mrs. Prabha Pahwa in respect of the aforesaid plot.

Perusal of record further reveals that one of the condition on

which sub-lease executed in respect of the suit property was to

prohibit the lessee from transferring the sub-lease hold rights in

favour of any person except with the consent of the lessor in

writing which would be granted only subject to payment of 50%

of the unearned increase and it has come on record that an

amount of Rs. 4,49,555/- towards arrear of unearned increase was

deposited by the petitioner with the DDA. In view of the above,

it is vehemently argued by learned counsel for the petitioner that

since the DDA has already been compensated by way of payment

of Rs. 4,49,555/- towards arrear of unearned increase and

conveyance deed has already been executed in favour of Mrs.

Prabha Pahwa, there remains nothing to proceed with the

proceedings of the present FIR as no action is pending on the part

of the DDA and the matter has attained its finality.

12. Having perused the entire material available on record, I am

not in agreement with this contention of learned counsel for the

petitioner. The FIR in the present case was lodged for the offences

of cheating, forgery, wrong representation of Will and for criminal

conspiracy resulting in wrongful loss to the DDA and wrongful

gain to the petitioner and solely for non deposit of 50% of unearned

increase. On the basis of material available on record, at this stage,

prima facie, it appears that petitioner has committed the offences of

cheating and forgery by presenting Will and nomination which was

actuated on a sale transaction and is not a case of devolution of

property. Scrutiny of documents reveals that the nominee of the

suit property was not the blood relative of the original allottee

which is in contravention of terms and conditions of the sub-lease

deed. It is the case of the prosecution that as per law devolution is

allowed to legal heirs in blood relation and none else. The factum

of offences of cheating and forgery committed by the petitioner in

collaboration with DDA officials and staff members of Society is

clearly mentioned in the charge-sheet filed in this case and the

relevant portion of the same is as follows:-

" In second case plot no. A-133, was sub- leased in favour of Sh. K.D.Gupta on 19th April, 1984. He informed DDA that he could not construct building on the plot as he had been posted to a field area and that his family consisting of wife and two daughters and one son(with no other member, presumably male member). However, on 17th December, 1984 he stated that he is a widower and issueless and as such intends to transfer the plot in favour of Smt. Nalini, his nominee. On the basis of these documents, mutation was allowed in favour of petitioner Nalini Sharma on 31.12.1984. In this case, the transfer has been obtained by filing false affidavits of being widower and issueless whereas in April 1984, Sh. K.D.Gupta, accused Sl. No. 3 has accepted that he is having 2 daughters and one son. During investigation, it has been established that Smt Nalini Sharma accused Sl.no. 4 along with her husband Sh. Suresh Sharma with the intention to purchase a plot in N.F.C. H.Building Society contacted Gulshan Nayyar, property Dealer. The property dealer and society's office bearer accused M.L.Jaggi and K.L.Mehta fallen into a criminal conspiracy with the seller K.D.Gupta, purchaser Smt Nalini Sharma and her husband. DDA officials induced the purchaser to purchase the plot no. A-133, and assured her that mutation would be got done in her name from DDA. As per investigation i.e. statements, CFSL report and documents collected so far, it is crystal clear that a forged/bogus letter dt.

14.12.1984was presented to DDA on behalf of the seller along with the forged nomination, application, photocopy( attested true copy) and indemnity bond and affidavit bearing bogus signatures of Sh. K.D.Gupta. Mutation was intentionally carried out in favour of Nalini Sharma for a consideration of Rs. 2,50,000/- which was out of blood relation transfer which could take place only after payment of 50% unearned increase to the lesser."

13. In the case in hand, petitioner has committed offences of

cheating and forgery on the basis of false documents and suit

property was mutated as a devolution case on the basis of Will

executed by Sh. K.D. Gupta in her favour. It is the case of the

prosecution that the instant case is not of mutation out of blood

relation and it is a clear cut case of sale by sub-lessee in favour of

Nalini Sharma but it was shown on the basis of Will in order to

deprive DDA of 50% unearned increase with the assistance and

active role of conspirators i.e. accused G.P.Biswal and Hari Singh

of DDA and M.L.Jaggi and K.L.Mehra of society. It is clear that

prima facie offences committed by the petitioner are the offences

against the society at large and therefore, she cannot be exonerated

from the criminal liability on the ground that she has paid the

amount of unearned increase later on. Reliance in this regard is

placed upon Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai

Karmur & Ors. Vs. State of Gujarat & Anr., 2017 SCC Online SC

1189, wherein the Hon'ble Supreme Court has held as under:-

"15..the case involved an allegation of forgery; hence the court was not dealing with a simple case where the accused had borrowed money from a bank, to divert it elsewhere. The court held that the manner in which Letters of Credit were issued and funds were siphoned off had a foundation in criminal law: availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominatingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates

a dent in the economic spine of the nation. The judgment of the High Court quashing the criminal proceedings was hence set aside by this Court.

The same principle was followed in Central Bureau of Investigation v Maninder Singh by a bench of two learned Judges of this Court. In that case, the High Court had, in the exercise of its inherent power under Section 482 quashed proceedings under Sections 420, 467, 468 and 471 read with Section 120-B of the Penal Code. While allowing the appeal filed by the Central Bureau of Investigation Mr Justice Dipak Misra (as the learned Chief Justice then was) observed that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation, the fact that the dispute had been settled with the bank would not justify a recourse to the power under Section 482:

In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal profit regardless of

consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved.

A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system."

14. Perusal of the record clearly reveals that offence committed by

petitioner is not an offence against one man but against DDA, a

public Authority. The act of the petitioner, in fact, is an intentional

act designed to deprive the DDA of its legitimate dues by

committing forgery and cheating. This Court is of the view that

when such offences are committed, these not only cause loss to the

public exchequer but also to the taxpayers and society at large who

have a right to access to various welfare schemes of the government.

The offences alleged against the accused are serious in nature and

committed with a deliberate design and planning with a view to earn

personal gain regardless of wrongful loss to the public exchequer

which concerns public at large. This court is, therefore, of the

considered view that even if unearned increase has been paid to

DDA later on and conveyance deed has been executed qua the suit

property in favour of Ms. Prabha Pawa, the petitioner cannot be

exonerated of the offences committed in a planned manner by

manipulating the documents with the intention of cheating the DDA

and causing loss to the Public exchequer and to quash such kind of

proceedings would certainly be a case of misplaced sympathy.

15. Ld. Counsel for the petitioner has argued that earlier also the

FIR was quashed qua some of the accused persons by the Hon'ble

High Court of Delhi on the ground that unearned increase was paid

by the subsequent purchaser.

16. Ld. APP for the State and Ld. Counsel for DDA have,

however, argued that the FIR cannot be quashed if the offence affects

the economy of the nation or results in causing loss to the public

exchequer, in view of the latest law laid down by the Hon'ble

Supreme Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai

Karmur & Ors. Vs. State of Gujarat & Anr.,2017 SCC Online SC

1189.

17. This court is of the opinion that offences alleged to have been

committed by petitioner is not an individual or personal wrong. It is

a wrong which affects the society and is committed with an eye on

personal profit regardless of consequences to the society. In view of

the detailed reasoning given above, this court is of the opinion that

FIR cannot be quashed for the reason that the petitioner has cheated

the DDA and caused loss to the public exchequer by not paying

unearned increase deliberately and in view of the Judgment of

Hon'ble Supreme Court in Parbatbhai Aahir @ Parbatbhai

Bhimsinhbhai Karmur & Ors.(Supra), the offences which affects

the economy of the nation and are against the society, cannot be

quashed.

18. In view of the above discussion, I find no merit in the petition

filed by the petitioner and the petition, along with all the pending

applications are accordingly dismissed.

BRIJESH SETHI, J NOVEMBER 8, 2019 AK