Mohd Yunus vs State & Anr.
2019 Latest Caselaw 5514 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: 28.08.2019
%                          Judgment delivered on: 08.11.2019


+      CRL.M.C. 3861/2010

       MOHD YUNUS                                  ..... Petitioner

                          Through:    Mohd. Saleem, Ms. Anjle
                                      Gupta and Mr. Asim Naeem,
                                      Advocates.

                          versus

       STATE & ANR                                 ..... 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 Mohd.

Yunus 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 him.

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 16.02.1973 in

favour of Mr. M.L.Tandon in respect of plot bearing no. C-566,

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

property').

3. Sh M.L.Tandon had entered into an agreement for transfer

of the suit property and also executed a registered Will on

28.03.1977 in favour of the petitioner Mohd Yunus. Sh.

M.L.Tandon had expired on 03.01.1980 on the basis of Will

dated 28.03.1977 and in terms of order dated 14.01.1982, passed

by the DDA, the property was mutated in the name of petitioner

Mohd Yunus on the basis of the registered Will and an

endorsement to this effect was also made on the perpetual sub-

lease deed. Later on, Sh. S.R.Bhutani, his wife and two sons

entered into an agreement with petitioner Mohd. Yunus for

purchase of the suit property on 27.06.1992 and petitioner

executed a registered General Power of Attorney in favour of Sh.

Raj Kumar Bhutani and Agreement to Sell in favour of Sh. Shri

Ram, Veena and Master Ankit through his father and guardian

Sh. Raj Kumar. Subsequently, purchaser applied for conversion

from lease hold to free hold with respect the suit property.

During the process of conversion of suit property from lease hold

to free hold by the DDA, it was found that earlier the mutation

was obtained on the basis of concealment of material facts and

false affidavit was given by the petitioner. Hence, FIR was

lodged and it was decided to charge 50% unearned increase from

the purchaser.

4. It is argued by learned counsel for the petitioner Mohd.

Yunus that various plots were got transferred in favour of various

beneficiaries without verifying the exact relationship and other

documents and the mutation was cancelled in the present case on

the ground that "the mutation was done in favour of outsider on

the basis of nomination in registered will after the death of sub-

lessee. Unattested certified copy of the death certificate has been

placed on record". It is further submitted that the mutation was

done in favour of the petitioner on the basis of registered Will

executed by Mr. M.L.Tandon, original sub-lessee in terms of the

order dt. 14.01.1982 passed by DDA and at that time there was

no condition that the mutation could take place only inter-se

family members and not to third persons. The order in this

regard was passed by the DDA on 18.01.1999 much later, when

the mutation has been carried in favour of Mohd. Yunus. It is not

the case of the prosecution that petitioner prepared or produced

any bogus Will before the DDA for transfer of lease deed.

5. 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 of the present

FIR against petitioner be also quashed in the interest of justice.

6. Learned counsel for the petitioner has relied upon the

following case law:-

1)S.R.Bhutani & Ors. Vs. DDA 2003(68) DRJ 380,

2)J.K.Bhartiya & Ors. Vs. UOI & Anr., ILR(2005) II DELHI 1123;

3)H.R.Vaish Vs. UOI and Ors. CW 1847/2000 decided on 07.08.2002.

7. Ld. Counsel for the petitioner has relied upon S.R.Bhutani

& Ors.(Supra). In the said case, the Hon'ble High Court of

Delhi had directed the DDA to execute conveyance deed on free

hold basis in favour of the petitioners on the ground that

unearned increase has been paid. This case is distinguishable on

the ground that it was a Civil Writ petition which related to the

execution of the conveyance deed and did not deal in respect of

cheating or forgery, alleged to have been committed by the

petitioner.

8. I have also gone through the judgment of J.K.Bhartiya &

Ors.(Supra). It was a Civil Writ petition in which conversion

was allowed in favour of the transferee subject to payment of

unearned increase. It is distinguishable for the reason that

Hon'ble Supreme Court has categorically stated in Parbatbhai

Aahir @ Parbatbhai Bhimsinhbhai Karmur & Ors. Vs. State of

Gujarat & Anr., 2017 SCC Online SC 1189 that an offence

which is not private in nature and affects the society at large

cannot be quashed. So far as case of H.R.Vaish Vs.

UOI(Supra) is concerned, the same is clearly distinguishable on

the basis of facts and circumstances stated therein. It was a Civil

writ petition which was not at all on the point of quashing of FIR.

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 himself to be nominee of the

suit property which later on, after thorough scrutiny of

documents, found 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 vide order dated

29.01.2003, High Court in case titled as 'Sh. S.R.Bhutani & Anrs.

vs. DDA and Ors.' Crl. W.P. No. 634/2001, Delhi Development

Authority (Respondent no.1) had directed the DDA to execute

the conveyance deed in respect of suit property on a free-hold

basis in favour of petitioners no. 1 to 3 i.e. Sh. S.R.Bhutani, Smt

Veena Bhutani, Master Ankit and Sh. Raj Kumar Bhutani

(subsequent purchaser of suit property) and in compliance of the

above directions, the conveyance deed was also executed on

15.07.2004. Perusal of record further reveals that one of the

condition on which sub-lease was 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

has been 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 Sh. S.R.Bhutani, Smt Veena Bhutani and Master Ankit

Bhutani(through her mother and natural guardian Smt Veena

Bhutani), 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

only 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 facts of the same are as follows:-

"In the instant case, it is established on the basis of documents and statements etc. that plot no. C-566 N.F.Colony was illegally sold by Sh M.L.Tandon, sub- lessee in favour of Mohd Yunus on 28.03.1977 for Rs. 1,50,000/- whereas it was shown a Will case. The payment was also made on 28.03.1977 vide bank drafts. The purchaser Mohd Yunus with the connivance of Sh. M.L.Jaggi and K.K.Mehta, prepared a bogus will and produced the same in DDA for transfer the plot in his name. DDA officials J.R.Sharma(dead), accepted the incomplete documents without any verification and the mutation took place violating the clauses of perpetual sub-

leased deed. It was a clear cut case of sale by M.L.Tandon in favour of Mohd. Yunus with the connivance of M.L.Jaggi and K.K.Mehta, Secretary and Asstt. Secretary of the Society and DDA officials Sh. J.R.Sharma, Assistant(dead). DDA was deprived of 50% unearned increase amount. Thus, the seller, purchaser, society officials and DDA officials, after having fallen into a criminal conspiracy mutated the said plot illegally. The DDA officials subsequently detected that a loss of Rs 3,16,995/- unearned increase amount was caused to DDA by said accused persons with the connivance of each other and DDA was cheated of this amount.

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. M.L.Tandon in his favour. It is the case of the

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

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

Mohd Yunus and 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 Ram Saran, S.K.Ratra of

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

prima facie the offences committed by the petitioner are the

offences against the society at large and therefore, he cannot be

exonerated from the criminal liability on the ground that he has

paid the amount of unearned increase later on. Reliance in this

regard is placed on 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 Sh. S.R.Bhutani, Smt Veena

Bhutani and Master Ankit Bhutani(through her mother and natural

guardian Smt Veena Bhutani), 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 same is accordingly

dismissed.

BRIJESH SETHI, J

NOVEMBER 8, 2019 AK