Research › Search › Judgment

Delhi High Court · body

2001 DIGILAW 116 (DEL)

MANMOHAN KUKREJA v. STATE OF DELHI

2001-02-01

R.C.CHOPRA

body2001
R. C. Chopra ( 1 ) THIS petition under Section 482 Criminal Procedure Code, 1973 has been filed with the prayer to quash the proceedings arising out of FIR No. 48/92 under section 420/460/471 Indian Penal Code, 1860 registered at P. S. Malviya Nagar, New Delhi or in the alternative to stay the criminal proceedings arising out of said FIR till the disposal of the suit No. 1840/ 90 pending in the High Court of Delhi and to quash the order dated 20/04/1998 passed by learned Metropolitan Magistrate in the aforesaid proceedings declaring the petitioner a proclaimed offender and initiating proceedings against him under Section 82/83 of the Code of criminal Procedure. ( 2 ) THE facts giving rise to the present petition, briefly stated are, that the petitioner had entered into an agreement with Damyanti narang, since deceased, under which she had agreed to sell house No. C-53, Malviya Nagar, new Delhi to the petitioner for a sum of Rs. 3 lakhs. In pursuance of the agreement a sum of rs. 2,75,000/- was paid by the petitioner to the deceased seller and the balance was agreed to be paid at the time of execution of the sale deed this transaction was recorded on agreement dated 28/06/1984 and the possession of the property was handed over to the petitioner according to the seller Damyanti Narang, he daughter, Manju Narang visited the office of the land and Development, Government of India in the month of May, 1990 and came to know that on the basis of a sale deed, the aforesaid property already stood transferred in favour of the petitioner. When she obtained a copy of the sale deed from the office of the Registrar, it was found that the said sale deed was not bearing the signatures of the seller Damyanti Narang. she also came to know that one Mr. P. P. Rajpal a close relative of the petitioner as his attorney had submitted an application in the office of the landdo in the year 1987 for the mutation of the property in favour of the petitioner and had submitted copy of the sale deed dated 2. 4. 1987 which had never been executed by her in favour of the petitioner. The balance amount of Rs. 4. 1987 which had never been executed by her in favour of the petitioner. The balance amount of Rs. 25,000/- which was shown to have been paid to the seller through a bank draft was never given to her and she had never appeared before the sub Registrar to sign any sale deed. On these allegations, the plaintiff first filed a suit for declaration and possession against the defendant in the High Court of Delhi with a prayer that the alleged sale deed dated 2. 4. 1987 in respect of the property in question may be declared null and void being bogus and forged. During the pendency of the suit Damyanti Narang filed an fir also dated 27. 1. 1992 containing the allegations in regard to the cheating and forging of sale deed against the present petitioner. The petitioner could not be arrested and as such the police filed a challan showing him in Col. No. 2, Thereafter the learned Metropolitan magistrate initiated steps for declaring him a proclaimed offender and by orders dated 20. 4. 1998 ordered process under Section 82 and 83 Criminal Procedure Code, 1973 against him. ( 3 ) I have heard learned counsel for the petitioner and learned counsel for the respondents. ( 4 ) I have gone through the records of the case also. ( 5 ) THE first and foremost contention advanced by learned counsel for the petitioner is that in view of the Section 195 (1) (b) (II) of the Code of Criminal procedure, the learned metropolitan Magistrate could not take cognizance of the charge sheet filed under sections 420/468/471 Indian Penal Code when a civil suit between the parties was already pending in the high Court in regard to the alleged forgery of the sale deed. Learned counsel has argued that once the forged sale deed had become a subject matter of the civil suit the bar under Section 195 of Code of Criminal Procedure became operative and the Court could not take cognizance of the offence except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. Learned counsel for the respondents have controverted this argument and have submitted that since the sale deed had been forged before the filing of the suit and it had been used also in the office of the Land and Development, government of India prior to the filing of the suit by the plaintiff in the High Court of Delhi, the bar under Section 195 of the Criminal Procedure Code was not attracted. They have relied upon the judgment of the Supreme Court of India reported in (1998)2 SCC 493 titled Sachidanand Singh Vs. State of Bihar wherein their lordships examined this question in detail and came to the conclusion that the bar contained in Section 195 (1) (b) (II) is not attracted in a case where forgery of the document was committed before the document was produced before the Court. In para 12 of the said judgment, their lordships observed as under:- "it would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the court and long before its production in the court, could also be treated as one affecting administration of justice merely because that document later reached the court records. " ( 6 ) THEREFORE, under the facts and circumstances of the present case where the complaint was clearly alleging that the forgery of the sale deed was committed much before the filing of the suit in which the said sale deed was being produced and the said document was used also in the office of Land and Development for getting the property mutated in the name of the accused/petitioner, the contention that the court could not take cognizance of the offence, is liable to be rejected. ( 7 ) LEARNED counsel for the petitioner has further argued that in view of the pendency of the civil suit in respect of the same subject matter which is the basis for the lodging of the FIR and filing of the challan under Section 173 criminal Procedure Code, 1973, the criminal proceedings should be stayed till the decision of the civil suit in as much as the civil Court is a superior forum the findings of which will be binding on the criminal Court. It is argued that in the Civil Suit as well as in the Criminal Proceedings the issue to be determined by the Courts is as to whether the sale deed was a forged document or not and in case the Civil Court gives a finding that the document was not a forged document, the criminal Court would be precluded from giving a finding to the contrary. The question as to whether the Civil and Criminal proceedings could be taken up simultaneously or not has been engaging the attention of the courts quite often. The Courts have generally taken a view in favour of the stay of Civil proceedings where a Criminal case already Stands instituted in the same facts for the reason that a person accused of an offence when asked to contest a civil suit may run the risk of self in crimination which is violative of article 20 (3) of Constitution of India. In M. S sheriff and Anr. Vs. State of Madras and Ors reported in AIR 1954 SC 397 , their Lordship of the Apex Court held that between Civil and criminal proceedings, the Criminal matter should be given precedence as the public interest demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in public mind and that the innocent should be absolved as early as possible. In a recent decision in V. M Shah Vs. State of Maharashtra and Anr. reported as JT 1995 (6) SC 433, the Hon ble Supreme Court of india has again reiterated the need for giving preference to the criminal proceedings ( 8 ) IN the case in hand had the criminal proceedings been instituted against the petitioner prior to the filing of the civil suit he could have moved the Civil Court for stay of the proceedings on the ground that the constitutional protection as enshrined under section 20 (3) of the Constitution of India was being violated by compelling him to file a written statement, reply affidavit etc. disclosing his defense, which he may take in the criminal proceedings and in a way it amounted to asking him to make testimonial disclosure of his defence; However, in view of the fact that the suit was filed prior to the institution of the criminal proceedings and the petitioner has already taken a stand in the civil suit by filing a written statement no good ground is made out for stay of the criminal proceedings in which there is no burden of proof on him in as much as the entire prosecution case has to be established by the prosecution and the petitioner may remain silent throughout. Thus the contention that the criminal proceedings against the petitioner should be stayed till the disposal of the civil suit cannot be upheld. ( 9 ) IN support of the plea of petitioner that the learned Trial Court had no justification in issuing process against him under Section 82 and 83 of the Criminal Procedure Code, 1973 Learned counsel has argued that the petitioner is working out of India and as such was not available in the country to present himself before the Court when non- bailable warrants were being issued against him and as such the Court ought not to have initiated process against him under Section 82 and 83 of the Code of Criminal Procedure. Under Section 82 of the Code of Criminal Procedure whenever a Court has reason to believe that any person against whom a warrant of arrest has been issued by it has absconded so that the warrant may not be executed the Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation. After proceedings under Section 82 Criminal Procedure Code, 1973, the Court may initiate action under section 83 of the Criminal Procedure Code, 1973 also. A perusal of the order sheets dated 21. 9. 1996 and thereafter reveal that non-bailable warrants were being issued against the petitioner repeatedly. On 20. 4. 1998, the learned M. M. ordered that issue of process under Section 82 against the petitioner and also warrants of attachment for surety. It is not understandable as to how any attachment against surety could be issued when the petitioner had never surrendered before the court and was not on bail. On 20. 4. 1998, the learned M. M. ordered that issue of process under Section 82 against the petitioner and also warrants of attachment for surety. It is not understandable as to how any attachment against surety could be issued when the petitioner had never surrendered before the court and was not on bail. This order does not record the satisfaction of the Trial Court that the petitioner was absconding or was concealing himself to avoid execution of the warrants against him. ( 10 ) IN view of the foregoing reasons the petition stands disposed of by holding that there are no good/grounds at all for quashing the FIR no. 48/92 P. S. Malviya Nagar Under Section 420, 482, 471 indian Penal Code, 1860 as prayed. There is also no justification for stay of the criminal proceedings arising out of the said FIR. However the warrants issued by the learned/metropolitan Magistrate against the petitioner/under Section 82 and 83 Criminal Procedure Code, 1973 are set aside. The petitioner is granted 30 days time for appearance before the Court concerned and applying for bail. In case the petitioner does not surrender before the Trial Court within 30 days from today, the Trial court shall proceed against him in accordance with law.