Hanif v. Jagmal

ORDER %

23.05.2011

¶1This is a petition filed under Section 482 Cr.P.C. for quashing of complaint case no. 105/1, under Section 406/409/446/448/506 IPG titled Jagmal Vs. Hanif & Ors. and the consequent summoning order dated 13.12.2010.

¶2I have heard the learned counsel for the petitioner and have gone through the record.

¶3The respondent had filed a complaint under Section 406/409/446/448/506 IPG against present petitioner. Although along with the complaint, he had filed an application under Section 156(3) Gr.P.G., however, the same was dismissed by the learned Magistrate. Thereafter, the complainant examined himself as the sole witness at the pre-summoning stage. In his statement of GW-1, he has stated that he is the owner of a plot measuring sq. yds. situated in Khasra no. 117, Khatoni Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. No.209 having total area of 3 bigas, 16 biswas. Certified copy of the document were proved as Ex.CWl/1 to CWl/4.

¶4It was alleged by him that there is a dispute between respondent and one Tula Ram with regard to the ownership of the said property as a consequence of which there is a Regular Second Appeal bearing no. 168/2005 pending in the High Court. The High Court vide order dated 7.9.2005 has stayed the operation of the judgment passed by the Court below in favour of Tula Ram.

¶5The certified copy of the said judgment has also been proved as Ex.CWl/5. It is stated by him that on account of the said dispute, he did not raise the construction on the said plot of land but engaged one Abdul Majid (since deceased) for the purpose of taking care of the plot of land. It is stated by him that Abdul Majid unfortunately died and his son, who happens to be the present petitioner requested the respondent to allow him to occupy said piece of land on humanitarian consideration and also to permit him to graze his cattle on the said land.

¶6Believing representations of present petitioner, respondent 4/5 years back permitted him to take care of the said disputed land and he has stated that immediately thereafter, he stopped keeping cattle on the said plot of land. On the contrary, one Aaesa, who is the accused no.4 (but is not before this Court) was engaged as a domestic maid of the respondent for which she was duly remunerated either by cash or of gifts. It is also stated by him that in the month of October-November, 2007, the present petitioner occupied one additional room which was being used by the respondentfor the purpose of storing the fodder ofthe cattle. On learningthis fact, the respondent is stated to have asked the present petitionerto vacate the said plot ofland which was evaded by him for one reason or the other.

¶7On 15.7.2008, the respondent is stated to have received summons from the Court of Ms.CharuAggarwal, learned Civil Judge where the presentpetitionerfiled a suit with regard to the ownershipof the said plot of land.

¶8Certified copy of the complaint and the other documents were placedbeforethe learned Magistrateand are duly exhibited. It was stated by him that as and when the respondentwantedto go on to plot of land, he was being threatenedfor which a complaintwas made to the SHO P.S. S.Vihar also, on the basis of which no action was taken. Since no action was taken by the police, the respondent was constrained to file the complaint for the aforesaid offence.

¶9The learnedMagistrateafterhearingthe partiesformed an opinion that the offence under Section 409/446/448/506/ IPC is not made out. However,as the prima facie case under Section 406 IPC for breach of trust was made out, summons were directed to be issued against the present petitioner.

¶10The present petitioner feeling aggrieved by the said order, has assailed the order of summoning and prayed for quashing of complaint on the ground that the learned Magistrate has not taken into consideration the fact that the present petitioner has already initiated an action raising the ownership of the disputed plot of land and his possession has been protected by the interim order passed by the Civil Court. It has also been contended by him that since the petitioner is the owner of the disputed land, therefore, there is absolutely no question of offence of breach of trust being made out.

¶111 have heard the learned counsel for the petitioner as well as perused the record. I have carefully considered the submissions made by the petitioner. 1 do not find any merit in the contention of the learned counsel for the petitioner that merely because petitioner has filed a civil suit claiming himself to be the owner of the disputed land and the fact that he has obtained a restraint order against the respondent no.2 against his dispossession makes out a prima facie case for quashing a case against him under Section 406 IPC.

¶12The learned Magistrate has taken into consideration the pendency of the civil litigation has taken a definite view and has accordingly not summoned petitioner for offence under Section 409/446/448/506 IPG and rightlyso. So far as the offenceunder Section406 IPG is concerned,the respondenthas made a definite statementclaiminghimselfto be the ownerand entrustingthe said propertyto the petitionerwhich the present petitionerhas failed to vacate. Accordingly on the basis of the statement of the complainant,the petitionerhas been chargedfor the offenceunder Section 406 IPG.

¶13An offenceunder Section405 IPG defines the breach of trust, two things are required to be satisfied; firstly there must be an entrustmentof the propertyand secondly, the propertymust be used by the person so entrustedto the detrimentof the person, who has entrustedthe propertyand it need not be necessarilyfor his own benefit.

¶14In the instantcase, at the stage of summoningonly prima facie view is to be taken and one does not have to conductmeticulous dissection of the statements for the purpose of summoning or framingof chargeagainstthe accused. Therefore,I do not find an infirmity in the summoning order passed by the learned Magistrate.

¶15So far as the questionofquashingofthe complaintis concerned,if one goes through the grounds mentionedin the petition, all the groundshave been prefacedby usingthe word that 'Magistratehas failed to -appreciate'. The very fact that the grounds have been J prefixed by words 'appreciate' it necessarily refers to appreciation evidence and it becomes a disputed question of fact. Something which is a disputed question of fact cannot be a basis for quashing of an FIR or a complaint. Apart from the fact the quashing power has to be exercised yeiy rarely and sparingly. Reliance in this regard can be placed on judgment of the Supreme Court in State of Haryana & Ors. Vs. Bhajan Lai & Ors. AIR 1992 SC 604.

¶16For the reasons mentioned above, I feel that the present petition for quashing the summoning order as well as the complaint is without any merit, vexatious and accordingly, same is dismissed. r.K. SHALI,J MAY 23, 2011 RN

$-57 IN THE HIGH COURT OF DELHI AT NEW DELHI * + CRL.M.C. 1691/2011 HANIF Petitioner Through Mr.R.K.Sonkiya, Adv. versus JAGMAL Respondent Through CORAM: HON'BLE MR. JUSTICE V.K. SHALI