Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 16 January, 2017
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Decided on: 19 May, 2017
+ CRL.M.C. 99/2012
PAVINDER AHLUWALIA ..... Petitioner
Represented by: In person.
versus
STATE & ANR. ..... Respondents
Represented by: Ms. Meenakshi Chauhan, APP
with SI Madhurendra Kumar,
PS EOW.
Mr. Kirti Uppal, Sr. Adv. with
Mr. Y.R. Sharma, Adv. for R-2.
Mr. S.P. Singh Chaudhary,
Adv. for R-3 and 4.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Pavinder Ahluwalia, the petitioner S/o late Brig. Ajit Singh Ahluwalia
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and Smt. Charanjeet Ahluwalia on 2 January, 1998 lodged FIR No.10/1998
at PS Defence Colony for offences punishable under Sections
420/467/468/471/120B IPC. After investigation, a charge sheet was filed
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whereafter on hearing the accused and the State vide the order dated 23
April, 2004 learned Metropolitan Magistrate discharged all the seven
accused i.e. Ashok Bhaduria, Prashant Bhaduria, R.C. Goel, Nand Kishore
Bindra, R.L. Kapoor, Lt. Col. (Retd.) T.M. Singh and Shyam Sunder Singh,
advocate. A revision petition was preferred by the State challenging the
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order dated 23 April, 2004 before learned Additional Sessions Judge being
Criminal Revision No.31/2004 which was allowed by the learned Additional
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Sessions Judge vide order dated 22 April, 2006 remanding the matter back
to the learned Trial Court for framing of charge and proceeding with the
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trial. Order dated 22 April, 2006 passed by the learned Additional
Sessions Judge was challenged by the private respondents before this Court
in Crl.M.C. Nos.3189-95/2006. Since no stay was granted by this Court, in
the meantime, learned Trial Court framed charge against the private
respondents. The order framing charge was also challenged before this
Court by filing Crl.Rev. Petition Nos.59/2007 and 107/2007. This Court set
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aside the order dated 22 April, 2006 passed by the learned Additional
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Sessions Judge and consequential order dated 9 October, 2006 passed by
the learned Metropolitan Magistrate framing charge against the private
respondents. Crl.Rev.P. 31/2004 was restored before the learned Additional
Sessions Judge for consideration on merits after taking into consideration all
the contentions raised by the parties and pass a fresh order in accordance
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with law, which was dismissed vide the impugned order dated 28 April,
2011. Hence the present petition.
2. In the FIR, the petitioner alleged that property No.D-4, Defence
Colony (in short ‘the property’) was part of HUF property of Brig. Ajit
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Singh Ahluwalia as the karta. On 1 January, 1985 the property was
partitioned vide a deed and pursuant thereto the annexe block consisting of
ground floor came to the share of the petitioner and first and second floor of
the main block went to the share of his father. Ground floor of the main
block came to the share of his mother Smt. Charanjeet Ahluwalia. Brig.
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Ahluwalia passed away on 25 July, 1987 after being admitted in the Army
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Hospital for treatment. It is thus alleged that the Will dated 19 July, 1987
purportedly executed by Brig. Ahluwalia on the basis of which Smt.
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Charanjeet Ahluwalia claimed ownership of the property was a forged
document having been executed, six days prior to the death of the Executor
when he was admitted in ICU. Since Smt. Charanjeet Ahluwalia was
intending to sell the main house, the petitioner and his sister filed a civil suit
for permanent injunction being Suit No.192/1995 in the Court of Civil
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Judge, Tis Hazari Courts wherein an exparte injunction was granted on 21
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August, 1995. After coming to know about the said order dated 21 August,
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1995, the respondents purchased stamp papers on 1 September, 1995 and
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executed ante dated agreements to sell dated 14 August, 1995 to avoid the
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effect of the said order. Purported to act on the Will dated 19 July, 1987,
Smt. Charanjeet Ahluwalia executed three Wills in the office of Sub-
Registrar and later on it was revealed that the signatures on the Wills dated
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5 October, 1995 did not match with the specimen signatures of Smt.
Charanjeet Ahluwalia as per the FSL report. Thus, Smt. Charanjeet
Ahluwalia passed away without executing any Will and therefore the
respondents committed the offences as alleged above.
3. Before this Court reiterating his contentions the petitioner who
appears in person states that during the course of investigation, it has been
found out that the Wills and GPAs were all forged. The signatures of his
mother late Smt. Charanjeet Ahluwalia did not match with the specimen
signatures collected from the bank. Further the Notary Public has stated that
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the stamp papers were issued by him only on 1 September, 1995 thus
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agreement to sell could not have been executed on 14 August, 1995 and
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ante dated documents were prepared to escape the stay order dated 21
August, 1995. Further signatures of Smt. Charanjeet Ahluwalia on the three
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Wills dated 5 October, 1995 have been found to be forged and fabricated as
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per FSL opinion. The father of the petitioner being seriously ill at the time
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of execution of the alleged Will dated 19 July, 1987 the purported Will in
favour of Smt. Charanjeet Ahluwalia was a fabricated document. Not being
absolute owner of the property Smt. Charanjeet Ahluwalia could not have
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entered into agreement to sell dated 14 August, 1995 and three Wills dated
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5 October, 1995. Further the reliance of the private respondents on the
application under Order IX Rule 7 CPC purportedly filed by Smt. Charanjeet
Ahluwalia is misconceived as she did not appear before the Court and the
signatures on the application under Order IX Rule 7 CPC and written
statement have not matched with the admitted signatures. Thus, no case for
discharge of the private respondents for the offences alleged was made out.
4. Learned counsel for the private respondents on the other hand
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contends that the above noted FIR was got registered only on 2 January,
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1998 after the death of Smt. Charanjeet Ahluwalia on 15 January, 1997.
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The petitioner though had knowledge of the agreements to sell dated 14
August, 1995 however kept quite till her death. Moreover, in her life time,
in the suit for permanent injunction filed by the petitioner, Smt. Charanjeet
Ahluwalia filed an application under Order IX Rule 7 CPC for vacating the
exparte injunction granted wherein she stated that she had already sold the
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property vide agreements to sell dated 14 August, 1995. Similar facts were
stated in the written statement filed by Smt. Charanjeet Ahluwalia. These
being admissions cannot be lightly dealt with and in the wake of these
admissions of Smt. Charanjeet Ahluwalia, no case for offences alleged is
made out against the respondents.
5. It is not in dispute that against the order granting ex-parte injunction,
an application under Order IX Rule 7 read with Section 151 CPC was filed
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in the Court by Smt. Charanjeet Ahluwalia and an affidavit dated 1
February, 1996 annexed with the application. In the said application, she
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stated that on 14 August, 1995 she had entered into agreements to sell of
the respective portions detailed in the earlier paragraphs and thus the ex-
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parte order dated 21 August, 1995 be vacated. In reply to the said
application of Smt. Charanjeet Ahluwalia under Order IX Rule 7 CPC, it was
not the case of the petitioner that the application under Order IX Rule 7 CPC
and the affidavit along with it were not signed by Smt. Charanjeet
Ahluwalia. His entire case was that she was not competent to execute the
agreements to sell and to avoid ex-parte injunction in favour of the
petitioner, ante-dated agreements to sell were executed. Further Smt.
Charanjeet Ahluwalia also filed a written statement as defendant No.1 in
Civil Suit No.192/1995 wherein she categorically stated that the suit had
become infructuous since she had already entered into agreements to sell in
respect of various portions of the property. Though the petitioner disputed
that there are certain additions in handwriting in para 5 which have not been
initialed by Smt. Charanjeet Ahluwalia, however there is no denial of the
fact that in the body of the written statement to the plaint in para 5, Smt.
Charanjeet Ahluwalia reiterated that she had already entered into agreements
to sell and handed over possession of the property. She had also stated that
the plaintiff knew that he had no right to the property and has filed a
frivolous suit against her and other defendants.
6. The issue before the learned Trial Court or before the learned
Additional Sessions Judge was not ante-dating of agreements to sell by Smt.
Charanjeet Ahluwalia, mother of the petitioner as she had passed away but
whether there was any prima facie case against the respondents herein
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namely Ashok Bhaduria, Prashant Bhaduria, R.C. Goel, Nand Kishore
Bindra, R.L. Kapoor, Lt. Col. (Retd.) T.M. Singh and Shyam Sunder Singh,
Advocate justifying framing of charge against them for offences as noted
above.
7. Investigation reveals that sums of ₹19,00,000/- from R.C. Goel,
₹10,10,000/- from Ashok Bhaduria and ₹6,10,000/- from Prashant Bhaduria
were credited into the account No.9092, Bank of India, Saket Branch of Smt.
Charanjeet Ahluwalia. On the strength of Will of her deceased husband in
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her favour, Smt. Charanjeet Ahluwalia executed three different Wills on 9
October, 1995 before the Sub-Registrar, Vikas Sadan in favour of R.C. Goel,
Ashok Bhaduria and Prashant Bhaduria in respect of ground floor, first floor
and second floor of the property in question respectively. Azizuddin
Ahmed, Sub-Registrar was examined during the course of investigation who
stated that the signature of the executant was taken by the peon. Further
S.S. Singh, Advocate, respondent No.8 herein was present in the office of
the Sub-Registrar when the Wills were registered. The Wills were having
photograph of Smt. Charanjeet Ahluwalia. During the investigation it was
found out that Lt. Col.(Retd.) T.M. Singh and Shyam Sunder Singh signed as
witnesses.
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8. Smt. Charanjeet Ahluwalia in her application dated 1 February, 1996
under Order IX Rule 7 read with Section 151 CPC filed in Suit No.192/1995
before the learned Civil Judge, Tis Hazari Courts titled Parvinder Ahluwalia
Vs. Smt. Charanjeet Ahluwalia stated as under:-
“In fact the applicant entered into an agreement for sale of ground
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floor portion of property with R.C. Goel, 1 floor portion to Sh.
Ashok Bhaduria & Second Floor to Prashant Bhaduria. The
ground floor & the first floor portions were earlier let out by the
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applicant to the earlier tenant in May 1995 on account of the fact
that Pravinder Singh Ahluwalia and his wife started treating the
applicant with cruelty. She had prayed to set aside the ex-parte
order dated 21.08.1995”
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9. Further Smt. Charanjeet Ahluwalia in her written statement dated 11
September, 1996 filed in Suit No.192/1995 in para No.5 had admitted that by
virtue of the Will executed by Brig. A.S. Ahluwalia, his share had fallen to
her share and she had already entered into agreements to sell and handed
over the possession.
10. The petitioner who appears in person has laid great emphasis on the
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ex-parte injunction granted in Suit No.192/1995 on 21 August, 1995.
Admittedly, respondents No. 2 to 8 were not parties to the said suit and the
injunction did not bind them. If any ante-dating has been done, the same is
by Smt. Charanjeet Ahluwalia who has since passed away. Further the
complaint was not filed by the petitioner during the life time of Smt.
Charanjeet Ahluwalia and filed only after her death. In the application
under Order IX Rule 7 CPC Smt. Charanjeet Ahluwalia admitted having
received the consideration and delivering the possession in respect of
portions of the property in question. Even in the written Statement Smt.
Charanjeet Ahluwalia reiterated the factum of sale of property in question to
respondents 2 to 4 herein and receipt of consideration. Along with the
charge sheet, copy of the partition suit bearing No.550/1998 filed by the
petitioner against his sister was also filed which reiterated the sale of three
portions of the property and receipt of the consideration. Even assuming
that Smt. Charanjeet Ahluwalia ante dated the said documents, as noted
above, Smt. Charanjeet Ahluwalia has since passed away and the issue
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before this Court is whether charge against respondent Nos. 2 to 8 is liable to
be framed or not. Further, if the grievance of the petitioner was ante-dating
of agreements to sell by her mother, the complaint ought to have been filed
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before her death on 15 January, 1997 and not thereafter.
11. The finding of the learned Additional Sessions Judge that there is no
material on record to show strong suspicion that respondent Nos. 2 to 8
committed the offence alleged cannot be faulted with.
12. Consequently, upholding the impugned order, the present petition is
dismissed.
13. Trial Court record be sent back.
(MUKTA GUPTA)
JUDGE
MAY 19, 2017
‘v mittal’
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