Court No. - 45
Case :- CRIMINAL REVISION No. - 4924 of 2011 Revisionist :- Dr. Vikas Jeph Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Devashish Mitra,Ajay Kumar Pandey,Anurag Shukla,D. Mitra,D.S. Mitra,Imran Ullah,R.N.Yadav,Taufirul Islam Counsel for Opposite Party :- Govt. Advocate,V.K. Jaiswal
Hon'ble Siddharth,J.
1. Heard Sri Imran Ullah, learned counsel for the revisionist, learned AGA for the State and Sri V. K. Jaiswal, learned counsel appearing on behalf of opposite party no.2.
2. This criminal revision is directed against the order dated 20.10.2011 passed by the A.C.J.M-1, District Ghaziabad in Complaint Case No.7808 of 2010, Aslam Vs. Kanahiya Lal and others, under Section 420 I.P.C, Police Station Loni, District Ghaziabad. By the aforesaid order the Court below has rejected the final report submitted by the Investigating Officer and summoned the applicant for trial under Section 420 IP.C.
3. Learned counsel for the revisionist has submitted that :
a. The genesis of the present case arose is in the first information report lodged by Aslam son of Sultan at P.S. Loni registered a Case Crime No. 353 of 2010, u/s 420, 406 I.P.C. on 21.02.2010 allegations therein are that the revisionist along with his father, namely, Kanhaiya Lal and one Priyank came to his office and offered to purchase 3 acres of land for opening a Air Hostess/ Pilot Training School. They further offered that for giving a franchisee of Pilot Training School, they require Rs. 2.5 lacs as advance which was given. The informant was told that he will get Rs. 1.5 lacs as commission for every student and was further asked to deposit rest of the amount of Rs. 7.5 within 15 days. Later on the offer was found to be fake and as such informant was allegedly cheated to the tune of Rs. 2.5. lacs.
b. The police started investigation and tried to contact the informant, Aslam son of Sultan, at his address given in the FIR as 197, Gali No. 5, Jawahar Nagar, Loni, Ghaziabad, but could not find any person in the name of Aslam son of Sultan. It was inquired by the police in the vicinity of Jawahar Nagar, but the Investigating Officer could not find any person in the name of Aslam son of Sultan. A perusal of the case diary will demonstrate that a deep rooted inquiry along with the effort to trace Aslam was made by the Investigating Officer, but since the actual informant was not into existence, he could not be found.
c. During investigation the police also contacted the revisionist, who apprised the police about the real facts of the case, specially his enmity with Ashok Jeph. However, when the photograph of Ashok Jeph were shown to the scriber of the first information report, the fact was unearthed that the person who had gone to lodge the first information report was none other than Ashok Jeph himself and accompanied with Banwari Lal Mina, his father and brother, Dr. Vijendra Jeph. The police went in search of Ashok Jeph, but he kept on hiding and did not appeared before the Investigating Officer. The Investigating Officer after doing thorough investigation, as contained in the case diary, submitted final report opining therein that the FIR is nothing but a proxy prosecution launched by Ashok Jeph in order to wreck vengeance against the revisionist in the fake name of Aslam son of Sultan.
d. The police filed the final report on 25.03.2010, exonerating the revisionist while concluding that a false FIR was registered in false name and address of the informant and it is nothing but an arm twisting tactics by Ashok Jeph, Banwari Lal Mina and Vijendra to pressurize and harass the revisionist.
e. Since the police had filed final report in favour of the revisionist, the aforesaid Ashok Jeph again in the name of Aslam son of Sultan preferred a Protest Petition on 20.05.2010 before the learned ACJM, 1st, Ghaziabad. However, a photograph of said Aslam was affixed, as per rule, on the affidavit filed along with the Protest Petition.
f. As in the final report it was found that the address as mentioned in the earlier first information report was fake, in the Protest Petition, apart from the address of 197, Gali No. 5, Jawahar Nagar, Loni, Ghaziabad, another address of Aslam was mentioned as 15, Main Road, Jauharipur near Ravidas Gali, P.S. Karawal Nagar, Delhi-94. The applicant had sought an information through RTI from Dy. Commissioner of Police, North-East Delhi to confirm the address of Aslam, a reply from the office of Dy. Commissioner of Police, North-East Delhi dated 07.02.2011 was received, whereby, no person in the name of Aslam was found to be residing from the last 30 years on the above mentioned address of Karawal Nagar, Delhi. It was also informed that one Om Singh is residing at the said address.
g. In support of his Protest Petition, two witnesses namely Anand Singh, R/o H. No. K-13, Kanhaiya Vihar, Jauharipur, Gokulpuri, P.S. Gokulpuri, Delhi and Pushpa, R/o 5 Purvi Jawahar Nagar, Colony, Loni, Ghaziabad were also examined. However, on the information (RTI) so received, the said Anand Singh was not found to be residing at the aforesaid address.
h. An affidavit was filed by the alleged witness, Pushpa, before the learned ACJM, 1st, Ghaziabad, stating specifically therein, that she has not given any statement or affidavit before the Court earlier.
i. In the most mechanical manner, the revisionist was summoned vide order dated 29.10.2011 by the learned ACJM, 1st, Ghaziabad.
j. The revisionist challenged the aforesaid order before this Hon'ble Court through present revision and vide order dated 17.11.2011, the further proceedings were stayed by this Hon'ble Court and notice was issued to Aslam son of Sultan for filing counter affidavit.
k. In pursuance thereof, notice was sent on the address, mentioned in the Protest Petition as well as on the petition, but the same was returned unserved, as such through a supplementary affidavit, the revisionist sought amendment of the second address, as mentioned in the Protest Petition, for service of notice.
l. After the above mentioned amendment in address of opposite party no.2 on 07.01.2013 order was passed by this Hon'ble Court and another notice was sent to opposite party no. 2. However, since the address as mentioned in the Protest Petition, were fake and also there was no person in the name of Aslam son of Sultan, the second notice was also returned unserved, and as such this Hon'ble Court directed again on 07.03.2013 for service of notice through Chief Judicial Magistrate, Ghaziabad.
m. It seems that somehow, the said Ashok Jeph got knowledge of above mentioned order, and as such has preferred a counter affidavit to the aforesaid revision before this Hon'ble Court in the name of Aslam on 08.07.2013, whereby, the address, as mentioned in the FIR, was mentioned on the affidavit, so filed by Mohammad Aslam and an identity card as issued by Election Commission of India dated 12.02.2010 was filed along with the counter affidavit dated 08.07.2013.
n. The revisionist, being aware of the fact that Aslam does not resides on the address as mentioned in the affidavit, again sought an information through RTI from Tehsildar, Ghaziabad regarding the genuineness of identity card produced by Aslam son of Sultan, whereby, the Tehsildar, Ghaziabad through letter dated 16.07.2013 informed that no such voter ID card was issued in the name of Aslam nor he has any data in the record with regard to aforesaid Voter ID Card.
o. The entire voter list of Loni, Ghaziabad was pulled out from the site of Election Commission, which also does not find a person namely Aslam in the vicinity.
p. When the revisionist made it crystal clear in the rejoinder affidavit before this Hon'ble Court about the fake identity of Aslam son of Sultan, the revisionist preferred a supplementary counter affidavit to the rejoinder affidavit on 10.09.2013, whereby, he filed an Aadhar Card of Aslam son of Sultan showing the third address i.e. House No. 215, Street No. 7, Kadampuri Extension, Sahadara, Dwarpur, North East Delhi.
q. While filing the Protest Petition, as per mandatory rules, photograph of Aslam son of Sultan was pasted on very first page of the same, which was entirely different from the photograph as filed by the opposite party no.2 in the affidavit so preferred by him before this Hon'ble Court. However, the said photograph was also different from that on Aadhar Card which was filed along with supplementary counter affidavit.
r. On the basis of above mentioned facts, the revisionist submitted before this Hon'ble Court on 11.09.2014 that the entire prosecution was launched as a proxy proceedings in the name of Aslam on the fake identity and right from lodging of first information report till Protest Petition, the prosecution was launched on the basis of forged identity. Not only this, the opposite party no. 2 has crossed all limits by even filing a forged Voter ID issued by Election Commission before this Hon'ble Court also. This Hon'ble Court vide order dated 11.09.2014 directed the entire record to be kept in safe custody and was further pleased to direct Mohammad Aslam (deponent in C.A. Dated 08.07.2013) to remain present in person on the next date. The order dated 11.09.2014 is reproduced below:
“Heard Sri Imran Ullah, learned counsel for the revisionist and learned AGA for the State. None present for respondent no. 2.
On the last occasion i.e. on 9.9.2014, the following order was passed :-
"Sri Imran Ullah, learned counsel for the revisionist, Sri A.K. Jaiswal, Advocate, holding brief of Sri V.K.Jaiswal, learned counsel for respondent no. 2 and learned AGA for the State are present.
Learned counsel for revisionist seeks adjournment. List on 11.9.2014 at 3:00pm peremptorily"
Despite the aforesaid order, no body is present for respondent no. 2.
Sri Imran Ullah, learned counsel for revisionist has pointed out that counter affidavit on behalf of respondent no. 2 was filed along with photograph and identity card of Mohd Aslam allegedly issued by Election Commission dated 8.7.2013.
Rejoinder affidavit dated 7.8.2013 was filed on behalf of revisionist claiming that identity card annexed with counter affidavit dated 8.7.2013 is a forged document. He has received an information under the Right to Information Act, 2005 which is annexed at Annexure RA 3 and 4 to the rejoinder affidavit dated 7.8.2013. The information furnished by the Department discloses that identity card allegedly issued by the Election Commission was not issued by Election Commission office at Ghaziabad.
Respondent no. 2 thereafter filed a supplementary affidavit claiming that Identity card, in fact, was issued by the Election Commissioner.
Learned counsel for the revisionists also submits that Adhar Card filed as Annexure SCA-5, discloses another address of Aslam. Surprisingly, no detailed explanation has been submitted by Aslam regarding alleged forgery and simply stated that identity card, had, in fact, been issued by the Election Commissioner.
Learned counsel for the revisionist has argued that counsel for respondent no. 2 is deliberately avoiding the Court and that respondent no. 2 has committed forgery and that alleged complainant in the name of (Mohd Aslam) does not exist and non-existent person with fake identity had been proped up by some person for creating problems for the revisionist. The matter requires consideration.
The stay order granted earlier shall continue till further orders.
Meanwhile, counsel for respondent no. 2 is directed to ask Mohd Aslam (deponent in the counter affidavit dated 8.7.2013) to remain present in the court personally on the date fixed. Counsel for respondent no. 2 is also directed to be present on the date fixed.
List on 8.10.2014 at 3:00pm.
Office is directed to keep the record of this case in safe custody and produce the same before appropriate Court as and when the case is listed.
s. That on 10.11.2014 this Hon'ble Court, while taking a serious note of the various addresses, as mentioned in the affidavit in different Courts, directed the S.S.P. to ensure an inquiry about the correctness of the aforesaid documents filed before this Hon'ble Court. The order dated 10.11.2014 is reproduced below :
“Heard Sri Imran Ullah, learned counsel for the revisionist, Sri Vimlendu Tripathi, learned A.G.A. and Sri V.K. Jaiswal, learned counsel for opposite party no. 2.
This criminal revision is preferred against order dated 29.10.2011 whereby revisionist has been summoned in Complaint Case No. 7808 of 2010 (Aslam Vs. Kanahiya Lal and others), under Section 420 I.P.C., P.S. Loni, District Ghaziabad.
Brief facts of the case are as under;
A first information report came to be lodged by one Aslam S/o Sultan alleging himself to be a resident of 197, Gali No. 5, Jawahar Nagar, Loni, Ghaziabad on 21.02.2010 which was registered as Case Crime No. 353 of 2010, under Sections 420 and 406 I.P.C., against the revisionist and other persons alleging that accused persons claimed themselves to be the franchisee of a private aviation academy that trains pilot, fraudulently induced opposite party no. 2 to part Rs. 2.5 lacs as against a total investment of Rs. 10.0 lacs for starting a franchisee, which was subsequently found to be an act of fraud and cheating. During investigation a final report was submitted on 26.03.2010 primarily on the ground that Aslam was not traceable. Subsequently, a protest came to be filed by Aslam on 09.07.2010 which was registered as Misc. Case No. 195 of 2010 before the Court of Ist Additional Chief Judicial Magistrate, Ghaziabad. The protest was supported by an affidavit of Aslam wherein apart from aforesaid address present address "15 Main Road Jauharipur near Ravidas Gali, Karwal Nagar, Delhi-94" was also shown. On the protest petition revisionist has been summoned on 29.10.2011 which is impugned herein.
A counter affidavit dated 8.07.2013 has been filed on behalf of opposite party no. 2 wherein an identity card of Election Commission of India in favour of opposite party no. 2 was issued with I.D. No. FVX3440292 with the address of 197, Jawahar Nagar, Gali No. 5, Loni, Ghaziabad.
A rejoinder affidavit dated 07.08.2013 is filed by revisionist wherein the revisionist annexed an information dated 19.07.2013 issued by Assistant District Electoral Officer / Public Information Officer, Ghaziabad on R.T.I. querry as regards the veracity/genuineness of the aforesaid Election I.D. Card, that said I.D. Card has not been issued from the office concerned.
A supplementary affidavit dated 04.09.2013 is filed by opposite party no. 2 wherein in paragraph 11 thereof opposite party no. 2 confirms the issuance of said Election I.D., by Election Commission of India. Subsequently, a counter affidavit dated 18.08.2014 is filed by opposite party no. 2 wherein now he gives his present address as "215 Street No. 7, Kardampuri Bistar, Shadhra, Delhi" and in support thereof has appended Aadhar Card.
On above materials, a serious dispute has arisen as regards the identity of opposite party no. 2 and the authenticity/genuineness of the address proofs filed by him as he seems to be giving fluctuating addresses at different point of time which prima facie casts a doubt as regards the identity of the informant/opposite party no. 2, which is liable to be inquired into.
Sri V.K. Jaiswal for opposite party no. 2 does not oppose the request for inquiry.
(1) Let Senior Superintendent of Police, Ghaziabad ensure that an inquiry as regards the identity of opposite party no. 2 and the veracity / correctness of the alleged documents filed before this Court as regards his address be inquired into by an officer not below the rank of Deputy Superintendent of Police. The inquiry shall be completed as expeditiously as possible preferably within two months from date of production of certified copy of this order.
(2) Learned counsel for the parties have undertaken that their clients shall extend full cooperation and support in the said inquiry.
(3) The inquiry report shall be submitted in a sealed cover before this Court on the date fixed. Both the revisionist and opposite party no. 2 shall be at liberty to file whatever documents they wish to file in support of their contention before the inquiry officer.
(4) Let records of the case be kept in a sealed cover by the Registrar General who shall also be authorized to issue copies of the documents if any, required by the inquiry officer.
List in the week commencing 16.01.2015.
Copy of the order be supplied to learned A.G.A. forthwith.”
t. The S.S.P, Ghaziabad submitted a report before this Hon'ble Court in a sealed cover, by which though a mechanical inquiry, did not comply with the specific order of this Hon'ble Court with regard to the identity of opposite party no. 2 as well as correctness of the Voter ID card, as filed by opposite party no. 2, and have rather, while acting in connivance with Ashok Jeph, has given a finding about the presence of Aslam.
u. In pursuance of the order dated 10.11.2014 passed by this Hon'ble Court, the S.S.P., Ghaziabad or his subordinate officers have not contacted the revisionist. However, a detailed representation dated 03.12.2014 was preferred by the revisionist to S.S.P., Ghaziabad and the copy of which was received by the police of P.S. Loni, Ghaziabad on 04.12.2014.
v. At this stage, it is pertinent to mention here that in pursuance of order passed by this Hon'ble Court, when the voter ID card was proved to be false, the said Ashok Jeph found and introduced a person in the name of Aslam son of Sultan having the third address of Sahadara, Jyoti Nagar, Delhi with Aadhar Card and the same person appeared before this Hon'ble Court in pursuance of order dated 11.09.2014. The S.S.P., Ghaziabad, in his report, has found the person who appeared before this Hon'ble Court as genuine. However, vide order dated 10.11.2014, this Hon'ble Court had directed for an inquiry regarding the person, who had filed and affidavit before this Hon'ble Court in the first counter affidavit dated 08.07.2013, whereby, the address of Ghaziabad was mentioned in the address and in support of the same the Voter ID was annexed.
4. Sri V. K. Jaiswal, learned counsel appearing on behalf of the opposite party no.2, has filed a counter affidavit in the revision and has submitted that the Investigating Officer colluded with the revisionist and filed a final report, which was rightly rejected by the Court below and the revisionist was summoned. The order passed by the Court below is based on the material on record and the applicant has rightly been summoned under Section 420 I.P.C. He has cheated opposite party no.2 and is liable to be punished.
5. Learned AGA has supported the arguments made on behalf of the opposite party no.2 and has justified the order passed by the Court below.
6. After hearing rival contentions of the parties and going through the material on record, it is clear that since very beginning the revisionist was raising objection that the identity of the person who has initiated the proceedings against him should be fixed by the Court below but the Court rejected the final report and after treating the protest petition as complaint has summoned the revisionist.
7. The Court below should have perused the case diary of the police, wherein the police found that the proceedings against the revisionist is proxy litigation initiated by Ashok Jeph, Banwari Lal, Vijendra in the fake name Aslam son of Sultan. Learned Magistrate has not applied his mind to the case diary before issuing process against the revisionist. The Investigating Officer found that no person in the name of Aslam resides on the address given in the first information report, i.e., 197 Gali No.5, Jawahar Nagar, Loni, Ghaziabad. Issuance of process cannot be done lightly by the court since it has serious consequences for the accused.
8. The court below has not considered that the proceedings under Section 182 I.P.C was initiated against Ashok Jeph for initiating a proxy litigation against the revisionist. The Court below ought to have satisfied it after inquiry that the opposite party no.2 is the correct person who has lodged the First information report against the revisionist.
9. In view of the above factual and legal position of the case and after going through the order dated 24.10.2011 passed by the Court below this Court is of the opinion that the aforesaid order cannot be sustained and is hereby set aside. The Court below is directed to pass fresh order in accordance with law after ascertaining the identity of opposite party no.2 by making strict inquiry in this regard within a period of four months from the date of production of a certified copy of this order by either of the parties before the Court below.
10. The criminal revision is allowed.
Order Date :- 30.8.2018 SS