Delhi District Court
M/S. Odeon Builders Pvt. Ltd vs C.B.I on 12 April, 2017
Criminal Revision No.208/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 208/2016
Under Section : 420/468/471 IPC r/w. 120-B IPC
Police Station/ Branch : CBI EOU-I New Delhi
RC No. : EOU-I 2006 E0018
CNR No. : DLET01-005284-2016
In the matter of :-
1. M/s. ODEON BUILDERS PVT. LTD.
At M-116, 2nd Floor, Connaught Place,
New Delhi.
Through:
Mr. Mukesh Gupta
Senior Manager
Sh. Hanuman Prasad
R/o A-105, East Nathu Colony,
Delhi - 110093.
2. Mr. RAM NIWAS BANSAL (since not summoned by trial court)
S/o Shri Kishan
R/o D-112-113, Preet Vihar,
New Delhi.
3. Mr. ASHOK BANSAL (since not summoned by trial court)
S/o Shri Kishan
R/o D-112-113, Preet Vihar,
New Delhi.
............REVISIONISTS
VERSUS
C.B.I.
............RESPONDENT
Date of Institution : 25.04.2016
Date of Receiving : 26.04.2016
Date of reserving judgment : 10.04.2017
Date of pronouncement : 12.04.2017
Decision : Petition is allowed.
Page 1 of 10 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
Criminal Revision No.208/2016
ORDER
1. This revision petition is directed against the order dated 06.02.2016, passed by the trial court in a case titled as CBI v. Chander Praksh Ahuja & Ors. bearing RC EOU-I 2006 E0018, under Section 120-B IPC read with 420/468/471 IPC, PS/Branch CBI EOU-I/New Delhi. Vide impugned order the trial court took cognizance for offences under Section 420/468/471 read with Section 120-B IPC and summoned M/s. Odeon Builders Pvt. Ltd. (petitioner no.1 herein) under Section 204 Cr.P.C.
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that this case was registered on 13.10.2006 against Sh. Anand Prakash Gupta, Sh. Rajesh Kumar Mittal, Sh. Chander Prakash Ahuja, Sh. Kamal Kishore, Sh. Praveen Kumar Gupta and other unknown persons, on the basis of some directions given by Delhi High Court in Civil Writ Petition No.10066/2004 dated 09.01.2006. It was alleged that Karor CGHS was registered with Registrar Cooperative Societies, New Delhi on 20.01.1984. A list of 136 members was approved by the registrar and it was forwarded to DDA in 1985. This society was alloted land on 05.04.2000 by DDA and the society took possession of the same on 28.09.2000. Forged resignations of Sh. Mool Chand, Sh. Lila Dhar and Sh. Jagmohan Brar were received in the managing committee meeting of the society on 30.11.1996, 19.01.1997 and 02.02.1997. Thereafter, list of 136 members and a list of resigned members was submitted in the office of Registrar Cooperative Societies on 04.02.2003, for the purpose of approval for draw of lots. Draw of lots was held on 09.03.2003 and 20.06.2003 and the flats were alloted to the members excluding aforesaid three members. Affidavits of 12 members as submitted in Page 2 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 the office of Registrar Cooperative Societies (RCS), were found bearing forged signatures of Notary Public. During investigation, it was found that fake proceedings were prepared by managing committee so as to furnish different list of members and list of resignations before RCS. A list of 88 resignations was furnished in the office vide letter dated 03.10.1997 on the basis of the forged resignation of some of the members. It was shown that these members were paid their share money through cheque, but no such amount was paid. Some members were joined later on, on the basis of fake proceedings. The society had deposited amount of Rs.2,82,64,500/-, out of which amount of Rs.16,20,000/- was paid from the account of M/s. Odeon Builders (petitioner no.1 also), Rs.7,50,000/- was paid from the account of Sh. Ashok Bansal, Rs.10 lakh was paid from the account of Smt. Asha Singhal and Rs.38,78,500/- was taken as loan from DCHFC. Rs. 18,50,000/- was paid from the account of Sh. Tarun Kumar and Rs.20,00,000/- was paid from the account of Sh. Suresh Kumar Gupta. Though, no resolution was passed by managing committee or general body of the society for arrangement of the funds from aforesaid persons. Thereafter, contract for construction of the flats of the society was given to the petitioner no.1 company, as per resolution passed in MC meeting dated 14.01.2001. However, proceedings dated 14.01.2001 bear forged signature of Sh. Praveen Kumar Gupta. Many other proceedings and documents were fabricated in respect of election proceedings, inclusion of members and resignation list of existing members etc. Thus, CBI found that accused Sh. Chander Prakash Ahuja, Sh. Kamal Kishore, Sh. Praveen Gupta, Jwahar Lal Kataria and Naveen Singhal entered into a criminal conspiracy during 1997- 2003 and in pursuance of that conspiracy they fraudulently got Page 3 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 approved the resignations of four members as well as a list of members on the basis of forged and fake documents from RCS office. They also got the land allotted at subsidized rate from DDA and thereby cheated DDA as well as the four members, who were shown having resigned from the society. Flats were also allotted to favorable members including Praveen Gupta and Naveen Singhal.
3. The trial court had given certain directions for further investigation on 09.02.2009 to look into the role of petitioner company herein and thereafter, it was reported that Sh. Ashok Bansal had introduced for opening of the account in the name of society and later on he had become director of petitioner company. Sh. Anand Prakash Gupta was the promoter of petitioner company and his residential address was also shown as registered office of the society in Nainital Bank. Sh. Anand Prakash Gupta also became member of society and Sh. Rajesh Mittal was supervisor in the petitioner company, who also became a member of society on 14.07.2002. He was also shown to be elected as president of society in a meeting held on 17.11.2002. Mr. Ram Niwas was director of the petitioner company, who was not the member of this society. However, he used to deal with members of the society and used to call for proceeding register of the society in the office of this company. Possession of three flats of the society was given to Sh. Ram Niwas Bansal, who was director of the petitioner company in the meeting of managing committee held on 14.01.2001. Sh. Sanjeev Singhal president of the society had informed that eight tenders had been received from various builders. Out of which three tenders were short listed for negotiation. After thorough investigation on the recommendation of the architect, petitioner company was unanimously agreed to be given contract on turn key basis. Subsequently, agreement dated 05.02.2001 was Page 4 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 entered into between society and petitioner company for construction of 136 flats. However, general body of the society had given approval on 02.09.2001. Thus, the approval of general body was obtained subsequent to the award of contract to the petitioner company. Though, the payments were made to the company from the society after the approval of the general body. Out of eight builders, four builders could not be located through registrar of company and remaining four builders were also not having any record with the registrar of firms. Director of one of the company i.e. M/s. Kuber Promoters and Contractors admitted having filed tender with the society. Director of another contractor/ tenderer did not have any record to confirm, if he had filed the tender. On the other hand, director of M/s. Express Builders Pvt. Ltd. stated that he did not file any tender with the society. Even Sh. Brindaban Gupta who was shown as vice president of the society in the minutes of the meeting dated 25.09.2000, stated that he never contested any election nor he signed any proceedings register. Thus, his signature was found to be forged. Mr. Gupta further stated that he did not act as election officer on 02.09.2001, though his signature was shown in the minutes of meeting as election officer on 02.09.2001. On the same day a general body meeting was held by so called office bearers of managing committee, which approved the contract of construction in favour of petitioner company.
4. Trial court in the impugned order observed that entire process of inviting tenders was farcity in order to give a legal colour to the allotment contract to the petitioner company. Even the amount of membership fee and other charges of the society were paid by some members to the staff of Sh. Ram Niwas Bansal, who was director of the petitioner company. The members of the society were entertained Page 5 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 in the office of petitioner company and thus, it could be inferred that petitioner company and its two directors namely Sh. Ashok Bansal and Sh. Ram Niwas Bansal were directly involved in day to day affairs of the society, who also introduced persons to become members of the society and they used to receive payment from the members at the office of petitioner company. It was all done by this company and its two directors in order to obtain letter from DDA in the name of society and thereafter, in order to obtain the contract of 136 flats to gain wrongfully.
GROUNDS : -
5. Being aggrieved of the impugned order dated 06.02.2016, petitioner no.1 has preferred this revision petition on the following grounds :-
● That there is no evidence against petitioner no.1 in as much as that despite filing chargesheet thrice, petitioner no.1 was not arrayed as an accused.
● That CBI filed main chargesheet and thereafter, three supplementary chargesheets on 22.01.2009, 09.02.2009 and 10.12.2009, but in none of the chargesheets petitioner no.1 was arrayed as accused because there was no evidence against it.
Therefore, the cognizance taken by ld. ACMM vide impugned order is incorrect and prior to the stage of Section 319 Cr.P.C such cognizance could not have been taken. There is no evidence on the record to summon petitioner no.1.
● That the impugned order is erroneous because there is no material against the petitioner no.1 company. The loan given by petitioner to the society through cheque was refunded by the society and on the basis of this loan transaction no presumption can be raised that it was a conspiracy. It was so recorded in 3 rd supplementary chargesheet as well that there was no bar in the by Page 6 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 laws of society that it could not get financial assistance. ● That it is admitted case of prosecution that selection of petitioner no.1 company to construct the flats of the society was done by managing committee after recommendation of the architect and it was so approved by general body of society.
● The petitioner no.1 was appointed on turn key basis out of eight tenders received from the builder firms and CBI did not find irregularity in awarding this contract to petitioner no.1 firm. Even none of the members of the society raised any grievance against petitioner no.1 company.
● That ld. ACMM failed to appreciate that this case fell within ambit of provision of Delhi Cooperative Societies Act, 2003, which has over ride other laws and Section 121 (2) of this Act prohibits prosecution in respect of any offence under the Act without sanction of the registrar.
● That ld. ACMM failed to appreciate that no offence under Section 420 IPC is made out against the petitioner no.1 because no property was parted with either by DDA or by RCS. There is no incriminating material showing criminal intent on the part of petitioner no.1 to be involved in any conspiracy. ARGUMENTS :-
6. Ld. counsel for petitioner no.1 argued that granting loan to the society was not illegal and CBI had already given clean chit to the petitioner company. There is no incriminating material at all against the petitioner no.1 company in respect of any of the charges. Therefore, the impugned order is liable to be set aside.
7. Per contra, ld. Sr. PP for CBI/respondent argued that the trial court had passed order on the basis of the materials placed on the record and the materials did point out that the petitioner no.1 company was Page 7 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 being beneficiary because of conspiracy hatched by co-accused persons and therefore, it is also liable to be prosecuted.
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
8. Ld. counsel referred to judgment passed in Vinod Kashyap & Ors. v.
CBI, 2015 (1) JCC 749 and other judgments which are S.K. Alagh v. State of U.P. & Ors., 2008 (5) SC 662; Maksud Saiyed v. State of Gujarat & Ors., 2007 Legal Eagle (SC) 1034; A.P. Narang v. CBI, Crl. Rev. P. No.397/2010 & K.K.Rampall v. CBI, Crl.Rev. P No.398/2010, both decided on 13.12.2010, to submit that company in question could not have vicariously liable for the actions of co- accused persons. In the judgment cited by ld. counsel, the courts have dealt with the vicarious liability of director in respect of criminal offence. The court was dealing with the liability of director/ person-in- charge of the affairs of the company, who could be prosecuted along with the company on the basis of doctrine of vicarious liability. However, in the present case, the situation is different. Herein the petitioner company was summoned on the basis of some alleged action of the individuals thereby preparing some fake proceedings of the society and cheating registrar of societies to seek approval for certain members of society and thereafter, allotting flats of the societies to the persons favorable to the co-accused persons. The role of petitioner company is limited to the extent that a loan was given to the society from the fund of this company and later on, contract for construction of the flats was awarded to this company by the society.
9. Before analysing given role of the company, it would be appropriate to refer to the ingredients for alleged offences. The offence of cheating is defined in Section 415 IPC and ingredients of Section 415 Page 8 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 IPC can be divided into three following parts :-
● Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or ● Intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and ● Which act or omission causes or is likely to cause damage or harm to that person in mind, body, reputation or property, is said to "cheat".
The aforesaid ingredients of cheating show that an act or omission as covered under head of (a) or (b) must be coupled with effect as covered under head of (c) in order to complete the offence of cheating.
10.If the aforesaid ingredients of cheating are looked for into allegations made against the company, then I find that there is no allegation as to who was deceived by way of grant of loan to the society or by way of award of contract to the company. Obviously registrar of societies had nothing to do with the grant of loan to the society or with the award of contract. Even DDA had nothing to do with this loan. This loan was repaid to the company. The award of contract to the petitioner company was given on the basis of recommendation of the architect and managing committee of the society. It is nowhere alleged that any member of society or any other person/ entity suffered any kind of loss due to such award of contract to the petitioner company. Therefore, even if it is assumed that some favour was shown to the petitioner company in awarding the contract for construction of flats on behalf of society, this presumption cannot be sufficient to fulfill the criteria of cheating. Needless to say that the Page 9 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.208/2016 aforesaid allegations do not make out any case of forgery on the part of petitioner company as well. Just because some individuals, who happen to be director of petitioner company and who were allegedly involved in preparing fake resignation letters of certain members of the society and were part of conspiracy to prepare fake proceedings of the society, the petitioner company cannot be attributed any role in such actions of the directors. These, actions form part of different transaction. The petitioner company was merely a contractor for construction of flats. In absence of any allegation that the grant of this contract to petitioner company resulted into any kind of loss to the members of society, it cannot be said that the company through its directors was a part of conspiracy of cheating. The allegations of cheating made in the present case relate to a different transaction and the allegations show that it was registrar of society, which was allegedly deceived. The other entity i.e. DDA was also not deceived by this company for the purpose of allotment of land. Therefore, I do find that the petitioner company was wrongly summoned for alleged offences under Section 420/468/471 read with Section 120-B IPC. Hence, the impugned order dated 06.02.2016 is set aside and petitioner no.1 company is discharged. Revision petition is allowed, accordingly.
11.TCR along with copy of order be sent back to the trial court.
Announced in the open court (PULASTYA PRAMACHALA) today on 12.04.2017 Special Judge (PC Act) CBI, East (This order contains 10 pages) Karkardooma Courts, Delhi Page 10 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi