Allahabad High Court
Khalid Masood vs State Of U.P. And Another on 30 August, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 21.07.2022 Delivered on 30.08.2022 Court No. - 10 Case :- APPLICATION U/S 482 No. - 6560 of 2018 Applicant :- Khalid Masood Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arun Sinha,Alok Kumar Singh,Gantavya,Kumar Abhishek,Meha Rashmi,Ritwick Rai Counsel for Opposite Party :- Govt. Advocate,Abhishek Khare,Devika Singh,Harish Pandey,Pranjal Krishna,Rajendra Kumar Dwivedi Hon'ble Dinesh Kumar Singh,J.
1. This application under Section 482 CrPC has been filed, praying for quashing of the judgment and order dated 24.09.2018 passed by the learned Additional Sessions Judge/Special Judge (Anti-Corruption Act) Court No. IV, Lucknow thereby the learned Sessions Judge dismissed the Criminal Revision No.303 of 2018 (Khalid Masood Vs. State of U.P. and another) preferred by the applicant against the summoning order dated 09.02.2018 passed by the learned Additional Chief Judicial Magistrate-II, Court No. 26, Lucknow in Complaint Case No.39 of 2018, Police Station Gasaiganj, District Lucknow titled as 'Sanjeev Agarwal Vs. M-Tech Developers Limited and others'. The learned Magistrate, vide order dated 09.02.2018, summoned the applicant and others to face trial under Sections 406, 417, 420, 467, 468, 471, 120-B, 323, 504 and 506 IPC.
Further prayer has been made for quashing of the consequential proceedings of the Complaint Case No.39 of 2018 'Sanjeev Agarwal Vs. M-Tech Developers Limited and others', pending in the Court of Additional Chief Judicial Magistrate-VII, Court No. 31, Lucknow.
2. In the complaint filed by the respondent no. 2, Sanjeev Agrawal, 11 persons have been arraigned as accused, including the applicant, and three unknown persons. The accused are M-Tech Developers Limited and its two Directors, namely, Mahinder Sharma and Amit Jha, Raman Rai, an employee of the M-Tech Developers Limited. The second company, which is arraigned as accused, is ANS Constructions Private Limited and its two Directors, namely, Mahinder Sharma and Mahesh Kumar Sharma, authorized signatories, Jayant Kumar and Umesh Kumar. The third company is ANS Developers Private Limited and the applicant, who is said to be the Director of ANS Developers Private Limited.
3. The facts narrated in the complaint briefly are that in the year 2007, M-Tech Developers Limited, its Directors, Mahinder Sharma and Amit Jha, in collaboration with ANS Constructions Private Limited, launched a housing-scheme in Baghamau area of Gomti Nagar Extension by the name of "M-Tech City". It was promised that possession of fully developed plots would be delivered to the customers within a time-frame of 30 months. The complainant, having come-across, the advertisement about the said project, booked 9 plots, 3 each in the name of himself, his wife (Smt. Sunita Agarwal) and sister-in-law (Smt. Beena Agarwal) in the year 2007. The customers, including the complainant, were convinced by Mahinder Sharma and Amit Jha, the Directors of the M-Tech Developers Limited, that prices of the plots would rise four times within 3-4 years. Despite making payments towards booking of the 9 plots, the accused, M-Tech Developers Limited, Mahinder Sharma and Amit Jha never gave any allotment letter/agreement either to the complainant, his wife Smt. Sunita Agarwal or sister-in-law, Smt. Beena Agarwal. Further, allegation is that the complainant had made payments of Rs. 3,72,000/- in three installments each of Rs. 1,24,000/- towards booking of 3 plots in his name, Rs. 5,58,000/- in three installments each of Rs.1,86,000/- towards booking of 3 plots in name of his wife, Smt. Sunita Agarwal and Rs.4,96,000/- towards payment of booking of 3 plots in the name of his sister-in-law, Smt. Beena Agarwal. In spite of making payments, as mentioned above, even after 30 months, promised period, which got expired in July, 2009, M-Tech Developers Limited, Mahinder Sharma and Amit Jha neither gave possession of the plots nor promised any further date of possession. In December, 2009, the complainant inspected the site and found that no work was being done, and then he realized that he along with his family members were cheated by the M-Tech Developers Limited and its Directors. The M-Tech Developers Limited, Mahinder Sharma and Amit Jha projected themselves to be the owner of the land at the strength of some forged documents. However, later on, it was revealed that they were not owners of the land and, they did not have any approval from the State Government for the said project nor any layout plan was approved by the Lucknow Development Authority (for short 'LDA').
4. It was further alleged in the complaint that the complainant tried to meet Mahinder Sharma and Amit Jha many times, but all in vain. In 2011, the said project was scrapped on the ground that necessary approval from the State Government could not be obtained. The accused did not return the booking amounts, as mentioned above, to the complainant and his two family members. Thereafter, the M-Tech Developers Limited through its Directors, named above, entered into an agreement with ANS Constructions Private Limited, Mahinder Sharma (in the capacity of Director in ANS Constructions Private Limited) Mahesh Kumar Sharma, is other Director of ANS Constructions and Jayant Kumar and Umesh Kumar of ANS Constructions Private Limited are the authorized signatory of the ANS Constructions. Mahinder Sharma and Amit Jha connived with Mahesh Kumar Sharma of ANS Constructions Private Limited. As per the agreement, between the M-Tech Developers Limited and ANS Constructions Private Limited, it was decided to offer flats instead of plots to the customers, who had booked plots after some allottees approached the High Court. The complainant also approached Mahinder Sharma and Amit Jha in New Delhi and requested them to give flats to him as per the agreement arrived at between the M-Tech Developers Limited and ANS Constructions Private Limited. The complainant was assured that he would get the flats in place of plots.
5. It was further alleged in the complaint that in January, 2012, the complainant again approached Mahinder Sharma, Amit Jha and Raman Rai etc. and then he was told that now the project would be carried out with the help of company called as 'ANS Developers' (now known as Shalimar Lake City Private Limited), accused no. 10 in the complaint. The complainant thereafter met applicant, Khalid Masood, Director, Shalimar Lake City Private Limited. The applicant allegedly told the complainant that company, Shalimar Lake City Private Limited, had entered into a Memorandum of Understanding (for short MoU') with M-Tech Developers Limited and ANS Constructions Private Limited and some of the land was bought by Shalimar Lake City Private Limited and Shalimar Lake City Private Limited would be carrying out constructions of the flats. It was agreed between the complainant and co-accused, Amit Jha that the complainant would be given flats in new project at 5% discount against his booking of plots.
6. A MoU was executed between the complainant and Amit Jha, Director of M-Tech Developers Limited in presence of the applicant, stating that 9 flats @ 1,650/- per square feet would be given to the complainant. The applicant asked the complainant to return all his original receipts obtained at the time of booking of the plots and on insistence of the applicant, the complainant gave all original receipts to Mahinder Sharma and Amit Jha. The complainant had further alleged that accused nos. 1 to 9, as per the list of accused persons in the complaint, launched a township in the name of 'One World' at village Baghamau, Gomti Nagar Extension and, they floated schemes of flats in the name of 'Periwinkle Glory' and 'Vista'. It was further alleged that when the complainant met the accused and asked them to give him flats either in Periwinkle Glory or Vista @ 1,650/- per square feet, as agreed in the MoU, the accused avoided and, later refused to give flats to him.
7. Further allegation is that in 2013, some of the accused went to house of Smt. Beena Agarwal and mischievously got her signatures on some documents without allowing her to read them and gave refund of principal amount in lieu of 3 plots, booked in her name in the year 2007. No interest was paid to Smt. Beena Agarwal on the withheld amount by the accused from 2007 till the year 2013. When the complainant met the applicant and told him that because of his insistence, the complainant returned the original receipts to co-accused, the applicant should ensure delivery of possession of the flats, as promised in the MoU @ 1,650/- per square feet. However, the applicant told the complainant that he had no concern with the flats in the projects either in the Periwinkle Glory or Vista. Thereafter, the complainant's attempt to contact accused could not suceed.
8. Later on, on 29.11.2017, co-accused Raman Rai, allegedly called the complainant to his office by making a telephonic call and sending WhatsApp message. The complainant along with his wife, Smt. Sunita Agarwal and employee, Ravi Shukla visited the office of Raman Rai. Raman Rai informed the complainant that accused nos. 2, 3, 7 and 9, mentioned in the complaint, had asked him to inform the complainant that he should be given plots in a new upcoming project at Gosaiganj, Lucknow. Raman Rai had offered the complainant for a site visit to Gosaiganj and the complainant visited the site at Gosaiganj. When the complainant, along with his wife and employee, arrived at the said site, the complainant found that 3 unknown persons present at the site, who told the complainant that he should contact applicant, Khalid Masood for redressal of his grievance. The complainant told these 3 unknown persons that the applicant was not able to meet him and, he had nothing to do with other accused persons and, it would be appropriate to return his money with interest upon which the complainant and his wife were beaten up and abused by Raman Rai and 3 unknown persons. It was further alleged that the complainant and his wife were threatened to face dire consequences if they would ask for return of the money again. It was further alleged that the complainant immediately informed police about the incident, but no action was taken. Co-accused, Amit Jha called the complainant on his mobile on 30.11.2017 and threatened him to falsely implicate him in some criminal cases and would ensure that the complainant would go to jail.
9. The learned Magistrate, after considering contents of the complaint, statement of the complainant, recorded under Section 200 CrPC, and witnesses, Tauseef Ahmad and Smt. Sunita Agarwal under Section 202 CrPC, summoned the applicant and other accused vide the impugned order dated 09.02.2018.
10. Heard Mr. I.B. Singh, Senior Advocate, and Siddhartha Sinha, learned counsels, representing applicant, Khalid Masood, Mr. Pranjal Krishna, learned counsel for respondent No. 2, Sanjeev Agarwal, and Mr. Ashwani Kumar Singh, learned A.G.A. for the State.
11. On behalf of the applicant, it has been submitted that the applicant is currently not theDirector in the company named as Shalimar Lake City Private Limited, earlier known as ANS Developers Private Limited. The complainant is habitual of involving himself in litigation, who after booking plots/flats in his name, in name of his wife or his family members, would not pay the consideration and file cases against developers to build undue pressure upon them for bargain and unlawful gains for himself by resorting to criminal proceedings as arm twisting tactics and a long list of such cases, filed against several developers, have been mentioned in para-32 of the application. It has been further submitted that almost in all these cases, it is the complainant, his wife, one Tauseef Ahmad and one Rajesh Jaiswal would record their statements under Section 200 and 202 CrPC. It is said that the complainant has a team of tutored aids, who readily deposed in his favour in all these cases.
12. It is submitted that even if the allegations in the complaint are taken on their face value, the complainant had given money to the M-Tech Developers Limited in presence of Mahinder Sharma and Amit Jha, two Directors of the M-Tech Developers Limited, in the year 2007, the applicant was nowhere in picture at that time. As per the allegation, it was Mahinder Sharma and Amit Jha, who had falsely projected themselves to be the owners of the land, using some forged documents in the year 2007. The alleged promise made to give flats, instead of plots, was made by Mahinder Sharma, Amit Jha and Mukesh Kumar Sharma. In January, 2012, the complainant came to know that the project would now be carried out with the help of ANS Developers Private Limited, now know as Shalimar Lake City Private Limited, and the applicant has been stated to be the Director of the said company. The allegation in the complaint is that the MoU was signed in presence of the applicant between M-Tech Developers Limited, acting through Amit Jha, and the complainant, that he would be given flats @ 1,650/- per square feet. The mere presence of the applicant at the time of execution of the MoU would not be enough to make the applicant an accused.
13. On behalf of the applicant, it has been further submitted that neither the applicant is signatory nor witness of the MoU, however, to falsely implicate the applicant, his name has been dragged in by saying that the MoU was signed in his presence and, a false allegation has been made in the complaint that due to applicant's insistence the complainant surrendered his original receipts to Amit Jha. The applicant would not have any occasion to be present at the time of signing of MoU between the complainant and the M-Tech Developers Limited as he had nothing to do either with the complainant or M-Tech Developers Limited/ANS Constructions Private Limited. Though it is alleged in the complaint that accused nos. 2 to 4 fraudulently paid the money back to Smt. Beena Agarwal and mischievously got her signatures on some documents without allowing her to read them. This allegation does not pertain to the applicant. Smt. Beena Agarwal has not been cited as witness in the list of witnesses filed by the complainant. The payment was made through cheque and, if Smt. Beena Agarwal had any grievance, she could not have deposited the cheque in her bank account. The applicant had noting to do with the incident, which took place on 29/30.11.2017 as the same allegedly related to co-accused, Raman Rai and 3 unknown persons, who allegedly assaulted, abused and threatened the complainant and his wife at Gosaiganj. The said alleged incident is attributed only to Amit Jha and the applicant could not have been made accused of the acts alleged to have been done by co-accused, Amit Jha or any other person.
14. On behalf of the applicant, it has been further submitted that only allegation against the applicant is that MoU dated 25.01.2012 was signed in his presence and upon his request, the original receipts were given by the complainant to M-Tech Developers Limited. The applicant's presence at the time of signing the MoU would not constitute any offence inasmuch as the applicant was neither a party nor a witness to the MoU. The complaint is not about possession or loss of original receipts of the complainant. It has been further submitted that Smt. Beena Agarwal herself surrendered 3 plots and requested for refund of her money by M-Tech Developers Limited. Her request was processed and money was refunded to her. M-Tech Developers Limited had not denied booking of the plots by the complainant and payments made by him and his wife, therefore, the status/possession of the original receipts of booking and payment of money by the complainant and his wife are inconsequential and same would not constitute any offence if booking and payment has not been disputed.
15. It has been further submitted that a 'Joint Development Agreement' dated 11.02.2016 was executed between several parties, including ANS Constructions Private Limited, M-Tech Developers Limited and ANS Developers Private Limited, now known as Shalimar Lake City Private Limited. As per the aforesaid agreement, it was provided that "if any booking/advance is taken by the first party as against this land, the same shall be the sole responsibility of the first party (ANS Constructions Private Limited) and confirming party M-Tech Developers Limited. It has been further submitted that neither the Shalimar Lake City Private Limited nor the ANS Developers Private Limited nor the applicant had ever entered into an agreement or made any promise/commitment to the complainant and, therefore, implicating the applicant, as an accused, is nothing but an arm twisting design of the complainant. Dispute, if any, would be between the complainant and ANS Constructions Private Limited and/or M-Tech Developers Limited. It has been further submitted that as there was no entrustment and no promise made by the applicant to the complainant at any point of time and, therefore, the offence of criminal breach of trust and cheating are not made out against the applicant. The applicant has neither made any false document nor any electronic record nor he has forged any document which purports to be a valuable security or a will etc. and, therefore, offence under Sections 463 and 467 IPC are also not made out against the applicant. There is no allegation of any forgery either with the documents or with the electronic record and, if the applicant has not used them as genuine any document or electronic record, offence under Sections 468 and 471 IPC are also not made out against him.
16. It has been further submitted that the complainant probably would not have any grievance against the applicant and the offence under Sections 406, 417, 420, 467, 468, 471, 120-B, 323, 504 and 506 IPC, for which he has been summoned, are not made out even on face of reading of the complaint. It has been further submitted that the revisional Court has failed to appreciate that no advertisement was published by the ANS Developers Private Limited, now known as Shalimar Lake City Private Limited, and at no point of time ANS Developers Private Limited had any dealing with the complainant. The applicant is being prosecuted for the offences which he has not committed and, therefore, continuation of the impugned proceedings, against the applicant, is nothing but an abuse of process of the Court. This Court, in exercise of its inherent jurisdiction under Section 482 CrPC, may quash the impugned proceedings, so far they relate to the applicant.
17. On the other hand, Mr. Pranjal Krishna, learned counsel for the respondent no. 2, has submitted that ANS Constructions Private Limited is a part of M-Tech Developers Limited group of companies. In the said ANS Developers Private Limited, the applicant, being a Director, had purchased a sizable piece of land from M-Tech Developers Limited. ANS Developers Private Limited colluded to cancel their ongoing project so as to launch another scheme of high end properties and the M-Tech Developers Limited and ANS Developers Private Limited colluded and conspired to embezzle money invested by the buyers in the scheme launched by the M-Tech Developers Limited wherein they developed plots/flats. The complainant, his wife and sister-in-law booked 3 plots each by paying Rs. 14,26,000/- way back in the year 2007. It is alleged that when the complainant visited, the applicant, who was Director of ANS Developers Private Limited, admitted that there was a MoU signed between M-Tech Developers Limited and the ANS Developers Private Limited, now known as Shalimar Lake City Private Limited, and under the said MoU M-Tech Developers Limited and the ANS Developers Private Limited would be constructing flats together. It was the applicant, who offered flats in place of plots @ Rs.1,650/- per square feet after a discount of 5% in the MoU between the complainant, his wife and wife of his younger brother with Amit Jha for M-Tech Developers Limited in presence of the applicant. It has been further submitted that on the same site, which was earlier developed by M-Tech Developers Limited, and in which the complainant had booked 9 plots, Shalimar Group, had launched 'One World Township Scheme' in an area of about 200 acres of land and, the said project 'One World Group Township', includes the land of M-Tech Developers Limited. It has been further submitted that the complainant had visited Amit Jha and others, including the applicant herein on several occasions for allotting him flats in Periwinkle Glory Housing Scheme as per the MoU entered into between the complainant and the M-Tech Developers Limited, but they paid no heed to the request made by the complainant. When the complainant persisted regarding allotment of land, he, his wife and wife his younger brother were threatened to accept the refund and, they would fortify the money. It has been further submitted that at the stage of taking cognizance on a complaint, what is required to be considered, is the allegation in the complainant and the material/evidence brought on record by the complainant. It has been submitted that from reading of the complaint and the statement of the complainant and two witnesses, the offences against the applicant under Sections 406, 417, 420, 467, 468, 471, 120-B, 323, 504 and 506 IPC are clearly made out. This Court, in exercise of its power under Section 482 CrPC, is not required to consider the defence of the accused and since prima facie offences, for which the application has been summoned, are made out, the application is liable to be dismissed.
18. In rejoinder, on behalf of the applicant, it has been submitted that the complainant, Sanjeev Agarwal is facing several cases under Sections 406, 420, 467 and 468 IPC, a list of which has been annexed as Annexure SA-3 to the supplementary affidavit dated 21.07.2022 filed on behalf of the applicant in which 16 cases are mentioned against him of fraud, forgery and cheating etc. which are as under:-
i. FIR No.0202 of 2018, under Sections 406, 420, 467 and 468 IPC lodged at Police Station Aliganj, District Lucknow;
ii. FIR No.0271 of 2018, under Sections 120-B, 323, 384, 394, 419, 420, 467, 468, 471, 504 and 506 IPC lodged at Police Station Gomti Nagar, Lucknow;
iii. FIR No.024 of 2016, under Sections 323, 342, 354, 406, 420, 504 and 506 IPC lodged at Police Station Vibhutikhand, Lucknow;
iv. FIR No. 033 of 2021, under Sections 406, 409, 420 and 506 IPC lodged at Police Station Vibhutikhand, Lucknow;
v. FIR No.0105 of 2017, under Section 406 IPC lodged at Police Station Vibhutikhand, Lucknow;
vi. FIR No.0231 of 2018, under Sections 406 and 420 IPC lodged at Police Station Vibhutikhand, Lucknow;
vii. FIR No.0313 of 2019, under Sections 323, 394, 406, 420, 504 and 506 IPC lodged at Police Station Vibhutikhand, Lucknow;
viii. FIR No.0379 of 2018, under Sections 406 and 420 IPC lodged at Police Station Vibhutikhand, Lucknow;
ix. FIR No.0403 of 2018, under Section 406 IPC lodged at Police Station Vibhutikhand, Lucknow;
x. FIR No.0423 of 2018, under Sections 406, 420, 504 and 506 IPC lodged at Police Station Vibhutikhand, Lucknow;
xi. FIR No. 0425 of 2018, under Sections 406, 420, 504 and 506 IPC lodged at Police Station Vibhutikhand, Lucknow;
xii. FIR No.0616 of 2019, under Section 409 IPC lodged at Police Station Vibhutikhand, Lucknow;
xiii. FIR No.0784 of 2019, under Sections 409, 420, 467, 468 and 471 IPC lodged at Police Station Vibhutikhand, Lucknow;
xiv. FIR No.0813 of 2019, under Sections 406 and 420 IPC lodged at Police Station Vibhutikhand, Lucknow;
xv. FIR No. 0332 of 2019, under Sections 323, 341, 427, 504 and 506 IPC lodged at Police Station Vibhutikhand, Lucknow; and xvi. FIR No.0192 of 2019, under Sections 406, 504 and 506 IPC lodged at Police Station Vibhutikhand, Lucknow."
He was arrested and provisions of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act have also been invoked against him. It has been further submitted that the complainant himself is a gangster/cheater, facing trial in several cases and, at present, he is absconding. It is, therefore, submitted that since the complainant himself has indulged in several litigations to arm twist the developers and real estate companies after paying the part sum, he cannot be believed and, his complaint is otherwise liable to be dismissed.
19. I have considered the submissions advanced by the learned counsels for the parties.
20. The complainant had booked 9 plots in the name of himself, his wife and wife of his younger brother with M-Tech Developers Limited in the year 2007 by paying a sum of Rs.14,26,000/-. Possession of these plots was to be given by 9th July, 2009 by M-Tech Developers Limited. Neither the applicant nor ANS Developers Private Limited, now known as Shalimar Lake City Private Limited, was in picture when the applicant booked the plots with M-Tech Developers Limited. The said scheme, launched by the M-Tech Developers Limited, could not take-off.
21. As per the MoU dated 25.11.2012 between the complainant, his wife and sister-in-law and M-Tech Developers, the complainant was to be given flats instead of plots @ Rs.1,650/- per square feet after a discount of 5%. This MoU was entered into between the complainant, his wife and sister-in-law with the M-Tech Developers Limited. The only allegation against the applicant is that he was present when the MoU was entered into between the complainant and the M-Tech Developers Limited through co-accused, Amit Jha and on insistence of the applicant, the complainant delivered original receipts etc. to Amit Jha. Even if it is believed that the applicant was present when the MoU was signed, the applicant was neither the signatory of MoU nor witness If the agreement has not been performed by the M-Tech Developers Limited, the applicant cannot be held responsible. So far as handing over the original receipts are concerned, the M-Tech Developers Limited has unequivocally accepted that the amount of Rs.14,26,000/- was paid towards the booking of 9 plots and, they do not deny the MoU dated 25.01.2012 with the complainant. Even if it is believed that on insistence of the applicant, original receipts etc. were given by the complainant to Amit Jha, co-accused, the Director of the M-Tech Developers Limited, as the receipts, payment and booking are not disputed by the M-Tech Developers Limited, no offence is made out against the applicant. As per the complaint also, the applicant was not involved in any other alleged incident.
22. In view thereof, this Court is of the considered view that on face of it the complaint does not disclose any offence against the applicant. The continuation of the impugned proceedings against the applicant for the offences under Sections 406, 417, 420, 467, 468, 471, 120-B, 323, 504 and 506 IPC would be an abuse of process of the Court and, interest of justice would meet if the impugned proceedings are quashed. The learned Magistrate as well as the revisional Court have erred and failed to appreciate that no offence is made out against the applicant. In view thereof, the present application is hereby allowed. Consequently, the impugned orders and the proceedings of Complaint No. 39 of 2018 are hereby quashed so far as they relate to the applicant.
[Dinesh Kumar Singh, J.] Order Date: 30th August, 2022 MVS/-