Delhi District Court
Unknown vs State (Nct Of Delhi) on 31 August, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 250/2018
In the matter of:
1. Paras Mal Lodha,
S/o Sh. Manohar Mal Lodha,
R/o H. No. 6/1/2, Queens Park,
Kolkata, West Bengal.
2. Sanjay Sharma
S/o Sh. G.R. Sharma,
R/o H. No. 77/1, G T Road,
Howrah, West Bengal.
3. Naw Ratan Bachhawat
S/o Late Sh. Bhikam Chand Bachhawat
R/o. H. No. 26/2, Becharam Chaudhry Lane,
Howrah, West Bengal.
4. Star Exim Pvt. Ltd.
Having its registered office at
519A, Somnath ChamberII
Bhikajicama Palace, New Delhi 110066
Through its Ex. Director/AR
Sh. Naw Ratan Bachhawat
S/o Late Sh. Bhikam Chand Bachhawat
CR Nos. 250/18 & 257/18.
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R/o H. No. 26/2, Becharam Chaudhry Lane,
Howrah, West Bengal.
5. Haldiram Bhujia Bhandar Pvt. Ltd.
Having its registered office at
519 A, Somnath ChamberII,
Bhikajicama Palace, New Delhi 110066
Through its Ex. Director/AR
Sh. Naw Ratan Bachhawat
S/o Late Sh. Bhikam Chand Bachhawat
R/o H. No. 26/2, Becharam Chaudhry Lane,
Howrah, West Bengal.
6. Convenient Tours and Travels Pvt. Ltd.
Having its registered office at
519 A, Somnath ChamberII,
Bhikajicama Palace, New Delhi 11006
Through its Ex. Director/AR
Sh. Naw Ratan Bachhawat
S/o Late Sh. Bhikam Chand Bachhawat
R/o H. No. 26/2, Becharam Chaudhry Lane,
Howrah, West Bengal.
7. Panchavati Plantations Pvt. Ltd.
Having its registered office at
519 A, Somnath ChamberII,
Bhikajicama Palace, New Delhi 11006
Through its Ex. Director/AR
Sh. Naw Ratan Bachhawat
CR Nos. 250/18 & 257/18.
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S/o Late Sh. Bhikam Chand Bachhawat
R/o H. No. 26/2, Becharam Chaudhry Lane,
Howrah, West Bengal.
8. VKS Finvest Pvt. Ltd.
Having its registered office at
519 A, Somnath ChamberII,
Bhikajicama Palace, New Delhi 11006
Through its Ex. Director/AR
Sh. Naw Ratan Bachhawat
S/o Late Sh. Bhikam Chand Bachhawat
R/o H. No. 26/2, Becharam Chaudhry Lane,
Howrah, West Bengal.
9. Vidur Impex & Traders Pvt. Ltd.
Having its registered office at
519 A, Somnath ChamberII,
Bhikajicama Palace, New Delhi 11006
Through its Ex. Director/AR
Sh. Naw Ratan Bachhawat
S/o Late Sh. Bhikam Chand Bachhawat
R/o H. No. 26/2, Becharam Chaudhry Lane,
Howrah, West Bengal. ....Petitioners.
Versus
1. State (NCT of Delhi)
2. Sh. Avtar Singh, MD,
M/s. Tosh Apartments Pvt. Ltd.
CR Nos. 250/18 & 257/18.
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2168, Gurudwara Road, Karol Bagh,
New Delhi. .....Respondents.
Date of Institution : 16.07.2018
Date of Arguments : 30.08.2018
Date of Decision : 31.08.2018
AND
Cr. Revision No. 257/2018
In the matter of:
Bhagwati Developers Pvt. Ltd.
Having registered office at
48, S.N. Roy Road, Kolkata, West Bengal,
Through its authorized representative
Sh. Amrit Roy,
S/o Sh. Bakoo Roy,
R/o G402, Shakaurpur, New Delhi. ....Petitioners.
Versus
1. State (NCT of Delhi)
2. Sh. Avtar Singh, MD,
M/s. Tosh Apartments Pvt. Ltd.
2168, Gurudwara Road, Karol Bagh,
New Delhi. .....Respondents.
Date of Institution : 21.07.2018
Date of Arguments : 30.08.2018
Date of Decision : 31.08.2018
CR Nos. 250/18 & 257/18.
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JUDGMENT
1. Vide this common judgment, I shall decide revision petition bearing No. 250/18 & 257/18 against the order dated 02.06.2018 passed by ld. CMM, vide which Ld. CMM has summoned the petitioners. As both the revision petitions are arising out from the same order dated 02.06.2018, both the revision petitions are being decided together.
2. Aggrieved by the order dated 02.06.2018, the petitioners has filed the revision petition No. 250/18 on the grounds that the impugned summoning order is illegal, incorrect, improper, contrary to facts and law. The case is based on surmises, conjectures and wrong appreciations of law. Ld. Trial Court did not appreciate that as per the facts and the circumstances of the present case, petitioners cannot be summoned under Section 406/420/120B IPC. It is also mentioned that allegations made in the FIR, chargesheet and documents annexed there with are taken at their face value and accepted in their entirety, no prima facie case is made out against the petitioners. It is also mentioned that bare perusal of the chargesheet reveals that the allegations made in the chargesheet are purely civil and CR Nos. 250/18 & 257/18.
5 of 12 07.01.2017 commercial in nature and no cognizable offence is made out against the petitioners. The respondent no. 2 is trying to misuse the criminal law machinery as an arm twisting method for the oblique motives which deserves to be turned down. It is mentioned that the provisions of Section 420/415 IPC are not attracted in the present case. No case of criminal breach of trust under section 420 IPC is made out against the petitioners. There is no material on record to connect the petitioners with the alleged offences. It is prayed that order dated 02.06.2018 be set aside.
3. The petitioner Bhagwati Developers Pvt. Ltd. has also filed revision petition bearing No. 257/18 on similar lines. It is prayed that order dated 02.06.2018 be set aside.
4. I have heard Ld. counsel for the petitioners, Ld. Addl. PP for the State and Ld. counsel for respondent no. 2 at length and perused the records of this court as well as of Trial Court.
Ld. counsel for the petitioners has argued on the lines of revision petitions. He has also contended that it is purely civil transaction between the parties and no criminal case is made out.
On the other hand, Ld. counsel for the respondent no. 2 has CR Nos. 250/18 & 257/18.
6 of 12 07.01.2017 argued that there is no illegality or infirmity in the order dated 02.06.2018.
5. Perusal of the Trial Court Record reveals that the FIR was registered on the directions of Ld. MM on the application u/s 156(3) Cr.P.C filed by respondent no. 2, Managing Director & Chairman of M/s. Tosh Apartments Private Ltd. wherein, it is averred that property bearing No. 21, Aurangzeb Road, New Delhi was originally owned by one late Sh. Pradeep Kumar Khanna, who died on 12.01.2002. Shri Pradeep Kumar Khanna during his life time has entered into an agreement of sell dated 13.09.1988 with the respondent no. 2 with respect to the sale of the said property which at that time was under the tenancy of the Sudan Embassy. In the complaint, it is also averred that it was agreed at the behest of Mr. Pradeep Kumar Khanna that the service of Sh. Luv Kumar Kaul be availed to get the vacant possession of the property and to get expedited the obtaining of necessary No Objection Certificate of the Income Tax and other authorities and to get the sale transaction completed and Rs. 1.25 crores was agreed to be paid to Sh. Luv Kumar Kaul for his services. Sh. Luv Kumar Kaul was also introduced as a Director in the respondent no. 2 and a sum of Rs. 25 lacs also paid to him. It is also alleged that intentions of Late Sh. Pradeep Kumar Khanna and Late Sh. Luv Kumar Kaul were dishonest and they took no steps to get the No Objection Certificate from the concerned CR Nos. 250/18 & 257/18.
7 of 12 07.01.2017 authorities. It is further alleged that Pradeep Kumar Khanna and Luv Kumar entered into a criminal conspiracy with Paras Mal Lodha who controls Bhagwati Developers Pvt. Ltd. with an object to deprive the complainant of the rights under the above said agreement to sell and to frustrate the rights of the complainant in the property by creating third party interest. It is also alleged in the complaint that in furtherance of criminal conspiracy Late Sh. Pradeep Kumar Khanna, Luv Kumar Kaul, Paras Mal Lodha, Bhagwati Developers Pvt. Ltd. and the six shell companies, despite having knowledge of the aforesaid dealings, payments and agreement to sale, executed six sale deeds transferring six undivided portions of the property in favour of the six companies for Rs. 48 lacs each.
6. As per the chargesheet an agreement to sell was executed between Sh. Pradeep Kumar Khanna and Tosh Apartments Pvt. Ltd. of Rs. 2.5 crores and Rs. 54 lacs was paid to Sh. Pradeep Kumar Khanna as earnest money on 13.09.1988. Service agreement dated 19.02.1992 was also executed between Sh. Pradeep Kumar Khanna and Sh. L.K. Kaul and in the year 1993 M/s. Tosh Apartments Pvt. Ltd. filed Suit No. 425/1993 for Specific Performance, Damages and Injunction against against Sh. Pradeep Kumar Khanna and Ors. and Hon'ble High Court has granted CR Nos. 250/18 & 257/18.
8 of 12 07.01.2017 interim injunction in favour of M/s. Tosh Apartments Pvt. Ltd. which was confirmed by the Hon'ble High Court on 31.01.2000. As per the charge sheet Pradeep Kumar Khanna entered into agreement to sell with six companies through common Director S. Mahesh Sharma for an amount of 48 lacs each on 19.02.1997 and six companies entered into agreement to sell with M/s. Bhagwati Developers Pvt. Ltd. for transferring their alleged rights. On 30.05.1997 six sale deeds executed on 20.05.1997, between Sh. Pradeep Kumar Khanna and six companies were got registered and in July, 1997 six companies have filed civil suit No. 1675/1997 for declaration possession, mandatory and perpetual injunction against Pradeep Kumar Khanna. In the year, 1999 Sh. Pradeep Kumar Khanna filed suit in the Hon'ble High Court of Delhi that six sale deeds were not executed by him and are forged documents. It has come during investigation that on the instructions of Paras Mal Lodha, his employee CA Ajesh Bhandari arranged six companies in Delhi in which accused Sanjay Sharma, Mahesh Sharma and Naw Rattan Bachhawat etc. were made directors and the account of these six accused companies, Pradeep Kumar, Bhagwati Developers were introduced by Sh. Ajesh Bhandari. He is also found one of the attesting witness in six alleged sale deeds. It has also come during investigation that these accounts were opened on the instructions of Paras Mal Lodha, Chairman of M/s. Peerless Consultancy Services P. Limited. It CR Nos. 250/18 & 257/18.
9 of 12 07.01.2017 is also admitted case that this property 21, Aurangzeb Road, New Delhi was mortgaged with ICICI bank and Paras Mal Lodha had also put this property for collateral security for a loan for M/s. Mascon Global. As per the charge sheet Paras Mal Lodha had used his above employees who were directors in various companies to make a sham transaction in respect of property in question and he was also promoters of all the main companies of Lodha Group including Lodha & Company P. Ltd. and Bhagawati Developers P. Ltd. It is also result of the investigation that six companies are sister concerns and part of Lodha Group of companies and despite this facts intentionally sale deeds were executed in favour of M/s. Bhagwati Developers Pvt. Ltd. It has also come investigation that amount of sale consideration was initially originated from accused M/s. Bhagwati Developers and it was transferred in the account of six companies who in turn paid the same to accused Pradeep Kumar Khanna. It has also come in chargesheet that accused Paras Mal Lodha was the main person who used his employees cum directors namely accused Sanjay Sharma, Naw Rattan Bachhawat, Mahesh Sharma and Jaideb Kumar Dhar to execute all the documents to cause wrongful loss to complainant.
7. Ld. counsel for the petitioners has placed reliance on judgment titled as "Md. Ibrahim & Ors. v. State of Bihar & Anr." JT 2009 (11) SC CR Nos. 250/18 & 257/18.
10 of 12 07.01.2017 533 wherein, it is held that "this court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes". I have perused this judgment with utmost regard but this judgment is not helpful to the petitioners.
On the other hand, Ld. counsel for the respondent no. 2 has placed reliance on judgment titled as "Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr." wherein, it is held that "cognizance is taken of the offence, not of person and at this stage only sufficiency of ground for proceedings, not sufficiency of grounds for conviction, is required to be seen". In this judgment, it is also held that "Magistrate is not bond or to give reason for issuing summons under the order 204 Cr.P.C.".
8. In the present case, Ld. CMM has taken cognizance of offence u/s 420/406/120B IPC against the petitioners and issued summons to the petitioners. From the perusal of the chargesheet it reveals that there is CR Nos. 250/18 & 257/18.
11 of 12 07.01.2017 enough material on record to summon the petitioners, particularly when the sale deeds were executed in favour of the petitioners after passing of the orders by the Hon'ble High Court of Delhi. The sale deed were got executed with the conspiracy of the petitioners and Ld. Trial Court has rightly summoned the petitioners u/s 420/406/120B IPC.
9. In view of the above discussions, I am of the view that there is no illegality or infirmity in the order dated 02.06.2018 passed by Ld. Trial Court. The revision petitions bearing No. 250/18 & 257/18 filed by the petitioners are without any merits and same are hereby dismissed. Trial Court record be sent back along with copy of common judgment. Revision files be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 31.08.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2018.08.31
16:31:45
+0530
CR Nos. 250/18 & 257/18.
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