Delhi District Court
Mrs. Shashi Agarwal vs The State (Govt. Of Nct Of Delhi) on 24 December, 2020
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 479/2019
CNR No.: DLCT01-010480-2019
Mrs. Shashi Agarwal
W/o Sh. K.N. Agarwal
R/o 7A/3A, Rajpur Road, Civil Lines,
Satyam Apartment, Delhi-110054
..... Petitioner
VERSUS
1. The State (Govt. of NCT of Delhi)
2. M/s. Orris Infrastructure Pvt. Ltd.
Through its: Directors / Authorised Representatives
3. Mr. Vijay Gupta
Director, M/s. Orris Infrastructure Pvt. Ltd.
4. Mr. Amit Gupta
Director, M/s. Orris Infrastructure Pvt. Ltd.
Address of the respondent No. 2, 3 & 4 at:
RZ-D5, Mahavir Enclave,
New Delhi-110062
Also At: Orris Head Quarters.
J-10/5, DLF Phase-II,
Mehrauli Gurgaon Road,
Gurgaon-122 002, Haryana
5. M/s. Three C Shelters Pvt. Ltd.
Through its: Directors / Authorised Representatives
6. Mr. Vidur Bhardwaj
Director, M/s. Three C Shelters Pvt. Ltd.
Cr. Rev. No. 479/2019 Shashi Agarwal vs. State & Ors. Page No. 1 of 16
7. Mr. Nirmal Singh
Director, M/s. Three C Shelters Pvt. Ltd.
8. Mr. Surpreet Singh Suri
Director, M/s. Three C Shelters Pvt. Ltd.
Address of the respondent No. 5 to 8 at:
C-23, Greater Kailash Enclave-I,
New Delhi-110048
..... Respondents
Date of Institution : 05.08.2019
Date of Arguments : 09.12.2020
Date of Judgment : 24.12.2020
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'the Cr.P.C.') is directed against order dated 06.05.2019 arising from the complaint case vide CC No. 493/2019 titled as 'Mrs. Shashi Agarwal vs. Orris Infrastructure Pvt. Ltd. & Ors.' whereby Ld. MM-6 (Central), Tis Hazari Courts, Delhi dismissed the application under Section 156 (3) of the Cr.P.C. as well as the complaint under Section 200 of the Cr.P.C.
2. Facts leading to the filing of the present revision petition are that the petitioner instituted a complaint case under Section 200 of the Cr.P.C. for seeking summoning and trial of the respondent No. 2 to 8 for committing offences under Section 406/409/420/467/468/471/506/120B of 'The Indian Penal Code, 1860' (In short 'IPC').
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3. Alongwith the complaint, the petitioner also filed an application under Section 156 (3) of the Cr.P.C. for seeking registration of FIR against the respondent No. 2 to 8 for committing the aforesaid offences.
4. The case of the petitioner is that the respondent No. 2 and 5 are real estate companies. The respondent No. 3 and 4, and the respondent No. 6 to 8 are their directors and actively involved in day to day affairs of the said companies. According to the petitioner, the respondent No. 2 and the respondent No. 5, through their directors the respondent No. 3 and 4, and the respondent No. 6 to 8 respectively, approached her and her husband regarding their housing project and in that regard, a meeting was held in the petitioner's house. Pursuant to the representations made by the respondent No. 2 to 8 regarding their real estate projects. The respondent No. 2 to 8 represented that they were jointly developing a 'Residential Group Housing Project' in the name of 'GREENOPOLIS' in Village Hayatpur, Tehsil and District Gurgaon and Village Badha, Tehsil Manesar, District Gurgaon, Haryana vide an agreement dated 02.11.2011, the petitioner booked an apartment vide Apartment No. 1203, Floor No. 12, Tower 20, Super Area 1957 Square Feet in the said project for sale consideration of Rs. 1,01,95,860/- (One Crore, One Lakh, Ninety Five Thousand, Eight Hundred and Sixty only) vide Allotment Letter dated 27.09.2012. In that regard, an 'Apartment Buyer's Agreement' was executed on 28.06.2013.
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5. According to the petitioner, the payment plan was a 'construction linked plan'. The petitioner has paid an amount of Rs. 98,14,445/- which is 98% of the total sale consideration. The petitioner with her son obtained housing loan from Citi Bank against mortgage of the said apartment. The petitioner has deposited original 'Apartment Buyer's Agreement' dated 28.06.2013 with the said bank.
6. The grievance of the petitioner is that the respondent No. 2 to 8 had undertaken to deliver the possession of the said apartment within 36 months with grace period of 6 months from the date of allotment. The said period expired on 27.03.2016. However, the respondent No. 2 to 8 has not delivered possession of the said apartment. According to the said agreement, there was stipulation to pay penalty / damages to the petitioner till delivery of the possession of the said apartment. The respondent No. 2 to 8 have neither executed sale deed nor delivered possession of the said apartment. The petitioner sent a legal notice dated 24.04.2017 whereby she called the respondent No. 2 to 8 to return the sale consideration alongwith interest. The petitioner visited the site of the said project and it revealed that no construction activity was there and there was no possibility of completion of the said project. The respondent No. 2 to 8 have cheated the petitioner and misappropriated the amount. The petitioner made a complaint to PS Civil Lines on 13.12.2018 through speed post. However, police has not taken any action.
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7. In the status report filed by SI Manish Kumar, PS Civil Lines, Delhi stated as under:
"After enquiry, it has been revealed that the matter is civil in nature and on the complaint of Mrs. Shashi Aggarwal, no Police action was made out. Hence the complaint was filed. Therefore, keeping in view of the above mentioned facts and circumstances, the Hon'ble Court is requested to file the complaint."
8. On consideration of the averments made in the complaint and the status report, Ld. MM dismissed the application under Section 156 (3) of the Cr.P.C. and the complaint under Section 200 of the Cr.P.C. vide order dated 16.05.2019 (Hereinafter referred to as 'the impugned order'). The relevant part of the impugned order is as under:
"3. Status report filed by IO wherein it is submitted that during enquiry, statement of complainant was recorded and it was surfaced that the dispute is civil in nature.
4. I have perused the entire record including the documents filed by the complainant as well as the ATR. As per the averments made in the complaint, the complainant invested a huge sum of money in the lucrative project of the alleged companies but even after stipulated period, the possession of the apartment and the sale deed has not been executed in her favour. However, as per the law, for offence of cheating "dishonest intention" is sine qua non, which is absent in the present allegations. It has only been alleged that the possession and execution of sale deed has been delayed by the alleged persons, however, it has not been brought on record that allured the complainant with dishonest intention to part with her money and she has been duped. Delay in giving possession and non-execution of sale deed in her favour of the apartment is only a dispute which is civil in nature and no criminal offence is prima facie brought on record.
Cr. Rev. No. 479/2019 Shashi Agarwal vs. State & Ors. Page No. 5 of 16 It seems that the present complaint has been filed only to mount pressure upon the opposite party and to get some unlawful gain.
5.....Hence, before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Section 200-203 Cr.P.C. keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner.
6. As already stated that the dispute is civil in nature and no prima facie criminal case is made out, the application is hand U/s 156 (3) Cr.P.C. and complaint U/s 200 Cr.P.C. stands dismissed, being devoid of any merit. File be consigned to record room."
9. Feeling aggrieved and dissatisfied with the impugned order, the petitioner preferred the criminal revision petition on the grounds, as under:
(a) Ld. MM ignored settled proposition of law and passed the impugned order in a mechanical manner;
(b) The petitioner categorically stated, in the complaint, that the representation made by the respondent No. 2 to 8 were turned out to be false and fraudulent and they induced the petitioner to buy an apartment in the said Group Housing Project;
(c) There is an element of dishonest intention since beginning and the respondent No. 2 to 8 never had any intention to construct an apartment which is reflected that the respondent No. 2 to 8 have neither delivered the possession nor executed sale deed or paid penalty / damages to the petitioner;
(d) The respondent No. 2 to 8 misappropriated the amount invested by the petitioner;
(e) The respondent No. 2 to 8 diverted the funds collected from the petitioner and other flat buyers of the said housing project to other residential projects; and
(f) There are several FIRs already registered against the respondent No. 2 to 8."
Cr. Rev. No. 479/2019 Shashi Agarwal vs. State & Ors. Page No. 6 of 16 10. On being noticed, the respondent No. 2 to 8 appeared.
11. Vide order dated 26.08.2019, this Court sought status report, as under:
"In light of the averments made in the revision petition, notice be also issued to SHO, Police Station Civil Lines with direction to disclose, on the next date, as to whether the money was indeed taken by the accused company from different customers, whether it was utilized towards construction in question or whether it was diverted to other entities."
12. On 20.09.2019, Ld. Counsel for the respondent No. 8 informed that FIRs are registered at PS EOW and the petitioner is mentioned as one of the victims in the said FIRs. Thereafter, the Court called a report from EOW, as under:
"Ld. Counsel for the respondent No. 8 submits that FIRs have already been registered in PS EOW and the revisionist herein has been joined as one of the victims in those FIRs. He submits that there are six or seven FIRs registered against M/s. Orris Infrastructure Pvt. Ltd. and M/s. Three C Shelters Pvt. Ltd. He submits that he does not have the FIR numbers of those that have been registered at PS EOW but the present transaction is within the ambit of the said FIRs.
Let report in this behalf be called from PS EOW. Notice shall be issued for this purpose alongwith copy of this order."
13. On 10.01.2020, SI Manish Kumar, PS Civil Lines submitted status report, as under:
"Thereafter, the complainant filed the present revision petition before the Hon'ble Court. Further enquiry was also conducted into the matter and it was revealed that the said project was being developed by Three C Shelters Pvt. Ltd.
Cr. Rev. No. 479/2019 Shashi Agarwal vs. State & Ors. Page No. 7 of 16 In this regard, an agreement dated 02.11.2011 was executed between Orris Infrastructure Pvt. Ltd. & Three C Shelters Pvt. Ltd.
During the course of enquiry, it was also revealed that a case FIR No. 137/2017 U/s. 406/420/467/468/ 471/120-B was already registered at PS Economic Offence Wings on the same project against the alleged company and persons and the same is pending investigation with E.O.W. As far enquiry conducted and documents collected so far it could not be established that the alleged amount was used in said project or not by the alleged company."
14. Insp. Bijay Kumar, Section - V / EOW submitted report, as under:
"It is submitted that a case FIR No. 137/17 dated 24.08.2017 U/s. 406/420/467/468/471/120-B IPC PS EOW was registered on the complaints of Sh. Abhishek Chander Gupta and 13 others against M/s. Orris Infrastructure Pvt. Ltd. and M/s. Three C Shelters (P) Ltd. for their group housing project namely "Greenopolis' located at Sector-89, Gurgaon.
It is further submitted that the complaint of Mrs. Shashi Agarwal W/o Sh. K.N. Agarwal R/o 7A/3A, Rajpur Road, Civil Lines, Delhi was received at EOW by post vide No. D-628 dated 24.01.2018 against the same developers & project. On scrutiny of the complaint, it was revealed that the accused persons have cheated the complainant using a similar modus operandi in pursuance of conspiracy, deception, and dishonest inducement. It contains the same set of allegations and the complainant has been cheated by the accused persons in furtherance of a common conspiracy, inducement, and deception in the form of false representation and concealment of facts. Therefore, treating the offences committed as part of same transaction, the complaint was clubbed with the present case.
It is also submitted that one charge-sheet in case FIR No. 137/17 PS EOW has been filed against accused Nirmal Singh, Bidhur Bhardwaj, Surpreet Singh Suri, Cr. Rev. No. 479/2019 Shashi Agarwal vs. State & Ors. Page No. 8 of 16 Vijay Gupta, Amit Gupta, M/s. Orris Infrastructure Pvt. Ltd. and M/s. Three C Shelters Pvt. Ltd. without arresting them and supplementary investigation on the remaining aspect is still going on."
15. Vide order dated 10.01.2020, EOW was asked as to why the petitioner was not examined as one of the victims in the said FIR, as under:
"As per report of Economic Offences Wing (EOW), the complaint of the revisionist herein has been "clubbed"
with the main FIR.
Ld. Counsel for the revisionist submits that in the said FIR, the revisionist has never been summoned by the police for recording of his statement and was never recognized as one of the victims.
Let this be looked into by the DCP, EOW. He shall examine as to why the revisionist has not been examined as one of the victims by the police when it has been reported before the Court that her complaint has been merged into the main FIR. Copy of this order shall be sent to DCP, EOW."
16. On 25.02.2020, EOW submitted report, as under:
"Further, a notice dated 06.01.2020 has been sent to the complainant Mr. Shashi Agarwal to join the investigation with documents related to alleged project. On 13.01.2020, the complainant Smt. Shashi Agarwal sent a reply through her counsel that she wants a fresh FIR and for this purpose, she has already filed the Revision Petition."
17. I have heard arguments of Mr. Alok Pandey, Advocate for the petitioner, Mr. G.S. Guraya, Ld. Addl. PP for the State / respondent No. 1, Mr. Tarun Goomber, Advocate for the respondent No. 2 to 4, Mr. Kartik Bhardwaj, Advocate for the respondent No. 6, Mr. Arush Khanna, Advocate for the respondent No. 7 and Mr. D.N. Chaturvedi, Advocate for the respondent No. 8, and carefully examined the trial Court record.
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18. Ld. Counsel for the petitioner submitted that Ld. Trial Court did not appreciate the facts and applied the law correctly. He submitted that Ld. MM passed the order in a mechanical manner without considering the averments made in the complaint and the documents annexed therewith. He submitted that Ld. MM not only dismissed the application under Section 156 (3) of the Cr.P.C., it also dismissed the complaint case under Section 200 of the Cr.P.C. He submitted that Ld. MM heard arguments on the application under Section 156 (3) of the Cr.P.C. and there was no occasion for Ld. MM to dismiss the complaint under Section 200 of the Cr.P.C. without taking cognizance and giving an opportunity to the petitioner to lead evidence. He submitted that there is an element of fraudulent representation and dishonest intention in the present case since the beginning. He submitted that the respondent No. 2 to 8 made false representation regarding their project and its completion. He submitted that the respondent No. 2 to 8 dishonestly induced the petitioner to part with huge amount in the sum of Rs. 98,14,445/- and misappropriated the said amount. He submitted that the petitioner arranged the said amount from Citi Bank as housing loan which is repayable in the form of 202 monthly instalments of Rs. 78,230/- each. He submitted that the respondent No. 2 to 8 were supposed to deliver the possession of the apartment on 27.06.2016 vide agreement dated 28.06.2013. He submitted that the respondent No. 2 to 8 have deceived the petitioner to part with her money.
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19. Ld. Counsel for the petitioner submitted that the respondent No. 2 to 8 have not only cheated the petitioner but they have cheated several persons and in that regard, FIR No. 137/2017 is already registered at PS EOW. He submitted that Hon'ble High Court of Delhi in State vs. Khimji Bhai Jadeja, Crl. Ref. No. 1/2014 decided on 08.07.2019 has held that a single FIR cannot be registered in respect of the separate cognizable offence which do not form part of single transaction. He submitted that the Hon'ble High Court of Delhi has deprecated practice of registering a single FIR on the basis of the complaint of one of the complainants / victims and treating the other complainants merely as witnesses. He submitted that even if PS Civil Lines did not have territorial jurisdiction to register the FIR, it could have registered 'Zero' FIR as held in the judgment of Hon'ble High Court of Delhi in Kirti Vashisht vs. State & Ors., Crl. MC No. 5933/2019 decided on 29.11.2019.
20. Ld. Counsel for the respondent No. 2 to 8submitted that there is no infirmity in the order of Ld. MM. They submitted that the dispute involved in the present case is purely civil in nature. They submitted that the petitioner can take recourse to civil remedies. They submitted that there is no fraudulent representation or dishonest inducement warranting registration of FIR. They submitted that, in any case, there is an FIR vide FIR No. 137/2017 registered on 24.08.2017 at PS EOW and the complainant is mentioned as one of the victims and her complaint is clubbed with the said case.
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21. On thoughtful examination of the case, it is evident that the petitioner invested huge amount of Rs. 98,14,445/- in the housing project of the respondent No. 2 to 8. It is further evident that the petitioner was allotted Flat No. 1203, Tower No. 20, Super Area 1957 square feet, Sector 89, Gurgaon, Haryana vide allotment letter dated 27.09.2012. The petitioner entered into Apartment Buyer's Agreement with the respondent No. 2 to 8 on 28.06.2013. The respondent No. 2 to 8 were obliged to deliver the possession of the said apartment within 36 months i.e. on or before 27.06.2016. However, they have neither delivered the possession of the said apartment nor returned the sale consideration.
22. Prima facie, the respondent No. 2 to 8 made false promise to the petitioner which they believed to be not true and on the basis of the said fraudulent representation, the respondent No. 2 to 8 induced the petitioner to part with such huge amount which she would not have done, if she would not have so deceived.
23. Moreover, in the status report filed by EOW on 09.01.2020, as reproduced above, it is evident that the respondent No. 2 to 8 cheated the petitioner using a similar modus operandi and for that reason, the complaint of the petitioner was clubbed with the said FIR vide FIR No. 137/2017 dated 24.08.2017 under Section 406/420/467/468/471/120B IPC. Ld. MM committed an apparent of law in observing that the case is purely civil in nature.
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24. So far as arguments of Ld. Counsel for the respondent No. 2 to 8 that complaint was made to PS Civil Lines in order to create jurisdiction is concerned, it can be stated that Hon'ble High Court of Delhi in Kirti Vashisht's case, has held that if an offence is not committed in the jurisdiction of a police station, such police station can register 'Zero' FIR and transfer it to concerned police station for investigation, as under:
"16. Learned APP has fairly conceded that as per the contents of the complaint, cognizable offence is made out. Thus, even on the first complaint made to Police Station, Najafgarh, the FIR was supposed to be registered. As per Section 154 Cr.P.C., if any information relating to the commission of cognizable offence is received by any Police Station, the said Police Station is duty bound to register the FIR. However, if the crime is not occurred in the jurisdiction of the said Police Station, then after registering the 'Zero FIR', the same has to be transferred to the concerned Police Station for investigation, where the offence has been committed. However, neither this happened in the Police Station Najafgarh nor thereafter in Police Station Baba Hari Das Nagar and also nor in Police Station Kapashera as well."
25. So far as the issue of clubbing of the complaint of the petitioner is concerned, Hon'ble High Court of Delhi, in State vs. Khimji Bhai Jadeja's (supra), while considering the question of law, as under:
"a. Whether in a case of inducement, allurement and cheating of large number of investors / depositors in pursuance to a criminal conspiracy, each deposit by an investor constitutes a separate and individual transaction or all such transactions can be amalgamated and clubbed into a single FIR by showing one investor as complainant and others as witnesses?"
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26. Held as under:
"62. Thus, our answer to Question (a) is that in a case of inducement, allurement and cheating of large number of investors / depositors in pursuance to a criminal conspiracy, each deposit by an investor constitutes a separate and individual transaction. All such transactions cannot be amalgamated and clubbed into a single FIR by showing one investor as the complainant, and others as witnesses. In respect of each such transaction, it is imperative for the State to register a separate FIR if the complainant discloses commission of a cognizable offence."
27. Ld. MM committed grave error of law in dismissing the application under Section 156 (3) of the Cr.P.C. as well as the complaint under Section 200 of the Cr.P.C. and if this order is not set-aside, it would occasion miscarriage of justice.
28. Accordingly, the criminal revision petition filed by the petitioner is allowed and the impugned order dated 06.05.2019 is set-aside and the application under Section 156 (3) of the Cr.P.C. and complaint under Section 200 of the Cr.P.C. are restored.
29. In the light of the observations made by this Court, Ld. MM is directed to decide the application under Section 156 (3) of the Cr.P.C. within one month from the date of receipt of the order.
30. A copy of this order be sent to Ld. MM alongwith trial Court record.
31. The parties are directed to appear before Ld. MM on 06.01.2021 at 02.00 p.m. Cr. Rev. No. 479/2019 Shashi Agarwal vs. State & Ors. Page No. 14 of 16
32. The revision file be consigned to record room.
Digitally signed bySANJAY SANJAY SHARMA
SHARMA Date: 2020.12.24
16:01:31 +0530
Announced in the open Court SANJAY SHARMA-II
on this 24th December, 2020 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
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Cr. Revision No. 479/2019
24.12.2020
Present : Mr. Alok Pandey, Advocate for the petitioner.
Mr. M.K. Shukla, Ld. Addl. PP (Substitute) for the State / respondent No. 1.
Mr. Tarun Goomber, Advocate for the respondent No. 2 to
4. Mr. Kartik Bhardwaj, Advocate for the respondent No. 6. Mr. Arush Khanna, Advocate for the respondent No. 7. Mr. D.N. Chaturvedi, Advocate for the respondent No. 8.
It is 04.00 p.m. Vide separate judgment, the criminal revision petition filed by the petitioner is allowed and the impugned order dated 06.05.2019 is setaside and the application under Section 156 (3) of the Cr.P.C. and complaint under Section 200 of the Cr.P.C. are restored. In the light of the observations made by this Court, Ld. MM is directed to decide the application under Section 156 (3) of the Cr.P.C. within one month from the date of receipt of the order. The parties are directed to appear before Ld. MM on 06.01.2021 at 02.00 p.m. The revision file be consigned to record room.
Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi 24.12.2020 Cr. Rev. No. 479/2019 Shashi Agarwal vs. State & Ors. Page No. 16 of 16