Delhi District Court
Punit Beriwala vs The State on 23 August, 2017
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI01,
(SOUTH) SAKET COURTS : NEW DELHI
Crl. Revision No. : 111/2017
CC No. : 464682/16
In the matter of :
Punit Beriwala
S/o Sh. S.S. Beriwala
15/10, Sarvapriya Vihar
New Delhi 110016
...... Appellant
VERSUS
1. The State
2. Nishi Gupta
W/o Sh. Alok Gupta
R/o 27, Rajdhani Nikunj,
94, I.P. Extension, Delhi 110092
....... Respondents
Date of Filing : 30.03.2017
Date of Arguments : 18.07.2017 & 23.08.2017
Date of Order : 23.08.2017
O R D E R
1. This is revision petition filed on behalf of petitioner aggrieved by the Crl. Revision No. : 111/2017 Punit Beriwala Vs. The State & Anr. 1/8 order of Ld. Trial court dated 19.1.2017 whereby the application of petitioner u/s 245 (2) /309 Cr.P.C. was dismissed.
2. Respondent no. 2/complainant had filed complaint before Ld. Trial court on the facts that late Smt. Damyanti Devi had entered into an agreement with accused company on assurance of his Managing Director, who is petitioner herein, for purchase of flat no. D7, Tower B, Property no.6, Aurobindo Marg, New Delhi. In pursuance of the agreement, she paid Rs. 20 lacs as earnest money. After receipt of the said payment, accused remained silent for considerable time and later on asked the complainant to deposit Rs. 46,00,000/ which payment was made by Smt. Damyanti Devi vide two cheques in sum of Rs. 24 lacs and Rs. 21 lacs but the same were not deposited by accused company for encashment. Legal notice served upon the accused in this regard did not yield any result. In the meantime, Smt. Damyanti Devi died on 5.4.2010 bequeathing the said property to complainant/respondent no.2, who made complaint to EOW against the said acts of cheating committed by accused but no action was taken. Hence, complaint u/s 200 Cr.P.C. was filed before Ld. Trial court.
3. Presummoning evidence was led followed by summoning order against the accused/petitioner. Accused/petitioner appeared and during the course of proceedings, application u/s 245 (2) Cr.P.C. was filed on his behalf which application was dismissed by Ld. Trial court vide impugned order.
Crl. Revision No. : 111/2017
Punit Beriwala Vs. The State & Anr. 2/8
4. It is submitted by Ld. Counsel for petitioner that for making out the offence u/s 420 IPC, fraudulent inducement or misrepresentation and parting of property are relevant. In the instant case, there is no averment in the complaint or in the evidence that the accused ever fradulently induced Smt. Damyanti Devi about the title of the flat in question. It is also not the case of complainant that the petitioner had ever refused to return the registration amount paid to the company towards registration of the aforesaid flat or that the complainant/her mother in law ever demanded money back . In fact, company offered to return the said registration amount without prejudice to its rights even prior to summoning of the petitioner. At the same time, it has also not been alleged by the complainant that deceased Damyanti Devi ever demanded return of registration amount from the company or the company refused to return the same to her.
5. It was further submitted that it is admitted case of complainant that right, title and interest of flat in question was with the company and had not been transferred in favour of any other person and even otherwise presuming that indeed the company took bookinig for the same flat from another person, same at best constitutes breach of contract but does not constitute the offence of cheating. It was also stated that the dispute between the parties was civil in nature and there was no criminality involved in the transaction. Rather there was no misrepresentation and concealment of the facts since in letter dated Crl. Revision No. : 111/2017 Punit Beriwala Vs. The State & Anr. 3/8 12.10.2006, purported to have been written by deceased Smt. Damyanti Devi , she herself stated about the information regarding the project having been sold to some other developer. In the said letter it had been informed to M/s Vipul Infrastructure Developer Ltd. that " it has come to my notice that the project has been sold to some other developer without information and further that abovementioned flat has been allotted to some other party ". As stated, despite having come to know that the said project had been sold to some other developer and the flat also having been allotted to some other party, deceased Smt. Damayanti Devi chose to hand over the cheque of Rs. 24 lacs and Rs. 21 lacs which proves that she was aware of each and every fact and there was no misrepresentation and concealment of fact.
6. It was further submitted that during her life time, she had no grievance about prior booking of the flat in question to some other person and was aware of all the facts. The complainant, as further submitted, had also filed a suit for specific performance which is pending disposal.
7. Ld. Counsel for petitioner placed reliance upon Suresh Vs. Mahadevappa Shivappa Danannava & anr. AIR 2005 SC 1047, Murali Lal Gupta Vs. Gopi Singh (2005) 13 SCC 699 and Ram Balaji Devi & Anr. Vs. Umesh Kumar Singh & Anr. 2006 Crl.L.J. 2782 wherein interalia the higher courts held that matter regarding breach of agreement to sell is to be decided by Civil court and the criminal complaint filed in that regard is not Crl. Revision No. : 111/2017 Punit Beriwala Vs. The State & Anr. 4/8 maintainable. In Murari Lal Gupta Vs. Gopi Singh, as was noted " it was not respondent's case that petitioner did not have property or that petitioner was not competent to enter into agreement to sell or could not have transferred title in property to respondent. It appeared to be an attempt to pressurize petitioner for coming to terms with the respondent".
8. Ld. Counsel for petitioner further placed reliance upon Hridaya Ranjan Prasad Verma & Anr. Vs. State of Bihar & Anr. (2000) 4 SCC 168 wherein it was observed that " ingredients of cheating are distinguishable from mere breach of contract. The definition contemplates two separate classes of acts i.e. deception by fraudulent or dishonest inducement and deception by intentional, but not fraudulent or dishonest inducement. In the second case, intentional deception must be shown to exist right from the beginning of the transaction".
9. It is correct that in the instant matter, it is not the case that petitioner was not competent to enter into agreement to sell or could not have transferred title in property to respondent but the facts of instant case differ thereafter. As it is not the simplicitor case that the petitioner walked out of any agreement between the parties but it is a case where petitioner before issuance of receipt for registration money had already booked the flat in question with one Mr. Rishi Aggarwal which was in fact the main ground in the summoning order for making out prima faice offence u/s 420 IPC by Ld. Crl. Revision No. : 111/2017 Punit Beriwala Vs. The State & Anr. 5/8 Trial court.
10. Complainant has specifically averred that accused is a builder and developer of land and is in business of constructing flats who made false and fabricated assurances, false undertakings and misrepresented through Managing Director of the accused company i.e. the petitioner herein. The contention of Ld. Counsel for petitioner that late Smt. Damyanti Devi was all along aware of the booking amount having also been taken from another person yet had proceeded ahead, therefore does not constitute offence of cheating is misconceived. As rightly noted by Ld. Trial court, it was only after payment of Rs. 20 lacs that deceased Damyanti Devi came to know that the flat in question had been allotted to someone else by the accused/petitioner. There was nothing on record to show that the accused had clearly informed Late Smt. Damyanti Devi while accepting payment of Rs. 20 lacs from her regarding earnest money taken in respect of said flat from Mr. Rishi Aggarwal . Had she been informed at the appropriate stage, there was no reason for her to pay booking amount for a flat which had already been booked in somebody else's name, which itself reflects the dishonest/fraudulent intention on the part of accused prima facie at least to proceed against him .
11. The contention of Ld. Counsel for petitioner that Smt. Damyanti Devi never sought return of the amount is also misconceived in the facts of the Crl. Revision No. : 111/2017 Punit Beriwala Vs. The State & Anr. 6/8 case since at the very inception, she had not been made aware of the booking amount of the same flat having been taken from someone else as well. The petitioner having offered for return of the money at the belated stage after the complainant has already initiated proceedings against the petitioner is of no consequence.
12. Ld. Counsel for petitioner submitted that petitioner in his individual capacity is not vicariously liable for the liability, if any of the company. Ld. Counsel for petitioner placed reliance upon Maksud Saiyed Vs. State of Gujarat & Ors. J.T. 2007 (11) SC 276 wherein it was observed that " IPC does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company".
13. However, in the instant matter as already noted, complainant has leveled specific allegations against the false and deceptive representation made by accused/petitioner being Managing Director of the accused company, therefore petitioner cannot seek any excuse from his vicarious liability. Reliance is placed upon Criminal Appeal No. 34/2015 , Sunil Bharti Mittal Vs. CBI , decided on 9.1.2015, wherein while enumerating the circumstances when Director/person in charge of affairs of the company can also be prosecuted, when the company is accused, it was observed by Hon'ble Apex Court that " No doubt a corporate entity is an artificial person Crl. Revision No. : 111/2017 Punit Beriwala Vs. The State & Anr. 7/8 which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens reas , it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, alongwith the company, if there is sufficient evidence on his active role coupled with criminal intent ".
14. Having discussed as above, finding no infirmity or illegality in the impugned order, instant revision petition is dismissed. TCR alongwith copy of order be sent back to the trial court. Revision file be consigned to record room.
Announced in the Open Court (Savita Rao)
Today on 23.08.2017 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi
Crl. Revision No. : 111/2017
Punit Beriwala Vs. The State & Anr. 8/8