Delhi District Court
State vs . Rajender Mittal And Others on 9 August, 2018
IN THE COURT OF MS GURMOHINA KAUR
Additional Chief Metropolitan Magistrate, New Delhi
FIR No. : 366/92
PS : Connaught Place
State Vs. Rajender Mittal and others
Case No. 40396/16
a. ID No. of the case 40396/16
b. Date of commission of 29.05.88
offence
c. Date of institution of the 17.11.93
case
d. Name of the complainant Sh. Vinod Kumar Manchanda
e. Name & Address of the 1.Accused Rajender Mittal S/o.
accused persons. Sh. Deen Dayal R/o. 11/19, Raj
Nagar, Ghaziabad, UP.(already
convicted vide order dated
06.04.2018)
2. Accused Gajraj Singh S/o. Sh.
Khajan Singh R/o. SI 44, Shastri
Nagar, Ghaziabad, UP.
3. Accused Dinesh Kumar Dua
S/o. Sh. O.P. Dua, R/o. C/3A/358,
Janak Puri, Delhi.
4. Accused Rakesh Kumar S/o.
Sh. Deep Chand R/o. 3759/2,
Kanhya Nagar, Trinagar, Delhi.
(already convicted vide order
dated 24.02.2018)
5. M/s. Tirupati Builders Pvt. Ltd.
at A-115, Vikas Marg, New Delhi.
f. Offence complained off U/s. 420, 120B IPC
g. Charge framed U/s. 420/34 IPC
h. Plea of accused Pleaded not guilty and claimed trial
State Vs. Rajender Mittal and others Page No. 1/30
i. Arguments heard on 21.07.2018
j. Final order Acquitted U/s. 420/34 IPC
k Date of Judgment 09.08.2018
Brief statement of reasons for such decision :
1.In brief the allegations against the accused persons Gajraj Singh, Dinesh Kumar Dua and M/s Tirupati Builders Pvt. Ltd. through accused Gajraj and other co- accused persons, who have already been convicted that M/s Tirupati Associates through M/s Gaurav Investments misrepresented the complainant Vinod Manchanda and other persons that they had a freehold near DLF Ankur Vihar and near Loni border and all the requisite permissions pertaining to the land use and NOC had been obtained from various government agencies and approval had been given for the residential colony in the name of Tirupati Township and it had a clear title of land and being deceived by the misrepresentations of the accused persons, the complainant and other persons invested in the township, and it was later found that there was no NOC and the Township had not got any approval by the government. It is further alleged in the charge-sheet that when the complainant and other persons who had invested in the scheme asked for the refund, no amount was refunded back to them.
2. On completion of investigation, charge-sheet was filed against the accused persons on 17.11.1993.
State Vs. Rajender Mittal and others Page No. 2/30Cognizance of the offence was taken and accused persons were summoned.
3. Copies of the charge-sheet were supplied to the accused persons in compliance of Section 207 CrPC. Accused Tirupati Builders were represented through accused Gajraj Singh. Charges under Section 420/34 IPC were framed against the accused persons M/s Tirupati Builders, Gajraj Singh and Dinesh Dua alongwith other co-accused persons, who had already been convicted on 16.05.1996 to which they pleaded not guilty and claimed trial. 4 During course of trial, accused Rajender Mittal, who is PO and was later produced before the Court on 09.03.2018. Accused Rakesh Kumar pleaded guilty and was convicted vide order dated 24.02.2018. Accused Rajender Mittal pleaded guilty and was convicted vide order date 06.04.2018.
5. During the stage of prosecution evidence, the prosecution examined 24 witnesses in support of its case.
6. PW-1 Sh.S.K Chatterji deposed that in April 1989, he saw an advertisement in a 'newspaper' most probably, the same was Hindustan Times and that it was mentioned in the advertisement that residential plots were being offered for sale at Baghpat Road, near Loni (UP) and it was also mentioned in the advertisement that M/s Gaurav Investments were the selling agent of the company. PW-1 State Vs. Rajender Mittal and others Page No. 3/30 further deposed that he had visited the office of M/s Gaurav Investment and had made inquiries from them regarding Tirupati Township. He further stated that he had even gone to the Head Office of M/s Tirupati Associates at Shakarpur. He identified co-accused Rajender Mittal (already convicted) and accused Dinesh Dua, who had met at the office of M/s Gaurav Investments. He further stated that he had made inquiry regarding NOC from DDA from the head office of the company and the accused persons Rajender Mittal and Dinesh Dua had told him they had NOC. He added that on being satisfied after the inquiry from the head office, he had gone to the office of M/s. Gaurav Investments and booked a plot. He added that cheques with respect to payment of plot were in the name of M/s Tirupati Associates.
7. During his cross-examination, by Ld. Counsel for accused Dinesh Kumar Dua, he stated that all the payments were made to company M/s Tirupati Associates and all receipts Ex.PW1/A to Ex.PW1/D were issued by the said company and that all the letters for making payment of installments.
8. He further admitted that only after being satisfied him from the persons whom he had met in the head office of the company M/s Tirupati Associates, he booked the flat. He further confirmed that he had made the inquiry regarding NOC only from the head office of the company and State Vs. Rajender Mittal and others Page No. 4/30 not from accused D.K. Dua. During his cross-examination by Ld. Counsel for accused Rajender Mittal, the witness PW-1 stated that he had invested the money only upon his satisfaction.
9. PW-2 Harvinder Pal Singh, who deposed that on 02.04.1988, he had seen and advertisement in Hindustan Times Newspaper regarding residential plot at Delhi Baghpat Road. He stated that in the advertisement bore the address of Gaurav Investments and M/s Tirupati Associates and that he had gone to the office of Gaurav Investment where he met accused Dinesh Kumar Dua, who showed him some maps regarding position of plots and brochures indicating the rates. He stated that he had inquired about NOC and was informed that there is NOC but the originals were in the head office. He added that he visited the head office where he met accused Rajender Mittal who showed him documents stating that the same were NOC. He further stated that he had visited the plot alongwith an employee of Gaurav Investments, where a board of Tirupati Township was erected and thereafter he booked the plot and made payments. He stated that on visiting the site the third time, other persons present in the car informed him that there was some hanky-panky in the project and probably the project had been sold to the third party. During his cross-examination by Ld. Counsel for accused Dinesh Dua, he admitted that M/s Gaurav State Vs. Rajender Mittal and others Page No. 5/30 Investment were working as the selling agent of M/s Tirupati Associates and also admitted that the payments made by him were made to M/s Tirupati Associates and further agreed that the agreement with respect to the plot was between him and M/s Tirupati Associates. He admitted that he had not mentioned in his statement that he visited the office of M/s Tirupati Associates or the site in the car of M/s Gaurav Investment. He admitted that he had verified the documents from the Head Office and that after verifying the documents from the Head Office and being satisfied himself, he made up his mind to book the plot.
10. PW-3 Rajiv Ganju deposed that he had noticed an advertisement for buying plot in installments at Delhi- Ghaziabad Border. He added that he had paid five installments at the rate of Rs.1150/- per month. He further stated that he was told by a lady at the Connaught Place office that not to make further payments till he gets a further receipt. He resiled from his statement u/s 161 CrPC and he was cross-examined by the Ld. APP for the State. He admitted that in the office of the company, he had met Rakesh, Raj Kumar and Rajender Mittal who told him that they were the representatives of the company and assured him that it was a good plot. He further stated during his cross- examination that when the association of the plot holders of the Tirupati Township came into existence, only then he State Vs. Rajender Mittal and others Page No. 6/30 came to know that Tirupati Towship was not having NOC. He was not able to identify any of the accused persons. During his cross-examination by Ld. Counsel for accused Rajender Mittal, the PW-3 admitted that Tirupati Associates was a proprietorship concern. During his cross-examination by Ld. Counsel for accused Dinesh Kumar Dua, the witness stated that all payments were made to M/s Tirupati Associates and all receipts were issued by M/s Tirupati Associates. He further admitted that M/s Gaurav Investment was a selling agent of M/s Tirupati Associates. He also admitted that he had never seen accused Dinesh Kumar Dua.
11. PW-4 Vinod Kumar Manchanda deposed that he had received a phone call from the office of accused Dinesh Kumar Dua namely M/s. Gaurav Investment that they were having a land and a NOC from GDA. He stated that when he visited the office of M/s Gaurav Investment, he was introduced to accused Rajender Mittal, Rakesh Kumar and Sardarji and they handed over to him one newspaper cutting where it was mentioned that they had NOC and land use. He also stated that the accused had showed him NOC in original and he booked a plot and deposited around Rs.12,000/- and the cheques in respect to the same were given in the name of Tirupati Associates while cash was given to Gaurav Investment. He further stated that when he visited the site, there was a big board on behalf of Tirupati Associates. He State Vs. Rajender Mittal and others Page No. 7/30 also mentioned that he had also visited the office of GDA at Ghaziabad and it was confirmed to him that Tirupati Associates was having NOC and land is all right and can be bought. He stated that his report to police is Ex.PW4/B. He identified accused Dinesh Kumar Dua and Rajender Mittal. He further stated that he had not seen accused Gajraj Singh at the spot. During his cross-examination, he placed on record the original 44 receipts of payments Ex.PW4/1 to Ex.PW4/44. He further admitted during his cross-examination that he had visited the office of GDA or that he had met any dealing assistant or clerk, who told him that Tiripati Associates was having NOC. He also stated that he used to visit the office of GDA regularly. He also stated that the accused company M/S Tiripati Associates was also operating from the same building i.e. Prakash Deep Building. He added that accused Dinesh Kumar Dua introduced himself as the owner of the proposed colony. He admitted that the clerk told him in GDA office that M/s Tirupati Associates had NOC from GDA for the said project and that before booking, he had seen all the relevant documents/NOC at the office of M/s Tirupati Associates. He added that he had gone to the site in a bus arranged by M/s Tirupati Associates. He admitted during his cross-examination by Ld. Counsel for accused Rakesh (already convicted) that he had not seen any record of co-accused Rakesh and accused Dinesh Kumar Dua State Vs. Rajender Mittal and others Page No. 8/30 regarding their partnership in the company.
12. PW-5 R.N. Singh who was an investor. He deposed on the lines similar to that of other witnesses. He added that he had booked a plot through M/s Gaurav Investment and at the time of booking the plot, he made the payment to M/s Gaurav Investment, who issued him a receipt and later on a regular receipt was issued by M/s. Tirupati Associates to this office. He also stated that he kept making the further payment to M/s. Gaurav Investment and later on he was informed that all accounts of M/s. Tirupati Associates had been seized by Income Tax Department. He stated that when he alongwith his wife visited the site in August 1991, he found that there was no hoarding displaying the name of Tirupati Township there and the workers working there informed him that the land had already been sold by M/s. Tirupati Associates. He stated that his agreement to sell was Ex.PW5/A. During his cross-examination, by Ld. Defence Counsel for accused Dinesh Kumar Dua, he admitted that he had booked the plot on the basis of advertisement and the contents published in newspapers by M/s Tirupati Associates and that he had received the receipts of about Rs.50,400/- by M/s Tirupati Associates. He also admitted that M/s Gaurav Investment was appointed as an agent for booking of the plot by M/s. Tirupati Associates. PW6 Chander Bhan Gupta and PW7 Ravi Kant Gupta deposed that they had compromised State Vs. Rajender Mittal and others Page No. 9/30 the case with the accused persons and they did not wish to proved further with the case.
13. PW8 Nirmal Khanna who deposed that in 1989 she had book two plots with accused persons Dinesh Kumar Dua and Rakesh. She stated that she had made a payment of Rs.56,700/- through cheque in the office of accused Rakesh. Thereafter, PW8 in the statement before the Court on 22.11.2014 stated that she had settled the matter with accused persons and received the settlement amount of Rs.56,700/- in the Court from the accused persons.
14. PW-9 Amita Raha deposed that she had booked a plot No. A55 of 20 sq. yards pursuant to an advertisement in the office of Tirupati Township. She stated that perhaps accused Rajesh Mittal and Rakesh Mittal were the proprietors of Tirupati Township and she further stated that she did not remember whether accused Dinesh Kumar Dua was present at the time when she made the payment. During her cross-examination by Ld. Defence counsel for accused Rajender Mittal, she stated that Tirupati Township was a proprietorship firm. During his cross-examination by Ld. Defence Counsel for accused Dinesh Kumar Dua, she stated that the advertisement in the English newspaper was from M/s. Tirupati Township and the advertisement had given from the office of M/s. Tirupati Township. She also stated that the cheques were account payee cheques and M/s. Tirupati State Vs. Rajender Mittal and others Page No. 10/30 Township had sent the receipts in token of the cheques amount. She stated that she was not aware of any other firm or company except M/s. Tirupati Township. She further stated that she was not aware whether accused Dinesh Dua was a director, partner or proprietor of M/s. Tirupati Township. Further, during her cross-examination by Ld. Counsel for accused Rakesh Kumar, she admitted that whatever payment regarding the said plot was made was done in the office of accused Dinesh Kumar Dua. She also stated that she had issued cheques in the name of M/s. Tirupati Associates.
15. PW-10 SI Jaiveer deposed that during investigation of the case, he seized documents from the office of M/s. Tirupati Associates vide seizure memo Ex.PW10/A.
16. PW-11 S.K. Gupta deposed that he was one of the victims but had compromised the matter with the accused persons.
17. PW-12 RSD Bhandari deposed that he had seen an advertisement in the newspaper 'Hindustan Times' dated 29.05.88 regarding sale of plot and he alongwith his wife went to the office at Connaught Place where he met accused Dinesh Kumar Dua. He stated that he had made a payment by cheque and visited the site where Bhumi Poojan was going on. He stated that he continued making payments and after one year when he did not receive any notice from M/s. Tirupati Associates, he visited their site and found that State Vs. Rajender Mittal and others Page No. 11/30 there was no land owned by M/s. Tirupati Associates. During his cross-examination by Ld. Counsel for accused Rajinder Mittal, he stated that he did not tell the police that there was any condition regarding a commission of 5% if the plot wsas purchased on the same date. He stated that he did not make any verification as to what was the constitution of M/s. Tirupati Associates. During his cross-examination by Ld. Counsel for accused Dinesh Kumar Dua, he stated that he did not state before the police that when he alongwith his wife had gone to their office at Connaught Place, accused Dinesh Kumar Dua was present there and accused Dinesh Kumar referred them to Sukhvinder Kaur for counseling/booking. He also stated that all the payments were made by him through Account Payee cheques in favour of M/s. Tirupati Associates. He also stated that the agreement/contact in regard to the plot was executed between him and M/s. Tirupati Associates and he further admitted that M/s. Gaurav Investment was the selling agent duly appointed by M/s. Tirupati Associates. During his further cross-examination by Ld. Counsel for accused Rakesh he stated that he did not know the status of Raj Kumar in M/s. Tirupati Associates and he had deposed that accused Rakesh Kumar was a director as he had signed Ex.PW11/C. He admitted that the Provisional Receipt Ex.PW11/A was issued to him on 29.05.1988 from Connaught Place which was signed by State Vs. Rajender Mittal and others Page No. 12/30 Sukhvinder Kaur. He further stated that the receipt Ex.PW11/A was issued to him prior to the execution of the agreement at the time of booking.
18. PW-12 Ram Preet deposed that in the year 1988, he saw an advertisement of M/s. Tirupati Associates in a newspaper and he reached the address at Connaught Place where he met accused Dinesh Kumar Dua. He also stated that on 01.03.1988, he deposited Rs.1,000/- in the office of accused Dinesh Kumar Dua and booked the plot. He added till date he was not alloted the land. He identified accused Dinesh Kumar Dua in the Court. He was cross- examined by Ld. APP for the State as he resiled from his statement U/s. 161 CrPC. He admitted that the advertisement in the newspaper was in the name of M/s. Tirupati Associates. He stated that if he could not say if any document pertaining to the aforesaid land was shown to him by accused Dinesh Kumar Dua. He also admitted that he had visited the office of Gaurav Investment and M/s. Tirupati Associates from where he did not get any satisfactory reply. During his cross-examination by Ld. Counsel for accused Dinesh Kumar Dua, he admitted that receipts Mark A-1 were issued by M/s. Tirupati Associates and he also admitted that an agreement was also executed between him and M/s. Tirupati Associates.
19. Thereafter, on 27.10.2014, PW-12 Ram Preet State Vs. Rajender Mittal and others Page No. 13/30 stated before the Court that he had settled the matter with the accused persons and had received the settlement amount in the Court.
20. PW-13 B.B. Khanna deposed on lines similar to that of other witnesses/investors but added that at the time of booking, he was told that the plot had been approved by GDA and the land been purchased by M/s. Tirupati Associates. He added that later on he came to know that neither the land was approved by GDA nor did they have any NOC in their favour. During his cross-examination by Ld. Counsel for accused Rajinder Mittal, he stated that he could not say if M/s. Tirupati Associates was a proprietorship firm, partnership firm or Company. He added that he did not make any inquiry regarding M/s. Tirupati Township Colony from GDA or any other Government Agency. He also stated that even the agreement was not signed or written in his presence. He added that he had met accused Rajinder Mittal only once and did not know if he had signed any document or receipt. During his cross-examination, he stated that he did not inquire who was the Director of the Company.
21. PW-14 Dev Sahai deposed that he alongwith PW Rampreet and Inder Raj had gone to the office at Connaught Place where he deposited Rs.1000/- and Rs.10,800/- by cheque. He stated that later on they came to know that there was no allotment of land. During his cross-
State Vs. Rajender Mittal and others Page No. 14/30examination by Ld. Counsel for accused Dinesh Kumar Dua, he admitted that all the receipts, Ex.PW14/A2 to Ex.PW14/A5 are of M/s. Tirupati Associates and further admitted that the agreement for the plot was with M/s. Tirupati Associates. He also admitted that as per advertisement in the newspaper M/s. Gaurav Investment was agent of M/s. Tirupati Associates. He admitted that all payment made by him for the plot was to M/s. Tirupati Associates and no money was paid to M/s. Gaurav Investment for any plot.
22. This witness also settled the matter in the Court with the accused persons vide his statement dated 22.11.2014.
23. PW-15 Tej Pal Singh deposed that he had rented his premises i.e A-115 Vikas Marg, 1st Floor to accused Rajinder Mittal and Bal Kishan in 1985. He also stated after 1989, accused Rajinder Mittal had transferred the tenancy to accused Rakesh.
24. PW-16 ASI Ranjeet Kumar deposed that he was handed over the rukka by SI Rajender Bhatia for registration of FIR and after getting the case registered, he returned to Crime Branch Office alongwith copy of FIR and original rukka and handed over the same over to SI Rajender Bhatia.
25. PW-17 Sh. R.K. Saini deposed that he had appeared on behalf of ROC, Delhi and had brought the State Vs. Rajender Mittal and others Page No. 15/30 Certificate of Incorporation, Form 32, Articles of Registration of Company, MOA, the same were Ex.PW17/A. He stated that he could not produce the remaining record as the same was destroyed after expiry of statutory period.
26. PW-18 Ashok Kumar, Clerk, GDA, Ghaziabad deposed that the relevant entry regarding the dispatch of letter at serial No. 103 dated 31.05.1991 and the copy of the same was Ex.PW18/A. He identified the signatures of Sh. Inderveer Singh Yadav, the then OSD on letter No. 103 and the letter was Mark A.
27. PW-19 Inspector Rajinder Bhatia who deposed that he was the IO in the present case. He stated that during investigation, he seized relevant documents vide seizure memo Ex.PW19/B. He stated that he had obtained record through HC Durgesh regarding state of compensation awarded by GDA on the land on which M/s. Tirupati Township was proposed to be promoted of this witness could not be cross-examined by Ld. Defence Counsel for accused persons. On 26.05.2018, accused Gajraj Singh in his statement before the Court submitted that he does not wish to examine any other prosecution witnesses previously examined by the prosecution on behalf of the accused company.
28. PW-20 Raj Kumar who deposed that he had booked 100 square yards plot with M/s. Tirupati Associates at State Vs. Rajender Mittal and others Page No. 16/30 their office at Connaught Pace. Till date, he had neither received the money deposited on the plot promised and he came to know that the company did not own the land out of which the plot was given to him. He stated later on on 27.10.2014 that he had compromised the matter with the accused persons and had received the settlement amount.
29. PW-21 Bishwanath Rana deposed that on 14.05.1988, he had seen an advertisement in Hindustan Times and he alongwith his wife had gone to the office of M/s. Tirupati Associates at Vikas Marg. He stated that he had met accused Rajender Mittal and Rakesh at the office and on the same day he paid Rs.2000/- in cash for two plots. He added that till date he had not received the amount deposited with the accused persons or delivery of the possession of the plots booked with the accused persons. He stated that he did not know the reason for non-fulfillment of promise. He was cross-examined by Ld. Counsel for accused Rakesh where he denied all suggestions put fourth to him.
30. PW-22 Avtar Sharma, Lekhpal, Tehsil Ghaziabad, UP who deposed that there was no land record in the name of either M/s. Tirupati Associates or M/s. Tirupath Builders or Rakesh Kumar.
31. PW-23 Manorama Devi Rana deposed that in the year 1988, she and her husband booked one plot No. D- 101, Tirupati Township vide agreement dated 27.05.1988 State Vs. Rajender Mittal and others Page No. 17/30 Ex.PW23/A (OSR). He stated that in the year 1991, he went to the office of M/s. Tirupati Associates in order to know about the handing over the possession of the plot as only 2-3 installments were left but to his surprise he came to know that the other party had left the office of M/s. Tirupati Associates at Shakarpur. During her cross-examination, she stated that the entire payment was made by cheque and that she stated that she had got the plot booked through accused Rakesh Kumar.
32. PW-24 ACP Ashok Singh deposed that on 15.07.1993, the investigation of the case was marked to him and prepared the charge-sheet and filed the same before the Court.
33. The accused persons admitted the FIR as Ex.21 and statement of entires as Ex.22. Thereafter, prosecution evidence was closed.
34. During the recording of statement U/s. 313 CrPC, the accused persons denied all the incriminating being put to them. Accused Gajraj Singh in his statement U/s. 313 CrPC stated accused persons Rakesh Kumar and Rajinder Mittal misused his name and document to commit cheating and made him a Director without his knowledge. He stated that he was made a namesake Director of M/s. Tirupati Builders. He also stated that he was working as an employee in the office of M/s. Navyug Property Builders which was State Vs. Rajender Mittal and others Page No. 18/30 owned by accused Rajinder Mittal. Similar statement was made by accused Gajraj Singh on behalf of M/s. Tirupati Builders Pvt. Ltd. U/s. 313 CrPC.
35. Accused Dinesh Kumar Dua in his statement U/s. 313 CrPC stated that he was just a Commission Agent and was not aware of the promoter's company. He also stated that since 1985, he had been working as a Real Estate Commission Agent for various builders namely DLF, Ansal, Unitech etc. He also stated that the promoters used to advertise on his behalf as selling agents and he used to take clients from his office i.e M/s. Gaurav Investment of which he was the proprietor to the office of M/s. Tirupati Associates where accused persons Rajinder Mittal and Rakesh used to show the relevant documents and on their convincing, the clients used to book plots. He also stated that the cheques and cash were paid in the name of M/s. Tirupati Associates. He stated that he did not receive a single rupee either as commission or otherwise from clients and no document carried his signature either on receipts or on agreement to sell. He stated that he had been falsely implicated.
36. At the stage of defence evidence, accused Dinesh Kumar Dua examined himself as DW-1, on moving an application U/s. 315 CrPC which was allowed by the Court.
37. Accused Dinesh Kumar Dua as DW-1 stated that he was a Real State Agent since 1985 and in the year State Vs. Rajender Mittal and others Page No. 19/30 1987, accused Rajinder Mittal and his wife who were directors of M/s. Tirupati Builders and M/s. Tirupati Associates approached him to work as an Agent for a project at Tirupati Vihar. His appointment letter is Ex.DW1/A. He further stated that the project was advertised in all leading newspapers by M/s. Tirupati Associates stating about the project and the name of his firm M/s. Gaurav Investment as agent with the address of his office and prospective buyers started approaching his office who would them be taken to the office of M/s. Tirupati Associates where all the documents pertaining to the project were either shown by staff members or directors of the firm. He stated that the provisional receipt was issued by their office and be submitted to the office of M/s. Tirupati Associates and thereafter, a pukka receipt would be issued in the name of prospective buyers and promoters/Directors of M/s. Tirupati Associates. He further stated in the year 1992, he came to know that project work had stopped and people were asking for refund. He stated that he did not receive any commission or amount from buyers and not even a single document contained his signature either on receipt of payment and it was solely the responsibility of the promoters to procure the land and deliver the plots. During his cross-examination by Ld. APP for the state, he admitted that when he had accepted the appointment as a sale selling agent, he had visited the site of State Vs. Rajender Mittal and others Page No. 20/30 the project and that since the project was already in the market for more than one year before he became their agent, he believed what he was told and provided by the promoters. He denied the suggestion that he was aware about the fact that the builders were not having requisite permission and that he was working hand in glove with the builders.
38. Accused Gajraj Singh also examined himself as DW-2, after his application U/s. 315 CrPC was allowed by the Court. He deposed that on 01.05.1985, he was appointed as a Driver/Helper at M/s. Navyug Property Dealer and Financiers which was the firm of accused Rajinder Mittal. He placed on record his appointment letter as Ex.DW2/A and stated that accused Rajinder Mittal had fraudulently taken his signatures on a blank paper without his knowledge. He stated that he came to know that he was a Director of M/s. Tirupati Builders when the case was registered. He added that he had never met any of the buyers/clients of M/s. Tirupati Builders nor received any money from any of them. He also stated that he had been falsely implicated. During his cross-examination by Ld. APP for the State, he admitted that though he was not made a Director with his consent, still he had been representing the accused company. He denied that he was totally aware about the cheating done by the promoters of company.
39. During the stage of final arguments, arguments State Vs. Rajender Mittal and others Page No. 21/30 were heard on behalf of both the sides. Record perused. Considered.
40. The accused persons Dinesh Kumar Dua and accused Gajraj Singh alongwith other co-accused persons have been charged for the offences U/s. 420/34 IPC. The essential ingredients of the offence of cheating as provided U/s. 420 IPC are :
(I) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or ommission;
(ii) fraudulent or dishonest intention of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and
(iii) such act or ommission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
41. Further, in order to constitute an offence U/s. 420 IPC, the accused persons are charged for the offence of cheating and criminal conspiracy. The brief law as laid down by Hon'ble S.C. & Hon'ble H.C in respect of above offences is as under: The essential ingredients of the offence of "cheating' are as follows: (i) deception of a person either by State Vs. Rajender Mittal and others Page No. 22/30 making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequences of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). (In Md. Ibrahim v. State if Bihar, : 2009 (8) S.C.C.
751). The penal Code defines 'fraudulently', an adjective form of the word 'fraud', in section 25, as follows:
"A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". The term "fraudulently" is mostly used with the term "dishonestly" which is defined in section 24 as follows : "Whoever does anything with the intention of causing wrongly gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not State Vs. Rajender Mittal and others Page No. 23/30 by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. In Devender Kumar Single V. Baldev Krishan Single, (SC) 2004(2) J.T. 539 : 204 Cri.L.J 1774, it has been observed that, "Section 420 deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines "cheating". The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) intentionally inducing that person 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 body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of State Vs. Rajender Mittal and others Page No. 24/30 the offence. The essential ingredients to attract Section 420 are : (i) cheating, (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. (Also in Bashirbhai Mohamedbhai v. State of Bombay (AIR 1960 SC 979)." It was also observed in Shivanarayan Kabra v. State of Madras (AIR 1967 SC 986) that it is necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn. In another judgment G.V. Rao v. L.H.V. Prasad and others, 2000 (2) RCR (Crl.) 296, the Hon'ble Supreme Court of India held as follows :-
"As mentioned above, Section 415 has two parts. Wile in the first part, the person must "dishonestly" or "fraudulently"
induce the complainant to deliver any property ; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, State Vs. Rajender Mittal and others Page No. 25/30 inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575, a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR 1954 SC 724, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered."
42. In view of the testimonies of the investors/victims, it is seen that the investors had come to know about the plot through newspaper advertisement. The witnesses also confirmed that they had even confirmed regarding NOC from GDA themselves. It has also admittedly come on record that accused Dinesh Kumar Dua who was the proprietor of M/s. Gaurav Investment was a selling agent only. It has further come on record that all payments made by investors were made by cheques and the receipts for the same were issued by M/s. Tirupati Associates and even the agreement to sell were executed between the buyers and M/s. Tirupati Associates. No document or any agreement has come on record which suggests that accused Dinesh Kumar received any commission or consideration in turn made or State Vs. Rajender Mittal and others Page No. 26/30 received wrongful gain for himself. In fact, none of the receipts which have been issued by M/s. Tirupati Associates bear his signature. Accused Dinesh Kumar Dua has as DW1 stated that he was a Real Estate Agent and was appointed by accused Rajender Mittal as the Selling Agent. Accused Dinesh Kumar Dua placed on record his appointment letter Ex.DW1/A. Even the material public witness who have been examined by the prosecution have confirmed that they were also aware that accused Dinesh Kumar Dua was only a Selling Agent and had assisted the other co-accused persons as a Selling Agent of M/s. Tirupati Associates. None of the witnesses examined have even deposed that accused Dinesh Kumar Dua was acting on behalf of the accused company M/s. Tirupati Builders. No evidence has been led to this effect to show that accused Dinesh Kumar Dua shared a common intention alongwith other accused persons. In the present case, accused Dinesh Kumar Dua was acting as a Selling Agent only through his company M/s. Gaurav Investment which is a separate entity from accused company M/s. Tirupati Builders or from Tirupati Associates.
43. Accordingly, the essential ingredients of the offence of cheating could not be proved against accused Dinesh Kumar Dua in the present case.
44. At this stage, it also requires mentioning that the charge-sheet in the present case has been filed against State Vs. Rajender Mittal and others Page No. 27/30 accused company M/s. Tirupati Builders and even the charge has been framed against M/s. Tirupati Builders. However, the entire evidence that has been produced before the Court reflects that all the witnesses examined by the prosecution in support of its case have averred that they had booked a plot through M/s. Tirupati Associates and the receipts for the same were also issued by M/s. Tirupati Associates.
45. No evidence has been led during the entire trial to show that M/s. Tirupati Builders Pvt. Ltd. and M/s. Tirupati Associates were one and the same entity. Even the ROC produced on record by PW-17 R.K. Saini pertains to M/s. Tirupati Builders (Delhi) Pvt. Ltd. and not with respect to M/s. Tirupati Associates which appears to be the company who had booked the plots on giving false assurances that it had NOC and other clear title to the land. There is not even an iota of evidence against accused company M/s. Tirupati Builders that has been produced during the entire trial.
46. The accused company M/s. Tirupati Builders is represented by accused Gajraj Singh in the present case. However, it is pertinent to mention that none of the prosecution witnesses examined have deposed has even mentioned that they had seen accused Gajraj either at the office of the accused company or at M/s. Gaurav Investment or at the site. None of the witnesses have even deposed that State Vs. Rajender Mittal and others Page No. 28/30 the accused Gajraj Singh was even involved in the project or had dealt with any of the clients or investors with respect to the land. Furthermore, even the ROC record placed on record as already discussed above does not reflect Gajraj Singh as Director.
47. No specific role of accused Gajraj Singh has been proved in the entire case of the prosecution and neither has it been proved on record that he played an active important role in the day to day functioning of the company. No evidence has been led to even suggest that accused Gajraj Singh had made unlawful gain for himself or had even misappropriated any amount to his advantage. As DW-2 accused Gajraj Singh has taken the defence that accused Rajender Mittal took his signatures on a blank document. The defence taken by accused Gajraj Singh is corroborated by the fact that it has admittedly not come on record that accused Gajraj Singh was involved in the present case in any manner or had even participated as an agent or Director or employee of accused company in other to cheat the victims.
48. Accordingly, in view of the aforesaid facts and circumstances, the essential ingredients of the offence of cheating qua accused company M/s. Tirupati Builders and Gajraj Singh have not been proved beyond reasonable doubt in the present case.
49. Therefore, accused company M/s. Tirupati State Vs. Rajender Mittal and others Page No. 29/30 Builders and accused Gajraj Singh are accordingly acquitted of all charges.
50. In light of the aforesaid findings, accused company M/s. Tirupati Builders and accused persons Dinesh Kumar Dua and Gajraj Singh are hereby acquitted from all charges.
51. Ordered accordingly.
Announced in the open
Court on 09.08.2018 (Gurmohina Kaur)
ACMM-01/New Delhi District
Patiala House Courts,
New Delhi
Certified that this judgment contains 30 pages and each page is signed by me.
(Gurmohina Kaur) ACMM-01/New Delhi District Patiala House Courts, New Delhi Code- DL-0427 State Vs. Rajender Mittal and others Page No. 30/30