Delhi District Court
Unknown vs Appearances on 5 September, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
PATIALA HOUSE COURTS : NEW DELHI
In Re:
Criminal Revision No. 105/2021
CNR No. DLND010020172021
Rajit Goel & Anr. v. A.J.S. Builder (Pvtl.) Limited
Through Mrs. Madhu Singh
AND
Criminal Revision No. 106/2021
CNR No. DLND010020162021
Nirmal Mathur & Anr. v. A.J.S. Builder (Pvt.) Limited
Through Mrs. Madhu Singh
AND
Criminal Revision No. 107/2021
CNR No. DLND010020152021
Saroj Gupta v. A.J.S. Builder (Pvt.) Limited
Through Mrs. Madhu Singh
AND
Criminal Revision No. 108/2021
CNR No. DLND010020142021
Sonu & Anr. v. A.J.S. Builder (Pvt.) Limited
Through Mrs. Madhu Singh
Date of Institution : 02.03.2021
Date of hearing arguments : 23.08.2022
Date of order : 05.09.2022
Appearances:
Ms. Susham Amabardar, Advocate for the petitionersrevisionists.
Ms. Richa Goel, Advocate for the respondent.
Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 1 of 8
ORDER:
1. This common order shall decide above noted four Criminal Revisions filed under Section 397 of Code of Criminal Procedure, 1973, which are assailing impugned order dated 01.12.2020 passed by Ms. Pragati, the then Ld. MM01, New Delhi District, Patiala House Courts, New Delhi, whereby individuals complaints filed by the revisionist/ complainant seeking criminal prosecution against the respondent under Section 420/406/418 of the Indian Penal Code, 1860 were dismissed. The present Criminal Revisions raise common question of law and facts, and therefore, can be conveniently disposed of altogether.
FACTUAL BACKGROUND:
2. Briefly stated, in Criminal Revision105/2021, a complaint bearing CC No. 52043/2016 titled as 'Rajit Goel & Anr. v. A.J.S. Builders Pvt. Ltd.' was filed on 03.12.2014 levelling the allegations that the revisionist/ complainant booked a plot of area measuring 240 Sq. Yards with the respondent in AJS Township at Gannaur, District Sonepat, Haryana in the year 2006 and filled up registration form dated 05.02.2006 making payment of Rs. 1,75,000/ by cheque, for which receipt dated 07.02.2006 was issued; and that later on when demand was raised by the respondent vide their letter dated 24.10.2006, a sum of Rs. 3,13,400/ was paid through cheque towards advance registration of plot.
3. The grievance of the revisionist/complainant was that despite personal visits and several reminders, neither the plot has been Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 2 of 8 allotted nor the amount paid has been refunded, and therefore, revisionist/complainant sought criminal action against the respondent. The revisionist/complainant in her presummoning evidence examined himself as CW1 and relied upon various documents including the complaint dated 25.07.2012 before the ACP, Economic Offences Wing, which are marked A to F besides examining CW2 an official from Canara Bank, Hauz Khas Branch, New Delhi and Smt. Nipun Vig, an official from HDFC Bank Ltd., Hauz Khas Branch, New Delhi. Suffice to state that the learned MM vide the impugned order dated 01.12.2021 observed that the revisionist/complainant has failed to lead any evidence as to how he has been cheated and the revisionist/ complainant did not take recourse to refund of the amount in terms of Clause (5) of the copy of the registration form dated 06.02.2006 and there was no material that the respondent/accused committed any cheating upon the her.
4. Likewise in Criminal Revision106/2021, the revisionist/ complainant filed a complaint bearing CC No.52045/2016 titled as 'Nirmal Mathur & Anr. v. AJS Builders Pvt. Ltd.' on 03.12.2014 and she claimed that she had booked a plot of land measuring 300 Sq. yards with the respondent in the year 2006 in AJS Township at Gannaur, District Sonepat, Haryana and made an advance payment of Rs. 2,25,000/ through cheque and later on demand being raised by the Respondent, further sum of Rs. 3,85,000/ was paid by cheque but the respondent failed in their commitment to allot the plot of land in question for more than seven years. In presummoning evidence, the revisionist/ Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 3 of 8 complainant examined Archana Kaur, the complainant No.2 as CW1 and Achal Gupta and Rohtash Singh as CW2 and CW3 respectively. Ld. MM after appreciating the presummoning evidence, dismissed the complaint holding that presummoning evidence was failing to establish any act of cheating committed by the proposed accused company and its Directors.
5. Ditto are the facts in Criminal Revision107/2021, where the revisionist/complainant has alleged that a plot of land measuring 300 Sq. Yards at AJS Township at Gannaur, District Sonepat, Haryana was booked and an advance payment of Rs. 2,25,000/ and later further amount of Rs. 3,85,000/ was made by cheques and despite lapse of more than seven years, neither promised plot of land was allotted nor amount has been refunded. The revisionist/complainant Smt. Saroj Gupta examined herself as CW1 in which she relied upon various documents , which are marked A to I including complaint dated 25.07.2012 lodged with ACP, Economic Offences Wing. No other witnesses were examined by her. The complaint was dismissed by the learned MM after holding that the revisionist/complainant was failing to make any averment and / or led evidence that she had sought refund of the amount paid and the proposed accused had refused to refund the same, and therefore, found that no grounds of cheating are made out.
6. In Criminal Revision108/2021, the revisionist/complainant claimed that he had booked a plot measuring area 240 Sq. Yards in the same township and paid Rs. 1,75,000/ plus later a sum of Rs. 3,13,400/ Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 4 of 8 were paid through cheques on 07.02.2016 and 24.10.2016 respectively but neither the plot was delivered to him nor any refund of money money was made. Ld. MM vide the impugned order dated 01.12.2020 on appreciation of presummoning evidence held that there was no prima facie case of cheating or misappropriation of money made out against the respondent.
PROCEEDINGS BEFORE THIS COURT:
7. On filing of the present Criminal Revisions, notices were issued to the respondent in each of the revision petitions and detailed replies are filed inter alia to the effect that all the documents pertaining to this case has been seized by the Investigating Officer of the Economic Offences Wing; and that it was CEO late Sh. Prabhjot Singh, who was looking after the entire business operations including infusion of funds, financial transactions etc., has since succumbed to injuries in a fatal road accident at Coimbatore. It was also state that Smt. Madhu Singh, the Director has been trying to settle the accounts of the investors and buyers and to cut the long story short, it was stated that the ingredients of cheating are not made out, for which reliance has been placed on decisions in Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., on 9th October, 2007 and S.W. Palanitkar & Ors. v. State of Bihar & Anr., AIR 2001 SC 960.
DECISION:
8. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties at the Bar. I have also Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 5 of 8 perused the entire record of the Criminal Revision besides the trial Court record. I have also perused the written submissions filed on behalf of revisionist/complainant as well the respondent.
9. At the outset, the impugned order dated 01.12.2020 passed by the learned MM cannot be sustained in law. It is well settled that when the Magistrate chooses to take cognizance on perusal of the allegations in the complaint, he can straight away issue process, if one is satisfied that there are sufficient grounds for proceeding against the accused. However, it is also laid down that if the Magistrate chooses to issue process, he must comply with the requirement of Section 200 Cr.P.C. and examine and record evidence of the complainant or his/her witness(s).
10. In the instant cases, while the learned MM rightly proceeded to examine the complainant and his/her witnesses, I am afraid the learned MM failed to appreciate that each of the complainant had prima facie made out a case of criminal breach of trust on the part of the respondent within the scope and ambit of Section 406 of the IPC. Each of the complainant led evidence to the effect that based on the promise made by the respondent through its Directors, present or dead, they made initial investment for allotment of plot of land and neither the promised plot of land were allotted nor amount paid towards allotment of plot of land were refunded by the respondent. It prima facie appears that the respondent company and its Directors converted the funds invested by Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 6 of 8 each of the complainant to their own use, and as a result the respondents have caused wrongful loss to each of the complainant and have made unlawful gains out of the whole transaction.
11. In this regard, the Ld. MM while deciding the complaint No. 52043/16, surprisingly placed the onus upon the complainant to seek refund of the amount paid towards booking of the plot of land, failing to appreciate that there was a common sense, natural and truthful version by the complainant that he had visited the office of the respondent several times to seek refund but was given no satisfactory reply. Likewise, in each of the other three complaint cases, the complainants prima facie bring it out in the presummoning evidence that they not only wrote several letters/ reminders to them but also physically went to the office of the respondent but there were no satisfactory responses. At the cost of repetition, prima facie it appears that the funds invested by the complainants were neither accounted for nor the same were refunded and in all human probabilities diverted for some other purposes.
12. In so far as the plea of the learned Counsel for the respondent that Smt. Madhu Sngh has not been actively associated in the functioning of the respondent company, the same is belied from the admission that Smt. Madhu Singh has been negotiating with various buyers and creditors for settlement of their long pending dues, and therefore, there are sufficient grounds to assume that Smt. Madhu Singh, Director of respondent No.1 company has been in control of day to day Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 7 of 8 affairs of the respondent company. Anyways, this is no stage to venture into the defense of the respondent and give a finding on merits of such defense to the case of the complainants.
13. In view of the aforesaid discussion, I find that the impugned order dated 01.12.2020 suffer from patent illegality, impropriety and perversity. Hence, the impugned order dated 01.12.2020 is hereby set aside. There are prima facie grounds to proceed against the respondent/accused company as also Smt. Madhu Singh, Director under Section 406/34 of the IPC. Ld. Trial Court is directed to issue summons to the accused persons and proceed to record precharge evidence in the above noted matters as per law. All the four above noted Criminal Revisions stand disposed off accordingly.
14. The petitionersrevisionists in all the above noted four Criminal Revisions are directed to appear before the Ld. Trial Court on 19.09.2022. The judicial record in each of the four Criminal Revisions alongwith copy of this order be sent back forthwith. Nothing contained herein shall tantamount to an expression of opinion on the merits of the case. A signed copy of this order be placed in each of the four Criminal Revisions. Files of all the revision petitions be consigned to Record Room. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2022.09.06 10:46:09 +0530 Announced in the open Court (DHARMESH SHARMA) th on 5 September, 2022 Principal District & Sessions Judge (NDD) Patiala House Courts, New Delhi Criminal Revision Nos. 105/22; 106/22; 107/22; & 108/22 Page 8 of 8