Delhi District Court
M/S Prabhatam Ventures (P) Ltd vs State on 14 May, 2015
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
M. No.02/2015
M/s Prabhatam Ventures (P) Ltd.,
38, Rani Jhansi Road,
Karol Bagh, Jhandewalan, New Delhi. .....Petitioner.
V E R S U S
1. State
Through Prosecution Branch
Tis Hazari Courts, Delhi.
2. M/s DKG Estate Pvt. Ltd.
Having its Registered Office
at: Aerens House, G56,
Green Park Main, New Delhi.
3. Sh. Atul Gupta (Director),
R/o 11A, Harcharan Bagh,
Vasant Kunj Road,
Near Andheria Morh,
Mehrauli, New Delhi30.
4. Sh. Savita Kumari Gupta (Director),
R/o H65, South ExtensionI,
New Delhi49.
5. Sh. Devender Kumar Gupta (Director),
R/o G56, Green Park, New Delhi16.
6. Ms. Vijay Gupta (Director),
R/o G56, Green Park, New Delhi16. .....Respondents.
Arguments heard on : 18.04.2015.
Date of judgment : 14.05.2015.
M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.1 of pages 12
:J U D G M E N T:
1. This is a revision petition filed on behalf of petitioner M/s Prabhatam Ventures (P) Ltd. thereby impugning the order dated 30.01.2013 passed by the then Ld. A.C.M.M (West), Tis Hazari Courts, Delhi whereby the application of petitioner/complainant filed under section 156(3) Cr.P.C for issuance of directions U/s 156(3) Cr.P.C for registration of FIR against the accused persons/respondents no.2 to 5 herein was dismissed, which is being assailed by the petitioner on various grounds as mentioned in the petition itself.
2. It is pertinent to mention here that earlier the instant petition was preferred before my Ld. Predecessor and the same was registered vide CR No.77/2013 and vide order dated 04.06.2013 passed by my Ld. Predecessor, the petition was allowed and SHO PS Pahar Ganj was directed to register an FIR and investigate the matter as per law. In pursuance to the said order of my Ld. Predecessor, an FIR bearing No. 195/2013 U/s 420/120B IPC was registered in the Police Station Pahar Ganj. Feeling aggrieved by the said order dated 04.06.2013, accused persons/respondents no.3 to 6 herein approached the Hon'ble High Court by filing petitions U/s 482 Cr.P.C for setting aside the said order and vide order dated 29.01.2015 passed in Crl. M.C No.5281/2013 and 5285/2013, Hon'ble High Court while quashing the order dated 04.06.2013 directed this court to afford an opportunity of hearing to the petitioners (respondents no.3 to 6 herein) and thereafter, decide the revision petition afresh on merits expeditiously i.e. in any case on or before 15.05.2015. It M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.2 of pages 12 was also directed that the proceeding arising out of the FIR in question be kept in abeyance till 15.05.2015 and in the event of petitioners (respondents no.3 to 6 herein) succeeding in the revision petition, the FIR, so registered, in pursuance of impugned order shall stand quashed.
3. After receiving of aforesaid order from the Hon'ble High Court of Delhi, original file of case bearing CR No.77/2013 was summoned from the Record Room and the same was restored vide a fresh number i.e. M. No.02/2015 and then arguments from the side of both the parties were heard in details.
4. Briefly stated the facts, as per complainant (petitioner herein), are that in November, 2005, the complainant was approached by the accused persons at her residence at Paschim Vihar as well as in her office. Accused persons are dealing in real estate business and represented that they are directors of M/s DKG Estate Pvt. Ltd. The accused persons induced and persuaded the complainant to invest in their upcoming project being developed by them, representing that complainant would have choice to buy other flat/office in any of their subsequent projects. They also represented that they had due sanction letter/permission from MCD. Believing upon the representation of accused persons, complainant company paid Rs.56,25,000/ in three equal installments through three cheques dated 21.11.2005, 24.11.2005 and 16.12.2005. These cheques were duly encashed. However, against the promises made, complainant was not offered any office/flat not the amount was returned. The accused persons flatly refused to return the amount. Therefore, the complainant had to file the complaint before Ld. Trial Court for registration of FIR M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.3 of pages 12 against the accused persons. After hearing the arguments on the application U/s 156(3) Cr.P.C by Ld. Trial Court, the prayer of the complainant (petitioner herein) for issuance of direction to SHO for registration of FIR against accused persons/respondents no.2 to 6 herein for the offence Under Sec.420/464/465/466/467/ 468/471/34 IPC was declined and the matter was fixed for leading of complainant's pre summoning evidence.
5. I have heard Sh. Vijay Aggarwal, Ld. Counsel for the revisionist. I have also heard Ms. Rebecca John, Ld. Senior Counsel alongwith Sh. Bhavook Chauhan & Sh. Harsh Bora, Ld. Counsels for the respondents no.2 to 6 and also the submissions of Ld. Addl. PP for the State. I have also given my prolonged consideration to the controversy in hand. I have also perused the entire material placed before me.
6. It is submitted by Ld. Counsel for complainant/petitioner that the accused persons/(respondents no.2 to 6) have cheated the complainant and induced to pay Rs.56,25,000/ for allotment of office/flat in their project. The accused persons also created false sanction letter, which was shown to the complainant and therefore, police investigation is required to find out the author of forgery. Further despite of lodging complaint to DCP, EOW dated 04.04.2012, no action was taken by the police against the accused persons. Ld. Trial Court has erred in holding that the complaint has been filed by the complainant after the gap of seven years, therefore, no police investigation is required. It has not been appreciated that the accused persons induced and persuaded the petitioner to invest the money in prelaunching project, which was yet to M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.4 of pages 12 be started and the same was not even started at the time of making representation by the accused persons to the petitioner. It has also not been appreciated that the prelaunching projects takes years to be executed and petitioner was waiting for the development in the project, which was assured by the accused persons. Further there is no bar of limitation in criminal law to make the complaint. Ld. Trial Court has also erred in holding that investigation of bank accounts is not required and has also failed to appreciate that police investigation is required to find out as to whether the money paid by the complainant to the accused persons has been utilized and benefited by the accused persons. In his submissions, Ld. Counsel for petitioner has placed reliance upon the following judgments:
(i). Lalita Kumar Vs. Govt. of U.P. & Ors. order dated14.07.2008 (WP) (Crl.) 68/2008,
(ii). S.P. Sharma Vs. NCT of Delhi & Ors. 1999 (1) JCC (Delhi) 897,
(iii). Priya Gupta Vs. State 2007 (2) JCC 1330,
(iv). Daulat Ram Vs. State 1995 Cr.L.J. 2158,
(v). Harnam Singh Vs. Everest Construction Co. & Ors.
2004 (Cr.L.J) 4178,
(vi). Japani Sahu Vs. Chandra Shekhar Mohanty (2007) 7 SCC 394,
(vii). Surinder Singh Sobti Vs. The State 1999 (1) JCC 107 (S.C),
(viii). Soberan Singh & Ors. Vs. State of U.P. & Another 2005 Crl. L.J 2028,
(ix). Rajat Mittal Vs. State & Anrs. 2001 (III) A.D. (Cr.) DHC 144 and
(x). Sunil Mehdiratta Vs. Union of India 2002 JCC 247. Per contra, according to Ld. Counsel for respondents, the instant M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.5 of pages 12 revision petition as preferred is devoid of merits for the reasons particularly the complainant has not been able to make out a single ground for registration of an FIR. It is admitted that the money was paid to the respondents and in this regard no investigation is required. Moreover, the core of dispute is of civil nature i.e. whether the money has to be paid back is to be decided by a civil court and not a criminal court particularly the court sitting at revision. Moreover, all the facts are within the knowledge of complainant and therefore, no FIR is required. The act of filing criminal complaint that too after an inordinate delay of seven years is motivated and to by pass the procedure of civil court and to put pressure on the respondents through criminal proceedings. The payments were made in the year 2005 and the complaint was filed in 2012. The complainant has deliberately made the false allegations by saying that the respondent had induced and persuaded the complainant to invest in their upcoming project on which the payments were made. The falsity of allegations is clear from the fact that Sh. Atul Gupta and Smt. Savita Kumar Gupta were not even directors at the time of alleged inducement and transaction. Similarly, the allegations that a forged MCD certificate was shown to the complainant is falsify as the complainant has no where specified as to for which property/land the MCD certificate pertained too. It was an open transaction based on the possibility as to whether a property could be offered by the respondents to the complainant. Thus merely because the transaction could not be materialized does not mean any criminality is involved. The subsequent failure of the respondents to offer a property was not premeditated. M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.6 of pages 12 There was no commitment to any property or project on behalf of the respondents. In their said submissions, the respondents have placed reliance upon the following judgments:
(i). V.Y. Jose & Anr. Vs. State of Gujrat & Anr. (2009) 3 SCC 78,
(ii). Thermax Ltd. & Anr. Vs. K. M. Jony & Ors. (2011) 13 SCC 412,
(iii). Subhkaran Luharuka & Anr. Vs. State 2010 (3) JCC 1972.
(iv) Smt. Meenakshi Anand Sootha Vs. State 2007 (4) JCC 3230,
(v). Neelu Chopra & Anr. Vs. Bharti 2009(24) JCC 2021 and
(vi). Suresh Vs. M.S. Danannava & Anr. 2005 (1) JCC 405.
7. The Hon'ble High court of Delhi vide order dated 9.7.2010 in the case of 'SubhKaran Luharuka & anr Vs State ( Govt. of NCT of Delhi) ' Crl. Misc. case no. 612223 of 2005 dated 09.7.2010 has laid down the guidelines for the subordinate courts and procedure to be followed while dealing with the application u/s 156 (3)CrPC. The said guidelines are summarised as under :
i) Whenever a Magistrate is called upon to pass orders under section 156(3) of the code, at the outset, the Magistrate should ensure that before coming to the court, the complainant did approach the police officer in charge of the police station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person / persons arrayed as an accused in the complainant. It should also be examined what action was taken by the M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.7 of pages 12 SHO, or even by the senior officer of the police, when approached by the complainant under section 154(3) of the code .
ii) The Magistrate should then from his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the police in the matter. A preliminary inquiry as this is permissible even by an SHG and if no such enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO then it is all the more necessary for the magistrate to consider all these factors. For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the order passed by him.
Upon a preliminary satisfaction , unless there are exceptional circumstances to be recorded in writing 'a status report by the police is to be called for before passing final orders.
iii) The Magistrate, when approached with a complaint under section 200 of the code, should invariable proceed under Chapter XV by taking cognizance of the complaint, recording evidence and then deciding the question of issuance of process to the M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.8 of pages 12 accused. In that case also, the Magistrate is fully entitled to postpone the process if it is felt that there is a necessity to call for a police report under section 202 of the code.
iv) Of course, it is open to the Magistrate to proceed under Chapter XII of the code when application under section 156 (3) of the Code is also filed along with a complaint under section 200 of the code if the Magistrate decides not to take cognizance of the complaint . However , in that case the Magistrate before passing any order to proceed under Chapter XII, should not only satisfy himself about the pre requisites as aforesaid but additionally he should also be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the court at the instance of complainant and the matter is such which calls for investigation by a state agency . The Magistrate must pass an order giving cogent reasons as to why he intends to proceed under chapter XII instead of Chapter XV of the code.
8. Thus, the basic requirement for directing the investigation by police on private complaint as laid down in the judgment referred (SUPRA) is that "The magistrate has to be satisfied that it is necessary to direct police investigation in the matter for collection of evidence which is M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.9 of pages 12 neither in the possession of the complainant nor can be produced by the witnesses on being summoned by the court at the instance of the complainant." Further, Magistrate is required to pass an order giving cogent reasons as to why he intends to direct investigation by the police and does not want to proceed under Chapter XV of the code i.e by taking cognizance of the complainant, recording evidence and then deciding the question of issuance of process to the accused. Even if when the Ld. MM proceed under Chapter XV of the code of the Criminal procedure, he is fully entitled to postpone the process if it is felt that there is necessity to call for a police report u/s 202 of the Code.
9. By applying the aforesaid settled legal position in the present set of circumstances, where the facts mentioned in the complaint (as preferred by the complainant) i.e. the accused persons induced and persuaded the complainant to invest in their upcoming project being developed by them, representing that complainant would have choice to buy other flat/office in any of their subsequent projects and they also represented that they had due sanction letter/permission from MCD and believing upon the representation of accused persons, complainant company paid a sum of Rs. 56,25,000/ in three equal installments through three cheques dated 21.11.2005, 24.11.2005 and 16.12.2005, which cheques were duly encashed, are very much disclosing commission of cognizable offences by the accused persons arrayed in the complaint and further the same can be tried within the jurisdiction of Ld. Trial Court and before approaching the Ld. Trial Court, the complainant had duly approached the police for getting the FIR registered but was not succeeded, it can not be M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.10 of pages 12 said that the complete evidence is within the control and reach of the complainant, rather, the custodial interrogation of the respondents is required to unfold the truth and without the police investigation the complainant cannot launch a successful prosecution story as recovery has to be effected in respect of cheated amount, alleged forged permission, sanction letter of MCD shown to the complainant and also the conduct of the accused persons in order to prove their dishonest intention. Thus in my considered opinion Ld. Trial Court has erred in opting for keeping the matter with himself for inquiry instead of sending the same to the police for investigation by way of issuance of directions for getting the FIR registered. Therefore, the impugned order is liable to be set aside and same stands set aside accordingly.
10. Since the FIR bearing no.195/2013 U/s 420/120B IPC has already been registered, so now SHO Police Station Pahar Ganj can proceed with the investigation, as per law.
11. With this the present revision petition stands allowed.
12. Copy of this order be sent to Ld. Trial Court as well as to SHO PS Pahar Ganj for information.
13. Copy of this order be also given to both the parties.
14. File be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR1)
on 14th May, 2015) Addl. Sessions Judge/Special
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.11 of pages 12
M. No.02/2015
M/s Prabhatam Ventures (P) Ltd. Vs. State & Ors.
14.05.2015
Present: Sh. Vijay Aggarwal, Ld. Counsel for the revisionist.
Sh. Ram Pyara, Ld. Addl. PP for the State/respondent no.1. Ms. Rebecca John, Sh. Bhavook Chauhan and Sh. Harsh Bora, Ld. Counsels for the respondents no.2 to 6.
Vide a separate judgment, revision petition of the revisionist stands allowed.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) Additional Sessions Judge Special Judge (NDPS) (West) Delhi/14.05.2015 M/s Prabhatam Ventures (P) Ltd. Vs. State & Others (M. No.02/2015) Page No.12 of pages 12