Delhi District Court
Chirag Jamwal vs Surinder Singh Khullar on 5 November, 2022
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
Cr No. 260/2021
1 Chirag Jamwal
S/o Lt. Col Kailash Singh,
844, Saraswati Vihar
Gurugram-122002
2 Anish Dhingra
S/o Sh. S.K Dhingra
R/o A-212, Mahalxmi Apartments
Sector-2 Dwarka
New Delhi-110075
..........Revisionists
Vs.
1 Surinder Singh Khullar
S/o Sh. Bhagar Swarup Khullar,
R/o E-125, Second Floor
New Delhi-110065
2 State of NCT Of Delhi
...........Respondents
Instituted on :16.12.2021
Argued on : 05.11.2022
Decided on : 05.11.2022
ORDER
1. Vide this order, this Court shall adjudicate the Criminal Revision filed by revisionists seeking to set aside impugned order dated 05.10.2021, passed by Ld. Trial Court, whereby the application u/s 156(3) r/w 200 Cr.PC, filed by the revisionists was dismissed.
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IMPUGNED ORDER FACTS
2. The facts of the case are hereby succinctly recapitulated: It was alleged that the complainants/revisionistss had purchased a property bearing no. D-82, Basement, East of Kailash, New Delhi in the name of their respective wives from Respondent Sh. Surinder Singh Khullar, R/o E- 125, Second Floor, East of Kailash, New Delhi for a sale considerable of Rs. 49,75,000/- vide sale deed dated 06.03.2019. It was alleged that the property was built in 125 square yards. An area about 17 feet by 9 feet was covered with false ceiling and entire wall measuring about 18 feet in length on the right side of the basement was covered with tiles. It was further alleged that at the time of purchasing the said property, it was informed by the respondent that he had purchased the property in a similar fashion two years ago. The respondent further assured the complainants that the false ceiling is just a design to maintain symmetry, and height of ceiling is of full length i.e. 10 feet.
3. It was further alleged that Mr. Surinder Singh Khullar denied to remove lights and electric fittings in the said false ceiling on the pretext that the same was costly. The respondent assured that there was no concealment under the false ceiling with original height of 10 feet. Complainants have also alleged that there was a water leakage problem in the said false ceiling which was concealed by the respondent at the time of purchase. CR 260/2021 Chirag Jamwal Vs. Surinder Singh Khullar Page No. 2/10 Thus, application u/s 156(3) CrPC was filed before the Ld Trial Court. FINDINGS OF THE LD TRIAL COURT
4. After perusing the documents adduced on record, the Ld Trial Court opined that it is not a fit case where direction should be issued for registration of FIR as the complainant was well aware of the name and address of accused and was well versed with the facts of the case. The Ld Trial Court observed that the entire evidence is well within the reach of the complainant to prove the allegations against accused. Thus, Ld. Trial Court dismissed the application u/s 156(3) r/w 200 Cr.PC, filed by the revisionists and granted opportunity to complainants to lead Pre- summoning evidence.
CONTENTIONS OF LD. COUNSELS FOR THE REVISIONISTS AND RESPONDENTS
5. Ld. Counsel for the revisionists submitted that it was on the assurance given by the respondent, that the revisionists acquiesced to purchase the property in question. It was submitted that the revisionists had categorically made inquiries qua the false ceiling prior to purchasing the property in question. It was averred that the respondent informed them that the false ceiling can only be removed after purchasing of property. Ld. Counsel for revisionists further contended that the first and foremost duty of the respondent was to disclose the factum of repairs and non- disclosure that work was done. Ld. Counsel also submitted that the CR 260/2021 Chirag Jamwal Vs. Surinder Singh Khullar Page No. 3/10 revisionists was not in position to collect and produce the evidence. Ld. Counsel also submitted that the the Ld. Trial Court has not recorded all witness and as per the status report dated 04.12.2020, Rajan Chopra denied to know about the same and did not give any statement. Thus, Ld. Counsel submitted that the order dated 05.10.2021, passed by Ld Trial Court be set aside. Ld Counsel placed reliance on Chintaman v Dnyaneshwar & Ors 1974 CriLJ 542 and Skipper Beverages Pvt Ltd v State 92(2001) DLT 217 to substantiate his claim.
6. Per contra, Ld. Counsel for respondent submitted that the respondent purchased the property on 03.04.2017 from another person, and that he handed over the property to revisionists in the same condition. It was vehemently urged that the revisionists visited the property in question umpteen number of times and made a conscious decision to purchase the property, and as such cheating cannot be attributed to the respondent. It was further submitted that as per the status report dated 04.12.2020 filed by the IO, the ground floor owner Rajan Chopra specifically denied knowledge of the factum of water leakage, and therefore he rightly did not give any statement to the IO. Thus, it was submitted by LD Counsel for the respondent that the Ld. Trial Court has correctly dismissed the application u/s 156(3) CrPC vide the impugned order dated 05.10.2021.
7. Submissions heard.
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DECISION
8. During the course of arguments, it was brought to the fore that the revisionists had ample opportunity to visit the property in question. They were granted unrestricted access to the premises, and they even took photographs and videos of the premises. Thus, according to the respondent, the revisionists took a conscious decision, after careful scrutiny of the place, and therefore, an allegation of cheating cannot be levelled against him.
9. At first blush, the above argument seems plausible. However, on a closer scrutiny, it would be pertinent to note that whilst the revisionists were granted unfettered access to visit the place, but they were denied access to inspect the false ceiling. Now, such an inspection could not have been possible without breaking open part of the false ceiling. This was not permitted, and understandably so, as it would ostensibly ruin the façade of the area. However, when the complainants did break the false ceiling, to their astonishment they found a broken aluminum tray, which was used to divert water to a pipe. The tray was used to divert water which was leaking from the bathroom of the ground floor owned by Rajan Chopra. It is pertinent to note that, as per allegations of the complainants, Rajan Chopra resides on the ground floor whereas the property in question is the basement, beneath the abovementioned ground floor. Thus, the leakage in the bathroom of ground floor occupied by Rajan Chopra CR 260/2021 Chirag Jamwal Vs. Surinder Singh Khullar Page No. 5/10 would affect the roof of the basement, belonging to the revisionists.
10.The factum of water leakage was apparently concealed from the revisionists herein. Discovery of such a structural defect would have undoubtedly deterred an innocent buyer of property. It is at this juncture where an element of inducement and deception by concealment seems to creep in. As per the revisionists, they made specific inquiries from the respondent qua the false ceiling, and requested the respondent to remove the electrical fittings on the false ceiling. However, the respondent refused to remove the lights and electrical fittings on the pretext that the lights would be damaged on removal.
11.At this juncture, it would be apt to peruse the following extracts of Chintaman (supra):
"11. This cannot be termed to be a case of mere omission to disclose a material fact. On the contrary the complainant has made a specific enquiry in this behalf and in spite of such an enquiry a false representation has been made by the accused. In my opinion, making of an enquiry by the complainant with the accused in this behalf and his knowingly making a false statement will make a world of difference. In this context the provisions of Section 415 of the Indian Penal Code are relevant, and particularly illustration (i) which reads as under.
(i) A sells and conveys an estate to B, A. knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B. and receives the purchase or mortgage money from Z. A cheats.
Shri Modak has relied upon this illustration to Section 415 and according to him, the present case squarely falls within the said illustration. Whether the material on record discloses only a breach of civil liability or criminal offence under Section 420 of the Indian Penal Code will depend upon whether the complainant in CR 260/2021 Chirag Jamwal Vs. Surinder Singh Khullar Page No. 6/10 parting with his money acted on the representation of the accused and believed the truth thereof and whether this representation when made was in fact false to the knowledge of the accused and he had a dishonest intention from the outset.
12. It is observed, by the Supreme Court while dealing with this aspect of the matter in Mobarik Ali Ahmed v. State of Bombay as under:
In a case of this kind a question may well arise at the outset whether the evidence discloses only a breach of civil liability or a criminal offence. That of course would depend upon whether the complainant in parting with his money to the tune of about Rs, 5 1/2 lakhs acted on the representations of the appellant and in belief of the truth thereof and whether, those representations when made were in fact false to the knowledge of the appellant and whether the appellant had a dishonest intention from the outset.
13. However, it is contended by Shri Golwalkar that mere non-disclosure of any material fact relating to the property will not amount to concealment of a fact with dishonest intention. We are not concerned in this case with a case of mere non-disclosure. Here in this case the complainant before purchasing the house had definitely enquired about the encumbrances from the accused and he was told by the accused vendor that there were none. It is apparent from the evidence of the complainant that he had acted on these representations and had purchased the house and paid the money. The intention of the accused will have to be gathered from the surrounding circumstances, including his subsequent conduct which will throw light as to what was his intention at the relevant time. It is pertinent to note in this case that when subsequently the complainant came to know about the mortgage of the Society after the proclamation was affixed to the property, he contacted the accused and at that stage also the accused said that he had now sold the house and he was not responsible for it, He went to the extent of asking the complainant to go out of the house. The accused went to the extent of refusing to return back the copy of the mortgage-deed obtained by the complainant. This is not the only incident where the accused had acted in this way. D. W. 1 Ganesh had also state in his cross-examination that he also came to know subsequently that the property purchased by him was also mortgaged to the Society, He came to know about this encumbrance after about one year. When he had questioned the accused initially at the time of purchase of the house as to whether there are any encumbrances on the property he was also told that the house is free from all encumbrances. The conduct of the accused and the representations made by him will have to be read in this context."
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12.The above extracts make it pellucid that concealment qua a material fact, especially qua a fact with respect to which a categoric enquiry has been made by a purchaser of property, tantamount to exercising deception. As rightly argued by Ld Counsel for the revisionist, the general rule of caveat emptor will not operate in this sphere, and under these circumstances. The revisionists made specific enquiries from the respondent, as is evinced from a perusal of the complaint before the court, and even from a reading of the complaint made before the police authorities. Yet, their queries were met only with active concealment of water leakage issue, which subsisted beneath the false ceiling. The present case undoubtedly has prima facie trappings of a case of cheating under the Indian Penal Code. In fact, Chintaman (supra) further goes on to rely on Kuldip Singh v State AIR 1954 P H 31 wherein it was laid down as thus:
"It is the intention which is important and not whether a man is under a legal duty to disclose or suppress facts within his knowledge. Therefore, where a person with the intention of causing wrongful loss to another makes a false representation to him or suppresses certain facts, he will he said to have acted dishonestly even if the law does not require him to state the truth. Therefore, the non-disclosure of the previous encumbrances will not affect the rights of the previous mortgagees and will not pass a complete title to the purchaser, the purchaser may nevertheless have been cheated."
13.In the present case, it was asseverated by Ld Counsel for the revisionist CR 260/2021 Chirag Jamwal Vs. Surinder Singh Khullar Page No. 8/10 that the ground floor owner Rajan Chopra is a witness who would throw light on the factum of water leakage and its concealment by the respondent. It was contended that telephonic messages were exchanged between Rajan Chopra and the respondent herein qua the factum of repairs of the ground floor and concealment of water leakage issue by the false ceiling in question. Thus, the stance of the respondent that he was unaware and sold the property as it is, prima facie stands belied in light of the above allegations, and the allegations need to be thoroughly investigated.
14.In Skipper Beverages (supra), it was ordained as thus:
"10. Section 156(3) of the Code aims at curtailing and controlling the arbitrariness on the part of the police authorities in the matter of registration of FIRs and taking up investigations, even in those cases where the same are warranted. The Section empower the Magistrate to issue directions in this regard but this provision should not be permitted to be misused by the complainants to get police cases registered even in those cases which are not very serious in nature and the Magistrate himself can hold enquiry under Chapter XV and proceed against the accused if required. Therefore a Magistrate, must apply his mind before passing an order under Section 156(3) of the Code and must not pass these orders mechanically on the mere asking by the complainant. These powers ought to be exercised primarily in those cases where the allegations are quite serious or evidence is beyond the reach of complainant or custodial interrogation appears to be necessary for some recovery of article or discovery of fact.
15. Recovery of phones of the respondent and Rajan Chopra is certainly out of the reach of the complainant. Statement of witnesses including Rajan Chopra has to be recorded in order to unearth the truth of the matter. CR 260/2021 Chirag Jamwal Vs. Surinder Singh Khullar Page No. 9/10 Police investigation is thus imperative.
CONCLUSION
16. Ergo, in view of the aforesaid discussion, this Court deems it fit to allow the Criminal Revision Petition filed by the revisionists and thus, the impugned order dated 05.10.2021 passed by, Ld. MM, South-East, Saket Courts New Delhi is hereby set aside.
17.TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for necessary information/ compliance. Copy of the order be also sent to SHO concerned to register an FIR qua the respondent herein as per law.
18.Revision file be consigned to record room after due compliance.
19. Order be uploaded on official website of District Courts. Announced in the open court on 05th November, 2022 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi CR 260/2021 Chirag Jamwal Vs. Surinder Singh Khullar Page No. 10/10