Delhi District Court
Dinesh Kumar Singh vs ) State on 24 December, 2019
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE04
EAST : KARKARDOOMA COURTS: DELHI
Cr. Rev No. 05/2019
Dinesh Kumar Singh,
S/o Lt. Sh. Ram Sanjeevan Singh,
R/o Flat No. 80 D, Dhawal Giri Aptts.,
Sector11, Noida, UP.
.........Petitioner
Versus
1) State
2) Ashish Gupta,
S/o Sh. S.C.Gupta,
3) Smt. Meenu Gupta,
W/o Sh. Ashish Gupta,
Both r/o Flat No. 111, Triloki Aptts.,
I.P.Extn., Patparganj,
Delhi 110091.
4) Arushi Gupta,
D/o Sh. Ashish Gupta,
R/o WA167, Shakarpur,
Delhi110091.
..........Respondents
Cr. Rev. No. 05/2019 Page no. 1/11
Date of Institution : 07.01.2019
Date of reserving Judgment : 18.10.2019
Date of pronouncement : 24.12.2019
Appearances
For the petitioner : Sh. K.K.Vaid, Advocate
For the respondent no.1 : Sh. Ajit Kumar Srivastav,
Learned Addl. PP
For the respondents no. 2, 3 & 4 : Sh. Mukesh Sharma, advocate
JUDGMENT:
1. A revision petition under Section 397/399 Cr.P.C. has been filed against the order dated 10.09.2018 ("the impugned order") passed by the Court of Learned MM (East), Karkardooma court, Delhi in the complaint case No. 1373/17 titled "Dinesh Kumar Singh v. Ashish Gupta & Ors.", whereby the Learned M.M. could not found any ground to summon the accused persons and dismissed the complaint . A certified copy of the impugned order was filed by the Learned Counsel for the petitioner.
2. After filing of the revision petition, Learned Prosecutor accepted the notice on behalf of the respondent no. 1.
Cr. Rev. No. 05/2019 Page no. 2/11
3. Notice of the revision petition was issued to the respondents no. 2 to 4 and trial court record (TCR) was summoned.
4. Learned Counsel for the respondents no. 2 to 4 appeared and filed written reply to the revision petition. He has prayed for dismissal of present revision petition stating that the impugned order is well reasoned order, passed by the Learned Trial Court after fully appreciating the material available on record.
5. Arguments were addressed on behalf of the petitioner and respondents for decision of the present revision petition on merits.
6. Learned Counsel for petitioner/complainant has argued at length that the Learned Trial Court dismissed the case vide impugned order on the sole ground that the complainant has not been able to prove that though he had made payment of Rs. 38,65,000/ by way of bank entries to the proposed accused persons, he was not able to prove that in what context the payments were made. The Learned counsel further submitted how can a Trial Court arrive to a decision that payments were not made to the proposed accused persons, as alleged by the complainant. By way of present revision petition, the petitioner is praying for setting aside the impugned order and to remand back the Cr. Rev. No. 05/2019 Page no. 3/11 case to the Learned Tral Court for fresh consideration on the aspect of summoning.
7. As per the record, petitioner/complainant has filed a complaint case U/s. 200 Cr.P.C. alongwith one application U/s. 156 (3) Cr.P.C. titled as "Dinesh Kumar Singh v. Ashish Kumar Gupta & Others"
bearing CC No. 1373/17 against the accused persons/respondents no. 2 to 4 namely Ashish Gupta, Meenu Gupta and Arushi Gupta, qua commission of the offences u/s 420/406/120B/34 IPC, alleging of nonexecution of Sale Deed of property no. D354, Second Floor, Laxmi Nagar, Delhi, and thereby cheating the complainant. Vide order dated 07.09.2017, the Learned Trial Court dismissed the application U/s. 156 (3) Cr.P.C. and directed the petitioner/ complainant to produce evidence and witnesses in pre summoning evidence. Thereafter, complainant got himself examined as CW1 and his brother namely Sanjay Kumar Singh as CW2. After pre summoning evidence was closed, the case was adjourned for arguments on summoning of accused persons and by way of impugned order the complaint was dismissed u/s 203 Cr.P.C. as the Learned Trial Court could not found any ground for summoning the accused persons.
8. As per the complaint, the property in question i.e. Second Floor, Cr. Rev. No. 05/2019 Page no. 4/11 D354, Laxmi Nagar, Delhi, was sold by respondent no. 2 Ashish Gupta to Suresh Kumar Singh, elder brother of the complainant, by way of registered Sale Deed dated 09.09.2007. Afterwards complainant and his brothers took a loan of Rs. 19 Lacs from respondent no. 2 Ashish Gupta and there was an oral agreement also whereby Suresh Kumar Singh agreed to execute the Sale Deed of the property in question in the name of respondent no. 3 Meenu Gupta. Further it was agreed that a rent deed shall be executed between the parties and the possession of the property in question shall be retained by the complainant and his family till the aforesaid loan was repaid till March 2016 alongwith an interest @ 5% per month. Ashish Gupta has also taken some blank papers and blank cheques signed by the complainant and his brother Suresh Kumar Singh as collateral security, which was promised to be returned after the loan was fully repaid. A Sale Deed was also executed by Suresh Kumar Singh in favour of respondent no. 3 Meenu Gupta on 16.06.2014 and he also received a sum of Rs. 19 Lacs from her. It is alleged by the petitioner/complainant that he paid Rs.38,65,000/ to all the three accused persons into their different accounts but the accused persons refused to execute the sale deed in his favour and also refused to return the blank signed papers and cheques to him. It is alleged that accused persons have dishonestly induced and clearly cheated them.
Cr. Rev. No. 05/2019 Page no. 5/11
9. From the available record it is clear that the respondent no. 2 Ashish Kumar Gupta initially executed sale deed in favour of Suresh Kumar Singh, elder brother of the complainant, on 09.09.2007 and thereafter Suresh Kumar Singh executed Sale Deed in favour of respondent no. 3 Meenu Gupta on 16.06.2014 and also received consideration amount of Rs. 19 Lacs from her, out of which Rs. 13 Lacs were received in the account of Suresh Kumar Singh through RTGS and Rs. 6 Lacs were received in cash.
10. As far as the factum of loan of Rs. 19 Lacs taken from the respondent no. 2 Ashish Kumar Gupta is concerned, it has not been shown by the petitioner/complainant by whom the said loan, if any, was taken whether loan was taken by the petitioner/complainant in his individual capacity or by the business establishment being run by the petitioner/complainant and his brothers & sister. Admittedly no documents regarding any such loan was executed, which also does not appeal to common sense. Then the complainant also though alleged that the entire loan was repaid by him and his another brother namely Sanjay Kumar Singh, it remained to be unexplained why only two of them are claiming to have paid the loan amount. Further, as per the claim of the complainant, as stated in para no. 9 of the complaint, it is Cr. Rev. No. 05/2019 Page no. 6/11 not clear why there was repayment of the aforesaid alleged loan in installments out of which four installments have been shown to be in the month of December 2015 only. The other installments have been shown to have been made on 06.01.2016,24.02.2016, 21.07.2016 and 01.08.2016, which also goes contrary to the claim of the complainant that the loan was agreed to be repaid alongwith an interest @ 5% per month. It is also pertinent to mention that in para no. 14 of the complaint, the complainant alleged collusion between the accused persons and his own brother Suresh Kumar Singh but said Suresh Kumar Singh has not been made an accused in the complaint. Suresh Kumar Singh, elder brother of the complainant, in whose favour initially the Sale Deed of the property in dispute was executed and who subsequently executed the Sale Deed in favour of accused/respondent Meenu Gupta, was not examined in pre summoning evidence before the Learned Trial Court. There is also a discrepancy in description of the property mentioned in Sale Deed dated 09.09.2007, wherein the total area of the property has been shown to be 133 sq. yards, whereas in Sale Deed dated 16.06.2014 the area for the property in dispute has been mentioned as only 100 sq. yards. The petitioner/complainant though filed a complaint alleging commission of the offence u/s 420/4036/120B/34 IPC by the accused/respondents n. 2 to 4, however, he could not demonstrate the Cr. Rev. No. 05/2019 Page no. 7/11 loss, if any, was suffered by him due to dishonest inducement on the part of the accused persons.
11. In case titled as Mohd. Ibrahim & Ors. v State of Bihar & Another, (2009) 8 SCC 751 it was laid down by the Apex Court that to constitute an offence u/s 420 IPC, there should not only be cheating but as a consequence of such cheating, the accused should have dishonestly induced the persons 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. The Apex Court also mentioned the essential ingredients of the offence of cheating as (i) deception of a person either by 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.
12. Similarly, the Apex Court vide its judgment dated 10.01.2013 Cr. Rev. No. 05/2019 Page no. 8/11 passed in Criminal Appeal no. 78 of 2013, titled as Arun Bhandari v. State of UP and others, discussed number of judgments on the subject in para no. 19 and 20 of the judgment, which are extracted as under :
"19. Before we proceed to scan and analyses the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A.Pareed Pillai & Anr., AIR 1973 SC 326, a two Judge Bench ruled that to hold a person guilty of the offence of cheating it has to be shown that his intention was dishonest at the time of making the promise and such a dishonest intention cannot be inferred from a mere fact that he could not subsequently fulfill the promise.
20. In G.V.Rao v L.H.V.Prasad and Ors., this court has held thus :
7. As mentioned above, section 415 has two parts. While in the first part the person must 'dishonestly' or 'fraudulently' induced 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, inducement must be dishonest or fraudulent. In the second Cr. Rev. No. 05/2019 Page no. 9/11 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 Mahadev Prasad v. State of West Bengal, 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."
13. From the evidence on record, it is clear that in the instant case the essential ingredient of cheating i.e. 'dishonest intention' on the part of respondents in deceiving the complainant is missing as the respondents never induced the complainant to purchase the property in question or to execute the sale deed of the property in question in favour of the complainant. At the the cost of repetition it is noted that the property in question was sold to Suresh Kumar Singh, elder brother of the complainant, who afterwards executed sale deed of the same property in favour of respondent no. 3 Meenu Gupta. Hence, the main ingredients to prove the offence of cheating is missing in the instant case.
14. In the aforediscussed facts and circumstances, I do not find Cr. Rev. No. 05/2019 Page no. 10/11 any infirmity, illegality, impropriety or irregularity in the impugned order/judgment dated 10.09.2018 passed by the Learned Trial Court whereby Learned Trial Court came to just a conclusion that there was no sufficient ground for proceedings against the accused persons and accordingly dismissed the complaint u/s 203 Cr.P.C.
15. The present revision petition is accordingly devoid of merits and is dismissed.
16. TCR be sent back alongwith copy of judgment.
17. File be consigned to the Record Room.
order
KULDEEP Digitally signed by KULDEEP
NARAYAN
NARAYAN Location: East District
Karkardooma Courts, Delhi
Date: 2019.12.24 16:53:02 +0530
(Pronounced in the open Court (KULDEEP NARAYAN)
on 24122019) Additional Sessions Judge04
East District, Court No. 10
Karkardooma Courts, Delhi.
Cr. Rev. No. 05/2019 Page no. 11/11