Delhi District Court
K. K. Soin vs State on 21 October, 2013
ID No. 02406R0147712013
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE - 04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Revision No. 64/2013
ID No.02406R0147712013
K. K. Soin
R/o 212, Rajpura Raod,
Dehradun, Uttrakhand ..........Revisionist
Versus
State ..........Respondent
Instituted on :03rd July, 2013
Argument concluded on : 21st October, 2013
Decided on : 21st October, 2013
ORDER
1. This revision petition is directed against the order dated 01.03.2011, passed by Learned Metropolitan Magistrate- (South East District), whereby revisionist has been summoned in a case wherein supplementary charge sheet was filed after investigation in FIR No. 420/1995 Police Station C. R. Park registered u/s 406/420/120-B IPC. Vide order dated 01.03.2011, Learned Trial Court took cognizance and issued summons to accused Sh. K. K. Soin/Revisionist and Sh. R. R. K. Tiwari.
2. In brief, facts of the case are that a charge sheet was filed against accused V. K. Soin and H. L. Soin (deceased) by Inspector Pooran Singh on 23.10.2000. Thereafter, in the year 2010, a supplementary charge sheet against accused persons namely, R. R. K Tiwari and K. K. Soin was filed. Criminal Law was set into motion in this case by Sh. O. P. Gupta @ Om Prakash Gupta s/o Sh. Durga Gupta @ Durga Prasad Gupta alleging that on 25.01.1987 after reading newspaper, he visited Transport Center, Punjabi State Vs. K. K. Soin CR No. 64 of 2013 1/9 ID No. 02406R0147712013 Bagh, where a Property Mela for sale of shops to be constructed on the plots was organized by M/s. Pushpa Builders Limited. It is submitted that on the inducement of the Directors and the employees of the Company, complainant agreed to purchase a shop for a consideration of Rs.1,69,000/-. It was informed to him that signing of form was merely formality and Sale Deed would be executed by the company when possession of the shop would be delivered. As shop No. D-28, Pushpa Complex was given to him in or around November, 1992, and building was de-sealed by the DDA for demolition. According to the complainant, it was assured to him that building was cleared and passed by the DDA. The possession letter was prepared antedated to 05.01.1991, whereas, same was prpeared in or around November 1992. Complainant stated that accused V. K. Soin used forged licence deed, which was executed between him and the company on 19.12.1990 before the various courts, whereas, he never exeucted any such document. It is alleged that original licence deed was never produced by the accused. It is alleged that complainant was induced by all the four Directors namely V. K. Soin, H. L. Soin, R. R. K Tiwari and K. K. Soin and other employees to deposit installments against shop no. D-28, ground floor, Pushpa Auto complex, Punjabi Bagh, New Delhi. All informed him that the building was being constructed as per law and the building plan. Believing their representation, complainant gave his hard earned money to them. It is alleged that at the time of booking of shop and whenever, he went to pay the installments or enquire about the possession of the shops, above mentioned directors with their employees induced him to deposit the further installments. It is alleged that State Vs. K. K. Soin CR No. 64 of 2013 2/9 ID No. 02406R0147712013 these persons told him that the company was reputed and appreciation of at least 100 % per annum would be given to the buyers. It is alleged that complainant along with his family members were misrepresented by these accused persons that the value of the shop would increase many folds. In the year 1995, complainant realized that these were the tricks of accused persons to take money from him. In the year 1995, he came to know about the dismissal of Civil Writ Petition no. 3473 of 2003 filed by M/s Pushpa Builders Limited and felt cheated by the directors and employees of M/s Pushpa Builders limited. It is alleged that the builder raised unauthorised construction at the plots and cubicals were constructed in violation of the terms and conditions and the building plan.
3. During Court proceedings, complainant came to know that accused persons filed a suit no. 146/92 before Ld. District Judge by forging his signatures whereas, neither he nor his any advocate nor signed any vakalatnama in this regard. The allegations in respect of the other persons, named in the FIR and statement of witnesses namely, Rohit Goel, D. K. Palit, Captain S. K. Tyagi, Sh. Sharma, Sh. Malhotra , Sh. I. S. Mokha and other were the employees of M/s Pushpa Builders Limited. It is alleged that all were assigned specific duties and responsibilities by the Director of the company for the purposes of carrying out day to day function of the company and these employees were rendering their services against the salaries and no material has come on record to substantiate the allegations that these employees got any economical benefits, other than their salaries, out of the cheated amount. State Vs. K. K. Soin CR No. 64 of 2013 3/9
ID No. 02406R0147712013
4. It is further the case of complainant that an amount of Rs. 1,54,100/- was paid by way of cheque of Rs. 85,500/- and Rs. 68,000/- in cash as and when demanded by the Pushpa Builders. Sh. D. K. Palit received cheques as well as cash amounts on various dates on behalf of Pushpa Builders. The receipt of cheques was issued by Sh. D. K. Palit on printed receipts of Pushpa Builders, whereas receipts of cash amounts were issued by him on plain papers, bearing his signatures and stamp of Pushpa Builders. Sh. V. K. Soin, Managing Director on enquiry, confirmed that Sh. D. K. Pali, Accounts Officer, Pushpa builders was authorised to receive cash and cheques on behalf of Pushpa Builders. It is stated that inspite of undertaking given on 22.10.1992 before Director Building by the Managing Director, Pushpa Builders to remove the unauthorised construction from the said premises in extended period of time granted by the DDA, unauthorised construction was not removed which was handed over to innocent buyers in extended period of time, telling them that building was passed and buyers could carry on their business. At the time of handing over of possession of shop, they were compelled to sign on undated paper by Sh. I. S Mokha. On the basis of these facts, a complaint was registered against Pushpa Builders Limited, Sh. V. K. Soin-Managing Director; Sh. K. K. Soin, Sh. R. R. K Tewari and Sh. H. L. Soin, all stated to be directors; Rohit Goel-Commercial manager; Sh. D. K. Palit-Accounts Officer; Captain S. K. Tyagi, Sh. Sharma, Sh. Malhotra and Sh. I. S. Mokha, employees. It was alleged that all the above persons assured the complainant that the building plan for proposed built up shopping complex was approved by DDA . The allegation against Sh. State Vs. K. K. Soin CR No. 64 of 2013 4/9
ID No. 02406R0147712013 Palit was that he received payment as an accountant and Sh I. S. Mokha obtained signatures on undated papers. It was further alleged that from the statement of witnesses, it was found that the directors namely Krishan Kumar Soin and R. R. K Tiwari were involved in the conspiracy and took active part to cheat the complainant by giving false representations.
5. I have heard submissions advanced by Sh. Mohd. Ayub and Sh. Gopi Tondon, Learned Counsels for the revisionist and Sh.Wasi-Ur-Rehman, Learned Addl. PP for the State/Respondent and have perused the record.
6. Learned Counsel for revisionist submits that as per the charge sheet first installment of Rs.18,900/- was allegedly paid by the complainant on 25.01.1987 whereas other installments, a sum of Rs. 85,500/- were allegedly deposited during the period between January, 1987 to November, 1987. Charge sheet notes that efforts were made to find out the documentary evidence as regards K. K. Soin/Revisionist and records of the Registrar of Companies at Delhi and Haryana were inspected and it came to light that the ROC had weeded out old record of the company and despite efforts, no record pertaining to the period, when alleged offence took place could be ascertained. It is stated that even from the inspection of the record of FIR No. 468/1995, Police Station Kalkaji, the other case instituted against M/s. Pushpa Builders Limited, no documentary evidence showing name of K. K. Soin as Director at the time, when offence committed was found.
7. Sh. Mohd. Ayub, Learned Counsel appearing for the revisionist urged that revisionist was neither Director nor in any manner associated with the affairs of M/s.Pushpa Builders Limited. He argued that the alleged incident State Vs. K. K. Soin CR No. 64 of 2013 5/9 ID No. 02406R0147712013 took place in the year 1987 and the main charge sheet was filed in the year 2001, whereas supplementary charge sheet has been filed in the year 2011. He submits that no additional evidence has been collected by the IO. There is nothing on record to show, as to why the revisionist has been summoned. Learned Counsel argued that as per Section 468 Code of Criminal Procedure, time period for taking cognizance u/s 406 IPC is three years and prosecution has to show dishonest intention and the mis-representation on the part of the revisionist at the inception of the crime to attract Section 420 IPC.
8. On the other hand, Learned Addl. PP for the State submits that it is alleged that the revisionist is the Director of M/s. Pushpa Builders Limited. He submits that during the investigation and from the statement of witnesses, it was found that accused V. K. Soin that Sh. K.K. Soin were the Directors and involved in the conspiracy and they took part to cheat the complainant by given false representation. Therefore, from the statement of witnesses and material collected during the investigation sufficient evidence has come on record to proceed further against the accused.
9. In Pepsi Foods Limited and another vs Special Judicial Magistrate & ors. (1998)5 SCC 749 , it was observed:
"Summoning of an accused in a criminal case is a serious matter. Law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto and he has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient State Vs. K. K. Soin CR No. 64 of 2013 6/9 ID No. 02406R0147712013 for the complainant to succeed in bringing charge home to the accused. Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and then examine if any, offence is prima facie committed by all or any of the accused."
10. In Ashok Sikka vs State 2008 (101) DRJ 370, it was held that in IPC offences directors cannot be held liable where the company is a principal accused and the complaint does not provide the precise role of the directors. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is in the company. Mere statement that the individuals were directors of company without reference to their precise role at the time of the commission of offence would not be sufficient to attach criminal liability to them.
11. Impugned order passed by Learned Trial Court reads as under :
"Present: Ld. APP for the State.
None.
Perused supplementary charge sheet. Parcha Yadasht to the main file is directed to be annexed with supplementary sheet perused. Cognizance is taken. Issue summons to all the three accused to their sureties for 08.06.2011."
12. From the perusal of the impugned order, it appears that Trial Court was not having main charge sheet before it. It shows that apart from supplementary charge sheet, there was only a 'Parcha Yadasht' (Memory slip) meaning thereby, that trial Court did not even felt it necessary to peruse main charge sheet filed which was filed about 10 years ago to find out as to how State Vs. K. K. Soin CR No. 64 of 2013 7/9 ID No. 02406R0147712013 the revisionist was placed in the earlier charge sheet and what additional evidence was gathered against him by the IO. Learned Magistrate is required to apply his mind .To deceive is to be induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. Legal position is well settled that a fraudulent and dishonest intention at the time of commission of the offence or allegation of entrustment has to be attributed to an accused sought to be charged and/or there should be specific allegations that as director, revisionist/accused made any willful misrepresentation or what was his precise role or what he said or did to charge him for conspiracy and vague allegations that so many persons named in the complaint gave assurances or represented complainant would not suffice.
13. Scrutiny of the record shows that there is nothing to indicate that K. K. Soin/revisionist was a director of M/s Pushpa Builders Limited. Even the supplementary charge sheet notes that no record from Registrar of Companies (ROC) was found. Further more, K. K. Soin/revisionist was not charge sheeted in the challan filed 10 years earlier. Admittedly, there is no additional evidence in the supplementary charge sheet against revisionist. The allegations leveled against K. K. Soin /revisionist that he along with other directors and other representatives of M/s Pushpa Builders Limited gave assurances to complainant are vague and omnibus in nature and 'precise role' played by him has not been alleged .
14. Significantly, it is clearly mentioned in the charge sheet that no record and documents regarding the details of the directors of M/s Pushpa State Vs. K. K. Soin CR No. 64 of 2013 8/9 ID No. 02406R0147712013 Builders Limited for the relevant period were found. It is mentioned in the charge sheet that K. K. Soin/revisionist was the real brother of accused V. K. Soin and was in United States. Only because, he was brother of other accused, would not suffice to drag him to undergo the ordeal of trial. It is specifically mentioned in the charge sheet that efforts were made to find out the documentary evidence with regard to K. K. Soin/revisionist and records of Registrar of Companies (ROC), Delhi and Haryana were inspected and it came to light that Registrar of Companies (ROC) had been weeded out. It is the case of prosecution in the charge sheet itself that despite efforts, no record pertaining to the period of commission of alleged offence could be ascertained. Charge sheet categorically notes that no documentary evidence showing the name of K. K. Soin as Director of M/s Pushpa Builders Limited at the time when offence was committed were found. Prosecution has no material at all on record to show and it cannot prove that revisionist was a Director of M/s Pushpa Builders Limited. In the circumstances, this Court finds that the impugned order passed by Learned Trial Court , whereby revisionist has been summoned, is erroneous, therefore, it deserves to be set aside as regards Sh. K. K. Soin/revisionist. In the result, Sh. K. K. Soin/revisionist is ordered to be discharged. Revision is allowed. A copy of this order alongwith TCR be sent back. Revision file be consigned to Record Room.
announced in the
open Court
on 21st October, 2013 (Vinay Kumar Khanna)
ASJ-04 & Spl. Judge (NDPS) South East,
South-East, Saket Court/New Delhi
State Vs. K. K. Soin CR No. 64 of 2013 9/9