Delhi District Court
State vs . Tejwant Singh & Ors. on 7 January, 2016
IN THE COURT OF SH AJAY GARG
Additional Chief Metropolitan Magistrate01, New Delhi
State Vs. Tejwant Singh & Ors.
FIR N0. : 454/91
U/Sec. 420 IPC
PS : Connaught Place
J U D G M E N T
J U D G M E N T
a) ID No. of the case : 02403R0006451996
b) Date of commission of offence : 09.01.1986
c) Date of institution of the case : 15.07.1992
d) Name of the complainant : Retired Major General Joginder
Singh
e) Name & address of the :(i). Sardar Tejwant Singh
accused S/o. Late Sh. Harbans Singh
R/o. 3, Aurangjeb Road
New Delhi.
Also At:
R/o. 11 Central Drive,
D.L.F. Farm, Chhattarpur,
New Delhi110074.
(ii). Smt. Surinder Kaur
W/o. Sh. Tejwant Singh
R/o. 3, Aurangjeb Road
New Delhi.
(iii). M/s. Skipper Towers P. Ltd.
Through its Director
Sardar Tejwant Singh
At 22 BaraKhamba Road,
New Delhi.
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:(iv). Harpreet Singh
S/o. Late Sh. Inderjeet Singh
R/o. D12 Maharani Bagh
New Delhi110065.
(v). Tejbir Singh
S/o. Late Sh. Inderjeet Singh
R/o. D12 Maharani Bagh
New Delhi110065.
(vi). M/s. Skipper Sales P. Ltd.
Through its Director
Sh. Harpreet Singh
f) Offence complained off : U/S: 420 IPC
g) Plea of the accused : Pleaded not guilty and claimed
trial
h) Arguments heard on : 17.12.2015
i) Final order : Acquitted
j) Date of Judgment : 07.01.2016
FACTUAL MATRIX :
1). Brief facts as culled out from the judicial record shows that on
09.01.1986 Sh. Diwan Singh (father of the complainant), Smt. Kaushalya
Devi, (Brig) Sh. Joginder Singh, Sh. Bhupinder Singh, Dr. Satpal Singh, Sh.
Jagjeet Singh and Sh. Amarjeet Singh were allotted a shop/office/ store
bearing no. 406 A having approximate covered area of 369 sq. ft on fourth
floor in the proposed commercial building at 22 Barakhamba Road, New
Delhi110001 @ Rs. 900/ per sq. ft. by Skipper Sales Pvt. Ltd. The said
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allotment letter was signed by Sh. Diwan Singh for himself as well as for
rest of the allottees including complainant herein being their power of
attorney holder. But the builders i.e. Skipper Sales Pvt. Ltd having accused
Tejwant Singh and Harpreet Singh as its directors had already entered into
a collaboration agreement with the erstwhile owners of the plot vide
agreement dt. 22.04.1985 wherein the 7 ½% of the total built and unbuilt
area was reserved for the owners including flat no. 403A to 408 ad
measuring 4085 sq. ft. Thereafter on 03.11.1986 another tripartite
agreement was executed between owners, Skipper Sales Pvt. Ltd, and
Skipper Towers Pvt. Ltd. wherein the project was assigned by Skipper Sales
Pvt. Limited to Skipper Towers Pvt. Ltd. In the said agreement a fresh
schedule was drawn and the space was reallocated to the owner and to
one Dr. Manmohan Nath. As per the schedule annexed with the agreement
a flat bearing no. 401 admeasuring 6035 sq. ft. at fourth floor was reserved
for the owner. A note was also annexed with the schedule wherein it was
mentioned that the fourth floor has been allotted to the owner in full other
than 4085 sq. ft. to Dr. Manmohan Nath and his family and in case area was
found in excess or found less on this floor the same will be adjusted against
owner's share on 3rd floor and there will be no other flat buyer/ owner on the
said floor.
The complainant herein namely Major General Joginder Singh being
one of the allottees filed a complaint dt. 21.05.1991 against Mr. Tejwant
Singh, Managing Director, Mrs. Surinder Kaur, Director of M/s. Skipper
Towers Pvt. Ltd alleging that vide agreement dt. 09.01.1986 Skipper Sales
Pvt. Ltd. agreed to sell and accordingly they purchased and were allotted
office space no. 406A on 4th floor having approximately an area of 369 sq.
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ft. Subsequently project was assigned initially to M/s. Skipper India Ltd. and
thereafter to M/s. Skipper Towers Pvt. Ltd after obtaining their consent. It is
further alleged in the complaint that the accused company has been
promising for the last many years that the building is almost ready and
would be completed and handed over very soon but not handed over the
possession. The complainant further alleged that he wrote as many as 09
letters to the company to provide him authenticated copy of the fourth floor
plan showing the exact location, dimensions and configuration of flat no.
406A but has not been provided rather the accused company sent to
complainant a letter dt. 16.04.1990 alongwith a copy of alleged fourth floor
plan wherein his flat no. 406A has been shown as space no. 412.
The complainant further alleged that now he came to know from Mr.
Vijender Singh, the collaborator/ owner of plot no. 22 Barakhamba Road
that as per his agreement with the builder Mr. Tejwant Singh, the fourth floor
is entirely reserved for the collaborator Mr. Vijender Singh and Sh. Man
Mohan Nath and thus he has been cheated by fraudulent sale of space on
the fourth floor. He also alleged that even flat no. 412 located on fourth floor
is non existent as per the original sanctioned plans of the NDMC. Thus, it
amounts to cheating, hence this complaint.
2). On the basis of this complaint, an FIR vide No. 454/91 was registered
and investigation was carried out. After conclusion of investigation,
chargesheet U/s. 420 IPC against accused Mr. Tejwant Singh, Mrs.
Surinder Kaur, M/s. Skipper Towers Pvt. Ltd through its director (Mr. Tejwant
Singh), Mr. Harpreet Singh, Mr. Tejbir Singh and M/s. Skipper Sales Pvt. Ltd
through its director (Mr. Harpreet Singh) was filed. After taking cognizance
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the accused persons were summoned. Arguments on charge heard. The
Ld. Predecessor of this court vide order dt.03.05.2013 framed the charge
against accused no. 1 Tejwant Singh, accused no. 3 M/s. Skipper Towers
Pvt. Ltd through its Managing Director Sh. Tejwant Singh, accused no. 4
Harpreet Singh and accused no. 6 M/s. Skipper Sales Pvt. Ltd through its
Director Sh. Harpreet Singh for the offence punishable U/s. 420 IPC and
accused no. 2 Smt. Surinder Kaur and accused no. 5 Sh. Tejbir Singh were
discharged.
EVIDENCE
3). The prosecution has examined ten witnesses in support of its case.
(i). Complainant (Retired) Major General Joginder Singh was examined
in this case as PW1. He deposed on the same facts as per his complaint
Ex. PW1/A. He identified several documents i.e. allotment letter (Ex.
PW1/1), letters written by him between 26 February 1990 and 28 August
1990, (Ex. PW1/2 to PW1/10), two letters received from M/s. Skippers
Towers Pvt. Ltd (Ex. PW1/11 & PW1/12), acknowledgment receipt no. 261
(Ex. PW1/13), letter for different dates (Ex. PW1/14 to PW1/31 and Ex.
PW1/41 to PW1/44), receipts (Ex. PW1/32 to 40). He also proved letter dt.
19.06.1986 received from Skipper Sales Pvt. Ltd as Ex. PW1/1A and letter
dt. 12.09.1986 as Ex. PW1/1B.
During his cross examination on behalf of accused M/s. Skipper
Sales Pvt Ltd. & Harpreet Singh, he admitted that the booking of the flat in
question was made in more than one name i.e. his father Mr. Diwan Singh,
mother Mrs. Kaushalya Devi @ Mrs. Sharan Kaur and five siblings namely
Major General Joginder Singh, Mr. Bhupinder Singh (Dang), Dr. Satpal
Singh (Dang), Mr. Jagjeet Singh (Dang) and Mr. Amarjeet Singh. He also
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admitted that his legal share was only 1/7th. He also admitted the various
contents of allotment letter i.e. Ex.PW1/1. He stated that his father Sh.
Diwan Singh expired on 03.08.1996 and his mother expired thereafter. He
admitted that his all brothers and mother had given power of attorney to his
father. He stated that neither his parents nor brothers are complainant or
witness in the instant case. He did not remember as to whether the original
power of attorney were taken from him by the Investigating Officer or he
handed over the same to the Investigating Officer. He also admitted about
mentioning of the fact of ownership of his brother and parents of the said
space in the complaint Ex.PW1/A.
He stated that from 09.01.1986 till 3.11.1986 when the project was
assigned to Skipper Tower Pvt Ltd no letter or communication by Skipper
Sale Pvt Ltd. confirming the firm allotment of the office space 406 A, in the
building was issued and voluntary stated that in the agreement between the
Skipper Sales Pvt Ltd. and Skippers Tower Pvt Ltd. dated 03.11.1986 their
office space was changed from 4th to 3rd floor. He admitted that as on date
they have been alloted a specific office space in the building in question by
the order of Hon'ble Delhi High Court. He also admitted that in Ex.PW1/1 it
is specifically mentioned that there was a provision regarding change of
floor. He also admitted that from 03.11.1986 till the filing of the instant case,
he has not written any communication or letter to Skipper Sales Pvt Ltd. or
Harpreet Singh regarding the office space. He admitted that the letters Ex.
PW1/2 to PW1/10 were not addressed to Skipper Sales Pvt Ltd. or
Harpreet Singh.
He also deposed that he had not read the agreement dt. 22.04.1985
at the time of filing the complainant in the year 1991.
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He further stated that he has not been able to locate the original
power of attorneys of his brothers, who were residing in USA at the time of
booking i.e. 09.01.1986. He admitted that his father Mr. S. Diwan Singh from
09.01.1986 i.e. the date of booking till his demise i.e. 1996 did not give him
or produce before him any document regarding any restrictions on M/s.
Skipper Sales P. Ltd for selling flat on the fourth floor to any other party than
the land owner as on 09.01.1986.
During cross examination on behalf of accused Tejwant Singh,
he deposed that for the first time in his life he met accused Tejwant Singh
on 26.02.1990 and prior to 26.02.1990, he had not met any
official /representative of Skipper Towers Pvt. Ltd. He stated that he made
the last payment in respect of the flat on 08.09.1988. He stated that he
started handling this matter i.e. booking of space in question from the year
late 1989 early 1990 and prior to that his father used to handle the same.
He admitted that while his father accepted all the terms and
conditions incorporated in allotment letter Ex. PW1/1, none of them i.e.
allottees of the space ever raised any objection to such terms and
conditions and they wholeheartedly accepted the actions of their father. He
stated that in late 1989 early 1990s, he received the file from his father
containing the documents, letters relating to the space in question. He
further stated that before late 1989 he was not having any detailed
knowledge about the documents of this case. He also admitted that he has
no personal knowledge about the documents which have been exhibited by
him and executed prior to end of 1989 and voluntarily stated that same were
discussed by his father from time to time. He stated that when he visited the
building prior to 26.02.1990, about 90% work of the building was completed
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including the civil engineering construction of the entire frame work/
structure, partial completion of the interior finishes.
He further stated that from 1986 to 1992 he, his father or any family
member never wrote any letter to Skipper Towers Pvt. Ltd, raising objection
or protest against allotment of space on the third floor instead of fourth floor
and voluntarily stated that the said fact came to their knowledge only in
199091 during high court proceedings. He stated that he became aware of
change of floor of the space in question for the first time after perusal of the
record submitted by accused Harpreet Singh before the two judges
committee appointed by the Hon'ble High Court of Delhi.
He further stated that even after becoming aware of the factum of
change of floor of space in question he has not raised any protest or
objection in writing to Skipper Towers Pvt. Ltd. as by that time the civil
proceedings in this regard have already been initiated.
He admitted that he has no personal knowledge regarding the
execution of agreement between Vijender Singh and Skipper Sales /
Skipper Towers P. Ltd.
He also admitted that there were several bookings for space/ flat etc.
with Skipper Sales Pvt. Ltd. in the proposed building much prior its plans
were sanctioned and much before construction of the building had started.
He fairly admitted the fact that the change of allotment of space in
the floor i.e. from fourth floor to third floor was permitted in terms of the
allotment letter dated 09.01.1986 (Ex. PW1/1) and voluntarily stated that all
the payments made to the Skipper Sales/ Skipper Towers were demanded
for flat 406 A and paid as such.
He also admitted that as on date a flat has been allotted to him in the
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said building and he is satisfied therefore, he has not preferred any appeal
against the said allotment by the Hon'ble Delhi High Court.
(ii). PW2 Sh. Kamal Khurana, Upper Division Clerk, Registrar of
Companies, Nehru Place has brought the summoned record from his office
and proved the same vide Ex. PW2/1 to PW2/48.
(iii) PW3 WSI Madhu Sharma, Duty Officer, registered the FIR of the
present case on the basis of complaint Ex. PW1/A and proved the FIR as
Ex. PW3/A bearing her signatures at point A.
(iv) PW4. Inspector Satya Parkash proved the endorsement made by
him on the complaint as Ex. PW4/A and got the case registered. Thereafter
he got served a notice U/s. 91 Cr. PC to the complainant to produce the
original documents and on 23.07.1991 complainant Major Joginder Singh
handed over him 23 documents (duly attested photocopies). He identified
those documents as Mark 1 to Mark 20 and Mark C & D.
He was cross examined at length by the Ld. Counsels for accused
persons.
(v) PW5. ACP S. S. Kaushik, Vigilance, PHQ PS Barakhamba stated
that no material investigation of the instant case was conducted by him as
case file was transferred to Crime Branch.
(vi) PW6. Sh. Parveen Grover, Chartered Accountant, working as
Manager, Accounts with Skipper Towers P. Ltd has proved the seizure
memo of Mark PW6/X1 bearing his signatures at point A & B which was
seized by the police during the investigation.
(vii) PW7. Sh. J. B. Karamchandani, proved the sale plan Ex. PW7/A
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bearing his signatures at point A.
(viii) PW8 Sh. Ajay Singh, one of the erstwhile owner of the plot proved
the collaboration agreement dt. 03.11.1986 as Ex. PW8/A executed
between Skipper Towers Pvt. Ltd and Skipper Towers Sales Pvt. Ltd with
owners. During his cross examination, he stated that Ex. PW8/A bears his
signatures at point A. He stated that at the time of execution of agreement
Ex. PW8/A the plan of the building was sanctioned. He admitted that due to
the modifications in the said plan there were some adjustment/ changes in
the allotments to the owner's.
He stated that prior to the agreement dt. 03.11.1986 (Ex. PW8/A) the
entire fourth floor was not assured/ promised to his father. He admitted that
particularly flat no. 406A was never promised to the owner or its family by
Skipper Sales Pvt. Ltd or Harpreet Singh.
PW8 Sh. Ajay Singh was recalled for examination U/s. 311 Cr. PC
vide detailed order dt. 18.05.2015. In re examination he stated that on
22.04.1985 he alongwith his family members entered into collaboration
agreement with Skipper Sales Pvt. Ltd. and proved the same as Ex. PW8/B
bearing his signatures at point A.
During his cross examination, he admitted that in the schedule of Ex.
PW8/B there is no reference to the allotment of any space on the fourth
floor to them and admitted that flat no. 406A was never specifically allotted
to them in the year 1985 or thereafter.
(ix) PW9. Retired Colonel R. K. Grover identified several documents
attested by him after seeing the originals i.e. Mark C, D and K1 to K20.
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(x) PW10 Inspector Rajender Bhatia was the main Investigating Officer
of this case. He conducted the investigation of the present case after
collecting the relevant documents, recorded the statement of witnesses and
identified the signatures of executants on the agreement dt. 03.11.1986.
During his cross examination by the Ld. Counsel for accused
Tejwant Singh, he deposed that he concluded the investigation within seven
and half month and filed the chargesheet on 31.08.1992. He stated that he
did not issue any notice U/s. 91 Cr. PC in this case. He admitted that Dr.
Manmohan Nath, another allottee in the building was not examined in this
case and stated that he did not deem it necessary to record any statement
of complainant U/s. 161 Cr. PC as FIR was registered on his complaint only.
He did not examine any sons /successors of Mr. Vijender Singh in this case
except Vijender Singh.
During cross examination on behalf of accused Harpreet Singh
and Skipper Sales Pvt Ltd, he stated that when the investigation was
handed over to him there was no agreement between owners and
collaborators available on the file. He admitted that in this case neither he
seized any agreement dt. 22.04.1985 nor have seen it during investigation
or after filing of the chargesheet. He deposed that during investigation, he
did not peruse the terms and conditions of agreement dt. 22.04.1985 which
was referred in subsequent agreement dt. 03.11.1986.
He stated that there was no provision regarding the exclusive
entitlement of Vijender Singh and family and Manmohan Nath and family of
4th floor and after the execution of agreement dt. 03.11.1986 no
correspondence or letter was written by the complainant General Joginder
Singh to M/s. Skipper Sales Pvt. Ltd or Harpreet Singh. He admitted that
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the allotment of 09.01.1986 was provisional in nature and it is a matter of
record.
He admitted that before filing the chargesheet he has gone through
the contents, terms and conditions of allotment letter dt. 09.01.1986 and also
admitted that in the last para of the said allotment letter there is acceptance
clause and acknowledgment duly signed by the allottees including
complainant herein. He also admitted that the said flat was jointly allotted to
seven allottees including complainant herein and he did not examine any
other allottees apart from the complainant herein.
During cross examination on behalf of accused M/s. Skipper
Tower Pvt Ltd., he admitted that when the assignment agreement was
executed M/s. Skipper Towers Pvt Ltd had no role to play in connection with
the allotment of flats in Skipper Bhawan prior to 03.11.1986. He did not
examine any officer/officers of the NDMC to know about the exact area to
be constructed on the building in question as he did not deem it fit.
4). After conclusion of prosecution evidence, matter was fixed for
Statement of Accused. Thereafter, questionnaire /Statement U/s. 313 Cr. PC
with respect to accused persons have been supplied to the accused
persons through their counsels and written statement U/sec. 313 (5) Cr. PC
were filed by the accused persons wherein they denied all the incriminating
evidence against them available on record. No defence evidence was lead
on behalf of any of the accused despite opportunity given.
CONTENTIONS
5). During the course of final arguments Ld. APP for the State duly
assisted through Ld. Counsel for complainant presented their case and
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submitted that the project in question was launched /promoted by accused
M/s. Skipper Sales Pvt. Ltd having accused Tejwant Singh, Mrs. Surinder
Kaur, Harpreet Singh and Tejbir Singh as its Directors and equity share
holders out of which accused Surinder Kaur and Tejbir Singh already stand
discharged. Subsequently the project was assigned to Skipper Towers Pvt.
Ltd. having Tejwant Singh its Managing Director.
It is argued that accused Harpreet Singh was the Managing Director
of Skipper Sales Pvt Ltd at the time of allotment as reflected in the annual
return reports for the years 1978, 1985 & 1986 in Ex. PW2/24, PW2/31 &
PW2/32 and Managing Director is responsible for the functioning and
management of the company. The company being a juristic entity always
acts through an individual only, thus requires piercing of corporate veil to
ascertain the responsibility of individuals. In support of this contention, the
complainant has relied upon the case titled as Delhi Development
Authority vs. Skipper Construction Company P. Ltd & Anr. JT 1996 (4)
SC 679 wherein it is held that:
28. The concept of corporate entity was evolved to
encourage and promote trade and commerce : but not to
commit illegalities or to defraud people. Where, therefore, the
corporate character is employed for the purpose of committing
illegality or for defrauding others, the court would ignore the
corporate character and will look at the reality behind the
corporate veil so as to enable it to pass appropriate orders to do
justice between the parties concerned.
Secondly, it is contended that as the flat in question i.e. 406 A would
fall in between flat no. 403A to 408 which were already reserved for the
owners/ collaborators vide collaboration agreement dt. 22.04.1985 proved
as Ex. PW8/B, thus as per section 91 & 92 of Indian Evidence Act the
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testimony of PW8 in respect of written agreement can not be looked into as
the law forbids proving the contents of writing otherwise than by writing
itself.
Ld. Counsel for complainant fortified this contention and submitted
that when a jural act is embodied in a single memorial all other utterances
of the parties on the topic are legally immaterial for the purpose of
determining what are the terms of their act. This rule is based upon an
assumed intention on the part of the contracting parties, evidenced by the
existence of the written contract, to place themselves above the
uncertainties of oral evidence and on a disinclination of the Courts to defeat
this object. When a person expresses their Agreements in writing, it is for
the express purpose of getting rid of any indefiniteness and to put their
ideas in such shape that there can be no misunderstanding, which so often
occurs when reliance is placed upon oral statements. Written contract
presume deliberation on the part of the contracting parties and it is natural
they should be treated with careful consideration by the Courts and with a
disinclination to disturb the conditions of the matters as embodied in them
by the act of the parties.
It is further submitted that a contract being a creature of an
agreement between two or more parties, has to be interpreted giving literal
meanings unless, there is some ambiguity therein. The contract is to be
interpreted giving the actual meaning to the words contained in the contract
and it is not permissible for the Court to make a new contract, however
reasonable, if the parties have not made it themselves. It is to be interpreted
in such a way that its terms may not be varied. The contract has to be
interpreted without any outside aid. The terms of the contract have to be
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construed strictly without altering the nature of the contract, as it may affect
the interest of either of the parties adversely. In support of this contention
reliance was placed on case titled as Rajasthan State Industrial
Development & Investment Corpn. Vs. Diamond & Gem Development
Corpn. Ltd. (2013) 5 SCC 470.
Thirdly, it is contended that the nature of allotment was 'provisional'
qua sanctions & plans only as it was clear from clause no. 1 of the letter dt.
09.01.1986 but as the allotment letter is executed after eight years of taking
the possession of the property from the owner of the building, therefore, by
that time sanctions must have been in place and the factum of non
sanctioning of the plan mentioned in allotment letter is prima facie false and
incorrect and reflects intention of the accused persons. It is further argued
that the defence taken by the accused that the allotment letter has not
conferred any right to the complainant over the property as there is no sale
deed then the demand & receipt of the payment against allotment also
shows the intention to cheat the complainant.
It is further contended by the complainant that even as per the
annexures of the tripartite agreement dated 03.11.1986 the space on the 4th
floor was increased from 4085 sq ft to 6035 sq. ft and it was exclusively
reserved for the owner and it was agreed that there would be no buyers on
the 4th floor other then Dr. Manmohan Nath & owner respectively. Despite
the same the payment was continued to be taken in the name of flat no. 406
A as reflected in receipts Ex.PW1/13, Ex.PW1/15, Ex.PW1/16,
Ex.PW1/32 & Ex.PW1/40 and there was no intimation to the complainant
about the tripartite agreement which reflects the intention of the accused
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persons. It was further argued that even vide letter dt. 12.05.1990 and
25.05.1990 the flat number was changed as 412 but still on the 4th floor as
reflected in Ex.PW1/11, Ex.PW1/12 and Mark A.
The counsel for complainant further detailed out the sequence of
events discussed above and stated that there were three agreements. The
Collaboration Agreement dated. 22.05.1985(Ex.PW8/B), followed by
Allotment Letter dated 09.01.1986(Ex.PW1/1), followed by the Tripartite
Agreement dated 03.11.1986(Ex.PW8/A). The Collaboration Agreement
dated 22.04.1985 had already alloted the space 403A408 to the Owners
after which 406A was alloted to the Complainant and his family.
Subsequently, while revalidating the Collaboration Agreement dated.
22.04.1985 the accused entered into a Tripartite Agreement dated.
03.11.1986 wherein the space alloted to the owners on the 4th floor was
increased and the entire 4th floor was reserved for the Owners. Thus the
intention to cheat was there at the very inception whether the point of
inception be taken to be the fact that 406A was alloted vide Allotment letter
dated 09.01.1986 while space bearing number 403A408 was reserved for
the owner vide Collaboration Agreement dated 22.04.1985 or the fact that
despite having allotted the Complainant 406 A the entire 4th floor was later
reserved for the Owners vide Tripartite Agreement dated 03.11.1986, without
any intimation.
It was furthered argued on behalf of complainant that despite making
the entire payment towards the flat in question admeasuring about 369 Sq.
Ft the complainant was never given possession and the civil proceedings
were initiated wherein the committee appointed by the Hon'ble High Court
alloted reduced space to the complainant against his booking which was
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confirmed by Hon'ble Delhi High Court in case titled as Skipper Bhawan
Flat Buyers Association vs. Skipper Towers Pvt. Ltd.
DEFENCE
6). Ld. Defence counsel for accused Tejwant Singh and Skipper Towers
Pvt. Ltd argued that at the time of inception of the controversy in question
i.e. 09.01.1986 the accused Skipper Towers Pvt. Ltd was not in picture and
has no concern with the project in question therefore, accused Skipper
Towers Pvt. Ltd has no occasion to cheat the complainant as alleged. It is
further argued that Skipper Towers Pvt. Ltd came into picture by virtue of
tripartite agreement dt. 03.11.1986 wherein the project was assigned to
Skipper Towers Pvt. Ltd and by that time the complainant has already been
allotted the space therefore, offence of cheating can not be attracted qua
the company as one of the essential ingredients of the cheating is that
inducement must be at the time of inception.
On behalf of accused Tejwant Singh it was argued that no specific
role has been assigned to accused Tejwant Singh in the functioning of
Skipper Sales Pvt. Ltd as he was merely a Director and there is no evidence
on record against accused Tejwant Singh.
It is further argued that even the concept of vicarious liability can not
be attracted for the offence in question, therefore the accused can not be
held liable for the offence, if any, committed by the company as held in
Maksud Saiyed vs. State of Gujarat & Ors. (2008) 5 SCC 668 and relied
upon in G. H. C. L. vs. India Info Line (2013) 4 SCC 505 wherein it was
observed :
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"Where a jurisdiction is exercised on a complaint petition
filed in terms of Section 156(3) or Section 200 of the Code of
Criminal Procedure, the Magistrate is required to apply his mind.
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 the Company.
The learned Magistrate failed to pose unto himself the correct
question viz. as to whether the complaint petition, even if given
face value and taken to be correct in its entirety, would lead to
the conclusion that the respondents herein were personally liable
for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability."
It is further argued on behalf of accused Tejwant Singh that as per the testimony of complainant, he never met any official/ representative of M/s. Skipper Towers Pvt. Ltd or accused Tejwant Singh prior to 26.02.1990 though he made the last payment in respect of the flat on 08.09.1988 so no occasion of inducement arises at all.
It is further argued that space booked by the complainant vide Ex. PW1/1 dated 09.01.1986 was provisional booking subject to change in area, floor etc. as specifically incorporated in Ex. PW1/1 which was duly agreed by the father of complainant and thus, the complainant can not FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 18 of 44 alleged any misrepresentation/ inducement because of the said agreement as he was not in the picture at that time.
Ld. counsel for accused further submitted that prosecution has not brought any evidence on record to show that there is shortage of area on 4 th floor after reserving space for collaborators specifically Dr. Manmohan Nath and Vijender Singh as neither Dr. Manmohan Nath was interrogated during investigation nor he was examined as witness before the court. Rather on the other hand, Mr. Ajay Singh i.e. PW8, who was the signatory of said agreement was examined by the prosecution U/s. 311 Cr. PC, who has not supported the prosecution case and specifically admitted that prior to agreement dt. 03.11.1986 the entire fourth floor was not assured/ promised to his father and particularly flat no. 406A was never promised to the owner or its family by Skipper Sales Pvt. Ltd or Harpreet Singh in the year 1985 or thereafter.
He further argued that the investigation of the instant case was conducted in extremely casual manner by the Investigating Officer as he never bothered to collect the agreements dt. 22.04.1985 or dt. 03.11.1986 nor he examined Dr. Manmohan Nath or any successor of Mr. Vijender Singh. Even the investigating officer did not peruse the terms and conditions of the agreement dt. 22.04.1985 which was referred specifically in agreement dt. 03.11.1986 and heavily relied upon by the prosecution during the evidence.
It is further submitted by the counsel for accused Tejwant Singh and M/s. Skipper Towers Pvt. Ltd that none of the original documents have been collected in the evidence by the investigating agency nor any investigation FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 19 of 44 was conducted qua the said documents and therefore, their genuineness is doubtful and objections to this effect and qua their mode of proof have already been placed on record.
Thereafter, Ld. Counsel for accused Skipper Sales Pvt. Ltd and Harpreet Singh argued the matter at length.
Ld. Counsel for accused Skipper Sales Pvt. Ltd and Harpreet Singh argued that the contention raised by the complainant that accused Harpreet Singh was the Managing Director of Skipper Sales Pvt Ltd is false and baseless as annual return report for the period 198586 were filled in 1993 by Harpreet Singh being its Managing Director at that time but it does not show that he was Managing Director in the year 198586 as assumed by the complainant.
It is further argued on behalf of accused that the allotment is provisional in nature and subject to all changes as categorically mentioned in para 1 of the allotment letter Ex. PW1/1 and it was duly agreed upon by Sh. Diwan Singh i.e. father of the complainant who executed the said agreement on behalf of himself as well as for other allottees. As Mr. Diwan Singh, i.e. father of the complainant has agreed to all the terms and conditions specifically mentioned in the allotment letter Ex. PW1/1 therefore, the allegations of cheating levelled by one of the allottee who was not even in the picture at the time of execution of agreement Ex. PW1/1 is baseless and motivated. Ld. counsel further argued that even the prosecution has not alleged that PW1 has not been given any space at all or it was constructed at a land which does not belong to them or the sale was fraudulent or sanction was not there, therefore, no fraud or cheating FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 20 of 44 has been committed.
It is further argued that the allegations that Skipper Sales Pvt. Ltd was not allowed to sell flat no. 406A on 09.01.1986 to the complainant is baseless as nothing has come on record to even suggest that on 09.01.1986 the entire 4th floor was already allotted to the owner i.e. Vijender Singh or his family. Even PW8 Ajay Singh, who is signatory of agreement Ex. PW8/A admitted in his cross examination that he was aware of the obligation of the parties to this agreement before signing this agreement and prior to agreement dt. 03.11.1986 the entire 4th floor was not assured or promised to his father, particularly flat no. 406A was never promised to the owner or its family by Skipper Sales Pvt. Ltd or Harpreet Singh. Ld. Counsel for accused Harpreet Singh and Skipper Sales Pvt. Ltd further argued that as PW8 was never reexamined as per Section 137 & 138 of Indian Evidence Act nor declared hostile, therefore, his testimony has to be read as the case of the prosecution, he being prosecution witness called U/sec. 311 Cr. PC.
Ld. Counsel for accused further argued that the testimony of PW8 is the last nail in the coffin of the prosecution story as he assailed the entire prosecution case and explained the covenant/ terms and conditions incorporated in Ex. PW8/A and PW8/B to which he is a party and signatory and therefore, no other interpretation to the said agreement can be given except the one interpreted by PW8, who is signatory to those agreements. Ld. Counsel for accused further pointed out the lacunas in the investigation of the present case.
Lastly, it is argued that being state case, prosecution has to travel the entire distance of may prove to must prove in order to establish its case and FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 21 of 44 any benefit of doubt has to be given to the accused as prosecution has to establish its case beyond reasonable doubts.
In support of his contentions, Ld. Counsel for accused has relied upon the following judgments:
(i). Haridaya Ranjan Prasad Verma & Anr Vs State of Bihar & Anr. (2004)SCC 168 : In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
(ii). Dalip Kumar & Others Vs. Jagnar Singh & Anr. (2009) 14 SCC
696.
"An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. A pure and simple breach of contract does not constitute an offence of cheating."
(iii). V.Y Jose & Anr Vs. State of Gujrat & Anr(2009) 3 SCC 78.
12. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 22 of 44 in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out.
(iv). Thermax Limited & Others Vs. K. M. Johny & Others (2011) 13 SCC
412.
37) It is settled law that the essential ingredients for an offence under Section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of Section 420 are not attracted, the prosecution initiated is wholly untenable. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contract and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction.
In as much as there are number of documents to show that appellantCompany had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellantCompany amounts to a breach of contract.
(v). Indian Oil Corpn. v. NEPC India Ltd. and Others, (2006) 6 SCC 736 "... Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."
(vi). Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, (2007) 12 SCC 1:
"The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 23 of 44 vendetta or with an ulterior motive to pressurise the accused."
(vii). Ashish Batham Vs. State of M.P(2002) 7 SCC 317(para 8).
"Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
(viii). Dasari Siva Prasad Reddy Vs. Public Prosecutor High Court of AP(2004) 11 SCC 282.
"A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial Court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 24 of 44 evidence, the benefit of doubt given to the accused by the trial Court warranted no interference by the High Court."
(ix). Prem Singh Yadav Vs. CBI 2011(2) JCC 1059.
"Though, the accused has led no evidence in defence, but from the crossexaminations of prosecution witnesses he has satisfactorily discharged the onus laid upon him. By preponderance of probability the accused has been able to create doubt in the prosecution case. From the evidence as noticed above, a suspicion arises against the prosecution case, more so, in view of the fact that the complainant might be having a grudge against the accused for challaning him on previous occasions. Even otherwise, in view of all this it is difficult to hold that prosecution has proved its case beyond reasonable doubt. It is also well settled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail."
(viii). Babu Vs. State of Kerala (2010) 9 SCC 189.
"Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction."
Both the parties also filed written submissions in support of their contentions. Heard. Perused. Considered.
LAW POINTS RELEVANT TO DECIDE THE ISSUE IN QUESTION
7). In the instant case, accused are facing trial for the offence of cheating punishable U/s. 420 IPC.
FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 25 of 44 Cheating is defined in Section 415 of the Code as, "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation A dishonest concealment of facts is a deception within the meaning of this section.
The section requires (1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property.
Section 91 of Indian Evidence Act provides as under:
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.--When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.--When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence2 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." Exception 1.--When a public officer is FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 26 of 44 required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.--Wills 2[admitted to probate in 3[India]] may be proved by the probate.
Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation. 2.--Where there are more originals than one, one original only need be proved. Explanation 3.--The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
Section 92 of Indian Evidence Act provides as under:
92. Exclusion of evidence of oral agreement.--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1) .--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law: (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 3[want or failure] of consideration, or mistake in fact or law\:" Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 27 of 44 proviso applies, the Court shall have regard to the degree of formality of the document: Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved: Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents: Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract: Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts.
Meaning thereby in order to attract the offence of cheating there should be deception of a person at the inception followed by fraudulent or dishonest inducement or intentional inducement.
As this is a state case, the onus lies upon the prosecution to establish its case beyond reasonable doubts. The prosecution can not take any benefit out of the lacuna's of the defence and it has to stand on its own legs. Accordingly, the gist of the contentions of the prosecution/ complainant are as follows:
(i). Accused Skipper Sales Pvt. Ltd allotted fourth floor to the complainant and family members despite being not authorized to do so as the same was already reserved for owners vide collaboration agreement dt. 22.04.1985 Ex. PW8/B. FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 28 of 44
(ii). Despite allotment of flat /space no. 406 A to the complainant and his family members on 09.01.1986 the same was exclusively reserved for owners / collaborators vide agreement dt. 03.11.1986 without any intimation or consent of the complainant or his family members.
(iii). The guilty mind of the accused persons can also be gathered from the fact that even after agreement dt. 03.11.1986 the payments were received from the complainant qua flat no. 406A.
(iv). The allotment was 'provisional' qua plans which are yet to be sanctioned and not at the whims of the builders.
(v). As per provisions of Section 91 and 92 of Indian Evidence Act oral testimony qua a written document is inadmissible.
(vi) Lastly, the flat /space was never allotted to the complainant by the builder despite receiving the entire payment and it was allotted by the orders of Hon'ble High Court.
FINDINGS
8). Precisely speaking this case revolves around three documents i.e. allotment letter Ex. PW1/1, the terms and conditions of Tripartite Agreement dated 03.11.1986 Ex. PW8/A and collaboration agreement dt. 22.04.1985 Ex. PW8/B. In order to decide the issue the relevant portion of these documents are reproduced herein even at the cost of brevity. A. Agreement dt. 22.04.1985 (Ex. PW8/B) reads as follows:
(i). ........................
(ii). ........................
(iii). .....................
FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 29 of 44
(iv) Under the Master Plan of Delhi, the area in which the said property is located has been designed as a commercial area.
And Whereas the builders have agreed to provide 7 ½ % of the total built and unbuilt area, covered area of space in the constructed and open area for the consideration of the use of the Owner will all the rights, interests and titles in the said property.
(i). .........
(ii). That the agreement to sell dated 24th June, 1977 stands altered / modified to the extent hereinafter provided:
(a) It is expressly understood between the parties that the Owner is jointly the owner of this building /project with the clear understanding that the owner shall be entitled to an area of 7 ½ % of the total built and unbuilt area as per schedule provided in this agreement alongwith the proposed plan which clearly depicts the area in the red marking the said red marked area shall be owned, possessed by the Owner and the builders upon completion of the Project.
(iii) ....................
(iv) .....................
(v) .......................
(vi) That the Builders are hereby entitled and expressly empowered for
and on behalf of and in the name of Owner to apply to the New Delhi Municipal Committee and /or apply to such other authorities as may be concerned in the matter for securing requisite permission, sanctions and approvals for the demolition of the existing structure at 22, Barakhamba Road, New Delhi and also the permission, sanctions and approvals for the construction of the multistoreyed commercial building of the said plot of land. However, the Builders shall always be entitled to make or convert to all such variations and amendments in the design of the building to be constructed as above and /or any variations in the building plans therefore as may be considered necessary by the Builders in the discretion of the Builders provided always that the Builders undertake to keep the Owner informed from time to time in writing about the progress of the receipt of the said permissions, sanctions and approvals.
SCHEDULE
First floor
FIR NO.: 454/1991 POLICE STATION: Connaught Place
U/Sec. 420 IPC Page No. 30 of 44
Flat No. 102 550 sq. ft.
Third Floor
Flat Nos. 306 750 sq. ft.
and 307 750 sq. ft.
Flat No. 403A
to 408 4085 sq. ft.
6135 sq. ft.
B. The allotment Letter (Ex. PW1/1) reads as follows:
Subject: Allotment of Shop/ Office/ Stores in our proposed
commercial building at 22, Barakhamba Road, New Delhi110001.
In response to your application we (hereinafter called the Builders) have allotted you office no. 406A (which will hereinafter be referred as 'Flat' and the allottee as 'Flat Buyer') of an approximate covered area of 369 on fourth floor denoted by No. 406A in the proposed building on plot no. 22, Barakhamba Road, New Delhi at Rs. 900/ (Rupees Nine Hundred only) per sq. ft. inclusive of L&DO Charges.
Allotment is made subject to your acceptance of the following terms & conditions:
1. The allotment is 'Provisional'. The plans are yet to be sanctioned. If for any reason, any changes are made by sanctioning authorities, or by the Architects, or the Builders resulting in reduction or increase in the above mentioned area of its location, no claim, monetary or otherwise will be raised or accepted except that the aforesaid rate per sq. ft. will be applicable on the changed area. In case the flat is changed to a different floor, the rate of that floor as applicable will be changed. In case of absolute deletion of the flat from the sanctioned plans, no claim, property or otherwise, will be raised or accepted but FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 31 of 44 the amount received will be refunded in full without any interest.
2. If for any reason, whether within or outside our control, the whole or part of the project is abandoned, no claim will be preferred by you nor entertained by us, except that your money will be refunded in full without any interest.
3. .......................
4. .......................
5. If the area differs at the time of possession, cost would be adjusted upwards or downwards as the case may be on the basis of the rate afore mentioned.
6. ...................
7. The allotment is subject to your accepting the terms of the flat buyers agreement which you hereby agree to sign before possession is given to you.
I/we hereby accept the terms & conditions mentioned above.
Signature of Allottee Diwan Singh (for self and Power of Attorney) for Smt. Kaushalya Devi Brig. Joginder Singh Bhupinder Singh Dr. Satpal Singh Jagjit Singh Amarjeet Singh C. Agreement dt. 03.11.1986 (Ex. PW8/A) reads as follows: That subsequent to the said Collaboration Agreement dated 22nd FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 32 of 44 April 1985, the building floor plans have been revised as a result of which a fresh schedule has been drawn and areas reallocated as per schedule accompanied with respective floor plans also indicating flat numbers of the areas allotted and marked in red are attached as 'AnnexureB' and which will form a part of this Agreement.
SCHEDULE
1. Basements 20,436X3= 61,308 sq. ft.
2. Ground floor 12,414X1= 12,414 sq. ft.
3. Typical floors10,122X10= 101,220 sq. ft.
4. ......................
5. ......................
6. ......................
Areas Allotted to the Owners
1. Basements Areas Flat Nos.
(i). Upper Basement 1600 28
(ii). Middle Basement 1500 16,17,18 & 19
(iii).Lower Basement 1500 16,17,18 & 19
2.Ground Floor 1125 G4B
3. Typical Floors
1st Floor 760 101
3rd Floor 800 306
FIR NO.: 454/1991 POLICE STATION: Connaught Place
U/Sec. 420 IPC Page No. 33 of 44
4th Floor 6035 401
4. Mezzanine Floor ............
5. Ground floor/ road level car parking .............
6. Open spaces, roof, advertisement space and other utilisable spaces, parkways, etc................
NOTES TO THE SCHEDULE In case of any increase or decrease of the other areas (item Nos. 1, 2 & 3) of the schedule the same shall be adjusted as follows:
1. Basements: .............
2. Ground Floor: ...........
3. Typical Floors: At present 1 to 10 floors are being constructed/ sanctioned and in case another floor/ floors are added resultant increase of 7½ % of the additional allocable area shall be affected on 3rd floor adjoining flat no. 306 likewise if the total area of all the typical floors is found less the adjustment shall be from flat no. 306 on the third floor. However, the 4th floor has been allotted to the Owner in full other than 4085 sq. ft. allotted to Dr. Man Mohan Nath and family. In case area are found in excess of 4085 plus 6035 sq. ft. as mentioned above or found less on this floor the same will be adjusted against Owner's share on 3rd floor and there will be no other flat buyer/ owner on the said 4th floor. The documents Ex. PW8/A collaboration agreement dt. 03.11.1986 has been duly singed by the Directors of M/s. Skipper Sales Pvt. Ltd. and M/s. Skipper Towers Pvt. Ltd., Sh. Vijendra Singh, Smt. Kalpna Singh, Sh Ashish Singh and Sh. Ajay Singh.
Succinctly speaking prosecution alleges complainant was cheated by FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 34 of 44 the allotment of flat no. 406A which was already reserved for owners and thus never intended to be given to the complainant.
Deception at the inception is essential ingredient in order to establish the offence of cheating. Deception is played upon the mental faculties of an individual. In the instant case the inception qua the complainant is to be seen as the date of allotment letter Ex. PW1/1. The said allotment letter is in the nature of agreement as it contemplates the rights and obligations of both the parties to the agreement i.e. seller and allottees and bear their signatures as well. In the allotment letter Ex. PW1/1, it is categorically mentioned that it has been entered into on behalf of allottees after accepting all the terms and conditions incorporated therein. Therefore, for all practical purposes it can be considered as an agreement between two parties.
Interestingly, the said agreement/ allotment letter was signed by Skipper Sales Pvt. Ltd. being the seller/ promoter of the project on one hand and Sh. Diwan Singh, father of the complainant for himself as well as being Power of Attorney holder for several other members of his family including complainant herein. Though the said Power of Attorney was never brought on record and as the complainant was not in picture at the time of execution of said allotment letter nor it was executed in his presence therefore, whether the father of the complainant was allured, induced or any deception was played upon him to sign the said allotment letter, can not be contemplated by the complainant or anybody else in the absence of testimony of the parties to the said agreement i.e. his father himself. In these circumstances, when the testimony of the father of the complainant, who agreed with the terms and conditions of the allotment letter Ex. PW1/1 FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 35 of 44 and signed it is not available, no one else including complainant who is also a beneficiary of the said allotment letter can depose as to the state of mind of his father at that time or regarding any deception being played upon Sh. Diwan Singh by the accused company at the relevant point of time. In these circumstances, the terms and conditions postulated in the said allotment letter shall be considered as final and deemed to be agreed between the parties before executing the said agreement.
A bare perusal of the said agreement i.e. allotment letter Ex. PW1/1, makes it ample clear that by the time it was executed, the entire project was at the nascent stage of deliberations and nothing was put to execution as reflected in the terms of the said allotment letter. It categorically provides that it is provisional in nature and the builders shall have the exclusive rights to change the floor, area, dimensions or to even completely abandon it. For the arguments sake, the conditions may be called as one sided or giving undue advantage to one over other. However, once it is agreed by both the parties no one can deviate from it.
The content of the said allotment letter is explicit in nature. The allotment letter is duly accepted by the father of the complainant namely Sh. Diwan Singh. Even the terms and conditions of the allotment letter goes to the extent that in case the whole or part of the project is abandoned, no claim shall be preferred nor entertained except the refund of money in full without any interest. It was also specifically mentioned in the said allotment letter that if the area differs at the time of possession, cost would be adjusted accordingly. Even the drawing displayed in the office of the builders at the time of allotment were mentioned to be provisional in nature subject to changes either by the sanctioning authorities / architects or FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 36 of 44 builders during the course of construction without any objection or claim from the flat buyers. These covenants were specifically mentioned in the said allotment letter which was duly accepted by the father of the complainant, who signed the agreement/ allotment letter on behalf of complainant also apart from other allottees. It shows that at the time of allotment the entire project was at the stage of planning only and it had not taken any concrete shape by then. It can also be inferred from the agreement dt. 22.04.1985 which was subsequently totally revised in 1986.
Even otherwise as per section 91 of Indian Evidence Act, if the terms of contract is reduced in the form of document, no evidence contrary to the said document is admissible. Hence, the contentions of the complainant that the allotment letter was provisional qua plans only and not qua the rights of the builders is rejected.
Further a thorough reading of agreement dt. 22.04.1985 (Ex. PW1/B) shows that by virtue of this agreement the erstwhile owner of the land on which the project is to be developed entered into an agreement with the developers i.e. M/s. Skipper Sales Pvt. Ltd whereby it was agreed that 7 ½ % total built and unbuilt area shall be reserved for the erstwhile owners with all the rights in the said property. However, the description of the area, measurement and its exact location has not been provided in the entire agreement except the schedule annexed with the said agreement. There can not be any interpretation befitting either to the complainant or to the accused persons regarding the details recorded in the said schedule except what is expressively mentioned in the said schedule. As per the said schedule, under the head of typical floors no. 1 to 10 the total area is shown as 81,700 sq. ft. and the allotted area is shown as 6135 sq. ft. It is further FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 37 of 44 detailed out that the allotted area on first floor flat no. 102 is 550 sq. ft. and on 3rd floor vide flat no. 306 and 307 is 750 sq. ft. each and flat no. 403A to 408 is 4085 sq. ft. The total allotted area on first floor and third floor is 6135 sq. ft.
The Ld. Counsel for the complainant argued that area reserved under the sub heading of third floor vide flat no. 403A to 408 sq. ft. pertains to fourth floor of the project and includes the flat no. 406A which was dishonestly later on allotted to the complainant vide allotment letter Ex. PW1/1. However, the State as well as Ld. Counsel for complainant failed to explain as to how they came to the conclusion that flat no. 403A to 408 specifically shown on third floor, pertains to flat to be constructed on fourth floor which was specifically allotted to the complainant herein.
It is argued that as per the prevailing practice, if flat bearing number 100 onwards is on first floor and flat bearing number 300 onwards is on third floor then obviously flat no. 403A to 408 admeasuring 4085 sq. ft. mentioned in the schedule were meant to be constructed on fourth floor. However, Ld. APP for State/ counsel for complainant failed to explain as to what prevented the parties to the agreement dt. 22.04.1985 in specifically mentioning the flat no. 403A under the sub heading of fourth floor as it was done in the case of first floor and third floor. Even if it is presumed that flats bearing no. 403A to 408 should be on fourth floor then the best explanation to this effect would be of the parties to the agreement only who executed it. Neither the complainant nor his father was present at the time of execution of the said agreement, therefore, any interpretation to the terms of the said schedule contrary to what is reduced in writing in the said schedule itself, is inadmissible U/s. 91 & 92 of Indian Evidence Act. In such a situation, in FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 38 of 44 case if there is any ambiguity regarding the terms and conditions or the allotment of floor, the best evidence would be of the person, who executed the said agreement as he is the only one who is in a position to explain as to what was the intention while recording so in the said agreement. In these circumstances, the testimony of PW8, who is the signatory of document become relevant. PW8 categorically deposed before the court while proving agreement dt. 22.04.1985 (Ex. PW8/B.) that prior to the agreement dt. 03.11.1986, the entire fourth floor was not assured/ promised to his father and flat no. 406A was never promised to the owner or its family by the accused company.
In his further cross examination, he admitted that in schedule annexed to the agreement Ex. PW8/B, there is no reference to the allotment of any space on fourth floor to them and floor no. 406A was never specifically allotted to them in the year 1985 or thereafter. Interestingly, PW8 is a prosecution witness, who was summoned U/s. 311 Cr. PC on an application filed by the complainant through prosecution. He is the only one who proved the agreement in question i.e. Ex. PW8/B. Thus, he being a prosecution witness, who has neither being declared hostile nor re examined, his testimony would be considered as the case of prosecution. Hence, by virtue of his testimony and on the bare perusal of the schedule, it becomes ample clear that flat no. 406A on fourth floor was not reserved for its owners vide agreement Ex. PW8/B. Thus, this contention of the complainant stand rejected.
The next limb of change refers to agreement dated 03.11.1986 vide which entire fourth floor was reserved for owners/ collaborators though space no. 406A on fourth floor was already allotted to complainant and his FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 39 of 44 family vide Ex. PW1/1 dated 09.01.1986. It is argued on behalf of the prosecution that this conduct of accused persons shows their dishonest intention. Opposing this contention, the defence counsel argued that flat no. 406A was never allotted to the owners/ collaborators on the fourth floor.
On perusal of the agreement dt. 03.11.1986, it is observed that in the schedule annexed to the agreement it is recorded that flat no. 401 ad measuring 6035 sq. ft. is allotted to the owners and as per the note annexed to the schedule the fourth floor was allotted to the owner in full other than 4085 sq. ft. allotted to Dr. Manmohan Nath and family and it was also recorded therein that there will be no flat buyer/ owner on the said floor.
However, prosecution failed to explain the total area available on fourth floor because as per earlier agreement the area alloted to owners on fourth floor i.e. 4085 sq. ft. whereas by virtue of agreement dt. 03.11.1986 an area of 6035 sq. ft. in addition to 4085 sq. ft. was available on fourth floor. If it is presumed that an area of around more than 10,000 sq. ft. was available on fourth floor as per agreement dt. 03.11.1986 then the contention of the prosecution that vide agreement dt. 22.04.1985 the entire fourth floor was reserved for owners and there was no space available to be allotted to the complainant herein is perse contradictory. No evidence has been placed on record to show the total area available on fourth floor at any point of time. Though it could be very well ascertained by physical verification during investigation. Further, Dr. Manmohan Nath, who was allotted the area of 4085 sq. ft. on the said floor was neither examined in the instant case nor named witness by the prosecution.
In these circumstances, it is crystal clear that at the time of allotment FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 40 of 44 of flat vide allotment letter (Ex. PW1/1) to the complainant and his family members surplus space was available to the promoters/ Skipper Sales Pvt. Ltd apart from the space agreed to be reserved for owners vide agreement dt. 22.04.1985, therefore, the contention of the complainant that he was cheated by the allotment of the said flat vide allotment letter Ex. PW1/1 is not maintainable. Though its subsequent allotment/ reservation to the owners /collaborators should have excluded the area allotted vide Ex. PW1/1 still at best it amounts to breach of contract if at all, considering the terms of allotment letter but by no stretch of imagination attracts criminality. The entire prosecution case revolves around wrong allotment but prosecution neither alleges that no space at all allotted to the complainant or it was never intended to be given nor there is any evidence to this effect.
Further the complainant himself during his cross examination, assailed entire prosecution story by admitting that he never raised any objection regarding the contents of the allotment letter nor had any grievance against it. He also admitted that his father had admitted the terms and conditions incorporated in the allotment letter Ex. PW1/1 by signing it and none of the allottees including himself and others raised any objection to such terms and conditions and they whole heartedly accepted the actions of his father. He also admitted that his father who was alive at the time of filing of instant complaint, did not give him any document regarding any restriction on M/s. Skipper Sales Pvt. Ltd. regarding change of flat on fourth floor to other floor nor he had any personal knowledge regarding the execution of agreement between Vijender Singh and Skipper Sales / Skipper Towers P. Ltd. and the change of allotment of space in the floor i.e. from fourth floor to third floor was permitted in terms of the allotment letter FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 41 of 44 dated 09.01.1986 (Ex. PW1/1). Further, the contention of Ld. Counsel for complainant that factum of non sanctioning of plan mentioned in allotment letter reflects guilty mind of the accused persons do not hold water in view of the admission of the complainant during his testimony that there were several bookings for space/ flat etc. with Skipper Sales Pvt. Ltd. in the proposed building much prior its plans were sanctioned and much before construction of the building had started. Even the contention regarding receipt of payment against flat no. 406 A even after execution of tripartite agreement dated 03.11.1986 does not attract dishonest intention on the part of the accused as it was merely an irregularity which was not even objected by the complainant despite being aware of the same as by that time the exact nomenclature / identity of the space allocated to the complainant was not ascertained. This fact can be gathered from the cross examination of the complainant itself.
Further, it is proved that the allotment was provisional and was subject to all kind of modifications, amendments, addition, deletion qua sanctioning authority as well as by the builders as fairly admitted by the complainant during his cross examination and thus, this contention of the complainant is also rejected.
Law is no more resintegra that when there is dearth of direct evidence, the chain of circumstantial evidence comes into play. However, in cases of circumstantial evidence the prosecution has to establish complete chain of evidence leading to only presumption of guilt and no one else. But in case, it leads to two presumption, one favouring the accused shall be adopted. In C. Chenga Reddy and others vs. State of A.P. (1996) 10 SCC 193, it has been observed that :
FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 42 of 44 " In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
Further in Padala Veera Reddy vs. State of A.P. and other, AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests, (1)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3)the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
(4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
In the instant case prosecution has neither brought the clinching evidence nor best evidence on record. No justification came forward for nonexamining of Sh. Diwan Singh, the actual allottee though he was available at the relevant time. Prosecution also failed to explain as to why the collaboration agreement and tripartite agreement was not seized during FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 43 of 44 investigation and in their absence how it came to the conclusion that accused persons were not authorised to allot the space in question to the complainant. Further no reason has been brought on record to justify as to why no investigation was conducted regarding actual availability of space on fourth floor.
In addition to these lacunas, complainant never alleged that he was never allotted any space, his only grievance is regarding change of floor which at the most amounts to breach of contract, though it was permitted by virtue of allotment letter and duly admitted by complainant also during his testimony.
9). In view of the above discussion it is held that, the prosecution has failed to prove its case beyond reasonable doubts against the accused persons namely Tejwant Singh, M/s. Skipper Towers Pvt. Ltd, Harpreet Singh and M/s. Skipper Sales Pvt. Ltd. Hence, they stand acquitted from all the charges levelled against them. Ordered accordingly.
Announced in the open
Court on 07th January, 2016 AJAY GARG
ACMM01/New Delhi District
Patiala House Courts, New Delhi
This judgment contains 44 pages and each paper is signed by me.
FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 44 of 44 FIR N0. : 454/91 U/Sec. 420 IPC PS : Connaught Place 07.01.2016 Present: Ld. APP for the State. Sh. Inderjeet Singh, AR of the complainant.
Sh. Suraj Prakash, Ld. Counsel for accused no. 1 Tejwant Singh (accused no. 1 Tejwant Singh is also representing company M/s. Skipper Towers Pvt. Ltd.) with accused in person.
Accused no. 2 Surinder Kaur and accused no. 6 Tejbir Singh have already been discharged vide order dt. 03.05.2013.
Proceedings qua accused no. 5 Darshanjeet Singh have already been abated vide order dt. 26.07.2011.
Accused no. 4 Harpreet Singh, who is also representing accused no. 7 M/s. Skipper Sales Pvt. Ltd. in person with counsel Sh. Maninder Singh.
Vide my separate order of even date, announced in the open court today, accused persons namely Tejwant Singh, M/s. Skipper Towers Pvt. Ltd, Harpreet Singh and M/s. Skipper Sales Pvt. Ltd. stand acquitted from the charges of offence punishable U/s. 420 IPC.
Put up for furnishing of Bail Bonds U/s. 437 A Cr. PC on 13.01.2016.
AJAY GARG ACMM01/New Delhi. 07.01.2016 FIR NO.: 454/1991 POLICE STATION: Connaught Place U/Sec. 420 IPC Page No. 45 of 44