Delhi District Court
State vs . Amr Infrastructure Ltd. & Ors. on 21 January, 2023
IN THE COURT OF SH. RISHABH TANWAR (MM-09)
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
State Vs. AMR Infrastructure Ltd. & Ors.
FIR No. 113/14
U/s 420/34 IPC
P.S. Defence Colony
DLSE020027162018
A. CNR No. of the Case : DLSE020027162018
B. Date of Institution : 01.02.2018
C. Date of Commission of : September 2006
Offence
D. Name of the complainant : 1) Gautam Kapoor
S/o Late. Sh. S.C. Kapoor.
R/o P-18, 1st Floor, South
Extension, Part-II, New Delhi.
2) Anand Prakash Upneja
S/o Late. Sh. JL Upneja
R/o 8918, Wheat Land Drive,
Houton Texas-77064, The
U.S.A.
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 1 of 52
E. Name of the Accused, his : 1) AMR Infrastructure Ltd.
Parentage & Addresses Address: 2425/11,
GurudwaraRoad, Karol Bagh,
New Delhi-110005
2) Ramchander Soni
s/o Late Hira Lal Soni
r/o 59/20 Prabhat Road, Karol
Bagh, New Delhi 110005 (being
the director of Accused no. 1)
F. Offence complained of : 420/406/34 IPC
G. Plea of the Accused : Pleaded not guilty and claimed
trial.
H. Order reserved on : 19.12.2022
I. Date of Order : 21.01.2023
J. Final Order : CONVICTION
Brief statement of the reasons for the decision:
1.Brief facts of the case are that complainant Sh. Gautam Kapoor gave a written complaint to the police stating that in September 2006, he was introduced to Mr. Ashish Gupta and Brij Mohan Gupta by Mr. Iqbal Singh at Barista Coffee Shop in Defence Colony Market who lured him to buy shops, ATM, Food Court in their upcoming Mall in Greater Noida named Kessel-I-Mall situated at Plot no. 9, Tech Zone, Greater Noida, UP, and he gave them a cheque of Rs. 4,30,000/- on their representation. Later, he paid a total amount of Rs. 1.72 crores through various cheques and cash for purchase of shop no. D-28, Ground Floor, Kessel I Mall, Canteen No. T-07, Food Court, First Floor, FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 2 of 52 Kessel-I-Mall and ATM Unit No. 02, Ground Floor, Kessel-I-Mall. But when they were called to sign the MOUs dated 16.06.2008, 21.10.2008 and 12.06.2008, it revealed that the total amount received was Rs. 90,48,040/- and not Rs. 1,18,68,606 and on objection they refused to refund the excess money of Rs. 28,20,566/-, Rs. 3,90,000/- and Rs. 4,25,000/- which money was taken by way of cheating and fraud and by criminal conspiracy by the accused with respect to shops, ATM and food court. In total excess amount of Rs. 36,35,566/- was taken by way of cheating and fraud and by criminal conspiracy by the accused. The builder/accused failed to complete the project by promised date i.e. June 2009 and June 2010, so to compensate the delay they need to pay interest @ 12 % as mentioned in the MOU, however, they stopped the same w.e.f. October 2013 and January 2014 which has further resulted wrongful loss to them and wrongful gain of Rs. 6,00,00/- and pressurized them in various ways like issuing fresh and new demands to sign new MOU. Further it is the allegation that the land in question has been allotted by the Greater Noida Industrial Development Authority (Hereinafter "GNIDA") to M/s R.C. Infosystems Ltd. on leasehold basis, whereas they are selling it through AMR Infrastructure Ltd. since 2006 without the approval of GNIDA. Moreover, as per terms and registration Act, the lessee cannot sell the land without getting it freehold from the land-owning agency. They have sold their shops in their upcoming mall in September 2006 whereas building plans were not sanctioned by the GNIDA at that time which is also punishable act according to NOIDA Authority and thus they had committed fraud by telling him at the time of selling in September 2006 that all the building plans related to Kessel-I-Mall have been sanctioned and cleared by the concerned authority. He further alleged that the directors of the accused company have threatened him of the dire consequences.
2. Based on above said complaint, the present FIR u/s 420/406/34 IPC was FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 3 of 52 registered against the accused. During investigation, it was also revealed that in the same manner accused along with co-accused dishonestly induced Col. A.P. Upneja to purchase shop no. T07, Kessel-I-Mall, situated at plot no. 9, Tech Zone, Greater Noida, U.P. of M/s AMR Infrastructure Ltd (hereinafter "the accused no. 1") and received Rs. 21,23,268/- from him in violation of lease deed executed between Greater Noida Industrial Development Authority and M/s. R.C. Infosystem Pvt. Ltd. and executed MOU dated 23.10.2019.
3. The chargesheet for the offence u/s 420/406/34 IPC was filed against the accused. On 11.09.2018, Charges were framed under Section 420/34 IPC against Ram Chander Soni (hereinafter "the accused no. 2"), to which accused had pleaded 'not guilty' and had claimed trial.
4. The prosecution, to discharge its burden of proof, had examined 17 witnesses.
a) PW-1: Sh. Kushal Dang deposed that MOU dated 23.10.2009 was executed between Col. AP Upneja and M/s AMR Infrastructure Ltd.
through Mr. Ram Chander Soni in respect to investment for purchase of shop no. T-07 in the canteen/food court on the first floor of I-Mall in project Kessel I Valley in Tech Zone, Greater Noida. The shop, duly constructed in accordance with the terms of the MOU and the publicity brochures, was to be delivered to Col. AP Upneja by December 2011. As per the terms of MOU, in case of delay, a monthly compensation of Rs. 29,040/- was to be paid to Col. AP Upneja by AMR Infrastructure Ltd., commencing from 01.01.2012 until the date of handing over possession as assured returns. Since, AMR Infrastrure Ltd. did not complete the construction of the shop no. T-07 in the canteen/food court on the first floor of I-Mall in project Kessel I Valley in Tech Zone, Greater Noida by December 2011, compensation of Rs. 29,040/- (less 10 % TDS) was paid to Col. Upneja by FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 4 of 52 AMR Infrastructure Ltd. from 01.01.2012 till 30.11.2013. However, TDS from 01.04.2013 to 30.11.2013 was not deposited by AMR Infrastructure in the government treasury. He was the witness of MOU dated 23.10.2009 executed between AMR Infrastructure Ltd. through Ram Chander Soni and Col. AP Upneja. As power of attorney holder of Col. Upneja in August 2014, he received a letter offering possession from AMR Infrastructure. Thereafter, he personally visited the site where he found that the shop was not in existence and the i-Mall was nowhere in existence. Accordingly, the said letter of possession was duly responded to AMR Infrastructure Ltd. quoting the various short comings in its content vide letter dated December 2014. Later, in the year 2015, he received another reminder offer of possession sent by AMR Infrastructure Ltd. which was again replied immediately vide reply letter in the year 2015. He received yet another reminder letter in August 2016 sent by AMR Infrastructure Ltd. without any reference to him two replies to AMR Infrastructure. This letter also had the accounts statement in respect of shop no. T-07 enclosed. However, instead of mentioning T-07, this letter clandestinely mentioned the shop as T-07A. This offer letter was again responded to AMR Infrastructure vide reply letter in which he mentioned that the shop number as T-07A wrongly mentioned as Mr. AP Upneja had booked shop no. T-07 as per the MOU. In December 2015, Col. AP Upneja had filed the complaint in the PS Vasant Kunj which was then transferred to PS Defence Colony. Col. A.P. Upneja had mentioned in the said complaint the fact of his enquiry that the shop no. T-07 had already been sold to M/s Laxmi Infratel Ltd. prior to execution of MOU between Col. AP Upneja and AMR Infrastructure dated 23.10.2009.
He then proved Ex. PW-1/A i.e. MOU dated 23.10.2009 executed between Col. A.P. Upneja and AMR Infrastructure, Ex. PW1/B and Ex. PW1/C namely two payment receipts dated 23.09.2009 and 01.10.2009, FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 5 of 52 subsequent correspondence exchanged with AMR Infrastructure, Ex.PW1/D (colly) namely the copy of letter/demand letter dated 30.08.2016, 02.05.2016, 17.04.2016, 15.11.2015, 12.08.2014, 07.12.2012 and 22.02.2014. he further deposed that after receiving letter dated 12.08.2014, He along with Col. A.P. Upneja visited the head office of AMR Infrastructure Ltd at Karol Bagh where they met with four directors of AMR Infrastructure including accused Ram Chander Soni. When they expressed their disagreement with the contents of offer of possession dated 12.08.2014 they were unable to give them any satisfactory answer for not completing the i-Mall and the shop booked by Col. A.P. Upneja. Thereafter, on subsequent occasions, he along with A.P. Upneja visited the office of AMR Infrastructure as well as site of i-Mall and found that the said mall had not been built till then. It was also found from the Map obtained with due permission of this court from the court records that I-Mall as approved by Greater Noida Authority had not been built till then.
He was cross examined by Sh. Ajay Verma, Ld. Counsel for accused and during cross examination, he admitted that he was present at the time of execution of document Ex.PW1/A and that is why he had also signed the same as witness. He admitted that he had not sent any written communication prior to the date when the assured return amount was stopped and volunteered that he was following with the company by his personal visits. He admitted that during the personal visits as stated by him, he did not give any written representation there. He admitted that as per MOU (Ex.PW1/A), they booked the premises (shop) T-07 was having area approximately 583.315 sq. yards on first floor of the I-Mall and that besides this booking of the aforesaid area there was no other booking done by Col. A.P. Upneja in the project with the accused company. He admitted that Col. A.P. Upneja was to pay the balance amount of Rs.8,87,464/- to the accused FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 6 of 52 company at the time of handing over the possession as per the MOU (Ex.PW1/A) and volunteered this amount was payable only on timely possession i.e., 31.12.2011. He admitted that his grievance was only for refund of booking amount already paid by Col. Upneja to the accused company in respect to above said allotted shop. He admitted that till 30.11.2013 Col. Upneja had received the assured return as per MOU (Ex.PW1/A) and volunteered frequent follow up was made with AMR Infrastructure before receiving this payment. He denied the suggestion that shop T-07 was having the area of approximately 1166.6 sq. feet out of which only 583.315 was allotted to Col. Upneja and remaining was allotted to Mr. Gautam Kapoor of M/s Laxmi Infratel Pvt. Ltd. He or Col. Upneja had not initiated any proceedings civil or criminal except the present case against the accused company. He admitted that neither Col. Upneja nor he on his behalf initiated any proceedings under the Arbitration Act as stipulated in the MOU. He denied the suggestion that to arm-twist the company and its directors the present proceedings had been initiated only to recover the Amount of booking paid under MOU (Ex.PW1/A). He admitted that the company had offered the possession of the booked unit as mentioned in Ex.PW1/A and volunteered only three letters of possession were issued without handing over the physical possession. His father-in- law had responded in December 2014, May 2016, August 2016 to three letters of possession issued by the accused company. He was aware that as per MOU (Ex.PW1/A) the land was allotted by GNIDA to RC Infosystem who further executed MOU dated 31.07.2006 to permit the accused company to accept the bookings in the project. He along with Col. Upneja visited the site of project immediately after receipt of first letter of possession. He denied the suggestion that present case was filed and pursued by him to recover the Amount mentioned in Ex.PW1/A. He admitted that no legal notice was also sent either by Col. Upneja or through FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 7 of 52 him on his behalf to the company. He denied the suggestion that construction of i-Mall had been completed or that the unit booked by him was completed. He admitted that alongwith letter dated 17.04.2016 issued by the accused company, Col. Upneja received the statement of Amount due and payable to the company. He admitted that the said statement was pertaining to unit number T-07A admeasuring 583.32 sq. feet and voluntarily said that the receipt of the statement was duly acknowledged by him but simultaneously he pointed out numerous deliberate inaccuracies in that letter as well as in the account statement in writing. He further stated that completion certificate was issued qua IT Building and not for I-Mall. He admitted that the letter dated 22.02.2014 was received by Col. Upneja in his presence at the office of the company. He admitted that on 22.02.2014 Col. Upneja in front of him assured that he would never demand the arrears of assured returned for the period December 2014 to March 2015 and adjusted the same against dues. He admitted that no complaint was lodged against the company and accused prior to March 2015. Col. Upneja did not make the payment of the dues as demanded in the letter dated 04.08.2016 and voluntarily said that the said payment was not made consciously as the mall had not been completed and the offer of possession was clearly fraudulent. That was replied vide our letter of May 2016.
b) PW-2: Sh. Om Dutt Saini, deposed that on 22.05.2014, he was posted as Senior Manager at Bank of Maharashtra, Noida, U.P. He further proved Ex. PW2/A namely the account statement of account no. 60007272845.
He was cross examined by Ld. Counsel for accused and during cross examination he stated that he had verified the account statement from computer system before signing the same. He admitted that he has not affixed the date on the statement of account though, it is mentioned on the covering letter.
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 8 of 52c) PW3: Sh. Gautam Kapoor s/o Late Sh. Rajender Singh deposed that in the year 2006, he was approached by Mr. Ashish Gupta and his father alongwith broker Mr. Iqbal Singh saying that they are coming up with a project in Greater Noida where they will build a Mall and if he wanted to invest in the Mall, he could do so. They gave him a proposal by saying that Mall would be ready by 2009-2010 as they have all requisite permissions and construction will start very soon. They gave assurance if the Mall would not ready, they would give him the return of 12% P.A. till the time the mall would not get ready. He further deposed that he gave them the money for booking a shop number D28, D29, ATM and T07 in Food Court. Then they approached him again saying that they had an offer for him to buy an ATM which would again give good returns. Consequently, he ended up paying them money for ATM also. Then after some time they approached him again that they had a shop bearing number T-07 measuring 583 square feet in food court which again as said earlier they give good returns. So, he ended up even paying for T-07 in food court. He further proved Ex. PW-3/A, Ex. PW-3/B and Ex. PW-3/C namely three agreements for booking shop D-28, D-29, T-07 and ATM-01. In 2009, when the possession was supposed to be given of one shop, he approached them for the possession. But they said that it was still not ready, and they would give him the assured return as promised to which he agreed and started taking the assured return of one shop w.e.f. June 2009. Then in June- July 2010 when possession of his other shops was supposed to be given, he again approached them to which he was told that as the Mall was not ready, they will give the assured returns even of those two other shops to which he opposed and told them he wanted refund of his amount. But they pleaded and assured him that within one year from then the Mall would be ready and possession of the shops would be given to him. So, he agreed to their FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 9 of 52 promise and accepted the postdated cheques of assured returns for one year. Then in 2012 after one year, he again approached to them by going to their office in Karol Bagh for the possession of his shops. Yet again, the Mall was not ready and again he was given postdated cheques of assured returns for one year. But by the end of 2013 the site was same as it was in the beginning of 2013 and there was no further construction happened. He went to their office and demanded for his refund to which he was told that there would be no refund given to him and there will be no assured returns would be given then. When he resisted, he was threatened by the staff "do whatever you want to do or else you would face dire consequences", in the presence of directors of AMR Infrastructure, namely Ashish Gupta, R.C. Soni, Kapil Kumar, Ankit Gupta, Kishan Kumar. He told them that his wife was suffering from cancer, and he needed the money for her treatment. He further deposed that after that he spoke to some other sufferers like him, he was that the company had no necessary building plan sanctioned at the time they sold him the shops and took money from him in 2006-2008. Secondly AMR Infrastructure was not the allottee of the land which they sold to him. The original allottee was M/s RC Infosystems which was allotted the land by Greater Noida Authority. According to the Greater Noida Authority guidelines, no builder who was not allottee can sell any kind of land on behalf of any other builder / original allottee and if they do so, it is the case of cheating and fraud. He further deposed that the accused persons had told him that the building plan was sanctioned, but it was not so. They only got sanctioned in October 2008 and they had collected all the money from him before the building plan was sanctioned. When he got to know about all these facts, he approached to the police station and gave the complaint (Ex.PW3/D). After that the FIR was registered and the accused were called to the police station. There were number of meetings with them but every time they did not reach to any conclusion, and it kept going on for about 7- FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 10 of 52 8 months. Then in the month of December 2014 and January 2015, they finally agreed to pay me Rs.80.55 lacs and agreed to buy back shop number D28, D29 and allot him a new shop in the food court T11A to which he agreed as he was in desperate need of money for treatment of his wife. He had all the emails starting from 04-05 January till April-May 2015 exchanged between him and the company. Then on 20-21 March 2015, he was called to their office and was shown cheques of Rs.80.55 lacs and all the directors were sitting namely Ramchander Soni, Kishan Kumar, Kapil Kumar, Ashish Gupta. They made him sign documents in which they said it is to finish the FIR and the allotment of T11A and taking back of D28, D29 to which he signed immediately as he was shown the cheque. He was given postdated cheques of six or seven months of Rs.80.55 lacs. They made him sign the affidavit of transfer and gave him no dues certificate for allotment of ATM, T-07 and T11A and told him to get the shops registered as soon as the cheques are cleared to which he agreed and left the office. He further alleged that it was all to make a fool out of him as all the cheques got bounced to which he was furious and filed the complaint of Section 138 NI Act in the competent court. Then at the time of pursuing the case of cheque bouncing, he got to know, he met Mr. Kushal Dang at one of the courts where he showed him, his MOU to which he was shocked as they both had the same shop number T07 was allotted to us in 2008 allotted to M/s. Lakshmi Infratel and in 2009 to Col. Upneja. He along with Kushal Dang again approached the IO and handed over the documents of Col. Upneja and told him that they both were allotted the same shop. When IO got to know about the same, he called the accused and questioned them. Again, they approached him saying that he had to mention in the courts that he had been allotted shop number T07A instead of T07 to which he objected, and he told them that he could not change legal document i.e. MOU which was on stamp paper. Then they made Memorandum of FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 11 of 52 Settlement in which it was written that they would buy back T07 to which he agreed. He further proved that Ex. PW-3/F i.e., the advertisement published in newspaper Times of India dated 02.09.2006, Ex. PW-3/E i.e., the seizure memo of Ex. PW-3/F, Ex. PW-3/G namely seizure memo of the copies of MOU dated 21.10.2008 and MOU dated 23.10.2009.
He was cross examined by Ld. Defence counsel and during cross examination, he deposed that the officials of M/s AMR Infrastructure induced him to transfer his investment from IT space to Food Court on the pretext of better returns. To transfer his investment, he had to cancel his booking in IT space as per procedure of company therefore, it was cancelled. He had admitted that he lodged complaint with police to seek his refund only and volunteered but later attitude of directors and getting to know the various frauds they had committed he wanted to make ensure they get punished for their deeds.
He further admitted that he had received the payment of assured returns as per MOUs Ex.PW3/A to Ex.PW3/C, for some units till September 2013 and for other units till December 2013. He did not initiate any legal action against AMR Infrastructure or its directors including accused Ramchander Soni before December 2013. On a question being put to PW3 whether he or his company initiated any legal action against AMR Infrastructure or its directors including accused Ramchander Soni before 05.02.2014, he replied that he did not remember the exact date, but he initiated legal action for dishonour of cheque issued for payment of assured returns and for return of his invested amount, in February 2014. He further proved Ex.PW3/D4 namely the application for booking units number T-07 measuring 583.315 sq. feet, Ex.PW3/D5 (colly) namely the receipts for making the payment to AMR Infrastructure. He admitted that he had received only one communication from accused company of handing over FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 12 of 52 the possession of units before 05.02.2014. He denied the suggestion that accused company had sent many reminders to take possession and that accused company sent him a letter to offer possession after receiving the completion certificate in December 2012. He admitted that accused company was liable to pay assured returns to him for delay in completion of construction as per terms and conditions of MOU. He admitted that he had not booked the unit number T07 measuring 1161 sq. feet and volunteered the area booked by him of T-07 was 583.31 sq. feet. He denied the suggestion that he had also received demand letter and certificate for completion along with letter dated 24.12.2013. After seeing the letters dated 19.02.2014, 12.08.2014 along with postal receipts (Mark PW3/D6 and Mark PW3/D7 respectively), witness stated that he did not receive any such letter. He admitted that he had been allotted the unit number T-07 admeasuring 583.315 in shopping mall. He had received the no dues certificate from the accused company with respect to the aforesaid unit. The no dues certificate/possession letter (Ex. PW3/D8) was issued to him on 27.03.2015. He admitted that after issuance of allotment letter dated 02.04.2015 qua unit no. T-11A, all his grievances against accused company had been addressed. He produced the allotment letter dated 02.04.2015 copy of said allotment letter dated 02.04.2015 (Ex. PW3/D10). He had also received the no due certificate of other units which is of T-11A and ATM area measuring 165 square ft. and he produced the originals, copy of the same were proved by him as Ex. PW3/D11 and Ex. PW3/D12. He admitted that he entered into a settlement agreement with the company on 20.03.2015 and produced the original of the same (Ex. PW3/D13).
d) PW4: Sh. Rajinder Singh deposed that he was deputed as Senior Manager, PNB Karol Bagh Branch, New Delhi from July 2014 to 16.01.2016. He proved Ex.PW4/B (colly) namely the statement of accounts of account FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 13 of 52 number 0119002100075174 of AMR Infrastructure Ltd from the period 17.02.2007 to 18.02.2007, 11.01.2007 to 13.01.2007, 23.02.2007 to 25.02.2007, 11.06.2008 to 13.06.2008, 07.07.2008 to 08.07.2008, along with covering letter dated 23.09.2014 (Ex.PW4/A) He was cross examined by Ld. Defence counsel and during cross examination he stated that he himself took the print outs of Ex.PW4/B (colly) by using his login ID and password.
e) PW5: Sh. P. K. Jain deposed that State Bank of Patiala merged with State Bank of India in April 2017 and he had proved the bank account statement of account no. 65011284703 in the name of M/s AMR Infrastructure Ltd. For the period from 19.10.2006 to 13.12.2006 (Ex PW-5/A).
He was not cross examined by the Ld. Counsel for the accused.
f) PW6: Sh. Kumar Puneet was the Deputy Manager of HDFC Bank, Karol Bagh, Branch, New Delhi since 30.09.2016. He deposed that as per the record the account number 043928400000015 in the name of AMR Infrastructure was opened on 03.07.2008 (Ex PW-6/A) On being cross examined by Ld. Counsel for the accused he deposed that he could produce the account opening form of above-mentioned account.
g) PW7: Ms. Aditi Singh deposed that she is the Deputy Manager, Bank of Maharashtra had proved the Ex PW-7/A for the account no. 20072289022 in the name of Sonali Sawhney Kapoor for the period from 28.09.20008 to 31.12.2008.
On being cross examined, she deposed that she had herself taken out the print outs of Ex PW-7/A by using her own login ID and password.
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 14 of 52h) PW8: Ms. Arti Ahuja had proved Mark PW-8/X namely the copy of account opening form for account no. 600620100000006 in the name of AMR Infrastructures Ltd and Ex PW-8/A namely the statement of accounts of the above said accounts from the period of 25.09.2006 to 28.09.2006.
i) PW9: Sh, P. L. Malik deposed that he got retired on 30.01.2015 in the month of June 2014. He was deputed as Deputy Registrar of Companies, NCT of Delhi and Haryana. He further deposed that on 03.06.2014 vide letter dated 02.06.2014 Ex PW-9/A, he had supplied the documents bearing the rubber stamp of ROC on every page.
j) PW10: Ms. Leenu Sahgal deposed that on 09.12.2014, he was deputed as General Manager Planning and Architecture in Greater Noida Industrial Development Authority. He proved the Ex PW-10/A (colly) namely the sanction letter dated 25.09.2008, part occupancy certificate dated 07.12.2012, sanction map of TZ09 Tech Zone, completion map of TZ-09 Tech Zone along with covering letter dated 09.12.2014.
In his cross examination he admitted that the part occupancy certificate dated 07.12.2012 were issued to M/s RC Infosystem Pvt. Ltd. Ltd. He also admitted that the name of AMR Infrastructure Ltd. is mentioned in letter dated 09.12.2014 based upon the official record of the authority.
k) PW11: Inspector Pratibha Sharma deposed that she was the second IO in the present case. On that day, she was posted as W/SI at PS Defence Colony and the further investigation was marked to her. She proved Ex. PW-11/A namely notice u/s 91 CrPC read with 41(A) CrPC to accused Ram Chander Soni and Ex. PW-11/B namely the covering letter dated 27.07.2016. She FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 15 of 52 correctly identified the accused Ram Chander Soni before the court.
She was not cross examined by the Ld. Counsel for the accused.
l) PW12: Col. A. P. Upneja deposed that on 23.10.2009, he had entered into a MOU with AMR Infrastructure Ltd in respect to shop no. T-07, Kessel-I
-Valley Project. He proved his complaint dated 14.12.2015 (Ex.PW12/A), the supplementary complaint dated 21.12.2015 (Ex.PW12/B). He also proved power of attorney executed by him in favor of his son-in-law namely Kushal Dang (Ex.PW12/C).
In his cross examination by Sh. Ajay Verma, Ld. Counsel for accused he admitted that the Ex.PW1/A was for the shop admeasuring 583.315 sq feet. He also admitted that he had received the payment of Rs.29,040/-. He also deposed that he did not file any civil suit or invoked the arbitration proceedings as per the terms and conditions of Ex.PW1/A. He also deposed that he was assured return amount pending would be adjusted against the final amount that was to be paid by me i.e. Rs.8,87,464/- at the time of handing over the possession. He also deposed that such adjustment was made before he lodged the complaint with the police and had approached to the police for not having the assured return amount. On being asked by the court, he admitted that there was no construction and therefore he had not made the payment. He further deposed that he had never visited the office of Greater Noida Development Authority before lodging complaint with police. He also deposed that the payment of assured return was received in his personal account. He also admitted that he had received a letter from the company to take the possession but in actual there was no building on the ground to take the possession.
m) PW13: SI Shiv Dev deposed that on 05.02.2014, a complaint of Mr. Gautam Kapoor dated 05.02.2014 had been received in PS Defence Colony FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 16 of 52 vide DD No.43-B. He further deposed that he had conducted preliminary inquiry and obtained permission from senior officers to get registered the present FIR. He proved the documents regarding the above said permission (Ex.PW13/A). He also proved the notices sent to the bank as Ex.PW13/B and received the requisite documents supplied by the bank manager vide covering letter dated 15.05.2014. He also proved the various notices sent to the other banks as Ex.PW13/C (Colly). He also proved the complaint received by Mr. Upneja vide DD No.62-B (Ex.PW13/D) and the complaint as Ex.PW12/A. He also deposed that on various occasions he had examined the complainants namely Mr. Gautam Kapoor, Mr. A.P. Upneja, and person namely Mr. Kushal Dang and recorded their respective statements u/s 161 Cr.PC and also he had recorded the statement of witnesses u/s 161 Cr.PC. In the meantime, he was transferred from PS Defence Colony to EOW Cell. He has correctly identified the accused no. 2 Ram Chander Soni before the court.
On being cross examined by Sh. Ajay Verma, Ld. Counsel for accused, he deposed that he had not issued any notice to any person in G. Noida Authority during the preliminary inquiry before the registration of FIR. He also deposed that he had called one Mr. Ashish Gupta (one of the accused persons) director of the company during inquiry proceedings. However, he did not join the proceedings. Further, after registration of FIR, he called accused R.C. Soni, Krishan Kumar, Ashish Gutpa, Kapil Kumar, Ankit Gupta and Deepak for the investigation and they all participated in the investigation. He deposed that he was the investigating officer from 01.05.2014 till May/June 2016 and during his investigation he also visited the site alongwith the complainant on one occasion and alone at multiple occasions to verify the status of the project. He further deposed that he visited the plot number TZ9, Tech Zone, G. Noida and saw a building having multiple floors constructed at the site. He also deposed that during FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 17 of 52 investigation, the authority sent their reply along with the sanction plans. Further, the occupancy plan number 38-1360/C/8347/07.12.2012 dated 07.12.2012 was supplied to him by the office of G. Noida vide letter dated 09.12.2014 part of Ex.PW10/A. He further deposed that during his investigation he did not examine any of the customers whose details were forwarded by G. Noida. He proved Ex PW-13/C and Ex.PW13/D1. He denied all other suggestions put to him.
n) PW14: Sh. Arun Kumar Trivedi was a witness from Greater Noida Authority since 2008. He proved Ex.PW14/A. He also proved the letter number GRA.NO/IT/2014/1191 dated 25.05.2014 as Ex.PW14/B. In his cross examination by Sh. Ajay Verma, he deposed that as per record brought by him on that day, the plot number TZ-09 Sector Tech Zone (IT Park) ad measuring 100857 sq meters was allotted to M/S R.C. Infosystem Pvt Ltd vide allotment letter dated 23.03.2005 followed by lease deed 21.07.2006. he also proved the allotment letter dated 23.03.2005 (Ex.PW14/D1) and the lease deed 21.07.2006 (Ex.PW14/D2). He also admitted that as per his records, completion certificate dated 07.12.2012 part of Ex.PW10/A had been issued by Planning Department to M/s R.C. Infosystem Pvt Ltd.
o) PW15: ASI Shailesh Kumar Singh deposed that at about 6:05 PM, SI Shiv Dev came at PS Defence Colony and handed over him complaint and rukka. He proved DD entry No. 24-A Ex. PW-15/A (OSR), the present FIR as Ex. PW-15 /B (OSR) and certificate u/s 65-B Indian Evidence Act as Ex.PW-15/C.
p) PW16: Sh. Raghuveer Singh deposed that he was working as Junior Officer, ICICI Bank, Saket Branch, New Delhi, since 13.11.2010. He FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 18 of 52 proved his authority letter as Ex.PW16/A, summary of account no.026301075135 in the name of Mr. Arun Upneja/ Anuradha Upneja from the period 23.09.2009 to 29.10.2009, as Ex.PW16/B and certificate u/s 2A of the Bankers Book Evidence Act, as Ex.PW16/C. He was not being cross examined on behalf of accused Ram Chander Soni.
q) PW17: Inspector Sahdev deposed that on 18.04.2017, he was posted at PS Defence Colony and the present case was marked to him by the SHO concerned. Thereafter, he took further action on the case and found that the draft charge sheet had already been prepared by the previous IO and the same had been received from the prosecution branch after scrutiny. Further, after completion of the charge sheet in all respects filed the same before the Court. He correctly identified the accused Ram Chander Soni before the court.
In his cross examination by Sh. Ajay Verma, Ld counsel for accused Ram Chander Soni he deposed that he had placed the notices sent to accused persons as well as complainant in the present matter between 18.04.2017 and 18.12.2017. He proved the Ex. PW17/D1. He also deposed that he had not placed on record the map of the unit T-07 showing the portion of complainant Gautam Kapoor and complainant Col. A.P Upneja. He denied all other suggestions put to him.
5. The accused had admitted FIR No.186/2019 PS Defence Colony sans the content (Ex. A1), certificate u/s 65-B Indian Evidence Act, (Ex. A2), DD No. 19 A dated 27.10.2019 (Ex. A3), the TIP Proceedings conducted on 19.11.2019 before Sh. Harun Pratap, Ld. MM (Ex. A4), register no. 19 of FIR No. 186/2019 dated 11.11.2019 (Ex. A-5).
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 19 of 526. The statement of the accused was recorded under section 313 Cr.P.C wherein all the incriminating evidence against the accused was put to him and he had denied all of them. He had opted to lead any Defense evidence.
7. The accused persons examined three witnesses in his defence.
DW-1: Sh. Beni Gopal, deposed that he was the employee in M/s AMR Infrastructure Ltd from October 2010 till November 2016 and used to look after the work of issuance of demand letters, allotment letters to the customer of M/s AMR Infrastructure Ltd. and had also sent demand letter to Mr. Upneja as Ex.PW1/D (colly). He further deposed that the total area of unit number T-7 and T-07A was 1166 sq feet. Unit no. T-07 was allotted to Mr. Gautam Kapoor and Unit No. T-07A was allotted to Mr. Upneja. He proved the copy of said MOU executed between M/s AMR Infrastructure Ltd and M/s RC Infosystem Pvt Ltd as Mark DW-1/A and the board resolution in his favor Mark DW-1/B and Mark DW-1/C. The details of buyers already mentioned in as Ex.PW-13/D1, copy of some of tripartite sub lease deed executed by GNOIDA, RC Infosystem and the customers as Mark DW1/D (colly).
He further deposed that Mr. Upneja was offered the possession of unit allotted to him and he was requested to make the balance payment for execution of sale deed in his favour. He also submitted that Mr. Upneja neither made balance payment nor showed any interest to take possession rather he demanded refund of his payment. He also proved the form no. 16 for the financial year 2010-11 and 2011-12 as Mark DW1/E (colly), copy of his bank statement as Mark DW1/F, the copy of his salary slips as Mark DW1/G and the copy of his PAN card as Mark DW1/H and copy of claim submitted by Mr. Upneja before IRP as Mark DW1/I. On being cross examined by the Ld. APP for the state, he produced original FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 20 of 52 MOU dated 31.07.2006 executed between M/s AMR Infrastructure Ltd and M/s RC Infosystem Pvt Ltd., Original PAN Card and original lease deed dated 21.07.2006 executed between GNOIDA and M/s RC Infosystem Pvt Ltd. He had also produced the original MOU dated 31.07.2006 executed between M/s AMR Infrastructure Ltd and M/s RC Infosystem Pvt Ltd and its copy as Mark DW1/A. Original PAN Card of Sh. Beni Gopal Sharma and its copy as Mark DW1/H and the original lease deed dated 21.07.2006 executed between GNOIDA and M/s RC Infosystem Pvt Ltd. and its copy as Ex.PW14/D2 (OSR).
DW-2 Sh. Sachin Tittal, Manager IT, Greater Noida Authority had brought the documents regarding execution of sub-lease deeds between GNOIDA (lesser), R. C. Infosystem (lessee) and buyers (sub-lessee). He also deposed that these tripartite sub-leases have been executed with respect to plot no. 9, Sector TechZone, Greater Noida. The Record Clerk has brought around 20 tripartite sub- lease deeds.
DW-3 Sh. Digamber Singh, Record Clerk, IT, Greater Noida Authority had only brought the documents regarding execution of sub-lease deeds between GNOIDA (lesser), R. C. Infosystem (lessee) and buyers (sub-lessee) and produce the same before this court. He proved the Ex DW-3/A. He had also brought around 23 original Tripartite sub lease deed (office copy) executed between GNOIDA (lessor), RC Infosystem (lessee) through its authorized representative Mr. Beni Gopal Soni and buyers (sub-lessee) out of approx. 376 Tripartite sub lease deed already executed.
He was not cross examined by the Ld. APP for the State.
8. I have heard final arguments and I have perused the record.
9. Sh. Ajay Verma, Ld. Counsel for the accused no. 2 has argued that the present FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 21 of 52 FIR has been lodged only with a view to obtain the booking amount given by complainant to the accused and therefore, the complainant had invoked the criminal machinery to arm twist the accused in doing the same. Ld. Counsel has argued that the complainant has not availed of the remedy of arbitration provided in the MOU dated 23.10.2009 or availed civil remedies to seek redressal of his grievance. Ld. Counsel has further argued that the essential ingredients to prove the guilt of the accused under section 420 IPC are absent in the present case and as such, the accused cannot be convicted for the same. He had further argued that it is the complainant who had refused to accept the possession offered to him by the accused no. 1 and no fault of his refusal to accept the possession of the unit booked by him, could be imputed upon the latter. He had lastly argued that accused no. 2 cannot be made vicariously liable for accused no. 1. He has prayed that the accused be acquitted in the present case. He had placed reliance upon the following judgements of Hon'ble Apex court in support of his arguments namely:
A. K. Srikanth Singh v. North East Securities Ltd. and anr. [(2007) 12 SCC 788].
B. Mahindra and Mahindra Financial Services Ltd. and anr. v. Delta Classic (P.) ltd. [(2011) 6 Gauhati Law Reporters 604].
C. Maksud Saiyed v. State of Gujarat and Others [(2008) 5 SCC 668]. D. Vijay Kumar Ghai & Ors. v. State of West Bengal & Ors. [Crm. Appeal.
No. 463 of 2022, delivered on 22.03.2022].
E. Hridaya Ranjan Prasand Verma and Ors. v. State of Bihar and Anr. [(2000) 4 SCC 168].
F. V.Y. Jose and Another v. State of Gujarat and Anr. [(2009) 3 SCC 78]. G. Randheer Singh v State of U.P. & Ors. [SLP. Crl. 1199/2021 decided on 02.09.2021].
H. Vesa Holding Pvt. Ltd. v. State of Kerala [(2015) 8 SCC 293].
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 22 of 52Per contra, it is argued by Sh. Parshant Kumar, Ld. APP for the state that the complainant was dishonestly sold one shop no. T-07 in i-Mall, Kessel-i-Valley project, Plot no. 9, Tech Zone, Greater Noida, U.P. by the accused no. 2 acting on behalf of accused no. 1. However, it was later found that the same shop had already been sold to another complainant namely Sh. Gautam Kapoor (PW-3) and thereby, the accused has committed cheating with the complainant PW-12. Ld. APP has further argued that the construction of the said i-Mall has not been completed even on the date of final arguments. Ld. APP has further argued that the assured returns that the complainant was promised was even stopped by the accused. Ld. APP has lastly argued that despite receiving huge sums of money from the complainant in lieu of the shop no. T-07, the complainant had neither got his money back nor did he receive the possession of the same. He had prayed that the accused be convicted of the offence under section 420 r/w 34 IPC.
10. I have given my thoughtful considerations to the rival submissions made before me
11. At the onset, a fact must be laid out that though the original complaint against the accused persons had been given by the complainant (PW-3) namely Gautam Kapoor against many persons being the directors of AMR Infrastructure Ltd. (hereinafter "accused no. 1") and Ram Chander Soni (hereinafter "accused no. 2"), later, Col. A. P. Upneja (PW-12) gave another complaint against the accused persons and he was joined as an additional complainant. Thereafter, the chargesheet was also filed in the court against 11 accused persons. However, vide order dated 11.09.2018, charges were framed only against Accused no. 2 and rest of the accused persons had been discharged. On 07.02.2019, an application under section 320 Criminal Procedure Code, 1973 (hereinafter "the Cr.P.C.") was moved on behalf of PW- 3 (Gautam Kapoor) and the offence under consideration was compounded FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 23 of 52 between PW-3 and the accused no. 3 and case proceeded qua the other complainant namely PW-12, who had authorized by Kushal Dang (PW-1) by a power of attorney. Hence, hereinafter, the phrase 'the complainant' must be construed to only mean PW-12.
12. The accused has been charged under section 420 IPC. To bring home the guilt of the accused, the prosecution had to prove all the essential ingredients of section 420. The ingredients to constitute an offence under section 420 are as follows:
(a) A person must commit the offence of cheating under section 415; and
(b) The person cheated must be dishonestly induced to:
(i) Deliver property to any person or
(ii) Make alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
13. Thus, cheating is an essential ingredient for an act to constitute an offence under section 420 IPC. (Reliance is placed upon Prof. R.K. Vijayasarathy Anr. Vs. Sudha Seetharam & Anr). It was further held in "Hridaya Ranjan Prasad Verma v. State of Bihar" (2000) 4 SCC 168 that "on the reading of the section It is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases inducing must be fraudulent or dishonest. In the second class of acts the inducing must be intentional but not fraudulent or dishonest."
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 24 of 5214. Hence in the present case, it must be seen whether the accused had induced either fraudulently or dishonestly to deliver any property to any person or intentionally induced the complainant to do or omit to do anything which he would not have done, had he not been so induced.
15. After going through the allegations, the following point for consideration arises:
a. Whether the accused no. 2, on behalf of accused no. 1 induced the complainant fraudulently or dishonestly to invest his money in booking the shop no. T-07 in the "Canteen/food court" on the "First Floor" of "I-Mall"
in " Project Kessel-I-Valley" in Tech Zone, Greater Noida?
b. Whether the Shop no. T-07 in the "Canteen/food court" on the "First Floor"
of "I-Mall" in " Project Kessel I Valley" in Tech Zone, Greater Noida was sold by accused no. 1 to both the complainant and PW Gautam Kapoor?
c. Whether payment of assured return to the complainant, as per the MOU, would efface the commission of the offence of cheating?
d. Whether the accused no. 1 namely AMR Infrastructure Ltd. was not authorised to accept bookings in its project "Project Kessel-I-Valley" and the same was concealed from the complainant at the time of entering MOU dated 23.10.2009?
With respect to point of consideration no. (a) and (b):
16. The learned counsel for the accused no. 2 had argued that the present FIR FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 25 of 52 should not have been registered in the first place, as the MOU dated 23.10.2009 (Ex. PW-1/A) clearly specifies arbitration as a remedy with respect to any dispute regarding the MOU. He had contended that the complainant failed to avail any such remedies and filed the present criminal complaint only with a view to arm-twist the accused to return the invested money and the accrued assured returns to him.
17. With respect to the first argument regarding availing the other remedies, it was held in the case of Priti Saraf & Anr. Vs. State of NCT of Delhi & Anr. (2021 SCC Online SC 206),-
"32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence.
The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent based on the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.
33. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the Courts below and have taken into consideration the material on record. After hearing learned counsel for the parties, we are satisfied that the issue involved in the matter under FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 26 of 52 consideration is not a case in which the criminal trial should have been shortcircuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the 3. 2021 SCC Online SC 206. 9 instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/chargesheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by this Court in Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors.(supra) :- 9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]." (Emphasis is of the undersigned) FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 27 of 52
18. Though the above said observations were made qua the quashing powers of the Hon'ble High Court, however, the same does shed some light on the defence taken by the accused before this court. While it is true that the present transaction started off as a civil transaction, by no stretch of imagination can it be concluded that the same would have never taken criminal colours. The argument of the ld. Counsel for the accused is not tenable because if at all an offence has been committed by the accused, the mere presence of an arbitration clause in the MOU dated 23.10.2009 would not save the accused from the consequences of committing a criminal offence. Hence, it becomes imperative to examine the existence of criminal intention in the present set of facts and circumstances.
19. It is pertinent to note that there exists a qualitative difference between breach of contract and fraudulent or dishonest intention to cheat. There is a fine line between the two. The absence of any fraudulent or dishonest intention will wipe off the criminality from the acts of the accused and it will end up confined within the four corners of civil laws having civil remedies. The difference between the two was explained in the case of "Hridaya Ranjan Prashad Verma and Others versus State of Bihar and Another (2000) 4 SCC 168" it has been stated that:-
"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 of 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 FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 28 of 52 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 the promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
In the case of "V.P. Shrivastava Vs Indian Explosives Ltd. (2010) 10 SCC 361", the Hon'ble Supreme Court has held that: -
"To hold a person guilty of cheating, it is necessary to show that at the time of making promise, he had fraudulent or dishonest intention to deceive or to induce person so deceived to do something, which he would not otherwise do. There is no dispute about this concept. At the same time, it is also to be considered that just on the basis of what has taken place at the inception of transaction it is not always possible to ascertain whether the ingredients of cheating are satisfied or not for which subsequent conduct of the party concerned may also be necessarily taken into consideration. In other words, the totality of the circumstances of the case is to be taken into consideration for properly appreciating the matter."
(Emphasis added)
20. Coming back to the case in hand, the testimony of PW-12 is crucial for the purposes of the present case. He had deposed that he had entered a MOU with AMR Infrastructures Ltd. in respect to shop no. T-07, Kessel-I-Valley Project. The said MOU was exhibited as Ex. PW1/A. The description of the unit booked by the complainant was mentioned as "Shop no. T-07, measuring approx. 583.315 Sq. fts. In super area), on First Floor of the i-Mall at Kessel-
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 29 of 52i-Valley, Plot No. 9, Tech Zone, Greater Noida, Uttar Pradesh"
21. It is further pertinent to note that the complaint made by the complainant (Ex. PW12/A) to the P.S. Vasant Kunj (North) mentioned that the accused (i.e., the developer namely AMR Infrastructure Ltd.) has not only delivered possession as per the MOU entered between him and the Developer, but also that he had found out that the unit - Shop no. T-07 admeasuring 583.215 Sq. ft. in the Canteen/Food Court on First Floor in the "i-Mall", which was booked by him, has already been sold to one M/s Lakshmi Infratel Pvt. Ltd. represented by its director namely Gautam Kapoor.
22. On a holistic reading of the Ex. PW12/A, it appears that the grievance of the complainant was not only getting the possession of the unit booked by him by the developer in the promised time, but it was when he found out that the same shop had been sold to someone else by the developer, he had lodged the same complaint. The belief of the PW-12 that his shop had been sold to someone else prior to him proved to be the tipping point for him. Hence, it would be pertinent to examine, from the evidence on record, that whether the shop booked by the complainant has already been sold by the accused company to M/s Lakshmi Infratel Pvt. Ltd.
23. As already noted above, the unit booked against the name of the complainant was "Shop no. T-07, measuring approx. 583.315 Sq. fts. In super area, on first floor of the i-Mall at Kessel-i-Valley, Plot No. 9, Tech Zone, Greater Noida, Uttar Pradesh", as evidenced by MOU dated 23.10.2009 (Ex. PW1/A). Interestingly, the proprietor of M/s Lakshmi Infratel Pvt. Ltd was examined by the prosecution as PW-3. He had deposed that in the year 2006, he was approached by Mr. Ashish Gupta and his father and broker with a proposal of a project in Greater Noida and that he had given money for booking a shop no. T-07 measuring 583 Sq. Ft. in food court. The MOU dated FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 30 of 52 21.10.2008 between the M/s Lakshmi Infratel Pvt. Ltd. and the accused company was proved by the witness and was exhibited as Ex. PW3/C. As per Ex. PW3/C, the unit booked was described as "Canteen no. T-07 at shopping mall measuring 583.315 Sq. fts.". He further deposed that at the time of pursuing the case of cheque bouncing, he had got to know one Mr Kushal Dang, where he showed him his MOU and after seeing the same, both were shocked, as they both had the same shop number T-07, which was allotted to M/s Lakshmi Infratel Pvt Ltd in 2008 and was again allotted to Col Upneja in 2009.
24. Two documents (Ex. PW-3/C and Ex. PW-1/A) have been proved by their respective executants and on combined reading, it is established that a shop numbered T-07, which was sold to Lakshmi Infratel Pvt Ltd vide MOU dated 21.10.2008, was again sold to the PW-12 vide MOU dated 23.10.2009. Even on the application form (Ex. PW3/D4) which was proved by PW-3 for allotment of unit in his name mentioned the name of the unit as "T-07".
25. It is the defence of the accused that the entire unit namely T-07 was having an area of 1166 sq. ft. approximately, which was bifurcated into two smaller units namely T-07 and T-07A and the former was sold to PW-3 and the latter was sold to PW-12. It is pertinent to note that for the first time, the existence of this unit no. T-07A had surface in the Ex. PW1/D, that is, demand letter annexed with one reminder letter dated 17.04.2016. PW-1 (power of attorney holder of PW-12) had deposed that:
"As power of attorney holder of Col. Upneja in August, 2014 I received letter offering possession from AMR infrastructure. Thereafter, I personally visited the site where I found that the shop was not in existence and the I mall was no where in existence. Accordingly, this letter of possession was duly responded to AMR infrastructure ltd. quoting the FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 31 of 52 various shortcomings in its content vide letter dated December, 2014. Later on, in the year 2015, I received another reminder offer of the possession sent by AMR infrastructure ltd. This was again replied to immediately vide reply letter in the year 2015. I received yet another reminder letter in August, 2016 sent by the AMR infrastructure ltd. without any reference to my two replies to AMR infrastructure. This letter also had the account statement in respect of shop no. T-07 enclosed. However, instead of mentioning T-07, this letter clandestinely mentioned the shop as T-07A. This offer letter was again responded to AMR infrastructure vide reply letter in which I mentioned that the shop number as T-07A wrongly mentioned as Mr. AP Upneja had booked shop no. T-07 as per the MOU".
It would clearly show that while the complainant was completely unaware of the existence of shop no. T-07A until this letter was received by him and as a prudent purchaser, he has responded immediately to the said letter by highlighting the said misrepresentation. It is also pertinent to mention that in the other two letter received by the PW-12 dated 12.08.2014 did not even mention complete details of the unit number in the reference line of the letter and only mentioned "Ref: Unit No (blank), 8 floor, Kessel-i-Valley, Plot no. 9, Tech Zone, Greater Noida" and in another letter dated 04.08.2016, there was not even a mention of any unit number. All such letters have been proved by PW-1 as Ex. PW1/D. This would show that all these letters were sham letters sent to the complainant, when in fact no such units had existed.
26. It is also noteworthy that PW-3 has deposed to the effect that he was approached by the accused persons and asked him that he would have to mention in the courts that he had been allotted shop no. T-07A, instead of T-
07. This fact again shows the mala-fide intention on part of the accused. The onus of proof to show the existence of the unit no. T-07A was upon the FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 32 of 52 accused. He had ample opportunities at the time of Defence evidence or during the cross-examination of prosecution witnesses to bring on record any document or site plan or floor plan etc. to show the existence of the said unit, yet it was not done.
27. Further, it was represented by the accused company no. 1, through its authorized director accused no. 2 R. C. Soni to the PW-12 in the MOU dated 23.10.2009 that "AND WHEREAS the developer has represented that it shall complete the construction of the said Project on or before 30th December 2011 and shall render the i-Mall, along with all its facilities, ready for use/occupation by the said date, unless the construction is stopped or delayed on account of factors beyond the control of developer, as stipulated in the later part of this Memorandum of Understanding." However, on perusal of the documents sought by the investigating officer under section 91 Cr.P.C. from the Greater Noida Industrial Development Authority and proved by him as Ex. PW10/A, it is observed that sanction was granted to the M/s R.C. Infosystem (P) Ltd. under the provisions of 'The Greater Noida Industrial Development Area Building Regulation 2005' vide letter no. PLG/(BP)1360/202 on 25.09.2008. Further, on perusal of the point (4) of the said letter, it was specified that "During this period, after the completion of construction it is necessary to apply for occupancy certificate.". Further, as per letter No. Planning/BP-1360/0/8347, "Part Occupancy Certificate for I.T. Building on Plot No.- TZ-9, Sector-Tech Zone, Greater Noida" was granted by the said Greater Noida Industrial Development Authority on 07.12.2012.
28. On a holistic reading of the above, it is clear that as per the conditions on which the building sanction was granted to the M/s R.S. Infosystem (P) Ltd., the latter was required to apply for an occupancy certificate only upon completion of the construction. In the present case, a partial occupation FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 33 of 52 certificate was granted to the M/s R.S. Infosystem (P) Ltd. only in the month of December 2012 (precisely on 07.12.2012). However, as per the representation made in the MOU, it was represented to the PW-12 that the completion of the "entire" project will be constructed by December 2011. That means, at the promised time, there was no complete construction of the said project. The representation upon which the complainant (PW-12) ended up investing his money in the accused company, turned out to be false. When the same circumstance was put to the accused no. 2 at the time of his statement under section 313 Cr.P.C. (ref: question no. 8), no explanation whatsoever was given by the accused regarding the same. It is also not the case of the accused anywhere that he was prevented by any force majeure event. Moreover, PW- 13 had admitted during his cross-examination that building as shown in sanction plan part of Ex. PW10/A was existing at the time of his inspection, however he further stated that "only the structure was raised, and it was not fully finished" (sic). While this court is aware that more often than not, these infrastructure projects do not get finished in time due to the presence of procedural roadblocks, mandatory compliances and passing the buck ethos and existence of red-tapism, yet the fact that there was no construction or existence of a structure fit for human dwelling/business, coupled with the fact that assured returns promised to the complainant had also been stopped and the booking amount was also not returned, only goes to show the dishonest intention on part of the accused person at the beginning of the transaction. Hence, I find that the representation given by the accused no. 2 on behalf of accused no. 1 to the complainant, namely PW-12, which induced the complainant to invest in the said project of the accused no. 1 and all such representation eventually turning out to be false, thus clearly highlighting dishonest intention on part of the accused since the inception of the transaction.
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 34 of 5229. It is also pertinent to note that the said partial occupancy certificate was granted only qua the 'I.T. Building' on the Plot No.- TZ-9. PW-12 had booked a shop no. T-07 measuring approx. 583.315 Sq. Ft. on the first floor of the "i- Mall" at Kessel-i-Valley, Plot no. 9, Tech Zone, Greater Noida, Uttar Pradesh. On a careful perusal of the maps seized by the investigating officer during the investigation and proved by the PW-10 as Ex. PW-10/A, the only description of buildings, for which sanction was given by the Greater Noida Industrial Development Authority, are shown as "I.T. Tower-1 (main block) and I.T. Tower-2". As far as the divisions as per the usage is concerned, the same is divided into "IT Park", "Commercial", "Residential" and "Other facilities"
having a total FAR area of 1,86,936.819 Sq. Mts. The unit booked by PW-12 falls only under the usage "Other facilities" having the description under the remark portion as "First Floor (day care center + Banks + "Canteen" +Export Office + Travel Office Oper. & Mant. Room + clinics) and Second floor (Health Club + Conference room)".
30. However, in the entire map i.e., Ex. PW-10/A, there is no indication of an existence of "i-Mall". It appears that PW-12 had been conveyed the idea of an existence of an "i-Mall" on a future date, if he makes an investment in the unit to be built within that "i-Mall", however, that "i-Mall" never came into physical existence. The onus to prove the existence of "i-Mall" was upon the accused as it is the case of the accused that the possession letter was issued to the complainant and the unit was ready for possession and the same was never for the prosecution to prove. The accused has miserably failed to show the existence of an "i-Mall" in which PW-12 was promised a unit no. T-07.
31. Further, the accused had examined one Beni Gopal Soni as DW-1, who had deposed in his cross-examination by the Ld. APP for the State that the shop number T-07 in food court on the first floor of Mall in Project Kessel-I-Valley, FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 35 of 52 Greater Noida was divided into 2 parts, T-07 (admeasuring 583 square feet) and T-07A (admeasuring 583 square feet) both admeasuring 1166 square feet. The MOUs executed between M/s AMR Infrastructure ltd. and Gautam Kapoor and Col. Upneja on different occasions with respect to different shops. DW-1 has been an employee of the accused company. There is every possibility that he would depose in favour of the accused. At this juncture, I have placed reliance upon the judgement of Hon'ble Supreme Court in 'Masalti v. State of U.P.', (AIR 1965 SC 202), a five-Judge Bench has categorically observed as under:
"14. ... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
"36. From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness before the court of law, having FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 36 of 52 a strong interest in result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule which remains the bulwark of this system, and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may not be in a position to provide evidence in an impartial manner, when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide favourable colour. These are most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case."
(Emphasis is mine).
32. Admittedly, DW-1 was a former employee of the accused company. Hence, he can be safely put within the brackets of an interested witness, as he would naturally not depose against his superiors or former employers. It is in this light that his testimony needs to be evaluated. He had stated that total area of unit number T-07 and T-07A was 1166 square feet. He further deposed that Mr Upneja was offered the possession of unit allotted to him he was requested to make the balance payment for execution of sale dead in his favour. Mr. Upneja neither made balance payment nor showed any interest to take possession, rather he demanded refund of his payment. However, the fact remains that in the MOU, which is Ex. PW1/A, the shop no. mentioned therein is shop no. T- 07 and not Shop no. T-07A. It is important to note that nothing had stopped FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 37 of 52 the accused from mentioning in Ex. PW1/A the correct mention of the name of the shop if that had been the case. Moreover, apart from his oral testimony, DW-1 had not brought any document as a proof in support of his testimony. For the said reasons, this court cannot attach much probative value to the testimony of DW-1.
33. It is further pertinent to mention that on the receipt issued to PW-12 against the booking amount mentions the unit no. as T-07 and not T-07A. Those receipts have been proved by PW-1 as Ex. PW1/C. It is also pertinent to mention here that while the present FIR was registered on 01.05.2014 on the complaint of PW-3 with respect to certain properties including the unit no. T- 07 in the said project. PW-12 had made the complaint (Ex. PW12/A) dated 14.12.2015 to P.S. Vasant Kunj, which was merged with the present FIR. It would mean that between 01.05.2014 and 14.12.2015, the accused was aware that the fact that he had sold the same unit to two persons, consequently, this would come to light during the trial, hence the accused had ample time to hatch the entire story of the unit T-07 and T-07A in order to save his skin. Even if a ring of truth is be imagined in such a defence, as per section 103 and 106 of Indian Evidence Act, 1872, the onus to prove that the shop, that had been allotted to the complainant PW-12, was infact T-07A and not T-07 was upon the accused and the same was never proved during trial. Statement under section 313 Cr.P.C. is not a substantive piece of evidence, hence the accused cannot place reliance upon it, as it would not be of much help to him. Reliance can be placed upon the judgment of Hon'ble Apex Court in "Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582". Mere testimony at the evidence recorded during the trial cannot replace the want of documentary evidence. The hard unscathed truth that remained till the penultimate moment during the trial is that Shop no. T-07 has first been sold to PW-3 Gautam Kapoor and the same has been sold again to the complainant PW-12 and the entire defence FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 38 of 52 that Shop no. T-07 was having a total area of 1166 square feet and the same was divided into two parts namely T-07 and T-07A remained within the subconscious mind of the accused persons and only surfaced during the trial and to the dismay of accused, remained "disproved".
34. Hence, points of consideration no. (a) and (b) are decided in the affirmative.
With respect to point of consideration (c)
35. Learned counsel for the accused had further argued that to prove the offence of cheating under section 420 IPC, the mens rea i.e., dishonest, or fraudulent intention on part of the accused must be proved. It was further highlighted that the said MOU i.e., Ex. PW1/A states that if the developer is unable to give the possession of the property in the given period, then he would pay a monthly payment of Rs. 29,040/- as assured returns till the date of actual possession. It was contended that since the accused company had given assured returns to the complainant, as per the MOU, the abovesaid criminal intentions cannot be imputed upon the accused.
36. PW-1, who is the power of attorney holder of PW-12, deposed that "... since, AMR infrastructure ltd. did not complete the construction of the shop number T-07in the canteen/food court on the first floor of I-Mall in project Kessel I Valley in Tech zone, Greater Noida by December, 2011, compensation of ₹29,040 (less 10% TDS) was paid to Col Upneja by AMR Infrastructure Ltd. from 01.01.2012 till 30.11.2013. However, TDS from 01.04.2013 to 30.11.2013 was not deposited by AMR Infrastructure in the government treasury." PW-12 further admitted during his cross-examination that he had received said assured return for a period of 20 months from 01.01.2012, however he further deposed that the cheque for payment of 21 st month by AMR infrastructure had got bounced. It has further come in evidence that the FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 39 of 52 outstanding amount was adjusted against the final amount to be paid by PW- 12 to the accused company.
37. However, I find that in the present case, mere payment of assured returns would not have any bearing on the criminality attributed upon the accused. As held above, the cheating in the present case is found to have been committed with respect to the shop no. T-07, which had been sold first to PW-3 and then, the same was later sold to PW-12. It would not be out of place to mention here that at times, these assured returns are only an eyewash, as it is evident from the fact that the cheque for the assure return for the 21st month, as stated by PW-12 had got bounced. Besides, an accused cannot evade liability under criminal law by inducing a person to part with huge sums of money and in turn, stating that since, he had paid back a meagre sum in the beginning, he had no requisite intention to commit fraud upon the person. If this equation comes to be accepted, invariably all accused persons would have to be let go scot free and it would be convenient to the accused to first take huge sums of money on inducements on the basis stipulation in the agreement regarding assured returns and later, by giving back a meagre sum as assured returns, demand freedom from the clutches of criminal law. I find that in the present case, the argument that the assured returns were paid to the complainant for some time is nothing but a red herring.
38. Consequently, point of consideration no. (c) is decided in the negative.
With respect to point of consideration (d):
39. Now coming to the last controversy in this matrix of facts. It has been contended by the prosecution that the accused no. 1 (being the lessee of the entire project land itself) was not authorized to further sell any part of the facilities without the due permission of Greater Noida Industrial Development FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 40 of 52 Authority. At this stage, let us look at the relevant clause in the lease deed executed between the Greater Noida Industrial Development Authority and M/s R. C. Info Systems Pvt. Ltd. dated 21.07.2006, proved by PW-14 as Ex. PW-14/D2. The said clause is reproduced here for quick reference:
"ff. That the lessee will in no case (except as mentioned above) assign, relinquish, (except in favour of the Lessor) "the project and facilities without prior permission of the Lessor". The transfer of plot to lessor's legal heirs will be allotted with prior permission of the CEO of the lessor or an officer authorized by him/her in this regard."
40. Ld. Counsel for the accused had argued that the term "assign" or "assignee" is of a wide import and as per the lease deed, it was not the case that the lessee could not have sold any part of the said property/project, in fact if compliance of the conditions of the lease deed had been made, the lessee could have sold the units to third parties. Ld. Counsel for the accused has lastly argued that as the copies of the Lease Deed dated 21st July 2006 between Greater Noida Industrial Development Authority and M/s RC Info Systems Pvt. Ltd and Memorandum of Understanding dated 31st July 2006 between M/s RC Info System Pvt. Ltd. and M/s AMR Infrastructures Ltd have already been given to the investors including the complainant, the rule of 'Caveat Emptor' would apply and there would not be any deception in the present case.
41. I do not agree with the said contention, for any contract must be construed and given it natural meaning conforming to the larger scheme as per the contract/agreement. Ex. PW-14/D2 is a lease deed, wherein only certain rights less than an absolute owner are given to a person. As per Black's Law Dictionary, "Lease" is defined as a conveyance of lands tenements to a person for life, for a term of years, or at will, in consideration of rent or some other FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 41 of 52 recompense". Under Oxford Dictionary of Law defined it as "a contract under which an owner of property grants another person exclusive possession of the property for an agree period, in return for rent and sometimes for a capital sum known as a premium.
42. In the present case, the terms on the further transfer of rights in the said project could have been done is controlled by Ex. PW-14/D2. As per the clause "ff" of the Ex. PW-14/D2, the lessee could not have transferred by assignment or relinquishment "the project and facilities" without prior permission of the Lessor. The sale, as sought to be made by the accused no. 1 as evidence in MOU dated 23.10.2009 (Ex.PW1/A) needed prior permission of the Greater Noida Industrial Development Authority. The accused has failed to produce any such authority in his favour. Whereas, the accused no. 2, on behalf of accused no. 1 had represented in the MOU Ex. PW1/A and the exact lines are reproduced herein:
"AND WHEREAS the Developer has all the rights of construction and development of the entire PROJECT named 'Kessel-i-Valley' at Plot No-9, Tech Zone (off-Yamuna/Taj Expressway), Greater Noida, Uttar Pradesh-201301, along with all the rights of further booking/registration/transfer of developed/built-up units, vide Lease Deed dated 21st July 2006 between Greater Noida Industrial Development Authority and M/s RC Info Systems Pvt. Ltd and Memorandum of Understanding dated 31st July 2006 between M/s RC Info System Pvt. Ltd. and M/s AMR Infrastructures Ltd. The Developer has already given the copies of the lease deed, MOU between M/s RC Info Systems Pvt. Ltd., and AMR Infrastructures Limited and approved plans from the Greater Noida Authority of the project to the investors..."
43. As far as the applicability of the rule of 'Caveat Emptor' in the criminal FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 42 of 52 Law is concerned, reliance is placed on the judgement in "BMW India Private Limited vs. State of A.P CR No.70/15 14.05.2016 Page no. 7/10 (Criminal Petition no. 11025 of 2009)" in which Hon'ble Andhra Pradesh High Court has held:
"25. It is one of the contentions of the learned counsel for the petitioner that caveat emptor let the buyer beware, principle would apply in the facts of the case. Where a purchaser has himself seen and examined the subject of his purchase, he will not be entitled afterwards to repudiate the transaction on the ground of patent fault, unless he can prove fraud on the part of the seller; the purchaser, being bound to satisfy himself, in the ordinary case, of the quality of the subject bought. If the defect be latent, and such as he could not have discovered by examination, the rule does not apply. This principle would apply in civil proceedings, but not to criminal proceedings as there is a marked difference between civil action and criminal action. Apart from the other ingredients of an offence, mens rea must be present in criminal prosecution. So, the principle 'caveat emptor' would apply to the criminal prosecution, cannot be accepted and it is wholly devoid of merit."
44. Hence the contention of the Ld. Counsel is not acceptable for the reasons stated hereinabove and the point of consideration no. (d) is decided in the affirmative.
Miscellaneous issues arose during the arguments:
45. Further, the accused has examined DW-2 and DW-3 Sh. Sachin Tittal and sh. Digamber Singh, both from Greater Noida Authority, who had proved certain Tripartite Lease Deeds executed between GNIDA (Lesser), M/s. RC Info Systems (Lessee) and buyers (sub-lessee) namely Ex. DW-3/A and Ex.
FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 43 of 52DW-3/1 to Ex. DW-3/23 to show that possession of certain units were indeed given by the accused no. 1 to prospective buyers. However, on careful perusal of the above said tripartite lease deeds, it becomes clear that all such lease deeds pertain to the Units in "Tower-A in Kessel-i-Valley". However, the complainant had booked his unit namely Shop no. T-07, measuring approx. 583.315 Sq. fts. in super area, on First Floor of the i-Mall at Kessel-i-Valley, Plot No. 9, Tech Zone, Greater Noida, Uttar Pradesh. There is no material on record to show that the unit of the complainant also pertained to Tower - A, in which the tripartite lease deeds have been executed. Even if it is to be presumed that the accused no. 1 had in fact given possession of certain units to buyers under a tripartite lease deed in Tower-A of the said project, admittedly the entire project contained more than 1 tower and offer of possession of one cannot be equated with offer of possession of the entire project. Hence, testimonies of DW-2 and DW-3 are not of much help to the accused.
46. It was further argued by the Ld. Counsel for the accused that the IO in the present case has not conducted proper investigation in the present case. It would be relevant here to discuss the judgment of Dayal Singh & Ors. Vs. State of Uttarakhand (criminal appeal no. 529 of 2010) delivered on 03.08.2012 wherein the Hon'ble Supreme Court had held that:
"22. Now, we may advert to the duty of the Court in such cases. In the case of Sathi Prasad v. The State of U.P. [(1972) 3 SCC 613], this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in the case of Dhanaj Singh @ Shera & Ors. v. State of Punjab FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 44 of 52 [(2004) 3 SCC 654], held, "in the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective." (emphasis is mine.) Further the Hon'ble Apex Court discussed another case and observed:
"In the case of State of Karnataka v. K. Yarappa Reddy [2000 SCC (Crl.) 61], this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case. This Court, in Paragraph 19, held as follows:
"19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well- nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 45 of 52 witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
Lastly it was concluded that:
"28. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well.
47. Having the guidance of the above-said judgment, let us peruse the statement of PW-13 Sub-inspector Shiv Dev who had deposed that after receiving the complaint of PW-12, he has recorded the statements of A.P. Upneja and Kushal Dang and thereafter he was transferred to EOW Cell. He had admitted during his cross-examination that he had examined the rules of Greater Noida Authority before registration of FIR. Thereafter, he had also sought various documents under section 91 Cr.P.C. and visited the offices of planning department as well as IT department. He further admitted that he had also visited the site and saw multiple floors constructed at the site, however he had not verified the status of constructed unit of PW-12 and he had only FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 46 of 52 inspected the status of the floor related to another complainant Gautam Kapoor. He further deposed that he had not examined any customer who had got possession from M/s RC Info Systems Pvt. Ltd. The last IO i.e., PW-17 Inspector Sehdev had stated that he had not verified the size, location, and status of construction of unit no. T-07 in the project of the accused AMR that were booked by the complainants.
48. After perusing the same, the only part not verified by the IO in the present case is only the status of the unit of the complainant PW-12. It is pertinent to repeat here again that the present FIR was registered on the complaint of another complainant Gautam Kapoor (PW-3) who had also been sold the unit no. T-07, as per the MOU dated 21.10.2008 proved by PW-3 as Ex. PW-3/C and sometime later, when it was found out that the accused company had sold the exact same unit i.e., Shop no. T-07 to PW-12 A.P. Upneja vide MOU dated 23.10.2009 (Ex. PW-1/A). Both MOUs namely Ex. PW-3/C and Ex. PW-1/A have not been disputed by the accused. Both have been proved during the trial and have remained unchallenged. On persual of both, it is clear that both MOUs have been executed with different persons namely PW-3 and PW-12 by the accused no. 1 for the same unit i.e., Shop no. T-07. Hence, in the view of the same background, I find that the lack of investigation qua the status of the unit booked by PW-12 is not fatal to the case of the prosecution and the benefit of the same will not accrue to the accused.
49. As far as the vicarious liability of the accused no. 2 is concerned, reliance is place upon the judgement of Hon'ble Apex Court in "Ravindranatha Bajpe Vs. Mangalore Special Economic Zone Ltd. and Ors." (Criminal Appeal no.s. 1047 and 1048 of 2021) delivered on 27.09.2021, wherein further reliance was placed upon the judgement of Sunil Bharti Mittal Vs. CBI (2015) 4 SCC 505, which had held that:FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 47 of 52
"In the case of Sunil Bharti Mittal (supra), it is observed by this Court in paragraphs 42 to 44 as under:
"(iii) Circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person. 42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.
44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 48 of 52 a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa.
Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company."
50. Further the judgement of Hon'ble Bombay High Court in State of Maharashtra Vs. Syndicate Transport Co. (P) Ltd. (AIR 1964 Bom 195) also sheds some light on the issue, wherein it was held that:
"16. In our country also, corporate bodies were initially indictable for minor breaches of rules or byelaws or for offences involving petty fines only. In recent times, the ideas of corporate activities have taken root and several legislations permitting the formation of corporate bodies have been passed. Numerous corporate bodies have come into existence. These corporate bodies include various public and private limited companies tflso. These corporate bodies necessarily act through the human agency of their directors or officers and authorised agents. They reap all the advantages flowing from the acts of their directors, servants or authorized agents and there seems to be no reason to exempt them from liability for crimes committed by their agents or servants while purporting to act for or on behalf of the corporate bodies. The ordinary citizen is now very much exposed to the activities of persons acting, in the name of corporate bodies, to his detriment. Even in our country, now in the words of Russell quoted above, "the point is being reached where what is called FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 49 of 52 for is a comprehensive statement of principles formulated to meet the needs of modern life in granting the fullest possible protection of criminal law to persons exposed to the action of the many powerful associations which surround them".
17. In my view, therefore, "the scope within which criminal proceedings can be brought against institutions which has been become so prominent a feature of everyday affairs" ought to toe widened so as to make corporate bodies indictable for offences flowing from the acts or omissions of their human agents. Ordinarily, a corporate body like a company acts through its managing director or board of directors or authorized agents or servants and the criminal act or omission of an agent including his state of mind, intention, knowledge or belief ought to be treated as the act or omission including the state of mind, intention, knowledge or belief of the company. I do not mean or intend to suggest that in every case where an agent of a limited company acting in its business commits a crime, the company is automatically to be held criminally responsible. As adumbrated, a company cannot be indictable for offences like bigamy, perjury, rape etc which can only be committed by a human individual or for offences punishable with imprisonment or corporal punishment. Barring these exceptions, a corporate body ought to be indictable for criminal acts or omissions of its directors, or authorized agents or servants, whether they involve mens rea or not, provided they have acted or have purported to act under authority of the corporate body or in pursuance of the aims or objects of the corporate body. The question whether a corporate body should or should not be liable for criminal action resulting from the acts of some individual must depend on the nature of the offence disclosed by the allegations in the complaint or in the charge-sheet, the relative position FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 50 of 52 of the officer or agent vis-a-vis the corporate body and the other relevant facts and circumstances which could show that the corporate body, as such, meant or intended to commit that act. Each case will have necessarily to depend on its own facts which will have to be considered by the Magistrate or Judge before deciding whether to proceed against a corporate body or not."
51. After going through the above reasoning, the irresistible conclusion that comes to the foreground is that an individual who has perpetrated the commission of an offence on behalf of a company could be made accused, along with company, only if there was sufficient evidence of his active role coupled with criminal intent. The name of the accused no. 2 appears on the MOU dated 23.10.2009 (Ex. PW-1/A) who had represented himself as the "Duly Authorised Director" of the accused no. 1. He has neither refuted nor denied his position in the accused company during the trial ever. He has not even denied his signature on the said Ex. PW-1/A. Hence, the role of accused no. 2 is indisputable in the entire circumstances.
CONCLUSION
52. Based on the above discussion, I find that the accused no. 2, on behalf of accused no. 1, dishonestly deceived the complainant namely PW-12 that they had all the rights to sell/transfer the unit namely - "Shop no. T-07, measuring approx. 583.315 Sq. ft. in super area, on first floor of the i-Mall at Kessel-i- Valley, Plot no. 9, Tech Zone, Greater Noida, Uttar Pradesh", vide MOU dated 23.10.2009 (Ex. PW-1/A), knowingly that the same had already been sold to PW-3, vide MOU dated 21.10.2008 (Ex. PW-3/C) and also, knowingly that same could not have been sold the same without the duly obtained FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 51 of 52 authorization of GNIDA, thus thereby committing cheating under section 420 IPC with the complainant PW-12. Thereby, I conclude that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt.
53. Consequently, I find the accused no. 1 AMR Infrastructure Ltd. and accused no. 2 R.C. Soni guilty and they are convicted for the offence under section 420 r/w 34 IPC.
54. Copy of this judgement be given free of charge to the accused.
ANNOUNCED AND SIGNED IN THE OPEN COURT ON 21.01.2023 (RISHABH TANWAR) MM-09, SOUTH-EAST DISTRICT SAKET: NEW DELHI FIR No.113/14, PS Defence Colony State Vs AMR Infrastructure Ltd. Page 52 of 52