Delhi District Court
Unitech Ltd vs State on 5 December, 2016
IN THE COURT OF MS. VRINDA KUMARI:ADDL. SESSIONS
JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
Criminal Revision no.41/16 (New No.8405/2016)
CNR No.: DLST010058342016
Unitech Ltd.
Through its Authorized Representative
Sh. Ashok Kumar Dubey, DGM (Legal).
Having Registered Office at:
6, Community Centre
Saket, New Delhi110017
..........Revisionist
Vs.
1. State
Department of Prosecution
Govt. of NCT of Delhi
High Court of Delhi
New Delhi
2. Ms. Harsimran Kaur
w/o Sh. Amanveer Singh
r/o H.No.66, Pkt.52
Chitranjan Park
New Delhi110019
3. Ms. Baljit Kaur
w/o Sh. Paramveer Singh
r/o H. No.66, Pkt.52
Chitranjan Park
New Delhi110019 ....... Respondents
Date of filing of revision : 22.10.2016
Date of allocation : 24.10.2016
Arguments concluded on : 01.12.2016
Date of order : 05.12.2016
CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 1/16
Criminal Revision no.47/16 (New No.8432/2016)
CNR No.: DLST010062162016
Unitech Ltd.
Through its Authorized Representative
Sh. Anshu Adarsh.
Having Registered Office at:
6, Community Centre
Saket, New Delhi110017
..........Revisionist
Vs.
1. State
Department of Prosecution
Govt. of NCT of Delhi
High Court of Delhi
New Delhi
2. Sh. Ananta Kumar Saha
s/o Sh. Ganesh Chandra Saha
r/o J002, Bestech Park View Spa Next
Sector67, Gurgaon, Haryana. ....... Respondents
Date of filing of revision : 07.11.2016
Date of allocation : 08.11.2016
Arguments concluded on : 01.12.2016
Date of order : 05.12.2016
CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 2/16
Criminal Revision no.51/16 (New No.8440/2016)
CNR No.: DLST010066702016
Unitech Ltd.
Through its Authorized Representative
Sh. Ashok Kumar Dubey, DGM (Legal).
Having Registered Office at:
6, Community Centre
Saket, New Delhi110017
..........Revisionist
Vs.
1. State
Department of Prosecution
Govt. of NCT of Delhi
Saket Courts
New Delhi
2. Ms. Renu Chandwani
w/o Mr. Sanjay Chandwani
3. Mr. Sanjay Chandwani
s/o Mr. PK Chandwani
R2 and R3 are residents of
F6, 2nd Floor, Lajpat NagarI
New Delhi110024
....... Respondents
Date of filing of revision : 26.11.2016
Date of allocation : 28.11.2016
Arguments concluded on : 01.12.2016
Date of order : 05.12.2016
CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 3/16
Criminal revision petition u/s 397 r/w section 401 of Cr.PC, 1973
against the impugned summoning order dated 05.09.2016 passed
by the Ld. ACMM, South, New Delhi in CC no.471176/16 titled as
'Harsimran Kaur & Anr Vs. M/s Unitech Ltd. & Ors'; impugned
summoning order dated 01.09.2016 passed by Ld. ACMM, South,
New Delhi in CC no.472688/16 titled as 'Ananta Kumar Saha Vs.
M/s Unitech Ltd. & Ors.'; and impugned summoning order dated
05.10.2016 passed by Ld. ACMM, South, New Delhi in CC
No.466943/16 titled as 'Renu Chandwani & Anr. Vs. M/s Unitech
Ltd & ors.'
ORDER
1. Vide this common order, I shall dispose of the three revision petitions bearing CR No.41/16 (New No.8405/16), CR No.47/16 (New No.8432/16) and CR No.51/16 (New No.8440/16).
CR No.41/162. Upon the representations of the revisionistaccused company and its concerned officials, the respondentscomplainant Ms. Harsimran Kaur and Ms. Baljit Kaur applied for registration/allotment of a residential apartment in the Group Housing Project of the accused, namely, 'Unitech Habitat' on plot no.9, SectorPi II, Greater Noida, DistrictGautam Budh Nagar, Uttar Pradesh. They were allotted an apartment bearing no.1104 on 11 th floor in Tower6 vide the allotment letter dated 07.10.2006. The total amount payable was Rs.71,09,704/ including consideration amount of Rs.65,75,712/ and certain charges and interest. The consideration amount of Rs.65,75,512/ was paid. The possession of the flat was to be handed over within 36 months of the signing of allotment letter. The accused failed to deliver the possession of the booked flat in time. The accused CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 4/16 issued a letter dated 29.09.2010 and offered to give possession by the end of the second quarter of 2011. They again failed to deliver possession of the flat. Neither the possession of the flat was handed over nor the amount was refunded with interest. It is submitted that accused no.2 to 8 were the full time Directors/Managing Directors of the revisionistaccused no.1company. It is alleged that all the accused never intended to deliver the booked flat to the complainants and they induced the complainants to invest large amount in their project and later also misappropriated that amount. On the basis of this complaint, ld. Trial Court took cognizance, recorded the presummoning evidence and summoned all the accused. The operative part of the impugned summoning order dated 05.09.2016 reads as follows:
"Arguments on the point of summoning heard. From the perusal of the presummoning evidence adduced by complainants, a prima facie case for commission of offence punishable U/s 409/420/120B IPC is made out against all the accused. There are sufficient grounds for proceeding against all the accused.
All the accused persons be summoned on filing of PF".
(CR No.47/16)
3. The allegations of complainant Anant Kumar Saha against revisionistaccused no.1 company and its seven Directors/Managing Directors (accused no.2 to 8 in the complaint case) are same as those of the respondentscomplainants in CR No.41/16. He too was allotted an apartment bearing no.0901 in Tower3 in the proposed Group Housing Project 'Unitech Cascades' CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 5/16 on plot no.8, Sector Pi II, Greater Noida vide an allotment letter dated 20.12.2005. The consideration amount of Rs.31,19,687/ and other charges amounting to Rs.2,54,910/ were payable towards it. An amount of Rs.32,33,611/ was paid by the complainant in four installments. The possession of the booked flat was to be handed over latest by 30th April, 2008. Neither the possession of the flat was handed over nor was the amount returned with interest. On the basis of this complaint, ld. Trial Court took cognizance, recorded the pre summoning evidence and summoned all the accused. The operative part of the impugned summoning order dated 01.09.2016 reads as follows:
"Arguments on summoning heard. From the perusal of the evidence adduce on record by the complainant during presummoning evidence, a primafacie case for commission of offence punishable u/s 406/409/420/120B IPC is made out against all the accused persons. Therefore, there are sufficient grounds for proceeding against them. All the accused persons be summoned on filing of PF through SHO, PS Saket".
(CR No.51/16)
4. The allegations of the complainant against revisionist no.1 company and its four Directors/Managing Directors (accused no.2 to 5 in the complaint case) are also same as above. The complainants Ms. Renu Chandwani and Sh. Sanjay Chandwani booked a flat no.302 in Group Housing Project 'Unitech Habitat' on the basis of representations of the accused persons. An amount of Rs.60,75,270/ was payable. The entire amount was paid without CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 6/16 delay. The accused issued a letter dated 18.04.2011 calling upon the complainants to accept possession of the booked flat. It was also mentioned that the actual physical possession of the apartment shall be handed over within 45 days of submission of possession letter at project site. It was also mentioned that the said flat was ready for possession. On the basis of this letter and a further letter dated 14.05.2011, the complainants approached the Site Engineer at site. They were shocked to note that neither the booked flat was ready for possession nor construction of the tower was complete. On one pretext or the other, the accused persons continued to delay handing over of the booked flat. Despite repeated communications through Emails in September, October and November, 2011, the accused failed to do the needful. There was no communication at all. They later found that the booked flat was incomplete and in a pathetic condition. On the basis of this complaint, ld. Trial Court took cognizance, recorded the pre summoning evidence and summoned all the accused. The operative part of the impugned summoning order dated 05.10.2016 reads as follows:
"Arguments on summoning heard.
From the perusal of the presummoning evidence adduced by the complainants, a prima facie case for commission of offences punishable u/s 420/409/120B IPC and there are sufficient grounds for proceeding against all the five accused persons.
All the accused persons be summoned through SHO, PS Saket, on filing of PF".
5. The impugned orders have been challenged on various CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 7/16 grounds. It is submitted that the complaints do not disclose any criminal offence and the dispute is purely civil in nature. Further, the offences of cheating and criminal breach of trust are not made out and they cannot be invoked together. The revisionistcompany cannot be prosecuted for offence involving mens rea. Proper evidence was not led by the complainant. It is further submitted that the impugned order is not a speaking order. It does not indicate application of mind and roles of various accused persons have not been specified in the order.
6. The revision petitions have been vehemently opposed by the respondents.
7. I have heard the rival contentions and have carefully perused the record including the trial court record.
8. It has been contended by the revisionistaccused no.1 company that the impugned orders are not speaking orders and, therefore, they cannot sustain. On the other hand, ld. Counsels for the respondentscomplainants have argued that a detailed speaking order is not required at the stage of summoning. They have relied upon Kanti Bhadra Shah Vs. State of WB, (2000) 1 SCC, 722 wherein it has been held "12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial court be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 8/16 all stages, the snailpaced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985".
9. To counter this, ld. Counsel for the revisionist has relied upon Mehmood Ul Rehman vs. Khazir Mohd. Tunda and Anr., 2015 (2) JCC 1337. It has been argued that since the Kanti Bhadra Shah's judgment was discussed in this case, therefore, the law laid down by it should be followed. I have perused this case law carefully. No doubt Kanti Bhadra Shah's judgment has been discussed in this judgment but the settled law has only been reiterated in it and the observations of Hon'ble Supreme Court of India in Kanti Bhadra Shah's case have not been interfered with. It has been observed by Hon'ble Supreme Court of India in the Mehmood Ul Rehman's case "22. Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) of CrPC, he has the information or knowledge of commission of an offence. But under Section CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 9/16 190(1)(a) of CrPC, he has only a complaint before him. The Code hence specifies that...
"a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take, cognizance under Section 190(1)(a) of CrPC. The complaint is simply to be rejected."
Hon'ble Supreme Court of India has further discussed the meaning of 'the satisfaction on the ground for proceeding.' It has been held '23. ...The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered alongwith the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly.'
10. In Bhushan Kumar and Anr. vs. State ( NCT of Delhi) and Anr. (2012) 5 SCC 424, it has been held "12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 10/16 legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court."
11. Thus, the order of summoning need not be a detailed one.
12. It has been argued by the revisionist that the complaint cases of the respondentscomplainants do not disclose any offence u/s 406/409/420/120B IPC rather they indicate existence of civil dispute only.
13. I have perused all the complaint cases alongwith their documents. There are specific allegations of the complainants that on the assurances of the accused persons which later turned out to be false, they invested in the Group Housing Project(s) of the revisionist accused no.1 company. Despite payment of the agreed amount, the accused persons kept on avoiding handing over the possession of the booked flats. They also avoided to refund the paid amount with interest. Allegation of Ms. Renu Chandwani and Sh. Sanjay Chandwani (CR 51/16) is also that the accused issued two letters misrepresenting that the booked flat was ready for handing over of possession. Upon inquiry, it was found that the flats were not ready. It has been specifically alleged by the complainants that the accused Directors, being full time Directors/Managing Directors of revisionist accused no.1 company, never intended to deliver the possession of the apartment to the complainant and all the accused misappropriated the money invested by the complainants in the Group Housing Project of the accused persons.
CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 11/16
14. It has been argued on behalf of the respondents complainants that at the time of execution of the agreement(s), the actual immovable property/flats were not in existence. These agreements were, therefore, not the usual agreements to sell involving only civil liability. The documents show that the complainants were only allotted flats which were yet to be constructed and possession was to be handed over later. Thus, the act of inducing the complainants on the promise of building a home for them so that they entrusted/invested large amounts of their hard earned money towards the booked flat(s) and then avoiding to hand over the possession of the flat or to refund the amount invested with interest entails criminal liability.
15. It has also been argued by the revisionistaccused that the complainants have not made even a single averment as to how the money invested by them was misappropriated by the accused persons. The Court does not find any merit in this argument. It has been held in State of HP Vs. Karanvir, (2006) 5 SCC 381 by Hon'ble Supreme Court of India "The actual manner of misappropriation, it is well settled, is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in favour of section 405 IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer therefor."
16. The averments in the complaints coupled with the documents and statements of the complainants recorded in the pre CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 12/16 summoning evidence, prima facie, establish that the accused persons including the revisionistaccused no.1 are criminally liable for the alleged offences.
17. It has also been argued by the revisionistaccused no.1 company that section 420 IPC on one hand and section 406/409 IPC on the other could not have been invoked against the accused persons.
18. Whether the accused had the intention to cheat the complainants since inception or whether the entrusted amount paid by the complainants towards the booked flats was dishonestly misappropriated later is a subject matter of trial. Whether or not the charge under these offences should be framed in the alternative as envisaged u/s 221 Cr.PC is an issue to be considered at the time of framing of charge.
19. Regarding the summoning of the revisionistaccused company, it has been argued by the revisionist that a company is not a natural person, therefore, it cannot have mens rea to commit the alleged offence. Ld Counsel for the revisionist has relied upon Kalpnath Rai vs State, AIR 1998 SC 201 in support of his contention. I have considered the case law. It pertains to an offence u/s 3 (4) of Terrorist and Disruptive Activities (Prevention) Act, 1987 and deals with a circumstance where a terrorist was allowed to occupy rooms in the company's Hotel. It was also observed that there was no such provision in TADA which made the company liable for the acts of its officers. This case law, however, is not applicable to the facts of the instant case(s) under consideration. An offence under TADA is not an offence committed in relation to the business of the CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 13/16 company/corporation by a person or body of persons in control of its business. In Iridium India Telecom Ltd vs Motorola Incorporated & Ors, (2011) 1 SCC 74, it was held that the companies and corporate houses can no longer claim immunity from criminal prosecution on the ground that they are incapable of possessing the necessary mens rea for the commission of criminal offences.
20. In Standard Chartered Bank and Others vs Directorate of Enforcement and others, 2005 SCC(Crl) 961, it has been held by the Constitution Bench of Hon'ble Supreme Court of India - " There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that corporations can not commit a crime , the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents." While discussing the definition of ' person' under section 11 of the Indian Penal Code , it was further observed -"... there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or absolute liability." The question before Hon'ble Supreme Court of India in this case was whether a company could be prosecuted for an offence for which mandatory sentence of imprisonment was provided. While rejecting the argument that corporations could not be prosecuted for the reason that mandatory punishment of imprisonment could not be imposed on CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 14/16 corporations, scheme of Indian Penal Code and offences like section 417/420 IPC were also discussed. It was noted that there were several offences of serious nature in the IPC whereunder a corporate body also might be found guilty.
21. Thus, there is no illegality in summoning of revisionist accused company by ld Trial Court. So far as roles of other accused persons are concerned, the complainants have specifically stated that all the other accused were the full time Directors of the Revisionist accused company. A common man can not be expected to have the inside information of all the Directors of a company so as to indicate their specific roles. Which offences can each of the accused be charged with is to be considered at the time of framing of charge. All the accused have been summoned for the offences u/s 406/409/420/120B IPC (CR No.47/16), u/s 409/420/120B IPC (CR No.41/16), and u/s 420/409/120B IPC (CR No.51/16) on the basis of prima facie case against them.
22. Another short argument has been made on behalf of the revisionistaccused that the respondentcomplainant has merely produced photocopies of the documents and there can be no summoning on the basis of such photocopies. On the other hand, Ld. Counsel for the respondent has pointed out that the agreement and certain receipts were produced in original. The originals were seen, compared with the photocopies on record and returned. He has further argued that even otherwise, photocopies of documents constitute secondary evidence.
23. Perusal of the documents shows that the original CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 15/16 documents were produced by the respondentscomplainants at the time of recording of presummoning evidence. Certain documents which were not produced in original were photographs, newspaper cuttings and certain Emails (in CR No.51/16), allotment application, certain postal receipts, tracking report and copy of legal notice (in CR No.47/16) and copy of legal notice with postal receipts and tracking reports (in CR NO.41/16). All the material documents, however, were produced in original.
24. In view of the above discussion, the Court does not find any illegality or infirmity in the impugned summoning orders. All the three revision petitions bearing CR no.41/16 (New No.8405/16), CR No.47/16 (New No.8432/16) and CR No.51/16 (New No.8440/16) are dismissed.
25. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 05 th DAY OF DECEMBER, 2016.
(Vrinda Kumari) ASJ/Special Judge (PC Act) (CBI3), South, Saket Court New Delhi CR No. 41/16, CR No.47/16 and CR No.51/16 Dt: 05.12.2016 Page no. 16/16