Delhi District Court
Gurcharan Singh vs ) State on 27 May, 2017
IN THE COURT OF SH. NARINDER KUMAR:SPECIAL JUDGE2
NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
Decided on: 27.05.2017
Crl. Rev. No. : 237/17
Date of Institution: 24.05.2017
Gurcharan Singh
S/o Late Sh. Harnam Singh
R/o E389, Ranjeet Avenue,
Amritsar143001
.....Petitioner
Versus
1) State
(through Govt. of NCT of Delhi)
.....Respondent
2) Sanjeev Dhupar
S/o Sh.S.L.Dhupar,
J3/155, Rajouri Garden, New Delhi
(struck off from arrays of respondents)
3) Manoj Goyal
Gurucharan Singh v. State & Ors. Page 1
S/o Lt. Gauri Shankar,
R/o Plot No.152, PocketH/17,
Sector7, Rohini, Delhi
(struck off from arrays of respondents)
JUDGMENT
By way of present petition, order dated 24.04.2017 passed by Addl. Chief Metropolitan Magistrate in case FIR No.426/2001, P.S. Karol Bagh, has been challenged. Petitioner is one of the accused in said criminal case. He is feeling aggrieved by the impugned order as charge for offence u/s 420 IPC r.w. section 120B IPC has been framed against the accused persons.
2. Trial Court has observed in the impugned order that there is allegation against the accused persons including the petitioner that they sold immovable property to the complainants knowing that the same was unauthorizedly constructed and further that show cause notices and demolition notice had been issued in respect of the said Gurucharan Singh v. State & Ors. Page 2 property by the Municipal Corporation of Delhi and was likely to be demolished. The substance of the charge framed against the accused persons including the petitioner reads as under: "That on 25.07.1994, you accused persons along with coaccused Hira Lal Grover (expired) entered into a criminal conspiracy with each other and dishonestly induced the complainant Sanjeev Dhupar and Manoj Goel to deliver a sum of Rs.1,80,000/ in respect of sale of Flat No.303 and Flat No.307 of property bearing No.16/14, WEA, Karol Bagh, Delhi by assuring that the property were free from all encumbrances, litigations and were constructed in accordance with MCD rules and byelaws. However, the said property was demolished by the MCD in the year 1996 on the ground that it was constructed in violation Gurucharan Singh v. State & Ors. Page 3 of MCD rules.
In the aforesaid manner, all of you along with coaccused Hira Lal Grover (expired) also induced victims Vipin Khanna, Kamal Kapoor, Neeraj Bajaj, Ashok Behal, Rahul Bishnoi, S.C.Gupta, Kanaya Sirumal Lal Chandani, Rajiv Dawar, Sushil Kumar Munjal, N.K.Sharma, Mohd. Abbas, Sunil Batra and Ramesh Kapoor to deliver a different sums in respect of different shops/flats of the same property. By doing aforesaid act, all of you committed offence punishable under Section 420 IPC read with Section 120B IPC which is within the cognizance of this court."
3. Trial Court Record has also been received.
4. Heard. File perused.
5. On behalf of the petitioner, it has been submitted Gurucharan Singh v. State & Ors. Page 4 that even though no prima facie case is made out against the accusedpetitioner, Trial Court has ordered for framing of charge against him.
Further, it has been submitted that petitioner was only a witness to the execution of the sale deed and he signed the same in good faith, the vendor being his wife.
In the petition,, it has been submitted that since the complainants were very well aware of the area and the nature of construction of the building and they so purchased the same with their free consent, no inducement whatsoever, said to have been caused.
It has also been pleaded in the petition that due to subsequent construction, if any, raised by the complainants, MCD initiated action, petitioner cannot be held criminally liable for the same. Further, it has been alleged that this is not a case of criminal conspiracy and as such no charge for the offence u/s 120B IPC could be ordered to be framed against him.
Gurucharan Singh v. State & Ors. Page 5
6. Record reveals that case was registered on the joint complaint submitted by Sh.Sanjeev Dhupar and Sh.Manoj Goyalcomplainants.
In the complaint dated 20.2.2001, the complainants claimed themselves to be owner of Flat No.303 & 307, having purchased the same from Ms.Charanjeet Kaur wife of the accusedpetitioner. These flats are stated to have been constructed in the year 199495.
Complainants annexed to the complaint copies of Sale Deed. They further alleged that they were asking the builders for last four years to obtain fresh sanction and rebuild the building as per revised Building Bye Laws for the affected parties but in vain.
Investigation revealed that as per records of MCD, the building in question was illegally constructed in violation of bye laws of MCD, though several notices were issued to the buyers warning them of the violation but they did not submit any reply and exparte decision was taken for Gurucharan Singh v. State & Ors. Page 6 demolition of the building. Investigation also revealed that building was later on demolished resulting in wrongful loss to buyers and wrongful gains to the builders, who disappeared from picture after selling their portion.
7. It is case of the prosecution that out of six partners, Smt.Charanjeet Kaur W/o accusedpetitioner, Hira Lal Grover and Surender Saluja dishonestly and fraudulently sold their portion to innocent buyers by misrepresentation of the facts knowing well that portions being sold by them were illegally constructed in violation of the MCD Rules and laws and were liable to be demolished.
It also transpired during investigation that Sanjeev and Subhash Grover along with Hira lal Grover assured the building buyers that building no.16/14, WEA, Karol Bagh, New Delhi, was commercial and had been granted commercial status by MCD and further that building was free from encumbrances, litigations etc. In this way, they are said to have misrepresented the facts and kept the Gurucharan Singh v. State & Ors. Page 7 complainants in dark.
File reveals that in the course of investigation, the IO recorded statements of two complainants Sanjeev Dhupar and Manoj Goyal. The I.O. also recorded statements of 15 other buyers of other flats/portion of building. They stated that same were sold flats on false assurances.
8. A perusal of Trial Court Record would reveal that certified copies of 11 Sale Deeds of different dates i.e. 24.4.89, 31.3.89, 3.6.94, 25.7.94 and 7.9.94 and one copy of General Power of Attorney dated 23.3.94 were seized by the IO.
Thirteen Victims, other than the two complainants Sh.Sanjeev Dhupar and Manoj Goyal, are alleged to have purchased from the builders different areas for different sale considerations on different dates and vide different sale deeds. But, while passing the impugned order dated 24.4.17, Ld. Trial Court nowhere observed as to which amount these 13 victims were induced to pay/deliver, in Gurucharan Singh v. State & Ors. Page 8 respect of which property and, as to what was the area of the said property and as to who (out of the accused) had executed the sale deed/document regarding those sales. Furthermore, no date of transaction with these 13 victims finds mentioned in the impugned order dated 24.4.17.
Similarly, all these significant facts do not find mention in the charge framed against the four accused including the petitioner. In other words, in the charge qua 13 victims other, it does not find mention as to on which date, the offence took place, as to on which date document of sale was executed, as to by whom the same was executed, as to what was the sale consideration and as to which was the description of the property sold.
Surprisingly, there is no mention in the order as to the role played by the accusedpetitioner herein.
Under Section 212 Cr.P.C, the time, place of the offence, property in respect of which offence has been committed are also required to be specified in the charge, as Gurucharan Singh v. State & Ors. Page 9 are reasonably sufficient to give the accused notice of the matter with which he or they are to be charged. Section 213 Cr.P.C provides that the manner of committing offence must be stated. In case of offence of cheating, all the aforesaid particulars were required to be mentioned not only in the impugned order but also in the charge so as to state as to the manner in which the said offence was committed.
Furthermore, Section 218 Cr.P.C provides that for every distinct offence, there shall be a separate chrge and every such charge shall be write separately.
But in this case, Ld. Trial Court has framed charge in respect of all the transactions i.e. each offence only under one head.
It is also significant to note that in view of the allegations levelled by the complainants and the other victims , it was also to be seen prima facie case for an offence u/s 120B IPC is made out and if so against which accused and if separate charge for an offence u/s 120B IPC Gurucharan Singh v. State & Ors. Page 10 was also required to be framed. But, in the impugned order, there is no such observation and even no separate charge for the offence u/s 120B IPC has been framed, while framing charge for the offence u/s 420 r.w.sec.120B IPC.
In the impugned order, there is no mention either about role played by the accusedpetitioner herein in any of the transactions with 15 persons i.e. complainants and the victims. There is no reason in the impugned order as to why the accusedpetitioner was to be charged for the offence u/s 420 r.w. sec.120B IPC and on the basis of which evidence and for which of the transaction.
9. Having regard to all this, court finds that Ld. Addl.Chief Metropolitan Magistrate passed the impugned order without taking into consideration all the relevant facts and circumstances while proceeding to frame charge only for the offence u/s 420 IPC r.w. section 120B IPC.
In this situation, court finds that matter needs to be decided afresh by Ld. Addl.Chief Metropolitan Gurucharan Singh v. State & Ors. Page 11 Magistrate, after providing opportunity to the State and accused persons of being heard, on the point of charge. Accordingly, revision petition is disposed of, while setting aside the impugned order dated 24.4.17 and the impugned charge framed on the same date, qua the accusedpetitioner, with the directions to provide reasonable opportunity of being heard to both the sides and pass appropriate orders on the point of charge in accordance with law.
10. Petitioner is directed to appear before Ld. Trial Court on 17.7.2017. Longer date is given as Ld. Counsel for the petitioner submits that she would be beyond India prior thereto and also because wife of the petitioner is to undergo surgical operation.
Trial Court Record be returned. File of revision petition be consigned to Record Room.
Announced in the open Court on this 27th day of May, 2017 (NARINDER KUMAR) SPECIAL JUDGE, NDPS02 (CENTRAL) TIS HAZARI COURTS, DELHI Gurucharan Singh v. State & Ors. Page 12