Delhi District Court
Ms. Vaishali Gupta & Others vs State & Others on 2 January, 2014
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE (2) NORTH DISTRICT
ROHINI COUTRS : DELHI
CR No. : 72/13
Ms. Vaishali Gupta & Others
...........Revisionists/Petitioners
Versus
State & Others
........Respondents
Date of Institution : 13-11-2013
Date on which reserved for order : 21-12-2013
Date of order : 02-01-2014
ORDER
1. By this order, I shall dispose of a revision petition filed by the revisionists/petitioners against the impugned order dated 09-10-2013, passed by Ld. MM, North, Rohini Courts, Delhi whereby the Ld. MM has summoned the revisionists for the offence U/s 420/468/471 IPC R/w 120 B IPC.
2. Brief facts, as per the complaint filed by the revisionists are that accused Ms. Vaishali, Smt. Sneh Glupta, Bharat Gupta and Sh. J.L. Gupta named therein, by hatching a criminal conspiracy to cheat deceitfully and dishonestly entered into an agreement to sell wrongly and fraudulently bearing property No. 122-124, Mall Road, Kingsway Camp, Delhi built upon 200 sq. yards being inseparable structure/unit knowing fully well that they have no right and title in the property bearing No. 124 as the lease of the same had already been cancelled by DDA vide letter dated 03-03-2006 and thus they thereby dishonestly allured and induced the complainant company to deliver/part with Rs. 1 Crore as advance earnest money and further to deliver Rs. 7 Crores 37 Lakhs at the time or before the execution Criminal Revision No. : 72/13 Page 1 of 10 of the sale deed i.e dated 14-12-2010. When the revisionist came to know of the cancellation of the lease deed, on being confronted, the accused persons remitted the principal amount of Rs. 1 Crore back to the complainant's bank account through RTGS without the consent or asking of the revisionists.
3. The revisionists have challenged the impugned order interalia on the following grounds : that the impugned summoning order is bad in law; that the Ld. MM has failed to appreciate that respondent No. 2 has also preferred two civil actions against the revisionist No. 1 and 2 for the entire amount which is already in the possession of respondent no. 2; that the Ld. MM failed to appreciate that the entire nature of complaint is solely to harass the revisionists despite remittance of the amount back to the respondent no. 2; that the Ld. MM has failed to appreciate that even as per the plain reading of the complaint, it is clear that the nature of controversy is civil in nature; that the Ld. MM has grossly erred in issuing summoning the revisionists despite it being clear from the record that the said agreement to sell was drafted at the insistence of respondent no. 2, even after knowing about the factum of the pending writ petition. So, there is no question of fraud/forgery/cheating whatsoever by the revisionists; that the Ld. MM should have also considered the fact that the respondent no. 2 has already moved for impleadment in the said writ petition two years ago, meaning thereby, respondent no. 2 had the knowledge.
4. The revisionists have prayed that the impugned summoning order dated 09-10-2013, be set aside.
5. I have heard counsel for the parties, Ld. Addl. PP for the State and have also gone through the records of the case.
6. At the outset, it was submitted by the counsel for the revisionists/petitioners that the parties have settled all their dispute and a settlement agreement was arrived at between them on 19-12- 2013 before Delhi High Court Mediation and Conciliation Centre.
Criminal Revision No. : 72/13 Page 2 of 107. Apart from this, it has been argued by the Ld counsel for the revisionists/petitioners that the matter in dispute is predominantly of civil nature arising out of the alleged breach of terms and condition on the part of the parties to the agreement to sell dated 31-08-2010, and the criminal proceedings lodged by the respondent No. 2 is sheer abuse of the process of law.
8. It is further urged by the counsel for the revisionists that the relevant clause of agreement to sell which is clause 4 if read as a whole would show that even in case the party of the first part i.e the revisionists herein not making the correct presentation about the title of the property, the liability was fasten upon the first party to indemnify the second party in whole or part to the extent of loss sustained by the second party with all costs and damages. The counsel for the revisionists first contended that even if it is assumed that the correct facts were not disclosed by the revisionists, though it is factually not correct, with regard to the writ petition pending in the Hon'ble High Court against the DDA, that at the most could have burdened the petitioners with liability to indemnifying the second party i.e the respondent no. 2 to the extent of loss sustained by it inclusive of cost and damages.
9. It is further submitted by the counsel that a sum of Rs. 1 Crore has already been transferred in the account of the respondent no. 2. The counsel for the petitioners /revisionists also referred to Sections 5, 6, 17 and 19 of the Contract Act to bring home the point that any consent to sign an agreement if is obtained by misrepresentation, such an agreement will be voidable at the option of the party whose consent was so obtained.
10. The counsel for the petitioners/revisionists has relied upon Smt. Dropti Narang And Anr. Vs. State NCT Delhi and Anr. Crl. M.C. No. 2483/2007 decided by the Hon'ble High Court of Delhi on 20-12-2008 and Hridaya Ranjan Prasad Verma Vs. State of Bihar Criminal Revision No. : 72/13 Page 3 of 10 and another (2000) 4 Supreme Court Cases 168.
11. On the other hand, the counsel for the respondent No. 2 has not denied the settlement between the parties. It is also not denied that a sum of Rs. 1 Crore has been received by the respondent from the revisionists vide RTGS. However, on merits, it has been submitted that the revisionists were not competent to enter into the sale transaction, once the lease was cancelled by the DDA.
12. Ld. Addl. PP for the state has also argued on the lines of the arguments addressed by counsel for respondent No. 2.
13. There is no dispute to the legal proposition that an act can result in both civil as well as criminal liability. The entire complaint revolves around one of the clause of the agreement to sell dated 31- 08-2010, whereby assurance was given by the revisionist No. 1 and 2 to the complainant that the property under sale was free from all sorts of encumbrances such as sale, mortgage, gift, lien, decree, charges, court-injunction, legal flaws, attachment, surety, security, notices, acquisition, notification etc. and there is no legal defect in the title of the First Party, if it is proved, otherwise, the First Party personally and/or their property both moveable or immoveable shall be liable to indemnify the Second Party to the extent of loss thus sustained by the Second Party with all costs, expenses and damages etc.
14. It is not in dispute that the lease of the property was cancelled by the DDA and the matter was pending before the Hon'ble High Court in writ petition. The total sales consideration was Rupees Eight Crore Thirty Seven Lakh which was to be paid by respondent no. 2 on or before 14-12-2010.
15. In the present case the transaction entered into between the parties through property dealer and it involves huge amount of money and to me it is, therefore, inconceivable and improbable that the buyer i.e. respondent No. 2 would not have examined the title Criminal Revision No. : 72/13 Page 4 of 10 deeds of the property under sale. It is not a meager amount that was paid by the respondent no. 2 at the time of execution of agreement to sell but it was a enormous amount of Rs. 1 crore which was paid as part of sales consideration. It is, therefore not totally believable that the respondent no. 2 was not aware about the status of the property and the pending writ petition. Even otherwise, according to one of the clause of the agreement to sell the first party i.e. revisionist No. 1 and 2 were liable to indemnify the second party i.e. respondent No. 2 in full or part to the extent of loss sustained by the second party i.e. the respondent no. 2 in the event of facts as stated by the revisionists with regard to any defect in the title proved otherwise. The relevant para is para 4 of the agreement to sell dated 31-08-2010 which is reproduced hereinbelow:
4. That the First Party hereby assure and declare that they are the sole and absolute owners of the aforesaid property and are fully competent and have full power, absolute authority and unrestricted right to sell and transfer the same and the same is free from all sorts of encumbrances such as sale, mortgage, gift, lien, decree, charges, court-
injunction, legal flaws, attachment, surety, security, notices, acquisition, notification etc. and there is no legal defect in the title of the First Party, if it proved, otherwise, the First Party personally and/or their property both moveable or immoveable shall be liable to indemnify the Second Party to the extent of loss thus sustained by the Second Party with all costs, expenses Criminal Revision No. : 72/13 Page 5 of 10 and damages etc.
16. In the instant case the accused persons have been summoned U/s 420/468/471 IPC R/w 120 B IPC. I have perused the complaint as well as the statement of the complainants recorded as CW- 1 and CW-2 before the Ld. Trial Court.
17. The most important ingredients of Section 420 IPC are:
(a) deception of any person;
(b) fraudulently or dishonestly inducing any person to deliver any property to any person, or
(c) to consent that any person shall retain any property and intentionally inducing that person to do or omit to do anything which he would not do or omit.
18. Now reading the averments in the complaint in their entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the revisionists right at the beginning of the negotiations of the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that which has been stated in the complaint is that the revisionists did not disclose that the lease of the property bearing No. 124 Mall Road has been cancelled by the DDA and the matter was pending before the Hon'ble High Court in a writ petition.
19. Therefore, the dishonest intention in order to deceive the complainant/respondent No. 2 is not made out in the complaint. The accused persons have also been summoned U/s 468/471 IPC. Section 463 IPC defines forgery. In order to constitute forgery U/s 463 IPC, it is essential that the accused should have made a false document and false document must have been made with the intent that the document so forged shall be used for the purpose of cheating.
20. The definition of the offence of forgery states that the offence is completed when a false document or false part of document is made with specified intention . The question which Criminal Revision No. : 72/13 Page 6 of 10 arises for consideration are :
(a) is the document false;
(b) is it made by the accused;
(c) is it made with intent to defraud.
21. Again for constituting an offence of forgery the "intention" becomes the essential ingredient.
22. As far as Section 468/471 IPC are concerned, even the basic allegations making out a case thereunder are not contained in the complaint. Neither any allegations has been made to show the existence of the ingredients of the aforementioned provisions nor any statement has been made on that behalf. Only because agreement to sell has been executed, which could not be complied with then it cannot be said that the offence of cheating and forgery have been made out. Reliance can be placed upon the judgment "supra" of the Hon'ble High Court of Delhi relied upon by the counsel for the revisionists/petitioners whereby the Hon'ble High Court held that :
"There was breach of terms of the agreement to sell and the allegations in the complaint disclose civil dispute between the parties.''
23. So the Hon'ble High Court held that no offence U/s 420/406/463/464/120 B/34 IPC was made out. Therefore, relying upon the judgment "supra" of the Hon'ble High Court of Delhi and in view of the discussions mentioned hereinabove, the revision petition is allowed and the impugned order dated 09-10-2013, passed by the Ld. Trial Court is set aside. Trial Court record be sent back alongwith the copy of this order. Revision file be consigned to Record Room. (Announced in the open Court on 02-01-2014.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE -02, NORTH DISTRICT, ROHINI COURTS : DELHI Criminal Revision No. : 72/13 Page 7 of 10 Criminal Revision No. : 72/13 Page 8 of 10