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[Cites 16, Cited by 0]

Delhi District Court

Ms. Suman Jeet Kaur vs State on 6 April, 2017

          IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE ­ SPECIAL. FAST TRACK COURT
       SOUTH EAST : SAKET COURTS: NEW DELHI.

In Crl. Revision no. 204894/2016

1. Ms. Suman Jeet Kaur
W/o Sh. Narendra Kumar
R/o 503, Padma Palace
86, Nehru Place
New Delhi­110019

And

In Crl. Revision no. 204895/2016

2. Pioneer Securities Pvt. Ltd.
(Through Its Authorized Signatory)
Mr. Sumer Chand Jain
S/o Late Sh. G.M. Jain
Office at 503, Padma Palace
86, Nehru Place,
New Delhi­110019                     ..... Revisionists / petitioners

Versus

1. State
 (Govt. NCT of Delhi)

2. Sh. Kawaljeet Singh Luthra
R/o E­131, Greater Kailash­1
New Delhi­110048

3. Sh. Anil Narang
S/o Sh. L.D. Narang
R/o M­22, Greater Kailash­II
New Delhi­110048

4. Ms. Molly Kapoor
E­406, 2nd floor
Greater Kailash­I
New Delhi­48.                               ..... Respondents

CR No. 204894/16 & 204895/16                        Page No. 1 of 19
 ORDER :

1. By this common order, I shall dispose off two revision petitions, one filed by Pioneer Securities Pvt. Ltd., (CR no. 204895/16) and other filed by Ms. Sumanjeet Kaur, (CR no. 204894/16) against the order of the Metropolitan Magistrate dated 28.10.2016 vide which the property bearing no. E­406, second floor, Greater Kailash Part­I, New Delhi has been directed to be desealed.

2. Facts giving rise to above petitions are that Kanwaljeet Singh (respondent no. 2) and Rajender Singh had entered into an agreement to purchase second floor with terrace of E­406, Greater Kailash Part­I, New Delhi on 28.03.2014 with Molly Kapoor (respondent 4) for a consideration of Rs. 2,55,00,000/­. Pursuant to the agreement, they paid Rs. 60 lacs to Molly Kapoor. When they approached Molly Kapoor to transfer the property in their name, she told them that the sale deed would be executed on 09.09.2014. She, however, avoided to register the sale deed and absconded. They approached the police station Greater Kailash Part­I on 25.09.2014 and made the complaint alleging fraud played by her. It led to the registration of the case vide FIR no. 349/14.

3. Investigation revealed that Molly Kapoor also made similar agreements with other persons in respect of the aforesaid property and received part consideration. The details of the agreements / transactions are as under:

sl. Name of second Portion of property Date of Total Advance no. party no. E­406, GK­I, agreement considera­ amount for agreement to to sale tion received sale (in Rs.) (in Rs.) 1 Sunil Terrace 08.11.2011 55,00,000/­ 55,00,000/­ Chaudhary 2 Rajender Singh Second floor and 28.03.2014 2,55,00,000/­ 60,00,000/­ and Kanwaljeet terrace Singh CR No. 204894/16 & 204895/16 Page No. 2 of 19 3 Sumanjeet Kaur Second floor and 07.04.2014 2,50,00,000/­ 89,20,000/­ the terrace 4 Pioneer Second floor and 21.05.2014 2,70,00,000/­ 75,00,000/­ Securities Pvt. the terrace Ltd.
5 Anil Narang Second floor and 17.06.2014 ­­­­ 35,00,000/­ the terrace 6 Ashok Kumar Second floor 12.05.2014 245,00,000/­ 7,51,000/­ Sharma and Poonam Sharma

4. Investigation revealed that Molly Kapoor and her daughter Anuradha Kapoor withdrew the maximum amount from the bank. LOC against Molly Kapoor and Anuradha Kapoor were opened. Their statements of accounts were collected. Copy of the agreement executed between Molly Kapoor and Sanjeev Chanana, the previous owner dated 06.11.2006 was collected. The accused persons did not join the investigation. On 15.09.2014, their non bailable warrants were issued. Since, they were avoiding arrest, process u/s 82 Cr.P.C. were issued against both of them.

5. During investigation, Amit Gulati informed the police that Molly Kapoor before leaving India had entered an agreement to sell with him and handed over him the possession by taking an advance of Rs. 10 lacs. Notice was issued to Amit Gulati but he did not join the investigation. On 16.12.2014 and 25.04.2015, Molly Kapoor and Anuradha Kapoor were declared proclaimed offenders. The property no. E­406, second floor, Greater Kailash Part­I was also attached under the process u/s 83 Cr.P.C. on 24.02.2015.

6. It is noted that Sunil Choudhary had filed a civil suit in the High Court of Delhi vide CS(OS)588/2014 and vide order dated 03.04.2013. Ms. Molly Kapoor (respondent no. 4) was restrained from alienating, encumbering CR No. 204894/16 & 204895/16 Page No. 3 of 19 or parting with the possession of the portion of the terrace above the second floor of the property agreed to be sold to Sunil Choudhary. The aforesaid suit was disposed off vide order dated 19.05.2014 on the submissions of the parties that they have settled their disputes amicably on the terms and conditions in para 3(a) to 3(e) of the application Mark­C1. It was clarified in the order that if the agreement dated 12.05.2014 executed by the parties in respect of the second floor fails, the settlement would be invalid and Sunil Choudhary would be at liberty to revive the suit. The order dated 19.05.2014 was modified to the extent that Molly Kapoor would be at liberty to execute the sale deed in respect of the terrace in favour of Sunil Choudhary. It is relevant to reproduce Clause 3(a) to 3(e) of Mark C1:

3a). The defendant had approached the plaintiff no. 1 herein with the request to find a buyer for the sale of the second floor of property no. E­406, Greater Kailash, Part­I, New Delhi. On the said request of the defendant, the plaintiff no.

1 herein has identified a buyer for the sale of second floor of the property no. E­406, Greater Kailash, Part­I, New Delhi to the said buyer. It is to state that the defendant has entered into an Agreement to Sell with the said buyer for the sale of second property bearing no. E­406, Greater Kailash, Part­I, New Delhi. Under the said Agreement to Sell dated 12.05.2014, the sale transaction is to be completed within a period of three months from the execution thereof.

The defendant hereby undertakes that she shall not execute the sale deed in respect of second floor, without executing the sale deed in respect of terrace with the second floor, being the suit property, in favour of the plaintiffs herein.

3b). It is agreed between the parties that the defendant would deal with the said buyer independently and the plaintiffs shall not be responsible for the completion of the transaction under the Agreement to Sell dated 12.05.2014.

3c). The defendant herein undertakes that she would execute the Sale Deed of the suit property being terrace of the second floor of property no. E­406, Greater Kailash Part­I, New Delhi in favour of the plaintiffs, simultaneous to CR No. 204894/16 & 204895/16 Page No. 4 of 19 execution of the Sale Deed in respect of second floor of property no. E­406, Greater Kailash Part­I, New Delhi in favour of the aforesaid buyer. The defendant undertakes that the said Sale Deed would be executed without asking for any further payments to be made by the plaintiffs to her.

3d). The parties agree that, if any reason whatsoever, the transaction under the Agreement to Sell dated 12.05.2014 as referred hereinabove is not fulfilled, the present settlement shall not be binding between the parties and the parties shall be free to take their respective stands as have been taken by them in the present suit. The defendant herein had executed the Agreement to Sell dt. 08.11.2011, agreeing to sell her rights, terrace on the second floor of property no. E­406, Greater Kailash, Part­I, New Delhi, in favour of the plaintiffs herein. The entire sale considerable of Rs. 55.00 lacs already stands paid by the plaintiffs to the defendant herein.

3e). The defendant hereby gives her NOC to the plaintiffs for approval / sanction of the building plan from MCD for construction of third floor. In case of sale / transfer of the second floor by the defendant to any person, the said purchaser / successor in interest of the defendant shall also be bound with these terms and he / she shall give NOC to the plaintiffs for the purposes of approval of plan and construction of third floor. The defendant undertakes to sign the file execute necessary documents for sanction / approval of the building plan for construction of third floor by the plaintiffs. The defendant undertakes to inform any third party purchase of the second floor portion, about the NOC.

7. It is noted that Kanwaljeet Singh and others also filed a civil suit vide no. CS(OS) 275(2015) against Molly Kapoor (respondent no. 4). The matter was referred to Mediation. Both the parties entered into a settlement on 29.10.2015 i.e. Kawaljeet Singh Luthra, Rajender Singh and Anil Narang as the first party and Molly Kapoor as the second party on the following terms:

A. That since dispute qua the terrace floor of the suit property is pending adjudication in CS (OS) no. 588/2013 between a third party and the second party herein and since the second party herein has already accepted substantial CR No. 204894/16 & 204895/16 Page No. 5 of 19 advance from that third party, therefore, the first party have agreed to relinquish their rights qua the terrace of the suit property and limit the same only in respect of the second floor of premises no. E­406, Greater Kailash­I, New Delhi­ 110048.
B. That the first party shall pay a total sum of Rs. 15,00,000/­ to the second party in cash before the settlement is taken up for passing appropriate orders by the Hon'ble High Court in the two suits. This amount is being paid in cash as the bank accounts of the second party are lying sealed by virtue of court orders passed by the Ld. Court in criminal proceedings initiated by the some of the first party at Saket Courts Complex, New Delhi.
C. The parties have further agreed that the second party shall execute & get registered one Sale Deed in respect of the second floor of premises no. E­406 Greater Kailash­I, New Delhi jointly in favour of plaintiff no. 1 in CS(OS) no. 275/2015 i.e. Mr. Kanwaljit Singh Luthra (35%) and Mr. Anil Narang plaintiff in CS (OS) no. 1967/2015(35%) against the total consideration amount of Rs. 1,10,00,000/­ of which Rs. 95,00,000/­ has already been received by the second party from the first party. Accordingly, the first party shall be joint owners of the suit property in ratio, which is as follow: 
            Kanwaljit Singh Luthra        65%
            Anil Narang                   35%
The expenses towards stamp duty, registration charges and drafting of the conveyance deed and the above amount of Rs. 15,00,000/­ shall be borne by the parties of the first party in the same ratio as of the rights they are getting under the sale deed.
D. All parties have further agreed that in the event the second party do not execute & get register the Sale Deed in respect of the second floor of premises no. E­406, Greater Kailash­I, New Delhi within 15 days of the passing of the judgment & decree in the instant suit, then the first party shall get the sale deed executed & registered in their favour, through the court by filing execution of the compromise judgment & decree.
E. That simultaneous to transfer of the title by execution & CR No. 204894/16 & 204895/16 Page No. 6 of 19 registration of sale deed of the said property in favour of the first party, the first party shall file appropriate petition before the concerned courts for quashing of the FIR no. 349 dated 11.08.2014 lodged with Police Station Greater Kailash, New Delhi, under section 420, 120B, 467, 468, 471 of the Indian Penal Code by the first party and FIR no. 374 lodged with police station Defence Colony, New Delhi under section 420, 120B, 467, 468, 471 of the Indian Penal Code against the second party and her daughter i.e. Ms. Anuradha Kapoor and in support thereof, the first party shall provide with all requisite assistance including giving NOC for quashing of the said FIR or for grant of anticipatory bail. It shall also be open to the second party to file such proceedings or petitions.
F. That upon filing of petitions for quashing by the second party, the parties will obtain an order for de­sealing of the sealed premises u/s 82 Cr.P.C. i.e. second floor of premises bearing no. E­406, Greater Kailash­I, New Delhi and hand over peaceful and vacant possession thereof to the first party and thereafter FIR shall be quashed.
8. The aforesaid suit was disposed off vide order dated 04.11.2015 with the observations made in para no. 5 to 11 which are reproduced as under:­
5. In the course of mediation, the parties have been able to arrive at a settlement as recorded in the Settlement Agreement dated 29.10.2015, a copy whereof has been enclosed with the present application. Counsels for the parties jointly state that the terms and conditions of the settlement are recorded in para 7 of the Settlement Agreement, whereunder the defendant has agreed to receive an additional sum of Rs. 15 lacs from the plaintiffs in the present suit and in CS(OS) 1967/2015 and execute a Sale Deed in favour of the plaintiffs in both the suits in respect of the second floor. The parties have agreed that the plaintiffs in the present suit shall be entitled to 65% undivided share in respect of the second floor of the suit premises and the plaintiffs in CS(OS) 1967/2015 shall be entitled to 35% undivided share in the second floor.
6. Counsel for the defendant confirms that his client has CR No. 204894/16 & 204895/16 Page No. 7 of 19 received the entire sale consideration from the plaintiffs in the present suit and in CS(OS) 1967/2015 and she is ready and willing to execute the sale Deed in respect of the suit premises in favour of the plaintiffs in the present suit and CS(OS) 1967/2015, within one week.
7. Counsel for the plaintiffs states that in view of the settlement arrived at between the parties, his clients shall cooperate with the defendant in approaching the competent Court for quashing of FIR no. 349/2014 registered at police station: Greater Kailash.
8. The Court has perused the present application. The same has been signed by the plaintiff no. 1 for self and as a Power of Attorney Holder of the plaintiff no. 2 and by the defendant and is supported by the affidavits of the signatories to the application. Enclosed with the application is the Settlement Agreement dated 29.10.2015, which has also been signed by the plaintiff no. 1 for self and as a Power of Attorney Holder of the plaintiff no. 2 and the plaintiffs in CS(OS) 1967/2015 as also the defendant and their respective counsels and the learned Mediator.
9. As the counsels for the plaintiffs and the defendant jointly state that they have arrived at the aforesaid settlement of their own free will and volition and without any undue influence or coercion from any quarters, there appears no legal impediment in accepting the settlement. The parties shall remain bound by the terms and conditions of the settlement.
10. The suit is decreed in terms of the settlement recorded in the Settlement Agreement dated 29.10.2015. Decree sheet be drawn accordingly.
11. The suit is disposed off while leaving the parties to bear their own expenses.
9. Ms. Molly Kapoor and others filed a petition Crl. MC no.

4669/2016 for quashing the proceedings u/s 82/83 Cr.P.C. initiated against them vide order dated 16.12.2004 and 25.04.2015 in the case FIR no. 349/14 on the ground that the matter has been settled with the complainant. The CR No. 204894/16 & 204895/16 Page No. 8 of 19 report from the police was called as per which, the victim persons are Sunil Choudhary, Rajender Singh, Kanwaljeet Singh, Sumanjeet Kaur, Ashok Kumar Sharma, Poonam Sharma and S.C. Jain. It was observed vide order dated 07.01.2016:

The matter has been settled only with Sunil Choudhary, Rajender Singh and Kanwaljeet Singh pursuant to the decree dated 04.11.2015 passed in CS(OS) no. 275/2015;
Ld. Counsel for petitioners and remaining victims as noted above submits that matter is likely to be settled with the above victims if referred to Mediation;
Accordingly, the parties are directed to appear before the Mediation and Conciliation Center, Delhi High Court, New Delhi on 18.01.2016 at 3 p.m.;
Till then, no coercive steps shall be taken against the petitioners. It is also made clear that if the petitioners do not appear in person before the Mediation Center, IO is at liberty to take action as per law against them.
10. M/s Pioneer Securities Pvt. Ltd. & Anr. also filed a suit for specific performance of contract dated 21.05.2014 bearing CS(OS) 3312/2015 against Ms. Molly Kapoor and Ors. wherein the High Court vide order dated 04.03.2016 restrained the defendant no. 3 (Anil Narang) whose agreement to sell was subsequent to that set up by the plaintiff (Pioneers Securities) from dealing with his share in the property. In that civil suit, Molly Kapoor filed an affidavit alleging therein that she was unduly pressurized by Anil Narang and Kanwaljeet Singh Luthra to enter into the settlement dated 29.10.2015.
11. M/s. Pioneer Securities Pvt. Ltd. also filed a complaint against Molly Kapoor and others which resulted into registration of FIR no. 35/16 at the police station Greater Kailash Part­I.
12. Ms. Sumanjeet Kaur also filed a civil suit CS(OS)3143/2015 for recovery of the liquidated amount before the High Court where vide dated 15.10.2015, it was ordered that till further orders, the defendants shall not create any third party interest in the property bearing no. E­406, second floor, CR No. 204894/16 & 204895/16 Page No. 9 of 19 E Block, Greater Part­I, New Delhi. She also moved an application in CS(OS)275/2015 praying inter alia that the settlement arrived and recorded on 04.11.2015, whereafter the suit was disposed off, be set aside and the defendant be directed to deposit in Court, the amounts received from the plaintiffs till the dispute between her and the defendant is finally adjudicated.

The High Court vide order dated 27.11.2015 held that the applicant may approach the bench where the suit instituted by her is pending for particular direction.

13. The Trial Court on an application moved on behalf of the respondent no. 2 and 3 for desealing the property, on considering the facts and circumstances and arguments on behalf of the parties and the order passed by the High Court dated 04.11.2015, ordered that the property in question i.e. E­ 406, second floor GK­I be desealed as the complainants / applicants herein have already settled the matter for which a decree has already been passed by the High Court of Delhi in their favour and also for the reason that the parties / complainants / applicants herein are willing to give an affidavit before the Court that they shall not create any third party interest in the aforesaid property in any manner till the pendency of the present matter or till further orders. It was also directed that upon filing affidavit, the property in question be desealed and the peaceful possession of the same be handed over to them.

14. The aforesaid order is assailed on the ground that it was obtained by concealing the material facts that M/s. Pioneer Securities (P) Ltd. has only filed the suit for recovery and not for possession of the property; that the respondent no. 2 and 3 never raised the issue of desealing of the property before the High Court in the suits filed by them; that the said order would defeat the rights of the revisionists since the possession was taken by respondent no. 2 and 3 and it is also in contravention of the orders passed by CR No. 204894/16 & 204895/16 Page No. 10 of 19 the High Court vide dated 04.03.2016 and 15.10.2015; there was no order / observation of the High Court in CS(OS)275/15 and CS(OS)1967/2015 in respect of handing over the possession of the property because there are multiple litigations going on and FIR 349/2014 is yet to be quashed; and that the Trial Court did not consider the vital aspect of the case that desealing application was not preferred before the High Court where the quashing of FIR is pending.

15. In response to the said petitions, it is submitted on behalf of the respondent no. 2 and 3 that the order qua desealing is an interlocutory order against which no revision lies. They are the bonafide purchasers pursuant to the decree passed by the High Court. Respondent no. 4 also registered the sale deed in favour of respondent no. 2 and 3 jointly in ratio of 65:35 in respect of the second floor of the property pursuant to the order / decree dated 04.11.2015. The revisionists do not have any right, title and interest in the property which belongs exclusively to them. It is submitted that as per the agreement dated 21.05.2014 between Pioneer Securities (P) Ltd. and respondent no. 4, sale was to be completed within 60 days. Since the balance amount was not paid by Pioneer Securities (P) Ltd., the respondent no. 4 after lapse of 60 days as desired on its behalf on 02.08.2014 returned the amount of Rs.30 lacs vide transfer in favour of Pioneer Securities (P) Ltd. and thus the agreement to sell was cancelled and thereafter, Mrs. Anita Jain on 02.08.2014 transferred the amount of Rs. 30 lacs to respondent no. 4. However, no agreement was signed between them as the transaction was probably a loan.

16. I have heard the arguments advanced by Sh. Sahil Shandhalya and Piyush Kalra, Ld. Counsels for the petitioners and Sh. G.S. Narula, Ld. Counsel for respondent no. 2 and 3. No one appeared on behalf of respondent no. 4.

17. Ld. Counsel for the petitioners argued on the lines of the CR No. 204894/16 & 204895/16 Page No. 11 of 19 petitions and submitted that the order qua desealing is a final order against which revision petition is maintainable. Ld. Counsel drew the attention of this Court to the order dated 07.01.2016 passed by the High Court in the petition filed by respondent no. 4 wherein it was observed that matter has been settled only with Sunil Choudhary, Rajender Singh and Kanwaljeet Singh pursuant to a decree dated 04.11.2015. The High Court referred the matter to the Mediation and Conciliation Center for settlement with the remaining victims. It was also directed that if the accused persons do not appear in person before the center, IO would be at liberty to take action against them as per law. Ld. Counsel stated that till date the matter has not been settled with the petitioners. Ld. Counsel also submitted that in the aforesaid order, there is specific mention of names of the petitioners who are victims at the hand of Molly Kapoor and others. Ld. Counsel submitted that the desealing order has been taken to obtain possession which is contrary to the terms of the settlement. Ld. Counsel for M/s. Pioneer Securities (P) Ltd. submits that on account of some change in the internal requirements, M/s. Pioneer Securities (P) Ltd. discussed the issue with respondent no. 4 and requested the respondent no. 4 to execute the sale deed in favour of Anita Jain who was nominee of M/s. Pioneer Securities (P) Ltd. which even otherwise was entitled to get it registered in favour of anyone / its nominee as per its own wishes in terms of clause 10 of the agreement dated 21.05.2014. They agreed for the same. Respondent no. 4 paid the amount, which was duly credited in the account of M/s. Pioneer Securities (P) Ltd. and immediately thereafter, Rs. 30 lacs was paid from the account of Anita Jain vide cheque favouring respondent no. 4. The cash amount of Rs. 45 lacs which was paid by M/s. Pioneer Securities (P) Ltd. continued to remain with respondent no. 4.

18. Ld. Counsel for the respondent no. 2 and 3 argued on the lines of the reply to the revision petitions and submitted that the parties have CR No. 204894/16 & 204895/16 Page No. 12 of 19 already made statement by way of affidavit to the effect that they shall not sell or create third party interest in respect of the aforesaid premises. Ld. Counsel further submitted that order dated 28.10.2016 is an interlocutory order of which no revision lies.

19. I have considered the arguments and gone through the record of the case.

20. Sub Section (1) of Section 397 Cr.P.C. gives power to the Sessions Judge to call for and examine the record of any proceeding before any Subordinate Court within its or its local jurisdiction. The purpose of examination of record is to satisfy about the correctness, legality or propriety of any finding, sentence or order recorded or passed by such Subordinate Court or the regularity of any proceedings of such Subordinate Court.

21. In Amarnath & Ors v. State of Haryana & Ors (1977) 4SCC 137, it was held that Section 397 (2) CrPC provided that the powers of revision shall not be exercised in relation to any interlocutory order. The paramount object in inserting this new provision was to safeguard the interests of the accused. The term "interlocutory order" in Section 397 (2) of the 1973 code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which forced the basis for insertion of this particular provision in Section 397 of 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 CR No. 204894/16 & 204895/16 Page No. 13 of 19 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused on a particular aspect of the trial cannot be said to be interlocutory so as to be outside the purview of the revisional jurisdiction of the High Court.

22. In the case of Madhu Limaye v. State of Maharashtra (1977)4 SCC 51, it was held that it is not the intention of the Legislature when it retains the revisional powers of the High Court that only those orders would be revisable which are passed on the final determination of the action but which are not appealable under the Code. The Legislature on the one hand has kept intact the revisional power of the High Court and on the other put a bar on the exercise of that power in relation to an interlocutory order. The real intention of the Legislature was not to equate the expression "interlocutory order" as invariably being converse of the words " final order". There may be an order passed during the course of the proceeding which may not be final but yet it may not be an interlocutory order pure and simple. By a rule of harmonious construction of sub­section (1) and (2) of Section 397 it must be held that the bar in sub­section (2) is not meant to be attracted to such kinds of intermediate orders. It is neither advisable nor possible to make a catalog of orders to demonstrate which kinds of orders would be interlocutory and which would be final and then prepare an exhaustive list of those types of orders which would fall between the two.

23. In the instant case vide impugned order dated 28.10.2016, the property has been directed to be desealed and the peaceful possession of the property is directed to be handed over to the respondent no. 2 and 3. It was done on the premises that the complainants / respondent no. 2 and 3 have already settled the matter for which a decree has already been passed by the High Court of Delhi in their favour and the complainants herein are willing to give an affidavit before the Court that they shall not create any third party CR No. 204894/16 & 204895/16 Page No. 14 of 19 interest in the aforesaid property in any manner till the pendency of the present matter or till further orders. In the instant case, there are other complainants including the revisionists / petitioners whose claim have not been settled yet nor their rights have been protected vide the impugned order.

24. In this view of the matter, the impugned order can not be said to be an interlocutory order from which no revision lies. I am of the view that the revision petition is maintainable in its present form in view of the case laws as referred above.

25. Now, coming to the merits of the case, section 83 Cr.P.C. seeks to penalize such persons who avoid arrest under a warrant and against whom a proclamation under section 82 has been issued. However, the object of attaching the property of an absconder is not to punish him but to compel his appearance. If the property has not been confiscated or disposed off, the title therein continues to vest in the owner and thereafter in his heirs. Section 174 of the Indian Penal Code penalises disobedience of the proclamation. Section 83 puts additional pressure upon the person against whom a warrant of arrest has been issued, by depriving him of his property to enforce his appearance before the Court. Orders for attachment of the property of the accused may be made at any time after the issue of the proclamation.

26. Being the Appellate Court, whose revision jurisdiction has been invoked by the revisionists, it has to take into account the grounds and material which form the basis of the Trial Court to arrive at the finding given vide impugned order dated 28.10.2016.

27. Perusal of said order reveals that Trial Court while passing the same was swayed away by an observation made by the High Court while disposing of civil proceeding pending before it bearing no. 275/2015 between complainant herein and the accused.

28. In the instant case, the respondent no. 4 made agreements to sell CR No. 204894/16 & 204895/16 Page No. 15 of 19 the aforesaid property with number of persons including respondent no. 2 and 3 and both the petitioners. The agreement with respondent no. 3 was subsequent to the agreement with Sumanjeet Kaur (revisionist). Respondent no. 4 after taking consideration from all of them withdrew the maximum amount from the bank. Respondent No. 4 and her daughter thereafter absconded. They did not join the investigation. They were declared proclaimed offenders on 16.12.2014 (Molly Kapoor) and 25.04.2015 (Anuradha Kapoor). The property no. E­406, Greater Kailash Part­I was also attached under the process u/s 83 Cr.P.C. on 24.02.2015. Respondent No. 4 Molly Kapoor and Anuradha Kapoor filed the petition for quashing the proclamation u/s 82/83 Cr.P.C. initiated against them before the High Court but till date the proclamation has not been cancelled and it is still in force. The parties had also approached the High Court for quashing wherein the High Court vide order dated 07.01.2016 after calling the report from the police observed that the matter has been settled only with Sunil Choudhary, Rajender Singh and Kanwaljeet Singh pursuant to the decree dated 04.11.2015 passed in CS(OS) no. 275/2015. On the submissions of the petitioners and remaining victims, that matter is likely to be settled with the above victims, parties were directed to appear before the Mediation and Conciliation Center, Delhi High Court, New Delhi on 18.01.2016 at 3 p.m. It was also ordered that till then, no coercive steps shall be taken against the petitioners. It was also made clear that if the petitioners do not appear in person before the Mediation Center, IO is at liberty to take action as per law against them.

29. Till date, the matter has not been settled in the Mediation Center. It is informed by Ld. Counsel for the petitioners that Respondent No. 4 appeared before the Mediation Center but she did not settle the matter and the Mediation failed, meaning thereby, the claims of the victims including that of the petitioners have not been settled by Respondent No. 4 and Anuradha CR No. 204894/16 & 204895/16 Page No. 16 of 19 Kapoor. When the order for attachment of the property was passed, Respondent No. 4 was the owner of the property. She by that time had not executed the sale deed in favour of the respondent no. 2 and 3. The High Court did not quash the proceedings nor the FIR when the matter came to the notice of the High Court that there are other claimants / complainants in the case registered against the respondent no. 4. The High Court rather referred the matter to Mediation when the parties requested.

30. It is relevant to mention that in the settlement recorded between respondent no. 2 and 3 on the one hand and respondent No. 4 on the other hand vide dated 29.10.2015 in civil suit no. CS(OS) 275(2015), there was no reference that the respondent no. 4 had also entered the agreement to sell with the petitioners / revisionists and received the part consideration from them, nor there is reference that agreement to sell with respondent no. 3 is subsequent to the agreement to sell with the petitioners herein. It is well settled law that the claim of the party who has prior agreement would have precedence over the claim of the party who has subsequent agreement in respect of the property.

31. The record also reveals that the IO had given information to the Registrar on 11.02.2015 regarding attachment order of property no. E­406, second floor, Greater Kailash, New Delhi whereby it was requested not to transfer the ownership of the property and if the owner / respondent no. 4 approaches the office for transfer of the property, it be intimated to the police. There is nothing on record to indicate that the Registrar had informed the police when the parties approached for registration of the sale deed. The application for dropping the proceedings u/s 82/83 Cr.P.C. on 19.01.2016 before the Trial Court has not been disposed off yet.

32. I have also perused the orders passed by the High Court in the Civil Suit no. CS(OS) 275(2015). It is evident on perusal of the said order that CR No. 204894/16 & 204895/16 Page No. 17 of 19 the High Court while disposing of the civil proceedings pending before it had only asked the parties to move appropriate application before the Court for getting the property in question desealed. By no stretch of imagination the said observations made by the High Court can be raised to the platform of the same being any directive or any positive directions to the Trial Court to deseal the said property.

33. The High Court had made this observation as it was in the knowledge of the High Court that there are other stake holders as well in the property in question with respect to which FIR no. 349/14 of PS Greater Kailash Part­I has been registered and investigating officer had recorded statements of those victims / aggrieved persons as well besides that of the complainant. That was the reason for the High Court to direct the parties to move appropriate application before the Court. Otherwise had the dispute with regard to property in question being between complainant (respondent no.2) and accused (respondent no. 4), the High Court could have decided the same itself. But that was not done.

34. That being the position, the Trial Court was required to take into account the stakes of other victims viz Sumanjeet Kaur and Pioneer Securities Pvt. Ltd. whose statements u/s 161 Cr.P.C. were recorded by the IO during investigation. Perusal of the impugned order, reveals that the Trial Court brushed aside the claim and contentions of the revisionists herein, who too alleged to have been cheated by the accused / respondent no. 4 with regard to the property in question. In view thereof the possession could not have been given to the complainant / respondent no. 2 after desealing the same without having ascertained the loss to the revisionists herein. The very object of attaching the property of the absconder / respondent no. 4 to compel her appearance would be frustrated. The impugned order dated 28.10.2016 would tantamount to cancellation of the attachment of the property of the absconder CR No. 204894/16 & 204895/16 Page No. 18 of 19 i.e. respondent no. 4, which matter is still pending in the High Court vide Crl. MC no. 4669/2016.

35. It is true that the respondent no. 2 and 3 had given affidavit that they shall not create any third party interest in the aforesaid property in any manner till the pendency of the present matter or till further orders but since the respondent no. 4 has been absconding and till date she has not been arrested and the property was sealed / attached pursuant to the proceedings u/s 83 Cr.P.C. which was to penalize the respondent no. 4 who was avoiding arrest under warrant, the very object of attaching the property of respondent no. 2 to compel her appearance would be defeated.

36. I am of the view that the order qua desealing the property and restoring the possession to respondent no. 2 and 3 suffers from impropriety in the facts and circumstances of the case. I, therefore, set aside the impugned order with no orders as to cost.

37. Revision petitions are disposed off accordingly. Trial Court Record be sent back. Files be consigned to the Record Room.

Announced in the open court
on 06.04.2017                                            ( Sanjiv Jain)
                                                        ASJ (Spl. FTC)
                                                    South East, Saket Courts
                                                           New Delhi




CR No. 204894/16 & 204895/16                                       Page No. 19 of 19