Delhi District Court
Anup Diwan & Ors. ( vs State & Anr on 1 December, 2017
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI01,
(SOUTH) SAKET COURTS : NEW DELHI
Crl. Rev. No. : 8442/2016 & 8451/2016
FIR No. : 52/08, P.S. : EOW
In the matter of :
Anup Diwan & Ors. (Petitioner in Crl. Rev. No. 8442/2016)
Gopal Johri (Petitioner in Crl. Rev. No. 8451/2016)
...... Appellant
Vs.
State & Anr.
....... Respondent
Date of Filing : 01.12.2016 & 15.12.2016
Date of Arguments : 10.11.2017, 22.11.2017
Date of Order : 01.12.2017
O R D E R
1. By this common order, I shall dispose off two revision petitions . Revision petition bearing no. 8451/2016 titled as Gopal Johri & Ors. Vs. State of Delhi & Ors. has been filed by complainant and the other revision petition bearing no. 8442/2016, titled as Anup Diwan & Ors. Vs. State & Anr, has been filed by two of the accused persons who have been directed to be summoned by Ld. Trial court.
2. Complainant had lodged a complaint that an agreement to sell was entered Crl. Rev. No. : 8442/2016 & 8451/2016 1/13 into between the complainant and Anup Diwan through his Attorney Arun Srivastava with regard to subject premises against sale consideration amount of Rs. 54 lacs which amount included L&DO dues to be paid by the seller. As stated, complainant made payment of Rs. 5 lacs on 11.3.2000 with subsequent payment of Rs. 15 lacs on 26.5.2000 but the seller did not secure NOC and sale permission from L&DO, therefore fresh agreement was executed on 12.11.2002 and further amount of Rs. 2 lacs was paid to the seller. Meantime, seller handed over vacant possession of the first and second floor of the building to the complainant. For next three years, seller was contesting the demand of L&DO and kept on promising that once the demand is finalized, the sale deed will be got registered , whereas in the meantime, price of property escalated and seller withdrew his application seeking sale permission from L&DO but did not inform the complainant . Thereafter accused Anup Diwan through his Attorney Arun Srivastava sold the subject property in favour of one Dinesh Kumar Garg on 6.1.2016 and GPA of the said property was executed by Anup Diwan through his attorney in favour of Smt. Chitra Garg, wife of Dinesh Kumar Garg. Complainant alleged that all the said parties conspired together to deprive the complainant with regard to his lawful right over the property in question. Accordingly, FIR no. 52/2008 dated 18.3.2008 u/s 406/420/120B IPC was registered on the said complaint.
3. After investigation, the cancellation report was filed by police with mention that the civil suit for specific performance and for cancellation of the conveyance deed made by L&DO had already been filed by the complainant wherein counter claim had been filed by Dinesh Garg. The allegations of offence u/s 420 IPC r/w Crl. Rev. No. : 8442/2016 & 8451/2016 2/13 sec. 120 B IPC and Ors. were not substantiated and the matter was opined to be of civil nature. Complainant filed protest petition against the final report filed by investigating agency and further investigation was directed by Ld. Trial court. However again the final report was filed. Complainant again preferred protest petition against the filing of the final/cancellation report by the investigating agency . Vide impugned order, Ld. Trial court disposed off the protest petition and observed that prima facie, it appeared that Anup Diwan and his attorney Dr. Arun Srivastava had indulged in offences u/s 420/120B IPC. Cognizance was accordingly taken and both the above accused persons were directed to be summoned, whereas the subsequent purchasers i.e. Dinesh Kumar Garg and his wife Smt. Chitra Garg were not summoned.
4. The impugned order has now been challenged by both the parties i.e. complainant and accused persons. Complainant has filed the revision petition seeking summoning of the other accused persons namely Dinesh Garg and Smt. Chitra Garg, whereas accused/petitioners Anup Diwan and Arun Srivastava has challenged the impugned order qua their own summoning seeking setting aside of the order of summoning against them.
5. Ld. Counsel for petitioners in Anup Diwan and Ors. challenged the impugned order mainly on three grounds . First ground urged by Ld. Counsel for petitioners was that no summons could be issued straightway on protest petition without treating it as private complaint and without following procedure established by law. It was submitted that though there is no bar that in case closure report is filed by the police, Ld. MM can reject the closure report , peruse the Crl. Rev. No. : 8442/2016 & 8451/2016 3/13 material and if found prima facie , Ld. MM can issue summons to the accused . However, in the instant matter, the closure report was neither rejected nor accepted and the protest petition filed by complainant was decided and straightway summons were directed to be issued treating the protest petiton as private complaint . Reliance was placed upon Rampal Singh and Ors. Vs. State of UP and Ors, A.K. Roy Vs. West Bengal & Ors.
6. In terms of the observation in authority (supra), " after receipt of final report, and on the protest petition, the magistrate has to follow any of the four courses:
(i) He may accept the final report and may drop the proceedings.
(ii) He may take cognizance under section 190 (1) (b) of Cr.P.C., if there is sufficient material in case diary.
(iii) He may order further investigation, if he satisfies that investigation was made in a perfunctory manner
(iv) or, he may treat protest petition as a complaint case and proceed to Act under section 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
7. Ld. Counsel for petitioner referred to fourth option to seek substantiation of his plea regarding the protest petition to be treated as complaint case and then to be proceeded u/s 200 Cr.P.C. However,the protest petition to be treated as complaint is not the only option available to Ld. MM as is noted in the judgment (supra) relied upon by Ld. Counsel for petitioner himself. The other recourse available to Ld. MM is also to take congnizance u/s 190 (I) (b) Cr.P.C. if there is sufficient Crl. Rev. No. : 8442/2016 & 8451/2016 4/13 material in the case diary. Ld. MM apparently decided to choose second option by taking cognizance and therefore decided to proceed ahead with the matter, which cannot be faulted with as a legal ground.
8. Ld. counsel for complainant also submitted that the complainant while filing the protest petition never sought conversion of protest petition into complainant and vide impugned order, Ld. CMM also did not proceed to convert protest petition into complaint. Reliance was placed upon, H.S. Bains Vs. State SCC 1980 631 and Babu and Ors. Vs. State of UP 1989 All LJ 880 by Ld. Counsel for complainant, wherein it was observed that the procedure for complaint case is never to be misplaced with the right of the Magistrate to reject a final report, which may be done with or without a protest petition.
9. The other objection taken by Ld. Counsel for petitioner was regarding the civil dispute having been given colour of criminal dispute and the intention of cheating is to be seen from the inception and not from the subsequent conduct. Per contra, Ld. Counsel for complainant emphasized with regard to role of accused Dinesh Garg and Chitra Garg who according to him were the part of the conspiracy in order to cheat the complainant.
10. In terms of record, agreement to sell between the parties had been executed and part consideration amount had also been paid by the complainant. Subsequently another agreement to sale had been executed between the parties which are the admitted facts on record. Ld. Counsel for complainant submitted that Ld. Trial court vide impugned order has taken cognizance of only offence u/s 420 IPC r/w/ section 120B IPC and has summoned only two of the accused Crl. Rev. No. : 8442/2016 & 8451/2016 5/13 persons . Grievance of the complainant is qua non taking of the cognizance of offence punishable u/s 423 IPC as well as for the offences punishable u/s 406/409 IPC and with regard to the non summoning of accused Dinesh Kumar Garg and Chitra Garg as well, since material on record clearly showed that they were part of conspiracy alongwith other accused persons.
11. It is further submitted that as per the agreement to sell dated 6.1.2006 which was executed between the accused persons, the total sale consideration amount was Rs. 54 lacs however, in reality only a sum of Rs. 32 lacs was paid . The cheque against payment of Rs. 22 lacs was never encashed and the demand draft of Rs. 22 lacs was cancelled and at no point of time, amount of Rs. 22 lacs was paid to Anup Diwan and Arun Srivastava, therefore consideration stipulated in agreement to sell dated 6.1.2006 is false consideration and the agreement to sell dated 6.1.2006 was a fraudulent document, therefore offence of section 420 r/w section 120 B IPC was clearly made out . As further submitted, the complainant was in possession of first and second floor of the subject property and the original title deed of the property was handed over by the vendor to the vendee in part performance of the agreement, as noted in agreement to sell dated 6.1.2006, yet on 23.2.2006, accused Anup Diwan and Arun Srivastava issued a public notice that they had lost the original perpetual lease deed dated 1.9.1955 showing thereby that there was conspiracy between all the accused persons. Further, the stamp papers for execution of the agreement to sell were purchased on 3.1.2006 though the notice of termination of the deal with the complainant was also dated 3.1.21006 , issued by way of speed post receipt dated 5.1.2006, which again is pointing out Crl. Rev. No. : 8442/2016 & 8451/2016 6/13 towards the conspiracy between the accused persons .
12. The next submission of Ld. Counsel for complainant was that the complainant was handed over the possession who remained in continuous possession of the subject premises and was protected by section 53A of Transfer of Property Act . Reliance was placed by Ld. Counsel for complainant upon Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) 8 SCC 614 and Bapu Apaji Potdar & Ors. Vs. Kashinath Sadoba Gulmire AIR 1916 Bom
13. Ld. Counsel for complainant stressed that the petitioners and the subsequent purchaser ie. Dinesh Kumar Garg and Chitra Garg despite having clear notice of the title of petitioner, proceeded to misappropriate the same and converted the same to their advantage which they were otherwise duty bound to get transferred and registered in favour of complainant . As was also submitted, accused persons had not been able to provide any document showing handing over of possession to Govind Johri, apart from the statement recorded in agreement to sell dated 12.11.2002 and taking advantage of the same first letter of name of complainant Gopal Johri and his brother Govind Johri, name was mentioned as G. Johri in agreement, which was again part of conspiracy between the accused persons to deprive the complainant of his legal entitlement.
14. In terms of record, simultaneous to the notice of termination, agreement to sell was entered into between petitioners and the subsequent purchasers namely Dinesh Kumar Garg and Chitra Garg. The consideration amount was fixed at Rs. 54 lacs which was paid by the subsequent purchaser by way of two cheques in sum of Rs. 32 lacs and Rs. 22 lacs. The cheque in sum of Rs. 32 lacs was got encashed Crl. Rev. No. : 8442/2016 & 8451/2016 7/13 whereas cheque in sum of Rs. 22 lacs was not got encashed which later on was got converted to Demand Draf in sum of Rs. 22 lacs. The said amount was offered to the complainant as the return of the amount of earnest money which was refused by the complainant. Subsequent purchasers also paid the misuser charges to the L&DO, as is borne out of record. The agreement to sell with Dinesh Kumar Garg was dated 6.1.2006 and the stamp paper for the same was purchased on 3.1.2006, simultaneous to the letter dated 3.1.2006 written by Anup Diwan through his Attorney Arun Srivastava to the complainant which was posted on 5.1.2006. It may be noted that agreement to sell dated 6.1.2006 contained the mention that there was no subsisting agreement with any third party with regard to said property which was also considered and taken care of by Ld. Trial court while observing that the stamp paper was purchased on 3.1.2006 with simultaneous dispatch of letter dated 3.1.2006 which was posted on 5.1.2006. It was rightly noted by Ld. Trial court that as it is not practically feasible to find customer having sufficient amount for paying towards consideration amount within a day or two and it appears to be earlier planning of Anup Diwan and his attorney Dr. Arun Srivastava and date of 6.1.2006 appeared to have been kept by Anup Diwan so as to give no time to complainant to react and at the same time in order to avert information regarding earlier transaction to be trickled down to subsequent purchaser through complainant or someone else on behalf of complainant, thereby no complicity of Dinesh Garg appeared to the fore.
15. It is not the case of complainant that the original title documents were handed over to him nor the agreement to sell dated 6.1.2006 contains mention of Crl. Rev. No. : 8442/2016 & 8451/2016 8/13 original title documents having been handed over to the subsequent purchasers even, therefore, the publication of advertisement regarding loss of title documents also does not lead to pointing out any conspiracy angle between the subsequent purchaser and the vendor.
16. With regard to the plea regarding availability of protection with complainant u/s 53A of Transfer of Property Act , in terms of agreement dated 12.11.2002 relied upon by the complainant himself, Gopal Johri had been shown as tenant of the first and second floor , therefore the plea that the accused persons have not been able to prove any document showing handing over the possession to Gopal Johri is not tenable. As rightly noted by Ld. Trial court, agreement to sell dated 12.11.2002 wherein Goving Johri had been mentioned as tenant is under the signatures of complainant himself and in view of the provisions of section 91 of Indian Evidence Act, complainant by himself cannot dispute the same. The other contention that Local Commissioner's Report establishes this position that the complainant was in possession of the said premises, which report came to be filed after the suit for specific performance had been filed by the complainant, shall be of no relevance while determining the question of criminal conspiracy between the parties. Whether the complainant was given constructive possession with tenancy being in favour of his brother or his brother was a tenant in his independent right in the subject premises, are the pleas to be taken by the parties in the civil court. Accordingly, no infirmity or illegality is found in the observation of Ld. Trial court, qua non summoning of Dinesh Kumar Garg and Smt. Chitra Garg, warranting any interference by this court.
Crl. Rev. No. : 8442/2016 & 8451/2016 9/1317. With regard to petitioners Anup Diwan and Arun Srivastava, there is no dispute with regard to execution of two agreements to sell between the parties whereby the subsequent agreement to sell dated 12.11.2002 superseded the previous agreement to sell dated 26.5.2000. The necessity for execution of the second agreement to sell, in terms of own case of complainant, arose due to the fact that the seller could not secure NOC and sale permission from L&DO . After the execution of second agreement to sell, in terms of own case of complainant, for next three years, seller was contesting the demand with L&DO and kept on promising that once the demand was finalized, the sale deed will be registered in favour of complainant , however in the meantime, prices of property escalated and seller withdrew his application seeking sale permission from L&DO without informing to the complainant and on the other hand, it was represented to the complainant that efforts were on, to secure the sale permission and even the assistance of complainant was also sought for the same.
18. Apparently, the intention of the petitioners Anup Diwan and Arun Srivastava since inception was not wrong as they had acted upon the said agreement to sell. NOC was applied for, from L&DO. The property was also got vacated from one of the tenants. At the time of substitution of first agreement with second agreement, possession of first and second floor was also given to brother of complainant as tenant, as is duly find mention in the agreement to sell dated 12.11.2002. For the failure of petitioners Anup Diwan and Arun Srivastava to execute the sale deed after obtaining the requisite NOC, the complainant could take recourse to call upon the petitioners to execute the sale deed or to take legal Crl. Rev. No. : 8442/2016 & 8451/2016 10/13 recourse by filing of suit for specific performance, in case of breach of contract by the petitioners. There is nothing on record to suggest that during the entire period of three years i.e. with effect from the date of execution of second agreement to sell, the complainant ever got issued any such notice or opted to take any legal recourse by filing of the suit for specific performance.
19. The only thing therefore now which has worked against the petitioners Anup Diwan and Arun Srivastava is that they had withdrawn the sale permission from L&DO vide letter dated 5.5.2004 and at the same time, the owner/vendor Anup Diwan through his Attorney Arun Srivastava kept on representing the complainant that efforts were on, to secure the sale permission and did not inform him regarding the withdrawal of sale permission from L&DO. Ld. Counsel for petitioner submitted that the petitioners had been requesting the complainant to get the matter expedited in L&DO office and the sale permission was withdrawn only on the asking of complainant since misuser charges could not have been settled till the time the application seeking sale permission was pending with L&DO and only on the asking of complainant and to his knowledge, the sale permission was withdrawn by the petitioners. Ld. Counsel for petitioners though conceded that the abovesaid alleged oral understanding is not reflected in the various documents placed on record, therefore no benefit can be derived by the petitioners from the said unproved oral understanding at this stage. However, the fact remains that the petitioners alongwith withdrawal of the sale permission had also stated about their willingness to apply for conversion of property from lease hold to free hold property vide same communication dated 5.5.2004 to L&DO. If the property was Crl. Rev. No. : 8442/2016 & 8451/2016 11/13 converted from Lease hold to free hold, then there was no requirement for obtaining sale permission from L&DO and the property could have been directly sold. The communication dated 14.5.2005 and subsequent letter dated 6.7.2005 addressed to complainant remained unanswered, as is borne out of record. Vide these letters, the petitioners referred to the promise made by the brother of complainant to get the matter expedited favourably with the office of L&DO and also reiterated that there was lack of response from the side of complainant and petitioner Anup Diwan was in great distress. None of the abovesaid letters were answered by the complainant and as submitted by Ld. Counsel for petitioner, in terms of the promise of complainant and his brother , had the matter been taken up with L&DO by them, they themselves would have come to know about the withdrawal of the sale permission from L&DO, even if the oral understanding regarding the withdrawal of the sale permission is not considered at this stage.
20. This court finds force in the contention of Ld. Counsel for petitioners that had the complainant responded to the said communication or had shown his willingness and readiness to offer the balance sale consideration or to get the sale deed executed between the parties and the petitioners, if then, had made excuses, the same could be considered as cause of concern, however it is a case where the complainant himself did not respond to the letters nor himself at any point of time sought the specific performance of the contract from the petitioners and himself kept quite throughout the expiry of period of limitation and resorted to the legal proceedings only after the petitioners terminated the agreement with the complainant, though the same had already expired by efflux of time .
Crl. Rev. No. : 8442/2016 & 8451/2016 12/1321. It is also submitted that the petitioners acted in good faith and sold the property only after the termination of the agreement with the complainant in the year 2006 and not any time prior thereto, whereas the criminal case was sought to be registered by the complainant after gap of two years from the date of termination of said agreement as ploy to arm twist.
22. The disputed questions of fact regarding valid termination of tenancy etc. are the subject matter to be decided by the civil court, but considering the abovesaid, it cannot be even said to be a case of cheating or offence u/s 403/406/409 IPC etc. Apparently, the dispute between the parties being civil in nature have been given the colour of criminality. Accordingly, the impugned order dated 30.09.2016 qua non summoning of Dinesh Kumar Garg and Chitra Garg is upheld and the order qua summoning of petitioners Anup Diwan and Arun Srivastava is set aside. Revision petition filed by petitioner Anup Diwan and Ors. bearing no. 8442/2016 is allowed, whereas the revision petition filed by complainant/petitioner Gopal Johri bearing no. 8451/2016 is dismissed. TCR alongwith copy of this order be sent back to the trial court. Revision files be consigned to record room.
Announced in the Open Court (Savita Rao)
Today on 01.12.2017 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi
Crl. Rev. No. : 8442/2016 & 8451/2016 13/13