Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 5, Cited by 0]

Delhi District Court

Anil Bhatia vs . State Ca 19/2019 on 30 September, 2019

Anil Bhatia Vs. State                          CA 19/2019



         IN THE COURT OF SHRI AJAY GULATI
    ADDITIONAL SESSIONS JUDGE ­05: WEST : DELHI.
                                        CA No. 19/2019
   Anil Bhatia
   S/o Sh. Chetan Ram
   R/o 17, South Patel Nagar,
   New Delhi­ 110 008                       ....... Appellant.


                             Versus


   The State                             ...... Respondent
Date of Institution               :      21.01.2019.
Date of Reserving Judgment        :      30.09.2019
Date of Judgment                  :      30.09.2019

Judgment in Appeal under Section 374 (3) Cr.P.C. against the Judgment dt. 17.02.2018 and order on Sentence dt. 22.11.2018 passed by the Court of Sh. Jitendra Singh, ld. ACMM, West, THC, Delhi.

Result: Allowed Page 1 of 14

Anil Bhatia Vs. State CA 19/2019

1. The present Appeal has been preferred against the judgment of conviction dt. 17.02.2018 and order of sentence dt. 22.11.2018 passed by Sh. Jitender Singh, ld. ACMM, West, vide which the Appellant was awarded Simple Imprisonment for a period of 05 years for the offence punishable u/s 420 IPC alongwith award of compensation of Rs. 4,75,000/­ to be paid to the complainant. Benefit of Section 428 Cr.P.C. was also given to the convict.

2. Notice of the Appeal was issued to the respondent/State and the Trial Court record was summoned. The sentence of the Appellant was suspended on 01.05.2019, during the pendency of the Appeal.

3. Brief factual recapitulation would be necessary before proceeding to the merits of the Appeal.

4. The FIR in regard to which the impugned judgment came to be passed was registered on 30.01.1997 on the statement of complainant Kulbhushan (PW­1) who alleged that the convict ­appellant, despite entering into agreement to sell dt. 25.11.1996 with the complainant in respect of Flat no. A­1/59­A, Paschim Result: Allowed Page 2 of 14 Anil Bhatia Vs. State CA 19/2019 Vihar/Paschim Puri, Delhi and also receiving an amount of Rs. 3,10,000/­ approx. (This amount is inclusive of Rs. 80,000/­ odd amount which was deposited in DDA on behalf of Appellant by the Complainant), refused to execute the sale documents regarding the said property. It needs a highlight that after the registration of FIR, appellant­convict agreed to sell the flat for an enhanced sale consideration on 27.02.1997. However, it needs a further highlight that no fresh agreement was executed but only a receipt was executed which mentioned the re­negotiated sale price of the property (for Rs. 4,46,258.25) and details of previous payments made by the complainant in terms of the agreement to sell dt. 25.11.1996.

5. Pursuant to the signing of agreement to sell dt. 25.11.96, a sum of Rs. 25,000/­ in cash (receipt Mark A) was handed over to accused on 25.11.1996 in the presence of three persons, namely Madan Lal, Sanjeet Arora and Kundan Lal Arora. On 30.11.1996, another sum of Rs. 15,000/­ in cash was paid to the accused which he acknowledged by signing on the back of receipt Mark A. Rs. 80,000/­ odd were further paid on behalf of the Appellant to the Result: Allowed Page 3 of 14 Anil Bhatia Vs. State CA 19/2019 competent authority i.e. DDA in two tranches of Rs. 36,935/­ (receipt Ex.PW­1/A) and Rs. 44,235/­ (receipt Ex. PW­1/B) towards outstanding dues of the property to be sold. Complainant asserted that he prepared two drafts of Rs. 50,000/­ each, for handing over the same to the accused on 24.12.1996 which was the stipulated date for payment of balance sale amount. However, on 24.12.1996, accused refused to execute the sale deed on the pretext that his wife was not willing to sell the flat. Accused returned Rs. 15,000/­ to the complainant through a cheque which was encashed. Refund of Rs. 15,000/­ by the appellant to the complainant is admitted.

6. After FIR no. 76/97 was registered on the complaint dt. 28.01.1997 submitted by Sh. Kulbhushan, i.e. since the convict­ appellant had refused to execute the sale deed, on 27.02.1997, sale price was re­negotiated between the complainant and the accused for the same property for an enhanced consideration of Rs. 4,46,258.25. Pursuant to re­negotiation, accused was given an additional Rs. 1,90,000/­ by the complainant. The possession of the flat was handed over to the complainant but even thereafter, Result: Allowed Page 4 of 14 Anil Bhatia Vs. State CA 19/2019 accused refused to execute the sale deed. After completion of investigation of FIR No.76/97 charge­sheet was filed. Subsequently, charges were framed under Section 406 and 420 IPC. Prosecution examined 10 witnesses out of which four were public witnesses i.e. PW­1 to PW­4.

7. Appellant­convict also examined six witnesses to prove his assertion that he had paid back Rs. 15,000/­ to the complainant which in any case had not been denied by the Complainant.

8. Relevant to highlight that though the accused was charged u/s 406 and 420 IPC, ld. Trial Court did not return a finding on the guilt of accused under Section 406 IPC.

9. In so far as conviction u/s 420 IPC is concerned, ld. Counsel for the appellant argued that for holding an accused guilty of cheating, the prosecution has to prove that the accused had the intention to cheat from the inception of a transaction. Ld. Counsel for the appellant relied on judgments delivered by the Hon'ble Supreme Result: Allowed Page 5 of 14 Anil Bhatia Vs. State CA 19/2019 Court cited as (1) Joseph Salvaraj A.V. State of Gujrat, AIR 2011 SC 2258 and (2) Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & others, AIR 2008 Supreme Court 251, in order to buttress this submission. He further highlighted the examination­ in­chief of the complainant (PW­1) wherein he did not even allege that appellant had the intention to cheat him or that Appellant had induced him to enter into agreement to sell with the intention to cheat him.

10. It is important to highlight that offence of cheating is complete when a person is induced to deliver some property or a valuable security which he otherwise would not but for the inducement given by the accused. In the present case, going plainly by the avernments in the complaint dt. 28.01.1997 (on the basis of which FIR was registered) there is no allegation that Appellant­accused induced complainant to pay Rs. 40,000/­. Infact, it was the complainant who had approached the appellant alongwith property dealers for the purchase of property no. A­1/59­A, Paschim Vihar/Paschim Puri, Delhi.

Result: Allowed Page 6 of 14

Anil Bhatia Vs. State CA 19/2019

11. It is important to highlight that complainant had paid a total sum of Rs. 3,10,000/­. After the Agreement to Sell dt. 25.11.1996 was signed, complainant initially paid Rs. 25,000/­ as earnest money, followed by another payment of Rs. 15,000/­ and then Rs. 80,000/­ odd on 4 and 6th December, 1996 i.e. total of Rs. 1,20,000/­. Thereafter, agreement was re­negotiated on 27.02.1997 in terms of which complainant further paid Rs. 1,90,000/­. Significantly however, when Rs. 1,90,000/­ was paid to the Appellant after signing of the 2nd agreement to sell, the appellant accused handed over the possession of flat no. A­1/59­A, Paschim Vihar/Paschim Puri, Delhi (subject matter of both Agreements to Sell) to the complainant. This fact is not disputed.

12. At this stage, a few additional facts deserve a highlight. First and most relevant is the fact that the Receipt dt. 27.02.1997 was entered into between the complainant and Appellant after police exerted pressure on the appellant. Therefore, the re­negotiated terms of agreement was not even a voluntarily entered into Result: Allowed Page 7 of 14 Anil Bhatia Vs. State CA 19/2019 agreement. This fact is borne out from the examination in chief of PW­1 himself where he categorically deposed so. Once the appellant had been forced to enter into re­negotiated agreement, it cannot be argued that in such a fact scenario, he had induced the complainant to enter into the agreement and pay additional amount of Rs. 1,90,000/­, with an intention to cheat him.

13. Therefore, what follows is that complainant was not induced by any act of the appellant/convict to pay the earnest money and part payment to him after signing of agreement to sell dt. 25.11.96. Second, after the second agreement was entered into between complainant and accused, the accused voluntarily handed over possession of the property under sale which shows that he had no intention to back out from the agreement or else, he would not have handed over the property to the complainant.

14. Ld. Trial Court mis­appreciated this crucial aspect and held that possession was handed over only to mask the real intention of the accused. In the understanding of the Court, handing over of possession of an immovable property to the purchaser in Result: Allowed Page 8 of 14 Anil Bhatia Vs. State CA 19/2019 consideration for part payment under an agreement to sell cannot be an indicator of the intention to cheat since handing over of possession clearly puts the seller in a hugely disadvantageous position in view of section 53A of the Transfer of Property Act.

15. At the cost of repetition, it needs a highlight that PW­1 (complainant) in his examination­in­chief did not allege even once that appellant had induced him to pay the earnest money with cheating on his mind i.e. with dishonest intention to cheat. Not only PW­1, none of the other three public witnesses alleged in their respective examination­in­chief that appellant had induced the complainant to pay earnest money, with dishonest intention. PW­ 1, in his examination­in­chief, specifically stated that on 24.12.96, which was the stipulated date for executing sale deed, the appellant refused to execute documents stating that his wife was not wiling to sell the property. Thus, even as on 24.12.96, the intention of the appellant was not dishonest but he was probably under the pressure of his wife not to sell the property.

16. It also needs a highlight that in order to recover the earnest Result: Allowed Page 9 of 14 Anil Bhatia Vs. State CA 19/2019 money/advance amount paid by the complainant to the appellant, a civil suit for recovery was filed by the complainant against the appellant which was decreed ex­parte in favour of the complainant. The same property i.e. A­1/59­A, Paschim Vihar/Paschim Puri, Delhi was then put to auction in execution proceedings and the complainant himself purchased the said property. This aspect is not borne out from the impugned judgment but was highlighted by ld. Counsel for the Appellant and which was confirmed by the Complainant who participated in the present appellate proceedings.

17. Ld. Cousnel for the State/Respondent was also assisted by ld. Counsel for the complainant and who addressed independent arguments. It was contended on behalf of the State as also the complainant that despite the appellant twice committing to sell the property to the complainant and also twice receiving part sale amount, refused to honour the commitment which is a clear indicator of his intention to cheat from the inception. It was further argued by ld. Counsel for the Complainant that appellant's intention to cheat also stands proved from the fact that appellant had also entered into an agreement to sell qua the property no. A­ Result: Allowed Page 10 of 14 Anil Bhatia Vs. State CA 19/2019 1/59­A, Paschim Vihar/Paschim Puri, Delhi, with one P. Laxmi and had received Rs. 50,000/­ from her vide receipt dt. 03.12.1996 (Photocopy Mark X) after he had already agreed to sell the property to complainant on 25.11.96. Further, the property had already been mortgaged to one Mrs. Wadhera (alleged to be a resident of Noida) way back in 1989 whereas when the appellant had executed agreement to sell with the Complainant on 25.11.1996, the property was shown to be without any encumbrances.

18. In so far as the first argument raised by ld. Counsel for the complainant is concerned, at the cost of repetition, it may be highlighted the appellant did not in any manner induce the complainant to enter into agreement to sell. It was the complainant himself who approached the appellant for purchasing the property. Further, out of a total cash of Rs. 40,000/­ (Rs. 25,000/­ + Rs. 15,000/­) received by the appellant, he voluntarily returned Rs. 15,000/­. It needs a highlight that the other tranche of Rs. 80,000/­ odd amount was not handed over to the appellant but deposited in the DDA. Thus, out of a total of Rs. 40,000/­ in cash, Appellant Result: Allowed Page 11 of 14 Anil Bhatia Vs. State CA 19/2019 willingly returned Rs. 15,000/­ which is an indicator that he really had no intention to cheat the complainant. Infact, appellant did not even contest the civil suit filed by the complainant against him for recovery of money and an ex­parte decree was passed against the Appellant. So far as the receipt dt. 27.02.97 is concerned, there possibly could not have been an intention to cheat in the mind of the Appellant since the re­negotiated agreement was signed under duress and was not a voluntary act. In any case, even the possession of the property was landed over to the complainant which negates any possibility of Appellant having intention to cheat the Complainant.

19. In regard to the allegation pertaining to prior mortgage of the property bearing no. A­1/59­A, Paschim Vihar/Paschim Puri, Delhi to Mrs. Wadhera and the agreement to sell executed subsequently with P.Laxmi on 03.12.96, it needs a highlight that none of the two allegations could be proved by the prosecution. Neither Ms. P. Laxmi nor Mrs. Wadhera was even cited as a prosecution witness. The trial Court record does not reflect any document qua mortgage of property with Mrs. Wadhera. Regarding subsequent agreement Result: Allowed Page 12 of 14 Anil Bhatia Vs. State CA 19/2019 to sell with P.Laxmi i.e. receipt of receiving Rs. 50,000/­ from P. Laxmi, ld. Trial Court relied on the photocopy of receipt of Rs. 50,000/­ allegedly executed by the appellant. However, this photocopy was relied upon by the ld. Trial Court without the same having even been proved. Regarding the allegations/assertion of the complainant that property agreed to be sold to the complainant was already under a prior mortgage, no finding was returned by the ld. Trial Court. In the understanding of the Court, reliance by ld. Trial Court on a document without the same having been proved in any manner, was uncalled for and not in accordance with law. Ld. Counsel for the complainant placed reliance on AIR 1991 SC 1346 to submit that ld. Trial Court validly relied on the photocopy of receipt in regard to transaction with P. Laxmi. However, the judgment cited is in reference to the power of Trial Court to summon a witness u/s 311 Cr.P.C.

20. In view of the foregoing discussion, this Court is unable to concur with the ld. Trial Court that the Appellant had induced the complainant to enter into agreement to sell dt. 25.11.1996 with a predisposed mind to cheat the complainant. The refusal of the Result: Allowed Page 13 of 14 Anil Bhatia Vs. State CA 19/2019 Appellant to execute the sale deed, at best, amounted to a dispute of civil nature with the complainant.

21. As a corollary, the conviction of the appellant cannot be sustained u/s 420 IPC. The judgment of Conviction dt. 17.02.2018 is thus set aside and as a consequence, the order of Sentence dt. 22.11.2018 is also set aside.

22. Trial Court record be sent back alongwith copy of this judgment.

23. After due compliance, Appeal file be consigned to record room. Digitally signed by AJAY GULATI AJAY Date:

GULATI Announced in open Court. 2019.10.01 (Ajay Gulati) 16:36:09 Dated: 30.09.2019 +0530 ASJ­05/THC/West/ Delhi.
Result: Allowed Page 14 of 14