Delhi District Court
Ajay Sharma vs The State on 27 September, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
Crl. (A) No. 28/18
New Crl. (A) No. 110/2018
1. Ajay Sharma
S/o. Sh. M.R.Sharma
R/o. 12, Narmada6, PocketD6
Vasant Kunj, Delhi.
............Appellant
Versus
1. The State
(Govt. of NCT of Delhi)
2. Abhishek Verma
S/o. Sh. Anil Kumar Verma
R/o. 1/10061A, Gali No.3 G,
West Gorakh Park, Shahdara,
Delhi110032.
............Respondents
ORDER
1. This appeal is preferred u/s. 341 Cr.P.C against the order dt. 07.07.2018 passed by Ms. Deepti Devesh, Ld. MM, Shahdara, in CC No.3097/2016, PS. Shahdara, titled Ajay Sharma Vs. Abhishek CA No.110/2018 Page 1 of 5 Ajay Sharma Vs. The State & Ors.
Verma, whereby summoning of accused/respondent no.2 was declined by the Court holding that no offence is made out against the accused.
2. Arguments have been advanced by appellant, who himself is a lawyer as also by Sh. K.P.Singh, Ld. Addl. PP for the State. I have also perused the Trial Court record.
3. Appellant argued that he had given the cheque of Rs.12,65,000/ as security, which has been misused by the accused/respondent no.2 and Ld. Trial Court has not considered the written arguments filed by him. It has been further argued that respondent no.2 had executed an affidavit as lying on page no.20 of the paper book that he has not executed any sale agreement, power of attorney, agreement of sale or agreement in favour of anybody. It has been further argued that there was verbal agreement between the parties that after executing the sale deed respondent no.2 would return the cheque of Rs.12,65,000/ but he misused the same although the four security cheques as given by respondent no.2 to the appellant are lying in the judicial file and have been exhibited as Ex.CW1/1A to 1D.
4. Per contra, Ld. Addl. PP for the State argued that appellant has filed the present appeal under the wrong provision as appeal u/s. 341 Cr.P.C lies when a court refuse to make a complaint CA No.110/2018 Page 2 of 5 Ajay Sharma Vs. The State & Ors.
under subsection 1 of sub section 2 of 340 Cr.P.C. It is thus, submitted that present appeal is not maintainable and appellant should have filed a revision petition u/s. 397 Cr.P.C challenging the order of Ld.Trial Court, whereby his complaint was dismissed. Ld. Addl. PP further argued that ingredients of section 406/420/468/471 IPC are not attracted and Ld.Trial Court has rightly declined the summoning of accused/respondent no.2.
5. The impugned order has been assailed mainly on the grounds that Ld.Trial Court failed to appreciate the written arguments submitted by appellant and passed the impugned order without considering the arguments as well as facts and circumstances of the case; that Ld. Trial Court failed to appreciate that appellant/complainant had issued only one cheque and that accused has misused the security cheque.
6. In brief, the case of the appellant/complainant is that respondent no.2 was allotted an HIG Flat No.F20, Pocket 9A, Jasola, Delhi, but he was not having financial resources to make the payment of the flat as he also availed a loan of Rs.1.5 lacs from the Cental Bank of India for making initial deposit while applying for the flat. It is claimed that on the basis of verbal agreement, respondent no.2 agreed to sell the aforesaid flat to Smt. Nisha Sharma for a consideration of Rs.79,000,00/ with a premium of Rs.14 lacs, which was agreed not to be shown in the registered sale CA No.110/2018 Page 3 of 5 Ajay Sharma Vs. The State & Ors.
deed. It is claimed that appellant, his wife Smt. Nisha Sharma and daughter credited certain sums of money in the account of respondent through RTGS/cash deposit and both the parties agreed to issue security cheques to each other in order to ensure that transaction is duly executed till registration of sale deed. It is alleged that after execution of sale deed respondent no.2 misused the cheque in question. In support of its case, appellant/complainant examined himself as CW1, Sh. O.P.Bharti, Asstt. Manager, Central Bank of India, Shahdara as CW2 and Sh. Man Mohan, clerk from Canara Bank, Shahdara as CW3.
7. Ld. Addl. PP has rightly pointed out that provision u/s. 341 Cr.P.C relates to the cases where a court refuse to make a complaint under subsection 1 of sub section 2 of 340 Cr.P.C and against the impugned order, only a revision petition u/s. 397 Cr.P.C lies. Therefore, present appeal is treated as revision petition u/s. 397 Cr.P.C.
8. It is admitted case of the petitioner that he had given the blank cheque to respondent no.2 as security pursuant to oral agreement between them regarding purchase of the Flat of the respondent no.2. Petitioner has also admitted his signatures on the cheque. Thus, apparently there was no inducement by respondent no.2 to deliver the cheque in question. In written submissions, as filed by petitioner before Ld.Trial Court, he has also taken the CA No.110/2018 Page 4 of 5 Ajay Sharma Vs. The State & Ors.
ground that leave to defend has been granted in a recovery suit filed by respondent no.2 against him. Ld. Trial Court has rightly held that ingredients required to attract the provision of sections 406/420/468/471 IPC are completely different from the ingredients required to obtain leave to defend in a Civil Suit under order 37 CPC. It appears that affidavit as relied upon by petitioner was furnished by respondent no.2 to DDA in compliance of terms and condition of the allotment that he had not sold, transferred or parted with the possession of the allotted flat to third party. Ld. Trial Court has rightly relied upon judgment of Ravi Chopra Vs. State & Anr. 2008 (2) LRC 118 (Delhi), wherein it was held that if a blank signed cheque is given then it is possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a later date. After considering the pressummoning evidence and material placed on record, no sufficient ground for summoning the respondent no.2 u/s. 406/420/468/471 IPC is made out. There is no illegality or material irregularity in the impugned order as passed by Ld. Trial Court. Petition is dismissed being devoid of any merits. Trial Court record be sent back alongwith a copy of this order. Revision file be consigned to record. SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR MALHOTRA Location: Karkardooma Announced in the open court Courts, Delhi Date: 2018.09.27 16:05:13 +0530 on 27.09.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi CA No.110/2018 Page 5 of 5 Ajay Sharma Vs. The State & Ors.