Delhi District Court
Suresh Kumar Gupta vs State on 13 December, 2025
IN THE COURT OF SH. VIPIN KHARB
ADDITIONAL SESSIONS JUDGE-07 : SOUTH-EAST DISTRICT
SAKET COURTS : NEW DELHI
CR No. 302/2020
Sh. Suresh Kumar Gupta
S/o Late Sh. S. B. Gupta
R/o S-511, Greater Kailash-II
New Delhi - 110048 ..... Revisionist
Vs
1. State of NCT of Delhi
Through SHO
PS Greater Kailash, New Delhi
2. Sh. Deepak Diwan
Managing Director
Cardio Fitness India Pvt Ltd.
E-218, Greater Kailash,
New Delhi - 110048 ..... Respondents
ORDER
13.12.2025
1. The present revision petition has been filed under Section 397 read with Section 399 of the Code of Criminal Procedure, 1973, seeking revision and setting aside of the order dated 23.10.2020 passed by Ms. Gurmohina Kaur, Ld. CMM (South-East), Saket Courts, New Delhi in CT Case No. 617643/2016 arising out of FIR No. 174/2007, Police Station Greater Kailash. Through the impugned order, charges under Sections 420 read with 120B of Page 1 of 13 the Indian Penal Code were framed against the revisionist Suresh Kumar Gupta and co-accused Vinod Kumar Gupta. The revisionist, being aggrieved by the framing of charges under the aforesaid sections, has preferred the present revision petition.
2. Brief facts of the case are that sometime during May to June 2004, the complainant approached by the accused persons who were owners of property bearing No. R-57, Greater Kailash-I, New Delhi and offered to lease the second and third floors of the said property along with terrace rights and two car parking spaces in the driveway but interior works to be completed at the cost of the complainant, and that the rent would become payable only three months after the completion of basic facilities by the accused persons. In pursuance of these negotiations, the complainant allegedly paid a sum of Rs. 12 lakhs, comprising Rs. 6 lakhs as security deposit and Rs. 6 lakhs as advance rent and took possession of the property and executed a lease deed dated 03rd December 2004 with the accused persons. Complainant also and claimed that for the interiors of the said building, he had availed a loan of Rs. 34 lakhs from Corporation Bank and spent approximately Rs. 40 lakhs on renovation and interior works. It is alleged by the complainant that towards the end of August 2005, the accused persons started threatening the complainant and his employees to surrender possession of the premises, as they were negotiating with third parties for obtaining higher rent. On 20 th September 2005, while the complainant was away in Australia, he was telephonically informed that the accused persons, along with some unknown persons and two police officers, came to the premises, broke open the locks, and forcibly entered the premises, thereby dispossessing the complainant from the property which had been given to him on lease. It is further alleged by complainant that the accused persons Page 2 of 13 concealed from the complainant the existence of orders passed by the Hon'ble High Court of Delhi dated 15th October 2004 and in violation of that order entered into a lease deed dated 3rd December 2004 with regard to the second and third floors of R-57, Greater Kailash Part-I, New Delhi with the complainant's company, so, the accused persons dishonestly induced the complainant to part with Rs. 12 lakhs and to spend a further sum of Rs. 40 lakhs on interior works, thereby committed the offence of cheating. Complainant gave a complaint mentioning abovesaid facts to police and based on the aforesaid complaint, FIR No. 174/2007 under Sections 420, 448, 341 and 34 of the Indian Penal Code was registered. After completion of investigation, a chargesheet was filed under Sections 420, 448, 341 and 34 IPC against both the accused persons. The Ld. Trial Court, vide the impugned order dated 23rd October 2020, partially allowed the discharge applications and discharged the accused persons from the offences under Sections 448 and 341 IPC, but proceeded to frame charges under Sections 420 read with 120B IPC. Being aggrieved by the framing of charges under Sections 420 read with 120B IPC, the present revision petition has been filed.
3. Ld counsel for the revisionist / accused argued that no offence under Section 420 read with Section 120B IPC is made out against the accused persons as the negotiations between the parties commenced during May to June 2004, and the token amount of Rs. 1,02,000/- was paid on 19 th July 2004, which was approximately two months before the High Court order dated 24th September 2004. The High Court order was passed in PIL in which the accused persons were not parties, and the order was passed behind their back. The Ld Counsel for the revisionist / accused also submitted that there was complete absence of mens rea and no dishonest or fraudulent intention of the Page 3 of 13 accused persons was present as they voluntarily returned the entire advance amount of Rs. 12,00,000/- on 24th September 2005 by way of cheque, three days before the filing of the complaint on 27 th September 2005. The return of money clearly indicates that the transaction could not be completed due to non-completion of construction and inability to deliver possession, and not because of any fraudulent intention on the part of the accused. Further, since possession was never handed over to the complainant, there was no question of any interior work being carried out on the property. There was no electricity connection installed in the property, making it impossible to carry out any interior work. The interior designer, Kamal Kishore has stated that only Rs. 11 lakhs was paid to him by the complainant and he was doing interior work at multiple sites of the complainant, not specifically at the property in question. No material or equipment related to interior work was found at the property or seized by the Investigating Officer during investigation. Even if, some expenditure was incurred by the complainant, such expenditure would be a matter of civil damages arising from breach of contract and not a criminal offence of cheating.
4. Ld Counsel for revisionist / accused also submitted that physical possession of the property was never handed over to the complainant as complainant in its own letter dated 2 nd April 2005 requested the accused persons to handover physical possession. No valid lease deed was ever executed between the parties. The original lease has never been produced. Alleged lease deed does not contain the names or signatures of any witnesses, has not been registered despite being compulsorily registrable under Section 17(1)(d) of the Registration Act, 1908 for being a lease exceeding one year, and has not even been notarized. Further, the alleged lease deed contains a Page 4 of 13 clause stating that it is subject to completion of building construction, which clearly indicates that no final agreement had been reached and the document was merely a draft subject to fulfillment of certain conditions precedent. Interior work was never done by complainant as as per alleged lease deed, interior work to start after completion of construction work but the construction work was incomplete during relevant period and the accused persons applied for the completion certificate only on 11th November 2005 i.e. two months after returning the advance amount to the complainant.
5. Ld. Addl. PP for State assisted by Ld counsel for respondent / complainant has submitted that there is sufficient evidence on record to frame charges against the accused persons under Sections 420 read with 120B IPC as the accused persons concealed the orders of the Hon'ble High Court from the complainant and dishonestly induced him to pay Rs. 12 lakhs and to spend Rs. 40 lakhs on interior works. The Learned APP has contended that the return of Rs. 12 lakhs is not relevant at the stage of framing of charge, as there is prima facie material on record suggesting dishonest intention pursuant to criminal conspiracy and therefore the charges have been rightly framed by the Learned Trial Court.
6. TCR alongwith record perused.
7. Section 415 IPC defines cheating and provides that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so Page 5 of 13 deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Section 420 IPC provides for punishment for cheating and dishonestly inducing delivery of property.
8. The Supreme Court in Hridaya Ranjan Prasad Verma Vs. State of Bihar:
(2000) 4 SCC 168 held:-
"In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot given rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made promise cannot be presumed."
9. Therefore, the crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would be come decisive in discerning whether there was commission of offence or not. The first question that arises for consideration is whether there was any deception or fraudulent inducement on the part of the accused persons.
10. The prosecution case is that the accused persons deceived the complainant by concealing from him the orders passed by the Hon'ble High Court of Delhi dated 15th October 2004, which restrained the owners from occupying or encumbering the property till further orders of the Court. In the Page 6 of 13 present case, the negotiations between the parties commenced during May to June 2004, and the token amount of Rs.1,02,000/- was paid by the complainant on 19th July 2004. This payment was made approximately two months before the High Court order dated 24th September 2004 which sealed the property. The order dated 24th September 2004 was passed by the Hon'ble High Court in a Public Interest Litigation bearing Writ Petition (Civil) No. 1089/2003, in which the accused persons were not even parties. The order was passed behind the back of the accused persons without giving them any opportunity of hearing. The period during which the property remained under seal was only 21 days. So, the Negotiation commenced and token amount was given well before passing of order by Hon'ble High Court, which was not known to accused persons. So, while doing negotiations, order of Hon'ble High Court was not in existence and therefore, cannot be suppressed by accused.
11. On 24th September 2004, the Hon'ble High Court of Delhi passed an order in Writ Petition (Civil) No. 1089/2003, wherein the property in question was sealed. The accused persons were not parties to the said writ petition. The property was physically sealed on 25th September 2004 by the Municipal Corporation of Delhi. On 29th September 2004, accused persons filed an application before the Hon'ble High Court undertaking on behalf of the accused not to create any third-party interest by way of sale, agreement to sell, power of attorney or collaboration agreement and the property would be put to only residential use. On 15th October 2004, the Hon'ble High Court passed an order de-sealing the property of the accused persons and allowed further construction strictly in accordance with the sanctioned plan.
Page 7 of 1312. The complainant was aware of the sealing and de-sealing of the property and the orders passed by the Hon'ble High Court which is reflected by letter dated 2nd April 2005. In this letter, the complainant has specifically requested the accused persons to handover physical possession of the property at the earliest so that interior works could be commenced. This letter clearly indicates that till April 2005, possession had not been handed over to the complainant, which completely contradicts the prosecution's case that possession was delivered pursuant to a lease deed dated 03 rd December 2004. This letter is a clear admission on the part of the complainant that possession was never delivered to him.
13. On 3rd December 2004, an alleged lease deed was purportedly executed between the parties. Only a photocopy of this alleged lease deed on a stamp paper of Rs. 100 was filed on record, and the original has never been produced before the IO during investigation or before the court. A careful scrutiny of lease deed dated 03.12.2004 reveals that it suffers from multiple fatal infirmities which render it inadmissible in evidence. Firstly, only a photocopy of this document is available on record, and the original has never been produced during investigation or before court. Secondly, the photocopy does not contain any details of the stamp paper on which it is purportedly printed. Thirdly, the document does not contain the names or signatures of any witnesses. Fourthly, the document has not been registered despite being compulsorily registrable under Section 17(1)(d) of the Registration Act, 1908, which mandates registration of leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. The alleged lease deed is stated to be for a period of nine years, and therefore falls squarely within the ambit of Section 17(1)(d) of the Registration Act.
Page 8 of 1314. On 24th September 2005, the accused persons returned the entire advance amount of Rs.12,00,000/- to the complainant by way of cheque, which was duly credited in the bank account of the complainant. On 27th September 2005, the complainant filed the complaint before the Commissioner of Police. The First Information Report was eventually registered on 1st June 2007, the entire advance amount of Rs.12,00,000/- was returned by the accused persons on 24th September 2005 and this return was made by way of cheque which was duly encashed and credited in the bank account of the complainant and the money was returned almost two years before the registration of the First Information Report on 1 st June 2007 and three days before the filing of the complaint on 27th September 2005.
15. The Hon'ble Supreme Court in the case of "Uma Shankar Gopalika versus State of Bihar", 2005 (10) SCC 336 has held that return of money before institution of criminal proceedings is a relevant and significant factor to consider whether there existed mens rea to commit cheating. If the accused has returned the money voluntarily before any complaint is filed, it is a strong indicator that there was no fraudulent intention from the beginning and the transaction could not be completed due to genuine reasons. In the present case, not only was the money returned before the institution of proceedings, it was returned even before any complaint was filed.
16. In the present case, the Hon'ble High Court, vide order dated 17 th December 2005, allowed occupancy in the building only if construction was completed strictly in conformity with sanctioned building plans, and specifically prohibited any commercial activity in the premises. The Page 9 of 13 complainant wanted to use the premises for his business of health and fitness equipment, which would have been commercial activity. Therefore, it became clear that the property could not be leased out to the complainant for his intended purpose, and hence the transaction was terminated and money was returned.
17. So, from the discussion done so far, it is clear that both parties entered into negotiations and earnest money was paid by complainant well before the passing of order by Hon'ble High Court of Delhi, so, there is no concealment of order / facts by the accused persons nor he had any dishonest intention at the time of doing negotiations. But later on due to passing of order by Hon'ble High Court in PIL the construction got stopped and delayed.
18. The accused persons entered into negotiations with the complainant for leasing out the property but property was to be leased out only after construction was complete. However, due to legal complications arising from Hon'ble High Court orders delay in construction occurred and later on commercial activities in the building were prohibited by order of Hon'ble High Court and it become impossible for the accused persons to complete the transaction. Being an order passed by the Hon'ble High Court in PIL, it is deemed that all public persons are aware about it, therefore, complainant is also deemed to be aware about the order passed by Hon'ble High Court. Further, it is evident from complainant's letter dated 02nd April 2005 that he was fully aware of the Hon'ble High Court orders and the sealing and de- sealing of the property, So, there was no concealment of any order by the accused persons and the complainant was fully aware of all the material facts concerning the property.
Page 10 of 1319. If accused persons had leased out the premises / building No. R-57, GK- I, New Delhi to the complainant for running a Fitness Center then it would have been in violation of order passed by Hon'ble High Court. Therefore, contract with complainant, could not be completed by accused persons due to circumstances beyond their control and not intentionally. Accused persons also acted bonafidely and returned the advance amount to complainant even before filing of any complaint. The element of mens rea, which is essential for the offence of cheating, is thus completely absent in the present case and at maximum there is a breach of contract by accused persons and remedy for the same is suit for damages and not a criminal prosecution.
20. The Ld Trial Court, while framing charges under Sections 420 read with 120B IPC, has observed in the impugned order that the record prima facie reveals dishonest concealment of the orders of the Hon'ble High Court of Delhi by both the accused persons to the complainant, this Court doesn't agree with this finding.
21. As regards the charge of criminal conspiracy under Section 120B IPC, there must be an agreement between two or more persons to do an illegal act or to do a legal act by illegal means. The object of the conspiracy must be to commit an offence. Both the accused persons were acting in concert, since they were co-owners of the property, there is no evidence of any agreement between them to commit the offence of cheating. Both accused were simply acting as co-owners attempting to lease out their property. Since no offence under Section 420 IPC is made out against the accused persons, the question of criminal conspiracy to commit that offence does not arise.
Page 11 of 1322. The law on point as to when an accused can be discharged or can be charged in situation where contradictory evidence is on record has been best laid down in case titled as "Union of India Vs. Prafulla Kumar Samal and Anr"
(1979) 3 SCC 4. After examining all pros and cons following guidelines have been laid down in para no. 10 of the aforesaid judgment:-
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out
2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him. while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
23. Hon'ble Supreme Court of India in case titled as "Satish Mehra Vs. Delhi Administration and Ors 1996 J. CC 507" has expressed similar view that when judge is fairly certain that there is no prospect of case ending in conviction the valuable time of the court should not be wasted for holding a Page 12 of 13 trial only for the purpose of formally completing the procedure to pronounce the conclusion on future date.
24. From the discussion done above, Court has come to the conclusion that even if all the allegations in the complaint and chargesheet are taken at their face value and accepted in their entirety, they do not make out the essential ingredients of the offence under Section 420 IPC against the accused persons. The element of fraudulent or dishonest inducement is absent as there was no misrepresentation. Most importantly, the element of mens rea is completely absent, as demonstrated by the voluntary return of money before any complaint was filed.
25. In view of the discussion above, the revision petition is allowed and the charge framed against the accused / revisionist for the offence u/s. 420 read with 120B IPC vide impugned order dated 23.10.2020 is hereby set aside and he is discharged from the present case.
20. TCR be sent back to Ld. Trial Court alongwith copy of this order.
21. File of Revision Petition be consigned to Record Room after due compliance.
Vipin Digitally signed
by Vipin Kharb
Date: 2025.12.13
Kharb 15:08:17 +0530
Dictated and Announced (Vipin Kharb)
in the open Court on 13.12.2025 ASJ-07, South-East, Saket Courts
Delhi
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