Delhi District Court
Criminal Revision No. 23/13 vs M/S Today Homes And Infrastructure on 1 August, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
LD. ADDITIONAL SESSIONS JUDGE01, PATIALA HOUSE
COURTS, NEW DELHI
In re:
1. CRIMINAL REVISION NO. 23/13
ARUN SAXENA PETITIONER
V.
M/S TODAY HOMES AND INFRASTRUCTURE
PVT. LTD. AND OTHERS RESPONDENTS/ACCUSED
&
In re:
2. CRIMINAL REVISION NO. 10/13
UMESH BHATIA PETITIONER
V.
M/S TODAY HOMES AND INFRASTRUCTURE
PVT. LTD. AND OTHERS RESPONDENTS/ACCUSED
&
In re:
3. CRIMINAL REVISION NO. 08/13
RAVI GULATI PETITIONER
V.
M/S TODAY HOMES AND INFRASTRUCTURE
PVT. LTD. AND OTHERS RESPONDENTS/ACCUSED
Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 1 of 14
2
&
In re:
4. CRIMINAL REVISION NO. 24/13
HARI OM GUPTA PETITIONER
V.
M/S TODAY HOMES AND INFRASTRUCTURE
PVT. LTD. AND OTHERS RESPONDENTS/ACCUSED
&
In re:
5. CRIMINAL REVISION NO. 11/13
HARBANS LAL PETITIONER
V.
M/S TODAY HOMES AND INFRASTRUCTURE
PVT. LTD. AND OTHERS RESPONDENTS/ACCUSED
&
In re:
6. CRIMINAL REVISION NO. 80/13
SUNDER SHYAM PETITIONER
V.
M/S TODAY HOMES AND INFRASTRUCTURE
PVT. LTD. AND OTHERS RESPONDENTS/ACCUSED
&
Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 2 of 14
3
In re:
7. CRIMINAL REVISION NO. 09/13
RAKESH NANDA PETITIONER
V.
M/S TODAY HOMES AND INFRASTRUCTURE
PVT. LTD. AND OTHERS RESPONDENTS/ACCUSED
APPEARANCES
Present: Mr. Dhanesh Relan, Advocate for the petitioners/revisionists
in all the revisions except CR No. 80/12
Mr. Joginder Sukhija, Mr. Shailender Babbar, Mr. Ajay Jain,
Advocates for petitioners/revisionists in CR No. 80/12
Mr. Tanmaya Mehta and Mr. Sanjay Abbot, Advocates for
respondents no. 1, 2 and 3.
None for the remaining respondents.
01.08.2013
ORDER
1. This common order shall decide the above noted seven criminal revisions which are between the same parties except that in revision no. 80/12 there are arraigned three more respondents namely, Amit Taneja and Amit Jhinga stated to be Sales Executives of respondent no. 1 company besides one Ashwani Bhalla. The seven criminal revision petitions are filed in terms of section 397 Cr.P.C. assailing a common order dated 06.11.2012 passed by Sh. Ashok Kumar, Ld. MM, New Delhi, whereby the application u/s 156(3) Cr. P.C of the petitioners/complainants were dismissed although the petitioners/complainants have been allowed to lead presummoning evidence. Needless to point out that there arise common question of law and facts and as admitted by Ld. counsel for the parties the issues Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 3 of 14 4 in the present revisions could conveniently be disposed of by this common order. For the purposes of common decision, the criminal revision no. 23/13 titled Arun Saxena v. M/s Today Homes & Infrastructure Pvt. Ltd. is taken as the main case and the decision rendered therein shall apply mutatis mutandi to the remaining six criminal revisions before us.
FACTS
2. The petitioners in CR No. 23/13 are the complainants before the Ld. Trial Court as is case with other petitioners. In a nutshell, an application u/s 156 (3) Cr.P.C. was filed by the petitioners stating that the respondent/accused no.1 company is engaged in the business of developing and constructing infrastructure and they brought out a project to build a Mall in North of Delhi named as "North Gate Mall" at Gujranwala Town at Delhi; that accused no. 2 and 3 being the Directors and other employees of accused no.1 company approached the petitioners/complainants to invest in the said project representing that the project was very lucrative in as much as not only the accused persons promised to complete the construction of the said Mall in record time and to sell shops in the same to the complainant but also represented and agreed to provide lessees of reputed brands for the shops thereby promising that they would be able to provide an assured rental income to the petitioners/complainants; that for inducing the petitioners/complainants to invest in the said project, the accused persons give graphic demonstration of the structure of the Mall so much so that it was promised that during the period of delay, if any, in the construction of the Mall and handing over of the possession to lessees dealing in reputed brands, accused would pay the rent agreed between the parties as per the agreement to assure a sustained rental income. It is alleged that the accused persons no. 2 Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 4 of 14 5 and 3 in order to induce the petitioners/complainants showed them the MOU executed between the accused no.1 company and certain reputed brands.
3. It is alleged that lured and induced by such promises and assurances of accused no. 1 and 3 besides their agents, the petitioners/complainant entered into an agreement to sell with accused no.1 company dated 13.12.2006 in respect of a particular portion/site in the Mall. It is alleged by the petitioners/complainants that accused no.1 to 3 were supposed to complete the construction of the Mall latest by 01.7.2007 but they deliberately and intentionally made unauthorized / illegal construction in the Mall besides unauthorized construction / deviations in the Mall without any authority/permission/sanction and thereby delayed the completion of the construction of the Mall; that contrary to the terms and conditions of the agreement to sell dated 13.12.2006, the accused no. 1 to 3 and their employees failed to pay assured rental income/return at the rate of Rs.135/ per square feet per month thereby causing wrongful pecuniary loss to the petitioners/complainants; that instead of paying the assured rental income, accused no.1 and 3 and their employees insisted upon the petitioners/complainants to give unconditional powers to them for leasing out their shops in the Mall to whomsoever the accused persons wanted and on such terms and conditions that the accused persons would think to be appropriate; that on inducement by accused no.2 and 3 in pursuance of their malafide intention, nefarious designs and ulterior motives certain documents were got signed from the petitioners/complainants and to their utter shock so received a rent from accused no. 4 M/s Sea Shore Pvt. Ltd. introducing itself as tenant in the unit/shop belonging to the petitioners/complainants without their knowledge or consent Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 5 of 14 6 inducted by accused no.1, 2 and 3 and their employees; that although the petitioners/complainants lodged a protest with the accused no. 1 to 3, the accused persons insisted to accept M/s Sea Shore Pvt. Ltd. as their tenant being a reputed brand till such time accused no.1 was in a position to pay agreed rental to the petitioners/complainants.
4. The grievance of the petitioners/complainant is that after paying rent for few months, accused no.4 company stopped paying rent and on inquiries made, the accused no.1 to 3 and their employees informed that M/s Sea Shore Pvt. Ltd. Had contracted out of the MOU and the petitioners/complainants could take possession of the demised shop;. It is alleged that neither the construction of the Mall was completed nor possession of any shop or portion of the Mall had been given nor any completion certificate had been obtained from MCD and on inquiries they found that accused no.4 company was a puppet company of accused no.1 and the Directors of the two companies were in collusion with one another to defraud the petitioners/complainants; that the petitioners/complainants had made huge investment in the project and the accused persons have cheated them and have misappropriated the invested amount.
5. On the said application u/s 156 (3) Cr.P.C., Ld. MM called for "Action taken report" from the SHO concerned which was filed inter alia suggesting that it was a civil dispute and Ld. MM vide impugned order dated 06.11.2012 dismissed the application u/s 156 (3) Cr.P.C. primarily on the ground that the dispute between the parties appears to be of civil nature relying upon decision in M/s Skiper Beverages Pvt. Ltd. v. State (2001) IV AD (Delhi) and case of Dr. V. P. Sharma v. State (NCT of Delhi) (2009) X AD Delhi 701, However having dismissed the application u/s 156 (3) Cr.P.C., the petitioners/complainants were allowed to lead presummoning Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 6 of 14 7 evidence to show that there are grounds to proceed against the accused persons.
GROUNDS OF CHALLENGE IN REVSIONS
6. In the present seven revision petitions more or less ditto grounds are canvassed assailing the impugned order inter alia to the effect that the Ld. MM failed to appreciate that the lease agreement between the respondents/accused no. 1 and 3 and accused no.4 was void ab initio and non est in law in as much as fraud was played upon the petitioners/complainants and rent was only paid for few months just to keep them silent and thereby gaining time for the accused persons to misappropriate the entire amount invested by them in the project; that rent was paid by accused no.4 which was a sham company without taking over the possession of any shop or unit in the Mall and without doing any business with the ulterior motive to defraud the petitioners/complainants; that accused no. 2 and 3 lured and induced the petitioners/complainants to invest their hard earned money after promising "assured return" on the same and miserably failed to keep up to their promise right from the date of entering into agreement; that Ld. MM failed to consider the relevant terms and conditions of the agreement to sell the comprehensive reading of the which would make it clear that accused no. 2 and 3 have dishonest intention right from the beginning to cheat the petitioners/complainants; that Ld. MM failed to appreciate that petitioners/complainants are in no position to collect evidence in regard to the association of the Directors/complainants of accused no. 1 and accused no.4 company which could only be investigated by a specialized investigating agency particularly to find out when criminal conspiracy was hatched as amongst them and that how the funds were utilized and transferred as amongst them; and that such information Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 7 of 14 8 can not be obtained by the petitioners/complainant from the ROC or from any other government department.
LEGAL SUBMISSIONS
7. Suffice to state that Mr. Dhanesh Relan, Ld. counsel for the petitioners/complainant referred to the terms and conditions of the agreement to sell dated 13.12.2006 and pointed out that at the time of execution of documents it was represented that MOU had been settled with lessees of reputed brands and the accused persons promised for assured return and out of the blue accused no.4 company was introduced to whom the entire Mall was given on rent without their consent or knowledge and for few months rent was paid as a camouflage just to buy some time for the accused no.1 to 3 and their employees besides Director of accused no.4 to misappropriate the amount that had been invested by the petitioners/complainant besides other investors.
8. Per contra Mr. Tanmya Mehta, Ld. counsel for the respondents no. 1 to 3 argued that the petitioners/complainants have suppressed a material fact that they have already filed a civil suit in regard to the same cause of action in High Court of Delhi so much so that settlement has already been arrived at between their client and some of the investors parties; and that the manner in which the agreement to sell has been interpreted by the petitioners/complainant is totally erroneous as his clients had only come out with a bonafide business project and there was no bondage or obligation on their part to pay any rent to the petitioners/complainants in perpetuity. It was urged that accused no.4 company was a genuine company and the deal did not fructify with them and thus no criminal liability could be fastened on respondents no. 1, 2 and 3. Mr. Mehta, Ld. counsel has relied on decisions in Satyender Tewari v. State, 2011 (1) AD (Delhi) 373, Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 8 of 14 9 Joginder Singh v. Ramanand, 2011 (1) JCC 75 of Delhi High Court.
9. I have given my thoughtful consideration to the submissions made by Ld. counsel for the parties and I have also perused the relevant record of the case.
DECISION
10. First thing first, the plea of the Ld Counsel for the petitioners/revisionists that respondents have no right to be heard in revision can not be sustained in view of the decision of the Supreme Court in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 at page 540, where in the context of Section 401(2) of the Code it was held that opportunity of hearing is mandated to parties concerned before a decision is made by the court under its revisional powers.
11. Secondly, the plea of Mr. Tanmaya Mehta that in view of pendency of civil proceedings in the High Court of Delhi between the same parties, the instant criminal proceedings do not lie, can not be legally sustained. In the case of it was held in In Alpic Finance Ltd.v. P. Sadasivan[(2001) 3 SCC 513, that:
"....When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence under Section 420 IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 9 of 14 10 man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence........."
12. Thus mere fact that civil proceedings between the parties are pending in the High Court of Delhi, does not render these proceedings infructuous or non est in law. As regards the parameters for exercise of power u/s 156(3) of the Code, in the case of Tula Ram and Ors. v. Kishore Singh, (AIR 1977 SC 2401) the following legal propositions were propounded: ".... 1. That a Magistrate can order investigation under S. 156(3) only at the precognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.
13. It was further held that where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
(d) In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 10 of 14 11 investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
(e) Where a Magistrate orders investigation by the police before taking cognizance under S. 156 (3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above."
14. Curtailing unnecessary legal discourse, it is suffice to state that in case of Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. (1976) 3 SCC 252 : (AIR 1976 SC 1672),it was observed that Magistrate is not bound to take cognizance on receiving the complaint and the power is discretionary and the Magistrate may exercise such power where the allegations disclose commission of a cognizable offence and the forwarding of the complaint to the police for investigation u/s 156 Cr.P.C would be conducive to justice and save the valuable time of the Court.
15. Coming to the instant case although the finding of the Ld. Trial Court that case is primarily of a civil nature must be considered to be a tentative one and not yet conclusive, apparently no other reason has been advanced for dismissing the relief u/s 156(3) of the Code. Anyhow, such reasons can be culled out and it appears that by and large all the evidence including documentary in nature are in the possession and control of the petitioners/complainants. The petitioners/complainants have come to the court belatedly seeking redressal under the criminal law as admittedly the possession of the shop had not been handed over by 1st July 2007 contrary to the agreement and accused no. 4 company stopped paying rent w.e.f April 2009. The complaint u/s 156 (3) of Cr.P.C. at this stage does not Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 11 of 14 12 disclose any ground of urgency that would require the assistance of the investigating agency. The petitioners/complainants can very well summon appropriate witnesses in their pre summoning evidence to show that accused no.4 was a fictitious company which never run its operation by calling relevant record from Registrar of Companies and other government authorities.
16. It is needless to point out that after recording evidence, the Magistrate, if he deems fit, may exercise his powers u/s 202 Cr.P.C. and take the assistance of the police or other investigating agency, as may be required, for collection of vital evidence. To my mind, it does not lie in the mouth of the petitioners / complainants to insist that the Magistrate was bound to pass an order u/s 156 (3) of Cr. P.C, particularly in the circumstances surrounding the instant case where the petitioners / complainants have approached the Court belatedly and no allegations are made that the respondents are likely to destroy or temper with the evidence. Reference in this connection can also be had to the Full Bench decision in the case of Panchabhai Popotbhai v. State of Maharashtra, 2010 Crl. L. J, 2727.
FINAL ORDER:
17. In the facts and circumstances of the case explained above, I do not find that Ld. MM has committed any illegality or impropriety or has followed any incorrect procedure. In the said view of the discussion, the present revision petition no. 23/13 besides the other criminal revision petitions referred above are dismissed. In the facts and circumstances of the case where petitioners/complainants appear to gullible investors who have suffered pecuniary losses, I am not imposing any costs.
Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 12 of 14 1318. It is directed that the main copy of this order be placed in criminal revision petition no. 23/13 and its signed photocopy be placed in other criminal revision petitions. A copy of this order alongwith Trial Court Record be sent back to the court concerned to proceed as per law. The parties are directed to appear before Ld. MM on 14.08.2013 for recording of pre summoning evidence .
19. The present criminal revision alongwith other criminal revision petitions be consigned to record room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA) TODAY i.e. 01.08.2013 ASJ01/PHC/NEW DELHI DISTRICT .... ..... Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 13 of 14 14
CR NOs. 23/13 , 10/13, 08/13, 24/13, 11/13, 80/13 and 09/13 ARUN SAXENA & ORS. ....... PETITIONERS V. M/S TODAY HOMES AND INFRASTRUCTURE PVT. LTD. AND OTHERS ....... RESPONDENTS/ACCUSED 01.08.2013 Present: Mr. Dhanesh Relan, Advocate for the petitioners/revisionists in all the revisions except CR No. 80/12 Mr. Joginder Sukhija, Mr. Shailender Babbar, Mr. Ajay Jain, Advocates for petitioners/revisionists in CR No. 80/12 Mr. Tanmaya Mehta and Mr. Sanjay Abbot, Advocates for respondents no. 1, 2 and 3.
None for the remaining respondents.
Vide separate order of even date, I do not find that Ld. MM has committed any illegality or impropriety or has followed any incorrect procedure. In the said view of the discussion, the present revision petition no. 23/13 besides the other criminal revision petitions referred above are dismissed. In the facts and circumstances of the case where petitioners/complainants appear to gullible investors who have suffered pecuniary losses, I am not imposing any costs.
It is directed that the main copy of this order be placed in criminal revision petition no. 23/13 and its signed photocopy be placed in other criminal revision petitions. A copy of this order alongwith Trial Court Record be sent back to the court concerned to proceed as per law. The parties are directed to appear before Ld. MM on 14.08.2013 for recording of pre summoning evidence .
The present criminal revision alongwith other criminal revision petitions be consigned to record room.
(DHARMESH SHARMA) ASJ01/PHC/NEW DELHI DISTRICT Arun Saxena v. Today Homes Infrastructure Pvt. Ltd. & Ors. Page 14 of 14