Delhi District Court
Surinder Kumar Khanna vs . State & Other on 20 November, 2012
Surinder Kumar Khanna Vs. State & Other
CR No. 10/12
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
1. Surinder Kumar Khanna
S/o Sh. Brij Mohan Khanna
R/o B188, Naraina Vihar
New Delhi28 ...Petitioner
VERSUS
1. State
(NCT of Delhi)
2. Ramesh Gupta
S/o Sh. Kashmiri Lal
R/o B150, Naraina Vihar
New Delhi28 ... Respondents
CR No. 10/12
Date of Institution: 21.01.2012
Reserved for orders on: 29.09.2012
Judgment announced on: 20.11.2012
JUDGMENT
1. Vide this order, I shall dispose off the revision petition filed by the petitioner against the impugned order dated 05.10.2011.
2. Brief facts of the case are that respondent No.2/accused approached the petitioner/complainant for the sale of the 2nd and 3rd CR No.10/12 -:1:- 20.11.12 Surinder Kumar Khanna Vs. State & Other CR No. 10/12 floor of the property bearing No.B150, Naraina Vihar, New Delhi28 (hereinafter referred to said property) and the petitioner agreed to purchase the 2nd and 3rd floor of the said property qua the total consideration of Rs. 80 lacs from the undertaking/representation of the accused/respondent no.2 with the said property free from all encumbrances, burden, decree, sale, mortgage, gift, lien, liability, injunction orders, legal flaws, litigation, stay orders from any court of law in India, attachment or transfer etc and petitioner entered into agreement dated 13.08.2010 in respect of the 2nd and 3rd floor of the said property and paid a byana amount of Rs. 10 lacs and the balance sale consideration is Rs. 70 lacs at the time of vacant and peaceful possession of the 2nd and 3rd floor of the property on or before 31st August 2010 alongwith execution of all titled deals in favour of the petitioner. It was further agreed upon that the petitioner was to pay Rs. 20 lacs to the respondent No.2 who had agreed to handover physical possession of half of the property in question and balance sale consideration of Rs. 50 lacs was to be paid by the petitioner after handing over of the entire possession of the 2nd and 3rd floor of the said property to the petitioner and in terms of the settlement, the complainant/petitioner paid an amount of Rs. 20 lacs to respondent No.2 on 19.08.2010 against receipt but the respondent No.2/accused failed to handover the physical possession of the half of the property even if taking Rs. 20 lacs amount from the petitioner on 19.08.2010.
3. It is further alleged that the respondent No.2 has committed breach of the terms and conditions of the agreement to CR No.10/12 -:2:- 20.11.12 Surinder Kumar Khanna Vs. State & Other CR No. 10/12 sell and the petitioner/complainant has filed suit titled as Surender Kumar Klhanna v. Ramesh Gupta bearing civil suit (OS 2159/10). It is further alleged that at the time of entering into the agreement to sell in respect of the said property, the respondent No.2 has misrepresented the petitioner that the title of the property is clear and the same is free from all sort of encumbrances, burden, mortgage, liability litigation etc. But the said representation made by the accused/respondent No.2 was found to be false, frivolous as the official of MCD came to the said property on 12.01.2011 and punctured the sealing/lenter of the 3rd floor of the said property on the ground that said construction was unauthorised and made without any prior sanction of the MCD. It is further alleged that the petitioner inquired about the said alleged illegal constructions over the said property from the MCD and it transpired that the MCD has issued show cause notice dated 25.11.2010 regarding the unauthorised and illegal construction of the 2nd and 3rd floor on the said property but the respondent no.2 neither took any subject to compound the said constructions but misrepresented and committed the fraud upon the petitioner in not disclosing the state of facts as respondent no.2 was aware with the said construction over the said property was not permissible and yet he had constructed 2 nd and 3rd floor and thereafter misrepresentedl the said fact to the petitioner that the said construction over the said property is legal. Thereby the petitioner is being cheated by respondent No.2.
4. Feeling aggrieved by the impugned order, the present CR No.10/12 -:3:- 20.11.12 Surinder Kumar Khanna Vs. State & Other CR No. 10/12 petition has been filed.
5. On the other hand, Ld. Addl. PP for the State has contended that no ground is made out to entertain the complaint and issued under section 156(3) Cr.PC as no document is required to be recovered for which custodial interrogation is required and application under section 156(3) Cr.PC has been rightly dismissed and the complaint has been rightly dismissed.
6. It is further submitted by the counsel for the petitioner that it was very much in the knowledge of respondent No.2 that the said construction was illegal as per MCD rules and despite having knowledge of the above said facts, he had misrepresented the factual possession in as much as he entered into agreement to sell wit the complainant/petitioner qua 2nd and 3rd floor constructed over the said property with the specific knowledge of the accused/respondent No.2 to be illegally constructed. Therefore intention of the respondent No.2 from the very beginning was to cheat the petitioner/complainant and such dishonest intention tantamounts to cheating within he meaning of section 415 IPC. It is further stated frivolous misrepresentation made by respondent No.2 to the petitioner clearly depicts the suppression of fact by accused intentionally. It tantamounts to cheating within the four corners of law. In this regard he had relied upon: Pushpa Devi v. State & Anr. 69(1997) DLT 381.
CR No.10/12 -:4:- 20.11.12 Surinder Kumar Khanna Vs. State & Other CR No. 10/12
7. I have heard counsel for the parties and gone through the record.
8. As per the averments made in the complaint, it appears that the accused/respondent No. 2 has suppressed the material facts with regard to the legality of the construction raised by the accused/respondent No.2 over the 2nd and 3rd floor of the said property. Even in the testimony of CW1 and CW2 is to the effect that he accused/respondent No.2 has misrepresented the factual position to the petitioner. Even in Pushpa Devi (supra) in para 6, it has been observed as under:
Coming to the question as to whether petitioner No.1 has been specifically named or not and if not, to what effect, my attention has been drawn by the ld counsel for the petitioner to two judgments of the supreme court. They are Lala Ram & others v. State of U.P.JT 1990(1) S.C.169 and Pandurang & Ors v. State of Hyderabad; AIR (1955) SC 216. In fact, the judgment of 1990 relies upon the observations made in Pandurang's case that unless a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions at their face value. I feel that these observations are clearly of no help to CR No.10/12 -:5:- 20.11.12 Surinder Kumar Khanna Vs. State & Other CR No. 10/12 the petitioners in the present case as not only in the complaint but in the evidence too (see statement of Amit Judge, CW2), the petitioner is specifically referred to as one of the persons having made misrepresentation and having suppressed material information from the complainant.
9. Similarly it is settled law that civil and criminal proceedings are not mutually exclusive and both proceedings can go simultaneously. In this regard, I found support from M/s Medche Chemicals & Pharma Pvt. Ltd vs. M/s Biological E.Ltd (2000) II SLT 414, Ram Jas vs. State of UP 1970 (2) SCC 746 and Rinkish vs. State of UP 2011 Cr.LJ 162 (Allahabad).
10. It is also pertinent to note it down that the agreement to sale/receipt contains a clause to the effect that the seller hereby affirm and assures the purchaser, that the above mentioned property under sale is free from all sorts of encumbrances, burden, decree, sale, mortgage, gift, lien, liability, injunction orders, legal flaws, litigation, stay orders from any court of law in India, attachment or transfer etc CR No.10/12 -:6:- 20.11.12 Surinder Kumar Khanna Vs. State & Other CR No. 10/12 but the MCD has issued notice for demolition of the 2nd and 3rd floor of the said property. Therefore, the question whether at the time of entering into agreement to sell, the respondent was having knowledge of such alleged illegal construction on the 2nd and 3rd floor of the said property is material issue to be adjudicated upon and to find out whether the accused was having dishonest intention and had defrauded the petitioner by not disclosing the said fact to the petitioner. In my opinion, matter needs to be reconsidered afresh by Ld. Trial Court in view of the above said prospective of the facts in the present case.
11. From the above discussions, I am of the opinion that revision petition be allowed and is hereby allowed and impugned order set aside and matter is remanded back to Ld. Trial Court to decide afresh.
12. Needless to say that nothing stated herein shall tantamount to an expression of my opinion on the merits of the case.
13. TCR and copy of the order be sent to the Ld. Trial Court for information and compliance.
14. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya) on the 20th Day of November 2012 ASJ/ Dwarka Courts/New Delhi CR No.10/12 -:7:- 20.11.12