Delhi District Court
Sh. Gokul Kumar vs State on 9 June, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 557/2018 (RBT 45/2022)
IN THE MATTER OF:
1. Sh. Gokul Kumar
R/o D-21, Indra Enclave,
Neb Sarai, New Delhi 10018.
2. Nirvana Nest Buildcon Pvt. Ltd.
Registered address:
D-35, Indra Enclave,
Neb Sarai, Delhi 110018.
........... Revisionists
Versus
1. State
Through Govt. of NCT of Delhi
Delhi.
2. Sh. Devender Singh Mann
S/o late Mr. Joginder Singh Mann
R/o Wansbeck, Traps Lane,
New Maidan, Surrey, UK, KT34SQ.
........... Respondents
Instituted on : 20.12.2018
Reserved on : 03.05.2023
Pronounced on : 09.06.2023
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Digitally
signed by
SUNIL SUNIL
Date:
GUPTA
GUPTA 13:18:16
2023.06.09
+0530
JUDGMENT
1. Vide this judgment, I shall dispose of the present revision petition under Section 397 Cr.P.C. preferred by revisionists Mr. Gokul Kumar and Nirvana Nest Buildcon Pvt. Ltd. against the order dated 02.05.2018 of Ld. CMM (South) whereby they both have been summoned for the offences U/s 420/403/468/471 IPC in Crl. Complaint No. 463491/2016 titled as "Devinder Singh Mann Vs. Gokul Kumar & Anr.".
2. Brief stated the facts as per record are as under:-
A complaint U/s 156(3) Cr.P.C r/w Section 200 Cr.P.C was filed by the respondent before Ld. Trial Court on 04.07.2015 praying to police to register an FIR against the revisionists for the offences U/s 420/ 409/ 467/ 468/471/120B IPC. It was alleged that the respondent no.2 (hereinafter referred to as respondent) was a person of Indian origin and was a United Kingdom passport holder residing in U.K. Respondent alongwith co- investors wanted to invest money in the real estate sector in India. On understanding his intentions for making investments in business, revisionist approached his friend Mr. Jasjit Singh Dhami (he is also a resident of U.K) and induced him alongwith respondent to entrust him the task of development of projects in Goa. Revisionist no.1 made them to believe that he will use his company i.e., revisionist no.2 for the completion of the project and will handover the project after building the same in all respect as per the plans and specifications provided by them including group of investors from India and UK in time bound manner without any delay. They were assured that he would work in transparent manner and would Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 2 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.06.09 13:18:23 +0530 issue share holdings against each of the investments which will be routed through his company. Revisionist no.1 has shown them a number of plots in North Goa. He showed himself as a successful and experienced builder. In order to win their confidence, he showed them various buildings and projects in Goa and represented the same as developed by him. After viewing a few plots and being influenced by the representations made by revisionist no.1, Mr. Jasjit Singh Dhami with the consent of the respondent and others decided to proceed with the plot at Nagoa. It was agreed between them that revisionist no.1 would buy this plot for over Rs. 1 crore and would charge them Rs. 20,000/- per square meter for land cost, build cost and his profit. It was also agreed that revisionist no.1 would build 104 apartments/studios in the plot and he would not invest time and money in selling them and that would be completely their job. It was also promised by revisionist no.1 that he would do all legal works whatever necessary and the project will be executed in a time bound manner in construction liked plan. Therefore, the said project was profitable beyond all stretches of imagination. Revisionist no.1 also made them believe that since the said plot was a settlement land therefore the permissions were easy to get. Village panchayat gave no objection approval for the acquisition of the said land on 10.02.2008. In pursuance to the same, respondent transferred a sum of 240,018 GBP equivalent to Rs. 19,100,700/-. When they had started commencing transfer of funds for the development of project, Mr. Gokul Kumar coined new proposal that rather than having studio apartment, it would be better to have a hotel which can be built at the same price and he would become a 50% partner in the entire project and he would inject 50% of the funds accordingly. He persuaded them that they without paying anything extra, the profit in this way would go much higher with no hassles Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 3 / 15 Digitally signed by SUNIL SUNIL GUPTA Date:
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and risk. After relying the same, they got ready and after a few discussions and meetings with revisionist no.1, they agreed to build a hotel on a 50:50 basis. Revisionist no.1. represented to them that he would only have a share in the profit. That he would do all the legal formalities required and also will issue necessary shareholdings showing their rights and interests in the company as per law and make necessary changes in the book of accounts etc. He also promised that he will periodically inform them by sending complete accounting showing expenditure of the building work progress. They expedited the release of money in terms of said representations and his promise that the project would be completed within 2 years.
3. It was alleged that revisionist no.1 never explained anything about the construction of the project in detail and in one of the visits to Goa, they found that very less work was done on the site and in the name of construction only the shell was being done. On their resentment, they were informed by revisionist no.1 that more money was needed to be borrowed as it was costing more than expected and that he had taken steps to get the loan. Respondent reminded him of his representations about his being builder who never fails in making assessment. They also asked about the accounting of the funds and expenditures which were made by them at that time. To support and corroborate his demands for the additional funds he flatly refused to disclose anything. They warned him clearly not to take loan from bank, however they were never informed about the money and nature of borrowings, which he made from the market. They came to know later on that he has created charge on the hotel and took loans from the banks to the tune of Rs. 9 crore and 45 lacs from Punjab National Bank in Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 4 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.06.09 13:18:35 +0530 December 2009 and thus pocketed the huge money that he collected in the name of building hotel and actually did not pay anything from his own pocket.
4. It was further alleged that revisionist no.1 requested them to find extra Rs. 5 crore to finish project as the whole project was to cost around Rs. 10 crore. In the year 2011, when the project was finished in the month of December, he again asked the revisionist to deposit a sum of Rs. 5-7 lacs each on monthly basis for a few months as hotel would take time to getup and running. On Christmas of 2011, they found later on that the hotel was fully booked and had made enough money to pay for the loan etc. however under the pressure of revisionist no.1, Mr. Jasjit Singh Dhami did manage to put across Rs. 45 lacs through his relatives. It has been alleged that despite their repeated requests, the revisionists never furnished accounts and they were kept in complete dark. Revisionist no.1 even ignored to meet them without assigning any reason. Later on, one surveyor Mr. Lloyd Mercado was engaged by respondent and other investors and as per him, the costing for the hotel in 2013 came to be Rs. 13 crores including all internal furniture with swimming pool (excluding land cost). Respondent was convinced that he alongwith his associates has been cheated by the revisionists. A complaint in this regard was made to several police stations and same was brought to the notice of superior officers also, however no action was taken. Accordingly, a complaint U/s 156(3) Cr.P.C. r/w Section 200 Cr.P.C. was filed before Ld. CMM, South on 07.07.2015.
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5. The matter was taken by Ld. CMM on 09.07.2015. During the course of the proceedings, the application U/s 156(3) Cr.P.C was withdrawn by the respondent on 09.03.2016 and same was accordingly dismissed as not pressed. Cognizance of offences as mentioned in the complaint was taken by Ld. Court and thereafter matter was fixed for pre-summoning evidence. The respondent examined six witnesses in support of his case:-
(i) CW-1 Sh. Davinder Singh Mann is the respondent. He deposed in detail about the alleged wrong done by the revisionists. He had produced copy of photograph of ardas where the hotel was to be built which is marked as Mark CW1/A (colly). A copy of e-mail communications made between CW-1 and Mr. Gokum Kumar dated 23.06.2016, 26.06.2012, 28.06.2012, 01.07.2012, 04.07.2012, 11.07.2012, 12.07.2012, 13.08.2012, 26.08.2012 and 11.04.2014 marked as Mark CW1/B. Copy of one specific e-mail dated 12.07.2012 as Mark CW1/C/. Copy of e-mail dated 13.08.2012 alongwith detail of Nagoa Grande Hotel marked as Mark CW1/D. Statements of account of Bank showing the transfer of GBP 1,40,000/- on 29.09.2007 and GBP 60,000/- on 20.12.2007 to Nirvana Next Buildcon Pvt. Ltd and third payment of GBP 40,000/- on 25.01.2008 from Halifax Bank to Nirvana Nest Buildcon Pvt. Ltd marked as Mark CW1/E. Copy of the receipt of International Payment Confirmation marked as Mark CW1/F/. A report of fraudulent nature prepared by a quantity surveyor namely Mr. Saldanah appointed by Mr. Gokul Kumar which is marked as Mark CW1/G. Mr. Jasjit Singh Dhami's travelled tickets and invoices dated 22.06.2012, 06.08.2012, 25.09.2012, 03.12.2012, 07.12.2012, 20.03.2015. The said invoices are marked as Mark CW1/I. Form 2 of year 2009 which is showing the allocation of shares marked as Mark CW1/L. Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 6 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.06.09 13:18:47 +0530 The balance sheets of the said company dated 31.03.2007, 31.03.2008, 31.03.2009, 31.03.2010, 31.03.2011, 31.03.2012, 31.03.2013, 31.03.2014 and 31.06.2015 marked as Mark CW1/M. Copy of passport and copy of card of people of India origin Ex.CW1/A3 and Ex.CW1/A4.
(ii) CW-2 Sh. Jasjit Singh Dhami, is a friend of respondent and he deposed similar to the deposition of CW-1.
(iii) CW-3 Sh. Manoj Kumar Verma, was a Company Secretary in Whole-time practice and he was examined as an expert witness. He deposed in detail about the infirmities found by him in the books/documents pertaining to revisionists on instructions of respondent.
(iv) CW-4 Sh. Ayush Gupta, was a clerk from Bank of India, Rajender Place Branch, New Delhi. He produced the relevant record (Ex.CW4/A collectively).
(v) CW-5 Sh. Koushik Goswami, was Assistant Manger, Standard Chartered Bank, Gurgaon. He also produced relevant record which was marked as Ex.CW5/A, Ex.CW5/B and Ex.CW5/C.
(vi) CW-6 Sh. V.D. Sharma, was a Senior Officer, ICICI Bank, Connaught Place, Delhi. He produced the relevant record which was marked as Ex.CW6/A and Ex.CW6/B.
6. After that pre-summoning evidence was closed. After considering the testimonies of witnesses on record alongwith other material, the then Ld. CMM vide order dated 02.05.2018 held that a prima facie case for offences U/s 420/403/468/471 IPC was made out against the revisionists.
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GUPTA GUPTA 2023.06.09 13:18:53 +0530 They were ordered to be summoned for the said offences. That order is being challenged in these proceedings.
7. Arguments heard from the the sides.
8. It has been argued by Ld. Counsel for the revisionists that Ld. Trial Court has passed the impugned order without properly appreciating the facts and law applicable thereupon. It was submitted that the criminal case was not maintainable before Ld. Court in Delhi as a similar complaint at the instance of one Mr. Jasjit Singh Dhami was already pending before the Court concerned in Goa. It was submitted that a civil suit bearing no. 47/2017 was filed by Mr. Jasjit Singh Dhami in Ld. Court concerned in Goa and later on liberty was sought to withdraw the same and to institute/file fresh proceedings before National Company Law Tribunal. It was submitted that respondent has filed the present matter in Delhi just to harass the revisionists as both the civil suit and criminal complaint are already pending in Goa. It was further submitted that the entire dealing was done by revisionist no.1 with Mr. Jasjit Singh Dhami and he did not know the respondent herein. It was submitted that the funds might have been collected by Jasjit Singh Dhami from the respondent and other individuals but the revisionists have no concern with them. It was further argued that at the best this is a case of civil breach of contract and no criminal offence was made out. He has prayed for setting-aside of the summoning order. He has relied upon the following judgments:-
(i) Jai Singh Vs. Union of India, AIR 1977 SC 898.Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 8 / 15
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(ii) Awadh Bihari Yadav Vs. State of Bihar, AIR 1996 SC 122.
(iii) Arunima Baruah Vs. Union of India, (2007) 6 SCC 120.
(iv) S.W. Palanitkar Vs. State of Bihar, (2002) 1 SCC 241.
(v) Sardool Singh and Another Vs. Smt. Nasib Kaur.
(vi) Hridaya Ranjan Pd. Verma & Ors. Vs. State of Bihar & Anr.
2000 (4) SCC 168.
9. Per contra, it has been argued by Ld. Counsel for the respondent that there is no illegality in the impugned order. It was submitted that the proceedings in Goa have been instituted at the instance of Mr. Jasjit Singh Dhami and not that of respondent herein. It was submitted that Jasjit Singh Dhami and the respondent are two different individuals and that both can avail legal remedies as per law by instituting different proceedings and there is no bar in any law in doing so. It was further submitted that payments by the respondent were transferred to the account of revisionist no.2 company from his bank account and it cannot be claimed by respondent no.1 that he did not even know him. It was submitted that as per the provisions of the Companies Act, the investments being made by Foreign Nationals is to be shown in the books of the company which has not been so done in the present matter. He has prayed for dismissal of the revision petition. He has relied upon the following judgments:-
(i) Sonu Gupta Vs. Deepak Gupta & Ors. (2015) 3 SCC 424.
(ii) Parbhakar Vs. State of Delhi, NCT of Delhi 2007 SCC Onlilne Del 1444.Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 9 / 15
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(iii) Vishwanath Tantri (Ex-Branch Manager MHDFC, Bangalore Branch) Vs. State of NCT of Delhi, 2007 SCC Online Del 1445.
(iv) Dhananjay Sharma Vs. State of Haryana & Ors. (1995) 3 SCC
757.
(v) Murray & Co. Vs. Ashok Kumar Newatia (1000) 2 SCC 367.
(vi) U.P. Resident Employees Coop. Housing Building Society Vs. New Okhla Industrial Development Authority (2007) 15 SCC
515.
(vii) Mala @ Riya Vs. SHO, Mayur Vihar & ORS W.P. (CRL) 2480/2018.
10. I have considered the submissions from both the sides alongwith record.
11. Relevant portion of impugned order is being reproduced below for ready reference:-
"15. From depositions of witnesses examined by complainant and that of complainant himself there is sufficient evidence against proposed accused no.1 Gokul Kumar and proposed accused no.2 M/s Nirvana Nest Buildcon Pvt. Ltd. of inducing the complainant to transfer Rs. 1.91 crore in the account of proposed accused no.1 Gokul Kumar. The said money has been dishonestly misappropriated by proposed accused no.1 for his own use and has thus caused wrongful loss to the complainant. Proposed accused no.1 has in the said process forged and fabricated various documents to manipulate the Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 10 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.06.09 13:19:11 +0530 accounts. The amount received from the complainant has not been shown in the balance sheets.
16. Hence, prima facie offences u/sec 420/ 403/ 468/ 471 IPC have been committed by accused persons. Accused persons namely Gokul Kumar and M/s. Nirvana Buildcon Pvt. Ltd. are accordingly ordered to be summoned for the said offences."
12. One of the grounds taken by Ld. Counsel for revisionists for assailing impugned order is that a criminal complaint as well as a civil suit in the facts at hand is already pending before Ld. Court concerned in Goa so the complaint before Ld. Court in Delhi was not maintainable and that same has been so filed just to harass the revisionists. The factum of pendency of criminal complaint and civil suit before Ld. Courts in Goa has not been disputed by the respondent however, it is an admitted fact that those proceedings have been initiated at the instance of Mr. Jasjit Singh Dhami and not at the instance of respondent herein. It is true that the grievances of both of them against the revisionists are somewhat similar, however, the fact remains that the proceedings in Goa and in Delhi have been initiated at the instance of different individuals. It appears that there is no bar in two individuals availing their own legal remedies against a person as per law in similar facts. Ld. Counsel for the revisionists has also failed to bring any such provision to the notice of this Court. The revisionists might be finding it difficult to defend themselves at different forums in two far away places however, that alone cannot be a ground to interfere with the course of justice.
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13. Another ground taken by Ld. Counsel for revisionists is that the entire payment was received by them from Mr. Jasjit Singh Dhami and the respondent was not even known to them, so he cannot have any grievance against them. The respondent has vehemently contested this submission. In his testimony before Ld. Trial Court, he has deposed that he alongwith Mr. Jasjit Singh Dhami had met respondent no.1 in Goa between 01.08.2007 to 05.08.2007 and in between 05.12.2007 to 08.12.2007. As per him, he made investment amounting to GBP 240,000 (INR 1,91,00,700/-) which was transferred from his bank account in London and West Yorkshire to the bank account of respondent no.2 in India at Delhi and Goa. The payment to the tune of GBP 200,000 so made was proved by way of testimony of CW- 5, Mr. Koushik Goswami, Assistant Manager, Standard Chartered Bank and remaining payment of GBP 40,000 was proved by way of testimony of Mr. V.D. Sharma, Senior Officer from ICICI Bank, Connaught Place, Delhi. So, the submissions made in this regard on behalf of revisionists are not supported from record.
14. Last ground taken by Ld. Counsel for revisionists is that in any case, no offence including the offence of cheating is made out in given facts and that this is purely a dispute of civil nature which the respondent is trying to convert into criminal litigation. In Vijay Kumar Ghai vs The State of West Bengal & Ors. Criminal Appeal No. 463/2022, Hon'ble Apex Court held as under:-
"34. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this court in Hridaya Ranjan Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 12 / 15 Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.06.09 13:19:22 +0530 Prasad Verma & Ors. Vs. State of Bihar & Anr. (2000) 4 SCC 168, the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants."
15. CW-3 Sh. Manoj Kumar Verma was examined as an expert witness on behalf of respondent before Ld. Trial Court. In his testimony, he has stated several facts giving rise to a prima facie case for alleged offences against the revisionists. Some of those facts are mentioned below:-
(i) The investment made by the respondent was not reflected in the documents of revisionist no.2 company.
(ii) On 09.10.2009, 7 lacs shares were allotted to Mr. Rishab Jain (one of the existing directors of respondent no.2 company) at nominal face value at Rs. 10/- per share without any premium however, on the next day i.e., 10.10.2009, 3 lacs shares of face value of Rs. 10/- each were allotted to one Mr. Jass Dhami S/o Dilbag Singh Dhami at premium of Rs. 75/- per share without taking his prior consent. Charging Rs. 75/- premium on a share of Rs. 10/- each on next day was stated to be highly suspicious because a company cannot grow 7.5 times in a span of one night.
(iii) The name and address mentioned on the share allocation form dated 10.10.2009 does not match with anyone.
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SUNIL GUPTA
GUPTA Date:
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(iv) The share allocation has to be done within 60 days from the receipt
of application money/investment from concerned investors however, same has not been so done qua the respondent till date.
(v) From balance sheet as on 31.03.2011, details of loans have been mentioned in fictitious names.
16. Ld. Counsel for revisionists has not made any submission qua allegations mentioned above. He has made a general argument to the effect that at best, only a civil breach of contract can be said as having been made out in the present matter, however, it is clear from above that the allegations are sufficient to make out a case for alleged criminal offences as well. The judgments being relied upon on behalf of revisionist are distinguishable on facts.
17. It is settled law that while exercising the power of revisional jurisdiction, this Court can interfere only when the impugned order is perverse or untenable in law. Reliance is placed upon judgment of Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :-
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as Cr.Rev. 557/2018 Gokul Kumar & Anr. Vs. State& Anr. Page 14 / 15 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.06.09 13:19:34 +0530 an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
18. Considering the above, this Court is of the view that Ld. Magistrate has passed the impugned order after considering entire material on record and there is no illegality so as to justify interference by this Court in revisional jurisdiction.
Accordingly, the revision petition stands dismissed.
Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
2023.06.09
13:19:42 +0530
Announced in the open (Sunil Gupta)
Court on 9th June, 2023 Additional Sessions Judge-06
South, Saket Courts, New Delhi
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