Delhi District Court
State vs . Tejwant Singh & Others on 15 February, 2020
IN THE COURT OF SH. NAVJEET BUDHIRAJA,
ACMM01, NEW DELHI DISTRICT, PATIALA HOUSE COURT,
NEW DELHI
FIR No.363/91
PS : Connaught Place
U/s : 420 IPC
State Vs. Tejwant Singh & others
Unique ID No. : 40134/16
Date of institution of case : 09.09.1992
Date of reserving the judgment : 14.01.2020
Date of pronouncement of judgment : 15.02.2020
JUDGMENT
1. S. No. of the Case : 37/2/96
2. Date of Commission of Offence : In and before year 1991
3. Name of the complainant : Col. Jaswant Singh,
S/o Sh. Harnam Singh,
R/o 10, Westend Colony,
New Delhi.
4. Name,parentage & address of accused : (1) Sardar Tejwant Singh, S/o Sh. Harbans Singh, (2) Surinder Kaur, W/o Sh. Tejwant Singh, (3) H.S. Sarana, S/o Sh. B. S. Sarana, (4) M/s Skipper Tower Pvt Ltd, 22, Barakhamba Road, New Delhi.
(Through Sardar Tejwant Singh, Director), (5) M.S. Sabbarwal, S/o Sh. G. S. Sabbarwal,
5. Offence complained of : U/s 420 IPC
6. Plea of Accused persons : Pleaded not guilty
7. Final Order : Skipper Towers Pvt. Ltd. (convicted) FIR No. 363/91 State Vs. Tejwant Singh & Others 1/37
1. This judgment adverts to case FIR No.363/91 registered U/s 420 of Indian Penal Code, 1860 (IPC) against accused persons namely M/s Skipper Tower Pvt. Ltd, Tejwant Singh and Surender Kaur.
2. Long and short of the case of the prosecution is that the complaint dt. 12.04.1991 was given to SHO of PS:Connaught Place by Sh. Jaswant Singh, as per which an association was formed by flat buyers which lodged a complaint for registration of FIR against the builders. The complaint related to specific cases regarding 2025 different spaces which were sold by the builders to two or more persons. Further, it was stated that builders had mischievously sold all the area which did not exist and large number of transaction were made in connection with area that was already sold to M/s Jain Shudh Vanaspati which in turn mortgaged the entire area to Punjab & Sind Bank in lieu of the loan taken by them. It was further submitted that the entire area of 8th and 9th floor were sold to M/s Jain Shudh Vanaspati. Thus, there was no space available for resale of the said floor. In this manner, builders had cheated number of investors of their hard earned money and therefore, case of cheating is made out against the builders.
3. The present FIR was registered pursuant to the above complaint and investigation was carried out by IO/SI Rajender Bhatia. After completion of formalities, recording of statement of witnesses, seizure of relevant documents, accused Tejwant Singh, Surinder Kaur, H. S. Sarna, M. S. Sabharwal, M/S Skipper Tower Pvt Ltd came to be chargesheeted. Cognizance of the offence was taken and accused persons were summoned by order dated 9.09.1992. Accused persons appeared before the court and they were admitted to bail and the copy of FIR No. 363/91 State Vs. Tejwant Singh & Others 2/37 charge sheet and documents were supplied to accused person in compliance to Section 207 of Criminal Procedure Code, 1973 {for short Cr.P.C}.
4. During proceedings, accused M S Sabharwal expired and proceedings against him were abated. Accused H S Sarna was discharged by order dated 11.02.2013. Charges were framed against M/s Skipper Towers Pvt Ltd, through its director Tejwant Singh, Tejwant Singh and Surinder Kaur being directors of M/s Skipper Towers Pvt. Ltd. for offence punishable under Section 420 of IPC to which all the accused persons pleaded not guilty and claimed trial.
5. It is pertinent to mention that till 01.04.2013, the company i.e. accused number 4 namely M/s Skipper Towers Pvt. Ltd.was being represented during trial, however during Prosecution evidence after 11.04.2014 there was no appearance on behalf of accused number 4 namely M/s Skipper Towers Pvt. Ltd.. On 30/10/2013 the IO through a report informed that accused number 4 M/s Skipper Towers Pvt. Ltd. was under liquidation as per orders of Honorable High court of Delhi and official liquidator had been appointed vide order dated 11/12/2013. It was held, that since the accused company M/s Skipper Towers Pvt. Ltd. was in liquidation and official liquidator had been appointed, he shall be representing the company. Furthermore vide order dated 17/2/2017 it was observed that the accused company was no longer in liquidation and an application was moved on 16/03/2017 that the accused company M/s Skipper towers Pvt. Ltd. be represented through accused no. 1 Tejwant Singh who was its director. On 14/06/2019 it was informed to this court that M/s Skipper Towers had been dissolved and its name had been struck off from the Registrar of Companies (ROC). The relevant record of ROC wherein accused company had been dissolved is placed on record.
FIR No. 363/91 State Vs. Tejwant Singh & Others 3/37
6. During trial the prosecution examined 12 witnesses in all, however testimony of two of the witnesses could not be completed as PW1 Sh. Rajeev Gupta after recording his part examination in chief could not appear due to his indisposed state owing to impaired physical and mental condition. PW2 Ms Indu Grover also could not complete her testimony as she got expired. PW8 Ms. Veena Arora though entered the witness box but failed to depose anything material.
7. PW3 Lal Chand Chimnani deposed in relation to booking of Flat no 809A on 04.02.1989 from M/s Skippers Sales Pvt. Ltd which was later transferred to M/s Skippers Towers Pvt. Ltd. During his deposition he got exhibited following documents i.e original letter dated 31.3.1986 which was written by director of M/s Skipper Sales PVT LTD. which is marked Ex.PW3/A, original letter dated 02.06.1986 which was written by director of M/s Skipper Sales PVT LTD having signature of the director which is marked Ex PW3/B, the original letter dated 11.7.1986 which was written by director of M/s Skipper Sales PVT LTD. having signature of the director which is marked ExPW3/C, the original letter dated 27.6.1986 which was written by director of M/s Skipper Sales PVT LTD having signature of the director which is marked ExPW3/D, the original letter dated 4.11.1986 which was written by director of M/s Skipper Towers PVT LTD having signature of the director which is marked ExPW3/E, the one telegram dated 21.11.1986 which was written by director of M/s Skipper regarding payment having signature of the director which is marked ExPW3/F, the original letter dated 24.11.1986 which was written by director of M/s Skipper Towers PVT LTD having signature of the director accompanied with statement of account related to flat 809A which is marked ExPW3/G&H, the original letter dated 27.11.1986 FIR No. 363/91 State Vs. Tejwant Singh & Others 4/37 which was written by director of M/s Skipper Towers PVT LTD which is marked ExPW3/I, the original letter dated 6.12.1986 which was written by director of M/s Skipper Towers PVT LTD regarding payment of 12 th installment having signature of the witness which is marked ExPW3/J, the original letter dated 22.12.1986 which was written by director of M/s Skipper Towers PVT LTD having signature of the director regarding payment of flat 809A which is marked ExPW3/K, the original letter dated 19.1.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards fire protection which is marked Ex.PW3/L, the original letter dated 12.2.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards marble finishing and fire protection which is marked PW3/M, the original letter dated 09.03.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards balance installment money, marble finishing and fire protection which is marked PW3/N, the original letter dated 01.04.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards marble finishing and fire protection which is marked ExPW3/O, the original letter dated 15.4.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards marble finishing and fire protection which is marked ExPW3/P, the original letter dated 11.5.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards marble finishing and fire protection which is marked ExPW3/Q, the original letter dated 6.6.1987 which was written to director of M/s Skipper Towers PVT LTD having signature of the witness towards cheque bearing no. 0794719 dated 20.6.1987 for payment of installment of flat no. 809A which is marked ExPW3/R, the original letter dated 12.6.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards payment FIR No. 363/91 State Vs. Tejwant Singh & Others 5/37 of 13th installment and further dues which is marked ExPW3/S, the original letter dated 6.8.1987 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards payment for flat no. 809A which is marked ExPW3/T, the original letter dated 12.6.1987 which was written by director of M/s Skipper Towers PVT LTD. having signature of the director towards initial deposit for electrical connection at flat no. 809A which is marked ExPW3/U. the original letter dated 2.9.1987 which was written to director of M/s Skipper Towers PVT LTD having signature of the witness towards cheque bearing no. 0794720 as per demand of the company not mentioned in the agreement for payment of installment of flat no. 809A which is marked ExPW3/V, the original letter dated 13.8.1987 which was written to director of M/s Skipper Towers PVT LTD having signature of the Amarnath Bajaj former manager of the witness which is marked ExPW3/W, the original letter dated 7.11.1987 which was written to director of M/s Skipper Towers PVT LTD having signature of the witness towards cheque bearing no. 017782 dated 27.11.1987 which is marked ExPW3/X, the original letter dated 6.1.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director in which they stated that they have received cheque bearing no.017782 dated 27.11.1987 which is marked ExPW3/Y, the original letter dated 21.1.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director regarding outstanding amount of at flat no. 809A which is marked ExPW3/Z, the original letter dated 11.2.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director regarding payment of outstanding amount flat no. 809A which is marked ExPW3/1, the original letter dated 10.03.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding payment of outstanding dues which is marked as ExPW3/2, the FIR No. 363/91 State Vs. Tejwant Singh & Others 6/37 original letter dated 12.03.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding payment of outstanding dues which is marked as Ex PW3/3, the original letter dated 26.05.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding payment of outstanding dues which is marked as Ex PW3/4, the original letter dated 03.06.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding payment of outstanding dues which is marked as Ex PW3/5, the one telegram which was written by director of M/s Skipper Towers PVT LTD regarding balance agreement having signature of the director which is marked PW3/6, the original letter dated 07.06.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding new demand for affixing black glasses on windows not mentioned in allotment letter dated 04.02.1986 which is marked as Ex PW3/7, the original letter dated 21.06.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding payment of outstanding dues which is marked as Ex PW3/8, the original letter dated 07.07.1988 which was written by director of M/s Skipper Towers PVT LTD. having signature of the director towards regarding payment of outstanding dues which is marked as Ex PW3/9, the one telegram dated 08.07.1987 which was written by director of M/s Skipper Towers PVT LTD regarding outstanding demand which is marked PW3/10, the original letter dated 14.07.988 which was written to director of M/s Skipper Towers PVT LTD having signature of the witness towards cheque bearing no. 038371 dt. 25.07.1988 and cheque no. 038372 dt. 20.08.1988 which is marked PW3/11, the original letter dated 22.07.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding payment of outstanding dues FIR No. 363/91 State Vs. Tejwant Singh & Others 7/37 which is marked as Ex PW3/12, the one telegram dated 15.07.1988 which was written by director of M/s Skipper Towers PVT LTD regarding balance payment which is marked Ex PW3/13, one telegram dated 21.07.1988 which was written by director of M/s Skipper Towers PVT LTD regarding demand of payment which is marked ExPW3/14, one telegram dated 01.08.1988 which was written by director of M/s Skipper Towers PVT LTD regarding balance payment which is marked Ex PW3/15.the original letter ref no. ST/22.BR/9966 dated 10.08.1988 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding demand of payment of outstanding dues which is marked as Ex PW3/16, the original letter dated 18.08.1988 which was written to director of M/s Skipper Towers PVT LTD having signature of the witness towards cheque bearing no. 038375 dt. 31.08.1988 and chq. no. 038376 dt. 20.09.1988 regarding electrification and black glass on windows which is marked PW3/17, the original letter ref no. ST/11095 dated 26.12.1989 which was written by director of M/s Skipper Towers PVT LTD having signature of the director towards regarding demand for air conditioning of all floors in Skipper Bhawan not mentioned in allotment letter dated 04.02.1986 marked as Ex PW 3/18, the original letter ref no. ST/22.BR/11419 dated 12.03.1990 which was written by Rajeev Sethi, Dy. GM, Sales of M/s Skipper Towers PVT LTD having his signature towards asking consent to lay out the flat which is marked as Ex PW 3/19, the original letter ref no. ST/22/BR dated 8.05.1990 which was written by Rajeev Sethi, Dy. GM, Sales of M/s Skipper Towers PVT LTD having his signature asking witness to visit the site and inspect the complex which is marked as Ex PW 3/20, the original letter ref no. ST/11844 dated 11.06.1990 which was written by Rajeev Sethi, Dy. GM, Sales of M/s Skipper Towers PVT LTD having his signature towards asking consent to lay out the flat which is marked as Ex PW3/21, the original letter ref no. ST/12043 dated 09.07.1990 FIR No. 363/91 State Vs. Tejwant Singh & Others 8/37 which was written by Rajeev Sethi, Dy. GM, Sales of M/s Skipper Towers PVT LTD having his signature towards asking consent to lay out the flat and demanded Rs. 1765.55 which is marked as Ex PW3/22, the original letter dated 14.07.1990 which was written to director of M/s Skipper Towers PVT LTD having signature of the witness asking when possession of the flat will be handed over and regarding outstanding balance which is marked PW3/23, the original letter ref no. ST/12101 dated 25.07.1990 which was written by Sanjeev Mittal, Dy. Manager, Sales of M/s Skipper Towers PVT LTD having his signature informing the witness that building is almost ready for handing over except various statutory clearances which is marked as Ex PW3/24, the original letter ref no. ST/12274 dated 13.11.1990 which was written by Sanjeev Mittal, Dy. Manager, Sales of M/s Skipper Towers PVT LTD. having his signature informing the witness that the flat shall be given before 31.12.1990 and they have received NDMC clearance regarding location of substation building is almost ready for handing over except various statutory clearances which is marked as Ex PW 3/25, the original letter ref no. ST/22BF/5347 dated 22.11.1986 which was written by director of M/s Skipper Towers PVT LTD having signature of the director informing that marble and granite is being fixed and asked the witness to pay Rs. 39886.40/ marked as Ex PW 3/26, the original allotment letter executed on 4.02.1986 between the witness and which was written by director of M/s Skipper Towers PVT LTD for flat no. 809A is Ex. PW3/27, The receipt issued from Ms. Skipper Sales Pvt ltd. is PW3/28. The acknowledgment receipt 2109 dated 4.02.1986 regarding payment of 150000 to M/S skippers Sales pvt ltd. for flat no. 809A through cheque no. 0786499 dated 4.2.1986 is marked as EX. PW3/29, the acknowledgment receipt 2334 dated 15.07.1986 regarding payment of 17840 to M/S Skippers Sales Pvt ltd. for flat no. 809A through cheque no. 0103583 dated 14.07.1986 is marked as Ex. FIR No. 363/91 State Vs. Tejwant Singh & Others 9/37 PW3/30, the letter dated 21.07.1992 confirming crediting of cheque no. 103584 dated 10.08.1986 in account of Traders Bank ltd. is Ex. PW3/31, the acknowledgment receipt 6324 dated 17.11.1986 regarding payment of Rs.16,088.20/ to M/S Skippers Towers Pvt ltd. for flat no. 809A through cheque no. 0103600 dated 14.11.1986 is marked as EX. PW3/32, the acknowledgment receipt 6393 dated 10.12.1986 regarding payment of Rs.7,607.20/ to M/s Skippers Towers Pvt. Ltd. for flat no. 809A through cheque no. 0794712 dated 06.12.1986 is marked as EX. PW3/33, the acknowledgment receipt 2590 dt. 28.04.1987 regarding payment of Rs.26,933.60/ to M/S Skippers Towers Pvt ltd. for flat no. 809A through cheque no. 0794718 dated 29.04.1987 is marked as EX. PW3/34, the acknowledgment receipt 2784 dated 19.06.1987 regarding payment of Rs.16,088.20/ to M/s Skippers Towers Pvt ltd. for flat no. 809A through cheque no. 0794719 dated 20.06.1987 is marked as EX. PW3/35, the acknowledgment receipt 3034 dated 12.09.1987 regarding payment of Rs.10,000/ to M/s Skippers Towers Pvt ltd. for flat no. 809A through cheque no. 0794702 dated 15.09.1987 is marked as EX. PW3/36, the acknowledgment receipt 3102 dated 10.11.1987 regarding payment of Rs.10,000/ to M/s Skippers Towers Pvt ltd. for flat no. 809A through cheque no. 017782 dated 27.11.1987 is marked as EX. PW3/37, the acknowledgment receipt 008 dated 15.03.1988 regarding payment of Rs.10,000/ to M/s Skippers Towers Pvt Ltd. for flat no. 809A through cheque no. 17786 dated 31.03.1988 is marked as EX. PW3/38, the acknowledgment receipt 200 dated 16.07.1988 regarding payment of Rs.9,886.40/ to M/s Skippers Towers Pvt ltd. for flat no. 809A through cheque no. 038371 dated 25.07.1988 is marked as EX. PW3/39, the acknowledgment receipt 199 dated 16.07.1988 regarding payment of Rs.16,088.20/ to M/s Skippers Towers Pvt ltd. for flat no. 809A through cheque no. 038372 dated 20.08.1988 is marked as EX. PW3/40 , the acknowledgment receipt 255 dated FIR No. 363/91 State Vs. Tejwant Singh & Others 10/37 29.08.1988 regarding payment of Rs.4,626/ to M/s Skippers Towers pvt ltd. for flat no. 809A through cheque no. 038375 dated 31.08.1988 is marked as EX. PW3/41, the acknowledgment receipt 262 dated 09.09.1988 regarding payment of Rs.7,710/ to M/s Skippers Towers pvt ltd. for flat no. 809A through cheque no. 038376 dated 20.09.1988 is marked as EX. PW3/42, the passbook of PW3 for account no. 18153 at Bank of Baroda showing debit of Rs. 20,000/ on 10.09.1986 is Ex. PW3/43 and the part of leaflet of chequebook dated 10.08.1986 bearing no. 0103584 for cheque for Rs. 20,000/ issued to M/s Skipper sales pvt ltd. is Ex PW3/44. He was cross examined on behalf of the accused.
8. PW4 N.K Arora deposed about booking of Flat no 910A. He did not produce any documents. He was cross examined on behalf of the accused.
9. PW5 R.K Arora deposed about booking of Flat no 810A on 12.05.1987 with M/s Skippers Sales Pvt. Ltd. He also produced following documents i.e the original allotment letter dated 12.05.1987 by which the said flat was allotted to the concerned persons bearing signatures of PW5, accused Directors, the concerned persons and a witness Mr A.K.Chandra is marked as Ex PW 5/A, the acknowledgment receipt Sl No. 2301 dated 20.06.1986 regarding payment of Rs.50,000/ to M/s Skippers Sales Pvt Ltd. for flat no. 810A through cheque no. 023212 and 244563 by Ritika Arora, Meena Arora and Anand Bros HUF is marked as EX. PW 5/B bearing signature and seal of Director of M/s Skippers Sales Pvt Ltd, the acknowledgment receipt Sl No. 2309 dated 30.06.1986 regarding payment of Rs.35,000/ to M/s Skippers Towers pvt ltd. for flat no. 810A through cheque no. 023212 and 244563 by Manoo Chawla is marked as EX. PW 5/C bearing signature and seal of Director of M/s Skippers Sales Pvt Ltd, acknowledgment receipt bearing no. 2516 dated 31/03/1987 for Rs. 6,325/ FIR No. 363/91 State Vs. Tejwant Singh & Others 11/37 paid by Ritika Arora to Skipper Towers pvt. Ltd in respect of flat 810 is Ex.Pw 5/D bearing signature of Director M/s Skipper Tower, acknowledgment receipt bearing no. 2517 dated 31/03/1987 for Rs. 6,325/ paid by Anand Bros.(HUF) to Skipper Towers Pvt. Ltd in respect of flat 810 is Ex.PW5/E bearing signature of Director M/s Skipper Tower, acknowledgment receipt bearing no. 3076 dated 12/10/1987 for Rs. 20,000/ paid by Anand Bros.(HUF) to Skipper Towers Pvt. Ltd in respect of flat 810 is Ex.PW5/F bearing signature of Director M/s Skipper Tower, acknowledgment receipt bearing no. 3158 dated 24/02/1988 for Rs. 16,246/ paid by Ritika Arora, Meeta Arora and Anand Bros.(HUF) to Skipper Towers Pvt. Ltd in respect of flat 810 is Ex.Pw 5/G bearing signature of Director M/s Skipper Tower, letter dated 17/09/1988 sent by Director of M/s Skipper Towers to Ritika Arora for demand of Rs. 8126.90 is Ex. PW 5/H, letter dated 28/11/1991 sent by Ritika Arora to Registrar, Delhi High Court for payment of prescribed fee of Rs.1000/ for flat number 810 A is Ex.PW 5/I, the brief submissions submitted by PW 5 before honorable commission appointed to look into irregularities in Skipper Towers is EX.PW5/J, the document mentioning the total payment, registration number, area and date of agreement submitted before the honorable commission is Ex.Pw5/K, letter ref. Number STPL/NR 22 dated 10/09/1993 sent by Tejwant Singh CMD of Skipper Towers to Ritika Arora for settlement of flat 810 A is Ex.PW5/M and the proposal letter sent along with it was Ex.PW5/N(OSR). This witness was cross examined on behalf of accused persons.
10. PW6 Vinod Kapoor deposed about allotment of Flat no 702 and got exhibited following documents i.e the allotment letter for the allotment of shop/office/store/space no. 702 in the proposed commercial building at 22, Barakhamba Road, New Delhi which is Ex. PW6/A and receipts Ex. PW6/B FIR No. 363/91 State Vs. Tejwant Singh & Others 12/37 (OSR) to Ex. PW6/L (OSR). He was also crossexamined on behalf of accused persons.
11. PW7 Rohit Singh, Officer from Punjab and Sind Bank, Assets and Recovery Branch produced the record which got exhibited as Ex. PW7/A {Colly}. He was cross examined on behalf of accused persons.
12. PW11 Parveen Grover was examined in the capacity of being the manager with Skippers Towers Pvt. Ltd. and deposed about seizure of documents in his presence.
13. PW9 Retd. ACP Satya Prakash, PW10 Retd. ACP S.S Kaushik and PW12 ACP Rajinder Bhatia deposed about various aspects of the investigation conducted by them, being the investigating officers. Following documents were exhibited i.e the original documents were seized vide seizure memos Ex. PW12/A and B. Ex PW12/A bears the signature of buyer Vinod Kapoor at point X and Ex. PW12/B bears signature of buyer N.K.Arora at point X, seizure of the documents relating to Jain Shudh Vanapathi and Jain exports Ex.PW12/X , disclosure statement of accused Sardar Tejwant Singh Ex. PW12/X1, seizure memo of documents Ex.PW12/ X2 to Ex.PW12/ X10, personal search memo of Manjeet Singh and HS Sarna Ex.PW12/ X11 (Colly.) and during his examination conducted on 13.08.2009, he placed on record documents which were a part of FIR 230/91 PS Connaught Place and these documents contained letter dated 17.01.91 and letter from Canara bank mark PW12/C1(Colly) pertaining to buyer Vinod Kapoor and letter dt. 14.07.88 by Sh. Lal Chand Chinminani sent to Skipper Towers Pvt Ltd and letter dated 18.08.88 Mark PW12/C2 pertaining to buyer Lal Chand Chinminani. All of them were cross examined on behalf of FIR No. 363/91 State Vs. Tejwant Singh & Others 13/37 accused persons.
14. On 23/08/2019 accused persons namely Tejwant Singh and Surinder Kaur denied the genuineness as well as the contents of copy of agreement dated 02.02.78 and 03.01.78 between M/s Jain Shudh Vanaspati Ltd. and M/s Skippers Sales Pvt. Ltd, copy of agreement dated 02.02.78 between Vinod Kumar jain and Skipper Sales Pvt. Ltd, copy of agreement dated 03.01.78 between Master Vineet Jain and Skipper Sales Pvt. Ltd, copy of agreement dated 03.01.78 between master Maneesh Jain and Skipper Sales Pvt. Ltd, copy of receipt dated 05.01.78 in the name of Skipper sales pvt. Ltd, copy of receipt of Skipper Sales pvt. Ltd dated 05.01.78 issued to Vinod Kumar Jain, M/s Jain Export Pvt. Ltd, M/s Jain Shudh Vanaspati Ltd, copy of letter of Skipper Sales Pvt. Ltd dated 30.04.1986 in favour of Manager, Punjab and Sindh Bank along with accompanying documents under Section 294 Cr.P.C.
15. On completion of Prosecution Evidence, Statement of the Accused Persons was recorded on 23.08.2019. Accused no.1 Tejwant Singh in his statement under Section 313 Cr.P.C. denied all the allegations and further stated that there was no double booking or double sale of any flat and no flat was sold more than once. He added that at the time of allotment of flats, the building plans were yet to be sanctioned and all the allotments were made only on 'provisional basis' with the specific condition that if for any reason there was an increase or decrease in the area or its location or the flat number, the flat number was not entitled to anything except to take back money towards booking of flats and that too without any interest. He further added that PW3 Lalchand Chimnani did not suffer any loss and he even refused to accept the offer to take back his refund FIR No. 363/91 State Vs. Tejwant Singh & Others 14/37 with interest at the rate of 75% per annum. He added that the flat which was allotted to PW3 was not allotted to any other buyer. He further stated that the flat which was allotted to PW4 was not allotted to any other buyer. He also stated that PW5 and his two daughters and Anand Brothers HUF never suffered any loss and the flat allotted to them was never allotted to any other buyer. He stated that Jain Shudh Vanaspathi in connivance with other officers of Punjab and Sindh Bank managed to avail financial help by illegally mortgaging the space booked by them for which payment was not made. He added that only some area of the 8th and 9th floor of the building was allotted to Jain Shudh Vanaspathi group and not the entire floors and Jain Shudh vanaspathi group did not make the payment against the booking for which their several bookings were canceled. He added that he had never made any confessional statement before the police officials and he has been falsely implicated in a conspiracy.
16. Accused Surinder Kaur in her statement recorded under Sec. 313 CrPC denied all the allegations against her and stated that she was not aware of any transactions with respect to Skipper sales pvt Ltd. or Skipper towers pvt Ltd. and was only a housewife and did not participate in any of his affairs of either Skipper Sales pvt Ltd or Skipper Towers pvt ltd. She added that on few occasions her husband Tejwant Singh asked her to sign some papers which she did without knowing the contents of the purpose thereof.
17. The accused Tejwant Singh examined himself as DW1 on moving an application under Sec 315 Cr.P.C which was heard and allowed. He was also cross examined on behalf of State. After conclusion of Defence evidence, final arguments were canvassed.
FIR No. 363/91 State Vs. Tejwant Singh & Others 15/37
18. Both complainant as well as accused side tendered written arguments to advocate their case. Ld. Counsel for the complainant and the Ld. APP for the State led its tirade against the accused persons by arguing that a clear cut case of cheating is made out against the company M/s Skipper Tower Pvt Ltd and its directors, who are vicariously liable for the artifice committed by them against the innocent flat buyers. It was argued that flat no.702 was sold thrice and 89 floors were already sold to M/s Jain Shudh Vanaspati and then resold by false representation and inducement. Accused persons got booked the space more than available area in the building by entering into the agreement with the investors with fraudulent intention to siphon off the amount deposited by the investors. Accused Tejwant Singh was the Managing Director and responsible for managing M/s Skipper Tower Pvt Ltd and therefore, present case is a fit case where the principle of Lifting of Corporate veil can be applied. It was further argued that merely because there was a clause in the agreement whereby area of the allotted flat may be reduced and flat may be changed from different floors did not mean that accused company had a right to sale the same flat to two or more persons. Flat No. 702 was stated to be sold to Sh. I. K. Sibbal, Vinod Kapoor and Rajiv Gupta. Further, it was argued that prosecution has been able to examine witnesses who had deposed against the accused person with regard to false representations made by them. Witnesses have also placed on record all the relevant documents pertaining to flats allotted to them including receipts. Thus, accused persons are to be held liable for the offence of cheating 420 IPC.
19. Prosecution has profitably referred to following Judgments :
(i) Delhi Development Authority Vs. Skipper Construction Company Pvt. Ltd 1996 SCC (4) 622,
(ii) Sunil Bharti Mittal Vs. CBI of Hon'ble Supreme Court of India decided on FIR No. 363/91 State Vs. Tejwant Singh & Others 16/37 09.01.2015 and
(iii) GHCL Employees Stock Option Trust Vs. India Infoline Ltd, SC/0271/2013.
20. Per contra, Ld. Counsel for the accused persons clamored for acquittal of the accused persons by arguing that none of the prosecution witnesses has been able to depose against the accused persons whereby dishonest intention of the accused can be established. It was canvassed that the concept of vicarious liability is not applicable for the offence under IPC and even if it is assumed that offence has been committed by M/s Skipper Tower Pvt Ltd, accused Tejwant Singh and Surender Kaur cannot be held responsible. It was further argued that admittedly the allotment of the flat was provisional in nature and therefore, complainant and other investors were cognizant of all these facts and thus did not have any occasion to inveigh against accused persons. Further, it was argued that all the documents produced by the witnesses were never seized by the investigating officer during investigation and therefore, no consideration can be accorded to those documents. All the witnesses are interested witness who have deposed at the instance of flat buyer associations.
21. Ld. Counsel for the accused alluded to following Judgments to fortify his case:
(i) Dudh Nath Pandayn Vs. State of Uttar Pardesh, Manu/SC/0137/1981,
(ii) Mukesh Hans and Ors Vs. Uma Bhasin and Ors, Manu/DE/2160/2010,
(iii) GHCL Employees Stock Option Trust Vs. India Infoline Ltd, SC/0271/2013,
(iv) Sunil Bharti Mittal Vs. Central Bureau Of Investigation, Manu/SC/0016/2015 and
(v) Shiv Kumar Jatia Vs. State of NCT of Delhi, Manu/SC/1154/2019.
FIR No. 363/91 State Vs. Tejwant Singh & Others 17/37
22. To bring home the guilt of the accused persons for the offence of cheating, prosecution has to satisfy the following requirements:
1) Deception of any person,
2) Fraudulently or dishonestly inducing that person:
i) to deliver any property,
ii) to consent that any person shall retain any property or
3) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
23. The case of the prosecution is premised primarily on the testimony of PW3 Sh. Lal Chand Chimnani, PW5 Sh. R. K. Arora and PW6 Vinod Kapoor, who are the persons who got booked and were allotted space in the project at 22, Barakhamba Road, New Delhi (hereinafter referred to as 'building in question'}. Analysis of Testimony of PW 3 PW3 Sh. Lal Chand Chimnani deposed that he had booked flat no.809A on 04.02.1989 with M/s Skipper Sales Pvt Ltd at 22, Barakhambha Road measuring 514 Sq. feet. Thereafter, project for construction of the flat was transferred from M/s Skipper Sales Pvt Ltd to M/s Skipper Tower Pvt Ltd. He got exhibited various documents during his examinationinchief, which we shall dwell upon in our discussion. He also deposed that despite having made regular payments, possession of the flat was not handed over to him. When he visited the office of accused persons to seek possession, he came to know that many other persons did not get the possession and an association was formed from which he came to know that his flat no.809A which was allotted to him was already sold to M/s Jain Shudh Vanaspati much prior.
FIR No. 363/91 State Vs. Tejwant Singh & Others 18/37
24. At this stage, it is to be established at the first instance whether flat no.809A in the building in question was allotted to PW3 Sh. Lal Chand Chimnani. Though, PW3 placed on record various exhibits pertaining to allotment of flat to him, however, an objection was raised at the time of exhibition of those documents that those exhibits were never seized by the investigating officer during investigation and were filed for the first time before the Court. This objection, in my opinion, is not sustainable as it is a settled legal proposition that Court is enjoined upon to make endeavors to have on record all the material relevant to the issues involved. The documents placed on record during the examination in chief of PW 3 are germane to the case in hand and otherwise also it is manifest that PW 3 was searchingly cross examined on those documents on behalf of accused persons. Even if accused persons did not get an opportunity to have a glance at those exhibits initially, nonetheless, from some queries posed to PW 3 during his cross examination, it can be gauged that accused persons have not challenged the factum of allotment of Flat no. 809A to PW 3. There is thus ample evidence on record to indicate that flat no.809 was allotted to PW3. The germane extract of crossexamination is as under: ".......I cannot show any documents in support of my allegations that flat no.809A was already sold to M/s Jain Shudh Vanaspati, before the same was allotted to me. I also cannot show any documents in support of my allegation that flat no.809A was sold and re sold to numerous buyers. It is correct that the allotment letter Ex.PW3/27 for allotment of 514 Sq. feet space to me by M/s Skipper Sales Pvt Ltd bears my signature as allottee of the space in question. It is correct that the project was subsequently transferred and assigned from Skippers Sales Pvt Ltd to Skippers Towers Pvt Ltd. It is correct that whatever payments were made by me in respect of the aforesaid flat were made in the name of Skippers Sales Pvt Ltd FIR No. 363/91 State Vs. Tejwant Singh & Others 19/37 and Skippers Towers Pvt Ltd and no amount whatsoever was paid by me to accused Tejwant Singh or accused Surender Kaur".
25. From the above noted queries put to PW3, it is discernible that accused persons have not disclaimed the allotment of flat no.809A in favor of PW3. This also stands sufficiently underpinned by various receipts Ex. PW3/28 to Ex. PW3/37 which in addition also proves that Flat no 809A was situated at 8 th Floor. Otherwise also there is no suggestion on behalf of the accused persons that this flat was not allotted to PW3. This is also not disputed that project for construction of building in question was transferred from M/s Skippers Sales Pvt. Ltd. to M/s Skippers Towers Pvt. Ltd.
Analysis of testimony of PW5 Similar is the situation of PW5 R. K. Arora who deposed about allotment of flat no.810A measuring 140 Sq. feet by M/s Skipper Sales Pvt Ltd in June 1986 in the name of his daughter Ms Ritika Arora, Ms. Meeta Arora and Anand Brothers (HUF). He also further deposed on similar lines that he came to know that flat no.810A was already sold to M/s Jain Shudh Vanaspati. He also during his evidence placed on record certain documents pertaining to his allotment which were exhibited subject to objection by Ld. Counsel for the accused persons. The objection as discussed above is nixed in case of PW5 as well. However, his crossexamination also reveals that accused persons have not challenged the aspect of allotment of Flat no.810A in the name of Ms. Ritika Arora, Ms. Meeta Arora and Anand Brothers (HUF). The extract of the crossexamination is as under: "......It is correct that on serial no. 1 on the first page it is mentioned that allotment is "Provisional". It is correct that booking was in the name of my two daughters Ms. Ritika Arora and Ms Meeta Arora.....It is correct that I made the payments in the name of FIR No. 363/91 State Vs. Tejwant Singh & Others 20/37 companies and I did not make any payment to accused Tejwant Singh and Surinder Kaur. It is correct that receipts Ex. PW5/B to Ex. PW5/G were handed over to me by Sh. Manu Chawla.........".
26. Thus it can be discerned from aforementioned extract that accused persons have not refuted the factum of allotment of Flat no. 810A in favour of PW5. Further, Receipts Ex. PW5/B to Ex.PW5/G also embolden the testimony of PW5 on this aspect. Besides, these receipts also establish that the Flat allotted was on 8th Floor. These receipts have not been specifically repudiated on behalf of accused persons.
27. Now adverting to the testimony of PW6 Sh. Vinod Kapur who spoke about allotment of space no.702 in the said building in his and his wife name vide allotment letter Ex. PW6/A (OSR) (Running into five pages). His testimony is also on similar lines as testimony of PW3 and PW5 and he also during his examinationinchief furnished his documents pertaining to his allotment. The relevant extract of his crossexamination which shows that accused persons have not refuted allotment of the space is as under: "It is correct that the booking of the space in question was purchased by me and my wife Mrs. Shalini Kapur, in joint name from M/s Ashwani Industries and hence my legal share in the space in question is 50%".
28. Following the testimonies of all the above noted witnesses of the prosecution, the controversy has now boiled down to the issue whether at the time of issuance of allotment letter in respect of respective flats, accused persons harbored any dishonest intention to cheat the FIR No. 363/91 State Vs. Tejwant Singh & Others 21/37 investors/buyers. The gravamen of the prosecution is that the Flats allotted to PW3 and PW5 ie Flat no 809A and 810A on 8 th Floor respectively were already allotted to M/s Jain Shudh Vanaspati which in turn had got created charge over it by availing loan. To bolster this, prosecution has relied upon the testimonies of PW3, PW5 and PW7. Before we come to grips with their testimonies, let us see some of the Judgments of Supreme Court.
29. Law in this regard is discussed by Supreme Court in Shivanarayan Kabra Vs. State of Madras, AIR (1967) SC 986 wherein it was observed as under:
"It was argued, at the first place, on behalf of the appellant that on the admitted or proved facts no case of cheating has been made out against the appellant and therefore his conviction under section 420 Indian Penal Code was illegal. We are able to accept this argument as correct. It has been found that the appellant sent a letter, Ex. P34 alongwith a copy of the business terms, Ex. 34(a) "on which we undertake business of our clients". In this document the appellant has made the representation that he could do business in forward contracts in cotton, grains, seeds, bullion, black pepper etc. in accordance with the pucca adatia system and "in accordance with the usual practice and usage of the various associations concerned". In Ex.P33 the appellant sent a telegram to PW2 intimating t hat "buying is advisable for quick profits". The appellate knew fully well that he had no right to do forward business and that he was not a member of any recognised association and that he could not lawfully advertise to PW2 for investment in forward contracts. It is not necessary that a false pretence should be made in express words by the appellant. It may be inferred from all the circumstances including the conduct of the appellant in obtaining the property property and in Ex. P34(a) the appellant stated something which was not true and concealed from PW2 the fact that he was not a member or any recognised FIR No. 363/91 State Vs. Tejwant Singh & Others 22/37 association."
30. Further, in case titled as Devender Kumar Singhal Vs. Baldev Kishan Singhal, AIR 2004 SC 3084 it was observed that it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intention by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.
31. The golden thread as can be made out from above Judgments is that there is no requirement of express dishonest misrepresentation in every case. In appropriate cases, false pretence can be gathered from attending circumstances. In the light of above noted Judgments, let us analyze one allotment letter by virtue of which space was allotted to one of the investors. For the sake of convenience, let us have a glance at Ex. PW3/27 which is the allotment letter in respect of shop/office/store/space number 809A issued in the name of Mr. Lal Chand. The allotment letter duly signed at point A by PW3 Lal Chand and at point B is purportedly signed on behalf of accused company M/s Skipper Towers Pvt Ltd. It is worthwhile to note that said allotment letter and all the pages were duly signed by persons as noted above.
32. It is pellucid from the allotment letter that both the parties have agreed to the terms and conditions of the allotment and therefore, the same partakes of the character of agreement. When the two relevant witnesses of the prosecution I.e PW3 Lal Chand Chimnani and PW5 R. K. Arora were FIR No. 363/91 State Vs. Tejwant Singh & Others 23/37 confronted with question relating to their allotment letter, all of them acknowledged the fact that allotment was provisional in nature. To be specific, PW3 acknowledged that allotment letter Ex. PW3/27 was signed by him which clearly mentioned that the allotment was provisional. He also admitted that all the terms and conditions of the said allotment letter were wholeheartedly accepted to him. PW5 also acknowledged that at the serial no.1 on the first page Ex. PW5/A it was mentioned that allotment is "provisional".
33. From testimonies of abovementioned prosecution witnesses, it is limpid that all the witnesses have avowed that allotment in question was provisional in nature. The relevant extract of the covenant as mentioned in allotment letter Ex. PW3/27 is as under: "The allotment is "Provisional". The plans are yet to be sanctioned if for any reason, any changes are made by sanctioning authority, or by the architects, or the builders resulting in reduction or increase in the above mentioned area or its location, no claim, monetary or otherwise will be raised or accepted except that the aforesaid rate per sq. ft will be applicable on the changed area. In case the flat is changed to a different floor, the rate of that floor as applicable will be charged. In case of absolute deletion of the flat from the sanctioned plans no claim, monetary or otherwise will be raised or accepted but the amount received will be refunded in full without any interest".
34. Now the pertinent question in the backdrop of abovenoted covenant is FIR No. 363/91 State Vs. Tejwant Singh & Others 24/37 whether builder had the right to change the flat allotted to one investor. The answer obviously is "Yes" as is clearly stipulated and agreed upon between the parties. But what we have to see is whether flats which were allotted to PW3 and PW5 were already allotted to M/s Jain Shudh Vanaspati and whether accused were in a position to hand over possession of flat to the respective buyer or not. Now we go a little further and have a look at further communications that took place between builder and investors. Having a glance at documents Ex. PW3/7, Ex. PW3/8, Ex. PW3/9 and Ex. PW3/12, it is observed that accused company had asked for various charges to be deposited towards installments, making provision for black glasses on windows and for other construction purposes for completion of building. Out of all the exhibits placed on record by PW3 Lal Chand Chimnani, most of the exhibits pertain to demand from accused company towards payment of due amount for completion of the project. Some of the exhibits which are significant for the purpose of arriving at conclusion whether accused company harbored dishonest intention at the time of allotment of flat to PW3. The contents of these exhibits are reproduced as under: "Ex. PW3/7:
Ref. No. ST/22BR/9369 07 June 1988,
Mr. Lal Chand Chimnani, 4597,
Deputy Ganj,
Sadar Bazar, Delhi.
Subject:Flat No.809A at 22, Barakhamba Road, New Delhi. Dear Sir/Madam, We are glad to inform you that we are making concerted efforts to complete the building at 22, Barakhamba Road, New Delhi., speedily and as per tentative programme, it is likely to be ready for occupation by 31st December 1988.
It has been our endeavor to make the building one of the most prestigious building in Connaught Place area. To achieve that end we are providing with black glasses on windows.
The area of your flat is 514 Sq. feet, as such the expenditure to the incurred on the above measure in your case works out to be Rs.7710/ @ Rs.15/ per sq. ft. You are, therefore, requested to kindly arrange remittance of the same at the earliest. FIR No. 363/91 State Vs. Tejwant Singh & Others 25/37 Your cooperation s solicited.
Thanking you, Yours faithfully, For Skipper Towers Private Ltd S/d Director ..........................................................................................................
Ex. PW3/8 Ref. No. ST/9607 Dated 21st June, 1988
Mr. Lal Chand Chimnani, 4597,
Deputy Ganj,
Sadar Bazar, Delhi.
Subject:Flat No.809A at 22, Barakhamba Road, New Delhi. Dear Sir/Madam, Kindly refer to our letter dt. 3 & 7 June 1988 requesting for the payment of 14th installment and other outstanding dues totalling Rs.39651/25 in respect of the above mentioned flat. Since it is in the interest of all concerned that the building is completed without any loss of time. It is very important that there is no holding in the payment of due money. Therefore, you are once again impressed upon the urgency to clear the dues so that the progress is not hampered.
Thanking you, Yours faithfully, For Skipper Towers Private Ltd S/d Director ................................................................................................................
Ex. PW3/9 Ref. No. ST/22BR/9369 Dated: 07 July 1988,
Mr. Lal Chand Chimnani,
4597,Deputy Ganj,
Sadar Bazar, Delhi6.
Subject:Flat No.809A at 22, Barakhamba Road, New Delhi. Dear Sir/Madam, Kindly refer to our last letter dated 21st June 1988, requesting you to remit the outstanding amount of Rs.39,651/25 immediately to clear your account in respect of the above flat booked by you. We regret to point out that no efforts have been made by you to clear the arrears.
The building is fast nearing completion. As you are aware the expenditure at the time of finishing is invariable very heavy and any delay in the flow of finance at this stage will have adverse effect on the progress of the work. Since it is in the interest FIR No. 363/91 State Vs. Tejwant Singh & Others 26/37 of all concerned that the building is completed without any loss of time, it is very important that there is no hold up in the payment of due money. As we are unable to wait for the payment any longer and cannot stop the progress of construction of the above building for the sake of any individual, we will have no alternation but to reduce your area so as to conform it to the payment received from you and close the matter.
This may please be noted. .
Thanking you, Yours faithfully, For Skipper Towers Private Ltd S/d Director ...................................................................................................
Ex. PW3/12 Ref. No. ST/22BR/9910 dtd 22nd July 1988,
Mr. Lal Chand Chimnani,
4597, Deputy Ganj,
Sadar Bazar, Delhi.
Subject:Flat No.809A at 22, Barakhamba Road, New Delhi. Dear Sir/Madam, Please refer to our letter dated 7th July 1988 wherein you were requested to remit the outstanding amount. We are sorry to say that almost two weeks have since passed but you have not cared to send the payment.
It may also be brought to your kind notice that we are going to hand over possession of your flat very shortly. Therefore, you are requested to kindly remit Rs.13676.25/ outstanding amount in your account upto 14th installment and miscellaneous charges towards your abovementioned flat.
Please ensure that the payment of due amount reaches us by 27th July 1988 positively, failing which interest @ 18% per annum on the unpaid amount will be charged for the entire delayed period. Please take note of it.
Thanking you, Yours faithfully, For Skipper Towers Private Ltd S/d Director ............................................................................................................
Ex. PW3/21 Ref. No. ST/11844 dtd 11.06.1990
FIR No. 363/91 State Vs. Tejwant Singh & Others 27/37
Mr. Lal Chand Chimnani,
4597, Deputy Ganj,
Sadar Bazar,
Delhi110006.
Dear Flat Buyer,
This has reference to your allotment in our prestigious Skipper Bhawan at 22 Barakhamba Road, New Delhi.
In this past we have been in touch with you regarding renting offers we have been receiving from various commercial/government offices. Now, we have received a very good proposal from a government of India undertaking to take up as much as 4 to 5 floors in our building on rent. Terms and conditions of the offer are as flows: Rent : Rs.40/ to 45/ per sq. ft. for ground floor.
: Rs.24/ to 25/ per sq. ft. from 1 st to 6th floor.
: Rs.23/ to 24/ per sq. ft. from 7th to 12th floor.
Advance Rent : 18 month's Advance Rent adjustable in 26 months. Security Deposit : 6 months Deposit refundable at the time of vacating the premises.
Initial Lease : 3 years renewable with increase in rent of 20% on
last rent paid.
: Rent for covered Car Park will be Rs.1000/ per
month per car and for open car park I shall be Rs.600/ per
moth per car.
The terms and conditions are slightly negotiable with the Department. We will certainly coordinate between you and the Department to get you best possible terms.
You are requested to let us have your acceptance within 10 days time so that we can offer your flat to them. In case your communications is not received within 10 days time we shall presume that you are willing to let out your flat.
With best wishes and regards.
For Skipper Towers Private Ltd S/d (Rajeev Sethi) Dy. General Manager Sales.
.................................................................................................................. .
Ex. PW3/22 Ref. No. ST/12043 Date:09.07.1990
Mr. Lal Chand Chimnani,
4597, Deputy Ganj,
FIR No. 363/91 State Vs. Tejwant Singh & Others 28/37
Sadar Bazar,
Delhi110006.
Dear Flat Buyers,
Reg: Yours allotment of Space of Skipper Bhawan, 22, Barakhamba Road, New Delhi.
We have been in touch with you regarding various offers we have been getting from various authorities for taking up space in your building. We hav been contacted by a Department of Ministry of Finance for their massive requirement of over 1,00,000/ Sq. ft. of Space. Main features of their offer are: Rent (1st to 6th floor) : Rs.25/ per sq. ft. per month (inclusive of maintenance charges) (7th to 11th floor) : Rs.24/ per sq. ft. per month (inclusive of maintenance charge).
Advance Rent : Twelve Months adjustable in 24 months.
Initial Lease : 3 years Lease is renewable with a hike of
20% on last rent paid.
We think the offer from the Department is very reasonable and you should give your consent for their proposal. You are requested to give your consent within 3 days from the date of this letter. We take this opportunity to remind you that a sum of Rs.1765/55 is yet to be remitted by you and is lying uncleared from a long time now. We once again request you to clear the outstanding without further delay.
Thanking you and looking forward to have your acceptance as requested above.
With best wishes and regards.
For Skipper Towers Private Ltd S/d (Rajeev Sethi) Dy. General Manager Sales.
..............................................................................................................
Ex. PW3/25 Ref. No. ST/12274 Date:13.11.1990
Mr. Lal Chand Chimnani,
4597, Deputy Ganj,
Sadar Bazar,
Delhi110006.
Dear Sir,
Reg: Handing over possession of your flat in Skipper Bhawan, 22, Barakhamba Road, New Delhi.
We are pleased to inform you that we are handing over possession of FIR No. 363/91 State Vs. Tejwant Singh & Others 29/37 Skipper Bhawan, 22, Barakhamba Road in the month of December 1990.
We have already received clearance from NDMC regarding location of the substation. Two lifts have started functioning, Fire clearance from the office of the Chief Fire Officer (CFO) Delhi is expected any moment now. Remaining clearances are forthcoming very shortly. We shall be sending you Final Call Notices pertaining to your flat in the 1st week of December 1990.
We wish to confirm and again that possession of your flat shall be given positively before 31st December 1990. You are requested to clear your dues if any immediately.
Thanking you.
Yours faithfully, for Skipper Towers Private Ltd S/d (Sanjeev Mittal) Dy. Manager Sales.
35. Documents Ex. PW3/21 and Ex. PW3/22 have been addressed to PW3 on behalf of accused company wherein PW3 was being apprised of various offers renting out the space allotted to PW3, which as per the allotment letter was Flat no.809A. Further, from letter Ex.PW3/25 it can be gauged that the possession of the flat was to be handed over to PW3 very shortly as he was being informed that clearance from NDMC regarding location of the sub stationed was received, two lifts were started functioning, fire clearance from the office of Chief Fire Office, Delhi was about to be received. PW3 was being informed that final call pertaining to his flat would be sent in the first week of December 1990 and the possession of his flat would have been given to him positively before 31.12.1990. Furthermore, the contents of these exhibits have not been specifically disputed on behalf of accused persons by putting any counter questions.
36. It can thus be culled out that, though in view of allotment letter, there was an agreement between the parties that the allotment was provisional and the FIR No. 363/91 State Vs. Tejwant Singh & Others 30/37 flat number could have been changed to different floor or the same could have been altogether deleted from the plan, however, from the letter as noted in foregoing paragraph particularly Ex. PW3/25 it can be extrapolated that the accused company intended to hand over the possession of the same flat to PW3 which was allotted to him vide letter Ex. PW3/27 i.e Flat 809A on 8 th floor in the building in question.
37. Now zeroing in on the most crucial aspect of the case whether Prosecution has been able to demonstrate that flat no 809A and 810A on 8 th Floor of the building in question were already allotted to M/s Jain Shudh Vanaspati. For this we need to embark upon the testimony of PW7 Rohit Singh, Officer from Punjab and Sind Bank. He has been examined by the prosecution primarily to prove that flats which were allotted to some of the investors were already allotted to M/s Jain Shudh Vanaspati, which in turn mortgaged the same against the loan. He got exhibited the certified true copy of the order of Debt Recovery Tribunal II dated 08.05.2012 as Ex. PW7/A. It can be descried from para 20 of the order that 8th and 9th Floor of the building in question were mortgaged as security by Defendant no 1 ie M/s Elephanta Oil and Vanaspati, which is also known by the name of M/S Jain Shudh Vanaspati (not disputed). Further, the same exhibit also contains certified copy of suit initiated by Punjab and Sind Bank against M/s Jain Shudh Vanaspati and its Directors wherefrom it can be deciphered from para 18 that entire 8th and 9th floor measuring 8170 sqft. were mortgaged on 11 July, 1983. All these documents have not been specifically rebutted on behalf of the accused persons. From the testimony of PW7 Sh. Rohit Singh, Officer from Punjab & Sind Bank and the documents placed on record by him Ex. PW7/A (Colly), it can be delineated that the entire 8th floor was already mortgaged by M/s Jain Shudh Vanaspati Ltd in favour of Punjab and Sind FIR No. 363/91 State Vs. Tejwant Singh & Others 31/37 Bank against the loan raised. These documents clearly reveal that the entire 8th floor of building was mortgaged to Punjab & Sind Bank pursuant to allotment in favour of M/s Jain Shudh Vanaspati Ltd. Furthermore, from the suggestions posed to PW7 on behalf of accused persons, it can be gauged that entire 8th floor was allotted to M/s Jain Shudh Vanaspati Ltd by accused company M/s Skipper Towers Pvt Ltd.
38. The relevant extract of crossexamination of PW7 which indicate that the accused company had infact alloted the space in favour of M/s Jain Shudh Vanaspati Ltd is an under: "I do not know whether the bookings of space made by M/s Jain Shudh Vanaspati Ltd, Mr. Vinod Kumar Jain, Smt. Anju and M/s Jain Exports Pvt Ltd were provisional bookings and not the final booking. I am not aware whether the builder, with whom the space was booked by the aforesaid companies and persons, had the absolute power to cancel the provisional booking, increase/decrease the area of the bookings, change the flat number at its sole discretion or not.
Q. I put it to you that the builder never issued any permission for mortgage of the space booked by the aforesaid companies and persons. What do you have to say?
Ans. I have to check my bank records.
Q. I put it to you that the borrower M/s Jain Shudh Vanaspati Ltd managed the then officers of your bank and obtained financial assistance by allegedly mortgaging the space on the basis of which mortgage cannot be created. What do you have to say?
(objected to by the Ld. APP for the State as this question does not pertain to this witness).
Ans. In case the mortgage was invalid, it could not have been allowed by DRT, New Delhi.
I am not aware whether the Jain Shudh Vanaspati Group did not make timely payments in respect of the FIR No. 363/91 State Vs. Tejwant Singh & Others 32/37 space booked by them to the builder for which some of their bookings were cancelled and consequently their booked space was reduced".
39. From the aforementioned extract of cross examination of PW7, it stands sufficiently proved that space was allotted in favour of M/s Jain Shudh Vanaspati. Documents produced by PW7 abundantly suggest that 8 th and 9th floors were infact mortgaged in favor of Punjab and Sind Bank on 11 th July 1983 pursuant to the allotment by accused company. Accused Tejwant Singh also during his examination conceded that 8th and 9th Floors were allotted to M/s Jain Shudh Vanaspati Group. Though he claimed that some area was allotted to them on 8th and 9th Floors but he has not adduced any evidence to this effect. He went to admit that mortgage was also created by M/s Jain Shudh Vanaspati though while making that statement he intended to say that mortgage could not have been created on the basis of allotment letters alone and that accused company was never informed of the said mortgage. Thus it stands proved beyond the shadow of doubt that when PW3 Lal Chand Chimnani was allotted Flat no.809A on 04.02.1989 and PW5 was allotted Flat no. 810A on 12.05.1987 by M/s Skipper Sales Pvt Ltd (later transferred to M/s Skipper Towers Pvt Ltd), those flats were already allotted to M/s Jain Shudh Vanaspati Ltd.
40. Further, testimony of PW12 IO Rajender Bhatia also corroborates the testimony of witness PW3 and PW5 and overall case of the prosecution on material aspects.
41. Regarding the case of prosecution qua sale of Flat no. 702 in the building in question to different persons, though there is testimony of PW 6 Vinod Kapur to FIR No. 363/91 State Vs. Tejwant Singh & Others 33/37 this effect, however due to incomplete testimony of PW2 Rajeev Gupta and inability of other witnesses to depose, it could not be established that Flat no. 702 was sold to multiple buyers.
42. The upshot of above discussion is that Prosecution has been able to coalesce all the essential elements of cheating against the accused company M/s Skipper Towers Pvt. Ltd. The law with regard to liability of a corporation has been crystallized. A corporation can be held liable for crimes of intent. A company is not immune from any prosecution for criminal offences for which a sentence of mandatory imprisonment is prescribed, as the sentence can be imposed in terms of penalty and fine. The element of dishonest inducement was implicit in the issuance of allotment letters Ex.PW3/27 and Ex. PW5/A in favor of PW3 Lal Chand Chimnani and PW5 R K Arora in respect of Flat no. 809A and 810A respectively when the entire 8th and 9th Floors in the building in question were already allotted to M/s Jain Shudh Vanaspati. Further, the various letters written to them by the accused company and the receipts as discussed above show the amount of money invested by PW3 and PW5 in the Project towards their respective Flats, which prove that they were dishonestly made to part with their money causing them wrongful loss.
43. Now we embark upon the argument of the Complainant and prosecution regarding corporate criminal liability of the Directors. With vehemence, reliance is placed upon Judgment of Supreme Court in Delhi Development Authority v. Skipper Construction Company Pvt. Ltd. 1996 SCC (4) 622, para 28 is referred to regarding the concept of Corporate veil. As far as vicarious liability of the directors/accused no.2 and 3 is concerned, it is no longer res integra that in criminal law principle of vicariously liability is not applicable. However, there FIR No. 363/91 State Vs. Tejwant Singh & Others 34/37 are umpteen judgments of various Hon'ble High Court and Hon'ble Supreme Court wherein principle of lifting of corporate veil has been applied in order to fix the liability of the directors. However, in the instant case, though apparently contention of complainant and the prosecution that the accused directors are personally liable appears to be beguiling, particularly in the light of Judgment relied upon, however, on perusal of testimonies of prosecution witnesses particular PW3, PW5 and PW6, it is manifest that prosecution has failed to carve out the role of accused no.2 and 3 in the transactions in question. PW3 specifically avowed in his crossexamination that whenever he visited the office of M/s Skipper Tower Pvt Ltd, he met and interacted with the officials of the company whose names he did not remember. Further, when he was confronted with documents Ex. PW3/A to Ex. PW3/D and Ex. PW3/27 to Ex. PW3/30, he could not identify the signature of any of the directors. He also specifically admitted that he could not say whether he suffered any monetary loss in booking the space in question.
44. Similarly, PW5 also admitted that he never visited the office of M/s Skipper Tower Pvt Ltd nor discussed the matter with any officer/directors of the company. He infact admitted to have made the booking through one property dealer namely Manu Chawla who has admittedly not been examined as witness. He was also ignoramus as to who signed Ex. PW5/A and Ex. PW5/B to Ex. PW5/G on behalf of M/s Skipper Tower Pvt Ltd. In similar vein PW6 also admitted having paid the amount towards price of flat to the accused company and not to share holders. Thus, it is crystal clear that none of these witnesses has deposed about having any conversation with the accused no.2 and 3 i.e directors of the accused company or having paid any amount to them. Further, prosecution has not been able to place on record any material which can suggest FIR No. 363/91 State Vs. Tejwant Singh & Others 35/37 that accused directors siphoned off the amount received by the company for their personal needs. Though the Judgments relied upon by the prosecution speak about fixing the personal liability of Directors but those are on distinguished facts and in the case in hand evidence furnished is not sufficient enough to make Directors face the music.
45. To accord teeth to my view, reliance is placed on the Judgment of Supreme Court in Sunil Bharti Mittal v. Central Bureau Of Investigation, (2015) 4 SCC 609, wherein it was held in no uncertain terms that an individual who has perpetrated the commission of offence on behalf of company can be made accused, along with the company. However, to make an individual liable, there must be sufficient evidence of his active role coupled with criminal intent.
46. It is thus worth clarifying that a person cannot be held liable merely on the basis of the designation. No presumption can be drawn against the person occupying the position of a chairman or managing director only on the basis of their position.
47. Further, Complainant has also spoken about civil proceedings that took place before Hon'able High Court between the parties. However, for the purpose of case in hand, those proceedings are not required to be dwell upon.
48. In the backdrop of the above discussion, it is clear that accused company issued allotment letter Ex. PW3/27 in favour of PW3 Lal Chand Chimnani in respect of flat no.809A and PW5 R.K Arora in respect of Flat no. 810A on 8 th Floor in the building in question with a fraudulent intention and cheated them by obtaining payments made on different dates despite the fact that entire 8th FIR No. 363/91 State Vs. Tejwant Singh & Others 36/37 floor was already allotted to M/s Jain Shudh Vanaspati Ltd. Thus, accused company Skipper Towers Pvt. Ltd. is held liable for offence of cheating U/s 420 IPC and stands convicted. Let it be heard on the point of sentence.
Accused Tejwant Singh and Accused Surinder Kaur stand acquitted for lack of sufficient evidence. They are set at liberty.
Announced in the open court
Today on 15.02.2020 (Navjeet Budhiraja)
ACMM01/New Delhi District,
Patiala House Court, New Delhi
Certified that this judgment contains 37 pages and each page is signed by me.
(Navjeet Budhiraja) ACMM01/New Delhi District, Patiala House Court, New Delhi FIR No. 363/91 State Vs. Tejwant Singh & Others 37/37