Delhi District Court
Puneet Kumar Aggarwal vs Tarun Gautam And Ors on 22 May, 2024
IN THE COURT OF SHRI NAVJEET BUDHIRAJA,
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CRIMINAL REVISION PETITION NO. 440/2023
CNR NO. DLST01-011123-2023
IN THE MATTER OF:
Puneet Kumar Agarwal
S/o Late Sh. I C Aggarwal
R/o C-60, Soami Nagar, New Delhi
.......Revisionist
Versus
1. Tarun Gautam
S/o Late Sh. S N Gautam
R/o C-38, Niranjanpur Sabji Mandi
Dehradun, Uttarakhand.
2. Ratnesh Gautam
W/o Late Sh. S N Gautam
C-38, Niranjanpur Sabji Mandi
Dehradun, Uttarakhand.
3. Sumit Gautam
S/o Late Sh. S N Gautam
C-38, Niranjanpur Sabji Mandi
Dehradun, Uttarakhand
........Respondents
Instituted on : 30.10.2023
Reserved on : 30.04.2024
Pronounced on : 22.05.2024
Decision : Dismissed
1
JUDGMENT
Vide this judgment, I shall dispose of the present revision petition filed on behalf of revisionist challenging the order dated 13.09.2023 (impugned order) passed by Ld. Metropolitan Magistrate-06, South, Saket, New Delhi (in short 'Ld. MM') in case bearing CT No.464767/2016, Police Station Hauz Khas, titled as 'Puneet Kumar Agarwal Vs. Tarun Gautam and Ors, whereby the respondents stood discharged for the offence under section 420 Indian Penal Code, 1860 (in short 'IPC').
2. Brief facts, as per revisionist, may be taken note of as under :
A. A complaint case under section 200 Code of Criminal Procedure, 1973 (in short 'Cr.P.C') was filed by the complainant (revisionist herein) against the accused persons namely Tarun Gautam, Ratnesh Gautam and Sumit Gautam (all respondents herein).
B. It is alleged that the abovesaid respondents had floated a firm namely M/s Imaginations Agri Exports and were active partners therein having shares of 40%, 30% and 30% each respectively.
C. It is further stated that the revisionist was working in T I Diamond Chain Ltd where respondent no.1 namely Tarun Gautam had applied for the post of Senior Sales Officer in the said company in the year when the revisionist was the Regional 2 Sales Manager and he interviewed and appointed the respondent no.1 as Senior Sales Manager and since then the revisionist and respondent no.1 were known to each other and through respondent no.1, the revisionist came in family terms with respondent no.2 and 3.
D. It is further stated that in the month of October 2003, respondent no.1 told the revisionist that he had opened a firm in the name and style of M/s Imaginations Agri Exports with respondent no.2 and 3 as partners and would be doing the work of supply of fresh fruits and vegetables and requested the revisionist to advise him from time to time in the said business in future also.
E. It is further stated that in the year 2006, revisionist shifted to Chennai with his family and joined a company namely Shriram EPC Ltd as CEO (Energy) and the respondent no.1 continued requesting him to join his business and assured that the revisionist would get very good returns.
F. It is also stated that in January 2007, revisionist fell in their trap and agreed to join the firm of respondents as they assured the revisionist that he would be taken as working partner in the firm and would be given profits which would accrue to the said firm and further assured to the revisionist whatever expenses/amount which is going to be incurred at his end and whatever amount, if needed, then these expenses and amount will be returned to the loan amount along with interest @2%pm. On the said repeated assurances of the respondents, the revisionist 3 agreed to join the business as it's working partner from 30.04.2007 onwards on mutually agreed terms and conditions which are reflected in paragraph 5 of the complaint.
G. Respondent no.1 started demanding money from the revisionist from March 2007 onwards and assured him that the amount will be treated as a loan and the respondents will pay back and return the total amount (along with interest @2% pm) to the revisionist within 2-3 months and on the said repeated assurances and constant promises of the respondents, the revisionist had given an amount of Rs.21,21,550/- (the said amount is considered up to 31.03.2008 and including expenditure incurred at revisionist's end but excluding the interest @2% pm) as mutually agreed-oral terms and conditions between the respondents and the revisionist.
H. On behalf of the revisionist, the impugned order has been challenged on myriad grounds that the Ld. MM has not rightly considered the pleas of the revisionist which goes to the root of the impugned order, the non consideration of the pleas raised on behalf of the revisionist in his oral arguments and written arguments amounts to violation of principle of natural justice which has rendered the impugned order unsustainable, Ld. MM has dealt with the matter in a mechanical manner, revisionist has prima facie established his case with regard to the inducement made by the respondents, Ld. MM has failed to appreciate that cheating/fraud/deception are directly proved from the acts of the respondents as on 10.10.2008 and 12.10.2008, they made the payment of Rs.21,21,550/- to the revisionist 4 towards the fulfillment of the conditions as specified in paragraph 5 of the complaint, that the respondents issued the cheque in question with mala fide and dishonest intention to cause illegal loss to the revisionist knowingly well that the said cheque will not get honored owing to the insufficiency of funds and, thus, the impugned order suffers from an error which is apparent from the face of record and the same is thus liable to be set aside, Ld. MM has erred in considering the apology letter dated 12.10.2008, the contents of the said letter go on to prove the ill conduct, mala fide intention, bad motive and illegal acts of cheating, fraud and conspiracy of the respondents, Ld. MM has failed to consider that the respondents have admitted taking the loan of Rs.10 lacs from the revisionist by showing him as creditor in the ITR 2006-07 of the partnership firm, Ld. MM has failed to appreciate that the respondents have admitted an amount of Rs.12,20,000/- which was transferred by the revisionist directly into the account of the partnership firm, Ld. MM has also failed to consider that the revisionist has incurred other official expenses for their firm as per mutually agreed terms and conditions, Ld. MM has failed to consider the order dated 02.05.2011 passed by Ms. R Kiran Nath, Ld. ASJ, South, Saket, New Delhi, Ld. MM has failed to consider that the expenses incurred by the revisionist from 09.03.2007 to 31.03.2008 are clearly elucidated in a tabular form which were not reimbursed/paid to him which amounts to cheating, Ld. MM has also failed to consider that despite waiting patiently for 11 months, it became impossible and unbearable for the revisionist to make his ends meet, even for his day to day expenses who was made and forced to quit, Ld. MM has failed to consider various 5 orders passed by the High Court of Delhi and the Supreme Court in favor of the revisionist dated 19.02.2013, 09.03.2015 and 06.05.2015, judgment relied upon by Ld. MM i.e. Vijay Kumar Ghai and Ors Vs. The State of West Bengal and Ors, 2022 Live Law (SC) 305 is not applicable to the present case.
3. Reply on behalf of the respondents came to be filed stating that no prima facie charge is made out against the respondents in relation to the offences as alleged by the revisionist in the complaint. It is further stated that there has been no inducement of any kind from the respondents to the revisionist and all the transactions which were exchanged between the revisionist and the respondents were completely honest and out of free will. It is further stated that at no point, any promise was made to the revisionist which could have led him to be induced into the alleged trap of the respondents.
3.1. It is further stated that all the averments made by the revisionist wherein he has alleged that the respondents induced him with false promise to invest money into the firm and that it would be treated as a loan are totally false. It is further stated that the respondents had already done part commissioning of the plant, for which the revisionist had shown the interest in the firm of the respondents.
3.2. It is further stated that the real reason and motive behind the revisionist relocating to Dehradun was that he wanted his son to be admitted to Doon School, Dehradun and with this design and intention, the revisionist offered his services to the 6 respondents.
3.3. It is further asserted that the loan of Rs.11 lacs which was later reduced to Rs.10 lacs is an admitted position of the revisionist and evident from the record and no further amount was paid by the revisionist to the firm. The revisionist had spent certain amount on his own discretion and without any permission of the respondent firm for which no vouchers or bills were ever given and raised against the respondent firm. Respondents relied on the balance sheet filed in the corresponding cases under section 138 Negotiable Instruments Act (in short 'NI Act') concerning the same cheque and also on the basis of cross examination conducted before the court.
3.4. It is further stated that payment of Rs.11 lacs was never received from the revisionist by any kind of inducement or by making any false promise. It is further stated that how come an entity working in the area for more than 20 years would accept a meager amount of Rs.11 lacs from someone for the purpose of making the said person a partner of almost 50% as alleged by the revisionist. It is further stated that there is nothing on record to establish by way of any communication in writing or orally which shows and proves that the revisionist ever demanded the sum as stated in his alleged account as filed before the court.
3.5. It is further stated that it is verbal statement of the revisionist that he had given an amount of Rs.21,21,500/- whereas the books of account show an amount of Rs.10,00,000/-
7and further Rs.1,00,000/- additional was given which was later returned. There is no evidence of providing anything more than Rs.10,00,000/- plus Rs.1,00,000/- on record and the total Rs.11,00,000/- has already been returned to the revisionist during the course of civil proceedings before the High Court of Delhi. It is further stated that the dispute is of civil nature which is being given the color of criminality and revisionist has tried to mislead the court by adding to the claim an amount which originally is his own expenses and has no bearing or relation with the respondents or the respondent firm.
3.6. It is further stated that according to Section 69 of the Indian Partnership Act, it is evident that the revisionist cannot proceed for a litigation whether under the Civil or criminal law on the premise that he was assured of being a partner, as on the said date he had no locus standi and there is nothing to show that a partnership will ensue and a deed will be enacted by way of any writing or conduct of the parties, except the bald averments of the revisionist.
3.7. It is further stated that there is no evidence on record or a document to claim any relief in the case as a matter of right because the revisionist was never a registered partner of the respondents firm or could have proceeded as per the documentation on record. It is further stated that the alleged oral agreement between the parties mentioned in para 5 of the complaint cannot be considered to be reliable piece of evidence. It is further stated that there was no false inducement or any false promise made to the revisionist by the respondents and 8 revisionist left the respondents firm of his own will before the commissioning of the food processing unit. It is further stated that revisionist has filed a summary suit bearing number 922/2010 wherein in the leave to defend application, the respondent concern admitted having received Rs.11 lacs in total and have paid Rs. 1 lac back prior to filing of the summary suit. It is also stated that there is no amount of Rs.21,21,550/- was ever paid by the revisionist and there is no receipt given or any evidence produced to show that such payment was ever made. It is further stated that revisionist has cooked up a story and is prompting the court to accept his illegal activities and to put the respondents to the peril of prosecution without any evidence and only on the basis of surmises and conjectures.
3.8. It is further stated that the Court in Delhi does not have jurisdiction to adjudicate upon the present matter as the alleged transaction between the parties took place at Dehradun and nothing material happened in the NCT of Delhi. It is, lastly, stated that disputes raised by the revisionist in the present case do not disclose commission of any criminal offence.
4. On behalf of the revisionist, Ld. Counsel Ms. Rashi Agarwal and on behalf of respondents, Ld. Counsel Sh. T P S Kang advanced their respective arguments.
5. Brief landscape of the case of the revisionist as originally filed before the court of Ld. MM is that the complaint in the form of an application under section 156(3) Cr.P.C was filed against the respondents for the offences under section 9 420/406/120B IPC which came to be disposed of vide order dated 04.02.2009 with direction to the revisionist to lead complainant's evidence to prove his allegations. Further, after the complainant having led his evidence and produced the documents i.e. copy of the partnership deed executed between the respondents Ex.CW1/A, certified copy of the complaint dated 22.06.2008 Ex.CW1/B, copy of the letter dated 12.10.2008 Ex.CW1/C (OSR), certified copy of the cheque no.0998688 of Rs.21,21,550/-, copy of the note written behind the cheque, the dishonor memo receipt Ex.CW1/D (colly), copy of the complaint dated 29.11.2008 lodged with DCP, South Ex.CW1/E, complaint under section 156(3) Cr.P.C. Ex.CW1/F, complaint under section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act') Ex.CW1/G (colly), notice along with copy of courier, speed post, UPC dated 15.12.2008 Ex.CW1/H (colly), the concerned Ld. MM vide order dated 30.03.2010 opted to summon the respondent Tarun Gautam for offence punishable under section 420 IPC but the other two respondents were not summoned for lack of evidence. The revision petition preferred against the said order was allowed vide order dated 02.05.2011 and the remaining two respondents were also directed to be summoned as accused for offence under section 420/34 IPC.
6. Revisionist then led pre-charge evidence by examining himself as CW1 and was cross examined on behalf of all the respondents.
7. On the point of charge, Ld. MM discharged all the accused persons for the offence under section 420 IPC vide 10 impugned order dated 13.09.2023. The relevant observations of Ld. MM are as under:
"Considering the above discussion, there is nothing on record to show that at any point of time he was induced by the accused persons.
There is also nothing on record that accused persons fraudulently asked to give the money to complainant and incurred expenditure. There is also nothing on record to show that complainant gave money after any kind of deception practiced upon him. The elements of deception and inducement on part of accused persons is not evidence from the record. Since the elements of cheating are not made out, the charge u/s 420 IPC cannot be framed.
It is also not the case of complainant that he had entrusted the amount to accused persons.
Every loan granted or expenditure incurred in service cannot be considered as entrustment within the definition of criminal misappropriation of property. Even elements of criminal misappropriation of property is also not made out in the present case."
8. Let us also see the scope of revisional jurisdiction as enunciated by Supreme Court of India in Amit Kapoor Vs Ramesh Chander, (2012) 9 SCC 460 wherein it observed that 'if one looks into the various judgments of this Court, it emerges that a revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is 11 exercised arbitrarily or perversely. The jurisdiction under Section 397 is very limited one. The legality, propriety and correctness of an order passed by a Court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done'.
9. Let us now examine the contents of the complaint and the evidence on record to ascertain whether the complaint in question and the evidence led therein, are fulfilling the essential requirements of the offence under section 420 IPC.
10. The factual matrix of the case has been narrated in the impugned order and can be noted as it is.
"According to complainant, since 2001 accused no.1 started working as Senior Sales officer in the same company in which he was working as Regional Sales Manager North India and during the course of time they developed family terms and relations. Accused no. 2 is the mother and accused no.3 is the brother of accused no.1. In the year 2003, accused no.1 left the company and he informed him that he had opened a partnership firm in the name and style of Imaginations Agri Exports in Dehradun with the partners as Ratnesh Gautam and Sumit Gautam of the said firm alongwith him. From 2006 onwards, the accused persons have been requesting him to join their firm as a working partner and was assured by all the accused that he would be given profits in the said business of the firm wherein he was supposed to look after the current business of supply of fresh fruits and vegetables and other-related 12 activities and also to set up the green field food processing unit at Dehradun. Since he was mechanical Engineer accused persons wanted him to help the business by looking after the current business as well as for setting up the new food processing unit. On the repeated pestering of all the accused he fell in their trap in 2007 on mutually settled and mutually agreed upon terms and conditions (as 15 indicated in my complaint as para no. 5a to 5g) to join from April end 2007 onwards. As per the repeated requests and constant false promises and assurances he was made to join the firm and give the total loan amount of Rs. 21,21,550/- (till 31 March 2008) and this amount excludes the interest @ 2% per month. All the accused failed to honour their promises and assurances to return his money. He was constrained to file a complaint with PS Vasant Vihar at Dehradun on 22.06.2008.
Thereafter he received a letter dt.
12.10.2008 on the letterhead of the firm i.e. Imaginations Agri Exports, Dehradun of all the three accused persons along with cheque no. 0998688 dt. 10.10.2008 for an amount of Rs. 2121550/- as a principal amount through registered letter. The aforesaid cheque send along with letter dt.
12.10.08 was dishonoured on presentation on the ground of "not arranged for". They had also admitted their liability for an amount of Rs.12,20,000/- in IA No. 1804/2012 in Suit (OS) 922/2010 before Hon'ble Delhi High Court. He have deposited Rs.
1 lakh in the account of the firm i.e. Imaginations Agri Exports through cheque as well as similar amount by way of cash. An amount of Rs. 120000/- was paid to the creditors of the firm 13 Imaginations Agri Exports."
11. Revisionist herein has claimed to have known respondent no.1 Tarun Gautam since 2001 and over the period of time, they developed family terms and relations and that is how he knew respondent no.2 (mother of respondent no.1) and respondent no.3 (brother of respondent no.1). This claim as such has not been refuted on behalf of the respondents. It is also not refuted that in the year 2003, respondent no.1 left his job in the company where revisionist was also employed and also told him about starting his own business. It is the case of the revisionist that from 2006 onwards, the respondents had been requesting him to join their firm and lured him by offering him good returns. He was asked to join the firm as working partner and was assured by all the respondents that he would be given profit in the said business of the firm and he was supposed to look after the current business of supply of fresh fruits and vegetables and other related activities and also to set up the green field food processing unit in Dehradun, since he was a mechanical engineer holding good experience and was a technical person.
12. Revisionist further deposed that on the repeated and constant pestering of all the respondents, he joined their firm in April 2007 on mutually settled and mutually agreed terms and conditions which can be culled out from the complaint as under:
"5.....
(a) Till the period the food processing unit gets commissioned fully (including the start of commercial production), all the monthly expenses of the complainant (covering routine household and other related 14 expenses) as-well-as car petrol expenses and its running and maintenance expenses, etc, will be borne and paid by the firm at actuals and on monthly basis regularly.
(b) Once the commercial production gets completely streamlined, profit (PBDIT) sharing of 50 per cent exists (that is, PBDIT on 50:50 basis) for the complainant and the complainant is entitled and eligible to get the same along with his continued eligibility and entitlement for profit (PBDIT) sharing on 50:50 basis for all its current business of supplied of fruits and vegetables, cold storage business activities and likewise as-well from the day one, that is, 30th April, 2007 without any prejudice or bias.
(c) All the monthly expenses of the complainant (i.e. household and related expenses as-well-as those of car petrol running and maintenance, etc.) will be continued to be borne and paid on actual basis by the firm.
(d) Any money (either cash or cheque) which would be given by complainant to the firm (either before or after his joining the firm) and also any expenses incurred by complainant and reimbursement made by him for and towards any official work then that money/expenses incurred/reimbursement done will be treated as loan given by him to the firm and the same has to be returned to the complainant by firm or its managing partner, that is, accused no.1 within 2-3 months from its date of disbursement along with interest @ two per cent p.m. till this loan amount gets cleared off completely.
(e) The firm would be bearing all the shifting expenses of the complainant from Chennai to 15 Dehradun including airfare/train fare (By AC 2-Tier) for him and his family, disturbance allowance, relocating expenses, etc in Dehradun and Hotel accommodation (at actuals) for him and his family in Dehradun till he's able to find his residence and shift therein. These shifting expenses also included expenses towards packing and packaging including transportation of his household items and car as-well.
(f) If the firm asks complainant to leave or he quitting the firm then in either of the situations, firm would be bearing all the shifting expenses from Dehradun to Delhi by car (at actuals)/rail (AC 2 Tier) for the complainant and his family, packing/packaging and transportation of his household items/articles, disturbance allowance/relocating expenses, etc, to Delhi on actual basis.
(g) There will be no investment of any kind/sort at complainant's end at any stage in the firm."
13. Admittedly, as per the cross examination of revisionist/CW1 dated 17.08.2016, he did not give any request in writing but an oral request was placed with all the respondents, in the cross examination dated 15.07.2017, he admitted that no document of mutually settled terms and conditions was prepared and in the cross examination dated 03.12.2022, he admitted that there was no written agreement and all the terms and agreements were orally agreed. To this extent, there is no cavil from either side.
14. The stand of the respondents as noted from the reply to the revision petition is that they did not request the revisionist 16 to advice them in the said business and it was the revisionist himself who wanted to join the business and always used to inquire about the details of the firm from respondent no.1. It is further the stand of the respondents that revisionist joined the respondent firm in January 2007 out of his own free will and there were no assurances of any kind given to him. It is further the stand in reply to the revision that there were no mutually agreed terms and conditions between them and the revisionist and that respondent no.1 never demanded any money from the revisionist from March 2007 onwards and there was no assurance that the amount will be treated as a loan and that the respondents would pay back and return the total amount along with interest @2% per month.
15. The aforesaid stand of the respondents, in totality, was never put to the revisionist in his cross examination as CW1 except for some suggestions that there was never any offer from the respondents side and that revisionist never had any discussion with the respondents. Thus, not much credence can be accorded to the aforesaid stand of the respondents. Anyhow, the respondents, in their reply to the revision petition, at least have come clean on the aspect that the revisionist had joined the respondent firm in January 2007.
16. Moving further, the allegations of the revisionist as mentioned in the complaint and his evidence as CW1 of having incurred certain amount during the course of his transaction with the respondents also stand substantiated from the fact that the cheque bearing number 0998688 dated 10.10.2008 was issued to 17 the revisionist in the sum of Rs.21,21,550/- which got dishonored and revisionist having availed his remedies under NI Act as well as by way of a civil litigation wherein admittedly the respondents have paid him an amount of Rs.34 lacs approximately. Though, during the evidence of revisionist/CW1 before Ld. MM, the respondents disclaimed having issued any cheque to the revisionist in discharge of their liability and it was suggested to him that the said cheque was stolen by the revisionist from the premises of the respondents, but this stand of the respondents also is nothing but a ruse in order to conceal their transactions with the revisionist as there is no such complaint by the respondents that the cheque was stolen by the revisionist, there are no details mentioned as to under what circumstances, the revisionist stole the cheque.
17. Nevertheless, what is to be considered herein is whether there was any dishonest inducement or fraudulent intention on the part of the respondents to cause wrongful loss to the revisionist during their transaction with him. In other words, whether the sum of Rs.21,21,500/- as claimed to have been loaned by the revisionist to the respondents was pursuant to any dishonest inducement or deception practiced at the end of the respondents followed by delivery of the said sum and non refunding of the same within the given time period had caused wrongful loss to the revisionist.
18. From the complaint and the evidence of the revisionist as CW1, it is discerned that on the assurances and promise of the respondents, the complainant had given an 18 amount of Rs.21,21,550/- (including expenditure incurred at the revisionist end) excluding interest @2% per month and the said amount was up to 31.03.2008 with the understanding that the revisionist would get back the money. But this transaction, in my opinion, would not fall within the province offence of cheating under section 420 IPC for the reasons indicated infra.
19. The complaint on behalf of the revisionist and evidence led by him as CW1 would reveal that in the year 2003, respondent no.1 spoke to the revisionist about opening a firm in the name and style of 'Imagination Agri Exports' with respondent no.2 and 3 and implored the revisionist to advise him from time to time in the said business. Thus, at that time, the alleged act of the respondents was in the realm of being a 'request' only. In the year 2006, when the revisionist shifted his base to Chennai, respondent no.1 continued to request to join his business and assured him to good return. Then, in the month of October 2006, again the respondents persuaded to the revisionist to join their business on the ground that business was going to prosper and that the firm was doing good business of supply of fresh fruits and vegetables. Then, on the constant pestering and assurances given by the respondents, in the month of January 2007, revisionist agreed to join their firm and was assured that he would be taken as a working partner who would be given profits and whatever amount would be needed and expenses incurred will be taken as loan.
20. Even if the aforesaid statement of the revisionist is taken to be true and it is assumed that he had joined the 19 partnership firm of the respondents at their repeated entreatments and assurances but upon bone deep analysis of the complaint and pre-charge evidence, it is made out that it is an admitted case of the revisionist that he agreed to join the current business and upcoming new business from 30.04.2007 onwards on the mutually agreed terms and conditions which have already been enumerated above. Once the element of mutual agreement and mutual terms and conditions is incorporated in any transaction between the parties, the element of deception or dishonest inducement by any one party pales into insignificance. The terminologies used in section 415 IPC which defines the offence of cheating i.e. 'deceiving any person', 'fraudulently' and 'dishonestly' would only constitute offence if the offender by his unilateral acts would induce the victim to part with his property and there is minimal to no participation by the victim himself. In the case in hand, from the holistic reading of the entire complaint and examination in chief of CW1, it is unfolded that complainant has employed the words 'mutually agreed terms and conditions', 'which were mutually settled and mutually agreed upon' in paragraph 5, 6 and 7 of the complaint. In the examination in chief dated 15.07.2013, revisionist/CW1 stated that on mutually settled and mutually agreed upon terms and conditions, he joined the firm from April 2007 onwards. Then in his examination dated 17.08.2015, he stated that on 16.01.2007, respondent no.3 spoke to him over phone at length, discussed all the modalities of joining the firm and confirmed the terms and conditions as mutually agreed between them. Further, he also admitted that in March 2007, all the respondents had confirmed the mutually agreed terms and conditions between them. Then, in his cross 20 examination dated 15.07.2017, revisionist/CW1 reiterated that on 16.01.2007, the terms of settlement were negotiated with respondent no.3 and thereafter, respondent no.1 also negotiated and confirmed the terms affirmatively on 26.01.2007 and 27.01.2007 at Delhi. Thus, when revisionist had ample opportunity to chalk out the modalities of joining the firm of the respondents and negotiations took place between them on different occasions and then the terms and conditions were mutually settled, revisionist ought to have secured his interest by incorporating certain terms and conditions which would have safeguarded his expenses. Once his participation in the transaction with the respondents became voluntary and mutual, he cannot complain about any deception being exercised upon him by the respondents and, therefore, his allegation that he parted with sum of Rs.21,21,550/- purely on the dishonest inducement and deception being practiced upon him by the respondents cannot sustain and deserves to be shot down.
21. Complaint also reveals that in paragraph 5(d), it is claimed that the money, expenses incurred, reimbursement done will be treated as loan which would be cleared within two to three months from the date of its disbursement and the same allegation is reiterated in paragraph 7 whereas in paragraph 9, complainant has alleged that he was assured by the respondents that he would get back his money as and when he would demand the same. This inconsistency in the complaint itself has remained inexplicable. It is not clear whether the amount was to be refunded two to three months later or immediately upon being demanded by the revisionist. This further indicates that the entire 21 transaction between the parties in fact was in the nature of loan transaction which was to be reimbursed to the revisionist by the respondents. Even if the revisionist had to resort to the civil remedies to reclaim the loan amount, no inference can be raised that the respondents harbored any dishonest or fraudulent intention from the very beginning to cheat the revisionist and to cause him wrongful loss particularly in the light of the averments of the complainant that terms and conditions were mutually settled between the parties. In such eventuality, revisionist ought to have contemplated that whatever amount he was incurring during the course of his employment with the respondents firm, the same was being done with the mutual agreement between the parties.
22. Further, revisionist has failed to delineate the various heads in which the amount of Rs.21,21,550/- was paid. In his cross examination dated 03.12.2022, he admitted to not having vouchers of monthly expenses (i.e. household and related expenses as well as those of car petrol running and maintenance etc). It is an irrefragable position that barring Rs 10 Lacs the remaining amount was not paid in one shot as the said amount admittedly had covered household expenses, car petrol running and maintenance etc as per his cross examination dated 03.12.2022. No doubt that the revisionist came to be in possession of a cheque of the equivalent amount but the same would have only given rise to a presumption under section 139 of NI Act but there is no such presumption existing in case of offence under section 420 IPC and the revisionist was bound to establish the aforesaid amount under different heads as claimed 22 by him for the reason that admittedly, the amount of Rs.21,21,550/- contained different heads and it must have accumulated on different occasions and the revisionist was bound to spell out the dishonest inducement at the end of the respondents at different occasions when any part of the amount was loaned to them.
23. It is one of the arguments of the revisionist that dishonest concealment of the facts is a deception within the meaning of section 415 IPC which has not been considered by the Ld. MM, however, this argument does not pass any muster as the complaint does not reveal explicitly as to what concealment was done by the respondents before the transaction started between the parties and when the revisionist has himself acknowledged having entered into oral agreement with the respondents on mutual agreed terms and conditions, there does not arise any occasion for concealment of facts amounting to deception.
24. The next argument on behalf of the revisionist is that the cheque in question returned back with the remarks "not arranged for" which indicates the malafide and dishonest intention of the respondents. This argument certainly has some force to it, however, the legal position is that in case the cheque is issued by any party from his account after closing the account deliberately, that would attract the offence of cheating (reference to Kerala High Court Judgment T.O Souriyar Vs. Muttom Abdula Kanjirathinkal House and Ors, 2023 LiveLaw (Ker)
704), but in this case, the cheque was returned with remarks "not 23 arranged for" which is akin to "funds insufficient" and, thus, it would not fall within the province of the offence of cheating under section 420 IPC.
25. The next argument pertains to apology letter 12.10.2008 purportedly issued by the respondents Ex.CW1/C which as per the revisionist proves the acts of cheating, fraud and conspiracy of the respondents, but in my opinion, there is nothing in the said letter which could suggest any act of subterfuge by the respondents to cause wrongful loss to the revisionist. The said letter speaks about the loan, the expenses being incurred by the revisionist and the delay in returning the loan, and there is no quarrel regarding the said fact, but the contents of the letter are not such which would bring the case of the revisionist within the ambit of the offence of cheating.
26. The next argument is that during the period from 30.04.2007 to 31.03.2008, the respondents did not release a single penny to the revisionist towards the loan amount, however, this argument also is of no consequence in the wake of the preceding discussion that whatever amounts were incurred by the revisionist was in his contemplation after having mutually agreed with the respondents and in view of the disparate stand of the revisionist as to whether the amount was to be returned within two to three months of disbursement or immediately being demanded by him, an offence of cheating cannot be pressed against the respondents, even if there was delay in repayment of the loan.
2427. In so far as the question of territorial jurisdiction of this court is concerned, no doubt, the parties transacted the business in Dehradun, but since the revisionist received the cheque for sum of Rs.21,21,500/- in Delhi, the same being also deposited in his account in Delhi, part of cause of action can be said to have arisen within Delhi and, thus, this court has the territorial jurisdiction to adjudicate the present complaint.
28. For the reasons mentioned in the impugned Order and the additional forgoing reasons, it is held that Ld. MM had rightly concluded that the dispute between the parties is relating to the loan amount as well as expenses incurred by the revisionist in the course of his employment and there is nothing on record to show that at any point of time the revisionist was induced by the respondents fraudulently to give money to them. The impugned order dated 13.09.2023 discharging all the respondents from the offence under section 420 IPC does not warrant any interference. Revision petition stands dismissed. Digitally signed NAVJEET by NAVJEET BUDHIRAJ BUDHIRAJ Date: 2024.05.23 16:18:54 +0530 Announced in the open Court (Navjeet Budhiraja) on 22.05.2024 ASJ-02/South District Saket / New Delhi 22.05.2024 25