Delhi High Court - Orders
Brajinder Singh Batra vs State Nct Of Delhi on 22 November, 2024
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~75&76
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 9157/2024
BRAJINDER SINGH BATRA .....Petitioner
Through: Mr. N. Hariharan, Senior Advocate
with Mr. Shadman Ahmed Siddiqui,
Mr. Siddharth S. Yadav, Ms. Punya
Rekha Angara, Mr. Aman Akhtar,
Mr. Ayush Kumar, Ms. Sana Singh,
Ms. Vasundhra N. Mr. Vinayak, Mr.
Kashish Ahuja and Mr. R. Ashok,
Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Ms. Shubhi Gupta, APP for the State
with Insp. Harpal Madan, P.S.: EOW
and Insp. Abhishek.
+ CRL.M.C. 9159/2024
HARPREET SINGH BATRA .....Petitioner
Through: Mr. Anirudh Bakhru, Mr. Shadman
Ansari and Mr. Mohd. Umar,
Advocates.
versus
STATE GOVT OF NCT OF DELHI .....Respondent
Through: Ms. Shubhi Gupta, APP for the State
with Insp. Harpal Madan, P.S.: EOW
and Insp. Abhishek.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 22.11.2024 This is a digitally signed order. CRL.M.C. 9157/2024 & connected. Page 1 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2024 at 21:57:06 CRL.M.A. 35082/2024 in CRL.M.C. 9157/2024 (for exemption) CRL.M.A. 35085/2024 in CRL.M.C. 9159/2024 (for exemption) Exemption granted, subject to just exceptions.
Let requisite compliances be made within 01 week.
The applications stand disposed-of.
CRL.M.C. 9157/2024 & CRL.M.A. 35081/2024 (stay) CRL.M.C. 9159/2024 & CRL.M.A. 35084/2024 (stay) By way of the present petitions filed under section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 („BNSS‟), the petitioners, who are directors of M/s. Imperia Structures Pvt. Ltd., impugn order dated 17.08.2022 passed by the learned Chief Metropolitan Magistrate, Saket District Courts, whereby the learned CMM has been pleased to take cognizance of the offences under sections 420/406/120-B of the Indian Penal Code, 1860 („IPC‟) in case FIR No. 0075/2018 dated 24.03.2018 registered at P.S.: Economic Offences Wing, Delhi („subject FIR‟).
2. Mr. N. Hariharan, learned senior counsel appearing for the petitioner in CRL.M.C. No. 9157/2024 submits, that the case relates to allegations against the petitioners inter-alia arising from the construction and development of a real estate project in Greater Noida, Uttar Pradesh.
3. Mr. Hariharan submits, that there were 05 directors in M/s. Imperia Structures Pvt. Ltd., 02 of whom being lady directors had approached this court earlier by way of CRL.M.C. No. 2087/2023 impugning the same cognizance order that is subject matter of the present petitions. It is submitted that vide order dated 24.03.2023 passed in CRL.M.C. This is a digitally signed order. CRL.M.C. 9157/2024 & connected. Page 2 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2024 at 21:57:06 No. 2087/2023, a Co-ordinate Bench of this court was pleased to set- aside the order qua those directors and the matter was remanded back to the learned CMM directing the learned trial court to "... ... examine the records of the case and the evidence with respect to those petitioners as put forth in the chargesheet and pass necessary orders thereafter in accordance with law."
4. Learned senior counsel submits, that the present petitioners are 02 other directors of the same company, who are aggrieved by the same cognizance order dated 17.08.2022 which reads as under:
"PRESENT: Ld. App for The State Inspector Krishan Kumar in Person "Submission Heard. File Perused.
"There is sufficient material (sic : on) record to show prima facie that all accused Harpreet Batra, Brajinder Singh Batra, Kamaljit Kaur Batra, Harneet Kaur Batra & M/S Imperia strictures (sic : Structures) Ltd. (Directors Harpreet Singh Batra) had committed on (sic : an) offence punishable u/s 420/406/120-b IPC.
"I therefore take cognizance of the offence. Issue summons to all accused through concerned PS for 14.12.2022."
5. Mr. Hariharan argues, that the material that has come on record alongwith chargesheet dated 16.08.2022 as well as supplementary chargesheet dated 26.09.2024 shows that the Investigating Officer („I.O.‟) has concluded that no case is made-out against the present petitioners for diversion of funds received from flat-buyers; and in fact, as per the report of the statutory auditor of the project, M/s. Imperia Structures Pvt. Ltd. has spent approximately Rs. 349 crores on the development of the real estate project against about Rs. 347 This is a digitally signed order. CRL.M.C. 9157/2024 & connected. Page 3 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2024 at 21:57:06 crores received from flat-buyers, implying thereby that there cannot have been any diversion of funds.
6. Learned senior counsel further submits, that it also stands admitted in the chargesheet, that part-occupancy certificates of a portion of the project were issued to flat-buyers vide communication dated 06.03.2017, which subsequently culminated in the full completion of the project and handing-over of possession to flat-buyers, as detailed in a representation dated 26.06.2024 sent to the I.O. by the authorized representative of M/s. Imperia Structures Pvt. Ltd.
7. It is noticed that the representation narrates the particulars of flat-
buyers in whose favour sale deeds have been duly registered; the flat- buyers with whom the petitioners have settled the matter by refunding the sale consideration received; the flat-buyers whose allotment has been cancelled by reason of non-payment of consideration, which leaves 37 complainants out of a total of 75 whose cases remain to be resolved. In this behalf, Mr. Hariharan clarifies that possession letters have already been sent-out to the remaining 37 complainants also.
8. Mr. Hariharan submits, that the foregoing run of events shows a clear lack of any intention to deceive on part of the present petitioners, and that therefore, the most essential ingredient of the offence under section 420 of the IPC is not made-out.
9. All else apart, learned senior counsel submits, that in light of the observations made by the Coordinate Bench in order dated 24.03.2023 passed in CRL.M.C. No. 2087/2023, in respect of the 02 lady directors of the same company who had challenged the same cognizance order, it is also evident that the impugned order is cryptic This is a digitally signed order. CRL.M.C. 9157/2024 & connected. Page 4 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2024 at 21:57:06 and does not disclose any application of mind to the material that has come on record by way of the charge-sheet and the supplementary charge-sheet. Mr. Hariharan submits, that the impugned order contains no discussion as to how the ingredients of the offences under sections 420 or 406 or 120-B of the IPC are made-out; and if so, based on what material.
10. Mr. Anirudh Bakhru, learned counsel appearing on behalf of the petitioner in CRL.M.C. No. 9159/2024 adopts the submissions made by Mr. Hariharan and prays that the effect and operation of the impugned order be stayed.
11. On a prima-facie view of the matter, issue notice.
12. Ms. Shubhi Gupta, learned APP appears for the State on advance copy; accepts notice; and seeks time to file status reports.
13. Learned APP submits, that considering the nature of the offences alleged and the fact that there are multiple complainants whose grievance still remains to be redressed, there was no requirement for the learned CMM to have entered-upon a detailed discussion of the material on record and the cognizance order is therefore valid and tenable in law.
14. Let status reports be filed within 06 weeks, responses thereto, if any, be filed within 04 thereafter; with copies to the opposing counsel.
15. Considering the circumstances of the case, upon a perusal of the impugned order and in view of the submissions made at the Bar, what is evident is that the impugned order is utterly bereft of any discussion of the material that may have come on record by way of chargesheet and the supplementary chargesheet; the order also contains nothing to This is a digitally signed order. CRL.M.C. 9157/2024 & connected. Page 5 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2024 at 21:57:06 show how the essential ingredients of the offences under sections 420 or 406 or 120-B of the IPC are made-out, and if so, based on what material.
16. It may be observed that taking cognizance of a penal offence has very serious consequences on the accused persons who may subsequently be charged; and a cryptic, non-reasoned and perfunctory order which takes cognizance of serious offences punishable by upto 07 years without any application of mind and thereby inter-alia placing the petitioners at the mercy of the criminal justice system cannot be countenanced.
17. In view thereof, the effect and operation of impugned order is stayed till the next date of hearing.
18. Re-notify on 24th February 2025.
ANUP JAIRAM BHAMBHANI, J NOVEMBER 22, 2024/ss This is a digitally signed order. CRL.M.C. 9157/2024 & connected. Page 6 of 6 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2024 at 21:57:06