Delhi District Court
D. D. Aggarwal S/O Sh. Ram Pratap ... vs M. R. Jindal S/O Late Sh. B. D. Jindal on 6 June, 2012
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03,OUTER DISTRICT
ROHINI COURTS, DELHI.
Cr. Revision No. : 58/11
PS : Prashant Vihar
Unique Case ID : 02404R0 330812010
In Re:
1. D. D. Aggarwal s/o Sh. Ram Pratap Aggarwal
R/o : 53, Suvidha Kunja, Pitampura
Delhi-110034
2. Ishwar Chand Bansal s/o Sh. Budh Ram
R/o : B-82/2, East of Kailash
New Delhi
...Revisionists
VERSUS
1. M. R. Jindal s/o Late Sh. B. D. Jindal
R/o : 107, A-1, Sector-8, Rohini
Delhi.
... Respondent
Cr. Revision No. : 58/11
Date of Institution : 03.01.2011
Date of reserving judgment/order : 02.06.2012
Date of pronouncement : 06.06.2012
AND
Cr. Revision No. : 93/11
PS : Prashant Vihar
Unique Case ID : 02404R0 020812011
In Re:
1. M. R. Jindal s/o Late Sh. B. D. Jindal
R/o : 107, A-1, Sector-8, Rohini
Delhi.
...Revisionist
VERSUS
1. D. D. Aggarwal s/o Sh. Ram Pratap Aggarwal
R/o : 53, Suvidha Kunja, Pitampura
Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 1 of 28
2
Delhi-110034
2. Ishwar Chand Bansal s/o Sh. Budh Ram
R/o : B-82/2, East of Kailash
New Delhi
3. Rajender Kumar s/o Sh. Ravi Nandan
R/o : BK-1/172, Shalimar Bagh
Delhi.
4. Mool Chand s/o Sh. R. K. Aggarwal
R/o : SU-166, Pitampura
Delhi
5. Smt. Santosh Gupta w/o Sh. Mool Chand EXPIRED
R/o : SU-166, Pitampura
Delhi
6. I. C. Jindal
Director, B. R. Associates Pvt. Ltd.
ESS ELL House, Asaf Ali Road
New Delhi
R/o : H. No. 15, Sandesh Vihar
Pitampura, New Delhi
7. Mukesh Aggarwal s/o Sh. R. K. Aggarwal
R/o : 122, Harsh Vihar, Pitampura
Delhi
... Respondents
Cr. Revision No. : 93/11
Date of Institution : 28.01.2011
Date of transfer to this court : 20.10.2011
Date of reserving judgment/order : 02.06.2012
Date of pronouncement : 06.06.2012
ORDER
1. Vide this common order, I shall decide two criminal revision petitions titled as D D Aggarwal v. M R Jindal and M R Jindal v. D D Aggarwal, both preferred against the order of Ld. MM, dt. 29.10.2010 whereby revisionist D. D. Aggarwal and Ishwar Chand Bansal have been summoned as accused for offence punishable u/s 420/468/120-B IPC and respondents in case Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 2 of 28 3 titled as M R Jindal v. DD Aggarwal have not been summoned as accused.
2. It is worthwhile to mention that respondent no.5 Smt. Santosh Gupta was dropped from the arrays of respondent as she has expired.
3. The relevant facts for the disposal of the present revision petitions are that a complaint was filed by Sh. M. R. Jindal against seven persons namely D. D. Aggarwal, Ishwar Chand Bansal, Rajender Kumar, Mool Chand, Smt. Santosh Gupta, I.C. Jindal and Mukesh Aggarwal for offence punishable u/s 420/468/120-B IPC stating therein that a company namely Nanda Devi Builders (P) Ltd. was incorporated in July, 1989 and M. R. Jindal and accused no.1 (D D Aggarwal) were made initial Directors. Subsequently Sh. K. C. Goel and I. C. Bansal, accused no.2 joined the above company as Directors. Thereafter the company constructed Nanda Devi Tower at Prashant Vihar and single Director used to sell the portion of the tower and the sale by the single Director was being binding upon the other Directors. It is further stated that DD Aggarwal sold shop no.7 to accused no.3 Rajender Kumar on 3.5.2000 under his single signature and accused No.1 DD Aggarwal signed an agreement to Sell in this regard and the purchaser submitted the agreement to sell with the MCD for assessment of house tax with regard to the shop. That accused no.1 DD Aggarwal sold Hall No.2 situated at third floor to accused no.4 Mool Chand on 3.2.1994 under his single signature and signed an Agreement to Sell and the purchaser Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 3 of 28 4 Mool Chand submitted the documents with the MCD for assessment of house Tax. Accused No. 4 Mool Chand sold the aforesaid Hall to Sh. Pankaj Aggarwal who is son of accused no.1 DD Aggarwal on 27.01.1998, who also submitted the documents with MCD for assessment of tax. It is further stated that accused no.1 sold Hall No.4 to Smt. Anju Aggarwal w/o Sh. Mukesh Aggarwal on 3.2.1994 under his single signature and signed an Agreement to Sell, and Smt. Anju Aggarwal also submitted documents with MCD for assessment of house tax. Thereafter Smt. Anju Aggarwal sold the aforesaid Hall to Smt. Hiramani Devi wife of accused no.1 DD Aggarwal on 27.01.1998 and she also submitted documents with MCD for assessment of house tax. It is further stated that accused no.1 sold Hall No.1 to accused no.7 Mukesh Aggarwal on 3.2.1994 under his single signature and executed an Agreement to Sell in his favour and then accused no.7 submitted the documents with MCD for assessment of house tax.
4. Further, accused no.1 sold Hall No.3 to Smt. Santosh Gupta wife of Mool Chand on 3.2.1994 under his single signature and similarly executed an Agreement to Sell in his favour and then she submitted the documents with MCD for assessment of house tax. Similarly accused no. 1 also sold the entire second floor to B. R. Associates Pvt. Ltd. which has applied for assessment of house tax and sold Hall No. 2 at first floor to Shri V. K. Aggarwal and Smt. Uma Mittal on 20.07.1992 who have also applied for assessment of house tax.
5. It is further submitted that the complainant M. R. Jindal Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 4 of 28 5 entered into an Agreement to Sell with Shri Satyapal Jindal son of Han Raj with regard to sale of Shop No.4 and Shop No. 5 at Ground Floor on 19.06.2000 and 23.06.2000 respectively. It is further submitted that Sh. Satyapal Jindal has filed a suit for specific performance against Nanda Devi Builders Pvt. Ltd., complainant and accused nos.1 and 2. In the aforesaid suit, the complainant admitted the factum of execution of the agreement to sell in favour of Shri Satya Pal, however, accused no.1 and 2 have submitted that the complainant was not competent to execute Agreement to Sell in favour of Sh. Satyapal Jindal. During the pendency of the suit, the application for amendment was moved by Sh. Satyapal Jindal which was dismissed by the court of Additional District Judge, Delhi. Thereafter he filed revision petition before Hon'ble High Court wherein the complainant submitted photocopies of the earlier agreements executed by accused no. 1 under his single signature and submitted that it was a trend and practice in the company that a Single Director had been transferring the portions of the aforesaid tower under his single signature to various purchasers. In order to defeat the contention of the complainant, the accused nos. 1 and 2 have colluded with the officials of MCD and thereafter could be able to replace the copies of the aforesaid agreement earlier submitted by the respective purchasers of shop/hall with the MCD for assessment of their respective shop/hall with the copies signed by two Directors. For the aforesaid cheating and fabrication, the accused no.3 to 7 have also colluded with the accused no.1 to 2. The complainant had taken certified copies Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 5 of 28 6 of the agreements submitted with the MCD for assessments of house tax which were supplied to him and thereafter the complainant disclosed his stand regarding transferring by single Director under single signature under mutual understanding. Thereafter accused nos. 1 and 2 visited the respective houses of the accused nos. 3 to 7 and requested them to obtain signature of second director in their respective agreements to which they agreed and thereafter in collussion with the MCD officials got replaced the agreements signed by two directors. However, accused nos. 1 to 2 could not replace the agreement of Sh. V. K. Aggarwal and Smt. Anju Aggarwal and submitted the documents of Mool Chand but could not take earlier documents back. The complainant again applied for certified copies of the documents which were supplied to him. It was evident from the earlier documents that the same was signed by Single Director but from the subsequent certified copies it is evident that the same are signed by two Directors. The accused nos.1 and 2 while committing cheating and forgery joined hands with the accused nos 3 to 7 and hence complaint was filed.
6. Ld. Metropolitan Magistrate called for status report. IO filed the cancellation report. Ld. Metropolitan Magistrate, however, proceeded to record evidence of witness of the complaint and vide order dated 15.09.2007 summoned all the accused persons u/s 420/468/120B IPC in the complaint. Against the said order, revision petition was preferred to Additional Session Judge which was dismissed and thereafter the matter Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 6 of 28 7 went to hon'ble High Court of Delhi. Hon'ble High Court set aside the order dated 17.02.2007 and proceedings taken subsequent to the said dates and directed Ld. MM to pass reasoned order in respect of cancellation of the report.
7. Ld. Metropolitan Magistrate vide order dated 18.04.2009 took cognizance of the offence 190 (1) A Cr.PC and proceeded to record pre-summoning evidence. The complainant examined three witnesses in support of their case. CW-1 Sri Krishan, Head Cler, RTI Cell, Vigilance Department, MCD, who proved letter issued by their department as Ex. CW1/A on the RTI Application. CW-2 Sh. R. K. Saini, Jr. Technical Assistant, from the office of Registrar of Companies.
8. The complainant M. R. Jindal has examined himself as CW-3.
He deposed that he alongwith DD Aggarwal were made founder Directors of Nanda Devi Builders Pvt. Ltd. in January, 1990 K. C. Goel and I. C. Bansal were joined as Directors subsequently. As per the mutual decision any single Director can sell any portion of the aforesaid tower which will be binding to other Directors and according to the same DD Aggarwal sold the following portion of the building to the persons by signing as single Director on the sale documents. Shop No.7 (GF) to Rajender Kumar accused no.3 (Ex.CW-3/1), Hall No. 2 (302) TF to Mool Chand accused no. 4 (Ex.CW-3/2), Hall No. 4 (304) (TF) to Smt. Anju Aggarwal (Ex.CW3/3). Thereafter Smt. Anju Aggarwal sold to Smt. Hiramani Devi w/o Sh. D. D. Aggarwal. The documents are Ex.CW3/5. Hall No.3 (303) (TF) to Santosh Gupta Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 7 of 28 8 (Ex.CW3/6). He further stated that likewise he sold the following portion of the building to the following portions i.e. entire second floor (Flat No.201 to 204) to B. R. Associates, the documents are ExCW3/7 and Hall No. 2 (FF) to V. K. Aggarwal the documents are Ex.CW3/8. He proved certified copies of the documents Ex.CW3/1 to 3/8, obtained from the MCD on 20.02.2002 and some documents on 7.8.2009 and proved the copy of the receipts as Ex.CW3/9 to Ex.CW3/10.
9. He further stated that on 19.06.2002, he entered into agreement to sell with Satyapal Jindal with regard to shop no.4 at the ground floor. On 23.06.2002, he further entered into an agreement to sell with Satyapal Jindal with regard to shop no.5 at the ground floor. Accused no.1 and 2 became dishonest and did not honour to their commitment, pursuant to which they had received the advance totaling more than Rs.10 lakhs. That the accused no.1 and 2 become dishonest and did not execute the same documents with regard to the shop no.4 and shop no. 5 in favour of Satyapal Jindal and thereafter he filed the suit for specific performance of the contract. The accused no.1 and 2 in order to defeat the claims, got replaced the documents Ex.CW3/1 to Ex.CW3/8 after colluding with the officers of MCD. It is also stated that the purchaser after purchasing their respective properties, had applied the mutation with the MCD department for the purpose of house tax and and a copy of the documents had already been submitted there with MCD. The accused no.1 & 2 after replacing the documents, started Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 8 of 28 9 claiming that a single director had no power to execute any document. He immediately applied for the certified copies of the same documents and proved the copies of MCD receipts as Ex.CW3/9 and stated that the MCD supplied the certified copy of the same documents. He proved the replaced copy as ExCW3/10 with regard to shop no. 7 (GF). He also proved the copy of documents of Hall NO.2 (302) (TF) as Ex.CW3/11. However, the accused nos.1 &2 could not remove the earlier sale documents and proved Ex.CW3/12, the replaced documents of Hall no.4 (304) (TF) as ExCW3/13 and the replaced documents of Hall No.1 (301) (TF) as Ex.3/14. He further proved the replace documents of flat no. 21-24 of entire second floor which was sold in the name of V. R. Associates as Ex CW 3/15, the replace documents of Hall No. 2, first floor, which was sold to V. K. Aggarwal as Ex.CW3/16. He stated non only this the accused no. 1 and 2 have cheated the complainant to the tune of more than Rs.1 crore as rest of the portions were sold by them and not even a single profit was given to the complainant and further to grab the earnest money of number of persons, they illegally and unauthorizedly removed the complainant from the Directorship. Complainant filed a complaint with Central Vigilance Commission who forwarded the same to Vigilance Department of MCD to conduct enquiry which found that documents were replaced after colluding with four persons and proved report of Vigilance Department of MCD as Ex.CW 3/18.
Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 9 of 28 1010. Ld. Metropolitan Magistrate thereafter vide order dated 29.10.2010 opined that there are sufficient ground to proceed against accused nos.1 and 2, however complainant has not specifically assigned any role to accused nos. 3 to 7 and no prima-facie case is made out against them and summoned accused nos. 1 and 2. Hence the present revision petitions.
11. I have heard Sh. R. K. Jain, Ld. Counsel for the revisionist D. D. Aggarwal and Sh. Munish Tyagi, Ld. Counsel for respondent M. R. Jindal. I have also gone through the record.
12. Trial court record was called. I have also gone through he same.
13. Ld. Counsel on behalf of revisionist DD Aggarwal submitted that the summoning order is not sustainable as Ld. MM has neither disclosed as to how these offences are made out and what are the rule played by the accused persons. Further submitted that the matter in question is essential matter of civil nature and filing of a criminal complaint and summoning is only abuse of process of law. It is further submitted that on the face of it, as per allegations no cheating has been caused to the complainant M.R. Jindal and no wrongful loss has been occasioned to him and, therefore, summoning order is liable to be set aside and cited judgments of our own Hon'ble High Court in case titled as Om Prakash & Ors. v. State & Anr., 187 (2012) DLT 274, Rashima Verma v. Securities & Exchange Board of India, 157 (2009) DLT 417; Radesh Singh & Ors. v. State & Anr. Crl. MC No. 1711/2010, date of decision 21.02.2011, and Sunil Guglani & Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 10 of 28 11 Ors. v. State & Anr., Crl. MC No. 446/2009, date of decision 15.12.2010.
14. On the other hand, Ld. Counsel on behalf of respondent M. R. Jindal, in support of their case also cited judgment of our own Hon'ble High Court in case titled as Sanjay Daksha & Ors. v. The Commissioner of Police & Ors, W. P. (Crl.) No. 805-07/2005, date of decision 4.1.2012.
15. Before venturing into the discussion regarding summoning, lets discussed the cited law. In the cited judgment of Om Prakash (supra), one Nisheet Aggarwal had made a complaint to the police that he is owner of premises at Mundka having purchased from Smt. Laxmi Devi wife of Pratap Singh whereas Chand Rani, Syani Devi and Bhim Singh had been threatening and harassing him for the same have put their lock over his lock on the premises. Similar complaints were made by him on 7th and 10th August, 2008. In the meantime on 18.08.2008 and 26.08.2008, complaints were made by Smt. Chand Rani to police alleging execution of sale deed in favour of Nisheet Aggarwal of the aforesaid property to be a fraudulent and bogus one and claiming herself to be the owner and in possession of the same. Since no action was taken on the complaint of Nisheet Aggarwal, he made a complaint to the Commissioner of Police and enquiry was conducted and found fault of inaction on the part of the local police and reported that Smt. Laxmi Devi had sold the aforesaid property through the registered sale deed to the complainant Nisheet Aggarwal and reported that a case Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 11 of 28 12 under proper section should have been registered and investigated. Thereafter on his statement FIR was registered. Petitioner (police) visited the premises and called the locksmith and got opened the premises and gave possession thereof to the complainant. Smt. Chand Rani and others challenged the registration of FIR by way of W.P. (Crl.). The said writ petition was dismissed. Further suit was filed, which was also dismissed. Thereafter Chand Rani and others filed a civil writ against the complainant Dr. Nisheet Aggarwal and his wife Neeru Aggarwal and also the commissioner of Police which was also dismissed. Thereafter she filed a complaint before the court of MM against Nisheet Aggarwal and others under. 200 Cr.PC read with S. 190 Cr.PC. Ld. MM passed direction to register FIR. On these facts, our own High Court observed that learned metropolitan magistrate passed the order in routine and casual manner and has not given reasons, he should have given reasons before direction for registration of the FIR. This judgment, however, is not applicable to the facts of the present case as in the present case the enquiry was conducted by learned metropolitan magistrate u/s 200 Cr.PC.
16. In the cited judgment of Rashima Verma (supra), Hon'ble High Court held that the summoning in a criminal case is serious matter and not a mere formality. It is duty of the complainant to allege and make out all the ingredients of the offence before calling upon the Court to proceed against accused persons. There is no quarrel to the legal proposition.
17. As regards cited judgment of Radesh Singh (supra), hon'ble Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 12 of 28 13 High Court observed that it was incumbent upon the learned metropolitan magistrate to spell out for which offence cognizance was taken and how that offence was made out and what was the role played by the different offenders and also spell out reasons for summoning the petitioner where police has not found evidence.
18. In the cited case of Sunil Guglani (supra), a complaint was filed u/s 156 (3) Cr.PC for registration of FIR alleged the petitioner has fabricated a notice purported to have been issued by respondent no.2 showing respondent had offered petitioners to purchase the property of the company valued several crore of rupees for a meager amount of Rs.30 lacs and filed forged notice by the petitioner in the pending suit alongwith written statement. After coming to know of the forged notice, complainant engaged services of a handwriting expert and obtained his opinion who opined that the signature on the notice had been fabricated with the help of scanner and a computer. Complainant examined himself and handwriting expert. The hon'ble High Court observed : To quote :
"3. Offence 420 IPC requires inducement to the deceived person to deliver a property to a person or to make or destroy a valuable security or something which is capable of being converted into a valuable security. It is obvious that none of the ingredients of Section 420 IPC could be made out from the testimony of complainant and handwriting expert. Section 463 IPC defines forgery and Section 468 prescribed punishment for forgery of a valuable security or a Will or an authority to adopt a son or a power of attorney entitling a person to transfer valuable security etc. The purported notice offering to sell the property cannot be considered Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 13 of 28 14 as a valuable security. I therefore consider that ingredients of Section 468 not satisfied.
4. Offence under Section 471 IPC comprises of using a forged document or electronic record as genuine and Section 474 IPC comprises having possession of forged documents with the intention to use it as genuine. Since in the present case, the alleged forged documents had already been used, thus the offence under Section 474 IPC of intending to use could not arise and the only offence made out from the evidence of complainant and hand writing expert was under 471 IPC. I, therefore, consider that the learned MM while passing order dated 10th November 2008 ought not have summoned the accused / present petitioner under Section 346 (which seems to be a typographical error and instead of 463, 346 seems to have been typed) 468, 474, 120B and 420. Section 120B IPC is also not made out because the complainant had not disclosed ingredients of conspiracy. The complainant in his testimony simply stated that after filing of complaint it came to his knowledge that Sarvesh Mahajan, Mukul Mahajan, Ms. Kavita Mahajan and D. K. Gupta were also involved in conspiracy as they were also parties to Suit No. 1261 of 2006. I consider that somebody cannot be summoned for conspiracy on such a statement. If summoning is done on such casual statement then a complainant can name any number of persons and get them summoned to the Court only on the basis of a bare statement that so an so are involved in a criminal conspiracy. The only offence disclosed from evidence is Section 471 IPC and the petitioner should have been summoned only under Section 471 IPC. The petition is allowed to that extent."
19. On the other hand, in cited case of Sanjay Daksha (supra), filed on behalf of respondent M.R. Jindal, a complaint was lodged on 10.08.2004 making specific allegations that they had entered into criminal conspiracy with accused persons and committed offence of cheating by using forged documents and Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 14 of 28 15 submitting the same with the Registrar of Companies and using the same forged documents as genuine in order to claim themselves to be the Directors of the Company. It is also alleged that they had also committed falsification of accounts. The relevant facts were that the complainant was a company incorporated under the Companies Act, 1956 and Ms. Mausumi Bhattacharjee has been its Director since 1997 and became its Managing Director w.e.f 4.5.2001 holding the entire share capital of the company either directly or through their friends and relatives. The company was earlier owned, controlled, managed by late Sh. Damodar Prasad Gupta alongwith his sons, Sh. Yogesh Gupta and Sudhir Gupta until the complainant became Director and later became Managing Director and took over the management of the company and its shareholding from the aforesaid erstwhile Directors/shareholders. Sh. Sudhir Gupta ceased to be Director w.e.f. 04.10.1999. The complainant owns a plot of land at Dehradun. There were litigations in respect of the land whether it was forest land, time to time notification was issued in this regard. The complainant i.e. petitioner was representing the company as Managing Director in the proceedings during this. During those period, the monetary value of land went upto 100 crores which drew the attention of certain land grabbers/Mafias who joined hands and started some illegal interventions into the company's activities. On and around September, 2002 the complainant learnt that certain forged documents had been filed with the office of the Registrar of Companies such as Form 32 alongwith resignation letter of the Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 15 of 28 16 complainant as Managing Director having signature of Sh. Sudhir Gupta, Form 32 showing the appointment of accused no.7 to 9 as the director of the company, Form no.18 showing shifting of the registered office of the company to the nonexistent place at New Delhi bearing the signature of Sudhir Gupta. Accused did not know the correct name of the company and spelt it wrongly and similar rubber stamp as well. The private investigating agency was hired which confirmed that there was no company at the alleged address. Form no. 2 showing the allotment share to accused bearing signature of Sudhir Gupta. Accused no.7 also filed a copy of duplicate driving licence without signature of any issuing authority and filed forged medical certificate. During the proceedings before Company Law Board accused no.3, 4, and 5 also filed some other forged documents. On these allegations request was made for registration of the FIR and FIR was registered for offence under S. 120-B/420/467/468/471/474A IPC. Petitioner was asked to join the investigation but he did not join and filed petition to quash proceedings. Hon'ble High Court on these allegations observed that there was dishonest intention at the time when the acts are purported to have been done by the petitioners, in as much as, they wanted to cause wrongful gain to themselves, if not the wrongful loss to the complainant. Merely because certain previous litigation between the parties is pending in the Company Law Board or in civil courts, this does not preclude a complaint from registering a criminal offence against the offender, in case it is made out. On those facts, Hon'ble High Court declined to Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 16 of 28 17 quash the FIR.
20. Before the facts is discussed, it is also worthwhile to have a overview on the law on the subject. The revisionist has been summoned by learned metropolitan magistrate for offence punishable u/s 420/468/120-B IPC. Our own High Court in judgment of Subhkaran Luharuka & Anr. v. State (Govt. of NCT of Delhi) & Anr. 170 (2010) DLT 516 laid down the law. In the said case the petitioner no.2 was a company having large chunk of land in Worli Mumbai. The company became a sick company and for its revival a scheme was framed under the direction of Appellate Authority for Industrial and Financial Reconstruction which permitted the company to dispose off some portion of land to meets its liability towards the financial institution. The company entered into agreement with respondent/complainant UTILITY. It was agreed that said land would be developed by the UTILITY and residential flats would be constructed and sale proceeds of those flats were to be shared between them 50:50. No money was received by the Company from the complainant in this regard at that time. As per the agreement, the ownership and possession of the land was always to remain with the Company. The company also entered into a second agreement with UTILITY to make available additional land of 2500 sq. mtr. Which, however, could not be rescinded and vide this agreement the complainant and M/s Bhupendra Capital also agreed to confine their rights of development already available land in question. The agreement containing arbitration clause and Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 17 of 28 18 there was also prohibition clause restraining the Company from creating any third party interest in the land to be developed. This agreement was also signed by M/s Bhupender Capital and Finance Ltd., who came into the picture because of the agreement whereby the rights of the Company to receive 50% of the sale proceeds of the flats were transferred to them. Another agreement was entered and it was agreed between the parties that complainant also transferred all rights in favour of M/s Ansal Housing Pvt. Ltd. after accepting money from them. Thereafter Rs.50 crore was taken as loan by another company and the company gave its guarantee by mortgaging of entire property of the land to be developed. Neither the possession was transferred nor it was a sale but was a mere hypothecation and later on the said mortgage has also been re-conveyed. The complainant issued a legal notice to the company raising a dispute by invoking the Arbitration clause again to claim and also alleging that the mortgage of the property was also a breach of agreement by the company. The matter went to the Hon'ble Apex Court. Earlier also the complainant raised dispute with the company alleging breach of the agreement at many forums from 2001, but without success. During the pendency of the aforesaid Civil Appeal before the Apex Court, without waiting its decision UTILITY also initial criminal proceedings against the petitioners in Delhi itself soon after issuing the 2nd notice without invoking Arbitration Clause. Filed the complaint before police station alleging induced to enter into the original agreement for a total consideration of Rs.21.60 crores but were made to pay Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 18 of 28 19 Rs.25.60 crores inasmuch as the dues of the bank turned out to be Rs.23.68 cores and another sum of Rs.1.96 crores had to be paid by the complainant to Municipal Corporation of Greater Bombay for safeguarding their interest. Assurance was given to the complainant at the time of entering into the agreement that the land in question will have floor space index to the tune of Rs.1,20,000 sq. ft. but it actually turned out to be 86,725 sq. ft and the assurance of additional land of 2,500 sq. ft. was also not met and the company also mortgaged the subject land dishonestly thereby causing wrongful loss to the complainant and wrongful gain to themselves. No was action was taken by the police. The complainant filed complaint u/s 156 (3) Cr.PC before metropolitan magistrate at New Delhi without waiting for any action of the police on their complaint dated 25.05.2005 and without approaching senior official of Police in terms of the provisions contained under Section 154 (3) of the Code. FIR was directed to be registered. The FIR was sought to be quashed. On those facts Hon'ble High Court held : To quote "62. A reading of Illustration (i) makes it clear that the complainant cannot complain about being cheated. Firstly, bare perusal of the said illustration proceeds on the premise that there has to be a "sale" and "conveyance" in favour of the complainant. In the present case, there has been no sale or conveyance of the land in favour of the complaint. No conveyance has been mentioned or brought on record, because there is none. Secondly, as per this illustration, offence of cheating would have been done against Z since the fact of previous sale had not been disclosed to Z and still money had been received. As per the said illustration, no offence Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 19 of 28 20 can be said to have been committed against the earlier purchaser. In the present case, the party in whose favour the mortgage had been made has not alleged commission of any offence. This aspect has also been discussed by the Hon'ble Supreme Court in case of Indial Oil Corporation v. NEPC (supra). As necessary ingredients for the offence for cheating are not made out as defined under Section 415, no case of cheating under Section 420 can be made out.
63. As regards inducement, it is submitted that there is no allegation of deceit, cheating or fraudulent intention of the accused at the time of entering into the contract. There is no pleading that there was any intention to cheat from the very beginning or that the 1994 agreement was fraudulently executed. The contract was executed in 1994 and after that parties have been given effect to the agreement. The assignee of the rights of the Company has already constructed the flats over the land. Even otherwise a subsequent breach of a contract i.e. creation of mortgage cannot be constructed as cheating. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. The element of mens rea is totally missing.
64. To constitute an offence under Section 420, IPC, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person so deceived to deliver any property or to make, alter or destroy a valuable security. It is not the case of the complainant that the accused person tried to deceive him either by making false or misleading misrepresentation or by any other action. It is also not the case that the accused persons offered him any fraudulent or dishonest inducement to deliver any property or to intentionally induce him to do or omit to do anything which he would not do or omit to do if he were not deceived. In the absence of any allegation to that effect, a case of breach of contract would constitute a civil Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 20 of 28 21 wrong only. In the claim petition before the Tribunal, the respondent has asserted 'breach of contract' to claim Rs.10 crores on account of creating mortgage.
65. Reliance has also been placed by the petitioner upon a judgment delivered in the case of Mohd. Ibrahim v. State of Bihar (supra). Relevant paragraphs are paras 19-23, which are reproduced hereunder :
19. To constitute an offence under Section 420, IPC, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived,
(i) to deliver any property to any person,
(ii)to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of a ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 21 of 28 22 executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Section 417, 418, 419 or 420 of the Code.
23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The ratio of this judgment squarely applied to the facts of this case.
66. Coming to the allegations of commission of forgery, it would be relevant to take note of Section 463 and 464 of IPC.
463. Forgery - Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
464. Making a false document - A person is said to make a false document or false electronic record -
Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 22 of 28 23First, who dishonestly or fraudulently -
(a) makes signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was make, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly, who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signatures either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly, who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of unsoundness of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alterations.
67. Basic ingredients of the offence under Section 467, 468 and 471 are that there should be forgery under Section 463 and forgery in turn depends upon creation of a false document as defined in Section 464, IPC.
68. A person is said to have made a false document, if Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 23 of 28 24
(i) he made or executed a document claiming to be someone else or authorized by someone else; or
(ii)he altered or tampered a document; or
(iii)he obtained a document by practicing deception or from a person not in control of his senses.
69. Thus execution of a document without authority is not forgery. Reference made to Illustration (h) of section 464 would apply if only there is an ante-dating. The contention of the respondent that creation of mortgage was without any legal authority would be an aspect which is beyond the jurisdiction of the Police investigation and does not constitute an offence of forgery within the meaning of Section 463, 464, 465, 467 or Section 468 of IPC. Therefore, no case of forgery is made out. The Company has not created any false document of mortgage as defined under Section 463, IPC.
73. The Apex Court has laid down in the case of Mohd. Ibrahim (supra) that only the person aggrieved in such cases is the person in whose favour the sale or mortgage has been done, which is not the case.
21. Now coming to the facts of the present case. Learned Metropolitan Magistrate in impugned judgment has brought out the facts. As per facts, the complainant M. R. Jindal agreed to sale the shop no.4 & 5 at GF to one Satyapal Jindal s/o Late Sh. Hans Raj (stated to be his brother). However, accused no.1 and 2 (D. D. Aggarwal and Ishwar Chand Bansal) breached his trust and did not honour their commitment, and accused no.1 & 2 became dishonest and did not execute the same documents with regard to shop no.4 and 5 in favour of Satyapal Jindal and rather filed the suit for specific performance of the contract. It is further observed that the accused no.1 & 2 in order to defeat the claims, got replaced the documents Ex.CW3/1 to CW3/8 Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 24 of 28 25 after colluding with the officers of the MCD and accused no.1 and 2 after replacing the documents, starting claiming that a single director had no power to execute any document. Further, it is observed that the replaced documents in respect of flat no.21-24 of entire second floor which was sold in the name of V. R. Associates as CW 3/15, the replaced documents of Hall no.2 FF as Ex.CW3/16.
22. In nutshell, the grievance of the complainant M.R. Jindal are that the directors used to sell construction unit to different parties under their single signature i.e. signature of one director. However, when he sold the said properties to Satyapal Jindal, they did not execute all the documents in favour of him and in order to defeat his claim filed suit (there appears to be some mistake, it should be in the suit filed by Satyapal Jindal) for specific performance of the contract and got replaced the documents submitted by purchasers with MCD authority for mutation and got those documents replaced with the MCD officials with the signature of two directors. He has obtained the certified copy of the documents submitted by the parties with the signature of single director and also obtained certified copy after the same were replaced.
23. Now question would arise whether any cheating was committed with the complainant M. R. Jindal, the answer would definitely be 'NO' as no loss has been caused to him. The only aggrieved party was Sh. Satyapal Jindal who could have brought out the complaint against accused persons. Essential ingredients to constitute offence for cheating are Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 25 of 28 26 deception fraudulent or dishonest inducement to deliver any property or to intentionally induce him to do or omit to do anything which he would not do or omit to do if he were not deceived. The Illustration with the definition under S. 415 IPC which is relevant for the present purpose is Illustration
(i). But the same is not applicable to the facts of the present case. As the law laid down by our own High Court as it would be a person to whom the property was conveyed said to be 'cheating'.
24. As regards offence 468 IPC, Section 468 IPC provides forgery for the purpose of cheating. Section 463 IPC defines forgery. Section 464 IPC provides making a false document. Illustration (b) of S. 464 IPC provides A, without Z' authority, affixes Z's seal to a document purporting to be a conveyance of an estate from Z to A, with the intention to selling the estate to B, and thereby of obtaining from B the purchase-money. A has committed forgery.
25. Illustration (h) of S. 464 IPC provides A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery.
26. In this case no property has been sold twice nor any property has been sold for which respondent has no authority nor they put signature which were not their own signature and had replaced those documents in public record. If any offence has Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 26 of 28 27 been committed, the offence may be of forging public record, however, S. 466 which provides forgery in public record, has various public records mentioned therein, but present kind of record does not find mentioned in the same. Therefore even that offence is not made out.
27. The cited judgment of Sanjay Daksha (supra) on behalf of respondent M. R. Jindal, is also not applicable to the facts of the present case. As in the said case, the petitioners had forged the documents regarding directorship and filed the forged documents in order to show that they are the owner of the land which is not the case in present case and cited judgment is distinguishable on facts.
28. Accordingly, I am of the opinion that order of Ld. MM with respect to summoning of the accused persons no. 1 and 2 for offences punishable u/s 420/468/120-B is liable to be set aside. Accordingly the same is set aside. Therefore revision petitione titled as D.D. Aggarwal v. M. R. Jindal is allowed.
29. As regard summoning order in respect of respondents no.3 to 7, Ld. MM had not summoned them since complainant has not specifically alleged any role to them. They were the bonafide purchaser of their respect properties. Even if they had firstly submitted the documents with signature of one director and subsequently replaced the same with the signatures of two directors, it does not amount to cheating to anyone. They may have committed the same wrong by replacing the documents in public record without permission of the said authority. However, it does not in any manner fall within definition of Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 27 of 28 28 Section 420/468/120-B IPC. Therefore I am of the opinion that order to this effect of Ld. MM does not suffer from any infirmity, illegality or perversity. Therefore, the revision petition titled as M. R. Jindal v. D D Aggarwal is dismissed.
30. Trial court record be sent back to the trial court along with the copy of this order. Criminal revision files be consigned to record room.
Announced in the open court today i.e on 6.6.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/Delh Cr.R.No.:58/11 & Cr.R.No.:93/11 D D Aggarwal v. M R Jindal & M R Jindal v. DD Aggarwal Page 28 of 28