Delhi District Court
Rakesh Mittal vs State on 24 December, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
Rakesh Mittal
s/o Sh. T.R.Mittal
R/o A53, Prashant Vihar,
Delhi.
(through his attorney Sh. T.R.Mittal)
Vs.
1. State
(Govt. of NCT of Delhi)
2. Delhi Cooperative Housing
Finance Corporation Ltd.
3/6, Sirifort Institutional Area,
Khel Gaon marg,
New Delhi1100490
Date of institution of the case : 24.09.2014
Date when final arguments concluded : 16.12.2014
Date of pronouncement of judgment : 24.12.2014
Appearances: Mr. R.K.Modi, counsel for petitioner.
Mr. Joginder Malik, APP for
State/respondent.
Mr. Sunil Sabharwal and Mr. Deepak
Sharma, counsels for DCHFC.
Rakesh Mittal Vs. State
(Cr No.05/14) 1 of10
JUDGMENT
1. Revisionist (hereinafter referred to as complainant also) is aggrieved by the order dtd. 15.09.14 passed by the court of Mr. Abhilash Malhotra, Ld. MM, Rohini Courts, Delhi, vide which his application u/s 451 CrPC was dismissed.
2. Facts are that Suvidha Cooperative Group Housing Society Ltd., Plot no. 25, Sector 13, Rohini, Delhi85 borrowed loan from Delhi Cooperative Housing Finance Cooperation (in short DCHFC), for raising construction of 100 flats in the society. The 100 flats were mortgaged with DCHFC. Society could not repay the loan and DCHFC filed arbitration case against it. Case was awarded on 12.02.02 in favour of DCHFC and against the society. DCHFC initiated recovery proceedings for execution of the award. In execution proceedings, recovery officer Ravi Kumar Jain attached flat nos. A29 and B22 of the society. A public notice was issued by Mr. Ravi Kumar Jain on 28.05.12 that flats in question i.e. A29 and B22 were under mortgage with decree holder i.e., DCHFC. Auction notice of those flats was published in Rakesh Mittal Vs. State (Cr No.05/14) 2 of10 newspaper titled as Statesman on 22.07.12 mentioning therein that the title of the flats was free from any defect. Auction was conducted on 21.08.12 under the supervision of recovery officer with the assistance of office bearers of DCHFC and the society. Petitioner was the successful bidder in the auction and he purchased the said flats for a total sum of Rs.1.66 crore and Rs.1.64 crore respectively. He paid a sum of Rs.2.20 crores in between 21.08.12 to 31.08.12 to DCHFC and Rs.8 lacs to the society. An agreement/MOU was signed between the petitioner and society before the recovery officer on 05.12.12 in which society had assured that it would get the flats done freehold from DDA. The society issued two possession letters and two allotment letters dtd. 26.08.12 in the name of petitioner about the flats. Petitioner applied with the DDA for conversion of the flats into freehold and paid the requisite charges but he was surprised to know from DDA that the said flats could not be converted into freehold as those were not in the sanctioned plan of the society. DDA and Registrar of cooperative society (RCS) informed petitioner in reply to RTI applications that the Rakesh Mittal Vs. State (Cr No.05/14) 3 of10 construction of those flats was illegal. On these facts case FIR was registered.
DCHFC had deposited the cheated amount of Rs.2.20 lacs with Shamrao Vithal Cooperative Bank ltd., G4, Guru Amardas Bhawan, 78, Nehru Place, Delhi. IO attached the said amount of Rs.2.28 lacs vide letter dtd. 03.05.14. Thereafter petitioner moved an application u/s 451 CrPC for releasing that amount. DCHFC opposed the application and at last the application u/s 451 CrPC was dismissed.
3. Ld. counsel for the petitioner argued that the Ld. MM has wrongly held that application moved by the petitioner was an attempt to bypass the civil proceedings to set aside the auction. It is further submitted that the Ld. MM should have taken dim view of recovery officer Mr. Ravi Kumar Jain, who was employer of DCHFC and who had attended more than 1000 cases in different courts as authorized representative of DCHFC. He further contended that Mr. Ravi Kumar Jain was well aware that Suvidha Cooperative Housing Society had mortgaged only 100 flats with DCHFC and those 100 flats did not include Rakesh Mittal Vs. State (Cr No.05/14) 4 of10 the two flats in question. The counsel further submitted that officials of DCHFC were regularly attending the execution as well as auction proceedings and they concealed the fact from executing officer that the subject matter i.e., two flats were not sanctioned by the DDA and were not mortgaged with the DCHFC.
4. On the other hand Ld. counsel for DCHFC argued that the money, if unpaid by the petitioner was paid to Suvidha Society which in turn paid that money to DCHFC. After payment of that money, the 100 flats of the society have been released from the mortgage and hence, the amount so realized from the petitioners has become part of the public money. One of the objections taken by police in the trial court was that petitioner was claiming the amount and was also retaining the illegal flats.
5. Ld. MM had rejected the application of the petitioner mainly on the ground that allowing of application amounted to setting aside of auction proceedings which involved complex questions and decision on those complex issues was in the sole domain of the civil courts and jurisdiction on that Rakesh Mittal Vs. State (Cr No.05/14) 5 of10 aspect cannot be transgressed by the criminal court.
6. In Rajender Pal Mahajan Vs. Ralson India Ltd.
& Ors. (1995) 211 ITR, 828 (P&H), FIR was registered against Rajender Pal Mahajan u/s 406/408/409/467/ 471 & 120B IPC. He was company secretary of Ralson India Ltd., Ludhiana. During the course of his employment he used to get the signatures of Sh.Sanjeev Pahwa, Managing Director on blank cheques and transfer advices. The abuse of position by the accused came to light when as a result of raid on his premises by the Income Tax department, FDRs amounting to Rs.55,33,129/, blank cheques and transfer advices were seized from the possession of the accused. On examining the accounts of the company, the management found that the accused had withdrawan an amount of Rs.1.29 lacs from the accounts of the company from PNB and the said amount had not been accounted for in the books of the accounts of the company and thereby the accused had committed criminal breach of trust in respect of the said amount and had misappropriated the sum to his own use by getting FDRs and property in the names of his relations.
Rakesh Mittal Vs. State (Cr No.05/14) 6 of10 During the course of investigations by the police, an amount of Rs.40,58,412/ alongwith Indira vikas patras valued at Rs.9.10 lacs was recovered from the possession of the accused.
An application was moved for the release of currency and Indira vikas patras on superdari but it was dismissed by the magistrate on the ground that both parties were laying claim to that amount. Revision petition was filed against order and it petition was allowed and the order of Sessions court was confirmed by the Hon'ble High Court.
7. It has not been disputed by any of the parties that amount of Rs.2.20 crores has been seized by the police as case property. So, the magistrate was to deal with the question what was to be done with the case property i.e., in whose possession the case property was to remain during trial. It is correct that as per rule 137 of Delhi Cooperative Society Rule 2007, petitioner can file an application before the Registrar to set aside sale on the ground of irregularity or fraud. If any such application is filed before the Registrar, it would be in the domain of the Registrar to decide the irregularity or Rakesh Mittal Vs. State (Cr No.05/14) 7 of10 fraud. In the case in hand, the facts are that the Suvidha Group Housing Society, Ltd, cheated the petitioner by selling him two flats which were not authorized by the DDA. The amount paid by petitioner was used by members of society to pay the loan of the society. Under Rule 137, the Registrar is to decide who is entitled to the sale proceeds whereas the magistrate was to decide in whose custody the case property is to remain during trial. So, jurisdiction of the magistrate and Registrar is on different issues.
8. The impugned order is set aside due to following reasons also: (1) DDA sanctioned only 100 flats whereas Suvidha Cooperative Housing Society constructed 100+2 flats. The two flats were constructed on the ground floor ear marked for parking. So, the two flats i.e., flats nos. A29 and B22 were illegal. These two flats were offered by the society as consideration to the petitioner but both were illegal because those were constructed against DDA bylaws. So, consideration offered by Suvidha was forbidden by law and hence, MOU/ Agreement between complainant and Suvidha was not contract because as Rakesh Mittal Vs. State (Cr No.05/14) 8 of10 per section 10 of the Indian Contract Act, 1874, the consideration should be lawful.
(2) Officials of DCHFC participated in execution proceedings knowing fully well that only 100 flats were mortgaged with it and not the two flats in question. (3) The officials participated in execution proceedings knowing well that the said flats i.e., flat nos. A29 and B22 were not in the layout plan of DDA. Those flats were not sanctioned by the DDA.
(4) DCHFC officials allowed auction proceedings to go on knowing well that the auction was to be held for sale of two illegal flats.
(5) DCHFC officials allowed petitioners to deposit the bid amount with it knowing that bid had been held for illegal flats.
(6) DCHFC officials never objected in execution and auction proceedings that flats in question cannot be sold in auction.
9. Copy of this order be sent to the trial court alongwith TCR. Ld. MM/DMM/LMM is directed to release the amount of Rs.2.20 crores to the petitioner on furnishing of bank guarantee to the tune of Rs.2.6 Rakesh Mittal Vs. State (Cr No.05/14) 9 of10 crores. Petitioner is directed to surrender the flat nos. A29 and B22. After conclusion of the trial, if petitioner is not found entitled to the said amount, he would pay interest to DCHFC @ 9% per annum for the period of retention of the amount. Revision file be consigned to record room. Copy of the order be given dasti. Announced in the Open Court On 24th day of December'2014 (UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi Rakesh Mittal Vs. State (Cr No.05/14) 10 of10