Delhi District Court
State vs . on 19 August, 2014
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Ravinder Kumar Aggarwal
FIR No. 825/06
P. S.: R.K. Puram (C.B.)
JUDGMENT
1 Sr. No. of case : 02403R1031462008
2 Date of institution : 30.01.2008
3. Name of the complainant : Sh. B.L. Nimesh (IAS), Principal
Secretary & Secretary to Govt.
ARI and Trainings Department,
Govt. of Jammu & Kashmir, Civil
Sectt., Jammu
4. Date of commission of offence : 1987
5. Name of accused : Ravinder Kumar Aggarwal
R/o H. No. 397, 1st Floor, Shakti
KhandIV, Indirapuram,
Ghaziabad, U.P.201014.
6. Offence complained of : Sec. 420 IPC.
7. Plea of guilt : Accused pleaded not guilty
8. Date of reserving the judgment : 06.08.2014
Page 1 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06
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9. Final order : Acquitted
10. Date of such judgment : 19.08.2014
FACTUAL BACKGROUND:
1. The important facts of the case, in brief, are as follows. In this case, FIR was registered on the complaint of PW2 Sh. B.L. Nimesh, IAS, mentioning that in the year 1987 M/s. Sheedheswari Builders Pvt. Ltd. (formerly known as M/s. Mahamaya Builders Pvt. Ltd.), launched a residential project called by the name of Sharad City, which was stated to be situated on 150 ft. wide DelhiBaghpat Road and located at a distance of 8 Kms from ISBT, Kashmiri Gate. The company undertook to provide all the urban facilities namely, water, electricity, sewerage, roads, parks, etc., as per the brochure. Further, it is mentioned that on the basis of information provided by Sh. R.K. Aggarwal of M/s. Sheedhewari Builders Pvt. Ltd., he applied for a plot of 500 Sq. yds. and accordingly he was alloted plot no. B6 (New Nos. C1/4 & C1/5, both measuring 250 sq. yds. each) at Sharad City, Ghaziabad, for which he paid a total sum of Rs. 1,57,500/ in installments. Further, the company got registered sale deed in his favour in February, 1991 after payment of all the charges. Further, it is mentioned that the area has not been developed till date as per Page 2 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 3 assurances given in the brochure and moreover information conveyed by the company regarding distance from ISBT and location of colony are false and misleading and further company has not been able to hand over the possession alongwith amenities. Further, it is mentioned that company has charged more than government rate and Sh. R.K. Aggarwal has not refunded the amount despite repeated requests. After completion of investigation, M/s. Seedheshwari Builders Pvt. Ltd. and its directors R.K. Aggarwal and Manish Aggarwal were chargesheeted and summoned to face trial.
TRIAL PROCEEDINGS:
2. In light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.P.C., vide order dated 28.05.2010, the then Ld. ACMM, South, framed charges under section 420 IPC against accused Ravinder Kumar Aggarwal and Manish Aggarwal being directors of M/s. Sidheshwari Builders Pvt. Ltd., to which they pleaded not guilty and claimed trial.
3. During trial, accused Manish Aggarwal was discharged vide order dated 14.03.2012 passed by the High Court.
Page 3 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 4
4. For proving its case, prosecution has produced eight witnesses.
4.1 PW1, HC Rajbir Singh, deposed that on the basis of rukka, he recorded FIR Ex. PW1/A in this case.
4.2 PW2, Sh. B.L. Nimesh, testified on the lines of complaint Ex.
PW2/A, on the basis of which FIR was registered. Further, he referred to following documents : ➢ A letter dated 07.11.1990 sent by Sidheshwari Builders Ex. P1. ➢ Sale deeds of plot no. C1/5 measuring 250 sq. yds. Ex. P2 and plot no. C1/4 measuring 250 sq. yds. Ex. P3.
➢ Payment receipt no. 369 of plot no. B6 measuring 500 sq. yds P4. ➢ Payment receipt no. 000686 dated 26.11.1990 for Rs. 46,500/ towards development charges Ex. P5 ➢ Payment receipt no. 011976 dated 23.07.1990 regarding final payment of Rs. 9,000/ Ex. P6 4.3 PW3, Inspector S.N. Sharma, testified that after getting the case registered he conducted investigation and found that the land, which was sold by the company, was an unapproved colony. Further, he placed on record the correspondence made between him and the officials of various offices Ex. PW3/B to Ex. PW3/I. Page 4 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 5 4.4 PW4, Sh, Chander Mohan, Registration Clerk from the office of SubResistrar(III), Ghaziabad, U.P., brought the original record pertaining to two sale deeds dated 20.02.1991 Ex. PW3/A and Ex. PW3/B. 4.5 PW4, Sh. Arun Sharma, AE, GDA, Ghaziabad, U.P. testified that there was no proposal of M/s Seedheshwari Builders Pvt. Ltd. to GDA regarding registration or obtaining any license. 4.6 PW5, Sh. Niyaz Ahmad, Revenue Ahlmad, SDM Court, Ghaziabad, U.P., produced the record pertaining to application no. 13, year 198788 Ex. PW5/A. 4.7 PW6, Sh. Data Ram, Senior Technical Assistant, Office of Registrar of Companies, NCT of Delhi and Haryana, produced certified copies of Form 20B dated 28.09.2012 alongwith annual returns dated 28.09.2012, Form DIN3 and annual returns dated 30.09.05 of the Directors Ex. PW6/A to Ex. PW6/C. 4.8 PW7, Sh. Rajeev Kalra, SubDivisional OfficerII, Electricity Distribution, SubDivision (EDSD), Loni, Ghaziabad, U.P., placed on record office memorandum bearing no. 1555 dated 23.05.06 Ex. PW7/A, office memo bearing no. 2290 dated 30.05.06 Ex. PW7/B, package letter bearing no. 1471 dated 08.06.2006, Ex. PW7/C, estimated demand letter Page 5 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 6 bearing no. 1716 dated 19.08.06 Ex. PW7/D, revenue receipt bearing no. 071076/14 dated 29.08.06 Ex. PW7/E.
5. Statement of accused was recorded under Section 313 Criminal Procedure Code, 1973. When the accused was briefed on all the incriminating evidence and documents, he denied the allegations and mentioned that he joined Mahamaya Builders as Director on 01.10.1988 and subsequently all the basic amenities were provided in the Sharad city.
6. The accused opted to lead defence evidence and examined two witnesses in his defence.
6.1 DW1 Sh. Shiv Kumar testified that he is presently Director in Sidheshwari Builders Pvt. Ltd. and joined the company in January, 2008. Further, it is mentioned that the basic amenities were provided in the Sharad City and placed on record certain photographs showing present position of Sharad City Ex. DW1/A1 to Ex. DW1/A10. It is further mentioned that around 200250 families are residing in the Sharad City and they are using electricity, water, road and other facilities. Further, it is mentioned that the complainant purchased the plot only for the Page 6 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 7 purpose of investment and he never intended to reside there and even after the decision of MRTP Commission dated 19.03.2008 Mark D, the complainant did not opt to take back his money alongwith interest. 6.2 DW2 Sh. Manish Aggarwal also deposed on the lines of DW1 and further placed on record certified copy of MRTP order dated 19.03.08 Ex. DW2/A. APPRECIATION OF EVIDENCE:
7. I have heard the State through Shri V.K. Jaiswal, Ld. Assistant Public Prosecutor and Dr. Abhishekh Atrey, Ld. Defence Counsel. Record is also gone through.
8. It is summed up by Ld. APP that the complainant (PW2) has clearly testified that he was misrepresented by accused and further was induced to purchase a plot in Sharad City and later on the accused failed to fulfill the assurances given to the complainant and thus he was cheated. On the other hand, Ld. defence counsel argued that accused Ravinder Kumar Aggarwal was never involved in the property transaction of the complainant since he joined the company on 01.10.1988 and moreover the prosecution case lacks the ingredients of cheating and thus Page 7 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 8 accused deserves to be acquitted.
9. For attracting criminal liability for the offence of cheating, following is required to be shown:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii)such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
10. It is prosecution case that accused misrepresented the complainant that Sharad City is situated at a distance of 8 KM from ISBI, Kashmiri Gate and located at 150 ft. wide road at DelhiBhagpat Road and promised to provide all urban facilities i.e. electricity, water, roads, sewerage, park etc., but all was found to be false. PW2 has testified that at the time of booking, accused Ravinder Kumar Aggarwal represented himself to be the director of Mahamaya Builders and he gave him brochure of the project and the details of the housing loan. In the Page 8 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 9 complaint Ex.PW2/A, it was mentioned that all the necessary information was provided by accused Ravinder Kumar Aggarwal. On this issue, Ld. defence counsel has emphasized that accused Ravinder Kumar Aggarwal joined the company on 01.10.1988 whereas property transaction happened prior to that. Admittedly, the plot was booked in 1987 and advertisements were also published in the newspaper in the same year. Qua directorship of accused Ravinder Kumar Aggarwal at the time of booking of plot, the complainant has replied that he was not aware as to whether he was director but it was conveyed to him that he was the director. Further, IO (PW3) admitted that accused Ravinder Kumar Aggarwal joined the company on 01.10.1988 and he was not having any post in the company prior to the date of joining. Moreover, the prosecution has not been able to establish on record the fact that accused Ravinder Kumar Aggarwal was associated with the company in any manner in 1987 when plot was booked and the publicity of the project in the name of Sharad city was done. Moreover, the complainant (PW2) has also replied that accused Ravinder Kumar Aggarwal has not signed any of the relevant documents pertaining to plot in question Ex.P1 to Ex.P6. In view of this, it is concluded that prosecution failed to prove on record that accused Ravinder Kumar Aggarwal deceived or Page 9 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 10 misrepresented or induced the complainant for purchasing the property in question. Thus, when the foremost ingredient of cheating is missing in this case, there is no point in discussing other ingredients qua accused Ravinder Kumar Aggarwal.
11. Though, the company M/s Seedheshwari Builders (P) Ltd. was chargesheeted in this case but it is observed that charge was not framed against the company. Even if it is considered that charge can be amended at any stage and it is assumed that trial was also directed against the company, then it has to be analyzed as to whether the company can be held responsible for the offence of cheating.
12. The main allegation of the complainant is that he was induced to invest in the residential project in the name of Sharad city but basic amenities as mentioned in the brochure were not provided. During the cross examination, the complainant (PW2) replied that he did not take any steps for constructing the building since the basic amenities were not provided. Further, he had replied that facilities of electricity, water, sewerage etc., were not provided to the colony by U.P. Government so he did not apply for any connection in that regard. Page 10 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 11 Further, he admitted that he had filed a petition for unfair trade practice with MRTP Commission and vide order dated 19.03.2008, the builder was directed to pay entire invested amount alongwith interest subject to relinquishment of his rights in the property in question but he did not relinquish his rights as the order was not binding on him. Further, he also admitted that he gave the police complaint about 19 years after booking of the plot.
13. First of all, the prosecution side failed to give any explanation for inordinate delay of about 19 years in launching prosecution against accused. Further, this Court finds force in the submission of Ld. defence counsel that the complainant did not opt the option provided by MRTP commission since he purchased the plot for investment purpose and that is why he never applied for any electricity and water connection. Further, IO had admitted that accused company had applied for electricity from the concerned department but he could not tell as to whether complainant had also applied for sewer and water connections. He has also admitted that there is over head tank constructed in the colony but it was not functional and that few people were residing there in the colony. Further, defence witness placed on Page 11 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 12 record certain photographs of Sharad city Ex.DW1/A1 to Ex.DW1/A10 to show that people are residing there and electricity and water connection facilities have been provided. The electricity bills have also been placed on record by them. Moreover, there is no material on record to show that "Sharad City" is unapproved colony and IO has conceded that land use has been got changed to residential by order dated 12.12.1988. In view of above, it becomes clear that accused company had taken certain initiative steps to fulfill the promises made to the investors at the beginning. It is not the prosecution case that apart from the complainant any other investor has also alleging cheating. Though, it is not disputed that all the basic amenities have not been provided till date but that is not sufficient to attach the criminal liability on the company. In such circumstances, it is difficult to infer any dishonest intention on the part of company right at the beginning of the transaction. Law is well settled that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction and further, mere failure to keep up promise subsequently does give rise to presumption qua existence of such a culpable intention right at the beginning when promise was made. On this issue, Ld. defence counsel has rightly relied upon the decisions Page 12 of 13 State Vs. Ravinder Kumar Aggarwal; FIR No. 825/06 13 reported as Hridaya Ranjan Pd. Verma & Ors. vs. State of Bihar and Anr. reported as AIR 2000 SC 2341 and Thermax Limited and others vs. K.M. Johny & Ors (2011) 13 SCC 412.
CONCLUSION :
15. In the light of forgoing discussion, it is concluded that prosecution has not been able to establish its case. Accordingly, accused is pronounced not guilty in respect of the offence involved in this case.
Announced in the open court (Vivek Kumar Gulia)
on 19th day of August 2014 Chief Metropolitan Magistrate (S)
(total 13 pages) Saket Courts, New Delhi
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