Himachal Pradesh High Court
Accused/ vs Lt. Col. Vivek Gupta on 22 September, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. 54 of 2017 Reserved on: 18.09.2017 Decided on: 22.09.2017 .
______________________________________________________ Vijay Goyal, Director of Express Projects (Pvt.) Ltd.
.....Accused/Petitioner.
Versus Lt. Col. Vivek Gupta.
......Complainant/Respondent. _______________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes. ______________________________________________________ For the petitioner: Mr. Ankush Dass Sood, Sr. r Advocate, with Mr. S.C. Sharma, Advocate.
For respondent No. 1: Mr. G.C. Gupta, Sr. Advocate, with Mr. Deepak Gupta, Advocate.
Chander Bhusan Barowalia, Judge.
The present petition has been maintained by the petitioners/accused (hereafter referred to as "the accused persons") under Section 482 of Criminal Procedure Code (for short 'Cr.P.C') seeking a direction of this Court to quash Criminal Complaint No. 54-2 of 2016, which was filed by the complainant/respondent No. 1 (hereinafter referred to as the "respondent No. 1.") under Sections 403, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 2405, 406, 415, 417, 418, 420, 499, 500 and 120B of Indian Penal Code, 1860 (for short "IPC"), which is pending adjudication in the Court of learned Judicial Magistrate 1st .
Class, Court No. IV, Shimla. A simultaneous prayer for quashing order dated 04.08.2016, passed by learned Judicial Magistrate 1st Class, Court No. IV, Shimla, whereby the accused persons were summoned under Sections 417, 418 and 420 IPC for trial in the aforementioned complaint, has also been made.
2. The factual matrix of the case can tersely be summarized as under:
As per the accused persons, respondent No. 1maintained a false complaint before the learned Trial Court against them, wherein it has been alleged that he was contacted by the accused No. 6, Manoj, Sales representatives at Express Projects (Pvt.) Ltd. (before the learned Trial Court) at the instance of accused No. 2 to 5 (petitioners herein) in the month of February, 2013, for investing in a housing project, i.e., Express Projects (Pvt.) Ltd. (Company incorporated under the Indian Companies Act, 1950), having Registered office at 810, Surya Kiran ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 3 Building, Kasturba Gandhi Marg, New Delhi, 110 001 (hereafter referred to as "the Express Projects"). As per respondent No. 1, he was dishonestly induced to invest in .
the housing project, which was proposed to be constructed in and around village Rathdana Akbarpura Barota and Liwan, District Sonipat. It was further contended in the complaint, so filed by respondent No. 1, that a promise had been made that expected possession of the flat would be handed over by the end of year 2014 and not later than January, 2015. Respondent No. 1 believing the delusive assurances, decided to buy a 4-BHK independent floor/apartment for `46,79,000/- (rupees forty six lac seventy nine thousand only) plus EDC charges of `3,05,000/- (rupees three lac five thousand only), totaling `49,84,000/- (forty nine thousand eighty four thousand only). It has been further averred in the complaint that accused persons, despite availing 91% of the total amount of money dishonestly misappropriated the same and used it for the construction of other 2BHK and 3BHK flats, as the same have higher demand. The accused persons have violated the contract, which was entered into between the ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 4 parties. The learned Trial Court, on the basis of the complaint and statement of the complainant, took cognizance of the offence and issued impugned order dated .
04.08.2016, whereby the accused persons were summoned under Sections 417, 418 and 420 IPC for trial.
3. The accused persons/petitioners averred that the learned Trial Court without considering the facts, which have come on record, going through the contents of the complaint, dispute being of civil nature, and also without appreciating the law on the subject, issued notices to the accused persons under Sections 417, 418 and 420 IPC.
The accused persons pray that order issuing notices against them, orders consequential thereto and the complaint may be quashed.
4. In reply to the petition, the complainant/respondent No. 1 averred that the accused persons have maintained the present petition just to delay the proceedings before the learned Trial Court. He has further submitted that earlier the accused persons have been evading service and now to delay the proceedings before the learned Trial Court, the present petition has ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 5 been maintained. On merits, it has been submitted that the petition is devoid of merits and the same deserves dismissal. It is further contended that the learned Trial .
Court has rightly issued the summoning order against the accused persons, as they has dishonestly misappropriated the hard earned money of respondent No. 1. The accused persons dishonestly induced respondent No. 1 to invest in the housing project and they have also concealed the facts.
The accused persons made false assurances and managed to induce respondent No. 1 to invest his whole life's earnings in the project. The accused persons dishonestly used the money of respondent No. 1 to their own use, thereby causing wrongful loss to respondent No. 1. The action of accused persons caused harassment, humiliation to respondent No. 1 and it also caused mental tension, agony and hardship to him. Lastly, respondent No. 1 contended that the present petition is an abuse of process of law, hence the same may be dismissed.
5. I have heard Mr. Ankush Dass Sood, learned Senior Advocate, for the petitioners, Mr. G.C. Gupta, learned Senior Advocate, for respondent No. 1 and gone ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 6 through the record in detail.
6. Mr. Ankush Dass Sood, has argued that the learned Trial Court without taking into consideration the .
fact that the dispute is a consumer dispute, which is still pending in appeal, wherein the rights of the parties are to be decided, had issued process against the accused persons and respondent No. 1 maintained a total false complaint just to coerce the accused persons. He has argued that the proceedings are liable to be quashed. The Courts at Shimla have no jurisdiction to try and entertain any type of dispute, as per the provisions contained in the agreement. He has specifically referred to averments made in the complaint, the provisions of law, the provisions of law and paras 62 and 62 of the agreement. The date of possession of the flat was upto 10.03.2017 when the possession letter was issued and this fact was also not considered by the learned Trial Court. He has argued that the complaint, so filed by respondent No. 1, is sheer abuse of the process of law and the same may be quashed alongwith impugned order dated 04.08.2016. On the other hand, Mr. G.C. Gupta, Senior Advocate, has argued that ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 7 the present petition is not maintainable under Section 482 Cr.P.C., as the petitioners have a remedy available before the learned Court below and he can always go to the .
learned Court below by filing a revision petition against the impugned order. He has further argued that extra ordinary jurisdiction cannot be exercised when specific remedy is available. He has argued that as the payments were made from Shimla and the complainant was induced by presenting a false picture, which was not true, at Shimla and respondent No. 1 was cheated at Shimla, the Court at Shimla has the jurisdiction. He has further argued that the learned Trial Court on the basis of the record before, issued process after full satisfaction and the learned Magistrate has given reasons while issuing the process. He has argued that as per the mandate of the law it is only the satisfaction of the Magistrate who has to issue the summons. As the petitioners have cheated respondent No. 1, the complaint so filed by respondent No. 1 is maintainable. He has further argued that as the petitioners have not come before this Court with clean hands and earlier they were evading service and now they ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 8 have choosen to delay the proceedings pending before the learned Trial Court, thus the present petition deserved dismissal and may be dismissed.
.
7. In rebuttal Mr. Ankush Dass Sood, learned Senior Counsel for the petitioners has argued that taking into consideration the law as settled by this Hon'ble Court in Cr.MMO No. 52 of 2017, M/s CNN-IBN7 vs. Maulana Mumtaz Ahmed Quasmi & others, the present petition may be allowed. He has further argued that when there is nothing in the complaint, the same is required to be dismissed.
8. The ambit of Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") is indeed wide, however, certainly it is not so wide, which gives unfettered revisionary and inherent jurisdiction to the High Courts.
The law qua sweep and extent of revisional and inherent jurisdiction of High Courts has been exhaustively and lucidly laid down by Hon'ble Apex Court in Amit Kapoor vs. Ramesh Chander and another, (2012) 9 Supreme Court Cases 460. Relevant paras of the judgment (supra) are reproduced hereunder:
::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 9"25. Having examined the inter-
relationship of these two very significant provisions of the Code, let us now examine the scope of interference under any of these provisions in relation to quashing the .
charge. We have already indicated above that framing of charge is the first major step in a criminal trial where the Court is expected to apply its mind to the entire record and documents placed therewith before the Court. Taking cognizance of an offence has been stated to necessitate an application of mind by the Court but framing of charge is a major event where the Court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different r categories of cases where the Court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the Court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the Court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the Court may discharge him or quash the proceedings in exercise of its powers under these two provisions.
26. This further raises a question as to ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 10 the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if .
the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. In the case of Indian Oil Corporation v. r NEPC India Ltd. & Ors., 2006 6 SCC 736, this Court took the similar view and upheld the order of the High Court declining to quash the criminal proceedings because a civil contract between the parties was pending.
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 11 as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution .
is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the rallegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 12 bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific .
protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to rpredominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 13 whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim .
is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents rannexed with by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 14{Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., 1982 AIR(SC) 949; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors., 1988 .
AIR(SC) 709; Janata Dal v. H.S. Chowdhary & Ors., 1993 AIR(SC) 892; Mrs. Rupan Deol Bajaj & Anr. v.
Kanwar Pal Singh Gill & Ors., 1996 AIR(SC) 309; G. Sagar Suri & Anr. v.
State of U.P. & Ors., 2000 AIR(SC) 754; Ajay Mitra v. State of M.P., 2003 AIR(SC) 1069; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., 1998 AIR(SC) 128; State of U.P. v. O.P. Sharma, 1996 7 SCC 705;
Ganesh Narayan Hegde v. s.
Bangarappa & Ors., 1995 4 SCC 41;
Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors., 2005 rAIR(SC) 9; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors., 2000 AIR(SC) 1869;
Shakson Belthissor v. State of Kerala & Anr., 2009 14 SCC 466; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors., 2009 7 SCC 234; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr., 2009 11 SCC 203; Sheo Nandan Paswan v. State of Bihar & Ors., 1987 AIR(SC) 877; State of Bihar & Anr. v. P.P. Sharma & Anr., 1991 AIR(SC) 1260; Lalmuni Devi (Smt.) v. State of Bihar & Ors., 2001 2 SCC 17; M. Krishnan v. Vijay Singh & Anr., 2001 8 SCC 645; Savita v. State of Rajasthan, 2005 12 SCC 338; and S.M. Datta v. State of Gujarat & Anr., 2001 7 SCC 659}.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 15 for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be .
satisfied if there is substantial compliance to the requirements of the offence."
9. The accused/petitioners issued a brochure and pursuant thereto the complainant/respondent No. 1 was attracted to invest for the purchase of flat. The brochure, so issued by the petitioner, contained the following stipulations:
"Express Royale Affordable independent floors The Project Express Royale is a collection of aesthetically designed affordable independent floors strategically located in Sector-35, Sonepat having easy access to Delhi-NCR and cities like Rohtak, Panipat etc. the project is spread over acres of lush greenscape in Express City which shall boast of world class infrastructural facilities like nursery schools, shopping complex and much more. These independent floors on Ground, First and Second floor have been designed with a touch of comfort and modernism. Accommodation consists of Drawing Room, Dining Room Four Bedrooms, Kitchen, Two Toilets and Balconies. It offers world class living experience with increased economic opportunities coming up in the form of proposed education hub ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 16 and cyber city. A classic combination of amenities, comforts and luxuries in close civinity would take living to the next level Features .
. Low rise row-housing
. G + 2Structure
. Ground Floor owner gets
individual front & back garden with covered verandas . First Floor owner gets large balconies . Second Floor owner gets terrace . Reserved car parking slot for each floor Specifications Structure: RCC frame structure with filler walls Flooring: Vitrified Tiles in Drawing r Room, Dining Room and Bedrooms. Ceramic Tiles in Kitchen, Bathrooms & Balconies.
Internal and external finish: Oil bound distemper in pleasing shades on inner walls. Textured paint finish/Exterior emulsion on external façade.
Doors and windows: Windows in UPVC/Aluminum. Internal Door frames in wood. All internal doors shall be flush doors.
Electrical: Modular Switches, Sufficient light and power points, Cable TV and telephone points in Drawing Room.
Copper wires in concealed PVC conduits.
Toilets: Provision of hot and cold water supply in all toilets, Ceramic glazed tile dado upto 7 feet high, White sanitary ware. Kitchen: Polished Granite Kitchen Counter, Ceramic Glazed Tile dado upto 2 feet high over Kitchen Counter, Stainless steel sink with drain board.::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 17
Ground Floor plan 4 Bedroom + 2 Toilet Super area : 1725 Sq.ft Park area : 1725 Sq. ft + Front & Back Park .
The above mentioned dimensions are indicative only and may vary from plot to plot.
First & Second Floor Plan 4 Bedroom + 2 Toilet Super area 1st Floor : 1725 Sq. ft Super area 2nd Floor : 1725 Sq. ft + Terrace The above mentioned dimensions are indicative only and may vary from plot to plot.
Group The Express Group as a legacy needs no introduction. The Group rests over an accomplished reputation of over 40 years as Developers of prime Commercial and Residential Properties. Each project designed by The Group stands for architectural landmarks and reflects innovation, professionalism and transparency.
As the most popular Promoter, Developer and Colonizer, Express Group understands its responsibility and shoulders clients' expectations perfectly. Delivering end to end realty business solutions; on the spot by the clock, the Group has always impressed its esteemed clients.
Through its new project- Express Royale that's affordable, independent floors, Express Group is going all the way to set a new benchmark in the real estate industry.
Few of our prestigious projects Express City, Sonepat Express Garden, Indirapuram Express Homz, Sonepat Express Villa, Sonepat ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 18 Completed projects Express Garden, Indirapuram, Express Market, Indirapuram, Express Apartments, Vaishali, Express Apartments, Lakdi-ka-pul, .
Hyderabad, Express apartments, Richmond Road, Bangalore, Express House, Ulsoor, Bangalore, Anjali Apartments, Bangalore, Anjali Corner, Bangalore, Anjali Layout, Bangalore, Express New City, Bangalore, Express Court, Bangalore, Express Residency, Bangalore, Express Elegance, Bangalore, Daffodils, Bangalore, Express Plaza, Ashok Vihar, Delhi, Express Market, Ajmeri Gate, Delhi, Express Tower, Azadpur, Delhi, Express Market, Dilshad Garden, Delhi, Express Market, Kalkaji, Delhi, Express Plaza, Derawal Nagar, Delhi, Express Building, Ishwar Nagar, Delhi, Aashirwad Enclave, Delhi, Super Bazar, Moradabad.
Ongoing Projects Express city, Sonepat, Express Homz, Sonepat, Express Zenith, Noida, Express Eternity, Noida Extension.
. Express Royale are independent floors located in Express City, Sector- 35, Sonepat . Prime Location next to Kundli- Manesar-Oalwal Expressway . Opp. O.P. Jindal global University . Only 25 minutes drive from Azadpur Bypass . Near Rajiv Gandhi Education City . Proposed metro rail connectivity."::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 19
"Express KMP City Regular geometrical shape of plots Infinite possibilities for personalized designing Free flowing area for movement .
Dwelling surrounded with liberal amount of greenery Vaastu friendly layout Well-lit wide roads 24x7-manned security A modern sewage disposal system The villas and plots are available in varied sizes to suit individual tastes and needs. The regular shaped plots ensure flexibility in planning and personalized design.
Adequate open space is being provided in front of the plots for development of green cover.
Innovatively designed with eco- friendly features, the villas shall compliment the modern cosmopolitan lifestyle of its residents.
Express City invites you to an open lush green environment with well carpeted, wide, illuminated arterial road network.
BUIT UP INDEPENDENT DUPLEX
VILLAS AND PLOTS IN VARYING
SIZES.
Maximum Open Area
Beautiful landscaping
Wide & networked jogging tracks Picturesque water bodies Demarcation of residential and non- residential areas to minimize noise and air pollution Provision of rain-harvesting system.
Express City is a visual feast with a vast green belt stretching along both sides of the township and a touch of ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 20 greenery at every corner.
Express City has star attractions of fountains, joggers tracks etc. The "exotic exteriors" of Express City .
will mesmerize you endlessly through the cool surroundings.
Designed in harmony with the tenents of Vaastu Shastra, Express City is a creative bled of innovative space management, with perfect synergy of privacy, aesthetics and vast green spaces.
ENJOY THE CHARISMATIC SET UP TO EXPERIENCE THE CELEBRATION OF YOUR LIFE.
Ultra Modern recreational area with Swimming Pool An up-to-date Gymnasium withmodern facilities Provision of illuminations Pole lights for dazzling bays and spaces Security Posts at all essential junctures A power station that will remain 24 hrs functional RECEIPTION AREA Leading life with style is the motto of Express City. Exclusive as well as all- inclusive recreation facilities will keep your social nerve ticking. Various means of entertainment, indoor sporting facilities and leisure games will be there for that extra dash of stimulation required by mind and body.
Have an early morning tryst with nature at the jogging track. Melt your lethargy and experience a healthy lifestyle after an invigorating walk along well-trimmed track. A ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 21 tempting water pool will invite you for a cool leisure swim during summers.
WHAT A WAY....
TO START YOUR DAY! .
A mini super market will ease out your daily shopping rigmarole. It is going to be very convenient to simply get everything of your needs within a very short distance. Even your children would be able to hop-and- shop for you.
Also stop worrying about the basic necessity of medical facility. An updated and adequately staffed nursing home will take care of the residents of the township.
AMENITIES Express Group is aware that apart from beauty and chic style a lot more is needed for actually living. We have made elaborate arrangements for the daily needs of the residents like shopping, grocery demands, educational provision and medico facility. A state-of-the-art mall would be right close to your vicinity for all your shopping and entertainment needs.
A branch of a renowned and reputed school will be present right within the township to make you carefree of your children's education.
EXPRESS CITY: A WORLD WHERE LIFE IS NOT LIVED BUT CELEBRATED.
Express Group has carved a niche for itself, as the developers of prime Commercial and Residential Properties across India.
The Express Group is a legacy that ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 22 needs no introduction. The Express Group rests over the sturdy platform of architectural eminence that is firmly supported by the pillars of dedication, perseverance, innovation and modernism.
.
Express Group stands for real architectural landmarks and exemplary end-to-end realty business solutions that are not only integrated with innovation, but are endorsed by a high octane professional experience that is a class apart.
Today the group is growing by leaps and bounds, developing a niche for itself as a highly acclaimed Promoter, Developer and Colonizer working with perfection and excellence.
WITH OVER 3 DECADES EXPERIENCE THE LEGACY CONTINUES.......
Some of our projects are:
Express Garden, Indirapuram, Express Market, Indirapuram, Gitanjali Layout, Bangalore, Express Apartments, Bangalore, Express apartments, Hyderabad, Express Apartments, Vaishali, Express Plus, Vasundhara, Express Mall, Indirapuram Super Bazar, Moradabad, Express Tower, Delhi, Gitanjali apartments, Bangalore, Ashirwad Enclave, Delhi, Express Plaza, Delhi, Express Market, Delhi, Gitanjali Corner, Bangalore, Express Market, New Delhi, Palm Court, Bangalore, Express Residency, Bangalore, Express Elegance, Bangalore, Express New City, Bangalore.
LOCATION ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 23 Prime location next to Kundli- Manesar-Palwal Expressway Good connectivity to Delhi and Indira Gandhi International Airport In close civinity of proposed IT Parks and SEZ .
Only 15 minutes drive from Azadpur Bypass Fastest developing area of NCR Easy connectivity with southern districts of Haryana such as Gurgaon, Faridabad, Rohtak and Jhajjhar Proposed metro rail connectivity."
10. This Court after going through the abovementioned stipulations, comes to the definite conclusion that the petitioners and the proforma respondents gave a specific allurement to respondent No. 1 and they made him to believe as under:
(a) All the above facilities were shown to exist in near future in the Express City. When the respondent applied for the flat in the second floor, he was made to believe and understand that these facilities will exist in the Express City;
(b) The respondent was made to invest his hard earned money, which he had earned while working as Lt. Col. in the Army and after taking loans from different financial institutions;
(c) It cannot be expected that the respondent ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 24 had invested with the petitioners his earnings of whole life, being Lt. Col. in the Army only to buy 2nd floor in a building to be constructed in a far of place without .
there being any amenities.
(d) So, the contentions of the petitioners that these amenities may or may not come taking into consideration the persons who will come for opening the school, hospital etc. etc. and it was dependent on many other factors, is not reliable. Prima facie it seems that respondent was induced by the petitioners.
(e) At the same point of time the accused/petitioners have invested the amount deposited by the respondent in a different scheme, i.e., for construction of Type-II and Type-III quarters and prima facie it is evident as in spite of receiving the whole money from the respondent till January, 23015, his premises was not constructed for more than a year.
Thereafter, the premises was supposed to be completed by January, 2015 and till that time last installment was paid. These allegations have been made specifically in the complaint.
(f) The petitioners have failed to demonstrate ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 25 before this Court, even after producing other material that they are fulfilling the promises they made in the brochure or thereafter to induce the .
complainant/respondent to invest in their project.
(g) The petitioners will be having an opportunity to defend only when there is trial and these allegations cannot be thrown out at the threshold.
The petitioners fully knew that these facilities/amenities, which respondent No. 1 was made to believe, are not likely to come, had they disclosed to respondent no. 1 that these facilities will not come in future and these facilities/amenities, which the respondent No. 1 was made to believe, are nothing but inducement.
11. This Court, after going through the record, finds that the learned Trial Court has passed a reasoned order while issuing the process against the petitioners, therefore, the impugned order, whereby the process against the petitioners was issued for securing their presence, cannot be said to be against law. At the same point of time, this Court also finds that the complaint, so made by respondent ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 26 No. 1, made out a prima facie case in favour of the petitioners and part of cause of action has arisen within the jurisdiction of Shimla, so the Courts at Shimla have the .
jurisdiction.
12. The learned Senior Counsel for the petitioners has placed reliance on a decision of Hon'ble co-ordinate Bench of this Court, rendered in Cr.MMO No. 52 of 2017 (alongwith other batch matters), titled M/s CNN-IBN7 vs. Maulana Mumtaz Ahmed Quasmi & others, decided on 29.08.2017. In the judgment (supra) it has been held as under:
"49. Thus, on the basis and in the light of discussion made above, considering the facts that in the complaint as also statements recorded under section 202 of the Code, there is no specific allegations with regard to the role played by each of the petitioners in making or publication of the defamatory material against the complaint, the issue of process against them by virtue of they being office holders / position holders in the Broadcasting Company/ news channel that is by invoking the principle of vicarious liability is neither legally justifiable nor sustainable in law.
.... .... .... .... .... ....
55. Thus, on the basis of the aforesaid discussion, it is established that:::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 27
i) the complainant has failed to make a positive averments against the petitioners in the complaint as also in the evidence led to attribute specific role of each of them in committing the alleged .
offence warranting initiation of criminal proceedings;
ii) Unlike civil liability, the penal provisions have to be strictly construed wherein there is no vicarious liability in criminal law unless statute takes that within its fold and thus the petitioners merely by virtue of their being Managing Director, Editor-in-Chief, Editor and Founder Editor-in-Chief would not make them vicariously liable for the acts of their employees;
iii) CDRs which formed the sheet
r anchor of the case of the
complainant have not been
certified in accordance with law, more particularly, section 65-B of the Indian Evidence Act and will have to be excluded from consideration. Therefore, once the CDR is excluded from consideration, then obviously the process against the petitioners could not have been ordered to be issued on the basis of the material available with the Magistrate; and
iv) Once the Magistrate has failed to take into consideration all the aforesaid facts as have been noticed above, it can conveniently be held that the learned Magistrate has not applied his judicial mind before issuing process against the petitioners."
However, the judgment (supra) is not applicable to the facts of the present case, as respondent No. 1, through his complaint, so filed against the accused persons, made out a ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 28 prima facie case against them and in that complaint positive averments have come against the petitioners. The learned Trial Court, after perusing the record, has also .
found specific role of each petitioner, thus the petitioners are liable. This Court also finds that the petitioners are liable for their acts jointly and individually in inducing the complainant/respondent No. 1 to make the payment, so the judgment (supra), as cited by the learned Senior Counsel for the petitioners, is not applicable to the present case.
13. The learned Senior Counsel for the petitioners has argued that the matter is pending before the Consumer Forum and thus the Trial Court has no jurisdiction. This aspect has already been settled by Hon'ble Supreme Court in Lalmuni Devi vs. State of Bihar and others, (2001) 2 SCC 17, wherein it has been held that merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. Relevant para 8 of the judgment (supra) is extracted hereunder for ready reference:
"8. There could be no dispute to the proposition that if the complaint does ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 29 not make out an offence it can be quashed. However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal complaint cannot be .
maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed."
The judgment (supra) is fully applicable to the facts of the present case. In view of what has been held in Lalmuni Devi's case (supra) the contention that the matter is pending adjudication before the Consumer Forum is without any basis and the same is not sustainable in the eyes of law.
14. Admittedly, there is clear cut provision under Section 245 Cr.P.C., which provides as under:
"245. When accused shall be discharged:
(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no cause against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 30
Thus, the petitioners have alternative efficacious remedy and on this score only the present petition can be dismissed.
.
15. Certainly, power under Sections 482 and 227 Cr.P.C is exceptional. The Hon'ble Supreme Court in Sonu Gupta vs. Deepak Gupta and others, (2015) 3 SCC 424, has held as under:
"8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the r appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.
9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 31 accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials .
for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial."
In view of the judgment (supra) it can safely be held that while issuing process, the Magistrate is only required to evaluate the merits of the material or evidence of the complainant and the conclusion that the accused will be ultimately convicted is not required to be gone into.
16. At the same point of time, the Hon'ble Supreme Court in Udai Shankar Awasthi vs. State of Uttar Pradesh and another, (2013) 2 SCC 435, held that investigation under Section 202 Cr.P.C. is limited to ascertain truth or falsehood of allegations made in a complaint and nothing more and the learned Court has to ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 32 take into consideration the fact that whether the Magistrate has territorial jurisdiction or not. In the present case, the Magistrate has territorial jurisdiction as part of cause of .
action has arisen within the jurisdiction of his Court.
Relevant para of the judgment is extracted in extenso for ready reference:
"40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 Cr.P.C., though the appellants were outside his territorial jurisdiction. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act 2005, making it r mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.. Shivjee Singh v. Nagendra Tiwary & Ors., 2010 AIR(SC) 2261; and National Bank of Oman v. Barakara Abdul Aziz & Anr., 2012 12 JT 432.
17. The Hon'ble Supreme Court in Bhushan Kumar & another vs. State (NCT of Delhi) & another, AIR 2012 Supreme Court 1747, held that Section 204 Cr.P.C. states ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 33 that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. It is further held that order .
summoning need not to be reasoned. However, in the present case, the order of the learned Trial Court, summoning the petitioners, is reasoned one. The relevant extract of the judgment (supra) is as under:
"10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a r Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory meaning thereby that it is not a prerequisite for deciding the validity of the summons issued."
18. In Bhushan Kumar's case (supra) it has been held that Section 204 Cr.P.C. states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. The relevant extract of the judgment (supra) is as under:
"8. Under Section 190 of the Code, ::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 34 it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for .
conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code."
19. After exhaustively discussing both facts and law and also the material, which has come on record, the natural corollary is that the petitioners have no case in their favour to invoke the extraordinary jurisdiction of this Court under Sections 227 and 482 Cr.P.C.. Indeed, the petitioners have alternative efficacious remedy. There exists a prima facie case in favour of respondent No. 1, as discussed hereinabove and the learned Trial Court has the jurisdiction to pass the impugned order. The learned Trial Court has passed the impugned order after taking into consideration all the material which has come on record.
20. In view of what has been discussed hereinabove, the petition, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stand(s) disposed of.
::: Downloaded on - 23/09/2017 23:57:17 :::HCHP 3521. The parties, through their learned counsel, are directed to appear before the learned Trial Court on 18th October, 2017.
.
(Chander Bhusan Barowalia)
Judge
22nd September, 2017
(virender)
r to
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