Delhi District Court
Rakshit Jain vs The State Of Nct Of Delhi on 5 May, 2025
1
IN THE COURT OF SH. SUMIT DASS, ADDITIONAL SESSIONS
JUDGE - 05, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Criminal Revision No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024
679/2024 and 689/2024
1. Shravan Gupta
s/o Sh. Rajiv Gupta
r/o 44-A, Amrita Shergil Marg,
New Delhi-110003.
2. Shilpa Gupta
w/o Sh. Shravan Gupta
r/o 44-A, Amrita Shergil Marg,
New Delhi-110003.
(Presently at London)
3. Rakshit Jain
s/o Late Sh. Surendra Nath Jain
r/o H.No.C-14, Green Park Extn.
South West, Delhi - 110016.
4. Rajender Singh
s/o Sh. Ram Kishan
r/o H.No.110, Village Shikohpur,
Gurugram, Haryana -122004.
5. Arun Mitter
s/o Sh. Brig. Vishwa Mitter
r/o C-29 Mayfair Garden,
New Delhi-110016.
6. Sh. Rajeev Gupta
s/o Sh. B.D.Gupta
r/o H.No. 8/3, DLF, Phase-I,
2nd floor, Gurugram, Haryana.
7. M/s MGF Developments Ltd.
1/36
CR No.674/2024, 675/2024, 676/2024, 677/2024,
678/2024, 679/2024 and 689/2024
2
Through its Authorized Representative
Mr. Saurabh Singh Rathore
s/o Sh. Pramod Kumar Singh
r/o 220, 1st floor, Vartalok Society,
Sector-4C, Vasundhra, Ghaziabad,
Uttar Pradesh. .......Revisionists
VERSUS
1. State of NCT of Delhi
Through its Addl. Public Prosecutor
Patiala House Courts, New Delhi. ...... Respondent
Date of Institution : 12.12.2025
Date of Decision : 05.05.2025
ORDER (ORAL)
1. In terms of present order the captioned revision petitions titled as Rakshit Jain v/s State, Shilpa Gupta v/s State, Arun Mitter v/s State, Rajeev Gupta v/s State, Shravan Gupta v/s State, M/s MGF Development ltd. v/s State and Rajender Singh v/s State are being dealt with.
2. The challenge primarily in the revision petitions is the order dated 16.11.2024 passed by Ld. Chief Judicial Magistrate [in short Ld. CJM] whereby and whereunder the accused persons including the companies named therein were summoned for the offences punishable U/s 409/420/120B of the Indian Penal Code, 1860 [in short IPC]. The said summoning order was challenged first by the revisionist namely Rakshit Jain and Shilpa Gupta as two revision petitions were filed/assigned to this 2/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 3 Court. Subsequently other revision petitions were also transferred/assigned.
2.1 For the sake of convenience I am taking the revision petition of Shravan Gupta v/s State as a lead one as there are certain other facts which were pleaded in the same.
3. The first order of importance which I had passed is a detailed order dated 13.12.2024 wherein the order passed by Ld. CJM dated 16.11.2024/the impugned order was stayed/the proceedings before the Ld. Trial Court were stayed. I shall be quoting the said order in the later part of the judgment for the reason that the primary line of arguments which was adopted by the said revisionists as so manifested in the order dated 13.12.2024 was that the order dated 16.11.2024 passed by the Ld. CJM was not a reasoned one /failed to take into account the facts of the case and other related aspects and it was only a mechanical order.
3.1 Subsequently as mentioned above five other revision petitions were assigned/ transferred to this Court and now there are seven revision petitions. Pursuant thereof a time schedule was fixed wherein it was directed that either side to wrap up the arguments. Infact two days period was granted considering the fact that this case has been repeatedly argued at the Sessions level, Hon'ble High Court and before the Hon'ble Apex Court in the first round of litigation whereby the FIR was lodged.
3.2 However, enormous volume of arguments supplanted with case laws on virtually each and every aspect was contended. The scope or canvas 3/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 4 of the revision petitions was enlarged considerably. Infact what were the earlier submissions/part of arguments which were evident in the order dated 13.12.2024 i.e. the order with regard to challenge of cognizance now it became a sort of a challenge whereby this Court was asked to look into various aspects including the merits of case - offence having been committed, if so by whom/at whose instance and other related aspects. Hence, to put the discussion in continuity/in proper narrative, I am compartmentalizing the submissions in two parts - (i) arguments viz a viz the aspect of cognizance on the grounds as mentioned above [those more or less are contained in the order dated 13.12.2024] and (ii) arguments on merits of the case, which relate to the challenge of the summoning order/penal provisions and applicability thereof.
4. However, at the same time in my opinion in case part (I) i.e. viz a viz the cognizance aspect are over and the revisionists are successful then there is no need to deal with the entire arguments insofar as part (II) is concerned as the matter would be remanded back. However, to do complete justice with the parties particularly the fact that the matter was argued by a battery of Senior advocates, I would be quoting the arguments which were addressed as well.
5. ARGUMENTS :-
Part I - As indicated above the order dated 13.12.2024 sums up the same to a large extent. I shall be quoting the said order.
Part II - Starting with Mr. Vikas Pahwa, Ld. Sr. Advocate on behalf of Shilpa Gupta he had contended that this criminal indictment is not 4/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 5 genuine but a concocted one as there is a delay of more than a decade. The transactions which were complained or made actionable were all duly accounted for in the books of accounts. In fact these were all commercial transactions between the parties duly noted/verified/trusted/acted upon in order to benefit mutually. He further states that the matter had went through arbitration and also through the NCLT and later on recourse to criminal prosecution has been taken. He had further argued that the balance sheet of the joint venture company Emaar-MGF were duly audited showing the entire payments. All such facts were effaced by the investigating officer and in fact a final report had to be filed however the same did not see the light of the day and hurriedly a charge sheet was filed and more hurriedly the cognizance of the offence was taken. He also argued that it was a civil offence but the same was given a colour of a criminal offence. The second line of arguments which he had adopted was that it was inconceivable that the complainant did not know as to the constitution of the two companies i.e. M/s Saum and M/s Nanny. In fact when there was a decoupling of the joint venture it was also mutually agreed that there would not be any action taken against M/s Saum and M/s Nanny. He further argued that insofar as the question with regard to the affidavits of the applicant having been sworn in outside India that by itself does not debar the revisionist to maintain the revision petition before this Court and in support thereof had relied upon the judgment titled as Dr. Elizabeth Raja v/s Inspector General of Registration by the Hon'ble Madras High Court.
Mr. Pahwa further argued that the affidavits were notarized in U.K. and there is no infirmity/illegality on the said aspect which would debar 5/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 6 the revisionist Shilpa Gupta. Ld. Sr. Advocate thereafter had dealt upon the role of revisionist Shilpa Gupta and contended that she was the non executive director in the companies and she was not the signatory; she was not the beneficiary; she had not aided or abetted the transfer of funds and the investigating officer had not even spelled correctly her role particularly the fact that she was not the decision maker in any of the companies involved in the deal including the joint venture company Emaar-MGF or otherwise MGF Ltd. Mr. Pahwa has taken umbrage that the IO has not clearly spelled out the role of the revisionist/accused which is quite evident by the filings made to the MCA that at relevant times she was not involved in the said companies.
He further argued that there was no mens-rea attributable to her. Hence, had there been a reasoned order passed by the Ld. Trial Court even at the stage of cognizance these facts would have been noted.
Mr. Pahwa had further contended that the joint venture visualized that the management was with MGF and the financial part were with Emaar. Mr. Sanjay Malhotra was the CFO who was the Emaar nominee. To contend that the payments made to M/s Nanny and M/s Saum between 2010 to 2016 and 2012 to 2016 respectively would escape the notice of the CFO is completely untenable. The payments were all documented and subject to audit. Shilpa Gupta in any scenario cannot be held vicariously liable as she was the non-executive director/in a sort of ineffective director.6/36
CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 7 On behalf of revisionist Rakshit Jain Mr. Amit Prasad, Advocate had addressed the arguments and contended that first of all the charge sheet was filed hurriedly though the investigation was still ongoing. He contended that the date on the charge sheet is 18.07.2024 whereas there is a notice U/s 41A Cr.P C issued to Rakshit Jain which is returnable for 23.07.2024 and issued on 22.07.2024. He states that applications under Section 156(3) Cr.PC were pending and the same were being dealt in and to obviate the same the charge sheet was filed hurriedly. He has relied upon the orders passed by Ld. CMM dated 05.08.2024 and 08.08.2024. Mr. Amit Prasad further contended that post introduction of M/s Nanny and M/s Saum the share of the joint venture infact increased from 67.5% to 68% and thus, there was no loss whatsoever to the joint venture. The acts of introduction or involvement of M/s Nanny and M/s Saum were all known throughout and also ratified by the Board of the Joint Venture company. Rakshit Jain had not in any manner benefitted or otherwise gained except the fact that only a sum of Rs. 7 lacs was transferred into the account of Rakshit Jain from M/s Nanny and the same was also returned by him. Thus, otherwise also except mere being signatory there is nothing qua him warranting his association or involvement in the present criminal case.
On behalf of revisionist Rajender Singh Sh. Vijay Agarwala Advocate had addressed the submissions and contended that there was no fair investigation. The facts of the complaint/case were not at all fairly investigated by the police. They had filed a detailed representation and the IO had only filed the said representation alongwith the charge sheet without even barely going into the same. There was no list of witnesses attached 7/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 8 alongwith the charge sheet. There was no overt act attributable to the revisionist Rajender Singh. In fact it was a civil case which was given the colour of a criminal case. Sh. Vijay Aggarwala. Advocate further contended that there is a difference at the time of taking the cognizance of the offence and followed up by the summoning of the accused and these two provisions are to be considered independent and once the Court takes cognizance U/s 190 Cr.PC it proceeds to Section 204 Cr.PC wherein it summons the accused persons to face trial and the order - the common order can be considered by the revisional Court to gauze the existence of cognizable offence(s) and as to the sufficiency of the material warranting the summoning of the accused persons. Mr. Vijay Aggarwala further contended that insofar as the applicant Rajender Singh is concerned he had no role whatsoever and there could not have been a summoning order passed U/s 406/420 IPC in view of the judgement passed by the Hon'ble Apex Court in Delhi Race Club 1940 v/s State of UP 2024 SCC Online Supreme Court 2248. To that extent also the impugned order is also liable to be set side.
Mr. Gautam Khajanchi, Advocate had addressed submissions on behalf of Rajeev Gupta and Arun Mitter and supported the submissions adopted by the other advocates and contended that insofar as the entire offence as alleged is concerned the entire facts were also within the knowledge of the complainant/ complainant's company's official and it was a fabricated/manipulated case projecting only one side of the story.
Mr. Tanveer Ahmed Mir, Ld. Sr. Advocate had addressed arguments on behalf of remaining revisionists i.e. Shravan Gupta and M/s 8/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 9 MGF and stated that it was a marriage which spanned for 10 years between two corporate entities. The marriage was consummated in a sense that they knew about the working of the joint venture as to what the other partner was doing. The consent qua the acts of a partner can also be rationally inferred. The outcomes of their actions as reflected in the balance sheets which were duly audited. The so called projects qua whom the alleged companies M/s Nanny and M/s Saum were introduced to allegedly siphon off funds - the said projects have been completed/delivered and the gains have also been mutually enjoyed. Nothing remains as on now. The acts of the complainant are only to arm twist them/implicate them in criminal case. In fact M/s Nanny and M/s Saum were introduced somewhere in the year 2010 and to contend that Rs. 180 crores were siphoned off and that too in many years moreso when the accounts are audited is inconceivable. The impugned order suffers from a copy cut paste defect as it did not consider the material in proper perspective and did not even look into the statement/ the documents annexed alongwith the charge sheet. He submits that earlier also there was one litigation where Anil Bhalla had challenged the order of summoning and the Hon'ble High Court had remanded the matter. The order which has been passed dated 16.11.2024 is a order which lacks the rational basis for calling the accused persons to attend/face the trial as the controversy has not at all been appreciated firstly by the Ld. Trial Court and neither it has been specified. He further stated that there was no loss whatsoever to the J.V. company as the share of the joint venture had increased. He further stated that the email IDs perse which were all used at that time would reveal that Emaar would be aware about the constitution of the firm M/s Nanny and M/s Saum and their association as well with M/s MGF.
9/36CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 10 Mr. Mir had taken me to the various agreements and contended that such agreements benefitted the joint venture company and the projects were completed and there was no stripping of funds and siphoning of funds. He further argued that the cognizance order/summoning order ought to be based on the material which is collected by the Investigating Agency - whereupon the Ld. CJM ought to have culled out the same may be the bare minimal and thereafter proceed to independently apply his minds to form his definite opinion in respect to the existence of the ingredients of the cognizable offence(s) which is so ultimately reflected in the summoning order. He submits that there is nothing on the said premises and as a sequitur or as a follow up without due adherence of the aforesaid the summoning order has been passed which is liable to be set aside.
5. Written notes were filed in addition to. Reliance was placed on the following judgments:
Sunil Bharti Mittal v/s CBI (2015) 4SCC 609 Maksud Saiyed v/s State of Gujrat & Ors. 2008 (5) SCC 668. Kusum Sandhu v/s Ved Prakash Narang (2008) SCC Online Delhi
873.
Rana Ram v/s State of Rajasthan & Anr. Crl. Misc. Case No. 4983 of 2024.
Pepsi Food Ltd. & Ors. v/s Special Judicial Magistrate & Ors. AIR 1998 SC 128.
Yahoo! India Pvt. Ltd. v/s State & Anr. 2012 DRJ (130) 656. Thermax Ltd. v/s K.M.Johny (2011) 13 SCC 412.
10/36CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 11 Dilawar Singh v/s State of Delhi 2007 (12) SCC 641. Bhagwant Singh v/s Commissioner of Police & anr. AIR 1985 Supreme Court 1285.
Ashok Chawla v/s Ram Chander Garvan, Writ Petition (Crl.) 1429/2010.
Ravindranatha Bajpe v/s Mangalore Special Economic Zone (2022) 15 SCC 430.
Pooja Ravindra Devi Dasani v/s State of Maharashtra & Anr. (2014) 16 SCC 1.
6. Countering the aforesaid arguments on behalf of the complainant Sh. Pramod Kumar Dubey, Ld. Sr. Advocate had argued that exhaustive detailed arguments were advanced which were not even warranted at this stage as the stage is that of cognizance/summoning order which warranted a minimal threshold only unlike the stage of charge or acquittal. No prejudice is going to be caused to any of the revisionist as they would be heard later on. In fact all such detailed arguments have been advanced earlier many a times and all have been negated. Ld. Sr. Advocate states that taking cognizance and summoning the accused persons in a case emanating from a charge sheet
- proceeding further only requires concurrence with the opinion of the Investigating Officer and the concurrence or affirmation is evident from the impugned order. At the stage of charge the probative value of the material collected can be considered and not at this juncture itself.
Ld. Sr. Advocate further argued that there was an admission made during the proceedings before the Ld. ASJ by the revisionist and that 11/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 12 admission was sought to be withdrawn or explained before the Hon'ble High Court, which was not permitted by the Hon'ble High Court. In support he has read over the order passed by the Ld. ASJ and contended that the admission was made after a question was put to the Ld. Sr. Advocate there and time was also granted to reply. As such the contentions so agitated are precluded by the doctrine of estoppel. Ld. Sr. Advocate further contended that the scope of revision is quite restricted to there being an illegality, incorrectness and impropriety in the order passed by the Ld. Trial Court and not re-appreciating the same. He submits that no illegality, incorrectness or impropriety has been stated in the impugned order nor pointed out in the memorandum of the grounds in the revision petition. There is no perversity pointed out. Repeatedly this argument was taken that it is a civil dispute which otherwise has been dealt in detail earlier and also negated. All such pleas are matter of trial and cannot be countenanced as here under at this juncture. The revisionist were all obliged to disclose their relationship with the companies which they failed to do so [M/s Nanny and M/s Saum]. Ld. Sr. Advocates contends that there is a difference insofar as taking cognizance on a police charge sheet or otherwise upon a complaint. Insofar as taking cognizance on a charge sheet is concerned no detailed reasons are required unlike in complaint cases. Ld. Sr. Advocate stated that the case of Delhi Race Club also pertained to a complaint case and not on the basis of a police charge sheet. It is a summoning order which was challenged. As such the said ratio is inapplicable. He has justified the impugned order and contended that the same is based on the charge sheet and its conclusions. Insofar as the non filing of Section 65-B certificate is concerned the same can also be filed at a later stage. There is no need to file any list of witnesses as alleged. He 12/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 13 has particularly read over the contents of the charge sheet and contends that each individual revisionist is involved in the commission of the offence. Insofar as Shilpa Gupta is concerned for illustration she has received Rs. 20 lacs in the year 2012 and returned in the year 2019. All the persons were actively involved in the conspiracy and had the knowledge as to the utilization of funds which were received/taken through the said entities i.e. M/s Saum and M/s Nanny. Insofar as their action been done in good faith the same is also a question of trial. He further contends that there is also concealment of facts on behalf of the revisionist. The Enforcement Directorate has also lodged an ECIR recently. The offence is well etched.
I have tried to extract the arguments as relied upon by either side. Written notes were also filed incorporating the judgments relied upon. Reliance has been placed on the following :
Sanjay Bhandari v/s Income Tax Office 2024 SCC Online Delhi 7747. Gurmeet Singh Sidana v/s Ameek Singh Sawhney 2023 SCC Online Delhi 6230.
Arulvelu v/s State (2009 10SCC 206.
Bhushan Kumar v/s State (2012) 5 SCC 424.
State of Gujrat v/s Alfroz Mohd. Hasan Fatta (2019) 20 SCC 539. Pradeep S.Wodeyar v/s State of Karnataka (2021) 19 SCC 62. Satya Narain Musadi v/s State of Bihar (1980) 3 SCC 152. State of Karnataka v/s T.Naseer @ Nasir @ Thandiantavida Naseer @ Umar Hazi @ Hazi & Ors. 2023 INSC.
Virupakshappa Gouda and Anr. v/s State of Karnataka & Anr. (2017) 5 SCC 406.13/36
CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 14 Kunhayammed v/s State of Kerala (2000) 6 SCC 359.
7. Before I proceed further the backdrop of the facts of the case in brief are as here under :
i. The present matter is between two erstwhile partners who had been litigating against each other tooth and nail. In fact the FIR was sought to be lodged before the EOW by the complainant. Ultimately the said FIR was registered upon the directions passed by Ld. CJM in terms of order dated 16.04.2021. I am extracting the operating part of the order as here under :
Heard. Perused.
As the facts show that a huge amount of monies got transferred from the complainant company to the other entities and as per the allegations the said monies was misappropriated by alleged persons for their personal use and benefit. It is also highlighted that the entities to which monies were transferred were related/controlled by alleged persons. The said monies were supposed to be for the development work in terms of JDAs as per the complainant. In this background, considering the proportion of the money transferred through accused no. 1 and its routing to several entities controlled by accused persons and subsequent reaching to the hands of accused persons has to be investigated. Collection of evidence is important in the present matter as the transfer of funds from the complainant company to several entities, relationship of alleged persons with those entities, receipt of money by the alleged persons from those entities has to be ascertained. The facts necessitate need for field investigation as the evidence in the present matter cannot be produced by the complainant on its own.
Further, the complaint discloses the fact of inducement through misrepresentation by the accused persons and parting of money through the acts of accused no. 1 in conspiracy with other accused persons. So far as the law on registration of FIR on a complaint disclosing cognizable offences is concerned, same is settled. The Hon'ble Supreme Court in Lalita Kumari Vs. Govt. of U.P. has held in para 111 as under:-
1) Registration of FIR is mandatory under section 154 of the Code, it 14/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 15 the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation.
2) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
3) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brieft for closing the complaint and not proceeding further.
4) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR it information received by him discloses a cognizable offence.
5) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence."
Accordingly, in the considered view of this Court the complaint discloses commission of cognizable offences and it is directed that on the basis of complaint an FIR be registered against accused persons and same be investigated upon.
Application is allowed.
Copy of the order be sent to concerned IO/ACP for compliance. Put up for compliance report on 19.04.2021.
Copy of this order be also sent to all the parties through email/Whatsapp.
It is certified that the connection during hearing through Cisco Webex was uninterrupted and the voice and video was clear and the Ld. APP for the State and Ld. Counsel for the parties appearing through V/C did not raise any objection regarding the quality of V/C. ii. The said order was challenged before the Ld. ASJ and finally in terms of order dated 23.11.2021 the said order was upheld wherein it was observed as here under :
13.1 am conscious of my limited role in revisional jurisdiction but I am equally conscious of the onerous duty of monitoring the 15/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 16 investigations to ensure that no crime committed remains unnoticed and no criminal goes scot-free. Recently, Hon'ble Apex Court in the matter of Vinubhai Haribhai Malaviya and Ors. Versus The State of Gujarat and Anr., CRIMINAL APPEAL NOS.478-479 OF 2017, DOD 16.10.2019, while recognizing the power of the court to monitor investigation, has observed here as under:-
"17. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial.
That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.
18. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency."
Further, Hon'ble Delhi High Court in the matter of Smt. Neera Singh vs The State (Govt. Of NCT Of Delhi) citations:
16/36CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 17 138 (2007) DLT 152, 1 (2007) DMC 545 has observed that huge money transactions should be reported to be income tax authorities by the courts.
14. In the case at hand, evidently Rs. 180 Crores seems to have exchanged hands without any apparent quid pro quo for the said transaction. The spectre of money laundering and tax evasion also needs to be addressed. In view of the same, concerned SHO is hereby directed not only to ensure a thorough and impartial probe in the instant matter, in compliance of the order dated 16.04.2021, but is further requested to report the matter to the Income Tax Authorities and Enforcement Directorate to rule out the possibility of any tax evasion and money laundering in the case at hand.
15. The revision petition accordingly stands disposed off.
iii. Third round of litigation went to the Hon'ble High Court. Subsequent thereto Hon'ble High Court was pleased to maintain the said order as it is with the minor changes and observation with regard to the investigation by ED. Again I am quoting the said order/operative portion thereof which reads as here under :
25. The judgments relied upon by the petitioner would not help them much on facts of this case. In Dr.Rajani Palri Wala (supra) the report filed by EoW was a detailed report after examining the documents and witnesses and it was held by the learned Single Judge that it was a cancellation report under Section 173(1) (supra) and not a preliminary status report, hence the observations were made only on the context of the facts of that case. However, in the present case the ATR cannot be starched by any means to say it is a cancellation report. In Harpal Singh Arora (supra) a detailed enquiry was conducted over a period of eight months with review by several level of functionaries and whereas in the present case no detailed enquiry appear to have been conducted and it is only a preliminary or a summary enquiry. Rather in XYZ (supra) and Lalita Kumari (supra) the intent is to ensure if a cognizable offence is made out the investigation is to be carried out in the terms of decision in Lalita Kumari (supra). The non-consideration of an ATR in any case cannot be considered as fatal, especially, where the learned Trial Court and the learned Revisional Court by a reasoned order had reached a conclusion a cognizable offence is made out and it require police investigation. Even Periyar and Pareekanni Rubbers Ltd.17/36
CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 18 (supra) and Himalayan Coop. Group Housing Society (supra) are not relevant since in the present case the submissions made by the lawyers were admissions of fact and not merely concession(s). Admittedly there is no challenge in this Writ Petition qua such admissions made and now the petitioner cannot be allowed to retract.
26. In the circumstances, the petition has n has no merits and is dismissed. Pending application(s), also stands disposed of. However the directions contained in para 14 are quashed as it is very early to pre-suppose the guilt. The EOW is yet to investigate the matter in detail and if it felt necessary, the State has every right to initiate such other proceedings as well.
iv. The said order was challenged before Hon'ble High Court finally. The SLP was also dismissed. The observation made by Hon'ble Apex Court are as here under:
5. Having regard to the well-settled parameters governing the jurisdiction under Section 156(3) of CrPC for the registration of an FIR where a cognizable offence is alleged, no case is made out for interference. However, it needs to be clarified that the observations contained in the orders of the trial court, the Additional Sessions Judge and of the High Court in the impugned judgment dated 12 September 2022 shall not impede the petitioner from seeking access to legal remedies as available in law.
6 . Subject to the aforesaid clarification, the Special Leave Petition is dismissed.
7 . Pending application, if any, stands disposed of.
v. Ideally all these observations/findings ought to have been taken note of by the Ld. CJM in the impugned order for the reason that without giving the backdrop of the case the summoning order should not have been passed. I shall deal with the said aspect later on - the effect of glossing thereof.
18/36CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 19
8. Before I deal further with the arguments which have been raised by Ld Counsel for the revisionists it would be appropriate to take note of the proceedings before the Ld. Trial court just before the order dated 16.11.2024 i.e. the impugned order.
8.1 In fact there are two orders of importance i.e. 05.08.2024 and 08.08.2024. At that point of time one of the proposed accused was pursing the application U/s 156(3) Cr.PC for further investigation and the Ld. CJM has opined as here under :
05.08.2024 One steno is on leave and no substitute steno is provided by the Admin. Branch.
Present: Ld. APP for the State.
Sh. Tanvir Ahmed Mir, Sh. Amit Prasad, Sh.
YudhistarSingh,.Sh.Prabhav,Sh.YashDuttandSh.
Yuvraj Bansal, L.d. Counsels for the applicant.
Sh. Madhav Khurana, Ld. Counsel for the complainant in FIR No. 146/2022, PS EOW.
Status report filed by the IO wherein it is stated that all the points mentioned in the application filed by the applicant, have already been investigated. It is further stated that investigation of the case is being conducted in a fair and impartial manner. IO has further opposed the application filed by the applicant stating that the investigation of the present case is to be conducted independently by the investigating agency and the directions as such mentioned in the application filed by the applicant or any of the parties to the investigation agency are not maintainable.
It is also submitted that investigation in the present case is at final stage and status report will be filed at the earliest.
I.d. Counsel for the applicant has placed reliance on the citations Mehboob Dawood Shaikh Vs. State of Maharashtra (2024) 2 19/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 20 Supreme Court cases 362, Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhange & Ors. (2016) 6 SCC 277, Babubhai Vs. State of Gujarat & Ors. (2010) 12 SCC 254 and Sakiri Vasu Vs. State of Uttar Pradesh & Ors. (2008) 2 SCC 409 has argued that the accused in view of the above judicial precedents has a right to free and fair trial and thus directions for monitoring of the investigation on the points as mentioned in the application are called for.
In response, Ld. Counsel for complainant in FIR No. 146/2022, PS EOW, while placing reliance on Sanjiv Rajendra Bhatt Vs. Union of India and Others (2015) SCC Online SC 941, have opposed the application filed on behalf of the accused stating that applicant is the accused in the present case and has no locus to file the monitoring investigation at this stage.
Ld. APP for the State seeks time to argue on the application. Put up for further proceedings on 08.08.2024.
Meanwhile also issue notice to the lo to appear in person on the NDOH.
***************************************************** 08.08.2024 Present: Ld. APP for the State.
Sh. Madhav Kumar along with Sh. Nishaank Mattoo, Sh. Daksh Ahluwalia, Sh. Varun Thapa, Sh. Shaurya Singh, Sh. Rishabh Munjal and Sh. Ishan K. Dubey, Ld. Counsel for the complainant in FIR No.146/ 2022, PS EOW.
Sh. Tanvir Ahmed along with Sh. Amit Prasad, Sh.
Yudhistar Singh, Sh. Prabhav Ralli and Sh. Yash Dutt, Ld. Counsel for applicant.
10 is not present.
An application for monitoring of investigation was filed on the previous date and is listed today for consideration.
Notice on the application was issued to the IO for today.
Request is received from the IO stating that he is unable to appear today as he is on medical leave.
Meanwhile 10 has also filed the final report in the form of 20/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 21 chargesheet which is also listed for consideration today.
Detailed arguments have been addressed by Ld. Counsel for the applicant as well as Ld. Counsel for the complainant.
It is stated by Ld. Counsel for the applicant that applicant has been compelled to file the present monitoring application due to inaction of the 10 on several key aspects raised by the accused during the course of the investigation, without which the investigation could not have reached its logical conclusion. It is further stated that the present dispute although given a criminal colour has deep commercial overtones and at most is a dispute of civil nature, with various litigations on the civil and criminal side ongoing between the parties.
It is further stated that accused has equal right to a fair investigation and the investigating agency is examining complex commercial transactions in a biased manner so much so that even the method of examination of the accused by investigating agency is known to the complainant. It is further submitted that chargesheet has been filed in an abrupt manner by the IO.
It is further argued that the present application is not rendered infructuous solely because the chargesheet has been filed and that the present application under Section 156 (3) CrPC or even an application seeking further investigation under Section 173 (8) CrPC have the same essence, which is to aid the court to arrive at the truth of the matter.
It is further argued that even otherwise in view of Hon'ble Apex courts judgment in Vinubhai Haribhai Malaviya Vs. State of Gujarat and Anr. (2019) 17 SCC 1 power of this court to monitor an investigation or even to order further investigation is inherent and the said power can also be exercised suo-moto.
On the other hand Ld. APP for the State as well as Ld. Counsel for the complainant have opposed the above submission.
While Ld. APP for the State has argued that since the chargesheet has been filed the present application has become infructuous. It is vehemently argued by Ld. Counsel for the complainant that by way of this application accused is attempting to do indirectly what they cannot do directly i.e. to interfere with the investigation and direct the investigating officer to investigate with respect to certain aspects. It is further argued that that accused cannot direct the investigation to be conducted in particular manner and has placed reliance on the following case laws;
21/36CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 22 a. Sanjiv Rajendra Bhatt v. Union of India (2016) 1 SCC1. b. Union of India v. W.N. Chadha 1993 Supp (4) SCC 260. c. Romila Thapar v. Union of India (2018) 10 SCC 753. d. Arvind Kejriwal v. Enforcement Directorate 2024 SCC OnLine Del 2685.
e. Manohar Lal Sharma v. Principal Secy (2014) 2 SCC 532. f. P. Chidambaram v. Directorate of Enforcement e. (2019) 9 SCC 24. g. Ajeet Patel and Others v. The State of Madhya Pradesh and Others WP No. 20415 of 2024.
It is further argued that accused cannot interfere during the stage of investigation and only gets an opportunity to present his defense once he appears before the Court pursuant to the issuance of summons after cognizance is taken and process is issued in terms of Section 202 Cr.P.C. Ld. Counsel for the complainant has further placed reliance on the following case law to endorse his submissions.
a. Union of India v. W.N. Chadha 1993 Supp (4) SCC 260. b. Dinubhai Boghabhai Solanki v. State of Gujarat (2014) 4 SCC 626. c. P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24. d. Ajeet Patel and Others v. The State of Madhya Pradesh and Others WP No. 20415 of 2024.
It is further argued that in Vinubhai's case (supra) the accused had filed an application under Section 173(8) CrPC after cognizance had been taken and accused had already entered appearance and that Ld. Counsel for accused has erroneously placed reliance on paragraph 44 of the said judgment. It is thus prayed that the application filed by the accused be dismissed.
Arguments heard. Record perused.
The factual matrix of the present FIR relates to agreement/transaction entered between the complainant company with M/s Saum Infra Pvt. Ltd. and M/s Nanny Infrastructure Pvt. Ltd. It is argued that the complainant company was introduced to enter into joint development agreements with entities related to the accused company without disclosing their relationship with the accused company and the complainant company was not aware of the association of accused company with the above mentioned entities.
Final report in the present case has been filed after investigation spanning over almost two years, and runs into about 9000 pages. Cognizance of the offence is yet to be taken as the record is 22/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 23 voluminous The application per-se has been filed by the applicant for monitoring of investigation and filing of chargesheet indubitably renders the said prayer infructuous. However in view of the judgment of Hon'ble Apex Court in Vinubhai (supra) this court is cognizant of its power to ensure free and fair investigation which includes directing further investigation after submission of the final report. As is the settled law this power can be exercised by the court suo-moto depending on the facts of the each case.
After careful and patient consideration of the submissions made by both sides and perusal of citations filed in support of the arguments, this court is of the opinion that a diligent perusal of the voluminous record in the form of final report filed by the IO is required before deciding the present application and any orders on the application of the accused at this stage would be premature. Hence this court is of the opinion that the present application filed by the accused be kept pending for consideration, till the time the court has perused the final report.
Let the said application be tagged alongwith the charge sheet and be kept pending for consideration till NDOH i.e. 01.10.2024.
8.2 Suffice to note herein that at that point of time the charge sheet having been filed and the Ld. CJM having kept the option open i.e. after the perusal of the chargesheet which had a voluminous bunch of documents the aspect of cognizance/further investigation would be decided. Here I may connect this with the order passed by the Ld. ASJ [extracted supra]. Thus, there was a commonality in the observation passed by the Ld. ASJ and the observations of Ld. CJM in terms of order dated 08.08.2024 that warranted that the Ld Trial Court would be guided by the observations in the matter of Veenubhai Haribhai Malaviya & Ors. v/s The State of Gujarat & Anr. Crl. Appeal No. 478-479 of 2017. To that extent Ld. CJM in terms of order dated 16.11.2024 had jumped over the same or completely effaced the same/ ignored the same.
23/36CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 24 8.3 Dealing with the submissions made in the first part i.e. the impugned order dated 16.11.2024 which has been passed is an unreasoned one or otherwise in any manner did not take into account the said observations passed by Ld. Predecessor of the Ld. CJM/ Ld. ASJ. Here it is relevant to note that the Ld. Predecessor of the Ld. CJM had herself stated that the application would be dealt in or considered. Still, the said application having not been disposed of/there being no order qua the said aspect, the summoning order was passed. In fact the judicial proceedings require to be continued in consonance with the previous order(s) and there should have been an adjudication on the said aspect which is amiss or excluded/jumped over in the present case.
8.4 If I just look at both the observations the same are in sync and in fact the order passed by the Ld. CJM dated 08.082024 stems from the order passed by Ld. ASJ wherein there were the directions to monitor the investigation considering the nature of the offence complained of.
8.5 While the Court adjudicates any application U/s 156(3) Cr.PC primarily it deals as to the aspect whether it discloses a cognizable offence which requires to be properly/thoroughly investigated by the police in accordance with chapter 12 of the Cr.PC. At that point of time the Court performs the duty which is in a manner is a sort of plenary reminder given to the investigating agency to comply with it statutory mandate, which it had failed to do so by not registering the case. This particular object/task is supplanted or made meaningful by the supervisory jurisdiction to deal with 24/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 25 or monitor the investigation which facet as mentioned above has been reminded by the Ld. ASJ. To put it pithily the Court is not only empowered to direct the investigation but also can supervise the same to ensure fairness in investigation.
9. Investigation commences upon the registration of the FIR is concluded by filing of a charge sheet. Section 173(1) & (2) Cr.PC states as here under:
Section 173(1) :Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i)As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b)the nature of the information;
(c)the names of the persons who appear to be acquainted with the circumstances of the case;
(d)whether any offence appears to have been committed and, if so, by whom;
(e)whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(h)whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.25/36
CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 26 9.1 The word 'completed without unnecessary delay' as prescribed also adds another angle that insofar as the investigation aspect is concerned the same should be complete. This completeness aspect is important for the reason that thereupon or the further/later stage of cognizance/summoning of the accused comes into picture. As mentioned herein by one of the Ld. Counsel appearing for the accused Rakshit Jain, the said applicant was served with the notice U/s 41A Cr.PC for a date which was the date after filing of the charge sheet as it is evident that the charge sheet was ready on 18.07.2024 and in fact this accused was served with a notice U/s 41 Cr.PC on 22.07.2024 directing the petitioner to appear on 23.07.2024. This was attached as Annexure P-45 in the petition of Rakshit Jain. Thus, in any scenario the hurriedness in which the charge sheet was filed also ought to have been considered by the Ld. Trial Court.
It may be also true that the investigation may have been completed or the IO may have formed his opinion to proceed further but this aspect ought to have been judicially considered.
9.2 In fact the order passed by Ld. CJM dated 16.11.2024 appears to be the order which has been passed without going into the contents of the charge sheet; against the observation passed by the Ld. Predecessor of the Ld. CJM and also not considering whether it was complete in all aspects. I may not re-emphasize that the observations passed by the Ld. ASJ ought to have been complied with as well. To that extent there is an palpable anomaly which is visible in the said impugned order which to my mind requires to be rectified. As such in my opinion the impugned order dated 16.11.2024 26/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 27 suffers from patent infirmity as it did not consider the previous proceedings/binding observations passed by the superior Court. It thus becomes an unreasoned order or an order contrary to the record.
10. The next stage is the stage of taking cognizance which is under Section 190 of the Cr.PC wherein the Court forms a definite opinion or conclude as to the commission of offence of which it takes judicial notice or it takes cognizance thereof - meaning thereby the offence(s) or commission of offence(s) is taken note of with a view to proceed against the offenders. At that point of time in my considered opinion it would be important to look into the role of each and every accused person (charge sheeted) or otherwise who has been either placed in column no.12 or against whom there may be material as per the opinion of the Court. Considering the different nature of roles of all the said persons to my mind there should not be a blanket order qua each and every accused particularly moreso when there is a judgment interse the said parties wherein there is a direction passed by Hon'ble High Court to pass a speaking order. This aspect I had highlighted in the order dated 13.12.2024. I am quoting the said order as well herein as it encompasses the submissions made with regard to the cognizance order being non speaking one:
3. The following preliminary submissions were advanced by Ld. Sr. Advocate on behalf of revisionist(s) :
i. Sh. Vikas Pahwa, Ld. Sr. Advocate on behalf of Shilpa Gupta had commenced the arguments and had given a prelude as to the factual background and given a quick narration of date and events contending that EMAAR and MGF had formed a joint venture way back in the year 2005 in terms of agreement dated 18.02.2005. The said agreement/venture 27/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 28 underwent a change whereafter a supplementary documentation was also done.
ii. The said resulted in the management control being with EMAAR group in a sense that Chairman and CFO would be of EMAAR whereas the other Directors/office bearers would be from either of them including the minority shareholder i.e. MGF. As the relationship further progressed, certain agreements were entered into for development of two residential projects namely Palm Hills Project and Imperial Garden.
iii. They intended to join one Mr. Sanjay Passi for development of those projects/engage his help. Later on two companies M/s Nanny Infrastructure Pvt. Ltd. and one M/s Saum Infra Pvt. Ltd. were engaged/these companies were in fact introduced in terms of agreement which permit their introduction. The complainant concern/joint venture then was well aware of their constitution, working profile etc. - as evident from the communications by the EMAAR group to their overseas parents. Thus, it is not that the complainant company was in any manner unaware about the work profile/ business activities with/of M/s Nanny Infrastructure Pvt. Ltd. and one M/s Saum Infra Pvt. Ltd. To put it simply those companies were doing the work with the consent of the joint venture/the EMAAR group which was evident by the fact that the accounts of joint venture were also duly audited. The agreements with the said companies were also part of the record - in the knowledge of one and all moreso when the CFO was of EMAAR group.
iv. It is further stated that dispute arose and there was decoupling of the EMAAR-MGF joint venture. Even at that point of time it was also agreed upon that there shall be no litigation with those companies i.e. M/s Nanny Infrastructure Pvt. Ltd. and M/s Saum Infra Pvt. Ltd. Projects were divided which the JV was carrying out under EMAAR-MGF. Two projects namely Imperial Garden and Palm Hill projects went into the share of EMAAR and in fact these projects were later on also fully developed/sold. At no point of time there was any dispute with regard to the role of the said two companies viz a viz the said project or any allegation of wrong doing.
v. Subsequently the FIR was got registered in terms of order passed by Ld. CMM U/s 156(3) Cr.PC. Matter was litigated virtually in every Court thereafter. The matter went till the 28/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 29 Hon'ble Apex Court. Charge sheet was filed. In terms of impugned order dated 16.11.2024 cognizance of the offence(s) has been taken and accused persons have been summoned. The said order is being challenged.
vi. Delving on the order dated 16.11.2024 Ld. Sr. Advocate pointed that there are various infirmities insofar as the said cognizance and summoning order is concerned and he has taken detailed grounds in the revision petition against those aspects.
Outlining the same he contends that in pith and substance it is a non speaking order. It merely reproduces what the Investigating Officer has stated. It is not in real sense taking cognizance which is a judicial function and has two limbs - taking cognizance of the offence and thereafter scanning the charge sheet and proceeding against the offenders/accused persons.
vii. He has read over the impugned order and contends that the pages no.1 to 4 only merely reproduces what has been stated by the IO and thereafter in one line, generic omnibus summoning order has been passed - which is at page 5 of the impugned order. Mr. Pahwa, Ld. Sr. Advocate further submits that the order does not even barely record any date or event - the transactions were pertaining to the year 2005 and the FIR order was passed in the year 2021 and finally FIR was registered in the year 2022. In one line order bereft of any bare reasoning or discussion all the accused persons have been summoned irrespective of the fact that a serious offence U/s 409 IPC was sought to be attracted.
viii. Ld. Sr. Advocate contended that since the offences complained of entailed serious punishment, it was incumbent to take note of the charge sheet/ the material relied by the IO qua each accused person even if not in detail but at least there ought to be discussion qua each accused persons at least minimally. The same would have at least brought to the fore the dimensions of the offence or the expanse of the charge sheet would have been visible. In fact the order being completely non speaking glosses all such facts.
ix. Ld. Sr. Advocate submits that this order has gravely prejudiced the accused person/revisionist. He further submits that it is not the case of summoning of one or two isolated persons but there are large number of accused 29/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 30 persons, who have been sought to be summoned by way of the present humongous order. He submits that Shilpa Gupta, the revisionist was not responsible for the management and in fact she remained a non-executive director for majority of the period. As such she could not have been summoned. In support whereof he has relied upon the provisions of the Companies Act. He further submits that in the case of Anil Bhalla v/s State which was also a similar matter pertaining to EMAAR-MGF as he was one of the director of the joint venture, the summoning order was set aside being non speaking and it neither described the role of any of the individual accused or identified the material, upon which they were sought to be summoned [order dated 06.05.2022 in Crl.M.Case No.2071/2022 passed by the Hon'ble High Court].
x. Summing up his preliminary submissions he contends that the matter requires to be argued at length considering that the liberty of the revisionist is under peril, factual matrix of the case, which is primarily based on documentary evidence, on a standalone basis if considered would probablize otherwise than the summoning of the revisionist herein. Delving further he states that the revisionist Shilpa Gupta could not have been summoned at the first instance or even if she is summoned, the summoning order is woefully short in informing the revisionist/accused persons as to the grounds upon which she is being called by the Court. He submits that the summoning order needs to be revisited and he wishes to address detailed submissions on the aforesaid points as elaborated/adumbrated in the revision petition. He submits that the proceedings before the Ld. Trial Court scheduled for early hearing on 16.12.2024 be stayed and he be permitted to address arguments at length.
4. Sh. Tanvir Ahmed Mir, Ld. Sr. Advocate appearing on behalf of revisionist Rakshit Jain contends that apart from whatever has been contended by the Ld. Sr. Advocate appearing on behalf of revisionist Shilpa Gupta additionally he submits that the role of Rakshit Jain is not there in the entire transaction. He has been roped in unnecessarily. Rakshit Jain has been summoned as an accused person despite the fact that earlier disputes were resolved amicably and there was a condition that neither of the parties will litigate. He submits that M/s Nanny Infrastructure Pvt. Ltd. and M/s Saum Infra Pvt. Ltd., both have been roped in unnecessarily.30/36
CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 31 4.1 Sh. Tanvir Ahmed Mir further contends that the basic reasoning for the offence is that those were related companies and that relation was not disclosed by MGF group however, first of all the said fact was well known to EMAAR and secondly and more importantly it only gives right to take action under the Companies Act and not under the Criminal law. He submits that insofar as cognizance/summoning order is concerned, the necessity to elaborate the material whereupon the summoning order is based is imperative as it has serious repercussions as it affects the right of the summoned person whose character is changed to that of an accused. He submits that summoning order is non speaking and even contrary to the record/investigation conducted by the IO. For that it is imperative that the summoning order should be set aside. He submits that he wishes to address arguments at length on this score.
5. Repelling the aforesaid contentions Mr. Madhav Khurana, Ld. Sr. Advocate who appeared without notice contended that the matter has already travelled till the Hon'ble Apex Court. Registration of FIR by exercising the power U/s 156(3) Cr.PC was not faulted. Similar arguments which are now being agitated were raked up before the Ld. ASJ. Each and every contention has been dealt in by the Ld. ASJ while dismissing the revision petition. The accused persons are trying to put a spoke in the wheel by filing the present revision petition. They are not remediless. They can contend once they appear before the Ld. Trial Court. He further contends that in the case titled as State of Gujrat v/s Afroz Mohd Hassan Fatta reported in 2019 SCC online 172 all such contentions as sought to be agitated herein were repelled. In support whereof he has read over para no.14,15 and 18 of the said case to underscore his contention that the summoning order is valid, justified and needs no modification/clarification. It is merely calling upon the accused to face trial or to call the accused persons basing upon the conclusion reached by the IO as evident in the police report which would obviously be supplied to the summoned accused persons and they would be having an opportunity to reply/to submit qua the same at the opportune time. He contends that the revision petitions are meritless.
6. I have broadly noted the submissions made at bar. In fact the matter was argued for the entire post lunch session. In my considered opinion some of the points raised by Ld. Sr. Advocate on behalf of revisionist(s) require to be further 31/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 32 deliberated upon. They cannot be outrightly or immediately adjudicated upon. They warrant due deliberation. The next date of hearing before Ld. Trial Court is 16.12.2024.
7. I have also gone through the impugned order which is at page 190 onwards of the paper book. Ld. Trial Court has noted the submissions probably that of the complainant's counsel and thereafter proceeded to pass the order. The operative portion is at page no.194. Same reads as here under :
"Considering the report filed, complaint made, statement of the witnesses and documents annexed, this Court find sufficient material to take cognizance of the offences mentioned in the police report. Further there is sufficient material to proceed against the accused persons in the present matter. I take cognizance of the offence U/s 409/420/120 B IPC. Accused persons put in column No.11 be summoned for the NDOH."
8.In my considered opinion the validity of the order requires to be tested on the anvil of the submissions made by Ld. Sr. Advocates on behalf of either side - particularly in reference to the case laws relied upon by either side coupled with the fact that the order does not individually state the role of the individual accused persons/the offence for which they have been summoned [Reliance is made on the judgment of Anil Bhalla (supra)]. As such let this revision petition be listed for final disposal on 16.01.2025.
11. In view of the law laid down in Anil Bhalla's case there cannot be a non-speaking order at the time of cognizance. As such to my mind there could not have been a cognizance/summoning order as done by the Ld. CJM moreso without taking into account the pending application U/s 156(3) Cr.PC i.e. taking into account/meeting the observations made in the order dated 08.08.2024 passed by the Ld. CJM.
12. Having said so in my considered opinion since the summoning 32/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 33 order dated 16.11.2024 suffers from the aforesaid infirmities or is otherwise requires to be revisited by the Ld. CJM, itself the second line of arguments which predicated that the cognizance/summoning can be challenged or at this stage this Court should appreciate the material relied upon by the Investigating Agency to conclude as to the existence of the penal offences or otherwise as to the nature of the offence being civil in nature or otherwise take into account the other facts/litigation interse, same to my mind is not required to be dealt with by this Court.
13. Considering the fact that the said arguments/observations made would otherwise also burden this order apart thereof may influence the Ld. Trial Court, I am eschewing discussion on arguments encompassed in part (II) of the arguments.
14. The net result insofar as the five revision petitions [ Rakshit Jain v/s State, Arun Mitter v/s State, Rajeev Gupta v/s State,\M/s MGF Development ltd. v/s State and Rajender Singh v/s State] are concerned the impugned order dated 16.11.2024 is set aside with directions to the Ld. CJM as here under :
To first deal with the pending application U/s 156(3) Cr.PC/ the observations made in the order dated 08.08.2024 passed by the Ld. CJM. Pass a speaking order on the same in accordance with law. Thereafter, separately deal with the further aspect(s) including the aspect of cognizance, if need arises in accordance with law.
15. There is another aspect which had come up for consideration on 33/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 34 the preceding date with regard to the fact that there is a judicial verdict which has been obtained insofar as the present transaction is concerned before the competent Court at UAE. Two revisionists i.e. Shravan Gupta and Shilpa Gupta both have filed an application submitting that the said judicial verdict was not brought to the knowledge of any Court in India nor it was brought to the knowledge of the IO/Investigating Agency and now they are being made to face trial in the case in hand in which already a judicial verdict has been reached against them. In criminal referral order/case no.245/2021, Capital Criminal Court report no.360/2021 Shravan Rajeev Gupta has been sentenced to 10 years in prison for the charges brought against him followed by deportation from the country upon completion of the sentence. The accused Shilpa Gupta is also sentenced for 10 years in prison. The said order was passed by Abu Dhabi Federal Court of first instance. In this regard preliminary submissions were heard advanced by either side. The judgment passed by Hon'ble Bombay High Court in the case titled as Prabodh K. Mehta v/s Charuben K.Mehta reported in 2018 SCC Online Bombay 302 was relied upon. Hon'ble Justice B.R.Gavai had delivered the said judgment and it has been observed as here under :
40. Insofar as Judgment of Division Bench of this Court in the case of Avinashkumar Bhasin (cited supra) is concerned, we find that the question, as to whether the judgment and order of conviction can be taken notice in India for any other purposes directly fell for consideration. As such, we do not see any apparent conflict in the two views. However, in the light of discussion hereinabove, we find that the view taken by the Division Bench of this Court in Avinashkumar Bhasin (cited supra) lays down the correct position of law.
41. We therefore answer the first question viz question No. (1)(a) in the affirmative.
42.We now propose to consider the second question i.e. question No. (1)(b). We are of the considered view that, though the judgment and order of conviction of a foreign Court for the offence committed in India can be noticed/looked into and recognized by 34/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 35 judicial and quasi judicial authorities in India, while exercising their judicial and quasi judicial powers, it cannot be said that the same will be ipso facto binding on such Courts and authorities. If we hold that such a judgment of a foreign Court for an offence committed in that country, is binding on the Courts and authorities in India while exercising their judicial and quasi judicial powers, it will amount to directly or indirectly enforcing the judgment of the foreign Court. What is the effect of such order of conviction, would depend upon variety of factors such as, nature of the proceedings, purpose for which the said order of conviction needs to be taken into consideration, nature of conviction and effect thereof on the proceedings, nature of consequences of the ultimate decision to be taken in the said proceedings, are some of the factors which will have to be taken into consideration while deciding as to how much and what weightage has to be given to such judgment and order of conviction. We are of the FA-922-13.sxw considered view that, no hard and fast rule can be laid for that purpose. The Courts and authorities, while exercising their judicial and quasi judicial powers will have to take a call on the facts and circumstances of each case and take a decision as to what is the effect of such judgment and order of conviction. The question No.(1)(b) is answered accordingly.
16. To my mind the said issue requires to be heard at length as it is a question of law that in the criminal jurisdiction of another country on identical facts the judgment has been rendered. As such the revision petitions of Shravan Gupta v/s State and Shilpa Gupta v/s State are segregated and notices be issued to the complainant Ld. APP for the State and the Investigating Agency/ IO to file a reply to the application moved therein. Till the next date of hearing the stay order qua the said accused persons i.e. Shravan Gupta and Shilpa Gupta shall continue/proceedings emanating from the present FIR shall remain stayed.
17. With the aforesaid observation the petitions i.e. Rakshit Jain v/s State, Arun Mitter v/s State, Rajeev Gupta v/s State, M/s MGF Development ltd. v/s State and Rajender Singh v/s State a re disposed of and the Ld. Trial 35/36 CR No.674/2024, 675/2024, 676/2024, 677/2024, 678/2024, 679/2024 and 689/2024 36 Court can commence/continue the proceedings from/after the stage of the order dated 08.08.2024 passed by the Ld. CJM with respect to the monitoring application and to comply with the directions as contained in paragraph no. 14 of the present order.
18. The revision petitions of Shravan Gupta v/s State and Shilpa Gupta v/s State are segregated and be listed for 04.07.2025. Viz a viz five revision petitions are disposed of to the extent mentioned herein above. TCR be sent back for 17.05.2025.
Dictated and Pronounced in open Court on 05.05.2025 (Sumit Dass) Additional Sessions Judge -05 New Delhi District, Patiala House Courts New Delhi.
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