Delhi District Court
Sohan Bahadur Gurong vs State on 25 February, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 62 of 2021
CNR No.DLSE01-001945-2021
IN THE MATTER OF:
Sohan Bahadur Gurong
S/o Sh. Sher Bahadur Gurong
R/o B-6, 40/2, Safdarjung Enclave,
New Delhi-110029. .......Revisionist
Versus
1. State
Through SHO Police Station Kalkaji
Police Station Kalkaji, New Delhi.
2. M/s Anand Divine Developers Pvt. Ltd.
Through its Directors:
1. Getamber Anand
2. Poonam Getamber Anand
3. Sanjiv Kapoor
4. Puneet Arora
All at: 711/92, Deepali Nehru Place,
New Delhi-110019. ........Respondents
Instituted on : 01.03.2021
Reserved on : 16.02.2022
Pronounced on : 25.02.2022
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.02.25
15:41:14 +0530
JUDGMENT
1. Vide instant petition, revisionist takes exception to the order dated 04.02.2021 whereby his application moved u/s 156(3) Cr.P.C in CC No. 1419/2020 titled as Sohan Bahadur Gurong vs. State, stood dismissed by Ld. Metropolitan Magistrate-06, South East District, Saket Court, New Delhi.
2. Brief facts may be taken note of : It is alleged by revisionist that the respondent no.2 through its Directors/Office Bearers fraudulently induced him to invest in its project namely 'ATS Triumph' in Sector 104, Gurgaon, under 'assured buyback' scheme wherein apartment bearing No. 8082 was allotted to him at the basic sale price of Rs.8500/- per sq ft. and a Memorandum of Understanding dated dated 08.05.2014 was also executed between the parties.
2A. It is averred that as per clause (F) of the said MOU, the revisionist had agreed to invest in the said project relying upon representation/ assurance of the owner / developer, wherein latter had guaranteed to buy back the same at the premium of Rs.1500/- per sq ft. subject to said option of 'buyback' being exercised by the investor i.e. revisionist herein after expiry of 36 months from the date of booking. The total super built area of the said apartment was 3150 Sq ft. as per the said MOU.
2B. It is further alleged that a housing loan under subvention
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.02.25
15:41:24 +0530
scheme was also agreed to be arranged from specific Banks (ICICI Bank herein) for the revisionist by the respondent and as per clause 6 of said MOU, revisionist had no interest, liability for a period of 36 months from the date of booking and the liability / interest towards the loan was to be borne by the owner/developer i.e. respondent herein for the said period of 36 months.
2C. As per revisionist, a total sum of Rs.66 lakhs (approx) was paid to the respondent towards said booking on different dates and an acknowledgement in this regard was also received by him vide email dated 02.06.2017 from the respondent.
2D. It is alleged that revisionist in terms of said MOU, exercised his right of surrender of apartment under buyback scheme vide email / letter dated 22.02.2017.
2E. It is further alleged by revisionist that a meeting was held in May-June 2017 with official of respondent company namely Sanjeev who assured him that entire amount as per MOU would be refunded to him around Diwali-2017 and an email dated 02.06.2017 was also received by revisionist to this effect. However, despite several letters and reminders, respondent did not honour its commitment to refund the amount as per the agreed terms and conditions.
2F. As per revisionist, arbitration proceedings were initiated as the respondent company had failed to honour its liability under the said Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 3 of 11 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:41:33 +0530 MOU and during pendency of said proceedings, respondent company also stopped paying the EMIs of the loan in terms of the MOU, thereby leaving him in lurch. It is alleged that respondent company and its Directors / Officer bearers had dishonest and fraudulent intention since beginning to lure the revisionist to invest his hard earned money in their project and when it came to pay back, respondent company backed out from its liability. On these allegations, complainant/revisionist alleges commission of offences under section 403/405/415/418/420 IPC.
3. Record reveals that pursuant to directions of concerned Ld Ilaqa Magistrate, an Action taken report came to be filed by concerned SHO/IO, PS Kalkaji, wherein it was mentioned that matter is purely civil in nature. It was further reported that an arbitration proceedings are going on between the parties and the dispute involved in the present case is a commercial dispute. No cognizable offence was reported to have been made out in the instant case. It was further reported that in view of equitable mortgage being created in favour of ICICI Bank from whom the loan was arranged against the said property, only the Bank can go for refund and the buyback option is not available to the revisionist as the Bank is having right on the said property. It was also reported that apart from on going civil / commercial litigation, revisionist has option to approach Real Estate Regulatory Authority (RERA), Haryana in the instant case for redressal of his grievances.
4. Vide impugned order, the said application stood dismissed by concerned court. The relevant observations of Ld. Magistrate is as Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 4 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:41:43 +0530 follows:-
"8. In the instant case, the complainant is aware of the witnesses who are to be examined and / or in possession of complete details of the complaint / documents. The mode and manner in which the alleged offence is stated to have been committed is clear, identity of the accused is also not to be established. As per the submissions, identity of the accused persons is known to the complainant. Further, all the documents are lying in the possession of the complainant. The complainant has brought nothing on record to suggest as to what evidence is required to be collected through police investigation. Therefore, the offence committed if any may be proved by leading evidence by the complainant himself. No active or passive assistance required from the state machinery for investigation. Therefore, there is no requirement of police investigation in this case for the purpose of collection of evidence. The case, if any, can be proved by the evidence of the complainant. If any further evidence would be required, the same can be summoned by the court at the required stage u/s 202 Cr.PC.
9. Therefore, in view of the above discussion the present application filed u/s 156 (3) Cr.PC is dismissed."
5. The revisionist is aggrieved with the said order and has assailed the same vide instant petition. Ld. counsel for the revisionist forcefully argued that the impugned order is not sustainable in the eyes of law as Ld Magistrate was duty bound to order for registration of FIR as the facts averred in the complaint disclose commission of cognizable offences. It was urged that revisionist is not aware of the functioning of accused company and officials thereof as well as with complete facts especially the involvement of brokers, bank officials and other unknown persons associated with company. It was further urged that police assistance is required to follow the trail of money received by builder Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 5 of 11 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:41:52 +0530 from various sources. It was argued that police exceeded its jurisdiction while emphasizing on the pendency of a civil case and rather ignored the contents of complaint which discloses commission of cognizable offence. It was submitted that the impugned order is liable to be set aside and the application under section 156 (3) Cr.P.C. deserves to be allowed by passing appropriate directions for registration of the FIR in the instant case.
6. The sum and substance of the arguments addressed on behalf of revisionist are as under :-
(i) That the impugned order is based on surmises and conjectures and therefore same is illegal and improper and rather suffers from serious and material irregularities;
(ii) That the finding of Ld Trial court is contrary to record;
(iii) That Ld Trial Court failed to appreciate the fact that revisionist was defrauded by agents/directors of accused company who even went on to the extent of arranging bank loan and a thorough investigation is required in the instant matter;
(iv) That Ld Trial Court failed to conclude that the facts alleged disclose commission of various cognizable offences and investigating by police would be required for recovery of the cheated amount and for unearthing the whole conspiracy;
(v) That Ld Trial Court failed to appreciate the fact that revisionist is unable to lift the corporate veil of accused company and therefore a fair and impartial investigation by police to ascertain the role of real Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 6 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:42:02 +0530 beneficiaries is required;
(vii) That Ld Trial Court failed to appreciate the fact that filing of civil case is not a bar for initiation of criminal proceedings when the same discloses commission of cognizable offences;
(viii) That revisionist is not in possession of all the evidence and resort to provisions of section 202 Cr.PC may diminish the chances of recovery of cheated amount;
6A. In support of his submissions, Ld. counsel placed reliance upon the judgment of Hon'ble Apex Court in Lalita Kumari Vs Government of UP & Ors, (2008) 14 SCC 337.
7. None appeared on behalf of respondent no.2 / company and its Directors despite being served with notice of instant petition.
8. Heard. Record perused.
9. On the basis of material available on record, following facts are not in dispute :-
(i) That revisionist booked an apartment/Unit in project namely 'ATS Triumph' in Sector 104, Gurgaon, under assured buy back scheme wherein apartment bearing No. 8082 was allotted to him at the basic sale price of Rs.8500/- per sq ft.
(ii) That a Memorandum of Understanding dated dated 08.05.2014 was executed between the parties.
(iii) That bank loan was also arranged against the said property from ICICI Bank.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.02.25
15:42:11 +0530
(iv) That revisionist in terms of said MOU, exercised his right of surrender of apartment under buyback scheme vide email / letter dated 22.02.2017.
(v) That a total sum of Rs.66 lakhs (approx) was paid to the respondent and an acknowledgement in this regard was also received by revisionist vide email dated 02.06.2017 from the respondent.
(vi) That respondent vide its letter dated 10.11.2017, acknowledged the receipt of request made by revisionist under buyback scheme as per the MOU, however took a stand that it shall make efforts to re-allot the said apartment/Unit to some other buyer and on receiving the consideration from the new buyer, the refund shall be made to the revisionist or in alternate, the revisionist was given an option to himself find a suitable buyer for the apartment and intimate it accordingly.
(vii) Vide said letter, the respondent also assured to continue paying Bank EMI up till the possession of apartment is not offered.
10. On the basis of aforesaid admitted facts and after hearing Ld counsel for revisionist, I am of the considered view that the instant case discloses commission of cognizable offences of criminal conspiracy and cheating. It is evident from record that vide said MOU, the revisionist was induced by the respondent to invest in its project and part with his hard money on the pretext of buyback option. It is also evident from record (letter dated 10.11.2017 issued on behalf of respondent to the revisionist) that despite exercise of said buyback Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 8 of 11 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:42:20 +0530 option by the revisionist, the respondent failed to honour its commitment on the false pretext of recession in market/no stipulated time frame being there for refund or refund being made on finding a suitable buyer, despite none of such condition being there in the MOU.
11. Rather a careful perusal of the MOU dated 08.05.2014 (executed between the parties) reveals that as per clause (8), the stipulated time frame for making refund as per the agreed terms was 30 days after the expiry of 36 months from the date of booking, in the event of exercise of buyback option and in case of delay beyond 30 days, respondent had also agreed to pay interest @ 18% per annum. However, despite the said clause, the respondent did not honour its commitment on various false pretexts viz 'there being no stipulated time frame within which the refund is to be made ' which is in teeth of clause (8) of said MOU.
12. The case in hand appears to be yet another example of gullible citizens of this country being cheated of their hard earned money by the Builder lobby. The act of respondent smacks of deep rooted conspiracy to cheat and same would require a thorough investigation by police so as to unearth the whole modus operandi. In my view, the police assistance would not only be required for recovery of the cheated amount but also for ascertaining the exact role of various Office Bearers / Directors as well as for effective investigation. The revisionist cannot be expected to collect all such evidence by himself. It appears that the respondent was having an intention to cheat the Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 9 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:42:29 +0530 revisionist since beginning. Further, the possibility of respondent cheating other similarly placed investors (who might have invested in the said project on the inducement of respondent), cannot be ruled out in the instant case and assistance of police machinery would be required on that count as well.
13. The stand as taken by Investigating Agency in the Action Taken Report i.e. since revisionist has alternate remedy in the nature of Civil proceeding/RERA, does not stand the test of judicial scrutiny as there is no rule of law or prudence that merely because the alternate remedy exists, the commission of cognizable offences can be brushed aside lightly under the cloak of existence of alternate remedy.
14. In my view, the impugned order suffers from jurisdictional error and cannot be sustained in the eyes of law and same is liable to be set-aside.
15. With these observations, present revision petition stands allowed. The impugned order stands set aside. Concerned SHO is accordingly directed to register an FIR under appropriate provisions of law against respondent No. 2 M/s Anand Divine Developers Pvt Ltd (ATS) as well as against its Directors and shall file a compliance report in this regard within 48 hours before Ld Ilaqa Magistrate.
16. TCR be sent back to the Ld. Trial court along with copy of this judgment for information. Copy be also sent to concerned SHO Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 10 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:42:40 +0530 forthwith for compliance.
17. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.02.25 15:42:55 +0530 Announced in the open (ANUJ AGRAWAL) Court on 25th February 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 62 of 2021 Sohan Bahadur Gurong vs. State & Anr. Page No. 11 of 11