Delhi District Court
Ravinder Singhania vs State Of Nct Of Delhi on 4 November, 2022
IN THE COURT OF MS. VRINDA KUMARI,
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
REVISION PETITION NO. 198 OF 2021
IN THE MATTER OF
Ravinder Singhania,
S/o Sh. Duli Chand Singhania,
R/o P-24, Green Park Extension,
New Delhi-110016 ........ Revisionist
Versus
1. State of NCT of Delhi
Through Ld. Additional Public Prosecutor
2. Pawan Kumar Jindal,
S/o Sh. G. D. Jindal,
R/o E-101, Preet Vihar,
New Delhi-110092 ........ Respondents
DATE OF INSTITUTION : 02.11.2021
DATE OF RESERVING ORDER : 27.10.2022
DATE OF PRONOUNCEMENT : 04.11.2022
ORDER
1. Vide this Order, I shall dispose of the present revision petition against the impugned Order dated 19.10.2020 of Ld. CMM (South) vide which accused persons including the revisionist have been summoned in case FIR No. 350/2017 PS Saket u/s 406/420/120B/34 IPC.
CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 1 of 9
2. The Impugned Order dated 19.10.2020 reads as follows :
"On the basis of charge sheet filed by the State, the cognizance of the offences punishable under Sections 406/420/120B/34 of IPC, 1860 is taken, as per Section 190(b) of CrPC, 1973. Let the accused be summoned through the IO, for 21.01.2021."
3. Aggrieved with the said Order, the present revision petition has been filed primarily on the ground that the revisionist was a non executive independent director within the meaning of Section 149(6) of the Companies Act, 2013 in the accused company M/s Unitech Ltd. and was not involved in day to day conduct of affairs of the company. It is also submitted that no specific role has been assigned to the revisionist-accused in the FIR or charge-sheet. It is further contended that the current account no. 0390201008382 of the company was opened much prior to the revisionist joining the board of company and balance amount as on 22.07.2017 being Rs 47,563/- was subsequent to the resignation of the revisionist from the Board of Directors of M/s Unitech Ltd. Further, the Escrow Account No. 03902010011134 had a zero balance as on 22.07.2017 which was subsequent to resignation of revisionist from the Board of Directors of the accused company. Further, delay in construction cannot be attributed to a non-executive Director. It is also submitted that a non speaking Order had been passed by Ld. CMM and that there was no allegation which could be converted into a legally CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 2 of 9 admissible evidence against the revisionist.
4. Ld. Counsel for the revisionist has relied upon following case laws :
(i) Ravindranath Bajpe Vs Mangalore Special Economic Zone Ltd. & Ors. (2021) SCC Online SC 806;
(ii) GHCL Employees Stock Option Trust Vs India Infoline Ltd. (2013) 4 SCC 505;
(iii) Sunil Bharti Mittal Vs Central Bureau of Investigation; (2015) 4 SCC 609;
(iv) Pepsi Foods Ltd. Vs Special Judicial Magistrate & Ors. (1998) 5 SCC 749;
(v) Shiv Kumare Jatia Vs State of NCT of Delhi (2019) 17 SCC 193;
(vi) Birla Corporation Ltd. Vs Adventz Investment and Holding Ltd. (2019) 16 SCC 610;
(vii) Kanarath Payattiyath Balraj Vs Raja Arora (2017) 2 DLT (Cri) 695;
(viii) Bhardwaj Thirvenkata Venkatavaraghavan Vs PVR Ltd. (2019) 258 DLT (CN 17A) 17;
(ix) Har Sarup Bhasin Vs Origo Commodities Pvt. Ltd.
2020 SCC Online Del 10;
(x) Pooja Ravinder Devidasani Vs State of Maharashtra & Anr. (2014) 16 SCC 1;
(xi) Ram Jas Vs State of Uttar Pradesh, 1970 (2) SCC 740;
CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 3 of 9
(xii) Jayaprakash Vs The State; MANU/TN/2062/2014; Crl.
OP 16109 of 2010 decided on 15.10.2014;
(xiii) Indian Oil Corporation Vs NEPC India Ltd. & Ors (2006) 6 SCC 736;
(xiv) Randheer Singh Vs State of U.P. & Ors. 2021 SCC Online SC 942;
(xv) Sunita Palita Vs Panchami Stone Quarry 2022 SCC OnLine SC 945.
5. Ld. Additional PP for State has opposed the revision petition on the ground that at this stage only a prima facie case for summoning the accused must be seen. It is further submitted that complainants cannot be expected to know who all are the Directors of the accused company.
6. I have heard the detailed arguments and have perused the records carefully including the Trial Court Record as well as the case laws relied upon by Ld. Counsel for the revisionist.
7. I shall also examine whether there are sufficient grounds to summon the revisionist as an accused in the present case.
8. The charge-sheet discloses that the accused company M/s Unitech Ltd. floated a fraudulent scheme for allotment of residential apartments in the Project under the name and style of CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 4 of 9 Unitech Cascades proposed to be developed on a plot of land measuring 37,838.05 sq. m. bearing plot no. 8, Sector Pi-II (Alistonia Estate) in Greater Noida, U.P. Booking/consideration amounts were collected from the buyers/investors after getting the Apartment Buyer Agreement signed from them. The investigation further discloses that even though the accused company started booking flats and collecting booking amounts in the month of July 2005 onwards, the building plan was sanctioned only on 19.02.2007 and environment clearance was obtained only on 28.12.2013.
9. There were 353 investors in the Unitech Cascades Housing Project from whom a total amount of Rs 1,668,852,764/- was received by the accused persons. Complaints of seven such buyers/investors are the subject matter of the present FIR. The investigation further revealed that despite receiving huge amount from the buyers/ investors, the current account no. 0390201008382 reflected an amount of Rs 47,563/- only. The Escrow Account had zero balance as on 20.03.2017. The Project was not completed on time and the money collected from the investors / buyers had been siphoned off by the accused company and its Directors. Thus, accused company and its Directors cheated the general public by way of fraudulent misrepresentation, concealment of material facts and false assurances in furtherance of a well planned conspiracy. The investigation further discloses that the revisionist was a Director in the accused company during the period from 24.08.2006 to 23.05.2015. As per the charge-sheet, the period during which the CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 5 of 9 monies were collected and misappropriated coincides with the above-said period.
10. In view of the nature of above-said allegations against the accused company and its Directors, the actual designation of the revisionist-accused in the company is immaterial at least at the stage of summoning. The defense of the revisionist that he was not responsible for day to day conduct of the company is a matter of trial.
11. In Master Circular No. 01/2011 dated 29.07.2011 along with clarification vide General Circular No. 01/2020 dated 02.03.2020 of the Ministry of Corporate Affairs, Government of India has been placed on recorded by the revisionist. In the General Circular, it has been observed as follows :
"3. Section 149(2) is a non obstante clause which provides that the liability of an independent director (ID) or a non-executive director (NED) not being promoter or key managerial personnel would be only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently. In view of the express provisions of section 149(12), IDs and NEDs (non-promoter and non-KMP), should not be arrayed in any CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 6 of 9 criminal or civil proceedings under the Act, unless the above mentioned criteria is met. ..."
In the above-said circular, 'such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently' is a crucial aspect to be considered in the present charge-sheet. That through the Board processes also, the revisionist-accused was not aware of the scheme of the accused company M/s Unitech Ltd. or of siphoning off the money by the accused company is also a matter of trial.
12. Section 204 Cr.P.C. would show that at the stage of taking cognizance, Ld. MM is only required to see whether there are sufficient grounds for proceeding in the matter against the accused. The grounds which are subject matter of trial are not required to be gone into at this stage.
13. The impugned Order shows that Ld. CMM (South) had summoned the accused persons on the basis of the charge-sheet. In Jagdish Ram Vs State of Rajasthan (2004) 4 SCC 432, it has been held by Hon'ble Supreme Court of India as follows :
"The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the appellant or CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 7 of 9 not, yet entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. 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 inquiry. CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 8 of 9 At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal & Ors. [2003] 4 SCC 139)."
14. In light of the above discussion and upon the perusal of the charge-sheet, the Court is convinced that there is sufficient material on record to summon the revisionist as accused for the offence u/s 406/420/120B/34 IPC in case FIR No. 350/2017 PS Saket. So far as the case laws relied upon by Ld. Counsel for the revisionist are concerned, they are distinguishable on facts.
15. The Court does not find any illegality or perversity in the impugned Order dated 19.10.2020 summoning the revisionist as an accused in the present case. The present revision petition is, accordingly, dismissed.
PRONOUNCED IN OPEN COURT ON THIS 4th DAY OF NOVEMBER 2022 Digitally signed VRINDA by VRINDA KUMARI KUMARI 12:54:01 Date: 2022.11.05 +0000 (VRINDA KUMARI) ASJ-02/SOUTH/SAKET COURTS NEW DELHI CR No. 198/2021 Ravinder Singhania Vs State & Anr 04.11.2022 Pg No. 9 of 9