Delhi District Court
Satinder Kumar Saini vs M/S Gps Properties Pvt on 5 May, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
SPECIAL JUDGE (NDPS): WEST/DELHI
PRESIDED BY : MS. PINKI
CRIMINAL REVISION NO. 104/13
IN THE MATTER OF
1. SATINDER KUMAR SAINI,
R/O H.NO. 106, VIKAS PURI,
NEW DELHI - 110018
2. ANIL SAWHNEY (HUF)
THROUGH ITS KARTA MR. ANIL SAWHNEY
A1/238, JANAKPURI, NEW DELHI 110018 REVISIONISTS
VERSUS
1. M/S GPS PROPERTIES PVT, LTD.,
REGD. OFFICE: STATESMAN HOUSE,
8th FLOOR, BARAKHAMBA ROAD,
NEW DELHI - 110001
2. M/S TODAY HOMES AND INFRASTRUCTURE PVT. LTD.,
THROUGH ITS DIRECTOR
REGD. OFFICE: STATESMAN HOUSE,
8th FLOOR, BARAKHAMBA ROAD,
NEW DELHI - 110001
ADMN OFFICE AT
WEST GATE, PLOT NO. 4, 5 & 6,
SHIVAJI PLACE, DISTRICT CENTRE,
RAJA GARDEN, NEW DELHI
3. GULSHAN KUMAR GAMBHIR,
DIRECTOR OF RESPONDENT NO. 1,
48, FRIENDS COLONY,
NEW DELHI - 110065
4. AJAY SOOD,
DIRECTOR OF RESPONDENT NO. 1,
A448, MINTO ROAD COMPLEX,
MINTO ROAD,
NEW DELHI - 110001
5. UMESH SHARMA,
DIRECTOR OF RESPONDENT NO. 1,
B34A, STREET NO. 1,
WEST VINOD NAGAR,
DELHI - 110092
CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 1/13
6. RISHI KAPOOR,
G.M. OPERATION OF M/S SCALE FACILITY MANAGEMENT SERVICES
(P) LTD, SISTER CONCERN OF RESPONDENT NO. 1 AND 2, HAVING
OFFICE AT WEST GATE MALL, RAJOURI GARDEN,
NEW DELHI
7. THE SHO,
POLICE STATION RAJOURI GARDEN,
NEW DELHI RESPONDENTS
DATE OF INSTITUTION : 07.06.2013
DATE OF RESERVING THE ORDER : 22.04.2014
DATE OF DECISION : 05.05.2014
O R D E R
1. The present revision petition has been filed on 06.06.2013 by the revisionists impugning the order dated 07.05.2013.
2. The record as well as trial court record and written submissions filed on behalf of revisionists and respondents no. 1 to 6 have been carefully and thoroughly perused. Submissions of learned counsel for revisionists and learned counsel for respondent no. 1 to 6 have been heard. Respective submissions of either side have been considered. Authorities relied by learned counsel for revisionists as well as respondents no. 1 to 6 have also been perused.
3. Learned counsel for revisionists has relied on the following authorities:
1. State Vs. Mohd. Iqbal Ghazi & Ors., 154 (2008) Delhi Law Times 481
2. Dharmeshbhai Vasudevbhai & Ors. Vs. State of Gujarat & Ors., (2009) 3 Supreme Court Cases (Cri) 76
3. Sakiri Vasu Vs. State of Uttar Pradesh & Ors., (2008) 1 Supreme Court Cases (Cri) 440 CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 2/13
4. Lalita Kumari Vs. Govt. of U.P. & Ors., 2013 (13) SCALE 559
5. Sivananda Mudali Vs. Unknown, Passed by Madras High Court on 20.10.1925 (AIR 1926 Mad 1072)
4. Learned counsel for respondent no. 1 to 6 has relied on the following authorities:
1. Geeta Vs. Bal Govind Rohtgi, Passed in RFA No. 600/211 decided on 11.04.2012 by Delhi High Court
2. Dalip Kaur & Ors. Vs. Jagnar Singh & Anr., (2009) 14 Supreme Court Cases 696
3. Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr., (2009) 8 Supreme Court Cases 751
5. The short question in controversy is, whether the learned Trial Court has rightly dismissed the application under section 156(3) Cr.P.C.?
6. An application under section 156(3) Cr.P.C. was filed on 18.03.2013 by the applicant / revisionist running into twelve pages alongwith copies of documents which are Annexure A to I from page 15 to
49. Vide order dated 21.03.2013 learned Trial Court had called status report from Station House Officer, Police Station Paschim Vihar. Status report was filed on 26.03.2013 and vide order dated 07.05.2013 an application under section 156(3) Cr.P.C. was dismissed. However, matter was kept for recording of presummoning evidence even though no complaint under section 200 Cr.P.C. or otherwise was filed. Meaning thereby that learned Trial Court has considered application under section 156(3) Cr.P.C. of revisionists as complaint.
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7. A perusal of record shows that status report dated 26.03.2013 mention that a detail enquiry was conducted. It was revealed that complainant alongwith his partner bought a shop no. 7SF, West Gate Mall, Rajouri Garden from original allottee Mrs. Divya Verma wife of Mr. Amit Gupta, Mrs. Niti Verma and Mr. Manav Verma on 01.11.2010 through agreement to sell. At that time area of shops were rented out by the alleged company to M/s Hindware Homes Retail Private Limited and M/s Hindware Homes Retail Private Limited was in possession and enjoyment of these shops in the capacity of tenant / lessee by virtue of attornment letter dated 27.08.2008. The rent for this period was paid by M/s Hindware Homes Retail Private Limited. On 10.07.2012 M/s Hindware Homes Retail Private Limited vacated the shops. The correct demarcation of the shops was not carried as a result of which actual physical possession was not handed over. The Mall Management has started raising walls and creating shops in the area. The allegations of complainants are that the area of their shop is being reduced and location is also being changed. The company is not handing over possession of their shops which they had purchased after checking the site plan. Due to the act of raising of walls, the location and area of some shops are being changed. Some aggrieved shopkeepers namely Ajay Kumar, Kanwaljeet Singh and Vikas Bhatia have filed a Civil Suit No. 30/13 against M/s Today Homes & Infrastructure Private Limited in the court of Ms. Sukhwinder Kaur, learned Additional District Judge, Rohini.
8. It has further been submitted in the status report that the enquiries revealed that the alleged company sold these shops to shop owner but did not hand over actual physical vacant possession to him, hence no cognizable offence of criminal trespass / cheating / breach of trust is made out from this complaint. M/s Today Homes & Infrastructure Private Limited has stated that a tentative site plan of shop was provided by them. Alongwith this report, copy of report of Sub Inspector Sandeep Kumar, Police Station Rajouri Garden in respect of complaint of shopkeepers against M/s Today CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 4/13 Homes & Infrastructure Private Limited and its Director has also been filed which was forwarded by Station House Officer on 24.03.2013 to Assistant Commissioner of Police.
9. Mr. Varun Panta, Authorised Signatory of M/s Today Homes & Infrastructure Private Limited has sent his reply dated 29.01.2013 to Station House Officer, Police Station Rajouri Garden stating that complainants have not placed the correct facts before Station House Officer. It has further been submitted that unit no. SF 07, Second Floor at West Gate Mall, Rajouri Garden was earlier sold to Ms. Niti Verma, Ms. Divya Verma and Mr. Manav Verma and later on, on the request of those persons, the unit was transferred in the name of complainant on 01.11.2010. At the time of agreement with previous owner the said unit was already in possession of M/s Hindware Home Retail Private Limited (Evoke) with other units as a single composite unit and the lease was attorned in their name. The area and the plan mentioned in the agreement was tentative and would be changed as per final demarcation when Evoke vacates the premises. Evoke had vacated part of the premises on 14.06.2010 and thereafter the shop was not demarcated on the request of all the owners to locate the other tenant for the said area. However, when Evoke has vacated the entire area on 10.07.2012 the area was not demarcated for a period of few months on the request of all the owners to locate other tenant for the entire area. Later on when the owners requested that they would themselves search the tenant and would lease the area on individual basis the actual demarcation of the total area of the lease is carried out by the representative of respondents and a final demarcation was done. The area of the complainant's shop has not changed and as per the actual measurements only the little bit location of the shop has changed in view of the demarcation of the whole area under lease of Evoke.
10. Authorised signatory of M/s Today Homes & Infrastructure Private Limited has also referred to Clause 3 of the agreement to sell which CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 5/13 clearly states that area mentioned in the agreement is tentative and final and confirmed area shall be incorporated in the sale deed. It has also been mentioned that the agreement is unregistered and not adequately stamped, therefore, the complainants have no right to claim in view of the unregistered document. The complaint does not show any contents of cheating etc. Dispute is of civil nature.
11. Mr. Rishi Kapoor, Scale Facility Management Services Private Limited vide his communication dated 23.01.2013 addressed to Sub Inspector Sandeep Kumar has reported that his responsibilities are to look after the overall operation, maintenance and ensuring smooth delivery soft services i.e. housekeeping, horticulture and parking etc. in the mall. He has no role and involvement in the demarcation / construction of walls for shops in any respect. It is finalised by Management of Today Homes and executed by Projects Department of Today Homes & Infrastructure Private Limited.
12. Statements of Ramandeep Singh Kohli and Satender Kumar Saini have also been recorded by Sub Inspector Sandeep Kumar on 21.01.2013.
13. One of the applicants / revisionists has filed objections to the status report. It has been submitted that neither proper investigation has been carried nor reasons given by the Investigating Officer in the status report are valid i.e. at the time of purchase of shop by the complainant, the area of their shop was on rent and the possession was with the tenant and the tenant had been paying rent is false. The correct fact is that the possession was always with the complainants and there was no tenant and no rent was being received by the complainants for their shop. The reference in status report about another case between different parties altogether, is not in the knowledge of the complainants and the same is also CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 6/13 irrelevant for this case. The case is referred in the status report with the sole intention to confuse the matter and in order to mislead the court.
14. A perusal of record further shows that case of revisionists is that accused persons have illegally and forcibly trespassed on some portion of the premises of the revisionist and police is bound to register an FIR when the complaint discloses cognizable offences. The grievance of the revisionists is that despite serious allegations supported with documentary evidences, the local police have for some strange reasons, neither registered an FIR nor took any action. The alleged investigation carried out by the local police was mere any eye wash and did not disclose even a single iota of fact as to what investigation has been made in pursuance to the complaints filed by the revisionist and the local police has not even dealt with the documents which clearly discloses commission of cognizable offences.
15. It has further been submitted on behalf of revisionists that learned Metropolitan Magistrate has mechanically passed the order, without dealing with the relevant facts, documents and judgements relied on by the revisionists. It has further been submitted that site plan has been fabricated. The offence were committed on 28.12.2012. The fabricated site plan is dated 18.10.2012. These forged documents were prepared at the time when a criminal conspiracy was hatched amongst the respondent no. 1 to 6 in order to reduce the area of the units already sold and illegally create more commercial space, with the intention to sell at an exorbitant price, since the property price has tremendously increased. The original layout plan is of the year 2005 - 2006 is a public document which was provided by respondent no. 1 & 2 and on the basis of which the complainant and other unit owners had purchased their respective units. The shop numbers have been changed. The fabricated documents also show that the areas sold to the petitioners and other unit holders were more than the areas available with the respondent no. 1 to 6. It has further been submitted that letter CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 7/13 dated 23.01.2013 is fabricated. The offence was committed on 28.12.2012. This letter contain false averments that they have no role and involvement in the demarcation / constructions of walls for shops in any respect, even though they have given work order for constructions and demarcation of walls for shops. In respect of reply dated 29.01.2013 it has been submitted that it was filed before the local police. They have not dealt with fabricated documents and even no explanation has been given as to why documents were prepared by them only before few days of commission of the offence. The reply mention that only the little bit location of the shop has been changed. It supported the stand of the complainant that it had forcefully broken the wall, encroached a portion of the unit of the complainant resulting thereby change in the location of the shop. False plea has been taken that the change was done in view of the demarcation of the whole area under the lease of Evoke. It has further been submitted that the area was not tentative till the year 2012 but it was tentative during completion of construction of the said complex. After completion of the construction, the area was confirmed and the agreement to sell was entered and possession was given in the year 2006 to the previous owners and to the complainant on 01.11.2010 on the basis of subsequent purchase by them.
16. Per Contra learned counsel for respondent no. 1 to 6 has submitted that revisionists have not been able to show any perversity or miscarriage of justice. Only an application under section 156(3) Cr.P.C. has been dismissed. The complaint continued. The revisionists have several documents which are allegedly relevant to their case and in their possession. These have been annexed alongwith the revision petition but are not limited to the alleged forged site plan, some witness statements, status reports etc. In para K of revision petition, petitioner also allege that they had supported their complaints with documentary evidence. The complainants can always summon persons at the stage of presummoning evidence. There is no need for police investigation. No cognizable offence is made out. There is no CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 8/13 credible or substantiated averment or allegation relating to preparation of hurt or assault, or actual hurt or assault. Therefore, section 452 IPC is not made out. Section 420 IPC requires a dishonest intention at the inception and a mere allegation of breach of contract does not amount to cheating. No case under section 420 IPC is made out. Offences relating to forgery i.e. sections 464, 465, 467, 468, 471 IPC cannot be made out. Even assuming without conceding that the complaint averments are taken at face value, there is no false document within the meaning of section 464, which is the prerequisite for any offence of forgery to be committed. Neither the signatures of the complainants nor of any person been forged or impersonated, nor have the accused persons executed a document under the authority of a person whom the petitioners know has not so authorised them. The agreement to sell in question is unregistered and has been entered into after 2001. As per section 53A Transfer of Property Act read with sections 17 and 49 Registration Act, the alleged agreement to sell cannot be looked into as evidence. It would also not fall within the collateral purpose exception of section 49 Registration Act. Clause 3 of the agreement to sell clearly stipulates that the area mentioned in the agreement is tentative and confirmed area shall be incorporated in the sale deed. Admittedly till date sale deed has not been executed, therefore, respondents have every right for modification of the area. Occupancy certificate was issued by the DDA in July, 2008.
17. It has further been argued on behalf of respondents that the argument of revisionists that area was not tentative till the year 2012 but it was only tentative during construction has no force. At the same time they alleged that after construction of the complex was completed, the area was confirmed and the agreement to sell was entered into in the year 2006. These are self contradictory averments. As per the averments in the revision petition, the agreement to sell was entered into in the year 2006 after the construction was completed. The agreement to sell still contained a clause CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 9/13 stating that the area was tentative. If the area was only to be tentative during construction, then why was such a clause inserted into the agreement to sell. It was clearly because the area was indeed tentative, not only during construction but till the sale deed was executed. Morevoer, dispute in question is of a civil nature and a colour of criminality is being given only to misuse the machinery of criminal law. No cognizable offence is made out from the facts of the case.
18. Learned counsel for revisionists has relied on Judgment passed by Hon'ble Supreme Court of India in Lalita Kumar Vs Govt. of UP & Others (Supra) wherein it has been held that registration of the FIR is mandatory under section 154 Cr.PC. if disclosed commission of cognizable offence and no preliminary enquiry is permissible in such situation.
19. The above said judgment is in respect of section 154 Cr.P.C. where Station House Officer of the Police Station is bound to register a case on the complaint of the complainant, if disclose a commission of any cognizable offence. Section 156(3) Cr.P.C. empowers the Magistrate under section 190 Cr.P.C. to give direction to Station House Officer of the Police Station to carry investigation as mentioned above. Under section 156(1) Cr.P.C. Station House Officer of the Police Station has been empowered to investigate any cognizable offence without orders of the Magistrate.
20. Word 'may' has been used in Section 156(3) Cr.P.C. Learned Magistrate has given a cogent reason for not directing Station House Officer of the Police Station to register an FIR because mode and manner in which the offence has been committed can be established by the complainant by leading evidence. Powers for registration of the FIR should sparingly be used because of implication.
CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 10/13
21. If there is any intention of the Legislature or the court is that in each and every case the Magistrate shall direct Station House Officer of the Police Station to register an FIR, if the complaint filed before him disclose cognizable and nonbailable offence, then whole procedure of the complaint case in regard to cognizable offence and session triable offence has become redundant. If Magistrate feels that the police investigation is required in the present case for obtaining the documents / evidence from the accused, he can direct the police to investigate further by exercising the powers under section 202 Cr.P.C.
22. This court is of the opinion that learned Trial Court has rightly opined that complainant may prove his case by leading evidence in the court. This Court relies on judgement titled Subhkaran Luharuka V/s State & Anr. in Crl. M.C. No.612223/2005.
23. The legal position is clear to the effect that a person intending to set the criminal law in motion inter alia may file an application under Section 156(3) Cr.P.C. When a first information report is lodged, a police officer has the requisite jurisdiction to investigate into the cognizable offence in terms of Section 156(1) of the Cr.P.C. Where, however, a magistrate is entitled to take cognizance of the offence under Section 190 Cr.P.C., he may also direct that such investigation be carried out in terms thereof.
24. When a complaint petition is filed under Chapter XV of the Cr.P.C., the Magistrate has a few options in regard to exercise of his jurisdiction. He may take cognizance of the offence and issue summons. He may also postpone the issue of process so as to satisfy himself that the allegations made in the complaint petition are prima facie correct and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding as to whether or not there is sufficient ground for proceeding.
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25. By reason of impugned order dated 07.05.2013 the learned magistrate intended to inquire into the case himself and for the said purposes, applicant was directed to lead the evidence. Application unde section 156(3) Cr.P.C. was treated as complaint, therefore, an opportunity for presummoning evidence was granted. The law is well settled that Magistrate should direct investigation by the police only where, the assistance of the investigating agency is required and allegations and facts are so complicated that without the investigation by the police, the complainant cannot launch a successful prosecution. The identity of the accused is ascertained and there is nothing on record which warrants police investigation.
26. On examining the nature of facts of the present case, this court is of the considered opinion that all the documents and evidence are in custody of the complainant and nothing is out of reach of the complainant which requires special investigation through police. In case revisionists / applicants wish they may take necessary steps for production of any document / evidence if in possession of anyone else. Learned Trial Court has opted for keeping the matter with himself for inquiry instead of sending the same to the police for investigation. It has been held in Rameshbhai Pandurao Hedau Vs State of Gujrat, II (2010) SLT 585, as under : "The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3), Cr.P.C. and under Section 202, Cr.P.C. The only difference is stage at which the said powers may be invoked. As indicated hereinbefore, the power under Section 156(3), Cr. P.C. to direct an investigation by the police authorities is at the precognizance stage while the power to direct a similar investigation under Section 202 is at the postcognizance stage. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202, Cr.P.C. and kept the matter with himself for an inquiry in the facts of the CR No. 104/14 Satinder Singh Saini & Ors Vs GPS Properties Pvt. Ltd. & Ors. Page no. 12/13 case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Subsection (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Section 203 or proceed in therms of Section 193 and commit the case to the Court of Session."
27. Judgements relied by learned counsel for revisionists are not disputed but are of no help to the revisionists in the instant case.
28. In judgement titled Geeta Vs. Bal Govind Rohtgi (Supra) relied by learned counsel for respondent no. 1 to 6 Hon'ble Mr. Justice Valmiki J. Mehta, Judge Delhi High Court has referred to section 53A of Transfer of Property Act and observed that documents in the case are prior to the amendment 48 of 2001 w.e.f. 24.09.2011. In the instant case the agreement to sell is after the amendment on 2001 and it is not a registered document. Admittedly sale deed is also not executed till date. Clause 3 of agreement to sell states that area mentioned in the agreement is tentative, final and confirmed area shall be incorporated in the sale deed.
29. In view of the abovesaid discussion, this court is of the considered view that there is no illegality or infirmity with the exercise of jurisdiction by the learned Trial Court. Impugned order does not warrant any interference. Impugned order stands upheld. Revision petition stands dismissed.
Copy of this order be sent alongwith the TCR.
Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON : 5th MAY, 2014 (PINKI)
ADDITIONAL SESSIONS JUDGE
SPECIAL JUDGE : NDPS
WEST DISTRICT/ DELHI
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