Delhi District Court
Smt. Raj Kumari Gugnani vs State on 28 September, 2011
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
CR No. 52/11.
Unique Case ID No.
Smt. Raj Kumari Gugnani,
W/o Sh. J.L. Gugnani,
R/o 3B, Nayay Marg,
New Delhi. ............... Petitioner.
Vs.
State. ................ Respondent.
Date of Institution : 25.05.2011.
FIR No. 84/10.
U/s. 420 IPC.
P.S. Dhaula Kuan.
Date of reserving judgment/Order : 28.9.2011.
Date of pronouncement : 28.9.2011.
28.9.2011
Present : Sh. Vikas Arora, Advocate for the petitioner.
Sh. Aditya Kumar, Ld. APP for State.
CR No.52/11. Page 1 of 8
Arguments heard on the revision petition.
ORDER
1. The petitioner has laid challenge the order dated 08.4.2011 of the Ld. Metropolitan Magistrate, Dwarka Court, New Delhi, whereby it has been held that Charge u/s.420 IPC is liable to be framed against the petitioner.
2. The facts of the case as borne out from the case are almost admitted between the parties. The petitioner purchased the property in question bearing No.C124, Anand Niketan, New Delhi21, from its erstwhile owner vide a registered sale deed dated 11.9.2003. She took a loan of Rs.90 Lacs from Citi Bank in the month of May, 2005 and mortgaged her aforesaid property with the bank as a security for due repayment of the loan amount. She then sold the entire ground floor of the said property alongwith front and back lawns and one service quarter on the terrace to the complainant vide registered sale deed dated 15.9.2005. The complainant let out the said ground floor of the property to a tenant vide a registered lease deed dated 20.1.2009 at a monthly rent of Rs.2 Lacs. Meanwhile, it appears that the petitioner committed default in repayment of the loan amount to the said bank. Citi Bank initiated legal proceedings against the CR No.52/11. Page 2 of 8 petitioner for the recovery of outstanding loan amount alongwith interest. The officials of the Citi Bank started visiting the said property and even threatened complainant's tenant that he would be thrown out of the same very shortly and also affixed a notice in this regard on the said property.
3. The contention of the complainant is that she immediately approached the officials of M/s. Citi Bank at the address given in the notice and on inquiry, she came to know that the petitioner had mortgaged the said property with Citi Bank prior to the sale of the same to her. The complainant felt cheated and accordingly filed a complaint against the petitioner and two other persons seeking their prosecution for the offences of criminal conspiracy, cheating, fraud, misrepresentation, criminal breach of trust etc. FIR No.84 dated 17.4.2010 came to be registered in P.S. Dhaula Kuan on the complaint of the complainant against the petitioner. After the completion of the investigation, Charge Sheet was laid before the Trial Court and after hearing the parties on the point of Charge impugned order came to be passed.
4. It was contended by Ld. Counsel for the petitioner that CR No.52/11. Page 3 of 8 the petitioner has no intention to either cheat or cause any wrongful loss to the complainant. He submits that the petitioner acknowledges that the complainant is the exclusive owner of the ground floor of the property and she herself claims only the ownership of the basement floor of the same. His further submission is that the loan documents were got signed in blank from the petitioner by the officials of the bank and it is due to some inadvertent mistake that the agreement mentions that the whole property including the ground floor has been mortgaged with the bank. His further submission is that even otherwise, the petitioner has now cleared all the dues of the bank and the encumbrance stands removed now. He also submitted that in view of the aforesaid facts coupled with the fact that no wrongful loss has been caused to the complainant, the Charge u/s.420 IPC could not have been framed against the petitioner and she should have been discharged.
5. On the other hand, Ld. APP submits that the material on record clearly shows that the petitioner had induced the complainant to purchase ground floor of the property without disclosing to him that the whole house including the ground floor has been encumbered with Citi Bank as a security for repayment of loan in the sum of Rs.90 CR No.52/11. Page 4 of 8 Lacs. He submitted that there is no infirmity in the Trial Court's order and the revision petition is liable to be dismissed.
6. I have considered the submissions of Ld. Counsel for the petitioner, Ld. APP for State and have perused the impugned order as well as Trial Court record. I have also perused various judgments cited by the Counsel for the petitioner at the Bar.
7. It is not in dispute that at the time of selling of the ground floor of the property in question by the petitioner to the complainant, she did not disclose to her that the whole property has been encumbered with the said bank. It is the duty of the seller to make the buyer aware of every latent defect in the title of the property in question so as to give a fair opportunity to the buyer to decide whether or not to go for the property. The buyer cannot be expected to have known that the property has been mortgaged by the seller unless told so by the seller. It is also a matter of common sense that an encumbered property is fraught with risk and therefore, the prospective buyer may or may not buy the same or agree to buy the same at a very lesser price than the market price, if made aware about the prior encumbrance. Selling a property at the market price without CR No.52/11. Page 5 of 8 disclosing the prior encumbrance to the buyer, in my opinion, definitely amounts to false representation and inducement, which is a criminal offence punishable u/s.420 IPC.
8. In the instant case, admittedly, the petitioner had given an undertaking to the complainant that the property in question is free from all liens, charges, encumbrances and lispendens and that there is no notice of attachment, acquisition or requisition or notice thereto relating to the said property. It is, therefore, amply clear that the petitioner has made false representation to the complainant in this regard and induced her to purchase ground floor of the property without disclosing to her that the same has already been encumbered.
9. The arguments of the Ld. Counsel for the petitioner that the petitioner in fact, intended to mortgage only the basement floor of the property with the bank but on account of a bonafide and inadvertent mistake, the whole property has been mentioned in the relevant clause of the loan agreement, cannot be accepted. Petitioner had taken a loan in the sum of Rs.90 Lacs. She had sold the ground floor of the property to the complainant for a total sum of Rs.50 Lacs. The price of the basement floor would naturally be less than the CR No.52/11. Page 6 of 8 ground floor and would in no case be more than Rs.40 Lacs. Therefore, it cannot be believed that the bank would have accepted the security of only basement floor valued just at Rs.40 Lacs in lieu of the loan amount of Rs.90 Lacs. It is apparent that the petitioner could not have mortgaged only the basement floor in order as security for a loan of Rs.90 Lacs. It follows, therefore, that she has consciously mortgaged the whole building including the ground floor to the bank.
10. The judgments referred by Ld. Counsel for the petitioner such as Union of India vs. Prafful Kumar Samal, AIR 1979 SC 366 Dilaver Balukurani vs. State of Maharashtra, Criminal Appeal No.08 of 2002 decided on 08.1.2002 and the judgment of High Court in Ashok Kumar Nair vs. State, revision petition no. 963/2002 decided on 01.5.07 are of no help to the petitioner as these merely state the consideration to be kept in mind by a judge while exercising powers u/s.227 of the Code of Criminal Procedure. In Ashok Kumar case (supra), it has been held that if two versions are possible, the one supporting the accused has to be preferred and the accused deserves to be discharged. However, in the present case, I do not find that two versions emerged out of the material on record. The material on record, as discussed hereinabove, give rise to a grave CR No.52/11. Page 7 of 8 suspicion against the petitioner, which has not been properly explained at all. At the stage of considering the case u/s.227 of Code of Criminal Procedure, a Court has merely to sift the evidence in order to find out whether or not, there is sufficient grounds for proceeding against the accused. The Court is not to see whether there is sufficient grounds for conviction of the accused. It has to be seen whether nature of evidence recorded by the police or the documents produced before the court exfacie disclose that there are suspicious circumstances against the accused, which warrant framing of Charge against him.
11. In my opinion, framing of Charge u/s.420 IPC against the petitioner is fully justified in this case. I do not find any error in the impugned order. The revision petition is without any merit and is hereby dismissed as such.
Revision file be consigned to Record Room. Trial Court record be sent back alongwith copy of the order.
Announced in open (VIRENDER BHAT)
Court on 28.9.2011. A.S.J. :Dwarka Courts
New Delhi.
CR No.52/11. Page 8 of 8