Delhi District Court
Nitin Rekhan And Anr vs State And Ors on 17 August, 2024
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR No. DLCT01-012867-2021
CR No. 183/2021
1. Mr. Nitin Rekhan
S/o. Late Sh. S.K. Rekhan
R/o. E-4/23, Model Town-I,
near Lake, Delhi-110009.
2. Mr. Atul Gupta
S/o. Late Sh. M.P. Gupta,
R/o. A-2/9, Model Town-I,
near lake, Delhi-110009.
3. Ankit Gupta
S/o. Sh. Manoj Gupta
R/o. H-472, New Rajinder Nagar,
Central Delhi, Rajinder Nagar, Delhi-110060.
4. Krishan Kumar Gupta
C/o. Sunder Lal, House No. 53/39,
Block No.-53, Ramjas Road, VTC,
Karol Bagh, New Delhi.
..... Revisionists
Vs.
1. State of NCT of Delhi
New Delhi.
2. M/s. Globus Investors Welfare Association
Through its Secretary
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Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
Mr. Yash Chaddha,
F-107, First Floor, D-1/D, Block Market,
Ajnara Commercial Complex,
Vivek Vihar, Delhi-95.
3. Mr. Yash Chadha
S/o. Late Sh. A.P. Chadha
R/o. B-79, 1st Floor, Surya Nagar,
Ghaziabad-201011.
4. Mr. Banjul Badil
S/o. Mr. Suresh Chand Badil,
18, Tilak Road, Begum Bagh, Meerut.
5. Mr. Ajay Kumar Yadav
S/o. Sh. Sher Singh
Plot No. 148/101, Pocket-I, Sector-7,
Ramprastha Greens, Vaishali,
Ghaziabad.
6. Mr. Jatin Nanda
S/o. Mr. K.K. Nanda
16/941, Faiz Road, Karol Bagh,
New Delhi-110005.
7. Mr. Vimal Sachdeva
S/o. Late Sh. Naval Sachdeva
Y-6, Loha Mandi, Naraina.
8. Mr. Naresh Chander Bansal
S/o. Sh. Sada Ram Bansal
284, Supreme Enclave, Mayur Vihar-I,
Delhi-110009.
9. Mr. Ashok Gaur
S/o. Late Sh. Amrit Lal Gaur
2396, 2nd Floor, Hudson Lines,
GTB Nagar, Delhi-110009.
10. Mrs. Benu Bansal
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W/o. Mr. Sandeep Bansal
261, Deepali, Pitampura, Delhi-110034.
11. Mrs. Meena Negi
W/o. Sh. Surender Singh Negi,
H. No. C-1/2810, Ground Floor,
Sushant Lok-I, Gurgaon.
12. Mrs. Varsha Wadhawan
W/o. Late Sh. Rajinder Kumar Wadhavan,
E-5/12, Bogapani, DLF City, Phase-I,
Gurgaon, Haryana.
13. Mr. Rakesh Nanda
S/o. Sh. P.C. Nanda,
E-277, GK-I, New Delhi-110048.
14. Mr. Yuvraj Gaba
Road No. 28, H. No. 23,
Punjabi Bagh Extension,
New Delhi-110026.
..... Respondents
CNR No. DLCT01-006388-2023
CR No. 277/2023
Neeraj Gupta
S/o. Sh. J.L. Gupta
R/o. H. No. 463, New Rajinder Nagar,
Delhi.
..... Revisionist
Vs.
1. State
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2. The Globus Investors Welfare
Through its Secretary and Members
Mr. Yash Chaddha,
F-107, First Floor, D-1, Ajnara Commercial Complex,
Vivek Vihar, Delhi-95.
..... Respondents
AND
CNR No. DLCT01-010072-2023
CR No. 410/2023
Dinesh Kumar
R/o. H. No.H-6, Ashok Vihar,
Phase-1, Delhi-52.
..... Revisionist
Vs.
1. State of NCT of Delhi
Through its Chief Secretary
Secretariat, Shamnath Marg, Delhi.
2. M/s. Globus Investors Welfare Association
Through its Secretary
Mr. Yash Chaddha,
F-107, First Floor, D-1/D, Block Market,
Ajnara Commercial Complex,
Vivek Vihar, Delhi-95.
3. Mr. Yash Chadha
S/o. Late Sh. A.P. Chadha
R/o. B-79, 1st Floor, Surya Nagar,
Ghaziabad-201011.
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4. Mr. Banjul Badil
S/o. Mr. Suresh Chand Badil,
18, Tilak Road, Begum Bagh, Meerut.
5. Mr. Ajay Kumar Yadav
S/o. Sh. Sher Singh
Plot No. 148/101, Pocket-I, Sector-7,
Ramprastha Greens, Vaishali,
Ghaziabad.
6. Mr. Jatin Nanda
S/o. Mr. K.K. Nanda
16/941, Faiz Road, Karol Bagh,
New Delhi-110005.
7. Mr. Vimal Sachdeva
S/o. Late Sh. Naval Sachdeva
Y-6, Loha Mandi, Naraina.
8. Mr. Naresh Chander Bansal
S/o. Sh. Sada Ram Bansal
284, Supreme Enclave, Mayur Vihar-I,
Delhi-110009.
9. Mr. Ashok Gaur
S/o. Late Sh. Amrit Lal Gaur
2396, 2nd Floor, Hudson Lines,
GTB Nagar, Delhi-110009.
10. Mrs. Benu Bansal
W/o. Mr. Sandeep Bansal
261, Deepali, Pitampura, Delhi-110034.
11. Mrs. Meena Negi
W/o. Sh. Surender Singh Negi,
H. No. C-1/2810, Ground Floor,
Sushant Lok-I, Gurgaon.
12. Mrs. Varsha Wadhawan
W/o. Late Sh. Rajinder Kumar Wadhavan,
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E-5/12, Bogapani, DLF City, Phase-I,
Gurgaon, Haryana.
13. Mr. Rakesh Nanda
S/o. Sh. P.C. Nanda,
E-277, GK-I, New Delhi-110048.
14. Mr. Yuvraj Gaba
Road No. 28, H. No. 23,
Punjabi Bagh Extension,
New Delhi-110026.
..... Respondents
Date of institution of Revisions : 30.09.2021, 11.05.2023
and 27.07.2023
Date on which order reserved : 07.08.2024
Date on which order pronounced : 17.08.2024
COMMON O R D E R
1. By this common order, this Court shall decide the aforementioned three present revision petitions u/s. 397 Cr. P.C. filed by the revisionists as common issues are involved in the petitions and they are filed against the same summoning order dated 28.01.2021 in FIR No. 197/2013 passed by the Ld. Trial Court of Sh. Chander Mohan, Ld. ACMM-01, Central, Tis Hazari Courts, Delhi titled as 'State Vs. Closure Report, vide which the Ld. Trial Court summoned the revisionists u/s. 420 read with 120-B IPC.
CR No. 183/2021, 277/2023 and 410/2023 Page No. 6 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors. FACTUAL MATRIX
2. Brief facts of the case are that one M/s. Premier Information Technology Parks Pvt. Ltd. (hereinafter referred to as "PITP") acquired the lease hold rights for a period of 90 years regarding a plot situated at 22, KP-3, Greater Noida, U.P. (hereinafter referred to "project land") from the Greater Noida Industrial Development Authority (hereinafter referred to as "GNIDA") vide lease deed dated 22.03.2006. PITP thereafter entered into a Memorandum of Understanding (MOU) dated 29.09.2006 with the accused Company - M/s. ARN Infrastructures India Ltd. (hereinafter referred to as "ARN") for carrying out the development of a project called "The Globus" at the said site. It was agreed between PITP and ARN that ARN as developer shall develop the said plot and construct three IT Space/Towers and some commercial space/Towers at the said site and ARN will be entitled to the revenue earned from two out of three office IT towers of the said project and two third of the commercial space/towers to be developed in the said project.
3. Various investors approached ARN for purchasing IT offices in the said project and made part payments and various MOUs were executed between the investors and ARN for allotting IT spaces in the said project to be developed at the said site. Pursuant to the execution of MOUs, ARN issued allotment letters to a number of CR No. 183/2021, 277/2023 and 410/2023 Page No. 7 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
investors with regard to IT space/office booked by them and also kept paying fixed assured returns/commitment charges to the investors for a number of years.
4. On 01.09.2010, the construction of all the three IT Space/towers was allegedly completed by ARN and a completion/occupancy certificate dated 01.09.2010 was issued by GNIDA to PITP.
5. In the year 2010, after completion of the construction of the IT towers, possession letters were issued to various investors/complainants herein for payment of balance consideration due as well as other dues/charges, so that the physical possession of the respective IT office/space may be handed over to them and the requisite transfer documents may also be executed.
6. In the year 2011-2012, various investors/complainants herein came forward and paid their respective charges due to ARN and various tripartite agreements were executed between the GNIDA, PITP and the respective investors.
7. In September 2012, the investors/complainants herein filed a complaint u/s. 200 Cr. P.C. before the ld. ACMM, Tis Hazari Courts, Delhi against ARN and its directors alleging offence u/s. 406/420/34 IPC. Alongwith the said complaint, the investors/complainants also filed an application u/s. 156 (3) Cr. P.C. seeking direction to the concerned SHO for registration of FIR against the accused CR No. 183/2021, 277/2023 and 410/2023 Page No. 8 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
company and its directors.
8. On 30.01.2013, one Action Taken Report was filed by the Addl. DCP-II, EOW, Crime Branch, Delhi stating therein that the matter is civil in nature and that no criminal aspect has come on record.
9. Vide order dated 08.08.2013, the ld. ACMM, Tis Hazari Courts directed the concerned SHO to lodge an FIR against the directors of the accused company and consequently, the present FIR No. 197/2013 was registered on 24.08.2013 by PS EOW, U/s. 406/420/34 IPC.
10. Aggrieved by the said order dated 08.08.2013 of the ld.
ACMM, one revision petition was preferred u/s. 397 Cr. P.C. bearing criminal revision no. 215/2013 on 08.11.2013 seeking quashing of the order dated 08.08.2013 alongwith the FIR No. 197/2013 and all the consequential proceedings emanating therefrom.
11. Vide order dated 26.04.2014, the ld. ASJ, Central, THC in Crl. Rev. No. 215/2013 partly allowed the revision petition and set aside the order dated 08.08.2013 of the ld. ACMM.
12. Thereafter, on 01.09.2014, EOW, Crime Branch, Delhi filed first closure report in the FIR No. 197/2013 finding that no criminal case is made out against the accused company or its directors.
13. On 27.01.2015, the complainants approached the Hon'ble CR No. 183/2021, 277/2023 and 410/2023 Page No. 9 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
High Court of Delhi by filing a petition bearing Crl. Misc. No. 299/2015 and Crl. MA No. 1151-1152/2015 against the order dated 26.04.2014 of the ld. ASJ, Central, THC, Delhi in Crl. Rev. No. 215/2013.
14. The Hon'ble High Court of Delhi vide order dated 27.01.2015 disposed of the said petitions with liberty to M/s. Globus Investors, an association of complainants herein to file a protest petition before the ld. Trial Court against the closure report.
15. On 23.12.2015, one protest petition bearing CC No. 93/1/2012 titled as "M/s. Globus Investors Vs. M/s. ARN Infrastructure India Ltd." was filed against the first closure report dated 01.09.2014. The ld. Trial Court vide order dated 23.12.2015 directed further investigation in the said FIR No. 197/2013.
16. Thereafter, on 04.07.2016, second closure report was filed by the Investigating Agency i.e. EOW with a finding that no criminal case is made out against the accused company or its directors.
17. Against the said second closure report, the ld. Trial Court vide order dated 03.08.2017 sent the matter back to EOW for further investigation.
18. Thereafter, third closure report dated 23.11.2017 was filed by EOW with the same findings that no criminal case is made out against the accused company and its directors.
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19. Against the third closure report, the ld. Trial Court again vide order dated 18.04.2018 directed further investigation in the matter.
20. The name of ARN was struck off by ROC with effect from 08.08.2018 and ARN had accordingly had filed a revival petition bearing no. 1021/252/ND/2018, U/s. 252 of the Companies Act, 2013 before the Hon'ble NCLT, New Delhi.
21. Fourth closure report was filed on 10.11.2019 by the EOW wherein the investigating agency did not find any fraudulent or dishonest action against the accused company and its directors and the matter was found to be civil in nature.
22. Thereafter, another protest petition dated 16.03.2020 was filed by the complainants herein against the aforesaid fourth closure report dated 10.11.2019.
23. The ld. Trial Court vide impugned order dated 28.01.2021 summoned the accused company and its directors including the revisionists u/s. 420 r/w 120B IPC.
24. Assailing the said impugned order, the present three revision petitions are preferred by the revisionists on several grounds.
CR No. 183/2021, 277/2023 and 410/2023 Page No. 11 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors. ARGUMENTS ON BEHALF OF THE REVISIONISTS NITIN REKHAN AND ORS
25. It is argued by the ld. Counsel for the revisionists Nitin Rekhan and others that PITP was lessor of the project land from GNIDA vide lease deed dated 22.03.2006 and the PITP thereafter entered into MOU dated 29.09.2006 with ARN for carrying out development of the project called "The Globus" at the project land, wherein it was agreed that ARN will develop and construct the said project at the site and it will be entitled to two third of the project developed by it. It is further contended that another agreement dated 20.07.2007 was entered between ARN and M/s. Real Gains Estate Pvt. Ltd. as its marketing agent to sell IT Offices of the said project, however, M/s. Real Gains Estate Pvt. Ltd. with its ulterior motives committed various fraudulent acts.
26. It is further contended that in the year 2007-2008, various investors approached ARN for purchasing IT offices and pursuant thereto various MOUs were executed between ARN and investors. It is further contended that as per the MOU, ARN was only a developer of the said project having right of booking, developing, marketing the said project and nowhere it was mentioned that ARN was the owner of the site. It is further contended that pursuant to the MOUs, ARN issued allotment letters to the number of investors and also kept paying fixed assured CR No. 183/2021, 277/2023 and 410/2023 Page No. 12 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
returns/commitment charges to the investors for a number of years and the said returns were also accepted by the investors, which itself shows the intention of the company since very beginning and that on 01.09.2010, the construction of three IT Spaces/Towers in which the investors had invested was completed by the company within stipulated period of time, hence, completion/occupancy certificate dated 01.09.2010 was issued by GNIDA.
27. It is further contended that in the year 2011-2012, various investors came forward and paid their balance charges to the company and accordingly, various tripartite agreements were executed between GNIDA, PITP and investors which discharged the company and the revisionists from all their obligations. It is further contended that the very fact that various tripartite agreements were executed shows that the company or the revisionists never intended to cheat any investor. It is further contended that in September 2012, the complainants filed a complaint before the ld. Trial Court and the same were investigated by EOW, which vide its action taken report dated 30.01.2013, reported that the matter is of civil in nature and no criminal aspect has come on record.
28. It is further contended that the ld. Trial Court vide its order dated 08.08.2013 directed the registration of FIR against the directors of the company whereafter the impugned FIR CR No. 183/2021, 277/2023 and 410/2023 Page No. 13 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
No. 197/2013 was registered on 24.08.2013 by PS EOW. It is further contended that the impugned order was challenged by way of revision and vide order dated 26.04.2014, the ld. ASJ, Central, partly allowed the revision petition and set aside the impugned order dated 08.08.2013.
29. It is further contended that on 01.09.2014, first closure report was filed by EOW, wherein it was found that no criminal case is made out against the company and its directors. It is further contended that the order dated 26.04.2014 of the ld. ASJ was assailed before the Hon'ble High Court of Delhi and the same was disposed of vide order dated 27.01.2015 with the liberty to M/s. Global Investors to file protest petition before the ld. Trial Court against the closure report.
30. It is further contended that protest petition was filed before the ld. Trial Court and vide order dated 23.12.2015, further investigation was directed and thereafter, on 04.07.2016, second closure report was filed, however, the ld. Trial Court again vide order dated 03.08.2017 sent the matter back to EOW for further investigation. It is further contended that thereafter, third closure report dated 23.11.2017 was filed by the investigating agency, however, the ld. Trial Court vide order dated 18.04.2018 directed further investigation in the matter. It is further contended that subsequently, fourth closure report dated 10.11.2019 CR No. 183/2021, 277/2023 and 410/2023 Page No. 14 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
was filed by the investigating agency against which the protest petition was filed by the complainants and the ld. Trial Court vide impugned order dated 28.01.2021 erroneously summoned the company and its directors including the revisionists u/s. 420 r/w 120-B IPC.
31. It is further contended that the impugned order is erroneous as it is against the settled canons of law and has been passed in mechanical manner without application of mind. It is further contended that the matter is civil in nature and mere criminal camouflage is given to a civil dispute.
32. It is further contended that it is admitted fact that three IT Towers had indeed been constructed by ARN within stipulated time and that fix assured returns were also paid to the investors by the company. It is further contended that the complainants have failed to show any criminality on the part of the company and its directors. It is further contended that admittedly, in the impugned order, the ld. Trial Court observed that all the aspects related to mere delay in possession, completion, not giving assured returns, not demarcating the area that fell into individual investor's share, difference in actual construction and that shown in brochure etc. are civil in nature and the remedy for the same is to be sought from civil forums.
33. It is further contended that the ld. Trial Court had issued CR No. 183/2021, 277/2023 and 410/2023 Page No. 15 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
the summons solely on the basis that the accused persons concealed and misrepresented to the various investors that ARN was the land owner where the project was to be developed. It is further contended that the said finding is absolutely contrary to the material on record in the form of various MOUs, possession letters, application forms etc., their perusal of which would reveal that neither the company nor its directors portrayed themselves to be the owner of the land in question and the company always presented itself to be just the developer.
34. It is further contended that the ld. Trial Court failed to appreciate that the investigating agency had conducted thorough investigation on each and every allegation of the complainant specially the allegation of claiming ownership of land in question and it has been found that accused persons never claimed to be the owner of the same. It is further contended that the ld. Trial Court completely overlooked the three closure reports dated 04.07.2016, 23.11.2017 and 10.11.2019 as well as the status report filed by the EOW from time to time wherein it was categorically stated that no criminal case is made out against the company or its directors. It is further contended that further investigations in compliance of Trial Court orders were conducted and finally fourth closure report was filed wherein again no finding was there regarding any false claim of title/ownership over the project land.
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35. It is further contended that the ld. Trial Court had failed to appreciate that there was absolutely no matter on record to show that any offence is committed by the accused persons. It is further contended that the ld. Trial Court had failed to appreciate that it was not even the case of the complainants in their protest petition dated 16.03.2020 that the accused persons made any misrepresentation about the ownership of the land in question. It is further contended that tripartite agreements were executed with certain investors which shows that the project was complete and thereafter, occupation certificate was issued and the actual physical possession was given, however, this fact was never considered by the ld. Trial Court.
36. Ld. Counsel for the revisionists Nitin Rekhan and others relied upon the following judgments in support of his arguments:
A. Ravindranatha Bajpe vs. Manglore Special Economic Zone Ltd. and Ors., Crl. Appeal No. 1047-1048/2021.
B. Sunil Bharti Mittal vs. CBI C. Sandeep Singh and Ors. vs. Nisar Ahmad, CRM (M) No. 263/2010 D. Govind Prasad Kejriwal vs. State of Bihar and Anr., Crl. Appeal No. 168/2020 E. Indian Oil Corporation vs. NEPC India Ltd. and Ors., Crl. Appeal No. 833 and 834 of 2002 F. M.C.D vs. State of Delhi and Ors., Crl. Appeal No. 660 of 2005. G. G. Sagar Suri and Anr. vs. State of U.P. and Ors., (2000) 2 SCC 636 H. Pepsico India Holdings Pvt. Ltd. vs. Food Inspector and Anr., (2011) 1 SCC 176 I. Hridaya Ranjan Prasad Verma vs. State of Bihar and Anr., (2000) 4 SCC 168 CR No. 183/2021, 277/2023 and 410/2023 Page No. 17 of 56
Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
J. Sushil Sethi and Anr. vs. State of Arunachal Pradesh and Ors., (2020) 3 SCC 240 K. H.S. Bains, Director, Small Saving-cum-Deputy Secretary, Finance, Punjab, Chandigarh vs. State (Union Territory of Chandigarh), (1980) 4 SCC 631.
ARGUMENTS ON BEHALF OF REVISIONIST NEERAJ GUPTA
37. Ld. Counsel for revisionist Neeraj Gupta has argued that the ld. Trial Court had accepted that the issue of delay in possession, completion, not giving assured returns, not demarcating the area that fell into individual share, difference in actual construction which is shown in brochure, are of civil nature. It is further contended that it is admitted case of the complainants that they were given copy of the application form which contain in para 7 that it is PITP who is the owner of the land in question. It is further contended that the complainants/investors never made any complaint with regard to concealment of ownership. It is further contended that one of the member of the association of the complainants namely Ms. Benu Bansal filed a letter dated 15.11.2011 alongwith the application form, letter of allotment to the police which shows that all the members were having copy of application form, allotment letter, lease deed signed between GNIDA and PITP. It is further contended that the association of complainants have raised false assertions that copy of application form was not handed over to the CR No. 183/2021, 277/2023 and 410/2023 Page No. 18 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
investors at the time of booking units by ARN. It is further contended that as per the terms of the application form, it was clearly mentioned that PITP is the owner of the land in question and the company is merely a developer in collaboration with PITP. It is further contended that the revisionist had already given resignation on 06.12.2010 and no specific allegation of any offence was made against the revisionist prior to his resignation. It is further contended that even as per the board resolution dated 02.02.2007, the revisionist Neeraj Gupta was not connected in any manner with the signing of MOU nor he committed any act regarding allurement to any investor to sign the terms of MOU with them. It is further contended that the members of the complainant association admitted that they had received the copy of application but the font was not readable, which is an incorrect submission as the font was of size 9 which is considered readable. It is further contended that no specific role or allegations are made against the revisionist. It is further contended that the impugned order is absolutely silent about any specific role of the revisionist. It is further contended that one of the member of the complainant association vide letter dated 13.04.2019 had made a disclosure to EOW that the association are making fool of investors and there is no fraud committed by any of the directors of developer ARN. It is therefore, prayed that the impugned order of the ld. Trial Court may kindly be set aside.
CR No. 183/2021, 277/2023 and 410/2023 Page No. 19 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors. ARGUMENTS ON BEHALF OF THE REVISIONIST DINESH KUMAR
38. Ld. Counsel for revisionist Dinesh Kumar has argued that the revision petition has been filed within the period of limitation as the summoning order was passed on 28.01.2021 and 01.05.2023 but the revisionist never received any summons. It is further contended that the revisionist came to know about the present proceedings when the summons were sought to be served at the erstwhile office of the revisionist from where he has already resigned from the directorship in June, 2011. It is further contended that as such there is no delay in filing the present revision petition and the application seeking condonation of delay has been filed only by way of abundant caution.
39. It is further contended that the impugned order passed by the ld. Trial Court suffers from patent illegality and it is contrary to the records. It is further contended that at the time of booking, in the initial application form, it was categorically disclosed that GNIDA is the lessor and PITP is the lessee and ARN is the developer. It is further contended that in the MOU between the ARN and the complainants/investors, ARN has mentioned itself to be the developer and not the owner. It is further contended that though the ld. Trial Court had observed in the impugned order that there is concealment and CR No. 183/2021, 277/2023 and 410/2023 Page No. 20 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
misrepresentation on the part of ARN that ARN was not the owner of the land and PITP was having the lease hold rights of the said land for a period of 90 years from GNIDA, however, in the first closure report dated 19.11.2014, this issue of misrepresentation of ownership of the project land by ARN was examined by the IO and after investigation, it was concluded that ARN was merely a developer which is stated in all the documents executed between the complainants and ARN. It is further contended that the complainants did not protest against the said finding of the IO and subsequently, in three closure reports, the ld. ACMM considered the other allegations of the complainants but the issue of alleged misrepresentation of ownership was never raised before the ld. ACMM nor any further inquiry was directed by the ld. Trial Court. It is further contended that the ld. Trial Court had relied upon the part of documentary records and completely ignored the initial application forms which were duly signed by the respondents with their particulars filled. It is further contended that in the criminal revision petition no. 215/2013 preferred by ARN and others, against the impugned order dated 08.08.2013 directing the registration of FIR, it was brought to the knowledge of the ld. ASJ that the complainants had withheld the initial application forms and that they have not come to the Court with clean hands. It is further contended that the said revision petition was allowed and the impugned order directing the registration CR No. 183/2021, 277/2023 and 410/2023 Page No. 21 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
of FIR was set aside. The same was challenged before the Hon'ble High Court of Delhi but the same was disposed with the liberty to the complainants to file protest petition before the ld. Trial Court against the closure report.
40. It is further contended that in the fourth closure report dated 10.11.2019, it has been mentioned that total 671 investors have booked the virtual space in the project and the amount has been refunded to total 42 investors and the amount of total 10 investors have been forfeited and total 155 investors have taken the possession and the allotment letters have been issued to remaining 464 investors. It is further contended that only handful investors are anguished and have wrongly invoked the criminal forum.
41. It is further contended that the revisionist had resigned from the directorship of the company on 24.06.2011 and there is no possibility of the complainants having met the revisionist at the office of ARN on 05.12.2011. It is further contended that the complaint is based on false facts and the complainants have not approached the Court with clean hands.
42. It is further contended that four times, the IO after examining all the documents filed the closure reports stating that no cognizable offence has been committed by the company or its directors. It is further contended that the very first document signed by the CR No. 183/2021, 277/2023 and 410/2023 Page No. 22 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
complainants/investors, is the application form for allotment of space by ARN, in which it is clearly recorded that ARN is mere developer and the owner of the land is PITP. It is further contended that the all the complainants have signed on each and every page of this application form and the presumption would be that they had read the contents thereof in such high value transactions. It is further contended that if they did not read the contents before signing then it is at their own risk and peril as the rule of evidence "caveat emptor" applies which means buyer should keep his eyes and ears open while entering into a contract of immoveable property. It is further contended that ARN is a public limited company and the complainants could have obtained the copy of the contract executed between ARN and PITP upon payment of usual charges u/s. 219 of the Companies Act. It is further contended that ARN was clearly described as developer and if the complainants did not accept the status of ARN as developer, they could have objected but they signed the MOU without any demur or protest.
43. It is further contended that the title of the project land was with GNIDA and the registered lease dated 22.03.2016 was a registered document and the complainants are deemed to have statutory knowledge of the title/interest holder in the project land.
44. It is further contended that the ld. Trial Court had failed to CR No. 183/2021, 277/2023 and 410/2023 Page No. 23 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
evaluate the role of each accused and by erroneously invoking Sec. 120-B IPC r/w 420 IPC, the ld. Trial Court issued summons to all the directors of ARN. It is further contended that merely because the accused was holding the office of director or managing director in the accused company, is not sufficient in itself to invoke Sec. 120-B IPC. It is further contended that in Sunil Bharti Mittal case, it was held that if the persons who control the affairs of the company commits an offence, their criminality can be imputed to the company as they are "alter ego" of the company. It is further contended that the ld. Trial Court has wrongly applied this principle in reverse by issuing the summons against the directors of the company. It is further contended that in the present case, PITP entered into a MOU with ARN for development of project "The Globus"
wherein ARN was the developer and would be entitled to book the space out of his share and may receive the booking amount. It is further contended that this transaction is prevalent in business practice wherein the builder collaborate with the land owners for constructing the project on a land and thereafter, the sale of various portions of the project like floor wise sale deeds are executed by the actual land owners in favour of the buyers. It is further contended that it is common business practice in the construction trade.
45. It is further contended that neither ARN nor its directors CR No. 183/2021, 277/2023 and 410/2023 Page No. 24 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
have ever alleged ARN to be the owner of the land and had always described it as developer only. It is further contended that the ld. Trial Court had specifically ordered that the other issues are of civil nature like non receipt of assured rental etc.
46. It is further contended that as per Sec. 41 of TPA, where an ostensible owner of the property with the consent, transfers the property for consideration, such transfer shall not be voidable on the ground that the transfer was not authorized, provided that he has acted in good faith. It is further contended that even if it is assumed that ARN had no authority to develop or sell the space in the project, even then the complainants are not prejudiced in any manner. It is further contended that the complainants have not come forward to take possession of their space till date. It is further contended that out of 619 spaces booked, 453 buyers have fully paid the purchase consideration and 166 buyers have partly paid the purchase consideration. It is further contended that 129 buyers have executed the sub-lease deed with GNIDA and have taken possession of their space. It is further contended that upon payment of the total sale consideration, tripartite lease deeds have been executed between the GNIDA, PITP and space buyers, thereby conferring proper lease hold rights upon the space buyers. It is further contended that negligible minority of space buyers are neither paying their outstanding dues nor CR No. 183/2021, 277/2023 and 410/2023 Page No. 25 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
they are coming forward for execution of sub-lease deed in their favour. It is further contended that the complainants are taking undue advantage of their own wrong in the present case.
47. It is further contended that the real test whether cheating has been committed would be decided by the execution of the tripartite lease deeds and if loss is thereby caused to the complainants. It is further contended that after the complainants fulfill their obligations under the MOU, they would get the lease hold rights in the space booked by them and until that stage is reached, it cannot be said that the complainants are deprived of their rights in the MOU or are deceived by ARN or its directors. It is further contended that complainants have suffered no loss as they have right to take possession of their respective spaces but they have themselves refused to take the possession. It is further contended that admittedly, the market value of the respective spaces of the complainants has doubled over the years and now, they are dithering away from getting their space registered as they would have to pay twice or thrice stamp duty as against the original booking price of the space. It is further contended that no offence of cheating has taken place and the rights of the complainants are duly protected by law and these rights can be imposed through Civil Courts.
48. It is further contended that for the offence of cheating u/s.
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415 IPC, the culpable intention shall be present from the very beginning. It is further contended that in the four closure reports accompanied by the collected documents would reveal that there was no fraudulent intention on the part of the revisionist. It is further contended that in the fourth closure report dated 10.11.2019, the IO has reported that the project site was inspected and it has emerged that the project is completed but there are some finishing issues only. It is further contended that there is no evidence of any deception since the beginning and the mere non meeting of the construction to the expectation of buyers may not attract any criminality. It is further contended that the ld. Trial Court had passed the summoning order on the basis of alleged omission of ARN to disclose the title of land to the investors which is contrary to the record before the ld. Trial Court. It is further contended that in the initial application made by the investors to ARN at the time of booking, it is disclosed that the title of the project land is with PITP. It is further contended that the application form was part of judicial record and the order dated 26.04.2014 of the ld. ASJ in revision petition also records the said submission. It is further contended that the ld. Trial Court omitted to refer these application forms annexed with the first closure report of 2014 and misdirected itself to believe that ARN omitted to disclose the actual title owner of the project land at the time of booking. It is further contended that there was no reason to issue summons to CR No. 183/2021, 277/2023 and 410/2023 Page No. 27 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
the revisionist when the other allegations were held to be of civil nature. It is further contended that the findings of the ld. Trial Court in the impugned order are based on assumptions instead of positive evidence. It is further contended that the findings of the ld. Trial Court are contrary to the principles laid down in Sec. 91 of the Indian Evidence Act. It is further contended that where- ever written instruments are executed between the parties, any other evidence is excluded to either substitute or contradict or alter them.
49. It is further contended that the present matter is of civil nature which has been given a colour of criminal offence. It is further contended that there is distinction between breach of contract and offence of cheating. It is further contended that there was no intention to cheat since the beginning. It is further contended that the revisionist had resigned from the directorship of ARN on 11.06.2011 after the completion of the project and the completion certificate was also obtained from GNIDA. It is further contended that the revisionist was a non-working director and he has not attended any board of meeting or general meeting after his resignation on 11.06.2011 nor he drew any remuneration from ARN during his tenure as director of the company. It is further contended that he was never assigned any duty by the company to look after or supervise the construction work of the project nor he had CR No. 183/2021, 277/2023 and 410/2023 Page No. 28 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
participated in any day to day working of the company. It is further contended that the revisionist had never signed any MOU and he never personally met any of the investors nor he persuaded any investors to make any kind of investment in the project of ARN. It is further contended that till the time of his resignation, no criminal or civil case was filed against ARN or its directors. It is further prayed that the impugned order passed by the ld. Trial Court may kindly be set aside.
50. The Ld. Counsel for the revisionist Dinesh relied upon the following judgments in support of his arguments:
A. Parssottambhai Maganbhai Patel Vs. State of Gujarat, 2005 7 SCC 431 B. State of Haryana & Ors Vs. Bhajan Lal & Ors., 1992 Supp (1) SCC 335 C. Sunil Bharti Mittal V. C.B.I, (2015) 4 SCC 609 D. Sharif Ahmed & Anr. Vs. State of U.P. & Anr., 2024 SCC On Line SC 726 E. State of Gujarat v. Jaswantial Nathalal, AIR 1968 SC 700 F. Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 G. C.B.I. v. Duncans Agro Industries Ltd., (1996) 5 SCC 591. H. Ram Chander v. R.K. Khattar & Anr., (2007) 137 DLT 739 I. Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595 J. G. Sagar Suri vs. State of U.P., 2000 2 SCC 636 K. Smt. Kusum Sandhu Vs. Ved Prakash Narang, 2008 (4) JCC 2398 L. Hriday Ranjan Prasad Verma Vs. State of Bihar, (2000) 4 SCC 168 ARGUMENTS ON BEHALF OF THE STATE
51. The Addl. PP for the state argued that the the impugned CR No. 183/2021, 277/2023 and 410/2023 Page No. 29 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
order has been rightly passed by the Ld. Trial Court and there is no error or illegality in the said order. It is argued that there is no reason to interfere in the impugned order of the Ld. Trial Court. It is further argued that prima facie case is made out against the accused persons and they have been rightly summoned for the offence u/s 420 r/w 120 B IPC. It is prayed that the revision petitions may be dismissed.
ARGUMENTS ON BEHALF OF THE COMPLAINANTS/ RESPONDENTS
52. It is argued by Ld. Counsel for the respondents that it is a matter of record that the revisionists were directors of the accused company between 2006 to 2010 when the alleged offences as mentioned in the complaint were committed. It is further contended that the impugned order for summoning the accused persons was based on prima-facie case and all the revision petitions failed to demonstrate any error, factual or legal, that warrant interference at this stage of the proceedings. It is further contended that bare perusal of the impugned order would make it clear that the same has been passed after due application of mind and does not merit any interference. It is further contended that plain reading of MOU executed between the buyers and the accused company clearly shows that the accused company accepted the entire sale consideration and further CR No. 183/2021, 277/2023 and 410/2023 Page No. 30 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
promised to pay assured returns to the buyers.
53. It is further contended that the brochure of the project "The Globus" was the initial document which was used by the accused persons to lure and induce the innocent and unsuspecting buyers to invest their hard earned money and life savings in the project. It is further contended that the said documents showed a very rosy and lucrative picture of the proposed project and the entire brochure contains the name and logo of ARN of which the revisionist were the directors at the relevant time. It is further contended that the name of original allottee of the land i.e. PITP does not find mention anywhere in the said document. It is further contended that the name of the revisionists i.e. Neeraj Gupta also find mention on the last page of the brochure as the architect of the said project. It is further contended that none of the MOUs even mentioned the name of the original allottee PITP and all the rights and duties of the owner are exercised by the accused company as it accepted the entire consideration amount in its name and further allotted units and paid monthly returns. It is further contended that by mere using the word "developer" does not change the basic nature of agreement as the accused company is clearly implying being the owner.
54. It is further contended that the plain reading of the application form clearly shows that there is clear intent on the part of the accused persons to conceal the identity of CR No. 183/2021, 277/2023 and 410/2023 Page No. 31 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
the actual licencee PITP, as the entire form only contains the logo of the accused persons and is executed by the accused company with the proposed buyers and is not signed anywhere by PITP. It is further contended that the application form was executed at the office of the accused and was retained at the office of the accused company itself. It is further contended that the name of the licensee is mentioned in very small/micro font at page no. 5 of the said application form and that too in the middle and it is impossible to ascertain the true nature of the title of the land by virtue of the said application form. It is further contended that it is not the case of the revisionist that the complainants had even copies of the application. It is further contended that the MOU dated 29.09.2006 executed between PITP and accused company shows that they had intention to defraud the suspecting buyers.
55. It is further contended that as per the MOU, despite paying the entire consideration amount, there is no binding right to claim the unit in the project. It is further contended that now the project has been abandoned both by the accused company and the licensee PITP, and the buyers are left with no where to go. It is further contended that in the RTI replies given by the GNIDA, it is clearly stated that GNIDA does not recognize ARN, as ARN has been appointed as developer/co-developer in the project without the consent/approval/permission of GNIDA. It is further CR No. 183/2021, 277/2023 and 410/2023 Page No. 32 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
contended that in view of RTI reply, the act of appointing the accused company as developer by PITP is itself illegal and the MOU is void ab-initio and consequently, the MOUs and the agreements executed by the accused company with the buyers are also illegal. It is further contended that it is clear that accused persons had every intention to cheat the respondents from the very beginning.
56. It is further contended that the occupancy certificate was simply a conditional part of occupancy certificate and also the photographs of the project would show that the project is neither complete nor even ready as compared to the brochure. It is further contended that the project is not habitable even today and in fact the same has been abandoned by the accused company and the PITP. It is further contended that the competent authority has issued a show cause notice dated 18.12.2014 to PITP regarding non completion of the project. It is further contended that out of approximately 600 allotees, only around 150 allotees have executed tripartite sub-lease deed which clearly shows that the project was not ready i.e. why the buyers did not execute the lease deed despite having paid the entire consideration amount.
57. It is further contended that Ankit Gupta and Krishan Kumar Gupta were also directors in another company namely M/s. AMR Infrastructures Pvt. Ltd., where they usurped the life savings of the various investors in a CR No. 183/2021, 277/2023 and 410/2023 Page No. 33 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
project at Greater Noida offering assured returns and they were arrested by EOW. It is further contended that the letter dated 31.05.2011 leaves no room for doubt that there was clear mismanagement by the directors of the accused company in the affairs of the company as the revisionist Dinesh Kumar himself made allegations of mismanagement against the other directors of the accused company and clearly stated that the company is not in a position to honour its commitment with the investors.
58. It is further contended that the respondents and other buyers had purchased the units after seeing the brochure of the entire project "The Globus" and invested their life savings in the project as a whole and now the project is in shambles and has been abandoned by the accused company and PITP. It is further contended that the project as shown in the brochure is not even close to being ready but it is in-fact rotting. It is further contended that the revisionists from the very beginning executed illegal and arbitrary agreements without obtaining any sanction from competent authority and without any intention of delivery on their assurances. It is further contended that four different closure reports were filed by the IO in collusion with accused persons which were rejected by four different Magistrates passing specific directions regarding the re- investigation of the matter which leaves no room for doubt that entire investigation was conducted by the IO in a CR No. 183/2021, 277/2023 and 410/2023 Page No. 34 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
biased manner with sole intent to prejudice the respondents by overlooking the lapses, wrong doings of the revisionists and accused company and even PITP. It is further contended that the revision petitions are barred by limitation and they have been filed without proper application seeking condonation of delay and without giving proper reasons.
59. It is further contended that it is clear from the contents of the complaint that the directors have not been made accused on the basis of vicarious liability but due to the role played by each of the directors in their individual capacity. It is further contended that the facts and circumstances of the present case imputes specific and detailed role of each of the directors in the offences committed and therefore, the plea of vicarious liability is not attracted in the present case. It is further contended that the averments in the complaint suggest active participation and knowledge of the company operations thereby making the revisionists prima-facie vicariously liable.
60. It is further contended that the trial is the proper stage to contest these allegations and present evidence in their defence. It is further contended that the revisionist court should not delve into the factual determination of the liability of the petitioner as this is a matter for a trial court to decide after thorough examination of all the evidence. It is further contended that the contentions should be tested CR No. 183/2021, 277/2023 and 410/2023 Page No. 35 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
during the trial and not in the revisional proceedings. It is further contended that there is ample material and sufficient averment in the complaint that implicate the revisionists. It is further contended that the power exercised by the revisional court is limited and it should not be used as a substitute for an appellate or trial court.
61. It is further contended that though the revisionist Neeraj Gupta and Dinesh Kumar have claimed that they were not directors of the accused company when the complaint was filed, however, the complaint would reveal their directorial position at the time when the offence was committed and as such their liability remains intact regardless of their resignation post offence. It is further contended that the company official records explicitly lists them as directors during the period in question and they have resigned only after the offence has been committed. It is further contended that the revisionists have tried to misrepresent the facts by focusing on the date of complaint rather than the date of offence. It is therefore, prayed that the revision petitions filed by the revisionists may kindly be dismissed.
62. The Ld. Counsel for respondents relied upon the following judgments in support of his arguments:-
A. S.M.S Pharamaceutical Ltd. vs. Neena Bhalla, 2005 SCC 89 B. Pooja Ravinder Devidasani vs. State of Maharashtra, (2014) 16 SCC 1 C. Standard Chartered Bank vs. Directorate of CR No. 183/2021, 277/2023 and 410/2023 Page No. 36 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
Enforcement (2005) 4 SCC 530 D. Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460 E. State of Haryana vs. Bhajan Lal, (1992 Supp (1) SCC 335 F. Nupur Talwar vs. CBI, (2012) 2 SCC 188 G. Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749 H. HDFC Securities Ltd. vs. State of Maharashtra, (2017) 1 SCC 640 I. State of Maharashtra vs. Syndicate Transport (1964)
63. This Court has heard the rival submissions and perused the judicial record.
APPLICATIONS FOR CONDONING THE DELAY IN FILING THE REVISION PETITIONS IA NO. 01/2024 IN REV PET NO. 277/2023 IA NO. 01/2024 IN REV PET NO. 410/2023
64. In the instant case, the impugned order is dated 28.01.2021 for summoning the accused persons. The accused persons were not present in court when the impugned order for summoning them was passed against them. Thus, the period of limitation to file the revision against such order shall start running from the day when they got knowledge about the said order. The accused persons allegedly came to know about the impugned order after they received the summons from the court or through some other way. It is settled law that period of limitation shall be construed liberally and there must be pragmatic approach in deciding the application seeking condonation of delay rather than pedantic approach, which may defeat the interest of justice. The accused persons after obtaining knowledge of CR No. 183/2021, 277/2023 and 410/2023 Page No. 37 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
the impugned order have filed the present revision petitions and for caution, the application seeking condonation of delay have been filed. In such circumstances, taking a lenient view, the delay if any in filing the present revision petitions is hereby condoned. The applications stands allowed in above terms.
LAW ON SUMMONING
65. The law regarding the issuance of summons is well settled.
Chapter XVI, Section 204 Cr.P.C. provides that the Magistrate finding sufficient grounds for proceeding against the accused may issue the summons. It is axiomatic that at the stage of cognizance and summoning, the Learned MM must apply its mind to the facts of the case to prima-facie form an opinion whether there are sufficient grounds for summoning the accused for the alleged offences. It is also settled law that the summoning order may not be a detailed one but it must speak of the mind of the Court to adjudge that there is application of mind and sufficient grounds exists for summoning. The summons cannot be issued in mechanical manner or as a matter of course. The summoning order must indicate the application of mind and satisfaction that facts alleged constitute any offence and prima-facie sufficient grounds exists for summoning. In absence of any such indication, the rights of accused may be seriously affected. The test CR No. 183/2021, 277/2023 and 410/2023 Page No. 38 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
that needs to be satisfied at the time of issuance of summons is that there must exist " sufficient grounds for proceeding" against the accused. The sufficient grounds are for forming prima-facie view that the accused has committed the crime and not sufficient grounds that he may be convicted for the crime.
66. The jurisprudence around the caution needed while exercising magisterial power regarding issuance of summons to an accused by the Magistrate is well settled. This aspect was dealt with by the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 wherein in para 28 of its judgment, the Hon'ble Apex Court held that :
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any CR No. 183/2021, 277/2023 and 410/2023 Page No. 39 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
offence is prima facie committed by all or any of the accused."
67. The Hon'ble Apex Court in Lalankumar Singh & Ors.
Versus State of Maharashtra, 2022 Livelaw (SC) 833, delineated the law relating to summoning in the following words:
"28. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation (2015) 4 SCC 609, which reads thus:
"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
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53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
29. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra)."
68. In the case of S.N. Mukherjee v. Union of India, (1990) 4 SCC 594, the Hon'ble Apex Court stated that the recording of reasons is important for the following reasons (Page 612, para 35) "(i) guarantee considerations by the authority;
(ii) introduce clarity in the decisions and
(iii) minimize chances of arbitrariness in decision-making".
69. There is no doubt that in criminal matters, summoning of the accused is a serious matter and should not be done in mechanical manner. Though no detailed order is required at the stage of summoning, but the order must reflect application of mind by the Magistrate and that he is prima- facie satisfied that sufficient grounds exists for proceeding against the accused. The mentioning of reasons in the summoning order guarantees consideration, clarity and reduce the chances of arbitrariness. Recording of reasons are meant to serve the wider principle of justice and that CR No. 183/2021, 277/2023 and 410/2023 Page No. 41 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
justice must not only be done, it must also appear to be done as well. Reasons are heart and soul of the judicial order and in the absence thereof, such orders become vulnerable. Also, if the reasons given turns out to be ex- facie incorrect, the order would be bad in law.
ANALYSIS AND FINDINGS
70. In the present case, the Ld. Trial Court summoned the accused persons vide impugned order giving its reasons for the same. It is important to reproduce the relevant extract of the impugned order for its proper appreciation, which is as follows:
"The conclusion of the IO is that no fraudulent or dishonest action has come on record against the alleged company M/s ARN Infrastructure Media Pvt. Ltd. and its directors and that the matter is civil in nature. This court is only in partial agreement with this conclusion of IO. There are no two views that so far as issues pertaining to mere delay in possession, completion, not giving assured returns, not demarcating the area that fell into individual investor's share, difference in actual construction and that shown in brochures etc. are civil in nature and remedy out to sought from civil forums. To this extent the above conclusion of IO appears to be justified. However, there is a fundamental breach which amounts to concealment and mis-
representation on the part of accused company the sole aim of which appears to mislead and deceive the investors (and infact investors have been misled) into investing which fulfills the ingredients of cheating under IPC. From record, it is apparent that it was M/s Premier Information Technology Park Pvt Ltd that was given leasehold rights for a period of 90 years of the impugned land by Greater Noida Development Authority. Thereafter. M/s CR No. 183/2021, 277/2023 and 410/2023 Page No. 42 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
Premier entered into a MOU with the accused company M/s ARN Infrastructure India for carrying out the development of the present project called "The Globus". Hence, accused company was not the owner of the impugned land. It is the contention of applicant/investors that at the time of booking of space the prospective/investors/buyers were given to understand by ARN Directors, officials and marketing agents that ARN is the land owner having clear title and requisite permission where the project was being developed. This court is of the opinion that instead of relying upon this oral contention of the complainant it would be better to look into the agreement between the investors and accused company and then form an opinion as to whether there was an intention create such impression and thereby mislead and cause deception. Fortunately, there are 3/4 such agreements on record with similar stipulations. After examining them it appears to this court that there is a clear intention to create an impression that ARN Infrastructure was the owner of the parcel of land where the project was to be developed. IO has tried to give clean chit to the accused by stating that accused company only projected itself as a "developer" and never stated it to be an owner. No doubt accused company has described itself as a "developer" in the agreement but after reading the entire agreement and letter of offer of possession it appears that it clearly intended to convey an impression that "developer" meant owner for all intent and purposes and thereby induced the buyers Into parting with their money. All the rights and duties which are vested in the true owner have been projected to be vested in it by the accused company in the contract. It was the duty of the accused company to clearly and unequivocally disclose in the contract that the land has been allotted to M/s Premier and it was not entrusted with unlimited rights that are possessed by an allottee/owner. Investors were totally ignorant about the fact that they were only entering into a contract with an intermediary and this this intermediary is not even recognized by GNIDA. They were completely unaware that they were ultimately required to enter into an agreement with M/s Premier Information for CR No. 183/2021, 277/2023 and 410/2023 Page No. 43 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
having title over the property. They were completely unaware that the fate of the agreement between them and accused company was dependent upon another agreement between accused company and M/s Premier Information. If the agreement between the accused and Premier Infotech would have run into rough weather then the prospective buyers would have been left standard. The buyers were kept in dark about this risk. Had they known about this risk it is possible that they might not have parted with their money at all or may have invested in some other project which was without any intermediary. The accused company surely knew that if it would disclose the real allottee and that it was a mere agent to develop, then prospective buyers may have exercised discretion and it may also decrease the degree of allurement. This concealment also deprives the prospective investors/buyers to study the goodwill antecedents of the actual owner/ allottee. To sum up it was this active concealment which played a role in inducing the buyers to part with their money and therefore makes the omission, criminal deception. It is well settled that court is not bound by the opinion of IO. Infact, a duty has been cast upon the court to consider the final report of the IO and judicially take a decision whether or not to take a cognizance. It is equally well settled that at the stage of cognizance only prima facie case is to be seen and if court suspects that an offence has been committed it is open to the court to take cognizance and summon the accused. Accordingly, after considering the final report this court is of the opinion that prima facie there is sufficient material on record to summon the following accused:
1. M/s ARN Infrastructure Pvt. Ltd. (accused company)
2. Mr Nitin Rekhan Director of M/s ARN Infrastructure India Ltd,
3. Mr Ankit Gupta, Director of M/s ARN Infrastructure India Ltd,
4. Mr Krishan Kumar Gupta, Director of M/s ARN Infrastructure India Ltd,
5. Mr Atul Gupta Director of M/s ARN Infrastructure India Ltd, CR No. 183/2021, 277/2023 and 410/2023 Page No. 44 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
6. Mr Mahabir Director of M/s ARN Infrastructure India Ltd,
7. Mr Dinesh Kumar @ Dinesh Gupta Director of M/s ARN Infrastructure India Ltd, and
8. Mr Neeraj Gupta Director of M/s ARN Infrastructure India Ltd, U/s 420 r/w section 120 B IPC (all the above persons have been shown as Directors of accused no.1 company in the complaint and no material has emerged during investigation to show otherwise).
However, there is no prima facie case against the other officials of accused company."
71. The impugned order reveals that that Ld. Trial court admitted that certain issues like mere delay in possession, completion, not giving assured returns, not demarcating the area that fell into individual investor's share, difference in actual construction and that shown in the brochure etc. are matters of civil nature. The Ld. Trial court stressed upon the fact that the accused persons did not disclose to the investors that ARN is not the owner of the project land and as such it concealed material information from the investors and thus misrepresented by omission and induced the investors to invest in their project which they otherwise would not have invested if they would have been aware of the ownership and as such the investors stood cheated. This is the sole reason on which the accused company was summoned and the revisionists were summoned being the directors in the accused company.
72. Here, it is important to observe that present FIR was registered on the basis of order 28.01.2021 by the Ld. Trial court on the application u/s. 156(3) of the complainants CR No. 183/2021, 277/2023 and 410/2023 Page No. 45 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
and such order was set aside in revision by the accused company and others, by the Ld. ASJ vide order dated 26.04.2014, wherein the accused company informed the revisionist Court that application forms were concealed by the complainants, which were duly signed by the complainants at the time of booking in which the ownership of land with PITP was disclosed. The order of Ld. ASJ in revision petition no. 215/2013 was challenged before the Hon'ble High Court of Delhi. In the meanwhile, the investigation agency (EOW) filed first closure report dated 01.09.2014 in which all the allegations of the complainants were investigated and it was concluded that no criminal aspect was found in the case. The Hon'ble High Court of Delhi disposed of the petition giving liberty to complainants to file protest petition before the Ld. Trial Court.
73. Thereafter, protest petition was filed and Ld. Trial Court vide order dated 23.12.2015 ordered further investigation and raised certain points on which the investigation needs to be focused.
74. Again, after further investigation, second closure report dated 04.07.2016 was filed by EOW with no evidence against the accused persons, but the Ld. Trial Court vide order dated 03.08.2017 re-ordered further investigation and observed that further investigation was not properly conducted.
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75. Thereafter, third closure report dated 23.11.2017 was filed by EOW after further investigation on the issues raised by the ld. Trial Court but with the finding that no criminal case found on the part of alleged company. However, the ld. Trial Court vide order dated 18.04.2018 was of the view that there are certain contentions raised on behalf of the complainants which require further investigation and accordingly, the ld. Trial Court directed the concerned DCP to get the matter further investigated in the light of the contentions and it was also directed that the spot inspection shall be done by the concerned IO so as to ascertain the status of the actual demarcation. It was also directed that the concerned DCP shall further investigate any other relevant aspect which emerges during the course of investigation.
76. Subsequently, after conducting further investigation on the points raised by the ld. Trial Court, EOW filed fourth closure report dated 10.11.2019 concluding that so far, no fraudulent or dishonest action/criminality has come on record against the alleged company or its directors as the matter is civil in nature. But this time, Ld. Trial court vide impugned order dated 28.01.2021 observed that though the other issues like mere delay in possession, completion, not giving assured returns, not demarcating the area that can into individual investor's share, difference in actual construction and that shown in the brochure etc. are of CR No. 183/2021, 277/2023 and 410/2023 Page No. 47 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
civil nature, however, one issue of non disclosure of ownership of project land by the accused persons is of criminal nature and attracts the offence of cheating with conspiracy.
77. It is important to note that all the investors at the time of booking the unit signed on application form with ARN. There is no denial regarding the signing of the said application form from the the side of complainants. The said application form contains a clause regarding the ownership of the project land with PITP. Such clause reads as follows:
"The applicant(s) has fully satisfied himself about right, title and interest of the developer in the plot of the land totally measuring 60188 meters which is allotted to M/s. Premier Information Technology Parks (P) Ltd., in collaboration with whom, the developer is constructing and developing the present project and to whom the said project has been allotted by Greater Noida Industrial Development Authority (State Government Undertaking) on which the project is being developed and that the allotment, including the share of the developer, is on leasehold basis targeted for utilizing the built up space for software/ITES Information Technology Park/Offices and has further understood all limitations and obligations in respect thereof."
78. The Counsel for the complainants has argued that the copy of such application form was never given to the investors and also that the font size of contents in such application form is very small. These contentions on behalf of the CR No. 183/2021, 277/2023 and 410/2023 Page No. 48 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
respondents does not hold water in view of this court for a number of reasons which are detailed as follows.
79. Firstly, one of the investor Ms. Benu Bansal wrote a letter dated 15.11.2011 to EOW/Crime Branch and along with it, she filed the copy of the application form, MOU, lease deed between GNIDA and PITP etc. as annexures, which implies that copy of application form was available with investors. It is also not a contention that investors asked for a copy or that the same was ever refused by ARN. Secondly, the investors have signed on each and every page of the application form. There cannot be any presumption that the investors signed without reading the contents of the form on which they have signed. As per Section 91 of the Indian Evidence Act, no oral or other evidence could be taken when a written signed contract is available on record. Thirdly, there was no reason for ARN to conceal the fact of ownership with PITP and there is no apparent advantage to ARN by such concealment. Fourthly, there is no such contention that PITP had ever refused to enter into registered tripartite agreement with the investor who had booked the unit with ARN in the project "The Globus". Fifthly, the buyer must follow the "caveat emptor" rule i.e. buyer be aware. The investors could have easily ascertained the ownership of project land from GNIDA.
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80. It is also pertinent to note that ARN or its directors never portrayed ARN to be the owner of the project land. In all the documents, whether it be application form, MOU, allotment letter etc, ARN mentioned itself to be the developer of the project "The Globus". By virtue to the MOU between PITP and ARN, the right to develop the project land was given to ARN by PITP. ARN was also given right to book the units as per his share of the project as per the terms of MOU. If the ARN as developer booked the units from investors by signing the application form which mentions PITP as owner, there seems to be no element of cheating. Further, if after booking of the units, the project was not built or after building, the tripartite agreement between the investor, PITP and GNIDA was not executed, then it may indicate some malafide on the part of ARN, but it is not so in the present case. It is not denied that many investors have paid the remaining due amount and tripartite agreements with investors, PITP and GNIDA have been executed. It is not the case of complainants that they are not offered to enter into tripartite agreement on payment of their dues. It is also not the case of complainants that PITP or GNIDA have refused to enter into tripartite agreement with the investors who had booked the units with ARN.
CR No. 183/2021, 277/2023 and 410/2023 Page No. 50 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors. OFFENCE OF CHEATING
81. As far as offence of cheating is concerned, it is no more res integra that for attracting such offence, there must exist malafide intention to cheat from the very inception. There is fine distinction between cheating and breach of promise. Cheating pre-supposes intention to cheat from the very beginning.
82. In Hriday Ranjan Prasad Verma vs. State of Bihar, (2000) 4 SCC 168, the Hon'ble Supreme Court of India observed as follows :-
"15-In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. Therefore, it is the intention, which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
16.- Thus, the ingredients of the offence of cheating punishable under Section 420 IPC and its alleged offences under Sections 418 and 423 has not been made out. So far as the offences under sections 469, 504 and 120B are concerned, even the basic allegations making out a case thereunder are not contained in the complaint. In such a situation CR No. 183/2021, 277/2023 and 410/2023 Page No. 51 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
continuing the criminal proceeding against the accused will be, an abuse of the process of court."
83. In the instant case, it is the case of complainants that they were shown brochure which has a very rosy and lucrative picture of the project, but what they have been offered is nowhere close to that. In this regard, it is important to observe that it is not in dispute that the construction of super structure i.e. IT towers were completed and in this regard completion certificate dated 01.09.2010 was also issued by GNIDA to PITP. It is of no relevance whether the certificate was issued to PITP and not to ARN. The completion certificate was issued to PITP as PITP was the original lessee from GNIDA. It is not the case of the complainants that PITP have ever refused to execute the tripartite agreement (sub-lease deed) with the investor. It is also not in dispute that assured returns were given to the investors till 2010.
84. It is also important to add here that delay in possession, completion, not giving assured returns, not demarcating the area that fell into individual investor's share, difference in actual construction which is shown in the brochure etc. are held to be issues of civil nature by the Ld. Trial Court. The only reason for the offence of cheating was mentioned by the Ld. Trial is non disclosure of ownership but such reasons is conspicuously contrary to the documentary evidence available on judicial record. The application form CR No. 183/2021, 277/2023 and 410/2023 Page No. 52 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
clearly provides that it is PITP who is the owner of project land and ARN is merely a developer having certain rights. The investors having signed such application form cannot later argue that they have not read its contents before signing. In presence of written signed documentary evidence, no oral or other evidence is permissible. Even otherwise, this court is of the view that by non disclosure of the ownership, no offence of cheating is attracted as it is nobody's case that the original lessee PITP ever denied to enter into final agreement with the investors who invested in units with ARN.
ROLE OF ACCUSED PERSONS AND VICARIOUS LIABILITY
85. Now coming to the role of accused persons, the perusal of the contents of FIR would reveal that mainly the allegations are against ARN. There are no allegations of allurement or misrepresentation by any of the revisionists as directors of ARN. The summoning order does not describe the role of any of the revisionists in the commission of the offence. It is apparent that the revisionists have been summoned as accused persons merely because they were directors of ARN at the relevant time. The law in this regard is also well crystallized. If any offence is committed by the directors of the company then their acts can bind the company also as an accused for the offence, they being the "alter ego" of the company. But, it CR No. 183/2021, 277/2023 and 410/2023 Page No. 53 of 56 Nitin Rekhan and Ors. Vs State and Ors., Neeraj Gupta Vs. State and Dinesh Kumar vs. State and Ors.
is not true in reverse. If an offence is committed by a company then the directors cannot be held vicariously liable for such offence unless it is specifically provided in the statute. Indian Penal Code does not recognize vicarious liability in contradistinction to other statutes like Negotiable Instruments Act etc.
86. In Sunil Bharti Mittal Case vs. CBI, (2015) 4 SCC 609, The Hon'ble Apex Court observed as follows:
"It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are "alter ego" of the company.
In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company is attributed and imputed to the appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a direction of a company can be held liable.
(iii) Circumstances when Director/Person in charge of the affairs of the company can also be prosecuted, when the company is an accused person:
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No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision."
CONCLUSION
87. This court is of the considered view that the ld. Trial Court had overlooked the application form which contained the facts of the ownership of the project land with PITP. The non disclosure of the ownership was the sole reason on which the accused persons have been summoned vide impugned order, however, the same is apparently contrary to the documentary evidence on record. The impugned order has not disclosed any sufficient ground for summoning the revisionists and the ground on which the revisionists are summoned seems to be ex-facie incorrect on the face of it.
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88. For the foregoing reasons, the present revision petitions are hereby allowed and the impugned order passed by the ld. Trial Court qua the revisionists is set aside.
89. Copy of this order alongwith TCR be sent back to the ld.
Trial Court for information and necessary action.
90. Revision files be consigned to Record Room.
Digitally signed
SUSHIL by SUSHIL
ANUJ TYAGI
Announced in the open ANUJ Date:
Court on 17th August, 2024
TYAGI 2024.08.17
17:10:30 +0530
(SUSHIL ANUJ TYAGI)
ASJ-04/CENTRAL/DELHI
17.08.2024(VR)
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