Delhi District Court
Rajender Kumar Mittal vs State Of Nct Of Delhi on 12 June, 2020
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE-04 : EAST DISTRICT
KARKARDOOMA COURTS: DELHI
Crl. Appeal No. 75/2019
Rajender Kumar Mittal,
S/o Late Mr.Deen Dayal,
R/o H.No. B-714, Railkunj, Sector-3,
Vasundra, Ghaziabad, UP.
.....Appellant
Versus
State of NCT of Delhi
.....Respondent
Date of Institution : 06.04.2019
Judgment reserved on : 06.06.2020
Judgment pronounced on : 12.06.2020
Appearances:
For the Appellant : Mr. Asim Naeem, Adv.
For the Respondent : Sh. Ajit Kumar Srivastava,
Addl.P.P. for the State.
JUDGMENT
The present appeal under Section 374 of the Code of Criminal Procedure,1973 (for short 'Cr.P.C.') has been preferred by the appellant against the judgment dated 31.01.2019 and order on sentence dated 05.03.2019 (for short 'the impugned judgment'), passed by the Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 1/16 court of Learned Chief Metropolitan Magistrate, East District, Karkardooma Courts, Delhi in case titled as 'State v. Rajender Kumar Mittal and Others' bearing FIR no. 468/1994, u/ss 420/406/120-B IPC, whereby the appellant was convicted and sentenced qua commission of offences punishable u/s 120-B with reference to Section 420 & 406 IPC, u/ss 420 and 406 IPC.
2. After filing of the appeal, learned Additional Public Prosecutor accepted the notice on behalf of the State. The Trial Court Record was summoned.
3. I heard arguments on both sides and perused the entire record. Learned counsel for the appellant also filed written submissions and relied upon Sunil Bharti Mittal v. CBI, AIR 2015 SC 923 and Anita Hada v. Godfather Travels & Tours Pvt. Ltd. 2012 (5) SCC 661 in support of his contentions.
4. In nutshell, the case of the prosecution is that the appellant entered into a criminal conspiracy with co-accused persons to defraud the public at large by selling plots of land by carving out colonies namely Tirupati Vihar and Tirupati Township, on easy and attractive terms. The appellant and other co-accused persons misrepresented and induced the complainant and other persons regarding the colonies being duly approved and with no objection certificate regarding use of land from the concerned authorities. Further, the appellant and other Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 2/16 co-accused persons also received compensation in lieu of land meant for Tirupati Vihar colony after acquisition thereof without informing the buyers, did not hand over the plots of land to them nor refunded their money and thereby caused wrongful loss to the buyers and wrongful gain to themselves.
5. The facts in detail have already been mentioned in the impugned judgment and, for the sake of brevity, have not been reproduced here.
6. The grounds of appeal preferred are that the impugned judgment is based on presumptions and assumptions, is contrary to the settled law and was passed without appreciating the fact that the complainant failed to establish legally enforceable debts for which the trial was conducted. Further, the learned Trial Court failed to appreciate that all the money was collected by the Tirupati Associates, a proprietorship concern of co-accused Rakesh Kumar and there is no evidence that the aforesaid money was diverted to the appellant at any point of time. All the receipts were issued and signed by Rakesh Kumar on behalf of Tirupati Associates and appellant was not concerned in any manner with those receipts. The learned Trial Court failed to appreciate that the appellant was the director in Tirupati Builders (Delhi) Pvt. Ltd. which has nothing to do with the Tirupati Associates. Appellant had resigned on 20.01.1986 and, therefore, was not concerned with the transactions which were entirely done by the Tirupati Associates. The learned Trial Court also failed to appreciate that the Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 3/16 complainants/victims had deposited the money through cheques in the account of Tirupati Associates and the Investigating Officer could not collect any single document bearing signature of the appellant or the trail of money in the account of the appellant and thus failed to connect the appellant with the alleged transactions. The learned counsel for the appellant, while relying upon Sunil Bharti Mittal (supra) & Anita Handa (supra) cases, also contended that Tirupati Builders (Delhi) Pvt. Ltd., Tirupati Associates and Gajraj Singh, another director in Tirupati Builders (Delhi) Pvt. Ltd. have already been acquitted and, therefore, the appellant could not have been convicted by the learned Trial Court.
7. Learned Prosecutor for the State opposed the contentions of the learned counsel for the appellant and argued that the learned Trial Court passed a balanced and reasoned judgment while convicting the appellant and no fault can be found with the reasoning given by the learned Trial Court. The learned Prosecutor further submitted that the reliance placed by the learned counsel for the appellant on the cited judgments is misplaced and the learned Trial Court correctly relied upon the judicial pronouncements mentioned in the impugned judgment and, therefore, there is no merit in the present appeal.
8. It is worthy to note that as per record, vide order dated 06.09.2007, co-accused Smt. Raj Shree Mittal was discharged. Co- accused Raj Kumar expired during the course of trial and proceedings Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 4/16 qua him were abated. Vide judgment dated 08.06.2016, co-accused Rakesh Kumar was convicted whereas co-accused persons namely Gajraj Singh, D.K.Dua and Tirupati Builders (Delhi) Pvt. Ltd. and Tirupati Associates were acquitted. Since the appellant had absconded, he was later on arrested and put on trial.
9. Vide impugned judgment, the appellant was held guilty qua commission of offence punishable u/s 120-B IPC with reference to Section 420/406 IPC as well as qua commission of offences punishable u/ss 420 IPC and 406 IPC.
10. Vide impugned judgment, learned Trial Court discussed the law regarding applicability of Section 420 IPC to the facts of the case while relying upon judgments namely Mohd. Ibrahim v. State of Bihar, 2009 (8) SCC 751, Devender Kumar Singla v. Baldev Krishan Singla, 2004 Cri. L.J 1774, Bashirbhai Mohamedbhai v. State of Bombay, AIR 1960 SC 979, Shivnarayan Kabra v. State of Madras, AIR 1967 SC 986 and G.V.Rao v. L.H.V. Prasad & Ors., 2000 (2) RCR (Crl.) 290.
11. The learned Trial Court also relied upon V.C.Shukla v. State, 1980 (2) SCC 665, Ram Narain Poply v. CBI (SC), 2003 Cri. L.J 4801, Bhagwan Swarup Lal Bishan Lal & ors. v. State of Maharashtra, AIR 1965 SC 682 and S.C.Bahri v. State of Bihar, AIR 1994 SC 2420, for convicting the appellant qua commission of offence punishable under Section 120-B IPC.
Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 5/1612. Before analysing the facts and evidence brought on record in the present case, it is apposite to refer law on the subject. As per the above-mentioned judgments and the settled propositions of law regarding the offence of cheating under Section 420 IPC, the essential ingredients of the offence are;
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
13. It has also been settled that a guilty intention is an essential ingredients of the offence of cheating and the intention to deceive should be in existence at the time when the inducement was made.
14. The Apex Court in Criminal Appeal No. 78 of 2013 titled as Arun Bhandari v. State of U.P and Ors., decided on 10.01.2013, while referring to judgments in State of Kerala v. A.Pareed Pillai & Anr., Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 6/16 AIR 1973 SC 326, G.V.Rao v. L.H.V.Prasad & Ors., (2000) 3 SCC 693, S.N.Palanitkar & Ors. v. State of Bihar & Anr., AIR 2001 SC 2960, also laid down that to hold a person guilty of the offence, it has to be established that his intention was dishonest at the time of making the inducement.
15. As far as the offence of criminal conspiracy is concerned, it is clear that the direct evidence is generally not available and it has to be established by drawing inferences from acts of the conspirators. The essence of criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is formed. The main ingredient of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. Since the direct evidence is rarely available, the circumstances proved before, during and after the occurrence have to be considered for drawing inferences about the complicity of the accused.
16. Applying the above-mentioned settled propositions of law regarding the offence of cheating and criminal conspiracy to the facts of the present case, it can be seen that some of the prosecution witnesses categorically deposed about the active role played by the appellant and their testimonies could not be impeached in any material terms. For instance, PW2 Satender Kumar Bhatnagar deposed that he was shown documents by co-accused Rakesh regarding the ownership Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 7/16 of the property wherein the appellant and his wife were shown as owner of the land. PW3 Ravi Kant Gupta and PW4 C.B.Gupta also deposed about the presence of co-accused Rakesh Kumar as well as the appellant in their office situated at Shakarpur and both of them represented that they were having their project by the name of Tirupati Vihar near Hindon Canal at Nizamuddin Highway regarding which they had also given advertisements in leading newspapers. Further, co-accused Rakesh Kumar as well as the appellant also offered PW3 to opt for their money back scheme and directed him to Gaurav Investment where he was suggested for exchange of plot situated in Tirupati Township. Both PW3 and PW4 also deposed that it was the appellant who had paid their entire money pursuant to a compromise entered into between them.
17. The testimony of PW5 Pradeep Kumar Aggarwal is also to this effect that he settled his dispute with the appellant and received his money back.
18. It be noted that the learned Trial Court rightfully was not convinced about the compounding of offences in the absence of permission of the Court as stipulated u/s 320 Cr.P.C.
19. Further, PW14 R.D.Trivedi who had also booked plot and paid instalments, categorically deposed that he met with the appellant at the office situated at Tolstoy Marg and appellant had showed him some Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 8/16 papers of NOC from Ghaziabad Development Authority (GDA), papers regarding purchase of land from local farmers as well as the site plan. PW14 deposed that most of the dealings were done through the appellant and the appellant had also represented himself to be the owner of the company and after having been convinced with the representations made by the appellant, PW14 had booked the plot and deposited Rs. 13,040/- with him.
20. PW14 was cross-examined wherein he clarified that after reading the advertisements in the newspaper, he initially visited the office of Gaurav Investment Pvt. Ltd. situated at Tolstoy Marg wherein he had noticed the hoardings of Tirupati Associates and met the appellant and his official staff. It is worthy to note here that as per the advertisements Mark D (colly.) and Ex. PW18/C the office of Gaurav Investment was also mentioned therein. Though PW14 was confronted with his statement recorded u/s 161 Cr.P.C. during cross-examination but no material contradiction to doubt the truthfulness of his testimony could be brought forth.
21. Similarly, PW15 Smt. Nirmal Khanna also deposed that when she visited the office of the accused persons, the appellant was present alongwith other co-accused persons. PW16 Tejpal Singh who had let out the office space to M/s. Navyug Associates deposed that he had also noticed the board of Tirupati Associates on the said office and appellant also used to sit in the said office.
Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 9/1622. PW18 ACP Satyavir Singh, the Investigating Officer deposed at length about the Tirupati Associates, Tirupati Builders and Rajvansh Properties giving advertisements in the newspapers about the development of Tirupati Vihar and Tirupati Township Colonies and the office of Tirupati Associates and Tirupati Builders being run from the same premises i.e. A-115, Vikas Marg, Delhi by the co-accused persons and the appellant. PW18 also deposed that the land was acquired by the GDA and compensation had already been given to the accused persons but this fact was concealed by them. PW18 had also written letter and examined M.L.Sharma, A.E-III Master Plan Section, GDA, who stated that none of the aforementioned colonies was approved by the GDA. PW18 further deposed about the acquisition of land in question by GDA and payment of compensation in lieu thereof to the accused persons including the appellant.
23. In cross-examination, the testimony of PW18 could not be controverted in any material terms, though, he stated that he could not lay hands on any document bearing signature of the appellant. Regarding there being no document relating to M/s Tirupati Builders (Delhi) Pvt. Ltd., PW18 clarified that both M/s. Tirupati Builders (Delhi) Pvt. Ltd. and M/s. Tirupati Associates were shown to be the sister concern in order to cheat the innocent persons. As far as the questions regarding money trail are concerned, PW18 stated that after Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 10/16 examination of the witnesses and other evidence, the same was not deemed necessary to investigate.
24. Having perused the entire material available on record, it is clear that there is sufficient evidence to establish that the appellant entered into a criminal conspiracy with co-accused Rakesh Kumar and in pursuance thereof, deceived the victims by dishonestly inducing them to invest their money for purchasing the plots of land in Tirupati Vihar and Tirupati Township Colonies. The testimonies of PW3 Ravi Kant Gupta, PW4 C.B.Gupta and PW14 R.D.Trivedi are categorical about the inducement made both by the appellant and co-accused Rakesh Kumar. It has also been established from the testimony of PW18 ACP Satyaveer Singh, the Investigating Officer that neither the said colonies were approved nor No Objection Certificate regarding use of land was obtained from the Civic Authority. It has also been established that at the time of making false and dishonest representation to the victims for inducing them to purchase the plots of land, the appellant and co-accused Rakesh Kumar were not having any land in their possession. As observed earlier, in view of testimonies of PW3 Ravi Kant Gupta, PW4 C.B.Gupta, PW14 R.D.Trivedi, PW15 Smt. Nirmal Khanna, PW16 Tejpal Singh and PW18 ACP Satyaveer Singh, there is no doubt that the appellant was actively involved in the transactions done in the name of Tirupati Associates alongwith co- accused Rakesh Kumar. The appellant directly dealt with the afore- mentioned prosecution witnesses who, induced by his dishonest Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 11/16 representation, purchased the plots of land which were not delivered to them as promised. The appellant also dishonestly concealed the facts about No Objection Certificate regarding use of land and approval from the civic authority i.e, Ghaziabad Development Authority as the same were never obtained. The appellant also concealed about receiving of compensation amount in lieu of acquisition of land meant for development of Tirupati Vihar Colony.
25. During the course of arguments, learned counsel for the appellant relied on Sunil Bharti Mittal (supra) & Anita Hada (supra) cases to contend that appellant deserves acquittal after acquittal of Tirupati Builders (Delhi) Pvt. Ltd. for the reason that if the company has been acquitted, its director cannot be held guilty.
26. The contentions of the learned counsel for the appellant are contrary to the established propositions of law in this regard and the reliance placed by him on the afore-mentioned judgments is entirely misplaced. In Anita Hada (supra) case, the interpretation of Section 141 of Negotiable Instruments Act was in question which prescribes the doctrine of vicarious liability. Similarly, in Sunil Bharti Mittal (supra) case, relying upon Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530, the Apex Court laid down that the criminal intent of the 'alter ego' of the company, i.e. the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition laid down Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 12/16 is that if the person or group of persons who control the affairs of company commit an offence with a criminal intent, their criminality can be imputed to the company as well since they are 'alter ego' of the company. It was also laid down that there is no doubt that a corporate entity is an artificial person who 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. 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, alongwith 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. Otherwise, there has to be specific act attributed to the director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.
27. The doctrine of vicarious liability is not applicable to the offences stipulated under the Penal Code under which the appellant has been held guilty. Vide judgment dated 08.06.2016 passed by the learned Chief Metropolitan Magistrate, East, Karkardooma Courts, Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 13/16 Delhi, the accused company i.e. Tirupati Builders (Delhi) Pvt. Ltd. was acquitted as no evidence could be placed on record, how the acts of its directors including the appellant were authorized by the said company. It was also held that all the deeds or misdeeds were done in individual capacity in the name of Tirpuati Associates and its legal connection with Tirupati Builders (Delhi) Pvt. Ltd. could not be proved. The other director namely accused Gajraj was also absolved as convincing evidence could not come on record against him. In the afore-discussed circumstances, the contentions of learned counsel for the appellant to seek acquittal of the appellant on the basis of said company having been acquitted, is infantile in nature. It appears that learned counsel did not bother to go through a bit lengthy judgment passed in Sunil Bharti Mittal (supra) case, otherwise, such contentions could not have been raised.
28. In the entire facts and circumstances and after going through the entire Trial Court Record including the impugned judgment, in my considered opinion, there is no mistake in the findings returned by the learned Trial Court while convicting the appellant qua commission of offences punishable under Section 120-B with reference to Section 420 IPC as well as under Section 420 IPC.
29. However, I am not convinced with the findings returned by the learned Trial Court for convicting the appellant qua commission of offence punishable under Section 406 IPC. In my considered opinion, Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 14/16 the offence under Section 420 IPC and offence under Section 406 IPC are mutually exclusive and the accused cannot be punished under both the offences for the same transaction.
30. In S.W.Palanitkar v. State of Bihar, 2002 SCC (Cri) 129, the essential ingredients to constitute a criminal breach of trust were elaborated as: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract made, touching the discharge of such trust.
31. Accordingly, it is clear that to constitute criminal breach of trust, the dishonest intention comes into play after the entrustment of property or dominion over it, is made in good faith whereas for offence of cheating, the dishonest inducement to deliver the property is to be made at the initial stage itself and it is necessary to show that the accused had fraudulent or dishonest intention at the time of making the promise with an intention to retain the property. In other words, it can be said that if the accused, by playing deception, dishonestly induces a person to deliver any property, such property obtained in pursuance of such inducement, by no stretch of imagination can be construed as 'entrustment' or 'dominion over the property' within the contemplation of Section 405 IPC.
Crl. Appeal No. 75/2019 Rajender Kumar Mittal v. State Page 15/1632. Therefore, the findings returned by the learned Trial Court that the amount deposited for purchase of plots which were not refunded nor possession of any plots were delivered to them, constitute entrustment in good faith, is not correct interpretation of law and accordingly, the conviction of appellant for the offence punishable under Section 406 IPC cannot be sustained.
33. Accordingly, in the light of above discussed facts and circumstances as well as legal propositions, the appeal preferred by the appellant is partly allowed. The impugned judgment and order on sentence, holding the appellant guilty qua commission of offences punishable under Section 120-B IPC with reference to Section 420 IPC and qua commission of offence punishable under Section 420 IPC is upheld. However, the findings of the learned Trial Court convicting the appellant qua commission of offence punishable under Section 406 IPC and consequent order on sentence are hereby set aside.
34. File be consigned to Record Room.
35. Trial Court Record be sent back with a copy of judgment.
KULDEEP Digitally signed by
KULDEEP NARAYAN
NARAYAN Date: 2020.06.12
11:47:26 +05'30'
(Pronounced through vc (Kuldeep Narayan)
on 12.06.2020) Addl. Sessions Judge- 04 (East)
Court Room No. 10,
Karkardooma Courts, Delhi.
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