Delhi District Court
Mr. Baldev Chand Bansal vs State Of Nct Of Delhi on 6 August, 2022
IN THE COURT OF SHRI ANIL KUMAR
ADDL. SESSIONS JUDGE - 03 : SOUTH DISTRICT
SAKET COURT : NEW DELHI
Cr Rev No. 85/2022
CNR no. DLST010021152022
1. Mr. Baldev Chand Bansal
S/o Mr. Raunak Ram,
R/o House No. 253, Sector-7,
Panchkula, Haryana- 134109
2. Mr. Tarjinder Bansal
S/o Mr. Baldev Chand Bansal
R/o House No. 253, Sector-7,
Panchkula, Haryana- 134109
3. Mrs. Krishna Devi
S/o Mr. Baldev Chand Bansal
R/o House No. 253, Sector-7,
Panchkula, Haryana- 134109
....... REVISIONISTS
VERSUS
1. State of NCT of Delhi
Through Standing Counsel (Crl.),
District & Sessions Court, New Delhi.
2. M/s Renaissance Buildcon Company Pvt. Ltd.
Through its Authorized Representative
Mr. Kanishraaj Gambhir
Having its registered office at:
A-3, CC Colony, Opposite Rana Pratap Bagh
Delhi-110007
3. Mr. Kanishraaj Gambhir
Shareholder of
M/s Renaissance Buildcon Company Pvt. Ltd.
R/o N-56, Panchsheel Park New Delhi-110017
.......RESPONDENTS
Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 1 of 16
Date of Institution : 15.03.2022
Date of Arguments : 23.07.2022
Date of judgment : 06.08.2022
JUDGMENT
1. Present criminal revision is filed under section 397 read with 401 Cr.P.C seeking setting aside of order dated 10.03.2022 passed by Ld. CMM, South, South whereby concerned SHO / DCP EOW has been directed to convert the contents of complaint as FIR and investigate the matter.
2.1 Complaint u/s 200 Cr.P.C alongwith an application u/s 156(3) Cr PC was filed by the complainants (1) M/s Renaissance Buildcom Pvt Ltd (hereinafter referred as RBCL) and (2) Mr.Kanishraj Gambhir. Complainant no.2 has also been shown as authorized representative of complainant no.1 company as well as shareholder of complainant no.1. Registered office of the complainant has been mentioned as A-3 CC Colony opposite Rana Pratap Park, Delhi 110007. Complainant no.2 has been shown as resident of N56, Panchsheel Park, New Delhi 110017.
2.2 Brief facts, as set up in complaint u/s200 Cr.P.C, are that RBCL is the absolute owner of land admeasuring 93 Acres approximately at Village Kurli, Kishanpura and Rampur Kalan (Punjab). In the year 2009, due to financial constraints, RBCL mortgaged land admeasuring 11.76 Acres, at Village Rampur Kalan and 13.84 Acres at Village Kurali to BDR Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 2 of 16 Builders against the loan amount of Rs. 1,26,00,000/-. Further, land admeasuring 5.85 Acres at Village Kurali to SE Investments against the loan amount of Rs.4,00,00,000/-. The Mortgage Deeds and Form-8 were duly filed with the Registrar of Companies. In November 2010, Bansal Group became Directors of RBCL after acquiring shareholding of RBCL through their Company Blackstone Infracon Pvt Ltd. from D.B Zwim Mauritius (being the erstwhile shareholder of RBCL). When the Bansal Group came on the Board of RBCL, several disputes arose between Gambhir and Bansal Group pertaining shareholding and constitution of the board, The constitution of Board of RBCL during the commission of the offence was - 2 members of Gambhir Group (Mrs Reena Gambhir and Mr Sanjay Gambhir) and Bansal group. Due to inability of RBCL to repay the loan amount availed from BDR and SE investments both the lenders, initiated Arbitration proceedings and the Hon'ble High Court and Ld. Arbitrators vide several orders passed on different dates restrained RBCL from alienating the mortgaged land. Proceedings initiated by SE Investments have culminated into an Arbitral Award for an amount of Rs. 20 Crores.
2.3 On 30 December 2020, Mr Karan Gambhir of Gambhir Group received a call from one real estate agent enquiring about the price at which the land at Village Kurali and Rampur Khalan are being sold. Since the land was mortgaged and could not have been sold, Mr Karan Gambhir enquired from the concerned Tehsil and learnt that Bansal Group has already sold the land admeasuring 2.04 acres at Rampur Kalan and 0.99 Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 3 of 16 Acres of Village Kurali mortgated with BDR further land admeasuring 5.45 Acres at Kurali Village mortgaged to SE investments to 11 different buyer for Rs.4 Crores. This amount was credited to a new account of RBCL and it was members of the Bansal Group who were the authorized signatory of the new bank account. Apart from the above paid amount, an amount of Rs. 3,50,00,000/- were received in the said account from different individuals and entities against agreements to sell for the mortgaged land. The market value of the land which has been illegally sold by the Bansal Group is about 32 Crores approximately. The land falls under Greater Mohali Area Development Authority and has been notified for acquisition under Aerotropolis Project of the Punjab Govt.
2.4 On 6.1.2021 the Gambhir Group issued a notice to Bansal Group for holding a board meeting to confront them with their illegal acts, however the Bansal Group did not respond, nor did they attend the meeting. In order to avoid any prosecution by the Creditors or Gambhir Group they handed over their resignations to Accused No.5, who in turn gave copy of the same to one of the representatives of the Gambhir Group.
2.5 On 15.1. 2021 complaints were filed informing about offences committed by the Bansal Group and Accused No.4, since the Gambhir Group operate from their office. However, no action was taken by police. Officials of the PS Okhla informed the Gambhir Group that the complaint shall be transferred to P.S EOW through their official channel but when Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 4 of 16 no communication received from the police fresh complaint dt 08.03.2021.
2.6 RBCL through it AR approached Mr. Suresh Goel, CA/Auditor of RBCL by Bansal Group in the year 2017 to confront him with illegal acts committed by the Bansal Group. Mr. Suresh Goel vide letter dated 22.02.2021 informed RBCL about his inability to give any information as all the statutory records (viz. minute book/ attendance register/ members register/ share transfer records/ board resolutions etc.) were under possession of Accused no. 5. Further, on learning about the illegal acts committed by the Bansal Group, Mr. Suresh Goel tendered his resignation.
2.7 On 06.03.2021 and 26.03.2021, RBCL wrote to Accused no. 5 asking him to return all the statutory records of the Company but despite written communications and oral requests, Accused no. 5 did not hand over the statutory records of the Company back to RBCL. On 18.10.2021, the Gambhir Group gave instructions to HDFC Bank to freeze any debits in the newly opened account which was used by Bansal Group but it was revealed from statement of account that the entire money received from accused No. 8 to 27 was further transferred to accused no.6 to 7. As a counter blast to the complaints filed by the Gambhir Group and RBCL, Bansal Group filed a false and frivolous Complaint against the Gambhir Group.
3.1 It is stated by Ld. Counsel for revisionist is that impugned order dated 10.03.2022 has been passed by the Ld. Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 5 of 16 CMM, South without due application of mind and same irrational as cause of action, if any, alleging the complaint never arose within the jurisdiction of Ld. CMM, South. It is further stated that on bare perusal of the order there is no cause of action alleged to be in favour of the Complainant and against the Revisionist as sale of mortgage land has taken place in Mohali and execution of document in respect to the same has been done in Mohali itself, opening of bank account at HDFC Bank Khan Market cannot be coloured as fresh cause of action as account was opened at HDFC Bank Khan market and resolution for opening of the same was passed at Pitampura Delhi and which are also beyond the jurisdiction of Ld. CMM, South. It is further stated that Ld. CMM, South erroneously held and noted that the transaction between the Complainant and accused happened in Delhi as admittedly there is no transaction whatsoever. Thus, impugned order on the face of it smacks illegality and arbitrariness by the Ld. CMM, South. It is further stated that Respondent no. 3 is holding only one shares in the Company out of 22,00,000 shares of the Company and alleging that he holds 95% share capital in the company. Hence, Ld. CMM, South order on the basis of said deposition of Respondent No. 3 is factually and legally perverse. It is further stated that respondent No. 3 has approached the Ld. CMM, South on the basis of resolution signed by Mr. Sanjay Gambhir who is proclaimed offender since 2016 by various courts. Hence, Respondents has no authority in the eye of law to approach Ld. CMM, South. It is further stated that Respondent No. 2 and 3 has no locus standi to file complaint under Section 156(3) on behalf of Respondent No.2 as there is a pending dispute between Sanjay Gambhir, Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 6 of 16 Reena Gambhir, Karan Gambhir and Kanishkraaj Gambhir (hereinafter referred as Gambhir Group) and Revisionist No.1 to 3 herein (Bansal Family) in respect to shareholding and management of the Respondent No.2 Company (namely Renaissance Buildcon Pvt. Ltd.).
3.2 In support of his contention Ld. Counsel for revisionists has relied upon following judgments:
I) Priyanka Srivastava & anr Vs State of UP(2015)6 SCC 287 II) Nishu Wadhwa Vs. Sidharth Wadhwa WP(CRL) 1253/2016 III) Vinod Kumar Jangid Vs. Govt of NCT 2015 SCC online Del 11343 IV) Sakiri Vasu Vs. State of UP Appeal Crl 1685 of 2007 judgment dated 7.12.2007
4. Ld. APP for State / Respondent no.1 submits that jurisdiction of EOW covers whole of Delhi and can investigate the case of any part of Delhi. There is no irregularity in the impugned order, hence, this revision is liable to be dismissed.
5.1 Ld. Counsel for respondent no.2 & 3 submits that petition has been filed by revisionists in an attempt to scuttle the investigation of the offences committed by them. At the present stage what is required to be considered is whether this Court can entertain the present petition and exercise its powers u/s 397 Cr.P.C. in light of the fact that prima facie offence has been made out against the Revisionists that mandates the registration of an FIR and that the Ld. CMM has already held that investigation is required in present matter in light of the same. Revisionists have not brought on record any material to show Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 7 of 16 why investigation in the present matter is not required. The veracity of the allegations made against the Revisionists are subject matter of investigation. The Revisionists are attempting to mislead this Hon'ble Court by falsely stating that the Complaint u/s 200 CrPC along with application u/s 156(3) has been filed qua the illegal sale of the mortgaged land situated in Mohali. Whereas, the same has been filed qua forgeries committed by them at Delhi to facilitate the illegal sale of the mortgaged land and the consequent misappropriation of the sale proceeds that have been received at Delhi. Respondent No. 2 being a company, is a juristic person and the ultimate victims of the offences committed by the Revisionists, are the Shareholders and Directors of Respondent No. 2 who are all residents of N- 56, Panchsheel Park, New Delhi. Even the Complaint filed before the PS EOW, South on 08.03.2021 was filed by the Gambhir Group all being residents of N-56, Panchsheel Park, New Delhi in their capacity as Shareholders & Directors of Respondent No. 2 and victims of the offences committed by the Revisionists. Pertinently, the first complaint dated 15.01.2021 was filed at P.S Okhla I.A,Phase-I, New Delhi since the Gambhir Group operate from their office falling in the jurisdiction of P.S Okhla.
5.2 In support of his contention respondent no.2 & 3 has relied upon following judgments:
I) Srinivas Gundluri Vs. SEPCO Electric Power Construction Corpn.-(2010) 8SCC 206 II) Laxminarayan Gupta Vs. Commissioner of Police 2006 SCC OnLine Del 668 III) Lalita Kumari Vs. Government of Uttar Pradesh & Ors (2014)2 SCC 1 Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 8 of 16 IV) Lee Kun Hee, President, Samsung Corpn, South Korea Vs. State of UP & Ors- (2012) 3 SCC 132
6. I have heard Ld. Counsel for parties and given my thoughtful consideration.
7.1 In their complaints, complainants have alleged that Bansal group (petitioner herein) in conspiracy with accused no.4 & 5 had cheated RBCL and Gambhir group in following manner:
".....
i. Bansal Group passed several board resolutions in order to cheat the Gambhir Group, RBCL, BDR Builders and SE Investments for selling the mortgaged land despite having full knowledge that there is an order of injunction qua the mortgaged land passed by different judicial forums including the Hon'ble Delhi High Court.
ii. Bansal Group fraudulently passed a board resolution to open a new bank account in HDFC Bank at Khan Market, New Delhi for the purpose of receiving sale proceeds of mortgaged land.
iii Bansal Group forged the KYC forms and account opening form for the purpose of opening the new bank account in HDFC Bankat Khan Market. It is pertinent to mention here that as per the RBI Guidelines all the Directors of a private limited company must sign the KYC forms and account opening forms and it is only after the due verification of the KYC forms that a bank account can be opened. As stated earlier the Gambhir Group was neither aware nor was a signatory to any KYC form, this itself manifests that the account opening form and KYC forms were forged. Further it is pertinent to mention here that even the registered address of the Company which has been provided at the time of opening the account is 804, Best Sky Tower, Pitampura, Opposite Fun Cinemas, however it is pertinent to mention here that when the enquiries were made at the said address it was discovered that on the said address a Company named Rishab Star Logistics Pvt. Ltd. is a lessee and is operating its office for the past 7 Years. This further manifest that the address proof i.e. lease deed given for the purpose of opening the account is also forged.
Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 9 of 16 iv Bansal Group after receiving the sale proceeds of the Mortgaged Land transferred a substantial amount to their own entities i.e. Accused No. 6, Accused No.7 and also to their personal accounts.
v Bansal Group also forged the title deeds of the mortgaged land (owned by RBCL) as for the purpose of executing the new sale deeds of the mortgaged land, the original title deeds are required which have always been under the possession of the lenders i.e. BDR Builders & Developers Pvt. Ltd. and S.E. Investments Ltd. by way of equitable mortgage as per the loan agreements.
vi. Bansal Group has also forged No Objection Certificates/Satisfaction of Charge Certificate that must have been used at the time of getting the sale deeds of the mortgaged land executed as a charge was created and recorded in the revenue records of the concerned Tehsil/ Sub- Registrar w.e.f. - 13.02.2009.
vii The illegal acts are further substantiate by fact that in all the sale deeds of the mortgaged land a board resolution dt 20.09.2020 has been annexed wherein the details of the land proposed to be sold is mentioned. Further, while conducting the online inspection at MCA21 Portal maintained by the Ministry of Corporate Affairs it was discovered that in the Annual Report of the Financial Year 2020-2021 which is mandatorily required to be filed on or before 30th September of every financial year, there is no mention of any board meeting held by RBCL on 20.09.2020.
viii The fact that despite written communications and oral requests, Accused no. 5 has till date not handed over the statutory records of the Company back to RBCL is further evidence of their conspiracy and in all likelihood they have destroyed the evidence of their illegal acts.
ix The Buyers of the mortgaged land, i.e. Accused No.
8 to 26, have also played an active role in the commission of the offences as they very well knew about the charge on the property in the revenue records and Ministry of Corporate Affairs. Further, most of the buyers after getting to know about the fraud committed by the Bansal Group by way of a public notice have again sold the mortgaged land to different persons.
Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 10 of 16
5. The abovementioned facts clearly demonstrate the conspiracy hatched by all the accused persons by forging several documents in order to cheat the Complainants".
7.2 On the commission of offences in view of above reproduced facts in para 5 of the complaint, complainants have stated as under:
"5. The abovementioned facts clearly demonstrate the conspiracy hatched by all the accused persons by forging several documents in order to cheat the Complainants".
7.3 On jurisdiction point complainants in their complaint have stated as under:
"6. That the offences have been committed within the territorial jurisdiction of this Hon'ble Court. Thus, this Hon 'ble Court has the power to take the cognizance of the offences and hold the trial against the accused persons."
8. Relevant portion of impugned order of Ld.Trial Court is reproduced as under:
"On these averments, ATR was called. The report of the investigating officer simplicitor dismisses the averments of the complainant on the sole ground of lack of jurisdiction. It is averred that since the sale proceedings of the alleged land took place at SAS Nagar, Mohali as well as for the reason that the land in question is situated at SAS Nagar, Mohali, the cause of action never arose within the jurisdiction of this Court. It is further alleged that as per averments of the complainant even the alleged forgery of documents was committed at Mohali.
Arguments heard. Record perused.
As regards the jurisdiction, it is seen that the complainant company has its registered office in Delhi and at this stage there is nothing to dislodge the averment that the business transactions between the complainant Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 11 of 16 company and the accused initiated at Delhi. Pendency of a case before under Companies Act before Hon'ble NCLT, New Delhi further blurs the doubt as to the jurisdiction. Further, the allegations regarding forgery of documents in order to bypass the injunction order of various judicial forums and thereby deceiving investors by inducing them into purchasing mortgaged land otherwise forbidden to be sold or purchased, discloses commission of a cognizable offence. The facts are such that would require collection of material and investigation into the case which the complainant may not otherwise be capable of except with the aid of police machinery. As such, present application under Section 156 (3) Cr.P.C is allowed. Concerned SHO/DCP, EOW is directed to covert the contents of complaint as FIR and investigate the matter fairly."
9. This is a revision against order passed by Ld.CMM South on an application u/s 156(3) Cr.P.C. Since this is a revision, hence, Court is bound to consider only the material available before Ld.Trial Court and examined as to whether on these materials Ld.Trial Court has committed any error or irregularity in passing impugned order. Material filed by the revisionist are opposite party before this Court first time or not liable to be looked into under revisionisal jurisdiction of this Court.
10. Revisionists have challenged the impugned order on main ground of territorial jurisdiction of Ld.CMM South. In the complaint, complainants have simply alleged in the complaint filed before Ld CMM South that the offence has been committed within the territorial jurisdiction of that Court, thus, that Court had the power to take the cognizance of the offence and hold the trial against accused persons.
Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 12 of 16
11. In Srinivas Gundluri Vs. SEPCO Electric Power Construction Corpn.(Supra), judgment relied upon by Ld. Counsel for R-2 & 3 it has been held by Hon'ble Supreme Court of India that to proceed u/s 156(3) Cr PC, what is required is a bare reading of complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is a sufficient ground for proceeding, may direct the police for investigation.
12. In view of this judgment, it is clear that while deciding application u/s 156(3) CrPC, court is not required to go into the merit of allegations made in the application or complaint. But in this judgment it has not been stated that before proceeding ahead the Court is not required or bound down to check or examine its territorial jurisdiction.
13. Hon'ble High Court of Delhi in Writ Petition (Crl) 1253/2016 titled 'Nishu Wadhwa vs Siddharth Wadhwa & Anr' decided on 10.01.2017 has held as under:
TERRITORIAL JURISDICTION OF THE MAGISTRATE TO ENTERTAIN THE APPLICATION UNDER SECTION 156 (3) CR.P.C.
14. The above noted FIR was registered at PS Defence Colony pursuant to the recommendations of the CAW Cell, South District. Through an administrative order, the investigation thereof was transferred first to District Investigating Unit (DIU), South East District and thereafter to PS Vivek Vihar where the investigation was pending when the learned Metropolitan Magistrate passed the order dated 22nd June, 2016 directing addition of offences punishable under Sections 120B/109/420/376/ 377/504/506 IPC and Sections 3 and 4 of the Dowry Prohibition Act in the FIR No.220/2015 already registered. The learned Metropolitan Magistrate, Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 13 of 16 who passed the order dated 22nd June, 2015 was looking after the territorial jurisdiction of PS Defence Colony and was a Magistrate in the South East District, Saket Court. When the order dated 22nd June, 2015 was passed, the Magistrate was informed of the fact that the investigation had since been transferred to PS Vivek Vihar.
15. Learned counsel for the petitioner justifying the order passed by the learned Metropolitan Magistrate, relies upon the decision of the Supreme Court reported as 1999 (8) SCC 728 Satvinder Kaur vs. State (Govt. of NCT of Delhi) & Anr. wherein in respect of territorial jurisdiction to try an offence, the Hon'ble Supreme Court held that the SHO has statutory authority under Section 156 (3) Cr.P.C. to investigate any cognizable case for which the FIR is lodged and at the stage of investigation there is no question of interference under Section 482 Cr.P.C. on the ground that the Investigating Officer has no territorial jurisdiction. After the investigation is over, if the Investigating Officer arrives at a conclusion that the cause of action for lodging the FIR had not arisen within his territorial jurisdiction, he is required to submit a report accordingly under Section 170 Cr.P.C. and to forward the case to the Magistrate empowered to take cognizance of the offence.
16. The issue in the present petition is not whether the SHO concerned or the Investigating Officer investigating the offence had the territorial jurisdiction to investigate the offences but whether the learned Metropolitan Magistrate who passed the order dated 22nd June, 2015 had the jurisdiction to pass directions on an application under Section 156 (3) Cr.P.C. to the SHO of a police station which did not fall within its territorial jurisdiction.
14. Other judgments relied upon by both the parties are not related to the issue involved in present revision or of any assistance to either parties.
15. In view of above cited judgment of Hon'ble High Court of Delhi the Court having territorial jurisdiction can pass direction on an application u/s 156(3) Cr PC.
Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 14 of 16
16. It has been mentioned in complaint/application filed by complainants that immovable property which was allegedly sold by the respondent/petitioner are situated in Punjab. Registered office of the complainant company is situated in CC Colony opposite Rana Pratap Bagh Delhi. Nothing has been specifically mentioned in the complaint as to how what cause of action has arisen in Ld CMM, South Delhi jurisdiction.
17. Ld. Counsel for R-2 & 3 has taken plea first time before this Court that Ld.CMM has territorial jurisdiction because complainant no.2 (respondent no.3 in this case) who is shareholder of complainant no.1 company (respondent no.2 in this case), is residing in Panchsheel Park which falls under the jurisdiction of Ld.CMM South and since the revisionists have committed cheating and forgery and complainant no.2 suffered the consequences of their act being shareholder, hence, Ld.CMM South has jurisdiction u/s 179 Cr.P.C to decide the application u/s 156(3) Cr.P.C.
18. Aforesaid plea of Ld. Counsel for R-2 & 3 cannot be accepted. Allegations made by the complainants are that revisionists have sold the property of complainant company and forged the document of complainant company. Company is a separate legal entity from its shareholder. Consequence, if any as required u/s 179 Cr.P.C should be direct and not be remote or indirect. The consequences contemplated u/s 179 Cr.P.C are those consequences that form an integral part of the offence, without which the offence itself could not be complete. It is not any and every consequence, not being an essential ingredient of Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 15 of 16 the offence as such that would give jurisdiction to a court. Consequence as alleged on behalf of respondent no. 3, first time before this Court appears to be not an integral part of alleged offence of forgery and cheating.
19. This Court finds that facts mentioned in the complaint does not disclose that any offence or part thereof has been committed within the jurisdiction of Ld.CMM South.
20. In view of above discussion this Court is of opinion that in the given facts and circumstances of the case, Ld.CMM South had no territorial jurisdiction to pass direction u/s 156(3) Cr PC. Hence, this revision petition is allowed. Impugned order dt. 10.03.2022 passed by Ld.CMM, South is set aside.
This Revision file be consigned to record room. Copy of this judgment be sent to Ld.Trial Court alongwith TCR and SHO/DCP concerned. Digitally signed by ANIL ANIL KUMAR KUMAR Date:
2022.08.08 12:12:45 +0530 (Anil Kumar) Addl. Sessions Judge-03(South) Saket Courts/New Delhi/06.08.2022/gk Mr. Baldev Chand Bansal & ors Vs. State of NCT of Delhi & ors Page no. 16 of 16