Delhi District Court
Cc No.: 337/1 ("Neeraj Pandey vs Sahara India & Ors.") Date Of Order: ... on 24 January, 2011
CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011
IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI
In Re:
Neeraj Pandey,
S/o Shri P.D Pandey,
R/o C12/520, Yamuna Vihar,
Delhi.
.....Complainant
Versus
1. Sahara India Commercial Corporation Ltd.,
Sahara India Bhawan,
1, Kapoorthala Complex, Lucknow226024.
nd Address
2 :
Sahara India Tower,
2, Kapoorthala Complex, Aliganj, Lucknow226024.
Branch Office:
678, 2nd Floor, Ekta House,
Kabool Nagar, Shahadra, Delhi110 032.
2. Mr.Subrata Roy, S/o Late Shri S.C Roy,
Managing Director, Chairman & First Director,
Sahara India Commercial Corporation Limited,
Sahara India Bhawan,
1, Kapoorthala Complex, Lucknow226024.
nd Address
2 :
Sahara India Tower,
2, Kapoorthala Complex, Aliganj, Lucknow226024.
Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 1 of 13
CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011
rd Address
3 :
Sahara India House,
New Hyderabad.
3. Mr.Om Prakash Srivastava, S/o Shri F.P Srivastava,
Dy. Managing Director/Worker & First Director,
Sahara India Commercial Corporation Ltd.,
Sahara India Bhawan,
1, Kapoorthala Complex, Lucknow226024.
nd Address
2 :
A5, SectorC, Aliganj, Lucknow.
4. Mr.Joy Broto Roy, S/o Late Shri S.C Roy,
Dy. Managing Director,
Sahara India Commercial Corporation Ltd.,
Sahara India Bhawan,
1, Kapoorthala Complex, Lucknow226024.
nd Address
2 :
Sahara India House,
New Hyderabad.
5. Mr.H.S Rawat,
Field Worker/Collector/Employee/Agent,
Code No.180200178,
Sahara India Commercial Corporation Ltd.,
Branch Office:
678, 2nd Floor, Ekta House,
Kabool Nagar, Shahdara, Delhi32.
nd Address
2 :
R/o E451, Gali No.3, Hardevpuri,
Delhi, PS Mansarovar Park.
.....Accused
Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 2 of 13
CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011
24.01.2011
Present: Shri Ashutosh Bhardwaj, Counsel for the complainant alongwith
complainant and his wife in person.
ORDER ON SUMMONING:
The arguments advanced at bar by the learned counsel for the
complainant were heard, the documents placed on record and evidence
adduced in presummoning has been carefully perused. The complainant has
filed the present complaint against six respondents. First respondent M/s
Sahara India Commercial Corporation Limited is the company; respondent No.2, Mr.Subrata Roy, respondent No.4, Mr.Joy Broto Roy and respondent No.5, Smt.Swapna Roy are the Directors of respondent No.1; whereas respondent No.3 is also one of the Directors and respondent No.6 Mr.H.S Rawat is the Incharge of the Delhi Projects of Respondent No.1.
2. The allegations against the respondents, as set out in the complaint are that sometime in the month of March/April' 2003, respondent No.6, Mr.H.S Rawat, approached the complainant with scheme of respondent No.1, namely "Sahara Swaran Yojana", which was with regard to development of 217 townships all over India. It was represented that in the first phase, respondent No.1 would develop 102 townships all over India, including the one in and around National Capital Territory of Delhi (NCR Region). It was represented to the complainant that if early Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 3 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011 booking/investment was made in the aforesaid scheme, then he would get a house/ plot/flat at lowest price with maximum facilities in the NCR region. It was further assured that each township (including the one in NCR region) would be developed on an area of 100300 acres of land and shall have 5560% area of green cover, free multilevel security, free city and building maintenance, free air conditioning and computer fitted in the flat/house, continuous RO water supply, inbuilt transport services, uninterrupted power supply, inbuilt centrally air conditioning hospital & schools and shopping malls, air conditioning hotel and club, community centres, play ground, party lawns and other essential services.
3. Believing the aforesaid assurances and representations, made by respondent No.1, through respondent No.6 to the complainant, he alongwith his wife Smt.Beena Pandey opted for one unit in a township in NCR region. As per the agreement entered into between the complainant and respondent No.1, the complainant was required to make payment of Rs.10,000/ per month w.e.f April' 2003 till May' 2004 and thereafter by the end of year 2007, the allotment of a unit would be made to him; the price whereof would be communicated at that time. The complainant made payment of the entire amount till 29.05.2004. It has been further alleged that at the time of payment of every monthly instalment, the complainant made enquiries from respondent No.6 with regard to construction and progress of the township in NCR. He also requested respondent No.6 to show him the place of township, so that he Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 4 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011 could rest assured with regard to allotment of a unit to him. On one pretext or the other, he/complainant was not shown the township. The complainant became suspicious about the aforesaid township/project of respondent No.1 and as such, he contacted respondent No.2, on whose assurance, brochures/booklets of the schemes of the township were supplied to the complainant and the complainant was assured that allotment of a unit would be made to him as per the agreed terms and conditions.
4. When even till December' 2007, the complainant did not receive any allotment letter, he represented to the respondent No.1 company and insisted for issuance of allotment letter and for seeing the sight where the proposed township in the NCR region was being developed. The respondents neither showed the sight to him nor disclosed the location of the sight, where the township was being developed. The complainant kept on contacting the respondents after December' 2007, but he was put off on one pretext or the other and thereafter, the respondents No.2 to 5 even stopped receiving calls of the complainant.
5. It has been further stated that to the shock and surprise of the complainant, in February' 2008, he was curtly told by respondent No.6 that no land was purchased / possessed / finalised in the NCR region by respondent No.1.
Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 5 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011
6. At or around February/March' 2008, the complainant went to the office of respondent No.6, where one Mr.Ravi Chaturvedi, Branch Manager met him. The complainant asked him about the status of the development of township(s) in NCR region. No satisfactory answer was given to him. The complainant thereafter made enquiries and he came to know that on the pretext of development of a township by the name of "Sahara Swaran Yojana" in NCR region, the respondents had collected one lakh rupees each from about 25,000 persons from NCR region and as such, collected several thousand crores of rupees, but even the land for the township was not purchased. In this regard, one FIR No.418/2007, U/s 406/420 IPC r/w Section 120 B IPC, PS Anand Vihar, was registered against the respondents on the complaint of one Sardar Darshan Singh Chandna. During investigation in the aforesaid case, it came to the fore that the respondents had purchased a plot of land, measuring about 16 acres at Gurgaon (Haryana), and there also no construction/development activity was undertaken. Even otherwise, no township could have been developed on a area of 16 acres, much less the township with the facilities assured to the persons similarly situated like the complainant. The complainant thereafter approached SHO, PS Anand Vihar with his complaint dated 20.11.2008 for registration of FIR in the matter, but no action thereupon was taken by the police. Again on, 13.01.2009 the complainant filed another complaint against the respondents in PS Anand Vihar, again to no avail. Thereafter, the complainant filed the present complaint alongwith an application U/s 156 (3) Cr.P.C before this court. Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 6 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011 After filing of the present complaint, on 01.04.2009, at about 3.30/3.45 PM, the respondent No.6 intimidated the complainant on telephone and asked him to withdraw the complaint filed by him in court, which the complainant refused. Thereafter, on 02.04.2009, at about 10.00 PM, the respondent No.6 alongwith his two associates went to the house of complainant and again criminally intimidated him and told him that respondent No.2 had offered to return his money and insisted upon him to accept the same, failing which, his family would be liquidated. The complainant reported the matter to police on 12.04.2009, but again no action was taken by the police.
7. On 11.04.2009, the complainant received an envelop, which was sent through speedpost. On opening the same, he found a cheque in the sum of Rs.1,58,567/ (Rupees One Lakh Fifty Eight Thousand Five Hundred Sixty Seven Only) in his name. He was shocked because he had never sought for refund of his amount. The complainant immediately approached this court and placed the said cheque on record. Thereafter, on 16.04.2009, the complainant again received a letter from the respondents, intimating about invocation of arbitration in the matter on the part of respondents. Thereafter, even a petition U/s 11 of the Arbitration & Conciliation Act' 1966 was filed before the Hon'ble High Court of Delhi, which was disposed off by the Hon'ble High Court of Delhi.
Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 7 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011
8. This court conducted an enquiry U/s 202 Cr.P.C, wherein the complainant was further examined and the wife of the complainant namely Smt.Beena Pandey was also examined.
9. The learned counsel for the complainant has very vehemently argued that ingredients of Section 420/468/506 IPC r/w section 120 B IPC are made out in the matter against all the respondents, who are liable to be summoned as "accused" for commission of the aforesaid offences against the complainant.
10. This court is conscious of the law that the summoning of an accused in a criminal case is a serious matter. The criminal liability cannot be set into motion as a matter of course. In case reported as, "1998 (5) SCC 749", titled as, "Pepsi Foods Limited & Anr. V/s Special Judicial Magistrate & Ors.", the Hon'ble Supreme Court of India has been pleased to hold that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. It was further held that the Magistrate has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof and further examine that the aforesaid material and then assess that the sufficiency of the material of 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 Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 8 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011 accused. The 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 offence is prima facie committed by all or any of the accused.
11. On the other hand, there are a series of judgments, again by the Hon'ble Supreme Court of India, some of which are as under:
(i) "(2008) 2 SCC 492", titled as, "S.K Sinha, Chief Enforcement Officer V/s Videocon International Ltd. & Ors.";
(ii) "(2009) 2 SCC 147", titled as, "UP Pollution Control Board V/s Dr.Bhupendra Kumar Modi & Anr." and;
(iii) "AIR 2010 SC 2261", titled as, "Shivjee Singh V/s Nagendra Tiwary & Ors."
wherein, the Hon'ble Supreme Court has consistently followed the law laid down in case reported as, "1976 (3) SCC Page 736", titled as, "Nagawwa V/s Veeranna Shivalingappa Konjalgi". In "Nagawwa's case" (supra), Hon'ble Supreme Court was pleased to hold that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that where a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 9 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011 "undoubted discretion" in the matter and that discretion has to be judiciously exercised by him. It was further held in para 5 of this judgment that once the Magistrate has exercised his discretion, it is not for the High Court or even this court to substitute its own discretion over that of Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
12. In "S.K Sinha's" case (supra), the Hon'ble Supreme Court has been pleased to lay down the following:
xxxxx "22. Chapter XV (Sections 200203) relates to "complaints to Magistrates"
and covers cases before actual commencement of proceedings in a court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry U/s 202 Cr.P.C is to ascertain whether there is prima face case against the accused. It thus, allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry U/s 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused".
xxxxx (Emphasis supplied) Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 10 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011
13. In "UP Pollution Control Board's" case (supra), the Hon'ble Supreme Court relied upon the law laid down in "Nagawwa's case" and has been pleased to hold in para 23 as under:
xxxxx "23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient ground for proceeding against the accused".
xxxxx
14. In "Shivjee Singh's" case (supra), the Hon'ble Supreme Court has been pleased to hold in para 8 as under:
xxxxx "8. The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence, then he is required to issue process."
xxxxx (Emphasis supplied)
15. If the law laid down in the aforesaid judgments is applied to the facts and circumstances of the present case for the purpose of seeing whether the complaint, evidence and the documents on record make out a prima face case to proceed against the accused persons or not, then it would be apparent that there are allegations that promise of a township in NCR region was held out by respondents to the general public, including the complainant. In Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 11 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011 pursuance to the agreement between the parties, the complainant made entire demanded payment with assurance that in the end of year 2007, he will be offered a plot/flat in their township by respondents under their scheme "Sahara Swaran Yojana". It is also apparent that till date, no allotment has been made to the complainant. It is also apparent that even the site for township has also not been disclosed to the complainant, giving rise to the presumption that despite collecting the money from the proposed allottees, the township has not been established. It is also apparent that the complainant had made complete payment as far back as 29.05.2004, when the last instalment was paid and yet after more than six years, he has not got the proposed unit, whereas he was induced to make payment on the pretext that by December' 2007 the allotment of unit in NCR township would start.
16. There are further allegations that when the complainant approached this court and invoked criminal proceedings against the repondents, they used all possible measures to thwart this litigation; firstly by intimidating the complainant and secondly by sending him the cheque of amount without he having asked for the same and thereafter, invoking the arbitration clause, knowing fully well that same was for civil litigation and not criminal litigation. The complainant in his evidence has stated that Rs. 1,00,000/ each from approximately 25,000 people from NCR region were collected by the respondents and they might have diverted that amount towards their other project(s), leaving the applicants of NCR region high and Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 12 of 13 CC No.: 337/1 ("Neeraj Pandey V/s Sahara India & Ors.") Date of Order: 24.01.2011 dry. It is also apparent that false promises were held out to the general public through brochures/booklets by respondents, which prima facie amounts to forging the documents.
17. In my opinion, there is prima facie enough material on record to proceed against the respondents for offences punishable U/s 420/468/506 IPC r/w section 120 B IPC. The aforesaid offences are warrant trial offences. Accordingly, issue B/Ws in the sum of Rs.10,000/ each against all the respondents on filing of PF/sufficient copies of the complaint for 09.02.2011.
Announced in the open court (Vinod Yadav)
on 24.01.2011 Chief Metropolitan Magistrate:
Delhi
Complaint U/s 420/468 r/w 34/120 B IPC ("Summoning Order") Page 13 of 13