Delhi District Court
Vijay Dixit vs State on 18 July, 2017
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET COURTS:
NEW DELHI
Criminal Revision No. 21/17
In CR No. 9/17
Vijay Dixit
S/o Chandan Lal Dixit,
R/o B109, Defence Colony,
New Delhi. (Presently in Tihar Jail) ...... Petitioner
Versus
State ...... Respondent
Instituted on : 10.01.2017
Argued on : 18.07.2017.
Decided on : 18.07.2017.
ORDER
1. Feeling aggrieved from the order dated 20.10.2016 passed by the court of Sh. Satish Kumar Arora, the then Ld. CMM, South East District, Saket Courts, New Delhi in case FIR No. 239/08, PS - EOW in State Vs Vijay Dixit, vide which the then Ld. CMM was pleased to direct framing of charges for the offences under section 409/420/174A IPC against the petitioner/revisionist, the petitioner/revisionist had CR No. 21/17 Vijay Dixit Vs State Page No. 1 of 6 challenged the same on the following amongst other grounds: 1.1 That no offence under section 420 IPC was made out against the petitioner/revisionist, as he had at no point of time dishonestly or fraudulently induced the complainant to part with the property, rather the parties had mutually entered into an agreement. It has also been stated that even the then Ld. CMM had passed the order in haste and failed to apply his judicial mind and thus, went ahead in pronouncing an illegal and perverse order without considering the facts and circumstances of the case. The then Ld. CMM is further stated to have not considered the report of the police in the chargesheet regarding enquiries held by them from L&DO Department, Delhi and the then Ld. CMM had further failed to consider the facts that even the investigating agency in the charge sheet had mentioned about the payment of Rs. 42.4 Lakhs received by the complainant namely Dr. Manjula Krippendorf from the petitioner. Hence, it was purely a commercial transaction which was given a colour of the criminal offence by way of a cooked up story. Hence, no criminality could have been attached to the acts of the petitioner/revisionist. CR No. 21/17 Vijay Dixit Vs State Page No. 2 of 6 1.2 Further it has been argued and contended on behalf of the revisionist/petitioner that since the liability had arisen out of an agreement/contract which was purely commercial in nature, hence, the offence under section 409 IPC would not get attracted per se and the then Ld. CMM had not bothered to appreciate these arguments and contentions of the petitioner/revisionist.
1.3 It has also been submitted by Sh. Purvesh Bhuttan, Ld. counsel appearing for the petitioner/revisionist that even the investigating agency itself had filed the charge sheet against the petitioner/revisionist for the offence under section 420 IPC alone r.w. section 174A IPC.
2. The brief facts that had necessitated filing of the present revision are succinctly given as under: 2.1 As per the allegations setforth in the complaint, petitioner/revisionist is a builder by profession who was approached by the complainant for development of her property and an agreement in this regard was also executed and arrived at between the parties and an amount of Rs. 42.4 Lakhs was also given by the CR No. 21/17 Vijay Dixit Vs State Page No. 3 of 6 petitioner/revisionist to the complainant. However, before the project could have been completed, the complainant in this case was stated to have acquired German Citizenship and therefore, as per her version, all the documents including the GPA, SPA etc. executed by her in her capacity of an Indian Citizen became null and void and hence, petitioner/revisionist had no authority to carry on any further activities on the strength of those documents. However, since he had not stopped himself from representing himself as an attorney of the complainant hence, the complainant was cheated.
3. I have heard Sh. Purvesh Bhuttan and substitute Ld. Addl. PP for the state and have perused the order available on record.
4. Before coming to the merits of the present appeal, it shall be worthwhile to mention here that it is the settled preposition of law that in order to constitute an offence of breach of trust, the existence of "trust" between the parties is the most essential ingredient and unless and until parties stand in a fiduciary relationship qua each other, existence of trust cannot be imagined or inferred from the execution of any agreement involving consideration arrived between them. Once CR No. 21/17 Vijay Dixit Vs State Page No. 4 of 6 a commercial contract has been executed between the parties, even by any stretch of imagination, it cannot be presumed that there was any entrustment of property between them. Furthermore, there has to be a demand for return of the entrusted property and a denial on the part of accused to make out a case of offence of criminal breach of trust. However, the facts of the present case are crystal clear and a handing over of property in compliance with the terms and conditions of an agreement arrived between the parties would not amount to an entrustment as provided in the law.
5. Hence, I find that the then Ld. CMM was not justified in framing of the charges for the offence under section 409 IPC against the petitioner/revisionist and prima facie only an offence under section 420 IPC r.w. Section 174A IPC is made out in the given facts and circumstances of this case.
6. Accordingly, the present revision petition is partly allowed and impugned order qua the offence under section 409 IPC is set aside and the remaining order shall remain intact and petitioner/revisionist shall face the trial for the offence under section 420 IPC and 174A IPC CR No. 21/17 Vijay Dixit Vs State Page No. 5 of 6 before the Ld. Trial Court.
7. TCR, if any, alongwith copy of the order be sent back to the Ld. Trial Court for necessary perusal and compliance.
8. Revision file be consigned to record room after completion of all other necessary formalities in this regard. Announced in the open court on 18th July, 2017 ( LOKESH KUMAR SHARMA ) ASJ04 & Spl. Judge (NDPS) South East, New Delhi.
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