Delhi District Court
M/S Advance India Projects Ltd (Aipl) vs Dr. Amit Mehta on 21 October, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-5, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 21 of 2020
CNR No. DLSE01-000179-2020
IN THE MATTER OF:
1. M/s Advance India Projects Ltd (AIPL),
Through its M.D./Director/AS,
At the Master Piece, Gold Course Road,
Sector-54, Gurugram, Haryana
2. M/s Haamid Read Estates Pvt Ltd.,
Through its M.D./Director/AS,
B-232, 3rd Floor, Okhla Industrial Area,
New Delhi-28
.......Revisionists
Versus
1. Dr. Amit Mehta,
R/o H-105, Shivaji Park,
Punjabi Bagh (West), New Delhi
2. Sh. Gaurav Behl,
ROI Consulting, 10-A, Pashim Marg,
DLF Phase-I, Gurgaon, Haryan-122002
........Respondents
Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 1 of 8
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.10.21
14:22:00 +0530
Instituted on : 10.01.2020
Reserved on : 07.10.2021
Pronounced on : 21.10.2021
JUDGMENT
1. By way of the instant revision, revisionists take exception to the order dated 17.10.2019 whereby they were summoned to face trial for the offence punishable under section 406/420 IPC in case bearing Cr. Case No. 8003/2018 titled as State Vs Closure in case FIR No.205/2017, PS Okhla Industrial Area, by Ld. Metropolitan Magistrate-02, South East District, Saket Court, New Delhi.
2. Brief facts as noted by Ld Trial Court in the impugned order are not in dispute and same are being reproduced for the sake of convenience :-
"1. In brief, facts of the case are that an application u/s 156(3) CrPC was moved by the complainant wherein he has stated that he was approached by one Gaurav Behl, owner of ROI, in the capacity of broker to invest in a 2BHK flat in the project 'The Peaceful Homes' in sector 40A, Gurgaon, launched by AIPL. It is further stated that he was induced to invest of Rs.17.55 laks in AIPL with various assurances in respect of 2BHK that he had got booked with them but no publication form was got filled by him despite repeated requests.
It is further stated that on 04.10.2012, he received a letter from AIPL informing him that the said project which was to be developed by AIPL shall now be developed by M/s Haamid Real Estates Pvt Ltd and they had transferred his investment of Rs.17.55 lacs to M/s Haamid Real Estates Pvt Ltd with immediate effect with directions that all further payments form his side in respect of the said flat shall now be made in their account.
It is further stated that despite repeated requests, no buyer-seller Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 2 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.21 14:22:11 +0530 agreement has been sent to him for his signatures by the accused persons. It is further stated that he was promised that the said project was escalation free but when a draft copy of the builder buyers agreement was shown in their office, the same had escalation clause at the whims and fancies of the builders, the accused persons.
It is further stated that on 24.09.2013, he submitted a request for cancellation of the said investment stating therein that as per the oral agreement and assurances, the said project was to be launched in December 2012 but was not even the terms and conditions termed out to be different and peaceful for any investor. It is further stated that specifications of the project have been replaced/changed by some unknown contractors, the double glazing feature that was offered at that time of booking has been totally out of the said project. It is further stated that he was forced to continue with the said project but he requested to cancel the booking and refund the entire amount of Rs.17.55 lacs with interest immediately but no reply was received from the aforesaid accused persons.
It is further stated that on 21.01.2014, complainant was called over for a meeting by the accused persons and he was assured that pending his request for cancellation, they shall be refunded his amount within five to six weeks. It is further stated that accused persons continued sending demand letters dated 21.04.2014, followed by 12.05.2014 for mala fied and ulterior reasons. It is further stated that instead of doing the same, accused persons have resorted the pressure tactics by serving demand letters and threatening to charge 18 per cent interest on delayed payment."
3. Record reveals that the FIR in the instant case was registered pursuant to directions dated 05.05.2017 of Ld Magistrate. In compliance thereof, FIR No.205/2017 was registered against the accused persons/revisionists. After conclusion of investigation, a closure report came to be filed by Investigating Agency. Respondents chose to file protest petition against the closure report.
4. Vide impugned order, Ld Magistrate while declining to accept the Closure Report, took cognizance and summoned the revisionists with the following pertinent observations :-
Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 3 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.21 14:22:20 +0530 " 8. Considering the abovesaid facts and circumstances that accused has transferred the investment of Rs.17.55 lakhs of the complainant with Haamid Real Estate Pvt Ltd without the consent of complainant and further did not execute any builder buyer agreement with the complainant and further despite the letter dated 24.05.2013 by the complainant did not respond to the same appropriately, prima facie goes to show the accused herein has committed the offence of cheating as well as criminal breach of trust. Further, this court is of the view that any detailed discussion upon the facts of the case at this stage shall effect the final outcome of the case. In view of the same, the closure report so filed by the IO is not accepted and prima facie it appears that accused persons have committed offence of cheating as well as criminal breach of trust. In view of the same, cognizance against the accused persons is taken for the offence under Section 406/420 IPC. Accordingly, accused persons be summoned for the offence punishable under section 406/420 IPC for 16.12.2019."
5. The revisionist is aggrieved with the said order of the Ld. Trial Court and assailed the impugned order on various grounds which can be summarized as under :-
(i) That Ld Trial Court wrongly considered that revisionist no.1 transferred the investment of respondent no.1 to revisionist no.2 without the consent of respondent no.1 as latter had made no objection to said transfer;
(ii) That Ld Trial Court failed to consider the letter dated 24.09.2013 issued by respondent no.1 to the revisionists which shows that respondent no.1 has accepted the transfer of the investment to the revisionist no.2;
(iii) That respondent no.1 has nowhere raised any objection regarding transfer of the investment;
(iv) That Ld Trial Court while considering that revisionists have not executed any builder-buyer agreement, did not consider the fact that respondent no.1 has not cleared the outstanding dues and without clearance of all the dues, the builder-buyer agreement cannot be executed;
(v) That the dispute between the parties is of civil/commercial nature and no criminal liability can be fastened against the Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 4 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.21 14:22:29 +0530 revisionists;
(vi) That Ld Trial Court failed to consider the facts of the complaint which does not disclose commission of offence u/s 420/406 IPC;
6. None appeared on behalf of parties. Vide order dated 07.10.2021, the matter was fixed for orders by this court observing that material on record would suffice for just disposal of instant revision.
7. I have perused the record.
8. All the grounds as raised in the instant revision relate to disputed questions of fact. The court has also been called upon to evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the respondent has been questioned and false implication has been pleaded.
9. The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
10. Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 5 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.21 14:22:39 +0530 evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430, (2) Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker, AIR 1960 SC 1113 and (3) Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 may be usefully referred to in this regard.
11. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
12. The grounds taken in the instant petition call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the grounds taken on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore, cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to interfere with the impugned order.
13. It is evident from the impugned order that Ld Magistrate gave detailed reasons while declining to accept the Closure Report and choosing to summoned the revisionists and therefore, this court, while Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 6 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.21 14:22:50 +0530 exercising the power of revisional jurisdiction, cannot substitute its own opinion with the opinion of the Ld. Magistrate. Reliance is placed upon judgment of Hon'ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed as under :
"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court.The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."
14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."
14. Further, Hon'ble Delhi High Court in case titled as Taron Mohan Vs State & Anr, 2021 SCC OnLine Del 312, has observed as under :-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 7 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.10.21 14:23:12 +0530 of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
15. It is evident from record, that Ld Magistrate has passed the impugned order after considering all the relevant factors and this court can not interfere with rightful exercise of jurisdiction vested in the Ld Magistrate. There is nothing on record to suggest that the impugned order suffers from any patent illegality or jurisdictional error.
16. Accordingly, this court finds no valid reasons to interfere in the order dated 17.10.2019. The revision petition is accordingly dismissed.
17. Copy of this judgment be sent to Ld. Trial court.
18. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.10.21 14:23:32 +0530 Announced in the open (ANUJ AGRAWAL) Court on 21st October '2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 21 of 2020 M/s Advance India Projects Ltd (AIPL) Vs Dr Amit Mehta Page No. 8 of 8