Delhi District Court
Rajeev Kapoor vs Manoj Kumar on 4 July, 2023
-1-
IN THE COURT OF MS. SHEFALI SHARMA,
ADDITTIONAL SESSIONS JUDGE-02, NORTH
DISTRICT, ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 100/2021
Rajeev Kapoor
S/o Late Sh. U.N. Kapoor
R/o CA-58C, Shalimar Bagh,
New Delhi - 110088.
....Revisionist
Versus
1. Manoj Kumar
S/o Sh. Ram Lal
R/o H.No. 2049, Outram Lines,
Delhi - 110009.
Also at:
492, 3rd Floor, Bhai Parmanand
Colony, Kingsway Camp,
Delhi - 110009.
2. Dilip Kumar
Partner of M/s Shiva Properties
At 252, Bhai Parmanand Colony,
Delhi - 110009.
3. SHO
P.S. Mukherjee Nagar,
Delhi - 110009.
...Respondents
Date of Institution : 22.10.2021
Conclusion of arguments : 04.07.2023
Date of Order : 04.07.2023
ORDER
CR No. 100/2021
Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 1 of 8 -2-
1. Present revision petition is preferred by the revisionist against the order dated 24.01.2020 (hereinafter referred to as impugned order) passed by ld. ACMM, North whereby he has discharged the accused persons, respondent no.1 & 2 herein in complaint case No. 3942/2016 titled as Rajeev Kapoor Vs. Manoj Kumar & Ors.
2. It is submitted by Ld. Counsel for the revisionist that the ld. ACMM without appreciating facts of the case has wrongly discharged the respondents/accused persons in the above mentioned complaint case.
3. Brief facts of the case are that the complainant/ revisionist herein was searching for purchasing a floor in Bhai Parmanand Colony. He met one Dilip Kumar, Property Dealer who introduced him to co-accused Manoj Kumar and he represented himself to be the owner of propety bearing no. 492, 3rd Floor, Bhai Parmanand Colony and bayana receipt Ex.CW1/1 was issued by Manoj Kumar. Complainant paid Rs.1 lakh in adance and total agreement provided for the sale amount of Rs.11,10,000/- to be completed within 70 days of the execution of receipt/bayana dated 15.11.2005. On 24.01.2006 the time period for execution was about to be over when before that on 17.01.2006 letter was sent by complainant to complete the transaction. However, the alleged owner Manoj Kumar did not visit the Sub Registrar office nor did Dilip Kumar. Thereafter, the complainant inquired from the neighbourhood and he came to CR No. 100/2021 Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 2 of 8 -3- know that the property does not belong to Manoj Kumar and then only it dwaned upon the complainant that he has been cheated. On these allegations the complainant states that the accused persons are liable to face trial under Section 420 IPC.
4. It was argued on behalf of the revisionist that ld. Trial court has failed to appreciate that at the stage of charge, meticulous examination of the evidence is not required and only prima facie case is to be seen and respondent/accused has wrongly been discharged vide orders dated 24.01.2020.
5. It was argued by ld. Counsel for the respondent on the other hand that ld. Trial court after giving a thoughtful consideration of the material on record has rightfully discharged the accused persons and accused persons have nothing to do with the alleged offence.
6. Heard. Perused the record.
7. As regards the powers of Revision U/s 397 Cr.P.C the Ho'ble Supre Court in the latest judgment dated 17.02.2022 in the case of Directorate of enforcement Vs. Gagandeep Singh 2022 SCC online Delhi 514 has reiterated the law that:
"the provision of revision in Cr.P.C. suggests that the court shall limit itself to the findings sentence or order pass by the subordinate court, against which the revisionists is seeking relief before the court concerned and shall not go beyond the analysis and observations made by the subordinate court."CR No. 100/2021
Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 3 of 8 -4- Section 397 Cr.P.C. unequivocally states that the High Court and Sessions Courts which is exercising its revisional jurisdiction shall apprise itself solely of the question of correctness, legality and properity of the order of the subordinate court.
The Hon'ble Supreme Court in Directorate of enforcement Vs. Gagandeep Singh (supra) again emphasised that:
"in its revisional jurisdiction court will not proceed into the enquiry of the records, documents and other evidence in consideration before the Trial Court but shall constarin itself to the findings of the lower court in the impuged order and to the question whether there is any patent, illegality, error apparant on record or incorectness."
8. For the offence under cheating, it is settled that that mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention right from the inception which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed right. Reliance is placed upon M N G Bharateesh Reddy Vs. Ramesh Ranganathan and Another Criminal Appeal No. 1273/2022 decided on 18.08.2022.
CR No. 100/2021Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 4 of 8 -5- In Dalip Kaur Vs. Jagnar Singh a two bench of Hon'ble Supreme Court held that a dispute arising out of a breach of contract would not amount to an offence of cheating under Section 415 and 420. The relevant extract is as follows:
"9. The ingredient of Section 420 of the Indian Penal Code are:
(i) Deception of any persons;
(ii) Fraudulently of dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."
10. The High Cout, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-
refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code."
9. It was argued by the revisionist that charge was actually framed vide orders dated 14.08.2015 by the Ld. Trial Court. However, it is pertinent to mention that vide orders dated 19.07.2018 passed by Hon'ble High Court of Delhi, the said order and the proceedings thereafter were held to be vitiated and set at naught. Thereafter, again in pre charge evidence, the complainant had been examined and cross examined at length by the ld.
CR No. 100/2021Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 5 of 8 -6- Counsel for accused persons. I have carefully gone through the cross-examination of the complainant/revisioinst recorded on various dates by the ld. Trial court. In his cross examination dated 18.02.2019, he admitted that the alleged agreement had happened in the month of November 2005 but for a period of 03 years i.e. till 2008 the complainant/ revisionist did not file any police complaint nor filed any civil suit for recovery of alleged bayana amount of Rs.1 lakh.
As per the receipt dated 15.11.2005 Ex.CW1/1 the date of execution of sale deed was fixed within 70 days. I have carefully perused the said receipt, according to which it was mutually agreed that if the purchaser (revisionist herein) refuses to honour the deal, the bayana agreement shall forfeited and if the seller (accused) refuses to honour the deal he would pay the double the amount of the bayana agreement. It was the contention of the revisionist that accused failed to show the original papers of the property and that he gathered information from the neighbours that actually the accused was not the owner. No such neighbour who may have given this information was examined. Despite due opportunity, the complainant in his pre charge evidence failed to back his oral testimony with any documentary evidence to show that accused was not the owner. In the present case complainant could very well have filed an application under Section 91 Cr.P.C. for summoning relevant record from Sub Registrar office to show that accused Manoj Kumar is indeed nor the owner of the property purported to be sold and some other person is the actual owner as might have CR No. 100/2021 Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 6 of 8 -7- been revealed from the documents. However, the complainant did not choose to do so for reasons best known to him.
Further, I have also perused the Action Taken Report which has been filed on behalf of concerned SHO, wherein it is reported that an inquiry was conducted which revealed that the Manoj Kumar took token money from the complainant on 15.11.2005 in respect of property no. 492, 3rd Floor, Bhai Parmanand Colony, Delhi, of Rs.1,00,000/- after showing a receipt of token money. The receipt was related to the token money of Rs.1,00,000/- which was paid by Manoj Kumar to Smt. Seema Handa regarding above mentioned property on 16.10.2005. The token money was given to Manoj Kumar by Rajeev Kumar through the Shiva Property Dealer after confirming that the deal is being done on token money which was paid by Manoj Kumar. Manoj Kumar paid another Rs.2,00,000/- to Smt. Seema Handa on 29.11.2005 regarding above mentioned property. On 29.11.2005 Smt. Seema Handa and Manoj Kumar entered in an agreement after destroying above mentioned receipt. Manoj Kumar paid balance amount to Smt. Seema Handa on 19.01.2006 and got registered the above mentioned property in the name of Smt. Rajkumari (wife of Manoj Kumar). Manoj Kumar reached office of Sub Registrar, Sub Distt. N/W Delhi on fixed date of deal on 24.01.2006 but Rajeev Kapoor neither came nor given any information. Manoj Kumar many times told Rajeev Kapoor to buy the above mentioned property but he did not answer. After passage of a long time the token money which was given by the Rajeev CR No. 100/2021 Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 7 of 8 -8- Kapoor was forfeited by Manoj Kumar as per the agreement between the parties. It is reported that the reason behind not turning up by Rajeev Kapoor was the sealing of IIIrd Floor by the government due to which the rate of the property was much decreased. The complainant did not give any complaint or legal notice from 2005 to 2008. It was reported that there is no evidence of cheating and forging/fabricating documents as is reported after detailed inquiry.
10. In the lights of case laws as discussed above, there appears to be no element of cheating on the part of the accused since inception and at most it can be a failure of property transaction/sale purchase for which the revisionist had other appropriate remedies, subject to the law of limitation to recover the bayana amount paid by him or sue for specific performance of the agreement.
11. In the light of aforesaid observations, there is no infirmity in the order dated 24.01.2020 and the same is upheld, accordingly. The petition being devoid of any merits is dismissed.
12. TCR, if any be sent back to the concerned court with copy of this order.
13. Revision file be consigned to Record Room.
Pronounced in open (SHEFALI SHARMA)
Court on 04.07.2023 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
ROHINI COURTS, DELHI
CR No. 100/2021
Rajeev Kapoor Vs. Manoj Kumar & Ors. Page no. 8 of 8