Delhi District Court
M/S Rps Infrastructure Ltd vs State/Nct Of Delhi on 22 July, 2009
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IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
PATIALA HOUSE COURT
Criminal Revision No. 224/09
M/s RPS Infrastructure Ltd.,
Having its Registered office at,
st
A193, 1 Floor, Okhla Industrial Area,
PhaseI, New Delhi,
Through it Magager Legal & Authorised Representative
Mr. Shailendra Nangia ...........Petitioner
Versus
State/NCT of Delhi. ........ Respondents
Date of Institution : 05/06/09
Date when the arguments
were heard : 22/07/09
Date of order : 22/07/09
ORDER:
This revision petition is filed against the order dated 08/05/09 2 passed by learned Additional Chief Metropolitan MagistrateIII, South District wherein the direction was given to the DCP, EOW Cell to look into the matter, to investigate and register the FIR under Section 156 (3) CrPC . It was also clarified by learned Additional Chief Metropolitan MagistrateIII that the investigating agency should not be swayed by the fact that the complaint is filed by the complainant and any offence committed by the complainant may also be investigated.
I have heard learned Counsel for the petitioner/complainant and Ld. Additional Public Prosecutor have gone through the record of the case.
The learned Counsel for the petitioner has argued that since the impugned order was passed in the absence of the accused persons mentioned in the complaint filed before learned Additional Chief Metropolitan MagistrateIII, there is no need for making the accused persons party or giving them notice of Revision Petition. So the Revision Petition will be decided by hearing petitioner alone. In Somu v. State 1985 Cri L J. 1309 (Mad), the Madras High Court has observed as 3 follows:
"2. I have heard learned counsel for both sides. It is common ground that the criminal complaint preferred by the second respondent was dismissed by the trial Court under Section 203 Cr.P.C. In other words, till the process is issued by the trial court, the petitioners do not get the status of the accused. Consequently, they have no right of audience before the revisional authority. The proviso under Section 398 Cr.P.C. merely states that no Court shall make any direction under this section for enquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause. But that contingency does not arise in this case as this is not a case of discharge by the trial court.
3. In this connection learned counsel for the second respondent drew my attention to a few rulings of our High Court on this point. In M. Jalaluddin v. Syed Ibrahim 1978 Mad LW (Crl) 178: (1979 Cri LJ NOC 68) the learned Judge has held that the accused has no locus standi to appear unless the process under section 204 Cr.P.C. is issued to him. An earlier case reported in Ramabhadra Odayar v. Emperor AIR 1928 Mad 1198 : (1928 Cri LJ 1059) is also produced before me and it clearly lays down that the accused persons have no locus standi to appear for an enquiry under Chapter 16 of the Code and it even went to the extent of stating that the sessions Judge's action in issuing notice to the accused was improper and even undesirable."
In Gurdeep Singh v. State of Haryana 2001 Cri L J 2378 (P&H), it has further been observed as follows:
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"16. In the present case, as referred to above, the complaint filed by complainant was dismissed for want of prosecution even before the accused could be summoned. Aggrieved against the said order passed by the Magistrate the complainant had filed revision petition before the Sessions Judge. The learned Sessions Judge set aside the order of the learned Magistrate vide which the complaint was dismissed for want of prosecution and the case was sent back to the learned Magistrate for proceeding further in the matter in accordance with law. By no stretch of imagination, in my opinion, the accused can seek the setting aside of the order passed by the Sessions Judge on the ground that the said order was passed by the Sessions Judge without issuing notice to the accused. As referred to above, the accused petitioner cannot take benefit of provisions of Section 401(2), Cr.P.C. as it could not be said that any order to the prejudice or against the petitioner had been passed by the learned Sessions Judge. On the other hand, the order vide which the complaint was dismissed for want of prosecution was set aside by the learned Sessions Judge. If the case of the accused petitioner was not covered under Sec. 401 (2), Cr. P.C., it was not at all necessary for the learned Sessions Judge to have heard the accused petitioner while setting aside the order of the learned Magistrate in view of the provisions of Section 403, Cr. P.C. Even otherwise in view of the proviso to Section 398, Cr. P.C. only the person who was discharged had a right to be heard before the order of discahrge could be set aside in revision by the Court of Sessions in exercise of its revisional jurisdiction. In this view of the matter, in my opinion, the contention of the learned counsel for the accused petitioner that the order passed by the learned Sessions Judge was liable to be set aside only on the ground that the accused petitioner was not heard, could not be 5 sustained."
In view of Somu's case (supra) and Gurdeep Singh's case (supra), I agree with learned Counsel for the petitioner that there is no need for making the accused persons mentioned in the complaint as party or to issue notice of the Revision Petition to them. The grievance of the petitioner/complainant is that learned Additional Chief Metropolitan MagistrateIII has observed that a huge amount of Rs. 21 Crores has been paid to M/s Achiever Builders Pvt. Ltd. and it was also observed that a sum of Rs. 37.28 Crores apart from Rs. 21 Crores has given to M/s Achiever Builders Pvt. Ltd.
The above observation is against the record as in the complaint filed by the petitioner/complainant before learned Additional Chief Metropolitan MagistrateIII in para No. 12 it is stated that a sum of Rs. 21 Cores was given by complainant to accused persons and another amount of Rs. 37.5 Crore was given to M/s Achiever Builderss Pvt. Ltd. so observation of land Additional Chief Metropolitan Magistrate is contrary to 6 the facts mentioned in the para 12 of the complaint.
It is also argued that learned Additional Chief Metropolitan MagistrateIII has observed that accused persons had failed to deliver the possession of land to the complainant owing to which complainant was unable to start the project and deliver the plots/flats to the Unit holders. Ld. Counsel for the petitioner/complainant has argued that complainant was given possession of the land in the Colloboration Agreement dated 18/06/08, between complainant and accused persons vide clause No. 16. It is argued that in fact no such argument was made by the learned Counsel for the petitioner/complainant before learned Additional Chief Metropolitan MagistrateIII and therefore, the said observation in the impugned order dated 08/05/09 is irregular and incorrect.
The next argument is that observation in the impugned order that the complainant had not stated as to how they have been cheated by accused persons is not correct as in para No. 15 on page No. 3 of the complaint, running page No.11 of the judicial file, filed before the learned 7 Additional Chief Metropolitan MagistrateIII, the manner in which the accused persons have been cheated has been specified.
The next objection to the impugned order is that the observation of learned Additional Chief Metropolitan MagistrateIII that the complainant has cheated the 700 unit holders is wrong. It is argued that there is no complaint filed before learned Additional Chief Metropolitan MagistrateIII by any unit holder who is observed to have been cheated by the complainant so observation is based upon conjectures and surmises and has been made due to misunderstanding and wrong appreciation of the facts.
The next point of controversy raised is that in the impugned order it has been held that complainant has sold out the units without clearance from the government and without having the possession of land and thus rather it seems that it is the complainant herein who has cheated the 700 unit holders. The argument is that the observation of learned Additional Chief Metropolitan MagistrateIII is not correct as the clause No. 8 16 of the collaboration agreement dated 18/06/08, page No. 10, running page No. 114 of the judicial file clearly shows that the accused persons had delivered the possession of the land and the licence bearing No. 124 of 2008. Learned Counsel for the petitioner/complainant has pointed out that the copy of letter dated 06/10/08 by District Town Planner (Hq) GK, For Director, Town and Country Planning, Haryana, Chandigarh placed alongwith the complaint was filed in the judicial file in the Court of learned Additional Chief Metropolitan MagistrateIII which shows that the licence No. 124 of 08 for Group Housing Colony which was earlier in the name of M/s Sudarshan Buildtech Pvt. Ltd. and after scrutinizing the application/request of complainant it was accepted as new developer for development of the Group Housing Colony in question. It is argued that the complainant has only booked the flats and not sold them to the innocent purchasers. Hence, the observations of learned Additional Chief Metropolitan MagistrateIII are factually wrong.
The next contention is that observations of learned Additional 9 Chief Metropolitan MagistrateIII that in some of the advertisements it is even held out to the customers that the construction is in full swing and the sample flats are ready. Admittedly when the complainant was not in possession of land then how can they say that construction is in full swing and how can they make representation that sample flats are ready, in advertisement? These observations are factually incorrect and against the materials on record and the collaboration agreement dated 18/06/08. It is also argued that there is no advertisement given by the complainant representing the construction of the project in question was not failed and the sample flats were ready. It is also stated that such advertisements were given by the property dealers with regard to another project of petitioner/complainant namely 'SAVANA' where the sample flats are already ready.
I have carefully considered the above arguments addressed and the Trial Court Record.
The contention that there is wrong observation in the impugned 10 order that the sum of Rs. 21 Crores was paid to M/s Achiever Builders Pvt. Ltd. and an additional sum of Rs. 37.28 Crores was also paid to M/s Achiever Builders Pvt. Ltd. by the complainant as well as they agreed on the facts stated in para No.12 of the complaint, being factually wrong these observations are modified in terms of facts alleged para No.12 of the complaint filed by the petitioner/complainant. Regarding the arguments addressed before learned Additional Chief Metropolitan MagistrateIII that the possession of the land was not handed over or the agreement dated 18/06/08 shows that possession was not delivered to the petitioner/complainant and other arguments addressed there cannot be any finding by this court as to what was argued before learned Additional Chief Metropolitan MagistrateIII and who is in possession of land or whether possession in fact was given to the petitioner/complainant or not. The settled legal position is that the investigation is to be done by the police in fair and impartial manner and neither Court nor the accused nor any other interested person can interfere in investigation at any stage. The 11 only power given by the law to the Magistracy is to initiate the investigation in cognizable offence by directing the police to investigate under Section 156 (3) CrPC and for such an order the detailed appreciation of facts and findings are not required. The findings of learned Additional Chief Metropolitan MagistrateIII are only based on prima facie view of the matter and should not, therefore, prejudice the investigation of the case directed by her and the investigating police shall also take the findings of learned Additional Chief Metropolitan MagistrateIII as direction to record FIR and investigate the matter impartially without treating the findings and observations as to possession of land in question or other facts as already decided by learned Additional Chief Metropolitan MagistrateIII. The police shall investigate the matter independently and shall arrive at its own conclusion after fair and impartial investigation to determine if any offence alleged in complaint or otherwise is committed and if so when including petitioner/complainant and accused persons mentioned in the complaint are the offenders.
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The Revision Petition is therefore, allowed accordingly, in terms of the above observations. The trial court record be returned alongwith copy of this order. The order be sent to server (www.delhidistrictcourts.nic.in). The revision file be consigned to record room.
Announced in the open court on 22.07.09 ( S K Sarvaria ) Addl Sessions Judge01/South Patiala House Court