Delhi District Court
Splendor Landbase Ltd vs State on 10 January, 2023
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE03, SOUTH EAST
SAKET COURTS, NEW DELHI
Criminal Revision No. 242/2019
CNR No. DLSE010029512019
SPLENDOR LANDBASE LTD.
Unit Nos. 501511, Splendor Forum,
03, Jasola District Centre,
New Delhi110025.
.... Petitioner
VERSUS
1. STATE
Through Public Prosecutor
Saket District Court,
New Delhi.
2. MACHINE TOOLS (INDIA) LIMITED
284, Sultan SadanII,
Westend Marg, Lane No. 3,
Saidulajab, Mehrauli,
(Near Saket Metro Station)
New Delhi110030.
3. MR. ASHOK R. GUPTA
Chairman Cum Managing Director
Machine Tools (India) Limited
284, Sultan SadanII,
CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....1 of 25
Westend Marg, Lane No. 3,
Saidulajab, Mehrauli,
(Near Saket Metro Station),
New Delhi110030.
4. MRS. SADHNA SHARMA
Manager
Machine Tools (India) Limited,
284, Sultan SadanII,
Westend Marg, Lane No. 3,
Saidulajab, Mehrauli,
(Near Saket Metro Station),
New Delhi110030.
.... Respondents
Date of institution : 27.04.2019
Date of reserving the order : 03.12.2022
Date of pronouncement : 10.01.2023
JUDGMENT
1. This is criminal revision u/s 397 of the Code of the Criminal Procedure, 1973 r/w Section 399 of the Code of Criminal Procedure, 1973 preferred by complainant/petitioner against impugned order dated 28.01.2019 passed by Court of Sh. Gagandeep Jindal, the then Ld. MM09, South East, Delhi CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....2 of 25 in Criminal Complaint No. 9176/2018 in case titled as Splendor Landbase Ltd. Vs. Machine Tools (India) Pvt. Ltd. whereby application of complainant /petitioner u/s 156 (3) Cr.P.C. was dismissed.
2. It is stated in revision petition that petitioner is a reputed company in the field of real estate and is engaged in the development of various real estate projects in NCR, Haryana and Punjab. It is stated that petitioner company has a proven track record in the Real Estate Industry and is credited with having undertaken and successfully completed building projects in the NCR. It is stated that company has over the years built a reputation associated with delivering world class projects in real estate industry and has several satisfied customers.
3. It is stated that respondent No. 1 is a company registered under the Companies Act, 1956 and the respondent No. 2 is its promoter, Chairman and Managing Director and is responsible and liable for the day to day affairs, management and conduct CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....3 of 25 of business of respondent No. 1 company. Respondent No. 3 is the Manager of respondent No. 1 company and is directly concerned with present complaint.
4. That a group company of petitioner namely Splendor Buildwell Pvt. Ltd. having its registered office at Splendor Buildwell Pvt. Ltd. (hereinafter referred to as the 'Developer Company') has developed an IT / ITES Project / Towers under name & style 'Spectrumone' at Sector58, Gurgaon under licence No. 82 of 2010 granted to its group company 'Ishayu Builders & Developers Pvt. Ltd.' (hereinafter referred to as the 'said project') by the Director General, Town & Country Planning, Haryana, Chandigarh and other requisite approvals thereto. The development and other rights of the said project were with petitioner company till 15.10.2012. Thereafter, its group company, Splendor Buildwell Pvt. Ltd. had succeeded to all rights, interests and obligations of petitioner company in the said project.
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5. It is stated that respondent No. 1 company, aware of the market reputation enjoyed by petitioner company, approached it through a property broker / underwriter "Star India Projects"
having office at 76/1, R.K. Sadan Building, 3rd floor, Sant Nagar, East of Kailash, New Delhi110065 and Gurgaon office at Vipul Trade Center, 302, 3rd floor, Sector48, Sohna Road, Gurgaon had submitted an application in May 2012 for provisional registration / booking of space admeasuring 6465 sq. ft. of super area on the 7th floor, which was later shifted to the 8th floor in the said IT/ ITES Park project "Spectrumone" at Sector58, Gurgaon (hereinafter referred to as the 'said space') for total basic sale price of Rs. 3,10,32,000/ (Rupees Three Crores Ten Lakhs and Thirty Two Thousand only) and other dues and charges as applicable against the said space. Respondent No.1 company made payment of Rs. 31,00,000/ including service tax on 12.04.2012 vide cheque No. 013229 dated 05.04.2012 and on 18.04.2012 vide cheque No. 013113 CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....5 of 25 dated 13.04.2012 both drawn on Punjab National Bank towards part booking amount of the said space. Respondent No.1 company had made further payment of Rs. 31,99,089/ including service tax on 07.08.2012 vide cheque No. 013779 dated 21.07.2013 against the said space. It is stated that in September, 2012, respondent No. 1 company had submitted another application for booking of space admeasuring 4000 sq. ft. of super area on the 9th floor in the said project for total basic sale price of Rs. 2,12,00,000/ and other dues and charges as applicable against the said space and made payment of Rs. 21,20,000/ on 29.11.2012 vide cheque No. 225863 dated 26.10.2012 drawn on Punjab National Bank towards part booking amount of the said space.
6. It is stated that after applying for booking of the said space, respondent No. 1 company repeatedly defaulted in making payment of outstanding amounts, firstly as per time linked plan and then, as per the revised construction linked CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....6 of 25 payment plan agreed to by respondent No. 1 against both the aforesaid spaces booked by them in the said project since beginning. It is stated that developer company had sent numerous demand letters, reminders, emails, letters and requested respondent No. 1 company to make good their default, however, respondent No. 1 company failed to make good their default. It is stated that developer company was therefore constrained to cancel booking / allotment of the aforesaid spaces in January, 2016.
7. It is stated that as a counter blast to the cancellation notice, respondents in conspiracy with each other committed forgery and made a false document in the name of a Space Buyer Agreement dated 26.07.2012 and filed the same before the Hon'ble High Court of Delhi and as evidence before Ld. Arbitrator appointed by the Hon'ble High Court of Delhi in Arbitration Petition O.M.P. (I) (Comm) 102/2016 filed by respondent No. 1 company under section 9 of the Arbitration CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....7 of 25 and Conciliation Act, 1996.
8. It is stated that abovesaid false Space Buyer Agreement dated 26.07.2017 is alleged to have been signed by Ms. Nirupma Dhawan of Star India Projects, as the Authorized Representative of petitioner company but that Ms. Nirupma Dhawan was neither authorized by petitioner company to sign and / or execute the alleged Space Buyer Agreement dated 26.07.2012 nor has she signed the said false document. Respondents in conspiracy with each other have dishonestly and fraudulently forged signatures of Ms. Nirupma Dhawan in order to make a false document i.e. Space Buyer Agreement dated 26.07.2012.
9. It is stated that in order to find out veracity of the said Space Buyer Agreement dated 26.07.2012, petitioner company sent an email and letter dated 12.04.2017 requesting Ms. Nirupma Dhawan to inform whether she had signed and executed the said alleged Space Buyer Agreement dated CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....8 of 25 26.07.2012, acting as the Authorized Representative of SplenorLandbase Ltd. or not to which Ms. Nirupma Dhawan vide her email dated 24.04.2017 and letter dated 22.04.2017 stated and confirmed that she had never executed any such document. Ms. Nirupma Dhawan further confirmed that accused were well aware that Ms. Nirupma Dhawan represented only Star India projects, which was only marketing the said project. Ms. Nirupma Dhawan in the said email and letter further clarified that Ms. Nirupma Dhawan was acting in her individual capacity and was never the Authorized Representative of Splendor Landbase Ltd. The aforementioned email dated 24.04.2017 and letter dated 22.04.2017 of Ms. Nirupma Dhawan makes it abundantly clear that Ms. Nirupma Dhawan was never the Authorized Representative of Splendor Landbase Ltd. and as such no alleged Space Buyer agreement was executed by her on behalf of petitioner.
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10. It is stated that Hon'ble Justice (Retd.) Sh. Sunil Ambwani, Former Chief Justice, Rajasthan High Court, Sole Arbitrator, appointed by Hon'ble High Court of Delhi under petition filed by respondent No.2 company, after going through pleadings and evidences of both the parties, had passed the award / final order on 10.11.2017 in the said Arbitration proceedings titled "Machine Tools (India) Pvt. Ltd. Vs. Splendor Buildwell Pvt. Ltd. & Anr." (Case Reference No:
DAC/1195/0516) whereby claim of respondent No. 1 company was dismissed. It is stated that Ld. Arbitrator, on page 126128 of the aforesaid Award (while deciding Issue No.1 as stated on page 122), had held that the alleged Space Buyer Agreement dated 26.07.2012 placed on record by respondent No. 2 company is a suspicious document which can not be accepted to have been executed by Splendor Landbase Ltd. / Splendor Buildwell Pvt. Ltd. and the execution of the same has not been proved on record.
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11. It is stated that petitioner filed a complaint dated 29.04.2017 vide DD No. 42B with the police station Sarita Vihar seeking registration of an FIR but to no avail and ultimately, petitioner was constrained to file an application u/s 156 (3) Cr.P.C. before Ld. Trial Court.
12. It is stated that IO filed Action Taken Report dated 05.10.2017 before Ld. Trial Court on 06.10.2017.
13. It is stated that perusal of the abovementioned Action Taken Report dated 05.10.2017 filed by IO would clearly establish that due enquiry was conducted by the police into the said matter and statements of various witnesses were recorded. Perusal of the report would establish the fact that indeed the forgery had taken place.
14. It is stated that from Action Taken Report, it becomes crystal clear that Space Buyers agreement dated 26.07.2012 was fabricated by the respondents and they forged signatures of Ms. Nirupma Dhawan and the said document was used in order to CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....11 of 25 make a fraud claim against petitioner and to cheat petitioner.
15. It is stated that respondents have conspired and forged the alleged document dated 26.07.2012 in order to not only defraud petitioner and the Developer Company but has also filed the said forged document in the judicial proceedings to mislead the same. The respondents on the basis of the false document also filed claims before Ld. Arbitrator in order to derive benefit on the basis of the said document, knowing fully well that the same was fabricated and forged by them. Respondents also produced the document in evidence before Ld. Arbitrator and represented the same to be a genuine document while knowing fully well that no such document was in existence which is also an offence. Therefore the aforementioned acts of respondents clearly demonstrate that respondents had committed criminal conspiracy, forgery, dishonestly making false claim and filing false evidence before Court / Arbitrator, usage of forged document and other offences.
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16. Following grounds have been taken by petitioner to challenge impugned order:
a) Because impugned order passed by Ld. Trial Court is not based on sound principles of law and is arbitrary, illegal and unjust, and observations made are contrary to the facts of the case, therefore, the same is liable to be set aside.
b) Because Ld. Trial Court passed impugned order in a mechanical manner without application of judicial mind and reason.
c) Because Ld. Trial Court erred in not appreciating the case on merits and by ignoring material available on record.
d) Because Ld. Trial Court erred in observing that petitioner is having all evidence and there is no fact / evidence to be collected by the prosecution and as such there is no requirement of investigation by police.
e) Because Ld. Trial Court erred in not observing that there is enough incriminating material against respondents No. 2 to 4 CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....13 of 25 for registration of FIR but local police is not taking appropriate action against respondents No.2 to 4 for the reason best known to them and there is good prima facie case in favour of petitioner and against respondents No. 2 to 4.
f) Because order passed by Ld. Trial Court is based upon presumptions and assumptions, conjectures and surmises; hence being liable to set aside.
g) Because grounds raised above are only illustrative and not exhaustive and petitioner reserves his right to add, vary, amend & propagate other grounds during the course of arguments on petition.
h) Because impugned order suffers from grave illegality as Ld. Trial Court failed to appreciate the fact that the Action Taken Report dated 05.10.2017 duly record that on being contacted by IO during course of enquiry, the alleged executant of the document, Ms. Nirupma Dhawan of M/s. Star India Project duly appeared before IO and on questioning stated that CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....14 of 25 "She was neither the authorized representative of M/s. Splendor Landbase Ltd. nor had signed the said false document (Space Buyer Agreement dated 26.07.2012) at any point of time. She further stated that she had sent a draft copy of Space Buyer Agreement via an email dated 4th and 5th April 2012, where clearly the name of the person authorized to sign the agreement and Board Resolution is blank and that was a draft copy and unsigned. She stated that the signature mentioned on the alleged draft space buyer agreement was not signed by her."
i) Because Ld. Trial Court dismissed application of petitioner on an incorrect notion of law that the case is only under Section 465 IPC as no wrongful loss is being caused to petitioner and same is a non cognizable offence. Pertinent to state here Ld. Trial Court totally ignored that there was a usage of the forged document in the judicial proceedings to cheat petitioner and was used in order to make a fraud claim and as such has committed various cognizable offences. CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....15 of 25
j) Because various cognizable offences of serious nature requiring investigation are made out on the basis of averments as mentioned above. Moreover, impugned order passed by Ld. Trial Court is illegal and incorrect since even on a presumption as per law that Section 465 IPC is non cognizable, Ld. Trial Court failed to apply judicial mind to the fact that there are other offences which respondents have committed such as criminal conspiracy, cheating, usage of forged document, forgery, dishonestly making false claim and filing false evidence before Court/ Arbitrator and other offences u/s 120B,193,209,420,463,464,465,466,468,471 other applicable provisions of the Indian Penal Code, 1860 as amended from time to time.
k) Because Section 156(3) Cr.P.C. though briefly worded, is very wide and it includes all such incidental powers as are necessary for ensuring a proper investigation. More so when the offence alleged includes signature specimen as primary CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....16 of 25 evidence, ultimately it is only the investigation agency which could separate the grain from the chaff and establish the fact as to who had forged the signatures of Ms. Nirupama Dhawan during investigation.
l) Because Ld. Trial Court failed to appreciate the fact that respondents No. 2 to 4 used false document of Space Buyer Agreement as genuine which is a punishable offence u/s 471 IPC. Moreover signatures on the above mentioned space buyer agreement were not made under the authority of Ms. Nirupma Dhawan which clearly points towards the offence of cheating by personation u/s 419 IPC.
m). Because Ld. Trial Court failed to appreciate the fact that the case in hand requires investigation and few aspects can not be established without investigation and if case is dealt as a complaint case. The letter dated 22.04.2017 of Ms. Nirupma Dhawan makes it abundantly clear that Ms. Nirupma Dhawan was never the Authorized Representative of the Splendor CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....17 of 25 Landbase Ltd. and as such no alleged Space Buyer Agreement dated 26.07.2017 was executed by her on behalf of Splendor Landbase Ltd.
n) Because Ld. Trial Court failed to appreciate the fact that as a counter blast to the cancellation notice dated 07.01.2016, respondents No. 2 to 4 in conspiracy with each other committed forgery and made a false document in the name of a space buyer agreement dated 26.07.2012 and filed the same before Hon'ble High Court of Delhi and as evidence before Ld. Arbitrator appointed by Hon'ble High Court of Delhi in Arbitration Petition OMP (I) (Comm) 102/2016 filed by respondent No. 2 company u/s 9 of Arbitration and Conciliation Act, 1996.
17. It is prayed to call TCR, stay the proceedings before Ld. Trial Court till disposal of this petition and set aside impugned order dated 28.01.2019 and issue direction for registration of FIR and to pass any other order which this Court deems fit and proper in the facts and circumstances of the case. CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....18 of 25
18. I have heard arguments addressed by respective counsels and perused record including trial court record and judgments filed on behalf of respondents No. 2 to 4.
19. Perusal of action taken report filed by PSI Dushyant Panwar before Ld. Trial Court shows that it has been prayed in the same to forward complaint filed by complainant to PS Tilak Marg since alleged Space Buyer Agreement for the first time was used in Hon'ble High Court of Delhi which comes under jurisdiction of PS Tilak Marg.
20. Ld. Trial court to this contention of PSI Dushyant Panwar in impugned order observed that since alleged forged agreement dated 26.07.2012 was filed and relied upon during the arbitration proceedings conducted at B27, Defence Colony, New Delhi, therefore, the Court has jurisdiction to adjudicate present complaint.
21. So far as jurisdiction aspect is concerned, I am of the view that view taken by Ld. Trial Court in impugned order as CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....19 of 25 mentioned above is in consonance with Section 178(c) & (d) and 179 Cr.P.C. and is a correct view.
22. Ld. Trial Court in impugned order though not explicitly but impliedly has observed that offence u/s 465 IPC only is made out in present case which does not appear to be sound view as allegedly forged Space Buyers Agreement dated 26.07.2012 was used by respondents No. 2 to 4 not only in proceedings before Hon'ble High Court of Delhi but also before Ld. Arbitrator which prima facie connotes commission of offence u/s 471 IPC which is a cognizable offence. The fact that Space Buyers Agreement dated 26.07.2012 is a forged document prima facie emerges from stand taken by Ms. Nirupma Dhawan as per ATR filed by PSI Dushyant Panwar. Space Buyers Agreement dated 26.07.2012 as allegedly used by respondents No. 2 to 4 in arbitration proceedings bear signatures of Ms. Nirupma Dhawan. As per ATR, Ms. Nirupma Dhawan stated to PSI Dushyant Panwar that she was neither CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....20 of 25 authorized representative of petitioner nor has signed the said false document at any point of time.
23. Ms. Nirupma Dhawan is stated to be connected with Star India Project which was property broker / under writer that clicked deals between petitioner company and respondent No. 2 company. Respondent No. 3 is stated to be ChairmanCum Managing Director of respondent No.2 and respondent No. 4 is stated to be Manager of Respondent No. 2 company who executed documents with petitioner company on behalf of respondent No. 2.
24. Ld. Arbitrator in his Award dated 10.11.2017 has mentioned documents including Space Buyers Agreement dated 26.07.2012 to be suspicious document.
25. As per ATR filed by PSI Dushyant Panwar neither respondent No. 3 nor respondent No. 4 joined inquiry despite he contacting them.
26. View taken by Ld. Trial Court in impugned order that no CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....21 of 25 evidence is to be collected by prosecution and identity of respondents is not disputed and as such there is no requirement for investigation in circumstances of present case does not appear to be a correct view in facts and circumstances of present case.
27. In present case, factum of source of forgery is to be established which can not be done except by way of thorough investigation. Also specimen signatures / hand writing of private respondents or any other person involved in forgery can not be taken except by way of Section 311A IPC which requires arrest of a person. Genuineness of email allegedly sent by Ms. Nirupma Dhawan can only be established through police investigation (as per stand of Ms. Nirupma Dhawan in ATR, she sent draft copy of Space Buyers Agreement via email dated 04 & 05, April 2012 where clearly name of person authorized to sign the agreement and Board Resolution is blank and that was a draft copy and unsigned). Further, Ms. Nirupma Dhawan as CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....22 of 25 such was concerned with Star India Project and not with petitioner company. All this requires investigation. Prima facie at least offences u/s 465/471/120B IPC appears to have been committed by respondents No. 2 to 4 in conspiracy with each other. Whether or not other sections as referred to by petitioner in present revision petition can be invoked to for arbitration proceedings is a matter of law and can be looked into later on during investigation.
28. In view of my above made discussion, I am of the view that revision petition filed by petitioner deserves to be allowed and is accordingly allowed. Impugned order dated 28.01.2019 passed by Ld. Trial Court is set aside. SHO PS Defence Colony is directed to lodge FIR against respondents No. 2 to 4 u/s 465/471/120B IPC. Let FIR be lodged on basis of complaint given by petitioner / complainant to SHO PS Sarita Vihar dated 29.04.2017 lodged vide DD No. 42B dated 29.04.2017 (date on complaint during course of arguments was mentioned to be CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....23 of 25 wrongly written as 29.04.2016 by counsel for petitioner).
29. Ratio in judgment filed on behalf of respondents No. 2 to 4 in case titled as Manjari Bakshi Vs. State and Others in W.P.(CRL) 482/2019 dated 23.12.2019 is not applicable in facts and circumstances of present case as discussed above. Further, judgment in case titled as Parminder Singh Vs. G.S. Bhatia & Anr. 2008 (100) DRJ 166 filed by respondents is also not applicable in facts and circumstances of present case as commission of offences u/s 465/471/120B IPC on part of private respondents is writ large in view of stand taken by Ms. Nirupma Dhawan before inquiring officer as mentioned above.
30. Let copy of this judgment and copy of complaint dated 29.04.2017 be sent to SHO PS Defence Colony for compliance.
31. Revision petition filed by petitioner stands disposed of as allowed.
32. Let copy of this judgment be sent to Ld. Trial Court alongwith TCR after receipt of compliance report from SHO PS CR No. 242/2019 Splendor Landbase Ltd. Vs. State and Ors. Page no....24 of 25 Defence Colony.
33. Revision petition be consigned to Record Room.
Dictated and Announced (Sonu Agnihotri)
in the open court ASJ03 (SouthEast),
on 10.01.2023 Saket Courts, Delhi
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