Delhi District Court
M/S Bptp Ltd vs State Of Nct Of Delhi on 7 March, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0201682014
Criminal Revision Number : 209/2/14
CC No. : 44/1A/14
U/s : 420 IPC
PS : Tuglak Road
M/s BPTP Ltd.
M-11, Middle Circle,
New Delhi-110001. ...Revisionist
versus
1. State of NCT of Delhi
2. Mr. Nalin Khosla
S/o Sh. O P Khosla
R/o 166, Golf Links,
New Delhi-110003. ...Respondents
Date of receipt of file in this Court : 10.11.2014
Date when arguments were heard : 07.03.2015
Date of order : 07.03.2015
ORDER
1 The present revision is directed against the impugned order dated 03.11.2014 of Sh. Dheeraj Mittal, Ld. MM-03, Patiala House Courts, New Delhi in the proceedings arising out of CC No. 44/1A/2014, PS Tuglak Road in the matter titled as Nalin Khosla Vs M/s BPTP Ltd. & Kabul Chawla, MD of M/s BPTP CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 1 of 8 Ltd. wherein the Ld. Trial court directed the SHO, PS Tuglak Road to register a FIR and to investigate the matter as per law.
2 I have heard the rival submissions on behalf of Ld. Counsel for revisionist, Ld. Addl. PP for the State on behalf of respondent no. 1, Ld. Counsel for respondent no. 2/complainant and have also carefully perused the record including trial court record.
3 The impugned order dated 03.11.2014 of the Ld. Trial court has been assailed by the revisionist on the ground that the ATR filed by the concerned police authority mentioned that the dispute between the parties was purely Civil in nature. Ld. Counsel for revisionist argued that before filing of the complaint case before the Ld. Trial court, the revisionist had initiated civil proceedings in the year 2012 regarding alleged dispute by filing the consumer complaint before the Hon'ble State Consumer Dispute Redressal Commission, New Delhi wherein he had prayed for refund of the amount with interest alongwith damages and costs. He argued that the flat which is bone of contention between the parties is still with the revisionist company. He argued that the allegations of the complainant/respondent no. 2 have no substance. He contended that complainant/respondent no. 2 was well aware that his allotment had been legally terminated/cancelled due to default in payment made by him and the present complaint was only an arm twisting measure adopted by the respondent no. 2. He argued that the Ld. Trial court wrongly relied upon the judgment of Hon'ble Supreme Court of India in "Lalita Kumari Vs Govt. of UP & Ors., Writ petition (Criminal) No. 68 of 2008 as decided by the Hon'ble Supreme Court of India vide judgment dated 12.11.2013. He contended that the Ld. Trial court failed to consider that the proceedings between the parties was purely commercial transaction and that facts of the complaint did not disclose the commission of CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 2 of 8 cognizable offence. As far as maintainability of the present revision petition is concerned, the Ld. Counsel for revisionist argued that he is only praying for setting aside of the impugned order and setting aside/quashing of the consequent proceedings including FIR. He, however, admitted that a FIR No. 146/14, PS Tuglak Road, U/s 420 IPC dated 13.11.2014 has already been registered against the M D of revisionist and a notice has been received to join the investigation. He thus prayed that the impugned order being illegal be set aside.
4 On the other hand, Ld. Counsel for respondent no. 2/complainant argued that the present revision petition is itself not maintainable because, admittedly, the above said FIR has already been registered at PS Tuglak Road and the investigation is under way. He further submitted that it is an admitted fact that the revisionist as well as respondent no. 2 have already received notices from the IO to join the investigation. He further argued that the prayer as made in the revision petition cannot be granted by this court because in nutshell the revisionist is praying for quashing of FIR, which this court is not empowered to grant and the same lies only within the jurisdiction of Hon'ble High Court of Delhi upon a petition u/s 482 CrPC.
On merits of the case, the Ld. Counsel for respondent no.
2/complainant argued that respondent no. 2 booked a residential apartment with the revisionist company under construction linked payment plan for Rs. 26,50,200/- plus other applicable charges and against the said booking also paid total Rs. 19,82,122/- on various dates. He argued that possession of the said flat was to be handed over in December, 2009, however, it was not handed over and the revisionist company was asking for further illegal amount. He argued that thereafter the respondent no. 2 served a legal notice upon the revisionist CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 3 of 8 and after that filed a complaint before Hon'ble State Consumer Dispute Redressal Commission, New Delhi. He argued that during the mediation proceedings before Hon'ble State Consumer Dispute Redressal Commission, New Delhi, the complainant/respondent no. 2 had come to know that the flat in question had already been sold to a third party despite the fact that the revisionist had received some of Rs. 19,82,122/- from the complainant/respondent no. 2. He argued that the revisionist thus cheated him to the tune of Rs. 19,82,122/-. He further argued that the facts of the complaint case disclose the commission of cognizable offence. He contended that Ld. Trial court was not bound with the status report/ATR as filed on behalf of PS Tuglak Road. He further contended that the Ld. Trial court in the impugned order has mentioned that the entire evidence was not within the reach of the complainant/respondent no. 2 and that the investigation by the police was required. He also referred to the judgment of the Hon'ble Supreme Court of India in case titled as Lalita Kumari (supra). He thus argued that the present revision petition is without any merits, is not even maintainable and should be dismissed.
5 Ld. Addl. PP for the State/respondent no. 1 argued that the present revision petition is not maintainable as admittedly the above said FIR has already been registered and this court has no power to quash FIR and the proceedings emanating therefrom and the said power lies only with Hon'ble High Court. 6 As per the factual matrix of the case, the complainant/respondent no. 2 filed one criminal complaint u/s 200 CrPC for the offences punishable under various provisions of IPC against revisionist and one Sh. Kabul Khosla, MD/Chairman of M/s BPTP Ltd. alongwith one application u/s 156 (3) CrPC for directions to the SHO, PS Tuglak Road to register the FIR against the accused persons. The Ld. CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 4 of 8 Trial court called for the ATR from the office of SHO, PS Tuglak Road which was filed on 20.11.2013. The Ld. Trial court thereafter heard the arguments on the application u/s 156 (3) CrPC filed by the complainant/respondent no. 2 and vide impugned order dated 03.11.2014 directed the SHO, PS Tuglak Road to register a FIR and to investigate the matter as per law observing that the perusal of the complaint disclosed the commission of cognizable offence of cheating etc., the entire evidence was not within the reach of the complainant, the investigation by the police was required and merely because the complainant had the civil remedy did not imply that the police would not register the case, if the cognizance offences were made out/disclosed in the complaint. Ld. Trial court also referred to the judgment of Hon'ble Supreme Court of India in case titled as Lalita Kumari (supra) mentioning that when a complaint disclosing commission of cognizable offence is made to police, the police is bound to register an FIR and investigate the matter, as per law.
7 It is a settled law that mere fact that facts narrated in complaint reveal commercial transaction, cannot be a ground for holding that offence of cheating could not be committed vide such transaction (reference is made to judgment of Hon'ble Supreme Court of India in case Arun Bhandari Vs State of UP & Ors. (2013) 2SCC 801.
8 The facts as mentioned in the complaint u/s 200 CrPC show that as per the complaint, the complainant/respondent no. 2 booked a residential apartment bearing Unit No. P-1003, "Park Granduera" in Faridabad (Haryana), under construction linked payment plan for Rs. 26,50,200/- plus other applicable charges with the revisionist for self use and occupation as residence. The respondent no. 2/complainant paid a total sum of Rs. 19,82,122/- on various dates against the said unit through cheques. The complainant was assured that CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 5 of 8 the possession of the said flat would be handed over by December, 2009 however, its possession was not handed over. The revisionist over and above the above mentioned amount of Rs. 26,50,200/- was further demanding a sum of Rs. 9,43,558/- alongwith interest @ 18% per annum. In the said circumstances, the respondent no. 2/complainant in response to a demand notice dated 28.05.2011 wrote a letter dated 04.06.2011 and requested the revisionist to hand over the possession of said flat or in alternative give 18% interest on Rs. 19,82,122/- received by the revisionist against the said flat. The complainant/respondent no. 2 was left with no option but was forced to revoke the contract/agreement qua the said flat and the said fact was duly communicated to the revisionist vide a legal notice dated 04.01.2012 wherein the revisionist was called upon to refund the amount of Rs. 19,82,122/- alongwith interest @ 18% per annum and was further called upon to pay a sum of Rs. 10 lacs as damages, etc. The complainant/respondent no. 2 thereafter filed a complaint before Hon'ble State Consumer Dispute Redressal Commission, New Delhi and Hon'ble State Consumer Dispute Redressal Commission referred the matter to the Mediation Centre, however, it came to be known there that the said flat had already been sold by the revisionist and a third party interest had been created in the said flat. The complainant/respondent no. 2 has mentioned that the revisionist acting through Mr. Kabul Chawla despite receiving the substantial amount of Rs. 19,82,122/- from the complainant had resold the flat in question to a third party on a huge premium and was thus using the said amount illegally and unauthorizedly and had thereby cheated the complainant/respondent no. 2. 9 The copy of complaint dated 04.07.2013 by the complainant/respondent no. 2 to the SHO, PS Tuglak Road against the revisionist and Mr. Kabul Chawla is on Trial court record which bears the stamp of PS Tuglak Road having been CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 6 of 8 received in the said PS on 04.07.2013 itself.
10 The facts of the complaint case thus shows that despite taking substantial amount of Rs. 19,82,122/- from the complainant/respondent no. 2 after booking above said residential apartment, the revisionist, as per the allegations in the complaint, did not hand over the possession to the respondent no. 2/complainant and rather sold the flat in question to some other person thereby creating a third party interest. Perusal of the said facts in the complaint disclose the commission of cognizable offences which in turn require thorough investigation by police after the registration of FIR. The Ld. Trial court in these circumstances rightly came to the conclusion that the facts of the case disclose the commission of cognizable offence of cheating etc. Ld. Counsel for revisionist during arguments stated that the said flat is self owned by the revisionist company, however, the said entire documentation/evidence could not be within the reach of the complainant/respondent no. 2 and thus police investigation on the same is required. Ld. Trial court in that regard thus did not commit any illegality or infirmity. No doubt, the ATR dated 20.11.2013 as filed on behalf of PS Tuglak Road mentions that the allegations are civil in nature, however, it is a settled law that the Ld. Trial court is not bound with the observations as mentioned in the ATR and can take a different view. Even otherwise, it is a settled law that merely because a Civil remedy is available does not necessarily mean that the scope for the criminal remedy is barred. The Hon'ble Supreme Court of India in the above said judgment of Lalita Kumari (supra) has inter alia held that when a complaint disclosing commission of cognizable offence is made to the police, the police is bound to register a FIR and to investigate the matter as per law. In these circumstances, there is no illegality or infirmity in the impugned order dated 03.11.2014 of the Ld. Trial court and it rightly directed the SHO, PS Tuglak Road CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 7 of 8 to register a FIR in this matter and to investigate it as per law. 11 Even otherwise, it is now an admitted fact that consequent to the impugned order, FIR No. 146/14, PS Tuglak Road u/s 420 IPC dated 13.11.2014 has been registered, the investigation is under progress and IO has given notice to both the parties to join the investigation. The prayer in the revision petition shows that the revisionist is praying that the impugned order and all its consequential proceedings arising therefrom, be set aside/or quashed being a total misuse of the process of law. In this regard, this court is in agreement with the submissions of Ld. Counsel for respondent no. 2 that allowing the revision petition would tantamount to setting aside or quashing the above said FIR, which has already been registered. It is a settled law that the power of quashing the FIR is not within the purview of the powers of this court and the power to quash the FIR lies with the Hon'ble High Court. On that score also, the present revision petition is bound to fail.
12 Keeping in view the above said discussion, the present revision petition is dismissed being devoid of any merits.
13 The revision petition is disposed of accordingly.
14 Trial Court Record be sent back to the concerned Trial Court through Ld. CMM, New Delhi along with copy of this order.
15 Revision file be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 07.03.2015 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS/NEW DELHI
CR No. 209/2/14 CC No. 44/1A/14 PS Tuglak Road M/s BPTP Ltd. VS State of NCT & Anr. Page 8 of 8