Delhi District Court
Unknown vs State on 23 October, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 264/2018
In the matter of:
1. M/s. Splendor Landbase Ltd.
Unit Nos. 501511
Splendor Forum, 5th Floor,
03, Jasola District Centre, New Delhi.
2. Mr. Vikram Bhatia
Director
M/s. Splendor Landbase Ltd.
Unit Nos. 501511
Splendor Forum, 5th Floor,
03, Jasola District Centre, New Delhi.
3. Mr. Manoj Mehra
M/s. Splendor Landbase Ltd.
Unit Nos. 501511
Splendor Forum, 5th Floor,
03, Jasola District Centre, New Delhi.
4. Mr. Yash
M/s. Splendor Landbase Ltd.
Unit Nos. 501511
Splendor Forum, 5th Floor,
03, Jasola District Centre, New Delhi.
CR No. 264/2018
1 of 12
07.01.2017
....Petitioners.
Versus
1. State
2. M/s. Ambient Land Holdings Ltd.
Having office at:
125A, Antriksh Bhawan
22, K.G. Marg, New Delhi
Through its Managing Director,
Mr. Anil Vaid.
.....Respondents.
Date of Institution : 30.07.2018
Date of Arguments : 23.10.2018
Date of Decision : 23.10.2018
JUDGMENT
1. Vide this judgment, I shall decide revision petition filed by the petitioners against the order dated 24.07.2018 passed by Ld. CMM. Vide which Ld. CMM has directed the SHO, PS EOW to register the FIR, investigate the matter and to submit report.
2. Aggrieved by the order dated 24.07.2018, the petitioners have filed the present revision petition on the grounds that the respondent CR No. 264/2018 2 of 12 07.01.2017 no. 2 could not get any relief from any forums before which it has filed complaints and he has played fraud with the Trial Court. The respondent no. 2 is attempting to give a civil dispute, adjudication of which is already pending before the sole arbitrator appointed by the Hon'ble High Court of Delhi in OMP (I) (COMM) 441/2017, a criminal shape to implicate the petitioners and to harass and extort money from them. It is mentioned that Hon'ble High Court in various judgments has categorically held that where a civil suit/dispute is filed and pending then the proceedings in the criminal case shall be stayed till the outcome of the civil suit. Ld. CMM has also failed to adhere and honour the guidelines passed by the Hon'ble Supreme Court in the case of "Lalita Kumari Vs. State of U.P" wherein, it is categorically stated that in the offences involving and relating to commercial disputes no immediate FIR will be registered but preliminary enquiry will be carried out by the Investigating Agency and only after the same FIR if found proper will be registered. Ld. Trial Court did not consider the Status/ Enquiry Report filed by the Investigating Agency which clearly revealed that no cognizable offences were committed by the petitioners and the complaint of the respondent is not maintainable. Ld. Trial Court has failed to appreciate that dispute between the parties are civil in nature and allowing criminal CR No. 264/2018 3 of 12 07.01.2017 proceedings to continue against the petitioners would not only cause irreparable harm and loss to the petitioners but would also lead to the abuse of the process of law. Ld. Trial Court did not consider that the complaint before the EOW, New Delhi was filed after delay as the initial agreement was entered into between the parties in the month of May, 2016 and complaint before EOW was filed in January, 2017 i.e. after delay of about 7 months. Ld. Trial Court has completely ignored the malafide conduct of the respondent no. 2 that he has been doing nothing but engaged only in forum hunting to achieve and secure its oblique motive of causing wrongful gain to itself and wrongful loss to the petitioner no. 1. The respondent no. 2 has concealed the fact of filing of police complaint before the Panipat Police and outcome of the same, filing and disposal of the petition u/s 9 of the Arbitration Act and also of appointment of the Arbitrator before Ld. Trial Court and as such makes itself liable for criminal prosecution u/s 340 Cr.P.C. Ld. Trial Court did not appreciate that respondent has raised vague allegations which are not supported by any substantive documentary evidence and the documents which are filed by the respondent in support of its case were never proved and not even provided to the investigating agency, EOW for verification despite same being repeatedly called for by the EOW. Ld. Trial Court has passed the impugned order in mechanical manner without application of mind. Ld. Trial Court has wrongly held in CR No. 264/2018 4 of 12 07.01.2017 the order that investigation is required to ascertain whether these documents are fake documents or genuine one . It is mentioned that respondent had not alleged that fake documents were furnished by the petitioner. Ld. Trial Court did not appreciate that respondent had not disclosed or furnished any details of the alleged expenses incurred by it and how the respondent came to the figure of Rs. 3,46,90,498/. Ld. Trial Court did not take into consideration that in terms of the agreement dated 02.08.2016 the respondent was liable to make timely payment in favour of the petitioner no. 1, however, no payments were made by the respondent after August, 2016 and to cover up its own default and failure, the respondent raised the issue of non supply of requisite documents in the month of November, 2016 for the first time. Ld. Trial Court has failed to appreciate that respondent gave application to Panipat PS and respondent should have pursued the said complaint before the concerned court having jurisdiction of PS Panipat. However, the respondent chose not to pursue the same and filed complaint in Delhi Court. It is prayed that order dated 24.07.2018 be set aside.
3. I have heard Ld. counsel for the petitioners, Ld. Addl. PP for the State and Ld. counsel for respondent no. 2 at length and perused the records of this court as well as Trial Court very carefully.
CR No. 264/20185 of 12 07.01.2017
4. Perusal of the Trial Court Record reveals that the respondent no.2 has filed application under Section 156(3) Cr.P.C against the petitioners averring that complainant is a reputed builder, had entered into an agreement with the accused for development of group housing colony project at the land owned by the accused admeasuring 16.31 acres, situated at Sector19, Barsat Road, Panipat, Haryana. It is mentioned that a term sheet agreement dated 19.05.2016 and a development management agreement dated 02.08.2016 were executed between the parties at the office of accused at New Delhi. The complainant agreed to develop the land on the representations made by the accused to the effect that the requisite licence from the town and country planning department had been obtained and other sanctions from the other departments had also been received. It was also represented by the accused that they had taken a loan of Rs. 60 crores from Punjab & Sind Bank, Connaught Place, New Delhi for its project and the bank was willing to provide No Objection Certificate. It is mentioned that as per the agreements, the complainant was granted exclusive right to develop, market and sell 136 units with FSI of 2,15,586 sq. ft. against the consideration of Rs. 500 sq. ft. in total amounting to Rs. 10,77,93,000/. In pursuance of the agreements, the complainant company made a payment of Rs. 11 lacs vide cheque no. 000553 dated 19.05.2016 at CR No. 264/2018 6 of 12 07.01.2017 the time of signing of the agreements and a further amount of Rs. 40 lacs subsequently. The Director of the complainant company Sh. Anil Vaid was also granted a power of attorney vide resolution dated 30.07.2016 passed by the accused. It is mentioned that the total sale consideration of Rs. 10,26,93,000/ was payable to the complainant company subject to the adjustment of advances taken by accused no. 1 against selling of 26 units from the date of execution of the aforesaid term sheet agreement. However, the accused company with malafide intention did not provide any details of the said units to the complainant company nor did the accused provide other requisite sanctions from the concerned departments or NOC from the Punjab & Sind Bank despite the fact that the complainant company had made a total payment of Rs. 1,57,81,200/. The complainant company has also spent an amount to the tune of Rs. 3,46,90,498/ on the construction of the project and therefore, the accused had deceived the complainant and committed the offence of cheating.
5. It is vehemently contended by Ld. counsel for the petitioners that complainant has not complied the judgment titled as "Lalita Kumari Vs. State of U.P." wherein, Hon'ble Supreme Court has categorically held that in cases of commercial offence preliminary inquiry is required to be conducted. It is contended by Ld. counsel for the petitioners that Ld. Trial CR No. 264/2018 7 of 12 07.01.2017 Court erred in ordering registration of FIR. It is also contended by Ld. counsel for the petitioners that complainant has given complaint before Panipat Police and Panipat Police did not initiate any action and filed report that the matter is of civil nature. The complainant has concealed this fact from Ld. Trial Court. It is contended that Ld. Trial Court did not consider the status report filed by the police.
6. The complainant has filed complaint with the averments that a terms sheet agreement dated 19.05.2016 was executed between the petitioner and the complainant. It is also admitted fact that a development management agreement dated 02.08.2016 was in continuation and in addition to the terms sheet agreement dated 19.05.2016. It is mentioned in the complaint that accused company with its malafide and dishonest intention did not credit the sale proceed of 26 units in the account of the complainant company and the NOC from the Punjab & Sind Bank and DTCP Government of Haryana was not provided to the complainant company. It is also the case that accused has already sold a number of units in addition to the 26 units as disclosed to the complainant company even prior to entering into the term sheet agreement dated 19.05.2016. It is also mentioned in the complaint that accused company had sold 36 flats against full payments in the year, 2012 and even prior to that, sale proceeds of 70 units in the low CR No. 264/2018 8 of 12 07.01.2017 rise towers were also received before entering into the terms sheet agreement with the complainant company. In para no. 17 of the complaint, it is mentioned that in the year 2016 the accused company sold 136 units to the complainant company in the low rise towers despite the fact that 106 units as mentioned above were already sold to the other buyers as such the total units would make a grand total of 242 units which were sold by the accused company against the actual availability 136 units as approved by Government of Haryana.
7. Ld. CMM has passed the impugned order holding that in this case, the complainant has relied upon a number of documents which were furnished by the accused containing false information and which involve several departments. Investigation is required to ascertain whether these documents are fake documents or genuine ones. As per the allegations of the accused, the accused have not provided the complainant with the requisite documents such as documents regarding grant of loan from Punjab and Sind Bank, NOC, documents relating to sanction from Town & Country Planning Department and therefore, the complainant is not in a position to produce these documents as evidence. The allegations are of grave nature and it is apparent that investigation is required for searching and collecting evidence. Therefore, SHO PS EOW is directed to register the FIR, CR No. 264/2018 9 of 12 07.01.2017 investigate the matter and submit report on 30.07.2018.
8. In the complaint given to the Deputy Commissioner of Police, EOW, the complainant has categorically stated that petitioner no. 1 has sold many units without their knowledge and this fact was concealed from the complainant and petitioner company had sold 36 flats against full payment which actually gone to the account of complainant in terms of the agreement. It is also mentioned that complainant requested Mr. Vikram Bhatia to provide detailed accounts to which he flatly denied. It is also mentioned that complainant company is continuing the work, it has come to their notice that Mr. Vikram Bhatia had already sold 70 units in this low rise appt. and had taken heavy amounts from the innocent and poor customers. In the year, 2012 he again sold 36 units totaling to 106 units and again in 2016 he sold 136 units making a grand total of 242 units against an actual availability of 136 units as approved by Govt. of Haryana. Thus, the complaint given by the complainant discloses commission of cognizable offences.
9. It vehemently contended by Ld. counsel for the petitioner that on the complaint of complainant FIR no. 1013 has been registered in PS Panipat, so this revision petition be allowed.
CR No. 264/201810 of 12 07.01.2017 I fail to appreciate this contention of Ld. counsel for the petitioners, as in the present case impugned order is dated 24.07.2018. In the present case, matter was posted for orders on 18.07.2018 for 24.07.2018. In the meanwhile, the complainant gave an application to PS Panipat and on the application of the complainant FIR No. 1013 dated 20.07.2018. As the matter was posted for order there was no occasion in between to intimate the court.
10. It is submitted at Bar by Ld. counsel for the respondent that respondent has chosen the jurisdiction of this court as agreement was executed at Delhi.
11. In the present case, the complainant has leveled specific allegations that after executing term sheet agreement dated 19.05.2016 and development management agreement dated 02.08.2016, the accused no. 1 has sold 36 flats in the year, 2016 and even prior to that sale proceed of 70 units in low rise appt. was already re ceived before entering in the terms sheet agreement. The complainant has categorically mentioned that as per the agreement petitioner no. 1 has sold 136 units to the respondent no. 2 company in low rise appt. and 106 units were sold to the other buyers by the petitioner no. 1. I am of the view that complaint discloses cognizable CR No. 264/2018 11 of 12 07.01.2017 offence and Ld. CMM has rightly ordered to register FIR in the present case.
12. In view of the above discussions, I am of the view that the Ld. CMM has rightly directed the SHO, PSEOW to register the FIR, investigate the matter and to submit report. There is no illegality or infirmity in the order dated 24.07.2018. The revision petition filed by the petitioners is without any merits and same is hereby dismissed.
Trial Court record be sent back along with copy of judgment. Revision file be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 23.10.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2018.10.23
16:52:30
+0530
CR No. 264/2018
12 of 12
07.01.2017