Delhi District Court
M/S Bptp Ltd vs State Of Nct Of Delhi on 15 January, 2016
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE (03), PATIALA HOUSE COURT, NEW DELHI
Criminal Revision No.173/15
1. M/s BPTP Ltd.
2. Mr. Kabul Chawla, MD,
3. M/s Countrywide Promoters Pvt. Ltd.
All address at :
M 11, Middle Circle,
Connaught Place,
New Delhi.
........Revisionists
Versus
1.State of NCT of Delhi.
2.Mr. Sudesh Bainsla,
House no.13, Sector-1,
Sadiq Nagar, New Delhi.
........Respondents
15.01.2016
ORDER:
1. By this order I shall dispose of the revision petition filed by the revisionist under section 397 & 399 Cr.P.C. against the impugned order dated 22.12.2015 passed by the ld. MM, Delhi whereby ld. Trial Court gave directions to the SHO, PS Connaught Place on the application filed u/s 156 (3) Cr. PC of the respondent no.2 Sudesh Bainsla for registration of FIR under the relevant provisions of law and to investigate and report for 16.02.2016.
2. Briefly facts of the case are that a criminal complaint along with an application u/s 156 (3) Cr.PC was filed by the respondent before the ld. Trial Court. Accused/ Revisionist no.1 is a company and is 1 developing a colony in Faridabad, Haryana. It is alleged that M/s. Angad Export has booked a plot with M/s. BPTP Ltd. and was allotted plot No. X- 23, Block X, Parklands, Faridabad, Haryana. Thereafter the said plot was sold to Sh. Pradeep Sajjan from whom the complainant has bought the said plot in July 2008. The nomination of said plot in favour of the complainant was changed by the accused company after taking the administrative charges and transferred charges. It is further alleged that the total consideration amount of the abovesaid plot is already received by the accused company. It is further alleged that the accused company has received the booking of the abovesaid plot without acquiring and purchasing the land from its registered/ lawful owners. Morevoer, it was misrepresented by the revisionists/ accused persons that they have already acquired the said land. It is further alleged that the land in question was never purchased by the revisionists / accused persons till the date of nomination of the abovesaid plot in favour of the complainant. It is further alleged that the accused persons had also misrepresented the LIC Housing Finance Company vide letter dated 22.08.2008 confirming that the abovesaid plot and land are not subject to any encumbrance charge or liability and the entire property is free and marketable. It is further alleged that the accused company has fraudulently changed the plot allotted to the complainant from X- 23 to W- 1212 due to the change in lay out plan. 2 Complainant has further submitted that the original allotted plot i.e. X- 23 was not in existence from the very beginning then the subsequent change of the plot is an act of cheating and fraud on the part of the accused company.
3. ATR was filed on behalf of IO before ld. Trial court also reveals that the owner of the abovesaid land was Rajbir Singh with whom the accused company has entered into a collaboration agreement in 2005, however, due to some dispute between the land owner and the accused company, civil litigation was initiated in the competent court at Faridabad, Haryana. Meaning thereby, it is prima facie evident that accused company does not have clear title on the property for which it was booking plots from the customers by taking huge amount of money. Ld. Trial court after perusal of the entire record and submissions found that the commission of cognizable offence is made out and needs thorough investigation. Therefore, ld. Trial Court issued directions to the SHO, PS Connaught Place to register an FIR under the relevant provisions of law and to investigate, vide impugned order dated 22.12.2015. Feeling aggrieved with the impugned order dt. 22.12.2015, revisionists filed the present revision petition for setting aside or quashing the impugned order passed by Ld. MM. 3
4. Arguments were heard at length. During the course of arguments ld. Counsel for the revisionists submitted that on 15.12.2005 a collaboration agreement was executed with the erstwhile land owner. In terms of the collaboration agreement the land owner along with the consideration was to get 10% of the plotted area and the company was to get 90% of the plotted area. He further submitted that based on the collaboration agreement the license no. 1234 of 2006 was obtained by the Revisionsit no.1. As per sections 3 & 7 of the Haryana Development & Regulation of Urban Areas Act, 1975, after obtaining the above said license, the Revisionist No. 1 was entitled to allot its share of 90% of the plotted area, and in terms of the same allotment of Plot No. X -23 was made on 04.06.2007 in favour of the first applicant i.e. M/s Angad Exports. On 14.05.2008 Plot Buyer's Agreement for plot no. X - 23 was executed with M/s Angad Exports. He further submitted that vide agreement to sell dated 25.06.2008 the Respondent No. 2 purchased the plot no. X - 23 from the open/secondary market and on 22.08.2008, the name of Respondent No. 2 was endorsed in Revisionist No.1's record after submission of necessary documentations. It is worth mentioning here that at the time of purchase, with no stretch of imagination it can be assumed that the Respondent No. 2 did not do the due diligence of Plot No. X
-23 at site. Therefore it is wrong to state that the Plot No. X -23 was found to be non-existent on making enquiries at a later stage. In fact 4 in the petition under section 156(3) in para 4 (At page 38 of the petition) the Respondent No. 2 had himself stated that "the site / location of plot No. X-23 was shown to Sh. Sudesh Bainsla by the site staff of BPTP Limited after the purchase of the said plot from Sh. Pradeep Sajjan by the complainant." Ld. Counsel for the revisionist again argued and submitted that in the year 2008 the land owner raked up the issue with the revisionist No. 1 through its sister concerns and considering the same another allotment dated 13.10.2009 for plot no. W12-12 (504 Sq. Yds.) was made in favour of the Respondent No. 2. On 21.11.2009 the Respondent No. 2 deposited Rs.20,870/- with the Revisionist No. 1 without raising any objection about the re-allotment. On 30.01.2010 the Respondent No. 2 gave a letter to the company acknowledging the change of plot. On 01.09.2010 possession of the plot No. W12-12 was offered to Respondent No. 2. Thereafter on 01.10.2010 the Respondent No. 2 paid Rs. 2, 05, 377/- . Ld. Counsel for the revisionist again submitted that the respondent No. 2 after almost one year of re-allotment and due verification of the developments at site, on 29.11.2010 executed an Addendum to the Plot Buyer's Agreement dated 14.05.2008 and re-acknowledged the change of Plot No. W12-12 from X-23.
5. Ld. counsel for the revisionists again submitted that malafide intention of the Respondent No. 2 is also apparent from the fact that he was 5 not disputing the relocation of the Plot to W 12-12 and was through correspondence rather requiring the Petitioner No. 1 to execute the sale deed without paying the full sale consideration, thus it is not a case where a customer is seeking refund of amount due to relocation and the Revisionist No. 1 was forcing upon him a plot which is at a commercially inferior location or causing any undue financial loss in violation of indemnity/agreement executed by the Respondent No.2. The bad intentions of the Respondent No. 2 also came into picture when the company requested the Respondent No. 2 to get the Sale Deed executed by fulfilling its payment obligation towards Stamp Duty, Enhanced External Development Charges, Electrification and STP Charges for a sum of Rs. 14,71,612/- (Rupees Fourteen Lakhs Seventy One Thousand Six Hundred Twelve Only) the same was communicated to Respondent No. 2 by the Petitioner No.1 vide its letter dated 09.06.2012.
6. Ld. counsel for the revisionist further submitted that it is a purely civil dispute precisely for the reasons that respondent booked a plot measuring about 421.560 sq. mtrs. for the project, Parklands, Parklands Faridabad. He further submitted that out of total booked amount Rs.77,12,770/-, an amount of Rs.54,83,410/- has been paid and still an amount of Rs.22,29,360/- is yet to be paid before the possession of the plot i.e. W12-12 is handed over to the respondent. 6 In support of his contentions he has relied upon the following judgments :
I) Manohar Singh v. State & Ors. - Cril. MC no.1952/2009, in this case it has been observed that:-
"..........that the order under Section 156(3) Cr.P.C. is revisable and impugned order holding revision petition against it to be maintainable does not suffer from any illegality or perversity."
II) Shri Subhakaran Luharuka v. State (Govt. of NCT of Delhi), in this case it has also been observed that:-
"52A. For the guidance of subordinate courts, the procedure to be followed while dealing with an application under Section 156(3) of the Code is summarized as under:-
(i) Whenever a Magistrate is called upon to pass orders under Section 156(3) of the Code, at the outset, the Magistrate should ensure that before coming to the Court, the Complainant did approach the police officer in charge of the Police Station having jurisdiction over the area for recording the information available with him disclosing the commission of a cognizable offence by the person/ persons arrayed as an accused in the Complainant. It should also be examined what action was taken by the SHO, or even by the senior officer of the Police, when approached by the Complainant under Section 154(3) of the Code.
(ii) The Magistrate should then form his own opinion whether the facts mentioned in the complaint disclose commission of cognizable offences by the accused persons arrayed in the Complaint which can be tried in his jurisdiction. He should also satisfy himself about the need for investigation by the Police in the matter. A preliminary enquiry as this is permissible even by an SHO and if no such enquiry has been done by the SHO, then it is all the more necessary for the Magistrate to consider all these factors.
For that purpose, the Magistrate must apply his mind and such application of mind should be reflected in the Order passed by him.
Upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing`, a status report by the police is to be called for before passing final orders.........."
III) Dr. Zubair Ul Abidin v. State (NCT of Delhi), in this case it has 7 also been observed that:-
"Thus, the magistrate is not supposed to act mechanically and direct registration of FIR in each and every case in routine and casual manner. Criminal law is not expected to be set in motion on mere asking of a party. There has to be some substance in the complaint filed and it is only if it appears that the allegations are serious enough and establish the commission of cognizable offence required thorough investigation by the police an FIR should be ordered to be registered."
IV) Lalita Kumari v. Govt. of U.P, (2014) 2 SCC 1 and in Mrs. Priyanka Srivastava and Anr Vs. State of U.P. and Ors. Criminal Appeal No.781 of 2012, 19.03.2015, wherein it is held that Ld. MM is duty bound to check the credentials of the complainant. The relevant portion of the judgement is reproduced below:
"26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons.
That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the 8 scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
28. The present lis can be perceived from another angle. We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed. Such a situation should not happen."
On the strength of the above citations and submissions ld. Counsel for the revisionist submitted the malafide intention of respondent no.2 is further obvious from the fact that the petition under section 156(3) in its prayer clause asked registration of FIR in relation to sections 420/452/323/504/ 506/352/ 427/ 447 & 448 of the IPC. No allegations in regard to any of these sections have been made in the petition yet the Ld. MM without considering this aspect has directed for registration of the FIR. The impugned order is completely non speaking and does not show any proper application of mind. The ratio of the judgments cited above has not been followed either in principle or in application by the Ld. MM who has proceeded to give 9 the impugned direction in a summary manner. The ATR and its findings have been ignored and not discussed or differentiated to show application of mind by the Ld. MM. On these grounds, ld. Counsel for the revisionists submitted that revision petition be allowed.
7. Contrary to it, ld. Counsel for the respondent submitted that Revision filed by the Revisionists is not at all maintainable as they have no locas standi being an accused and the case was filed before the trial court under Section 156(3) Cr.P.C. for registration of FIR as accused persons have committed certain offence which are cognizable. The whole argument of the Revisionist before this Hon'ble Court that the facts of the case comes under the purview of civil court as such no FIR can be registered against them, whereas, it has already come on record that the revisionists / accused persons in connivance with each other have committed fraud, criminal breach of trust, misappropriation of funds and forged certain documents and misrepresented the complainant by withholding Rs.54 Lacs of the complainant without handing over the possession of the plot and without executing the sale deed on the basis of false & fabricated representation. Ld. Counsel for the respondent submitted that complainant has clearly stated in the first complaint dated 23.04.2013 that FIR be registered against the accused persons for committal 10 cognizable offence, but the investigation officer colluded with the accused persons had filed false report before the trial court, and on judicial scrutiny of the report of the IO and taking into the entire material placed by the complainant before the court, the order for registration of FIR was passed. There is no illegality in the order of the trial court and the revisionists / accused persons have no locus standi to file the present revision or challenge the order of the trial court because the Petition under Section 156(3) was never converted into a complaint case. Ld. Counsel for the respondent again submitted that the case law cited by the revisionists / accused persons are not at all applicable in the facts and circumstances of the present case and the order passed by the trial court is fully justified and have no illegality. Ld. Counsel for the respondents again submitted that impugned order is an intermediate order against which the revisionist has filed the present revision petition. In support of his contentions he has relied upon the judgment 'Rajesh Dubey v. State of Delhi & Ors - WP (Crl.) 533/12 - 2013', wherein it has been observed that:-
"13. Whenever a revision is filed either before the Sessions Court or this Court, it is not necessary to give notice to accused for affording him an opportunity of being heard, irrespective of the fact whether the order is prejudicial to him or not. For example, when a complaint is dismissed in default and for non-prosecution due to non appearance of complainant and not taking any steps by filing process fee etc. u/s 204(4), in that eventuality, Section 401(2) would not be applicable and no notice is required to be issued as the order dismissing the complaint for default or non-prosecution does not touch upon the factual or legal merits of the 11 complaint. The said order is a reflection on or about the conduct of the complainant in the proceeding before the Court and the opinion formed by the Court about the said conduct. Such order, if they do not reflect and take into consideration the merits of the case, when challenged in revision, does not require notice to opposite side as held in J.K. International vs. State, 96(2002) DLT 795 and reiterated in Hindustan Domestic Oil & Gas Co.(Bombay) Ltd & Ors. vs. State & Anr., 2012(4) JCC 2310.
14. Further in Prabha Mathur & Anr. Vs. Pramod Aggarwal and Ors., (2008) 9 SCC 469, it was observed following the decision in Chander Deo Singh (supra) that the accused has no locus standi at the stage of investigation and he cannot insist for a hearing before process is issued against him. It was emphasised that "it is equally correct that if a person has no locus standi or right of hearing, such right does not accrue in his favour by an indirect process".
15. In Manharibhai(supra), after taking note of the various decisions of Hon'ble Supreme Court and this Court, it was observed that the legal position is fairly well settled that in the proceedings u/s 202 of the Code, the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of fact , upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of the opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. It is only when the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint u/s 203 of the Code, the question arises whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. It was observed that the effect of such dismissal is termination of complaint proceedings. That being so, the accused has a right to be heard.
16. Raghu Raj Singh Rousha(supra) relied upon by learned counsel for the petitioner is distinguishable inasmuch as in that case when the application u/s 156(3) Cr.P.C was dismissed, in the revision filed before the High Court, the order was set aside with a direction to the Metropolitan Magistrate to examine the matter afresh after calling for a report from the police authorities. The police authorities were directed to hold a preliminary inquiry on the basis of the complaint made by the petitioner/compliant and to submit a report to the learned Magistrate within three weeks. Things are entirely different in the instant case inasmuch as vide impugned order dated 27.02.2012, learned Additional 12 Session Judge has not given any direction to the police to investigate the matter. The matter has simply been remanded back to the learned Metropolitan Magistrate for reconsidering the application u/s 156(3) Cr.P.C and to pass orders afresh. The learned Metropolitan Magistrate, while deciding afresh may decide the matter as deemed appropriate. The petitioner cannot possibly anticipate what order the learned Metropolitan Magistrate is going to pass. Under the circumstances, such an order cannot be said to be prejudicial to the petitioner. The position of the case has not been altered. Even no direction has been given to the police to investigate the matter or register the case. The only direction is to reconsider the application u/s 156(3) of the Code on the basis of materials already available on record. No order prejudicial to the petitioner has been passed. That being so, while hearing the revision petition by learned Additional Session Judge, presence of petitioner was not required at that juncture. That being so, there is no merit in the writ petition. Same is accordingly dismissed. On these grounds, ld. Counsel for the respondent submitted that revision petition is liable to be dismissed.
8. I have given careful consideration to the submissions of ld. Counsel for the revisionists and ld. Counsel for the respondents as well. It is well settled principle of law that determination of the facts is an exclusive domain of the original court of jurisdiction and this court has limited jurisdiction to enter into the area of discretion of Ld. M.M. on the ground of propriety and correctness. I have also perused the impugned order dated 22.12.2015 and found that the ld. Trial court has not disclosed in its order dated 22.12.2015 against which sections the offence appears to have been committed by the revisionists, which tantamount to non-speaking order and this impacts the principle of fairness. In light of these facts and circumstances of 13 the case, impugned order dated 22.12.2015 is set aside and case is remanded back to the ld. Trial Court with the directions to pass a reasoned and speaking order taking into account the above referred judgments 1)Manohar Singh v. State & Ors. - Cril. MC no.1952/2009; 2)Shri Shubakaran Luharuka v. State (Govt. of NCT of Delhi); 3)Dr. Zubair Ul Abidin v. State (NCT of Delhi); and 4)Mrs. Priyanka Srivastava and Anr. v. State of UP as referred in the preceding paras. Accordingly, the revision petition is allowed. Parties are directed to appear before ld. Trial court on 30.01.2016. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 15.01.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 14 Cri. Rev. no.173/15 M/s BPTP Ltd. & Ors. v. State & Ors.
15.01.2016 Pre: Ld. APP for the State.
Ld. Counsel for the revisionist.
File perused, vide separate detailed order placed along side in the file, impugned order dated 22.12.2015 is set aside and case is remanded back to the ld. Trial Court with the directions to pass a reasoned and speaking order taking into account the above referred judgments 1)Manohar Singh v. State & Ors. - Cril. MC no.1952/2009; 2)Shri Shubakaran Luharuka v. State (Govt. of NCT of Delhi); 3)Dr. Zubair Ul Abidin v. State (NCT of Delhi); and 4)Mrs. Priyanka Srivastava and Anr. v. State of UP as referred in the preceding paras . Accordingly, the revision petition is allowed. Parties are directed to appear before ld. Trial court on 30.01.2016. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
(RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 15.01.2016 15