Delhi District Court
Ram Avtar Jindal vs Ramprastha Builders Pvt. Ltd on 7 April, 2021
IN THE COURT OF SHRI SANDEEP YADAV
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Revision No. 107/19
Ram Avtar Jindal
S/o Sh. Jagdish Prasad
R/o. B1, Dayanand Colony,
Ghaziabad, Uttar Pradesh
Presently at: 101, Model Town (East)
Ghaziabad (UP).
.... Appellants
Versus
1. Ramprastha Builders Pvt. Ltd.
Through its Director
Regd. Office at:
B2325, Kailash Colony
New Delhi.
2. State of NCT of Delhi.
...... Respondents
Date of Institution : 16.02.2019
Date of Arguments : 26.03.2021
Date of Order : 07.04.2021
ORDER
1. Petitioner Ram Avtar Jindal is aggrieved by the order dated 19.11.2018 passed by ld. MM-04/SE/Saket Courts/Delhi whereby the complaint of the petitioner has been dismissed U/s. 203 CrPC.
CR No. 107/19 1/7Ram Avtar Jindal vs. Ram Prastha Builders
2. I have heard arguments addressed by Mr. Shivaji Shukla, ld. Counsel for petitioner and Mr. Neeraj Jain, ld. Counsel for respondent at length and carefully perused the trial court record.
3. The case of the petitioner may be briefly noted down as under:-
4. Respondent Ramprastha Builders Pvt. Ltd. is a registered company having its registered office at B/23-25, Kailash Colony, New Delhi. The company launched a project for residential and commercial plots/flats at Ghaziabad and published its pre-launch scheme through various modes. The company assured that the plots/flats would be handed over to the registered investors very soon. The petitioner was in need of residential accommodation. He applied for a residential flat with the respondent company and initial payment was made. The respondent allotted a flat No. H-401 in Pearl Court, Pocket-10, Sector-9 Ram Prastha Greens, Vaishali Extn., Ghaziabad. The petitioner has made payment to the respondent against the said flat from time to time and as per the payment made by the respondent the petitioner has made total payment of Rs. 15,77,500/-. The petitioner received demand letter from the respondent and in reply to the same the petitioner sent a request letter/notice dated 22.07.2009 with the demand draft of Rs. 5 lakhs in favour of the respondent and also requested to know the balance amount to be paid by the petitioner. The respondent did not reply to the notice of the petitioner but the petitioner again made a payment of Rs. 13 lakhs by way of two cheques and Rs. 6 lakhs and 7 lakhs respectively on 02.09.2009. These CR No. 107/19 2/7 Ram Avtar Jindal vs. Ram Prastha Builders cheques were duly received by the respondent company on or around 3rd/4th September 2009. The petitioner received a letter No. RBPL/M.O/05- 325-09 titled cancellation notice. The petitioner was shocked and inquired from the respondent about the reason of cancellation but the company official only disclosed that the cancellation notice has sent due to non payment of installment. Thereafter, the petitioner had sent a notice/request letter dated 09.09.2009 through his counsel stating all facts and request to restore the allotment as the petitioner has paid the installments from time to time but all in vain. The petitioner has invested his hard earned money in the year 2005 with the hope that he would get the residential flat very soon and he made installments as and when demanded by the company. The respondent has used the money of the petitioner for their own benefit which caused loss to the petitioner. The respondent has played a fraud with the petitioner by cancellation of flat and hence the respondent has committed the offence U/s. 420/406/120B IPC.
5. Alongwith the complaint, the petitioner has also filed an application U/s. 156(3) CrPC which was dismissed and the case was listed for pre-summoning evidence. The petitioner examined himself as CW-1 as the only petitioner witness. In his deposition the petitioner reiterated the version given in the complaint.
6. The complaint was dismissed by ld. MM on two grounds; first that the court of ld. MM has no territorial jurisdiction to entertain the complaint as no offence took place within the territorial jurisdiction of the court of ld. MM and secondly, the petitioner has not brought any material CR No. 107/19 3/7 Ram Avtar Jindal vs. Ram Prastha Builders to show that he had indeed paid the installment to the respondent company as per the schedule between the parties.
7. It is observed in the impugned order that the petitioner has even failed to bring the allotment letter of flat in question as part of his pre- summoning evidence and in the absence thereof no finding can be given as to whether the respondent has committed any offence as alleged by the petitioner.
8. Mr. Shivaji Shukla, ld. Counsel for petitioner referred to the cancellation letter issued by the respondent available at page 50 of the paper book wherein the address of the registered office of the respondent at the bottom is given as B-23/25, Kailash Colony, New Delhi, submission being that the offence occurred within the territorial jurisdiction of the trial court. It was further submitted that the legal notice issued by the petitioner was served on the Kailash Colony address of the respondent and reference in this regard was made to the copies of postal receipts available at page 49 of the paper book. Reference was also made to the Action Taken Report filed by the IO wherein it is mentioned that earlier there was office of the company at the given address.
9. Arguing on the merits of the case, Mr. Shivaji Shukla, ld. Counsel for petitioner referred to the proofs of the payment in the form of receipts available at page 33-36 of the paper book, it being contended that the petitioner has made the payment to the respondent from time to time. Reference was also made to para 4 of the legal notice dated 09.09.2009 sent CR No. 107/19 4/7 Ram Avtar Jindal vs. Ram Prastha Builders by petitioner to the respondent. Mr. Shivaji Shukla, ld. Counsel for petitioner, submitted that the petitioner sent cheques/demand drafts of various amount but the same were not accepted by the respondent. Mr. Shivaji Shukla, ld. Counsel for petitioner further submitted that respondent has withheld the sum of Rs. 15.77 lakhs of the petitioner and has not paid the same till date and hence offence of criminal breach of trust is made out.
10. Mr. Neeraj Jain, ld. Counsel for respondent, submitted that it is purely a civil dispute which has been given a color of a criminal case. It was submitted that there was no criminal intent of cheating on the part of the respondent. Mr. Neeraj Jain, ld. Counsel for respondent further submitted that the office of applicant is in Ghaziabad and project is in Ghaziabad. The address mentioned on the cancellation letter is also located at Ghaziabad, submission being that the court of Ld. MM has no territorial jurisdiction to entertain the complaint. It was further submitted that there is no proof of receipt by the company so far as postal receipt showing service of legal notice are concerned.
11. Mr. Neeraj Jain, ld. Counsel for respondent referred to the cancellation letter wherein a request has been made to the petitioner to collect the cheque, the submission being that there is no criminal breach of trust on the part of respondent. Mr. Neeraj Jain, ld. Counsel for respondent further submitted that the draft mentioned at page 38 was brought after the cancellation of the flat. It was lastly submitted that from the date of cancellation of the flat, the petitioner was in default of Rs. 18,61,000/-.
CR No. 107/19 5/7Ram Avtar Jindal vs. Ram Prastha Builders
12. Let me first deal with the issue of territorial jurisdiction. The complainant in his pre-summoning evidence has categorically deposed that he contacted the company office at its office situated at Kailash Colony, Delhi where he met with some persons who represented themselves in charge of the aforesaid site. CW-1 further deposed that one of them also represented that he is the Managing Director of the Company and it was further represented that company is a very reputed company in the field of Real Estate and they further assured that if petitioner got the flat booked in the aforesaid project, it will be handed over at the earliest. Therefore, as per the pre-summoning evidence the representations/assurances about the project was given to the petitioner at the Kailash Colony, Delhi office of the petitioner. Hence, part of the transaction took place within the territorial jurisdiction of Ld. MM and it is held that Ld. MM has the jurisdiction to entertain the complaint.
13. Coming to the merits of the case, Ld. MM was right in coming to the conclusion that the petitioner has not brought any material on record to show that he has paid the installment to the respondent as per the schedule agreed between the parties. Infact, petitioner even failed to mention in the complaint or in pre-summoning evidence as to what was the total payment to be paid by the petitioner to the respondent and what was the schedule of the payment. Normally in such cases a written agreement is entered into between the parties. The petitioner has not brought on record any such agreement from which the terms of payment could be inferred by the court. In the absence of the agreement, the court was at a loss to find out as to what was the amount payable by the petitioner and what was the CR No. 107/19 6/7 Ram Avtar Jindal vs. Ram Prastha Builders schedule of payment. Hence, the court could not find out as to whether the petitioner has paid the amount as per the agreement between the parties. In the cancellation letter, request has been made to the petitioner to collect the cheque from the office of respondent. Therefore, it cannot be said that respondent has withheld the amount of the petitioner. The obvious conclusion is that summoning of the respondent was rightly declined by the Ld. MM. The court finds no illegality, infirmity and irregularity in the impugned order dated 19.11.2018.
Revision stands disposed of accordingly.
Trial court record be sent back with copy of this order. File be consigned to Record Room.
Announced in open Court.
(Sandeep Yadav) ASJ-02/South East District Saket Courts/New Delhi/07.04.2021 CR No. 107/19 7/7 Ram Avtar Jindal vs. Ram Prastha Builders