Delhi District Court
Ishan Singh vs State Of Nct Of Delhi on 21 January, 2022
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE-03
SAKET COURTS, NEW DELHI
Criminal Revision No. 786/2019
CNR No. DLSE01-009403-2019
ISHAN SINGH
S/o Sh. Lokendra Singh
R/o 298, Sainik Farms
New Delhi-110068 .... Petitioner
VERSUS
1. STATE OF NCT OF DELHI
Through Additional Public Prosecutor
2. SPAZE TOWERS PRIVATE LIMITED
Having its Registered Office at:
A-307, Ansal Chambers J3,
Bhikaji Cama Place,
New Delhi-110066
Also at:
Spazedge, Sector-47,
Sohna Road Gurugram,
Haryana-122002
3. AMAN SHARMA
Director, Spaze Towers Private Limited
R/o Farm No. 16, Khasra No. 387,
The Green Farm,
Rajokri Village,
Delhi.
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4. BHARAT BHUSHAN KUMAR
Director, Spaze Towers Private Limited
R/o Farm No. I, Grand Westend Green Farm,
Rajokri Village, Delhi.
5. DEEPAK KUMAR
Director, Spaze Towers Private Limited
R/o Farm No. I, Grand Westend Green Farm,
Rajokri Village, Delhi.
6. GAGAN MAHAJAN
Director, Spaze Towers Private Limited
R/o A-51160 B DDA Flats,
Paschim Vihar,
New Delhi - 110063.
7. HARPAL SINGH CHAWLA
Director, Spaze Towers Private Limited
R/o Khasra No. 4821483 The KS Farms,
Rajouri Village, Delhi.
8. JASPAL SINGH CHAWLA
Director, Spaze Towers Private Limited
R/o Khasra No. 4821483 The KS Farms,
Rajouri Village, Delhi.
9. VIPIN SHARMA
Director, Spaze Towers Private Limited
R/o Farm No. 16, Khasra No. 387,
The Green Farm,
Rajokri Village,
Delhi.
10. ANU SACHDEVA
Representative of Spaze Towers Private Limited
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Saksham House Sector 15, Part 2,
(Back Side of JMD Building),
Gurugram, Haryana 122001
11. KULMEET SINGH
F-24, South Extension-1,
New Delhi.
.... Respondents
Date of institution : 21.11.2019
Date of reserving the order : 21.12.2021
Date of pronouncement : 21.01.2022
JUDGMENT
1. This is criminal revision under Section 397 and 399 Cr.
P. C filed by petitioner / complainant against impugned order dated 05.09.2019 passed by court of Sh. Deepak Sherawat, Ld. CMM, South-East whereby Ld. CMM was pleased to dismiss application of petitioner u/s 156(3) Cr.P.C. and took cognizance of complaint filed by petitioner u/s 200 Cr.P.C.
2. It is stated that through present petition, petitioner seeks to challenge impugned order passed by Ld. CMM as it failed to follow settled principles of law so far as it relates to dismissal CR 786/2019 Ishan Singh Vs. State and Ors Page no....3 of 49 of application u/s 156(3) Cr.P.C.
3. It is stated that impugned order is illegal, perverse and incorrect and ought to be set aside by this Court in revisional jurisdiction.
4. Brief facts necessary for disposal of present revision petition as mentioned in revision are as follows:
5. It is stated that petitioner is sole and absolute owner of 3.4 acres of land in village Naurangpur, now in Sector-78, Gurugram bearing Rect. No. 6, 11/5, 11/4, 11/3, 11/2, 12/2, 20, 21/1, 21/2, Rect. No.7, Kila No. 1/2, 1/1, Rect No. 8, 5/2/2, total admeasuring 27 Kanal 3 Marlas or 16425 sq. yards.
6. It is stated that in 2008, the petitioner was approached by and met with Mr. Vipin Sharma, Anu Sachdeva, Aman Sharma and H.S. Chawla being Directors and Authorized Representatives of the respondent company. They represented to petitioner that they hold vast expertise in real estate, are reputed builders and that they sought petitioner's land for a commercial project. They assured petitioner that he would get CR 786/2019 Ishan Singh Vs. State and Ors Page no....4 of 49 high financial gains from the commercial project. Thus, with their sugar tongue and promise of financial gain, they induced petitioner to enter into a collaboration with them. Petitioner was informed that the project would be complete in 36 months and that all the units shall be sold by respondent. Petitioner signed a collaboration Agreement and Power of Attorney, both dated 21.08.2008 in this regard which agreement was cancelled by accused persons in 2009 in order to gain from change in government policy. Subsequently, same agreement was re- signed on 19.06.2010 with same terms and conditions.
7. It is stated that in order to further gain petitioner's trust, accused persons paid a security deposit of Rs. 1.5 crores on signing of Collaboration Agreement.
8. It is stated that as per terms of agreement, petitioner was to get 33% of the super built up area and undivided right of the land and remaining 67% of the said super built up area was to be given to accused company. Based on these terms, accused company allotted retail and commercial space to petitioner vide CR 786/2019 Ishan Singh Vs. State and Ors Page no....5 of 49 false and fabricated set of allotment letters dated 07.05.2012 and 08.05.2012. Petitioner was given allotment letters for 42 shops in retail on ground and first floor and 84 units in upper floors-numbered 1201 to 12021, 1401-1421, 1501-1521 & 1601-1621on 12th , 13th, 14th and 15th floors.
9. It is stated that as per terms of Power of Attorney, accused persons were given dominion over property and were required to obtain all requisite permissions and sanctions before starting construction on the said premises. Accused persons misrepresented petitioner that they had obtained all requisite permission, licenses and clearances from relevant authorities. Accused persons further represented to petitioner that they were experts in the said field and would only start construction once they had obtained all the approvals. Believing representation of accused persons, petitioner accorded his approval for construction on the land, however, the fact remained that accused never took requisite sanctions and approvals and started carrying out construction in contravention of existing laws. CR 786/2019 Ishan Singh Vs. State and Ors Page no....6 of 49
10. It is stated that as per terms of agreement, accused were obliged to build and sell petitioner's share of the project as well as their share simultaneously if petitioner requested them to do so. When units belonging to petitioner were sold, accused were supposed to promptly deposit sale proceeds of petitioner's units in an escrow account which was to be opened in name of M/s. Spaze Towers Pvt. Ltd. - A/C Spaze Arrow maintained with Kotak Mahindra Bank, KG Marg, New Delhi.
11. It is stated that soon it became clear that accused persons were criminals and fraudsters who had no intention of honouring their agreement right from very inception. It is stated that soon after providing allotment letters to petitioner allotting him top floors i.e. 12, 14, 15 and 16 floors on 7 th and 8th May, 2012, accused company applied for approval of building plans on 12.06.2012. It is stated that the said building plan was approved on 28.02.2013. In the said building plan, accused company received approval to build only 12 floors and not 16 which effectively reduced share of petitioner to less than 15% of CR 786/2019 Ishan Singh Vs. State and Ors Page no....7 of 49 legally sanctioned area as opposed to 33% as stated in the agreements.
12. It is stated that petitioner believes that despite terms of agreement wherein share of petitioner was supposed to be built and sold simultaneously alongwith share of accused company, accused persons surreptitiously only sold their own share of property and sold very few units of petitioner's retail space at a lower price and accepted the difference in cash thus cheating petitioner of his fair share.
13. It is stated that although top four floors of commercial project were property of petitioner herein, it came to notice of petitioner that accused persons had sold off 9th and 10th floor of the property and pocketed over Rs. 15 crores rather than giving it to petitioner to whom it was rightfully due.
14. It is stated that in this manner, accused persons sold more than their share of 67% of the area and received Rs.160 crores approximately as proceeds of the sale and other associated amount from the property. To deny petitioner of his rightful CR 786/2019 Ishan Singh Vs. State and Ors Page no....8 of 49 share, accused released official amount of sales as approximately Rs.80 crores out of which petitioner has only been paid Rs.7,10,93,828/- which is less than 10% of the amount allegedly pocketed by accused persons officially. Accused persons have siphoned off money rightfully due to petitioner and by this manner accused persons have caused wrongful loss to petitioner and wrongfully gained by themselves.
15. It is stated that as per license issued by government of Haryana dated 06.06.2012 and clause 16(xiii) of approval of building plans, it also included a pre-condition of environmental clearance as per Notification No. S.O 1533(E) of MOEF dated 14.09.2006 to be obtained by accused prior to development and construction. The said project has been sealed from 04.01.2017 as accused did not obtain requisite environmental clearance prior to initiating construction. Thus, the commercial project is now lying unfinished. Accused persons misrepresented to petitioner that they had obtained all requisite permissions to CR 786/2019 Ishan Singh Vs. State and Ors Page no....9 of 49 start construction.
16. It is stated that despite property in question being sealed, accused continued to misappropriate and cheat their customers by continuing to sell units. Further, accused are charging their customers of external development charges and demanding payment towards plumbing, wiring, electricals and VAT despite they do not having a licence to carry out construction on property. Accused persons in this way have taken 95% of value of units from customers while they have built only 35% of units.
17. It is stated that petitioner filed a complaint with EOW on 11.07.2018 but that EOW seems to be hand in glove with accused persons as it has given a clean chit to accused. EOW has even ignored that multiple complaints with the police have been filed by customers of accused company and some of them have even been culminated into an order for FIR as a consequence of applications filed u/s 156(3) Cr.P.C. Further, LC appointed by RERA, Haryana on 11.09.2019 has reported that CR 786/2019 Ishan Singh Vs. State and Ors Page no....10 of 49 there is wrong doing and lapses on part of accused and promoter has violated terms and conditions of approval given by competent authorities.
18. It is stated that accused persons in view of marketing agreement were supposed to deposit petitioner's share of money into an escrew account immediately after collecting it, however, accused persons deposited money many years later and have still not deposited entire amount due to petitioner. While accused claims that only 23 shops of petitioner have been sold, they in criminal conspiracy failed to declare sale of over 15 crores from 35 plus units in floors 9 and 10 which belong to petitioner and petitioner till date has received only Rs. 7 crores approximately as proceeds of sale from accused company despite accused company generating revenue of approximately Rs.160 crores.
19. It is stated that petitioner approached Ld. Trial Court with complaint u/s 200 Cr.P.C. alongwith an application u/s 156(3) Cr.P.C. to register FIR in the matter but that Ld. Trial Court vide CR 786/2019 Ishan Singh Vs. State and Ors Page no....11 of 49 impugned order dated 05.09.2019 erroneously dismissed application of petitioner u/s 156(3) Cr.P.C.
20. Following grounds have been taken by petitioner to challenge impugned order:-
a) Because impugned order passed by Ld. Trial Court is perverse, illegal and contrary to mandate of Cr.P.C. and therefore deserves to be set aside by this Court in exercise of revisional jurisdiction.
b) Because impugned order passed by Ld. Trial Court would lead to grave miscarriage of justice and would lead to abuse of process of Court and therefore requires to be corrected at this stage itself.
c) Because impugned order passed by Ld. Trial Court has relied on judgment of Skipper Beverages while dismissing application of petitioner u/s 156(3) Cr.P.C., however, the said judgment has no applicability in facts and circumstances of present case due to following reasons:
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(i) The judgment in Skipper Beverages is restricted in its ambit to cases which are not of serious nature whereas in present case, allegations leveled against accused persons pertain to Section 409,420 and 467 IPC, punishment for which ranges from 7 years to life imprisonment. It is stated that it is not clear that how Ld. Trial Court thought that these offences are not serious offences. Accused persons have not only defrauded petitioner but also ordinary public in general by taking their money and siphoning it off thus causing wrongful gain to themselves.
(ii) Present case involves elements which are in no way in knowledge and possession of petitioner herein and to bring out complete extent of fraud, cheating and misappropriation perpetrated by accused on petitioner, proper investigation by police is required. Accused persons have to be taken into custody and embezzled and siphoned money is to be recovered from them. Police also needs to uncover money trail and details of bank accounts where proceeds of over 250 unit holders are lying deposited. State machinery is required to get balancesheet CR 786/2019 Ishan Singh Vs. State and Ors Page no....13 of 49 of accused company, details of contracts with vendors and architects, various builder buyer agreements showing per square foot rate of sale, payment plan and other necessary items. These facts are not in custody or knowledge of petitioner and Ld. Trial Court erroneously held that all the documents and evidence are in possession of petitioner.
(iii) There is likelihood that accused persons may abscond with the due amount and they are required to be taken into custody for recovery of due amount. Judgment in Skipper Beverages case restricts its scope to cases where no recovery is due and thus no custodial interrogation is required.
(iv) EOW seems to be hand in glove with accused and that is why they have submitted closure report. Section 156 (3) Cr.P.C.
empowers a Magistrate to order for registration of FIR in case Magistrate is satisfied that a proper investigation has not been done or being done by police. EOW has left following lapses:
(I) EOW did not look into Section 7 of Haryana Development and Regulation of Urban Areas Act 1975 or other laws CR 786/2019 Ishan Singh Vs. State and Ors Page no....14 of 49 according to which there is clear bar on advertising and transferring units without obtaining a valid licence. Accused persons without having valid environment clearance in fact have sold more than 80% of plots in the commercial project. (II) Investigation qua environment clearance is a complete shan and self contradictory. EOW has concealed deliberately that environmental clearance was a pre-requisite to construction in terms of licence and building plans. Non issuance of environmental clearance was concealed from petitioner which came into his knowledge only on sealing of the project. Mere application in year 2013 is of no relevance and according to licence dated 07.06.2012 bearing No. 56/2012, NOC from MoEF had to be submitted before executing development work at the site. Accused not only constructed illegal building but sold areas and misappropriated money.
(III) Allegation of misuse of Power of Attorney has also not been addressed. Offence of forgery is made out as execution of a document in furtherance of construction without environment CR 786/2019 Ishan Singh Vs. State and Ors Page no....15 of 49 clearance is a misuse of Power of Attorney to the knowledge of accused persons. Despite notice of cancellation, Power of Attorney was continued to be misused in order to cover up misdeeds of accused persons.
(IV) EOW has simply relied on bald lies of accused without carrying out a proper investigation. Accused have misappropriated and continue to misappropriate not only money of petitioner but also of customers of accused. EOW has not looked into over 250 individual builder buyer agreements from whom over Rs. 80 crores officially and Rs. 80 crores plus unreported cash sales have been done by accused persons.
There is total failure on part of EOW to investigate the money trail and report on siphoning of funds to expenditure and investments made by accused in India and abroad. (V) Multiple customers have also filed complaints against accused persons and certain complaints have culminated into FIR. In case of Bimla Dalmia Vs. M/s. Spaze Tower Pvt. Ltd., Ld. MM Sh. Dharmender Singh has directed registration of FIR CR 786/2019 Ishan Singh Vs. State and Ors Page no....16 of 49 by police by observing that matter requires investigation by police as number of documents are required to be collected and number of persons are required to be examined. It is stated that property in question forms part of entire property of petitioner regarding which he has been defrauded and cheated by accused persons alongwith number of other persons. Despite all this, EOW gave clean chit to accused which shows that they are in hand in glove with accused.
(VI) EOW has failed to consider that in catena of judgments, it has been held that in cases of cheating by builders / developers, FIR should be registered against them rather than filing of civil cases.
(VII) EOW has given clean chit to accused persons despite multiple complaints being given against them by general public. Further LC appointed by RERA, Haryana on 11.09.2019 has reported that there is wrong doing and lapses on part of accused and that accused have violated terms and conditions of approval granted by competent authorities. There is need to monitor CR 786/2019 Ishan Singh Vs. State and Ors Page no....17 of 49 investigation by Court u/s 156(3) Cr.P.C. in these circumstances.
d) Because Ld. Trial Court failed to consider that petitioner as well customers of accused who have purchased properties are suffering tremendously whereas accused persons are throwing lavish wedding and parties from hard earned money of petitioner and its customers. Accused persons threw a huge wedding party in Abu Dhabi in February 2017, one month after the project was sealed to spend ill gotten money. In September 2017, accused persons took 600 people on a cruise from Singapore to Malaysia. Accused have also been purchasing luxury cars such as Rolls Royces, Bentleys and Porshes. Accused have also been purchasing huge farm houses. There is apprehension in mind of petitioner that all these has been funded by accused persons from money ill gotten from petitioner and general public for which thorough investigation is required.
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e) Ld. Trial Court failed to consider that cases of cheating, fraud, misappropriation and forgery by builders / developers are serious in nature and merit detailed police investigation in order to ascertain extent of offences and amount of wrongful gain to themselves and wrongful loss to general public and others.
f) Ld. Trial Court failed to consider that accused persons in this case have siphoned off sum of over Rs. 80 crores of both petitioner as well as general public and left petitioner with semi completed property in despair which is sealed. It is necessary that proper police investigation be carried out so that money trail is followed which is not in the knowledge of petitioner. Huge amount of money due to petitioner as well as general public is to be recovered from accused persons for which thorough investigation is required.
g) That ambit of Skipper Beverages judgment restrict itself to cases which are not of serious nature but as discussed and evident that cases of fraud / cheating / misappropriation by builders / developers are rampant and serious which require CR 786/2019 Ishan Singh Vs. State and Ors Page no....19 of 49 police investigation.
h) That considering huge amount of money siphoned off by accused, there is likelihood that accused shall abscond in case they are not taken into custody and registration of FIR is a must.
i) State investigation machinery is necessary to investigate execution of documents with State authorities and related parties like suppliers, architects and others regarding which petitioner has no knowledge.
j) Accused persons continue to take money of its customers on one pretext or other despite building being sealed and this shameless attitude of accused persons can be checked only if they are brought to justice by registration of FIR.
21. It is prayed to allow revision petition, call TCR, set aside impugned order dated 05.09.2019 and order for registration of FIR as prayed for by petitioner in his application u/s 156(3) Cr.P.C.
22. I have heard arguments addressed by respective counsels and perused the record including TCR and gone through written CR 786/2019 Ishan Singh Vs. State and Ors Page no....20 of 49 arguments and judgments filed by the parties.
23. It was contended by petitioner that investigation done by EOW qua Environmental Clearance is a complete sham and self contradictory. It was contended that EOW has concealed deliberately that Environmental Clearance was a pre-requisite to construction in terms of licence granted and building plans. It was submitted that non issuance of Environmental Clearance was concealed from petitioner which fact came to knowledge of petitioner only on sealing of the project and that mere application in 2013 is of no relevance. It was argued that as per licence bearing No. 56/2012, NOC from MoEF had to be submitted before executing developmental work at the site.
24. IO in her status report dated 10.05.2019 filed before Ld. Trial Court has mentioned that pursuant to order No. HSPCB/2017/2957-59 dated 04.01.2017 passed by HSPCB, Panchkula, Haryana, construction work at the project site was suspended. She in her status report dated 13.05.2019 filed before Ld. Trial Court further mentioned that on inquiry, it has CR 786/2019 Ishan Singh Vs. State and Ors Page no....21 of 49 been found that Environmental Clearance was applied by respondent company on 01.07.2013 and it obtained 'Terms of Reference' from MoEF and CC vide letter Bearing No. F No. 23-38/2018-IA-III dated April 2018.
25. As per contentions of petitioner, non issuance of Environmental Clearance was concealed from petitioner and the fact only came to knowledge of petitioner on sealing of the project. Petitioner has contended that without obtaining Environmental Clearance, respondent company started carrying development work at the site and that not only illegal construction was done by respondent company but money of public at large was also misappropriated by respondent company.
26. There is one legal notice dated 15.05.2017 given on behalf of petitioner to respondent Aman Sharma available on TCR. Vide this legal notice, damages of Rs.70 lakhs have been sought by petitioner alongwith interest @ 24% per annum for non completion of construction work by respondent company. CR 786/2019 Ishan Singh Vs. State and Ors Page no....22 of 49 Petitioner has stated that he came to know regarding non obtaining of Environmental Clearance on part of respondent company on sealing of the project which was vide order dated 04.01.2017 meaning by that petitioner before issuing legal notice dated 15.05.2017 came to know that Environmental Clearance for the project is yet to be obtained by respondent company but vide notice dated 15.05.2017, petitioner has not said anything in this regard and rather has claimed damages for non completion of construction by respondent company.
27. In reply to legal notice of petitioner dated 15.05.2017, respondent company gave reply dated 26.08.2017 wherein it mentioned that No Objection Certificate from Dy. Conservator of Forest Department was obtained by respondent company on 15.03.2013 and No Objection Certificate in the Aravali Zone was issued by Dy. Commissioner, Gurgaon on 10.04.2013. It further mentioned that requisite assurance of water supply sanction was granted by Executive Engineer, HUDA Division No. III, Gurgaon on 14.10.2013. It further mentioned that once CR 786/2019 Ishan Singh Vs. State and Ors Page no....23 of 49 an application was submitted by respondent company with the concerned statutory authority for grant of any permission / sanction, respondent company ceases to have any control over grant of the same. It further mentioned that respondent company only diligently and sincerely pursued grant of the said permission and that respondent company has got no control over Departmental / Bureaucratic functioning. It is pertinent to mention that reply dated 26.08.2017 is on TCR.
28. Petitioner gave further reply to reply of respondent company dated 12.10.2017 which has been filed by petitioner on TCR wherein petitioner reiterated all the averments of legal notice dated 15.05.2017 and stated that time was essence of agreement between parties and that respondent company should have completed construction by 28.02.2016. Petitioner in this reply stated that construction on site began in early 2014 and therefore, it is obvious that obtaining of Environmental Clearance as alleged by respondent company was not a condition precedent to completion of project. Petitioner further CR 786/2019 Ishan Singh Vs. State and Ors Page no....24 of 49 mentioned that it is well established law that a builder can not absolve himself of the responsibility to complete construction of a project on the premise that application for requisite certification is pending. Petitioner stated that if builder fails to obtain necessary certification, he is liable to compensate owner of the land. Petitioner further mentioned that defence that certification is not obtainable is merely an excuse for failing to complete the project and that respondent company has abandoned the project and locked offices and left building incomplete with one floor yet to be constructed. Petitioner vide this reply inter alia claimed damages to the tune of Rs. 95 lakhs plus interest @ 24% per annum.
29. Petitioner vide reply dated 12.10.2017 appears to be more interested in getting pecuniary compensation / damages from respondent company rather than pointing out any illegality by respondent company in starting construction without obtaining Environmental Clearance which issue has been raised by petitioner in present revision petition.
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30. Petitioner in written submissions filed on his behalf has contended that respondent company started construction without obtaining Environmental Clearance and thus has acted against law. Petitioner further stated that respondent company made sales in the project even prior to issuance of licence. It is not disputed by petitioner that certain units on behalf of petitioner have also been sold by respondent company and that petitioner has received sum of over Rs. 7 crores towards sale of the same. Petitioner did not mention any illegality in notice given by him to respondent company but filed complaint with EOW after he received complete sale consideration towards his units as sold by respondent company. Petitioner in his notice given rather has claimed damages and appears to be depreciating respondent company for its failure to complete construction. It is well settled that law should not be allowed to be misused. On one side, petitioner exhorted respondent company to complete construction and on the other hand, after period of more than one year pointed out illegality in CR 786/2019 Ishan Singh Vs. State and Ors Page no....26 of 49 respondent company starting and selling units without obtaining Environmental Clearance which is not permissible and clearly shows bent of mind of petitioner.
31. IO in her status report dated 10.05.2019 filed before Ld. Trial Court stated that after order dated 04.01.2017 passed by HSPCB, respondent company made representation dated 21.03.2017 and sent it to office of HSPCB. IO further mentioned that another representation dated 17.04.2017 was made by respondent company. IO further mentioned that respondent company again submitted its proposal for grant of terms of references and Environmental Clearance for the project and Expert Appraisal Committee took up the matter on 19.02.2018. IO further mentioned that as respondent company complied with all the terms of Expert Appraisal Committee and term of reference was granted for the project by MoEF and CC vide letter dated April, 2018. IO further mentioned that respondent company for grant of Environmental Clearance for the project in terms of directions passed by the authority CR 786/2019 Ishan Singh Vs. State and Ors Page no....27 of 49 submitted its proposal and authority vide its letter dated 27.07.2018 updated respondent company that proposal for grant of Environmental Clearance for the project shall be taken up by State Expert Appraisal Committee in its 174 th meeting on 09.08.2018. IO further mentioned that as Haryana State Expert Appraisal Committee got dissolved, matter was not taken up by the authority and company vide letter dated 21.08.2018 submitted the documents with Central Committee for grant of Environmental Clearance for the project. IO further mentioned that for purpose of grant of Environmental Clearance for the project, respondent company has again submitted its proposal with MoEF and CC on 10.11.2018. IO further mentioned that State Expert Appraisal Committee at Haryana has now been notified vide Gazette Notification dated 30.01.2019 and that respondent company is hopeful that its case will be listed in the first meeting and Environmental Clearance for the project will be granted soon. IO further mentioned that Directors of respondent company multiple times visited and met Chairman, CR 786/2019 Ishan Singh Vs. State and Ors Page no....28 of 49 HPSCB with respect to suspension of work at site. IO further mentioned that it needs to be appreciated that respondent company is not stand to drive any corresponding advantage by delaying implementation of the project and substantial expenditure has been incurred by respondent company in making payment to petitioner, incurring licence fee, security fee, conversion charges, making payment of external development charges / infrastructure development charges and furnishing bank guarantees.
32. During course of arguments, it was submitted on behalf of respondents other than State that Environmental Clearance has since been received by respondent company and that if work is allowed to be started (which presently was stated to be suspended on account of pendency of Arbitration proceedings between private parties), respondent company shall complete the project within coming 18 months. It is pertinent to mention that petitioner in his written arguments has also admitted that current Environmental Clearance is for building of height of CR 786/2019 Ishan Singh Vs. State and Ors Page no....29 of 49 60.60 meters but current height of building in the project is 64.8 meters.
33. IO in status report dated 10.05.2019 has stated that DTCP, Haryana has audited accounts of respondent company according to which respondent company has received sum of Rs. 75.98 crores and made expenditure of Rs.88.42 crores.
34. From efforts put in by respondent company and from amount spent by it in developing the project (accounts of respondent company are stated to have been audited by DTCP, Haryana as per status report of IO), it does not appear that respondent company is to gain something from delaying the project and it does not appear that starting construction by respondent company without obtaining Environmental Clearance (though it appeared to have applied for grant of the same before starting of developmental work at the site) had any extraneous motive and intention of respondent company was to cheat petitioner on this account.
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35. Petitioner has contended that EOW simply relied on bald lies of respondents without even carrying out a proper investigation. Petitioner has contended that respondents have not only misappropriated money of petitioner but also of customers of respondent. Petitioner contended that EOW has not even looked into over 250 illegal builder buyer agreements from whom over Rs.80 crores officially and Rs. 80 crores plus of unreported cash sale has been received. It is contended that there is total failure on part of EOW to investigate money trail and report on siphoning of funds.
36. IO in her status report dated 10.05.2019 as mentioned earlier has stated that accounts of respondent company have been audited by DTCP, Haryana according to which respondent company has received sum of Rs.75.98 crores and made expenditure of Rs.88.42 crores. With regard to money allegedly received by respondent company for construction of project over land belonging to petitioner, from status report of IO, it is clear that respondent company has spent more amount than it CR 786/2019 Ishan Singh Vs. State and Ors Page no....31 of 49 received. So, there is as such no money trail which is to be traced in the matter. Further, petitioner has locus for himself but not for anyone else and whosoever has any grievance against respondent company for any financial misdeeds, the said person can approach relevant authorities in this regard. So, this contention of petitioner is rejected.
37. It was contended on behalf of petitioner that respondent company provided allotment letters to petitioner allotting him his share in 12, 14, 15 and 16th floor on 7th and 8th May 2012 and that respondent company applied for approval of building plans on 12.06.2012 which were approved on 28.02.2013. It was submitted that in the said building plan, respondent company had applied for and received approval to build only 12 floors and not 16 which effectively reduced share of petitioner to less than 15% of legally sanctioned area as opposed to 33% as agreed to in the agreements.
38. As per status report dated 10.05.2019 filed by IO before Ld. Trial Court, IO has stated that additional three floors CR 786/2019 Ishan Singh Vs. State and Ors Page no....32 of 49 alongwith service floor i.e. 14th, 15th and 16th floor (13th number is considered inauspicious and as such 13th floor is mentioned as 14th floor) were not part of original sanctioned plan but that since total area permitted by department was remaining, respondent company would have got approved deviations / additional floors at the time of obtaining occupation certificate as per Haryana Building rules 2017. It is mentioned that complainant / petitioner was always aware of the same and additional floors were agreed to be made at his request only. IO further mentioned that petitioner approached respondent company and requested that as part of share of his area i.e. 33%, he may be allocated service apartments and it was agreed that after change of existing layout plan, additional 13th, 14th and 15th floors would be constructed exclusively for petitioner. IO further mentioned that revised area distribution, as mutually agreed between petitioner and respondent company in May 2012 as part of their business / commercial understanding, which was further modified in form of supplementary CR 786/2019 Ishan Singh Vs. State and Ors Page no....33 of 49 agreement dated 02.11.2012 mentions in clause-2 of the same that petitioner expressed his desire to convert top floors falling in his allocation to Service Apartments / Hotel / Hospitality Venture. Numerous emails are stated to have been exchanged between parties and Architect of the project wherein petitioner time and again discussed about service apartments which clearly shows that petitioner was fully aware of the location and design aspect of service floors / area under his allocation. IO further stated that with regard to permissibility of proposed service apartment, it is confirmed that same have been constructed utilizing duly permissible FAR and are well within provision of applicable building bye laws. IO further mentioned that sanctioned FAR of project is 23338.576 square meter whereas building plan for the project G+15 floors is having FAR of 23215.705 square meter which is well within permissible FAR as authorized by government authority. IO has stated that through RTI, respondent company found out that Senior Town Planner, Gurugram circle, Gurugram, Haryana has CR 786/2019 Ishan Singh Vs. State and Ors Page no....34 of 49 already approved and sent positive report for approval of revised building plan of G+15 floors for the project to Director, Town and Country Planning, Haryana at Chandigarh.
39. During course of arguments, it was submitted on behalf of respondent company that revised building plan for the project has already been sanctioned by concerned authority and that petitioner shall be delivered whatever was promised by respondent company.
40. Perusal of TCR shows that various emails have been annexed by petitioner written by him to respondent company wherein he has raised various queries with regard to construction being raised by respondent company and also regarding quality of construction. Emails sent by petitioner to respondent company and filed on TCR shows that petitioner remained involved in each and every aspect of construction of the said project and in these circumstances, it becomes difficult to believe that petitioner was not aware that sanctioned plan initially was granted for G+12 floors only. Further, allocation CR 786/2019 Ishan Singh Vs. State and Ors Page no....35 of 49 letters were issued by respondent company in favour of petitioner before receipt of sanctioned plan. As per status report filed by IO, as mentioned above, sanctioned FAR of project is 23338.576 square meters whereas building plan for project i.e. G+15 floors is having FAR of 23215.705 square meters which is well within permissible FAR authorized by government authorities. During course of arguments, one photograph was submitted on behalf of petitioner which clearly showed that basic structure of project has already been raised by respondent company consisting of ground floor + 14 floors.
41. This being the case and in view of the fact that revised plan as submitted on behalf of private respondents has already been approved by competent authorities, there can not be said to be any dishonest intention on part of respondent company or private respondents to cheat petitioner. Hence, this contention of petitioner is rejected having no merits.
42. It was contended by petitioner that respondent company has sold merely 23 shops of petitioner and they failed to declare CR 786/2019 Ishan Singh Vs. State and Ors Page no....36 of 49 sale of over Rs.15 crores from 35 plus units on 9th and 10th floor which belong to petitioner. It was submitted that petitioner till date received only approximately Rs.7 crores whereas respondent company generated approximate revenue of over Rs. 160 crores.
43. At the cost of repetition, it is again mentioned that IO in her status report dated 10.05.2019 filed before Ld. Trial Court has stated that respondent company received a sum of Rs.75.98 crores and had made expenditure of Rs.88.42 crores which nullify contention of petitioner with regard to money allegedly received by respondent company by selling units in the project. Perusal of copies of allotment letters issued in favour of petitioner filed by petitioner on TCR does not show that petitioner was allotted any space on 9th and 10th floor. So contentions of petitioner in this regard are not tenable and hence rejected. So far as construction of further floors is concerned, as per status report of IO, there is still space available within permissible FAR.
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44. It was contended on behalf of petitioner that misuse of Power of Attorney of petitioner has not been addressed by EOW and that offence of forgery is also made out as despite notice of cancellation of Power of Attorney, the same was continued to be misused in order to cover up misdeeds of private respondents.
45. Private respondents in their written arguments have stated that no allegations were made by petitioner in his police complaint dated 11.07.2018 qua commission of offence of forgery and that petitioner has improvised his case materially for the first time in his application filed u/s 156(3) Cr.P.C. by introducing false allegations of forgery against private respondents.
46. Petitioner in his written submissions has stated that after Collaboration Agreement was cancelled and Power of Attorney revoked by petitioner on 13.12.2018, respondents engaged in another criminal act and applied for revised building plan on 17.12.2018 using cancelled Power of Attorney which despite protests of unit holders and petitioner was approved on CR 786/2019 Ishan Singh Vs. State and Ors Page no....38 of 49 10.09.2019.
47. Perusal of TCR shows that Power of Attorney given to respondent company was got cancelled by petitioner on 21.12.2018 meaning thereby that before cancellation of Power of Attorney in its favour, respondent company applied for revised building plan on 17.12.2018 which further indicates that no forgery was done by respondent company so far as aspect of applying for revised building plan on 17.12.2018 is concerned and contentions of petitioner in this regard have no merits. So far as allegations of petitioner with regard to start of construction by respondent company without Environmental Clearance is concerned thereby denoting misuse of Power of Attorney given by petitioner, it has already been discussed that respondent company as per reply given to legal notice dated 15.05.2017 stated that they received No Objection Certificate from Dy. Conservator of Forest Department on 15.03.2013 and NOC in Aravali Zone was issued by Dy. Commissioner, Gurgaon on 10.04.2013. IO in her status report dated CR 786/2019 Ishan Singh Vs. State and Ors Page no....39 of 49 13.05.2019 filed before Ld. Trial Court has stated that Environmental Clearance was applied for by respondent company on 01.07.2013. Respondent company did whatever it could do i.e. applying for grant of Environmental Clearance but in case the same was not granted because of fault of respondent company has not been brought on record either by petitioner or by IO Inspector Shivani. In these circumstances, it can not be said that intention of respondent company was to misuse Power of Attorney given by petitioner so as to constitute offence of forgery. Intention of respondent company is also clear from the fact that as per status report of IO as discussed above received sum of Rs. 75.98 crores and spent Rs. 88.42 crores. So contention of petitioner on this account is also rejected.
48. It was contended on behalf of petitioner that Ld. Trial Court failed to consider that respondents in this case have siphoned off a sum of over Rs. 80 crores belonging to petitioner and general public and in return have left petitioner with semi completed property in despair which is sealed. It was submitted CR 786/2019 Ishan Singh Vs. State and Ors Page no....40 of 49 that construction of project was to be completed by respondent company in 2016 whereas only structure of building has been raised by respondent company and that more than 50% work of the project is yet to be completed by respondent company.
49. It was submitted on behalf of respondent company and private respondents to this submission of petitioner that as per supplementary agreement between respondent company and petitioner dated 02.11.2012, timeline for completion of project would be three years from date of grant of Environmental Clearance which has been agreed to by petitioner himself and which supplementary agreement supersedes all previous agreements between parties. It was submitted that earlier the project was sealed by HSPCB vide order dated 04.01.2017 but that now the project has been desealed after obtaining of Environmental Clearance but that as on date, the work is not starting because of order passed in Arbitration proceedings between parties which is going to culminated finally shortly and in case petitioner agrees, respondent company undertakes to CR 786/2019 Ishan Singh Vs. State and Ors Page no....41 of 49 complete the project within next 18 months.
50. So far as siphoning off money by respondent company is concerned though it will be a repetition but it has to be clarified that as per status report filed by IO before Ld. Trial Court dated 10.05.2019, respondent company has received sum of Rs. 75.98 crores whereas it has already incurred expenditure to the tune of Rs.88.42 crores. So, there is no question of siphoning of funds by respondent company and rather, it has spent more than what it received. So far as delay in construction is concerned, supplementary agreement dated 02.11.2012 has been filed by petitioner on TCR. As per clause 4 of the said supplementary agreement, time for completion of project will be three years from date of Environmental Clearance for the project. This clearly connotes that at the time of entering into supplementary agreement, Environmental Clearance to the project was not accorded. Further, giving so much importance to the aspect of Environmental Clearance shows that petitioner might have been apprised of the fact that to obtain Environmental Clearance is CR 786/2019 Ishan Singh Vs. State and Ors Page no....42 of 49 not an easy task and as and when the same is received, respondent company promised to complete the project within three years thereof. Now, admittedly Environmental Clearance for the project has been received and that it was submitted on behalf of respondent company during course of arguments that in case embargo on construction is raised by petitioner, respondent company undertakes to complete the project within next 18 months. So, delay if any in completing construction of project in question appears to be because of reasons beyond control of respondent company. Hence, this contention of petitioner is also rejected.
51. Petitioner filed judgment in case titled as "Arun Saxena and Ors. Vs. Today Homes & Infrastructure P. Ltd. and Ors. MANU/DE/3060/2018". In this case, Hon'ble High Court of Delhi set aside orders of Ld. MM and Court of Ld. ASJ on application of complainant u/s 156(3) Cr.P.C. and ordered for registration of FIR. In this case, Hon'ble High Court of Delhi was of the view that despite complaints of petitioners / CR 786/2019 Ishan Singh Vs. State and Ors Page no....43 of 49 complainants disclosing commission of serious cognizable offences, FIRs were not lodged.
52. In case titled as "Subhash Manchanda Vs. State and Anr. Crl. M.C. No. 3593/2010 decided on 04.02.2013", Hon'ble High Court of Delhi held that whenever a Magistrate is called upon to pass orders u/s 156(3) Cr.P.C., Ld. MM upon a preliminary satisfaction, unless there are exceptional circumstances to be recorded in writing, a status report by the police is to be called before passing final orders.
53. In this case, Ld. Trial Court called for status report / ATR from SHO EOW and though Ld. Trial Court in impugned order has mentioned that as per reply of IO, no criminality on part of alleged company was found and since there was no cognizable offence, complaint has been closed and no case has been registered but still Ld. Trial Court took cognizance of offence and posted the matter for pre-summoning evidence. Ld. Trial Court has neither concurred with report of police nor expressed any divergence from inquiry conducted by police and rather CR 786/2019 Ishan Singh Vs. State and Ors Page no....44 of 49 observed in impugned order that identity of accused is known to complainant, all documents related to transaction and payment of money are within reach of complainant, no custodial interrogation of accused is required for the purpose of collection of evidence and facts are in the knowledge of complainant and no investigation is warranted for unearthing any conspiracy, so it declined application of petitioner u/s 156 (3) Cr.P.C. Besides, keeping the aforesaid aspects into consideration, Ld. Trial Court should have also expressed its opinion in the impugned order as to whether it concurs or is not agreeable to with finding of EOW. In case, Ld. Trial Court was of the view that in view of report filed on behalf of EOW, no criminality is made out on part of respondent company, it should have closed the matter but by not giving any definitive opinion, Ld. Trial Court has left the things open which is not a correct way.
54. It is contended by petitioner in revision petition that earlier petitioner signed a collaboration agreement with respondent company on 21.08.2008 with Power of Attorney of CR 786/2019 Ishan Singh Vs. State and Ors Page no....45 of 49 the same date. It is mentioned that the said agreement was cancelled by respondent company in 2009 to gain from change in government policy and subsequently the same agreement was resigned on 19.06.2010 with same terms and conditions. Petitioner in legal notice dated 15.05.2017 given on his behalf and filed by petitioner on TCR has stated that the initial collaboration agreement was cancelled by mutual consent of petitioner and respondent company on 31.07.2009 and fresh collaboration agreement containing identical terms and conditions as stipulated in collaboration agreement dated 21.08.2008 was signed. This aspect has been discussed just in order to show falsity of facts pleaded by petitioner. The fact that respondent company paid security deposit of Rs. 1.50 crores to petitioner and that respondent company buyed back four units of petitioner for sum of Rs. 95 lakhs (as mentioned in written submissions of petitioner) speaks volume about intention of petitioner herein. Further during course of arguments, it was argued on behalf of private respondents that FIR No. 67/2019 CR 786/2019 Ishan Singh Vs. State and Ors Page no....46 of 49 U/sec 384/406/420/500 IPC has been got lodged by private respondents against petitioner herein which fact was not denied on behalf of petitioner during course of arguments.
55. Judgments in cases titled as "A. Krishna Reddy Vs. Central Bureau of Investigation MANU/DE/2848/2011, Sunil Dahiya Vs. State (Govt. of NCT of Delhi) MANU/DE/2797/2016, Sanjeev Dutta Vs. State Bail Application No. 889/2014, Sanjay Gambhir Vs. The State Govt. of NCT of Delhi MANU /DE/0048/2018, Anil Chamola Vs. State MANU /DE/3104/2019, Sunil N. Godhwani Vs. State MANU/DE/1419/2020, Bijender Singh Lather Vs. Govt. of NCT of Delhi MANU/DE/4271/2019, Dr. Naresh Kumar Mangla Vs. Smt. Anita Agarwal & Ors Etc. Criminal Appeal Nos. 872-873 of 2020, P. Chidambaram Vs. Directorate of Enforcement Criminal Appeal No. 1831/2019 and Bhanu Prakash Singh Vs. State (G. N. C. T. of Delhi) MANU /DE/1026/2021" have been filed by petitioner but these judgments pertain to grant of bail /anticipatory bail and are not CR 786/2019 Ishan Singh Vs. State and Ors Page no....47 of 49 concerning Section 156 (3) Cr. P. C and hence the said judgments are not applicable to facts and circumstances of present case.
56. Judgment in case titled as "Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Ors. Civil Appeal No. 5041 of 2021" has also been filed by petitioner but as such it is a judgment in civil appeal and is not applicable in facts and circumstances of present case.
57. Petitioner has further filed judgment in case titled as "Assistant Director, Directorate of Enforcement Vs. Sunil Godhwani Crl. M. C. 6018/2019" which is dealing with grant of police custody /remand of accused and as such not applicable in facts and circumstances of present case.
58. Petitioner has further filed judgment in case titled as "Surinder Singh Marwah and Ors Vs. Aeren Entertainment Zone Private Limited and Ors MANU/DE/4312/2019" which is dealing with provisions of Companies Act and as such not applicable in facts and circumstances of present case. CR 786/2019 Ishan Singh Vs. State and Ors Page no....48 of 49
59. Number of judgments have been filed by private respondents but in view of my discussion made in this judgment, I do not find any necessity to discuss them.
60. In view of my above made discussion, I am of the view that no criminality appears to be made out on part of respondent company and private respondents and revision petition filed by petitioner is without merits and is accordingly dismissed.
61. Let TCR be sent back to Ld. Trial Court alongwith copy of judgment.
62. Revision file be consigned to Record Room.
Dictated and Announced (Sonu Agnihotri)
in open Court through VC ASJ-03 (South-East),
on 21.01.2022 Saket Courts, Delhi
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