Delhi District Court
Sh. Madhur Mittal vs The State on 17 November, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
Crl. (R) No. 16/18
New Crl. (R) No. 91/2018
1. Sh. Madhur Mittal
2. Sh. Raj Kumari Mittal
3. Sumit Mittal
All R/o. E323, Kamla Nagar,
Agra, (U.P).
4. B.N.Gupta
R/o. FS14, First Floor, Sushant Lok,
PhaseII, Gurgaon.
............Revisionists
Versus
1. The State
(Govt. of NCT of Delhi)
2. Hemant Ahujha
R/o. 206, D211, Vivek Vihar,
PhaseI, New Delhi.
............Respondents
AND
Crl. (R) No. 15/18
New Crl. (R) No. 92/2018
CR No.91/18 & 92/18 Page 1 of 12 Madhur Mittal & Ors. Vs.
State & Ors.
1. Madhur Mittal
2. Raj Kumari Mittal
3. Sumit Mittal
All R/o. E323, Kamla Nagar,
Agra, (U.P).
4. B.N.Gupta
R/o. FS14, First Floor, Sushant Lok,
PhaseII, Gurgaon.
............Revisionists
Versus
1. The State
(Govt. of NCT of Delhi)
2. Sanjay Shethi
R/o. D295, Vivek Vihar,
PhaseI, New Delhi.
............Respondents
ORDER
1. By way of present order, I propose to decide both above mentioned revision petitions as common question of facts and law is involved in both the revision petitions. These revision petitions are preferred against the order dt. 19.04.2018, passed by Sh. Ajay Garg, Ld. CMM, Shahdara, whereby DCP concerned was directed to register an FIR on the complaint of the complainant within 24 hours from that day.
CR No.91/18 & 92/18 Page 2 of 12 Madhur Mittal & Ors. Vs. State & Ors.
2. Arguments have been advanced by Sh.Vikas Pahwa, Sr. Advocate with Sh. Kamal Bahal, Ld. Counsel for revisionists as also by Sh. K.P.Singh, Ld. Addl. PP for the State/R1 and Sh. Durgesh Pal, Ld. Counsel for respondent no.2.
3. Ld. Counsel for revisionists argued that no second FIR can be registered with respect to offences arising out of the same transaction. It has been submitted that EOW FIR No. 234/2008 was registered primarily on the allegation that revisionist hatched a conspiracy and in pursuance thereof cheated so many investors. Ld. Counsel for revisionist further argued that chargesheet has been filed before the court of Ld. CMM, SouthEast District and respondents no.2 i.e Sanjay Sethi and Hemant Ahuja have been made witnesses at Serial No 2489 and 2354. It is further submitted that Hon'ble Supreme Court directed the official liquidator to examine the assets of the accused/revisionist company and to sell the assets as per directions of Hon'ble High Court of Delhi, where proceedings pertaining to sale of project (Sector 78 & 89 Faridabad) and refund of the invested amount of complainants is pending. My attention is drawn in respect of certain authorities reported as Zahira Habibulla Vs. State of Gujrat, (2004) 4SCC 158; T.T.Antony Vs. State of Kerala (2001) 6 SC 181; State. Vs. Ramesh Chand Kapoor; Amitbhai Anilchandra Vs. CBI (2013) 6SCC 348; Kari Choudhary Vs. Sita Devi, AIR 2002 SC 441; Chirra Shivraj Vs. State, AIR 2011 SC 604; Ramesh Nandlal Vs. State, AIR 2006 SC 915; Sidhartha Vashisth Vs. State (NCT) of Delhi CR No.91/18 & 92/18 Page 3 of 12 Madhur Mittal & Ors. Vs. State & Ors.
(2010) 6 SCC1; R.Dinesh Kumar Vs. State (2015) 7 SCC 497; Balbir Vs. State of Harayana (2000) 1 SCC 285; Upkar Singh Vs. Ved Prakash (2004) 13 SCC 292; Babubhai Vs. State of Gujarat, (2010) 12 SCC 254; Surender Kaushik Vs. State of U.P (2013) 5SCC 148; Mallu & Ors. Vs. The State of Karnataka & Ors., Manu/KA/1113/2015; C. Muniappan & Ors. vs. State of Tamil Nadu (2010) 9 SCC 567; State Vs. Ram Kumar Meena & Ors. Crl. M.C 1187 of 2014 & Anju Chaudhary Vs. State of U.P, (2013) 6 SCC 384.
4. Per contra, Ld. Addl. PP for the State as well as Ld. Counsel for respondent no.2 argued that separate agreements executed with different complainants cannot be regarded as a single series of transaction. Ld. Counsel for respondent no.2 further argued that FIR with EOW was registered on 24.12.2008 but agreements with respondents were executed in the year 2010 and payments were also received up to 2011. Ld. Counsel for respondent no.2 further contended that as per section 219 Cr.P.C, three complaints of same kind within a year can be clubbed as conducting a single trial involving large number of complainants will lead to hardship, practical difficulties and trial will never come to an end. My attention is drawn in respect of authorities as mentioned in the reply filed by the respondents i.e Narender Jeet Singh Sahni Vs. Union of India, 2002 (1) JCC; Ramesh Chandra Nand Lal Parekh Vs. State of Gujarat & Anr. 2006 (1) SCC 732; State of Punjab & Anr.Vs. Rajesh Sayal, VI (2002) CR No.91/18 & 92/18 Page 4 of 12 Madhur Mittal & Ors. Vs. State & Ors.
SLT 95; Om Prakash Singh Vs. State of Bihar & Ors., Crl. (A) No. 857/2018; Babu Bhai Vs. State of Gujarat & Anr. 2010 (12) SCC 254; Anil Kumar Jain Vs. State, Writ Petition Crl. No. 1486/2010 & B.N.Gupta & Anr. Vs. State, Bail Appl. No. 1641/2009.
5. The impugned orders in both the revision petitions have been assailed mainly on the grounds that Ld. CMM while passing the impugned order has acted with undue haste and has passed the impugned order without application of judicial mind, which is erroneous and there is patent illegality on the face of it; that Ld. Trial Court did not consider the action taken report/investigation done by the police on the complaint filed by the complainant; that Ld. Trial Court failed to consider the fact that complainant has been clubbed in the FIR No. 234/18, PS Economic Offences Wing; Ld. Trial Court did not mention any section under which the FIR has to be registered; that no second FIR can be registered with respect to the same incident; that several different trials at several different places would seriously hamper petitioner's right of defence; that second or successive FIRs results in miscarriage of justice and is in gross violation of the bare provisions of the law as well as the law laid down by the bench of Hon'ble three Judges of Hon'ble Supreme Court of India in case of Upkar Singh Vs. Ved Prakash & Ors., (2004) 13 SCC 292; that order for registration of FIR against the petitioners is void and not permissible in law; that two parallel proceedings against the company is not permitted in the eyes of law; that most of the customers/investors have already filed CR No.91/18 & 92/18 Page 5 of 12 Madhur Mittal & Ors. Vs. State & Ors.
their claims in the office of official liquidator and Hon'ble High Court of Delhi has appointed a committee to scrutinize the claims of all the investors/creditors and after that official liquidator will distribute the amount to all the investors/customers; that complainant cannot ask for the delivery of the Flats as the Hon'ble Supreme Court has turned down the said request and had directed the official liquidator to examine the assets of the accused company and sell the assets as per the directions of Hon'ble High Court of Delhi and to distribute the sale proceeds among the creditors in accordance with law; that in terms of order dt. 11.02.2013, the properties situated at Faridabad are being put to public auction to pay to all class of creditors; that complainant also filed the complaint with the police station EOW Crime Branch and this complainant is also one of the complainant in the FIR No. 234/2008; that disputes are purely of civil nature involving payment of debt and there is no criminality involved in any manner whatsoever and that report filed by (EOW) has not been considered by Ld. Trial Court.
6. To consider rival contentions of both the parties, briefly relevant facts as mentioned in the complaints filed by respondents, wherein impugned orders were passed by Ld. Trial Court and of FIR No. 234/2008 are as under:
(I) In complaint cases it is alleged that based upon the representations made by accused persons regarding their proposed housing project "Triveni Galaxy" at Sector78, Faridabad, Haryana, complainants applied for flat in CR No.91/18 & 92/18 Page 6 of 12 Madhur Mittal & Ors. Vs. State & Ors.
the said project and the company allotted flat no. 502, Tower No. T14 and flat no. 1203, Tower No. T20 to both the complainants vide allotment letter dt. 31.03.2007 and 01.06.2007 for a sale consideration of Rs. 29,50,965/ and for Rs.30,00,965/ respectively. Complainant Sanjay Sethi made payment of Rs.26,07,807/ and complainant Hemant Ahuja made payment of Rs. 24,00,000/ starting from 31.03.2007 up to 24.08.2010 and 27.12.2010. It is alleged that as per terms of allotment letter, the company promised to deliver the possession of flat within 12 months. The accused persons induced the complainant to make the payment and even the company was aware that it was not in position to deliver the said apartments/flats to the complainants and executed an allotment agreement dt. 20.10.2010 with complainant Sanjay Sethi with a promise to hand over the possession of flat within 36 months but failed to do so. It is further alleged that the accused persons transferred the money of complainants to some other project and grabbed it and despite liquidation proceedings pending before High Court of Delhi time to time cheated the complainants, hence criminal complaints u/s. 200 Cr.P.C r/w 409/420/418/403/467/471/120B/34 IPC were filed before Ld. CMM, Shahdara on 22.08.2017.
7. Now coming to brief allegations as made in FIR No. 234/2008 registered on 24.12.2008 u/s. 406/420/120B IPC that M/s. Triveni Infrastructure Development Company Ltd. and its Director Sumit Mittal and Madhur Mittal and their employees B. Gupta and Ors. had entered into CR No.91/18 & 92/18 Page 7 of 12 Madhur Mittal & Ors. Vs. State & Ors.
a criminal conspiracy to raise money from the public at large without the permission of Government of India or from any other authority. It is alleged that on the basis of future projects of allotment of plots/flats without existence of such flats as well as land, they fraudulently swallowed the money. As per the chargesheet, copy of which is filed on record, besides the 1176 complainants, who have filed their complaints with the EOW Wing, 4753 other victims/investors had also made payment to the accused company. In this regard, a sum of Rs.496.35 Crores was received from these 4753 investors and they have neither been handed over possession of the promised flats/plots nor their invested amount has been returned. These victims have also been cheated by the accused persons through the present criminal conspiracy and therefore, have been cited as witnesses at Sr. No. 1320 to 6072 in the list of witnesses. They may be called with their payment receipts, agreement and other documents to prove the payment made by them.
8. Thus, the core issue, which is to be addressed, is whether the complaints filed by the respondents are arising out of the same transaction for which a case FIR No. 234/2008 has already been registered or these are separate transactions. In Amit Bhai Anil Chandra Shah Vs. CBI, 2013 (6) SCC 348, it was held by Hon'ble Apex Court, as under:
" This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in CR No.91/18 & 92/18 Page 8 of 12 Madhur Mittal & Ors. Vs. State & Ors.
the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T.Antony, this Court has categorically held that registration of second FIR (which is not a crosscase) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as under:
"19. The scheme of Cr.P.C is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 Cr.P.C on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 Cr.P.C as the case may be, and forward his report to the Magistrate concerned under Section 173 (2) Cr.P.C. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of subsection CR No.91/18 & 92/18 Page 9 of 12 Madhur Mittal & Ors. Vs. State & Ors.
(8) of Section 173 Cr.P.C."
It was further observed in para no.38 as under: " As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated and reaffirmed in the following subsequent decisions of this Court: (1) Upkar Singh vs. Ved Prakash (2) Babubhai Vs. State of Gujarat (3) Chirra Shivraj Vs. State of A.P, and (4) C.Muniappan Vs. State of T.N. In C.Muniappan this Court explained the "consequences test" i.e if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR the offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR."
9. In State Vs. Ramesh Chand Kapoor, 2012 SCC Online Del 4489, Hon'ble High Court of Delhi while relying upon S. Swaminathnam Vs. State of Madras, AIR 1957 SC 540 held that all the investors/complainants have been allegedly cheated in pursuance to a single conspiracy which constitutes the same transaction. In S. Swaminathnam Vs. State of Madras (Supra) it was held by Hon'ble Supreme Court as under:
CR No.91/18 & 92/18 Page 10 of 12 Madhur Mittal & Ors. Vs. State & Ors.
" 7. On behalf of the appellant Abu Bucker it was contended that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The Advocate for Swaminathnam, however, did not put forward this submission. We have examined the charge carefully and find no ground for accepting the contention raised. The charge, as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to cheat members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies.......... In the present case the instances of cheating were in pursuance of the conspiracy and were therefore part of the same transaction."
10. Adverting back to the facts of present case, complainants are victims of alleged cheating and criminal conspiracy for which other similar investors have also made complaints against the accused persons and 1176 such complaints have been annexed with the main chargesheet u/s. 173 (8) Cr.P.C. It is true that statement of all the complainants/witnesses is not CR No.91/18 & 92/18 Page 11 of 12 Madhur Mittal & Ors. Vs. State & Ors.
recorded by the IO but in order to prove the alleged modus operandi of accused persons to cheat the investors in perlaunching of plots/flats in their different projects, names of all such investors, who invested their money in their projects have been mentioned in the list of witnesses of case FIR 234/2008. Initially allotment letters were issued to both the complainants in the year 2007. In Nirmal Singh Kahlon's case (2009) 1 SCC 523, Hon'ble Apex Court held that the second FIR would be maintainable not only because there were different versions but when new discovery is made on factual foundations. The factual foundation in complaints as filed by respondents as also in the FIR No. 234/2008 is same i.e conspiracy to cheat the investors without having permission to collect the money and land for such perlaunching projects. The authorities as relied upon by Ld. Counsel for respondents are not helpful to them in the facts and circumstances of the present case. In result, both the revision petitions are allowed and impugned orders dt. 19.04.2018, passed by Sh. Ajay Garg, Ld. CMM, Shahdara, in CC No. 6775/17 (3393/17) & CC No. 6774/17 (3392/17) by which DCP concerned was directed to register FIR within 24 hours are hereby set aside. Trial Court record be sent back alongwith a copy of this order. Revision files be consigned to record room. SANJEEV KUMAR MALHOTR Digitally signed by SANJEEV KUMAR MALHOTRA Location: Karkardooma Announced in the open court Courts, Delhi Date: 2018.11.17 16:23:26 +0530 on 17.11.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi CR No.91/18 & 92/18 Page 12 of 12 Madhur Mittal & Ors. Vs. State & Ors.