Delhi District Court
Shri Rajesh Kumar Bairwa vs The State Of Nct Of Delhi on 6 December, 2023
IN THE COURT OF SH. NAVJEET BUDHIRAJA
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
REVISION PETITION NO. 244 OF 2023
CNR NO. DLST01-005711-2023
IN THE MATTER OF
Rajesh Kumar Bairwa
S/o Shri Kesar Lal Bairwa,
R/o G-495, Sangam Vihar,
New Delhi. ........ Revisionist
Versus
1. The State, NCT of Delhi
2. Sh. Arun Sehgal
S/o Shri Ram Dhan Bairwa
R/o Plot No. 170/124, Pratap Nagar,
Sanganer Jaipur, Rajasthan
Also at -
Employed with Cotton Corporation of India,
Khargone, Madhya Pradesh
3. Shri Sandeep Sehgal
S/o Shri Ram Dhan Bairwa
R/o Plot No. 170/124, Pratap Nagar,
Sanganer Jaipur, Rajasthan. ........ Respondents
DATE OF INSTITUTION : 09.06.2023
DATE OF RESERVING ORDER : 16.11.2023
DATE OF PRONOUNCEMENT : 06.12.2023
CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 1 of 11
JUDGMENT
1. Vide this Judgment, I shall dispose of the present revision petition against impugned Order dated 04.05.2023 in complaint case no. 1681/2022 PS Tigri titled as Rajesh Kumar Bairwa Vs. Arun Sehgal & Anr., pronounced by Ld. MM-04 (South), Saket (hereinafter referred to as 'Ld. MM') vide which the application under Section 200 Cr.P.C. was dismissed as not maintainable and no respondents were summoned.
2. The nuts and bolts of the revision petition are that respondents no. 02 and 03 visited the residence of the revisionist for construction of their property in Jaipur i.e. Plot No. 170/26-B, Pratap Nagar, Sangner, Jaipur, Rajasthan measuring 360 sq. yards and a collaboration agreement in this regard was executed between the parties at Sangam Vihar, New Delhi on 17.08.2021. It was agreed between the parties that ground floor, first floor and a toilet on the second floor were to be constructed with labour and building material as per specifications, stipulated in the collaboration agreement. The rate of construction with labour and building material was fixed at Rs 1450/- per sq. ft. The payment was to be paid at different stages of construction as agreed between the parties as per the said collaboration agreement. The revisionist had completed the construction to the tune of Rs 80,16,000/- against the total cost of construction of Rs 95,02,321.21/-. Respondent no. 02 and 03 have paid a sum of Rs 54,75,000/- and are liable to pay the CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 2 of 11 remaining amount of Rs 41,02,321.21/-. After completion of entire construction, the revisionist demanded his remaining payment from the respondents as the revisionist was in need to complete the finishing work of the said construction but respondents failed to pay the remaining amount and breached the terms and conditions of the collaboration agreement with malafide and dishonest intention. They also threatened the revisionist with dire consequences and articles, tools and machines were also kept by them in the said property which were lying there for carrying out the finishing work.
3. It is further the case that for want of funds, the revisionist was unable to complete the remaining finishing work of estimated value of Rs 16,52,360/- and, therefore, the revisionist has claimed the remaining amount of Rs 24,49,961.21/- before restoring possession of the said property to the respondents but they were pressurizing the revisionist to leave the site without making the balance payment of Rs 24,49,961.21/-.
4. On behalf of respondents no. 02 and 03, the aforesaid averments have been disclaimed, the execution of the collaboration agreement and the fact of carrying out the construction as stated above is also dis-affirmed.
5. The grounds on which the present revision petition has been preferred, as culled out from the revision petition, are as under :
CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 3 of 11 "A. Because the Ld. Trial Court has not considered that the respondents have grabbed the amount of Rs.24,49,961.21 (Rupees twenty four lakhs, forty nine thousands nine hundred sixty one only and paise twenty one only) of the petitioner by breaching the terms and conditions of the collaboration agreement dated 17.08.2021.
B. Because the Ld. M.M. has not considered that the Respondent No. 2 and 3 shall be liable to make the payment as per the Annexure and Collaboration agreement as agreed, but the respondent No.2 and 3 have failed to make the payment to the petitioner, with malafide and dishonest intention.
C. Because the Ld. M.M. has failed to consider the statement of CW1, in which the CW1 has stated that the respondent No. 2 and 3 has grabbed the amount of the petitioner of Rs.24,49,961.21 (Rupees twenty four lakhs, forty nine thousands nine hundred sixty one only and paise twenty one only) with malafide and dishonest intention and also threaten with dire consequence.
D. Because the Ld. M.M. has not considered that the Respondent No.2 and 3 has given false assurance and promise to make the payment as per the annexure / Scheduled, but the Respondent No.2 and 3 has failed to fulfil their assurances and promise to given to the appellant.
CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 4 of 11 E. Because the Ld. M.M. has not considered that the petitioner has received threats on his mobile not to file any complaint against them, otherwise he would be killed by them.
F. Because the Ld. M.M. has failed to consider that the Respondent No.2 and 3 hatched conspiracy with each other to execute collaboration agreement to construct the building firstly at Sangam Vihar, New Delhi and thereby indulged the innocent petitioner for causing such heavy loss to the tune of Rs.24,49,961.21/- (Rupees twenty four lakhs, forty nine thousands nine hundred sixty one only and paise twenty one only) by unlawful means and act of the Respondent No.2 and 3.
G. Because of Ld.M.M. has not considered that the Respondent No.2 and 3 grab the amount of Rs.24,49,961.21/-
(Rupees twenty four lakhs, forty nine thousands nine hundred sixty one only and paise twenty one only) of the petitioner by them in order to cheat the petitioner by them in order to cheat the petitioner in fraudulent manner and duped the petitioner with heavy loss intentionally.
H. Because the L. M.M. has not appreciate the Judgement passed by the Hon'ble Supreme Court in Crl.
Appeal No. 463/2022 titled as Vijay Kumar Ghai & Ors. Vs. The State of West Bengal & Ors.
Dated 22.3.2022.
I. Because the Ld. Trial CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 5 of 11 Court has failed to utilize its judicious mind and passed the aforesaid order by ignoring the evidence and material on record.
J. Because the petitioner reserves his right to argue all other important points at the time of final hearing of the Revision."
6. The finding which was rendered by Ld. MM concerned is extracted as under:
"6. On perusal of complaint & pre summoning evidence, the allegation of complainant with respect to collaboration agreement pertains to breach of contract with the respondents with respect to elaborate scope of construction work entailing work element of material, measurements and quality, which is beyond the scope of criminal court. In any which case, the contract rate was Rs. 1450/- per sq. ft for 360 sq yds, which is about Rs. 47 Lakhs, which is already received i.e., Rs. 5475000/- is already received.
7. Any work done above and beyond falls within the scope of civil dispute and beyond contract. Such dispute cannot be dressed as criminal dispute, that too for respondents living at very far away from the court. Hence, I do not agree with submission of Ld. Counsel for complainant that it is case of criminal breach of trust or cheating as there is no element / CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 6 of 11 ingredients constituting the said offence.
8. Further, the offence of threat and misappropriation of property is submitted to have occurred at the construction site in Jaipur, which is definitely not within the jurisdiction of this court."
7. It is lucid that Ld. MM has noted that the collaboration agreement between the parties pertains to the breach of contract with respondents as to the scope of construction work. The revisionist has sought to summon respondents no. 02 and 03 for the offence of cheating under Section 420/506/120B/34/406 Indian Penal Code, 1860 (for short 'IPC').
8 For invocation of the offence 406 IPC, the essential ingredients are entrustment of property, dishonest, misappropriation or conversion of the same for his own use in violation of expressed or implied legal contract. For the offence under Section 420 IPC also, cheating and dishonest inducement of delivery of the property are required. In M/s Mideast Integrated Steels Ltd. Vs State of Jharkhand dated 17.03.2023, it was held by High Court of Jharkhand that in order to make out a case of cheating, the accused must have fraudulent or dishonest intention at the time of making the promise. Mere breach of contract is not criminal, unless it was at the same time dishonest and was manifested by some overt act. It also held that for entrustment, the person handing over the property must have confidence in the person taking the property so as to CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 7 of 11 create a fiduciary relationship between them.
9. It is an admitted case of the revisionist that out of the total agreed amount of Rs 95,02,321.21/- the sum of Rs 54,75,000/- has already been paid. The non-payment of remaining amount prima-facie amounts to the breach of terms of the collaboration agreement and is essentially a civil dispute. It is not the case of the revisionist that the respondents have not paid substantial amount in respect of the collaboration agreement after getting the construction work done. The dishonest intention has to be culled out from the circumstances surrounding the execution of the agreement and the work done pursuant thereto, but no such circumstances have been brought on record which can prima facie demonstrate that respondent no. 02 and 03 harbored any dishonest intention right from the inception of the collaboration agreement between the parties. Had the respondents failed to pay any amount or paid a paltry amount, the dishonest intention could have been presumed, but since substantial payment has admittedly been released to the revisionist, the remedy lies before the civil forum to seek recovery of remaining amount and damages for breach of contract.
10. It is also the case of the revisionist that he was unable to finish the remaining work at the site of the value of Rs 16,52,360/- and the amount which is outstanding is Rs 24,49,961.21/- in regard to which the revisionist is at liberty to avail remedies before appropriate forum for recovery for such amount.
CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 8 of 11
11. I also refer to the Judgment of Supreme Court in Sarabjeet Kaur Vs The State of Punjab & Anr. dated 01.03.2023, it was also held that a breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. The relevant fragment of the judgment is reproduced as under :
"A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that the respondent No.2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned. On the first complaint, the only request was for return of the amount paid by the respondent No.2. when the offence was made out on the basis of the first complaint, the second complaint was filed with improved version making allegations against the appellant as well which was not there in the earlier complaint. The entire idea seems to be to convert a civil dispute into CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 9 of 11 criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are mde out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court.
12. With regard to the element of entrustment as envisaged in Section 406 IPC, the collaboration agreement do not tantamount to the existence of any fiduciary relationship between the parties and, therefore, primary ingredient of entrustment is not made out in this case.
13. In so far as the allegations of wrongful loss, retention of the articles, tools and machines at the construction site and threatening of the revisionist is concerned, admittedly, those acts allegedly occurred within the jurisdiction of Jaipur, Rajasthan and, therefore, Ld. MM has rightly observed that the offence of threatening, misappropriation of property would not fall within the jurisdiction of that Court.
CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 10 of 11
14. In view of the aforesaid, I do not find any tenable ground to interfere with the impugned Order dated 04.05.2023. The present revision petition is, thus, dismissed.
PRONOUNCED IN OPEN COURT ON THIS 6 th DAY OF DECEMBER 2023 NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.12.08 16:42:23 +0000 (NAVJEET BUDHIRAJA) ASJ-02/SOUTH/SAKET COURTS NEW DELHI CR No. 244 of2023 Rajesh Kumar Bairwa Vs The State (NCT of Delhi) 06.12.2023 Page No. 11 of 11