R.K. Khatri vs State (Central Bureau Of ...
1996 Latest Caselaw 637 Del

JUDGMENT

Usha Mehra, J.

(1) The short point for consideration is whether the decision of the Civil Court holding that M/s Ansal P. and I. Ltd. was not liable to file any revalidation plans or to pay any composition fee is binding and the review application of the present petitioner could not be dismissed by the Criminal Court.

(2) In order to analyse this question the brief facts are that M/s Ansal P. and I. Pvt. Ltd. got its plan of multistorey building at 14, Kasturba Gandhi Marg approved by the New Delhi Municipal Council (NDMC). As per the prosecution the said approval was valid for a period of two years from the date of sanction, which was to expire on 1.1.87. M/s Ansal was to apply for revalidation prior to 1.1.87 and in case it fails to do so the revalidation charges were to be on the basis of composition fee to be levied by the NDMC. The revalidation fee was Ks. 5,570.00 and in case of failure the company was required to pay the revalidation charges of Rs. 4,64,250.00 as composition fee. M/s Ansal of which the petitioner is the Executive Director did not apply for revalidation during the prescribed period. However, in order to avoid the composition fee it got prepared a pre-dated bank draft of Rs. 5,570.00 from the Standard Chartered Bank. To prove that it was deposited on 1.1.87, he pre-dated his letter also which accompanied the draft of the same date. This according to the prosecution was done with a fraudulent intention to cheat the Ndmc of the amount of the composition fee which became due after 1.1.87. It is in this backdrop that order of summons were issued against the petitioner and others. M/s Ansal in the meantime, filed a civil suit on 14.9.88, which was Suit No. 2278/88. The High Court in that suit framed issues. Two issues were directly concerned with the question of payment of composition fee and revalidation charges. In the said suit this Court decided all the issues in favour of plaintiff i e. M/s Ansal vide order dated ?1 2.91. After the order was passed in the Civil Suit, the present petitioner filed a review petition before the Metropolitan Magistrate. Vide the impugned order dated 9.11 92, M.M. dismissed the review application.

(3) It is against the impugned order that the present petition has been filed, inter alia, On the ground that the judgment passed in Civil Suit No. 2278/88 thereby decreeing the suit in favour of the plaintiff is binding on Criminal Court. At the time of submitting the revalidation fee vide letter dated 1.1.87, the petitioner hid clearly mentioned that Ndmc was not entitled under any law to demand the revalidation fee within a period of two years from the date of sanction. Pursuance to Building Bye-laws 6.8, the validity of sanctioned plan for multistorey building was to be for three years and as such the question of payment of revalidation fees on 1.1.87 did not arise. This stand of the petitioner was upheld in the Suit No. 2278/88. Therefore, there was no question of any fraudulent intention to cheat the Ndmc of the composition fees. Even otherwise the Ndmc on 5.2 87 realised the amount of revalidation fee and thereafter made additional demand of Rs. 4,64,250.00 as composition fee for applying late at the time of first revalidation. This according to the petitioner shows that the parties were aware that the revalidation amount was paid late, therefore, Ndmc demanded additional composition fee. Moreover, there was no likelihood of any damage or harm having been caused to the NDMC.

(4) Arguing on behalf of the petitioner Mr. D.C. Mathur, Sr. Advocate, contended that decision of the Civil Court relating to the matter in controversy pending in the Criminal Court is binding. In this regard he placed reliance on M/s Karamchand Ganga Pershad vs. U.O.I. . He, therefore, contended that once Civil Court in Suit No. 2278/88 inter se the parties held that M/s Ansal was not liable to pay the revalidation fee nor the Ndmc could demand the composition fee rather directed the refund of the same which ultimately was refunded to the Company, there could not be any question of fraudulent intention or cheating nor any harm or damage caused to NDMC. Mr. Mathur to support his contention drew the attention of this Court to the letter dated 1.1.87 written by the petitioner to the Ndmc vide which the draft of Rs. 5,570.00 was sent. The bare reading of this letter shows that the petitioner throughout had taken the stand that the revalidation period of the sanctioned plan was three years and not two years as alleged by NDMC. The validity was to expire on 1.1.88 as per the Bye-law No. 6.8 of the Building Bye-laws of the Ndmc, coupled with the fact that when the amount was realised by the Ndmc on 5.2.87 it was aware that revalidation fee was paid late hence there was no question of cheating or defrauding the NDMC. It is only after pocketing the revalidation fee that Ndmc made an additional demand of composition fee of Rs. 4,62,250.00 which makes it apparent that the parties knew the case of each other The Ndmc was aware that the revalidation fee was deposited late, therefore, demanded the composition fee. Hence it cannot be said that the Ndmc was not aware as to when the petitioner deposited the amount of Rs. 5,570.00. In view of this known fact there could not be any fraudulent intention of cheating or depriving the Ndmc of the composition fee as Mr. Lal wants this Court to believe. Had that been so the Ndmc would not have issued after 5.2.87 the additional demand of composition fee on the ground of late payment of the revalidation fee which amount the petitioner paid under protest and which the Ndmc had to refund to the company on account of decision in Civil Suit. In view of these facts, prima facie it cannot be said that the petitioner had any fraudulent intention to cheat the Ndmc or that the Ndmc has in fact been cheated. Moreover the Civil Court has held that these amounts were not payable as the validity period was three years. The stand of the petitioner was accepted by the Civil Court which decision is binding on the parties as well as on the Criminal Court per the decision in M/s Karamchand Ganga Pershad's case (supra).

(5) The contention of Mr. Lal that decision in Civil Suit No. 2278/88 will not deface the injury caused. To my mind, this argument in the facts of this case does not help him. Because no injury has in fact been caused to the Ndmc Moreover, parties were aware of all the facts. This can be inferred from the additional demand raised by Ndmc which was raised after Ndmc realised that revalidation fee was paid late. In this view of the matter prima facie no fraudulent intention can be attributed to the petitioner. Moreover, decision in Suit No. 2278/88 nullifies the stand of the Ndmc and supports the case of the petitioner. This also shows that petitioner had no fraudulent intention. He only took legal grounds which stood justified by judicial pronouncement which is now binding on the parties. Therefore, in such circumstances it cannot be said that decision of Civil Court would not be binding on the Criminal Court. In fact pursuance to the decision in Civil Suit No. 2278/88, Ndmc refunded the revalidation fee as well as composition fee deposited by the petitioner. Therefore, the contention of Mr. Lal that cheating was done with the fraudulent intention to save the composition fee cannot he appreciated in view of the facts which have come on record. Company deposited the additional composition fee as demanded by the Ndmc then where was the question of fraudulent intention to cheat. Stand taken by the petitioner and his company throughout had been vindicated vide the decision of civil court in Suit No. 2278/88.

(6) The impression "harm" notes hurt, injury, damage, impairment, moral wrong or evil. Under the I.PC. it means physical injury ; in S. 93, an injurious mental reaction; in S. 415 injury to a person in body, mind, reputation or property ; in Sections 469 and 499 it means harm to the reputation or property of aggrieved party. In Section 95 the expression has a wide connotation and includes physical injury. Reading of these expressions used in various Sections namely Sections 81, 87, 88, 89, 91, 92, 93, 95, 100, 104, 106, 93, 95, 469 and 499 one cannot say that any harm has been caused in this case. Even if it is presumed that the petitioner tried to ante-date the cheque, no harm has in fact been caused to the NDMC. Otherwise also the offence is of a very trivial nature The offence has a flavouring of civil nature rather than that of criminal. In view of the decision in Suit No. 2278/88, to my mind, the trial court ought to have accepted the review application and quashed the summoning order by discharging the petitioner.