Pushpa Devi vs State
1997 Latest Caselaw 862 Del

JUDGMENT

Jaspal Singh, J.

1. The petition is against the order of summoning of the petitioner under Sections 420 and 120B of the Indian Penal Code.

2. M/s. Caravan Commercial Company Ltd. through its Director Mr. Ranjit Chopra filed a criminal complaint against the present petitioner and so also against others under Section 420 read with Section 120-B of the Indian Penal Code. It was alleged that an agreement of sale with regard to the property Nos. 42 and 44, Sunder Nagar, New Delhi was entered into between the complainant and the accused persons 1 to 7 on an assurance by the accused persons that the property offered for sale was free from all encumbrances and that there was no other subsisting agreement of sale with regard to the said property or any part thereof. It was alleged in the complaint that because of those assurances not only the agreement of sale was entered into but payments totalling around Rs. 66 lacs were also made and that later on it was revealed that accused 1 to 7 had not only already entered into an agreement of sale with regard to the same property with one Arun Batra but that said Arun Batra had even filed a civil suit for Specific Performance. It was alleged by the complainant that this material fact was suppressed and that the suppression was intentional and that had it been made known to the complainant that the accused persons had already entered into an agreement of sale and that litigation with regard to the same in the form of a civil suit for specific performance was already pending it would neither have entered into the agreement of sale with the accused persons nor parted with Rs. 66 lacs. In support of the complaint, Ranjit Chopra, Director of the complainant company, examined him self as CW1. One Amit Judge was also examined as CW2. In those statements also it was specifically alleged that there was clear and unambiguous representa-tion by the accused persons that the property was free from all encumbrances and that there was no prior agreement of sale with regard to the said property. It is also in evidence that information with regard to pendency of the civil suit was suppressed and that had these facts been known, no agreement of sale would have been entered into by the complainant.

3. On the basis of the complaint and the evidence placed on the record the learned Metropolitan Magistrate came to the conclusion that a prima facie case was made out for summoning of the accused persons under Section 420 read with Section 120-B of the Indian Penal Code. Aggrieved by the said order accused No.1 has preferred this revision petition.

4. It is contended by Mr. D.C. Mathur, Senior Advocate for the petitioner that no prima facie case is made out for summoning of the petitioner. It is further contended that petitioner No.1 has no where been named specifically as one of those who had made the isrepresentations.

5. I have already reproduced above the essentials of the complaint and the evidence recorded. The allegations are clear and unambiguous. It is the case of the complainant that the petitioner and other accused had already entered into an agreement of sale with Arun Batra but had intentionally suppressed that information and so also the information with regard to the pendency of the civil suit for specific performance instituted by said Arun Batra. As already noticed above, the case of the complainant is that had this information been furnished, the complainant would not have entered into any agreement of sale nor would have it parted with a sum of Rs. 66 lacs. The learned Metropolitan Magistrate after having taken note of this has, to my mind rightly, come to the conclusion that there was sufficient ground for proceeding against the petitioner and others.

6. Coming to the question as to whether petitioner No.1 has been specifically named or not and if not, to what effect, my attention has been drawn by the learned Counsel for the petitioner to two judgments of the Supreme Court. They are Lala Ram & Others Vs. State of U.P. and Pandurang & Ors. Vs. State of Hyderabad; . In fact, the judgment of 1990 relies upon the observations made in Pandurang's case that unless a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions at their face value. I feel that these observations are clearly of no help to the petitioners in the present case as not only in the complaint but in the evidence too (see statement of Amit Judge, CW-2) the petitioner is specifically referred to as one of the persons having made misrepresentations and having suppressed material information from the complainant.

7. It is also contended that the ad interim injunction order issued by the Court in the civil suit instituted by Arun Batra, does not specifically relate to petitioner No.1 and that the injunction order is only against the persons other than the present petitioner. I think, it is of no consequence as far as the present matter is concerned. The fact remains that petitioner was prima facie one of those who fraudulently made misrepresentations and suppressed material particulars from the complainant Company. Whether any injunction order has been issued against the present petitioner in a civil suit instituted by Arun Batra is of no consequence.

8. For the reasons recorded above, I find no fault with the order of the learned Metropolitan Magistrate summoning the petitioner under Section 420 read with Section 120-B of the Indian Penal Code. The petition is dismissed in limine. However, nothing said in this order shall be read as an expression of opinion on the merits of the case.