Punit Pruti & Ors vs State Govt. Of Nct Of Delhi & Anr
2009 Latest Caselaw 4123 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on:06th October, 2009
                        Judgment Delivered on:13th October, 2009

+                             CRL.M.C.1782/2009


        PUNIT PRUTI & ORS.                             ..... Petitioners
                        Through:               Mr.Mahish Vashisht, Adv.

                        versus

        STATE GOVT. OF N.C.T. OF DELHI & ANR.
                                            ..... Respondents
                       Through:    Mr.Ramesh Gupta, Sr.Adv. with
                                   Ms.Seema Gulati &
                                   Mr.Bharat Sharma, Advts.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest? Yes



INDERMEET KAUR, J.

1. On 16.7.2008 petitioners had been summoned on the

charge sheet filed under Sections 420/469/471/120B of the IPC,

Police Station Chitranjan Park. The petitioner no.1 is Punit Pruti,

petitioner no.2 is Sameer Pruthi, both are the sons of petitioner

no.3 Diwan Chand Pruthi. This order of summoning is the subject

matter of the present petition.

2. The undisputed facts are that Mr.L.R. Aggarwal and

Mr.Rajesh Aggarwa, directors, of M/s Krishi Rasayan Exports Pvt.

Ltd. had business dealings with petitioner no.1 in real estate. The

Haryana State Industrial Development Corporation (hereinafter

referred to as the HSIDC) floated a scheme for development of an

Industrial Technology Park at Manesar, Gurgaon, Haryana.

Petitioner no.1, Mr.L.R.Aggarwal his son Rajesh Aggarwal and one

Gurinder Singh Kamboj had agreed to form a company in the

name of M/s Krish Techno Park Pvt. Ltd. to be registered with the

Registrar of Companies, Jalandhar, Punjab in order to prepare a

project report for allotment of 10 acres of land for the

development of this I.T.Park. A sum of Rs.50 lacs was arranged

and deposited in favaour of HSIDC, Panchkula pursuant to an

application for allotment of land but the said application was

rejected. The amount of Rs.50 lacs was refunded by the HISDC in

the name of M/s Krish Techno Park Pvt. Ltd. which had been

incorporated in July 2006.

3. Parties thereafter desired that final accounts between them

be settled and a post dated cheque bearing no.143403 dated

30.11.2006 for Rs.50 lacs drawn on the Bank of India, Chandigarh

Branch was issued by petitioner no.1 in favour of M/s Krishi

Rasayan Exports Pvt. Ltd. The said cheque was, however,

dishonoured and accordingly a complaint under Section 138 of the

Negotiable Instrument Act was filed by M/s Krishi Rasayan Exports

Pvt. Ltd. against petitioner no.1 and petitioner no.2 which is

pending disposal in the court of Metropolitan Magistrate, Kolkatta.

This complaint is dated 27.4.2007. On 14.7.2007 M/s Krishi

Rasayana Export Pvt. Ltd. filed a complaint against the petitioners

herein namely Punit Pruthi, Sameer Pruthi and Diwan Chand

Pruthi, petitioner nos.1 and 2 being the directors of M/s Krish

Techno Park Pvt. Ltd. After investigation charge sheet was filed

under Sections 420/469/471/120B of the IPC and cognizance was

taken vide impugned order dated 16.7.2008.

4. The facts as detailed supra are not in dispute.

5. Learned counsel for the petitioner has assailed the

impugned order primarily on three grounds:

a)- It is submitted that the Delhi Courts have no jurisdiction

to try the present complaint which is an FIR under Section

420/468/471/120B of the IPC; no cause of action had taken

place in Delhi; the offer for allotment of land was made at

Manesar by the HSIDC; the project report was submitted to

the HSIDC at Panchkula; cheuque of Rs.50 lacs was

deposited with HSIDC, again outside the jurisdiction of the

Delhi Courts; the proposal was also rejected by HSIDC

which is again outside the jurisdiction of Delhi Courts. As

such no cause of action has arisen within the territorial

jurisdiction of Delhi; trial of the present proceedings are

barred.

b)- The FIR is a gross abuse of the process of the court as a

complaint under Section 138 of Negotiable Instrument Act

on the same cause of action has already been filed. The

notice dated 01.3.2007 issued under Section 138

Negotiable Act does not whisper a word about any

allegation of cheating; so also the subsequent complaint

which is also silent on the said aspect. The belated

complaint under Section 420 of the IPC in the month of July

2007 is an afterthought and a gross misuse of the process

of the court only to harass and pressurize the petitioners.

Reliance has been placed upon a judgment of the Hon'ble

Apex Court reported as (2000) II SCC 636 G. Sagar Suri &

Another vs. State of U.P. & Others to substantiate the

submission that where a complaint under Section 138 of

Negotiable Instrument Act had already been filed and no

explanation has been offered as to why in the said

complaint details of the offence now contained in the

present FIR had not been mentioned, it is apparent that the

subsequent complaint is an abuse of process of law; a

chagrined and frustrated litigant should not be permitted to

give vent to his frustration by cheaply invoking the

jurisdiction of the criminal Court in such a manner.

c)- The last submission of the learned counsel for the

petitioner is that the ingredients of Section 420 of the IPC

which necessary entail -

i). Deception;

ii). Fraudulently or dishonestly inducing any person to

deliver any property or;

iii). To consent that any person shall retain any property

and finally intentionally inducing that person to do or omit

to do anything which he would not do or omit are clearly

missing in the instant case. No act of inducement on the

part of the petitioners has been alleged by the

complainant. Reliance has been placed on judgments

reported as (2007) 7 SCC 373 Vir Prakash Sharma vs. Anil

Kumar Agarwal & Anr. and (2009) 1 SCC (Crl.) 996 V.Y.

Jose and Anr. vs. State of Gujrat & Anr. to substantiate his

submission that in the absence of the existence of the said

ingredients the alleged offence of cheating is not made out

and the complaint is liable to be quashed.

6. These submissions have been opposed by the learned

counsel for the non-applicant.

7. It is stated that the cause of action has arisen within the

jurisdiction of the Delhi Courts and the deception and mis-

representation by the petitioners was practiced by the petitioners

in the transaction and the negotiations conducted between the

parties while there were in Delhi. The ingredients of Section 420

of the IPC are different and distinct from the offence as contained

in Section 138 of the Negotiable Instruments Act and the

pendency of civil proceedings by themselves do not bar the

prosecution of a criminal complaint; this is clear from the tenor of

the provisions of Section 138 of Negotiable Instruments Act and

the offence as detailed in Section 420 of the IPC.

8. Submissions have been appreciated and the record has

been perused.

9. It is not in dispute that the petitioners herein are all

residents of M-255, Greater Kailash. This address has been

mentioned by them in their memo of parties. M/s Krishi Rasayan

Exports Pvt. Ltd. of whom the complaint Mr.L.R.Aggarwal is a

director has its office at Hemkunt Tower, Nehru Place. This is also

the address given by the petitioner in the present petition. It is

also not in dispute that the negotiations and the discussions

between the parties took place while they were in Delhi and the

cheque of Rs.50 lacs had been issued by petitioner no.1 to M/s

Krishi Rasayan Exports Pvt.Ltd. while they were in Delhi.

10. Chapter XIII of the Code deals with jurisdiction of the

Criminal Courts in inquries and trials. Section 177 incorporates the

ordinary/general rule of jurisdiction, as stated above, while the

Sections following it, viz., 178 to 182 embody the exceptions. The

general principle of law is that all crime is local and the jurisdiction

to try a person for an offence depends upon the crime having been

committed within the area of such jurisdiction. Section 182 states

that any offence which includes cheating may, if the deception is

practiced by means of letter of telecommunication messages, be

inquired into or tried by any Court within whose local jurisdiction

such letters or messages were sent or were received; and any

offence of cheating and dishonestly inducing delivery of property

may be inquired into or tried by a Court within whose local

jurisdiction the property was delivered by the person deceived or

was received by the accused person.

11. In 1982 CLJ 1492 Bhola Nath Arora vs. State the territorial

jurisdiction of the Court to try the offence under Section 420 of the

IPC had been questioned; the ratio of the said judgment states

that the place where deception has been practiced and the

inducement made would have the jurisdiction to try the offence.

12. In AIR 1957 SC 857 Mubarak Ali Ahmed vs. The State of

Bombay, Hon'ble Supreme Court while dealing with the question

of jurisdiction of a criminal Court where the complainant was

doing business from Goa and appellant at that time was in

Karachi; the transactions between the two parties having been

held through telephone, telegram and letters and at no time the

appellant having been in Goa during the entire period of

commission of the offence and he being only at Karachi, Pakistan;

the Hon'ble Apex Court after examining the ingredients of Section

420 of the IPC had held that although the mis-representation and

the deception was organized by the appellant while he was in

Pakistan yet the consequences of the deception i.e. delivery of the

property had taken place in Bombay and as such the Courts in

India would not be precluded from trying the said offence.

13. In the instant case it is apparent from the aforestated

position at law that the jurisdiction of Delhi Courts is not ousted.

14. The second and the third submission of the learned counsel

are intertwined and can be dealt with co-jointly. Complaint under

Section 138 of Negotiable Act has been filed on 27.4.2007 and is

undisputedly pending in the court of Metropolitan Magistrate

Kolkotta. Present complaint has been filed on 14.7.2007 wherein

it has been averred that the petitioner did not inform the

complainant about the initial refund of Rs.50 lacs by HSIDC and

they had retained the said amount with them fraudulently and

dishonestly. It was only after a follow up that the complainant

came to know that the accused persons had not shown the name

of Mr.Rajesh Aggarwal and Mr.L.R. Aggarwal as directors of M/s

Krish Techno Park Pvt. Ltd. although their names had been shown

as directors in the project report submitted to the HSIDC. On

further inquiry it was revealed that although the names of

Mr.Rajesh Aggarwal and Mr.L.R. Aggarwal have been given as

Directors in the original application yet their names stood deleted

in the articles of association fraudulently by submitting false

resignation letters which were forged and fabricated as they did

not bear the signatures of Mr.L.R. Aggarwal and Mr.Rajesh

Aggarwal. The report of the CFSL, Rohini dated 11.3.2008

supports this contention as contained in the complaint and the

resignation letters purportedly issued by Mr.L.R. Aggarwal and

Mr.Rajesh Aggarwal have not been signed by them. The

complaint further recites that after several dates a meeting has

been arranged between the parties when the petitioners herein

had issued a post dated cheque of Rs.50 lacs which stood

dishonoured; the said cheque had not been returned back to the

complainant but had been mis-appropriated by the petitioner in

connivance with the bank officials of Chandigarh. The complaint

further recites that it was a fraudulent and dishonest inducement

by the petitioner to the complainant which had led the

complainant to part with Rs.50 lacs as application fees.

15. The ingredients of cheating is defined in Section 415 of the

IPC entail a fraudulent or a dishonest inducement of the

complainant to either deliver any property or to consent that any

such person shall retain any property or intentionally inducing the

complainant to do or omit to do anything which he would not do or

omit to do if he were not so deceived, and which act or omission

causes or is likely to cause damage or harm to that person in

body, mind, reputation or property. Illustration (f) to the said

Section of the Indian Penal Code, provides a clue to the mind of

the legislature in such matters. The said illustration is as under:-

"A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats."

16. On its plain language it is manifest from this illustration that

what is material is the intention of the drawer at the time the

cheque is issued, and the intention has to be gathered from the

facts on the record. If from the circumstances it is established that

the failure to meet a cheque was not accidental but was the

consequence expected by the accused, the presumption would be

that the accused intended to cheat.

17. In 1996 JCC 590 M.M. Monga vs. Union of India, it has been

held by a co-ordinate Bench of this Court that a complaint under

Section 138 of Negotiable Instrument Act is not a bar for filing a

complaint under Section 420/120 B of the IPC if a prima facie case

is made out.

18. In 2009(2) JCC (NI)73 R.P. Mathur Prop. RLF vs. S.R.P.

Industries Ltd it has been held that the offence under Section 138

of Negotiable Instrument Act and the offence under Section 420 of

the IPC are two distinct and separate offences with different

ingredients and under two separate enactments; separate

punishments are provided for the two sets of the offences;

proceedings against an accused at the initial stage can be

quashed only if on the face of the complaint or on the papers

accompanying the same no offence is constituted. The offence

under Section 138 of Negotiable Instrument Act is completed when

once the cheque issued was dishonoured and the said dishonor of

cheque is brought to the notice of the drawer of the cheque;

whereas for the offence under Section 420 of the IPC, it is

necessary for the prosecution to establish that the accused had no

intention of paying anything and knowing that the cheque would

be dishonoured he had issued the cheque which had ultimately

been dishonoured. Ingredients of Section 420 of the IPC and

Section 138 of Negotiable Instruments Act are distinctly different

and operate in two different spheres.

19. The judgment relied upon by the learned defence counsel as

reported in "G. Sagar Suri" supra is distinct in its own facts; in the

course of the investigation of the said FIR it had been recorded

that both G. Sagar Suri and his wife Shama Suri were not the

directors of M/s Ganga Automobiles Pvt. Ltd which had been taken

into account while quashing the FIR against them under Section

482 of the Cr. P.C.

20. It is apparent that in the instant case the complainant had

been induced by the petitioners that they would be floating a joint

company in the name of M/s Krish Techno Park Pvt. Ltd. of whom

the complainant Mr.L.R. Aggarwal and Mr.Rajesh Aggarwal would

also be the directors; it was on this inducement that the

complainant had invested money in the project which did not

fructify; after several deliberations a cheque of Rs.50 lacs was

issued by the petitioner to the complainant which was

dishonoured. The dishonest intention of the petitioner can also be

gathered from the letters of resignation purported to have been

issued by Mr.L.R.Aggarwal and Mr.Rajesh Aggarwal to the

Registrar of Companies to delete their name from the articles of

association of their newly floated company i.e. M/s Krish

Technopark Pvt. Ltd. which as per the report of CFSL are not in

their handwritings.

21. Prima facie ingredients of the offence of which cognizance

has been taken are made out. There is no merit in the revision

petition. It is dismissed.

(INDERMEET KAUR) JUDGE

13th October, 2009 nandan