Chand Kishan Razdaan vs Hema Saxena & Another
2010 Latest Caselaw 3829 Del

24.
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.REV.P. 139/2008

                                      Date of decision: 17th August, 2010

       CHAND KISHAN RAZDAAN              ..... Petitioner
                    Through Mr. Kaushal Yadav, Advocate.

                      versus

       HEMA SAXENA & ANR.              ..... Respondents
                    Through Mr. Pavan Narang & Mr. Puskal,
                    Advocates.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

                                ORDER

1. Learned Metropolitan Magistrate, by the impugned order dated 02.02.2008, has dismissed the complaint filed by the petitioner under Sections 418/420/506/34 of the Indian Penal Code, 1882 (IPC for short hereinafter) and has held that there is no ground to summon the respondents-accused.

2. Aggrieved by this order the petitioner has filed the present revision petition. The petitioner relies upon agreement to sell dated 1 st May, 2006 in respect of second floor of property No. B-18, Ashoka Niketan, Delhi- 92 in which the sale consideration mentioned is as Rs.68 lacs. The relevant allegation in the complaint read as under:-

"4. That vide agreement to sell dated 01.05.2006, the accused respondent No. 1, agreed to purchase the IInd floor of the building with roof rights from the complainant for a total consideration of Rs.68 lacs (Rupees sixty eight lakhs only). Out of the said agreed price, the complainant has received Rs.32 lakhs as reflected in the agreement and the balance of

CRL.REV.P. 139/2008 Page 1 Rs.360000/- (Rupees thirty six lakhs only) was payable by accused No. 1 on or before 30.06.2006 or within 30 days after getting the conveyance deed in her favour by the complainant. The said agreement in original is in possession of accused No. 1 and 2. The photocopy of the same was given to the complainant. The same was witness by three persons. The deal was done through Sh. Raman Oberoi H-19, Laxmi Nagar, who was to get 1% commission from both accused and the complainant.

5. That on 01.06.2006, both the accused persons in furtherance of common intention to cheat the complainant, the accused No. 2 handed over 3 cheques of Rs.9 lakhs, i.e. 3 lakhs each under his signatures, payable at Jain Cooperative Bank Ltd. Vijay Chowk Laxmi Nagar, Delhi to the complainant, bearing No. 059786, 059787 and 059788 without date, which are bearer against the balance payment of Rs.360000/- (Rupees thirty six lakhs only) as per agreement dated 01.05.2006 and asked the complainant to keep them as the accused have financial crunch. The balance of Rs.6 lakhs would also be paid as they were under process of getting or arranging money.

6. That on 12.06.2006, accused in furtherance of their common intention to cheat and commit fraud, represented the complainant to execute the sale deed as they need loan from the bank and by pledging the sale deed they would raise loan and get these cheques cleared and also pay the balance of Rs.6 lakhs on getting loan as sale consideration. They falsely and dishonestly represented to the complainant that they have arrangement of Rs.21 lakhs only and sale deed would reflect the total consideration of Rs.21 lakhs. Acting on their false representation, the complainant accepted the same and signed the sale deed for Rs.21 lakhs as detailed at page No. 3 of the sale deed. The

CRL.REV.P. 139/2008 Page 2 same is absolutely contrary to the agreement to sell dated 01.05.2006."

3. The respondents have filed a detailed response to the petition. The respondents have also placed on record photocopy of an agreement of sale dated 18th May, 2006. In this agreement, the total sale mentioned is Rs.21 lacs. The petitioner disputes this agreement and states that his signatures on the agreement have been forged. I need not go into this question to decide the present revision petition.

4. It may be noted here that the agreement to sell relied upon by the petitioner dated 1st May, 2006 consists of three pages. It is only the last page which purportedly bears signatures of Hema Saxena. First two pages of the agreement to sell do not bear signatures of Hema Saxena. The first two pages have signatures only of the petitioner. The figure of Rs.68 lacs is mentioned at page No. 2 and is not mentioned at page No.3.

5. The three cheques relied upon by the petitioner of Rs.3 lacs each are undated and are signed by Anil Saxena husband of the purchaser- Hema Saxena. These are not cross cheques or in the name of a specific person but are self-cheques. The two respondents in the counter affidavit and in the reply to the notice dated 1 st March, 2007 have stated that these three cheques were given pursuant to an oral agreement in respect of first floor of the property which ultimately did not materialize and was novated.

6. In paragraph 6 of the complaint quoted above the petitioner has mentioned that on 12th June, 2006 a sale deed was executed by the petitioner in favour of the respondent Hema Saxena. Photocopy of the sale deed has been placed on record by the petitioner. The sale deed is in respect of second floor of property No. B-18, Ashoka Niketan, Delhi-92. This document is registered with the Registrar/Sub Registrar VIII, Delhi/New Delhi. The petitioner does not dispute his signatures on the sale deed. The total sale consideration mentioned in the sale deed on

CRL.REV.P. 139/2008 Page 3 which stamp duty has also been paid is Rs.21 lacs. The sale deed records mode of payment of Rs.21 lacs as under:-

"Rs. 3,00,000/- vide cheque No. 120035 dated 01- 05-2006 of DCB Preet Vihar Branch, Delhi- 110092.

Rs.0,20,000/- in Cash.

Rs.8,80,000/- vide Pay Order No. 029301 dated 10.6.06 of Bank of India, Paharganj Branch, New Delhi.

Rs.9,00,000/- vide Pay-Order No. 029300 dated 10.6.06 of Bank of India, Paharganj Branch, New Delhi."

7. The sale deed further records as under:-

"1. That the actual, physical and vacant possession of the said second floor with terrace rights has been delivered to the Vendee by the Vendor on the spot.

2. That all the expenses of this sale deed has been paid and borne by the Vendee.

3. That in consideration amount of the said sum of Rs.21,00,000/- (Rupees Twenty one Lacs only) the Vendor doth hereby sells, transfers, conveys and assigns all his rights, titles and interests whatsoever he hold over the said second floor with terrace rights in favour of the Vendee on the basis of this sale deed in all respects.

4. That hereafter the Vendee will be the sole and absolute owner of the said second floor with terrace rights and will hold, use, and enjoy the same as absolute owners and will also be entitled to get the mutation of the said second floor with terrace rights effected in her own name in all the concerned offices like House Tax Department of M.C.D. Shahdara Zone,

CRL.REV.P. 139/2008 Page 4 B.S.E.S. Yamuna Power Limited/Delhi Vidyut Board, water supply etc., on the basis of this sale deed as absolute owner."

8. It is clear from the recital of the sale deed that the petitioner/vendor had accepted that he has received the full sale consideration for transfer of the flat, i.e., second floor, B-18, Ashoka Niketan, Delhi-92 and the transfer was absolute and complete. The sale deed does not show that any further payment was still due and payable by Hema Saxena or only part payment was made.

9. After the sale deed was executed on 12th June, 2006, the petitioner was quiet for over a period of seven months. On 1 st March, 2007 he sent a legal notice stating that the total sale consideration was Rs.68 lacs and he had only received Rs.53 lacs by cheque and by cash, and balance of Rs.15 lacs was still due and payable by the respondents to the petitioner. It was stated in the notice that the petitioner was given three cheques for Rs.9 lacs and for the balance amount of Rs.6 lacs he had no document but the respondents had orally agreed to make the said payment after taking loan from a bank.

10. I do not think the petitioner can be allowed and permitted to go beyond the sale deed in which the total sale consideration mentioned is Rs.21 lacs. Stamp duty has been paid on Rs.21 lacs. The conduct of the petitioner is such that he should not be allowed to wriggle out of and dispute the figures mentioned in the sale deed, the recitals of which are clear. Other factors which do not support the case of the petitioner have been also noted above.

11. Learned Metropolitan Magistrate has also examined allegations under Section 506 IPC. It appears that the petitioner has made baseless allegation against the respondents as he has neither mentioned the specific words used by the accused persons nor has he specified the any act of the accused person in furtherance of the alleged threats. Learned

CRL.REV.P. 139/2008 Page 5 trial court has examined the provisions and the allegations in the complaint as well as the evidence of the petitioner and has come to the conclusion that no case is made out. At best, the petitioner's case is that he has not been paid unaccounted for or black money. The petitioner should not be allowed to initiate court proceedings in respect of an illegal claim/agreement. I do not see any reason to interfere with the impugned order. In view of the above, the revision petition is dismissed.

SANJIV KHANNA, J.

       AUGUST 17, 2010
       VKR




CRL.REV.P. 139/2008                                                   Page 6