Amar Dev Shastri vs State & Ors.
2010 Latest Caselaw 11 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl.M.C.No. 1296/2009

%                             Pronounced on: 6th January 2010

#     AMAR DEV SHASTRI              ..... Petitioner
!                     Through: Ms. Nandni Sahni, Adv.


                         versus

$     STATE & ORS.                      ..... Respondents
!                             Through: Mr. R.N. Vats, APP with
                              ASI Rakesh Tyagi, P.S. Patel Nagar.
                              Mr. Lajwinder Singh, Adv. for R-2 &
                              3.
*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.     Whether the Reporters of local papers
             may be allowed to see the judgment?                  No

      2.     To be referred to the Reporter or not?               No

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

: V.K. JAIN, J. (ORAL)

1. This is a petition under Article 227 of the Constitution read with

Section 482 of the Code of Criminal Procedure assailing the order

dated 13th April, 2009 passed by the learned Addl. Sessions Judge,

whereby the revision petition filed by the petitioner against the order

of the learned Metropolitan Magistrate dated 30th September, 2008

was dismissed.

2. Vide an Agreement to Sell dated 17 th January 2007, respondents

2 and 3 namely Kailash Kaur Sawhney and Mandeep Singh Sawhney

agreed to sell property No. H-110 Shivaji Park, Punjabi Bagh (West),

New Delhi, to the petitioner, for a total sale consideration of Rs.1.8

Crore. A sum of Rs.5 Lacs was paid by the petitioner to them as

earnest money. After entering into this Agreement to Sell,

respondents 2 and 3 entered into another Agreement to Sell this

property to one Ramesh Gupta on 12th February 2007, for a total sale

consideration of Rs.1.85 Crore.

3. The grievance of the petitioner is that while agreeing to sell this

property to him vide Agreement to Sell dated 17 th January 2007, the

respondents concealed two material facts (i) there was an order

passed by Debt Recovery Tribunal on 16 th February 2005, restraining

Late Sh. Sohan Singh Sawhney, husband of respondent No.2 and father

of respondent No.3 from alienating, disposing of, dealing with, parting

with or creating any third party interest in respect of the subject

property which had already been mortgaged with Union Bank of India

and (ii) in Civil Suit No. 737/2005 an order was passed by this Court on

September 21, 2005 directing Late Sh. Sohan Singh Sawhney to

maintain status quo with regard to possession and title of property No.

H-110 Shivaji Park, Punjabi Bagh (West), New Delhi.

4. A complaint dated 7th July 2008 was made by the petitioner to

SHO Police Station Patel Nagar alleging therein that he had come to

know that the Vendors Mandeep Singh Sawhney and Kailash Kaur

Sawhney had concealed the above referred stay orders, passed by DRT

and this Court, from him. Since no FIR was registered on the complaint

lodged by the petitioner with the police, a criminal complaint filed by

him before the learned Metropolitan Magistrate alleging commission of

offences under Section 420/467/468/471/34 of IPC and seeking

investigation and registration of FIR under Section 156(3) of the Code

of Criminal Procedure. The learned Metropolitan Magistrate, vide order

dated 30th September 2008 found no dishonest intention on the part of

the respondents and dismissed the complaint. The revision petition,

filed by the petitioner, was dismissed by the learned Addl. Sessions

Judge vide order dated 13th April 2009.

5. Admittedly, the respondents claim ownership of this property

only through Late Sh. Sohan Singh Sawhney. It has been stated in the

Agreement to Sell that Late Sh. Sohan Singh Sawhney had executed a

Will on 20th April 2005 bequeathing the entire property to Sh. Mandeep

Singh Sawhney and right of its use in her lifetime to Smt. Kailash Kaur

Sawhney. Thus, the respondents are not only the legal heirs, but also

the legal representatives of Late Sh. Sohan Singh Sawhney.

6. A perusal of the Agreement to Sell dated 17 th January 2007 would

show that it was disclosed by the respondents that property in

question had been mortgaged with Union Bank of India and O.A. No.

93/2004 filed by the bank was pending before the Debt Recovery

Tribunal. Since the property in question could not have been sold

without redemption of the mortgage in favour of Union Bank of India, it

cannot be said that concealment of the stay order passed by Debt

Recovery Tribunal was such a material fact, that had it been in the

knowledge of the petitioner, he would not have agreed to purchase the

subject property. However, the order of status quo passed by this

Court in Civil Suit No. 737/2005 on 21 st September 2005 was a material

fact since, Late Sh. Sohan Singh Sawhney could not have sold,

assigned or parting with possession of aforesaid property to anyone so

long as the order of status quo in force. The contention of the learned

counsel for the respondents is that the order of this Court in Civil Suit

No. 737/2005 was not in the knowledge of the respondents and that is

why it was not disclosed in the Agreement to Sell dated 17 th January

2007. As noted earlier, the respondents are not only the legal heirs,

being his wife and son, respectively, they are also the Legal

Representative of the deceased Late Sh. Sohan Singh Sawhney. Prima

facie, it is difficult to accept that they were not aware of the order

passed against Late Sh. Sawhney. In any case, whether they had

actual knowledge of the status quo order dated September 21, 2005 or

not, is a matter which requires investigation and at this stage it is not

possible to say that the respondents did not have any knowledge about

this order. In case the order passed by this Court on September 21,

2005 in Civil Suit 737/2005 was in the knowledge of the respondents

and they did not disclose the order while entering into the Agreement

to Sell with the petitioner and the order was otherwise not in the

knowledge of the petitioner, prima facie, it would amount to cheating

on the part of the respondents 2 and 3 at the time of executing

Agreement to Sell in favour of the petitioner. May be, had the

petitioner made efforts, he could have ascertained the status quo

order passed by this court in CS(OS) 737/2005. But, that did not

absolve the respondents of an obligation to disclose this order to the

petitioner. In fact, they ought to have refrained even from entering

into the Agreement to Sell, so long as the status quo was in force.

7. The learned counsel for respondents No. 2 and 3 states that the

suit was dismissed as withdrawn on 30 th March 2007. In my view

withdrawal of a suit at a later date by itself would not show that there

was no dishonest intention on the part of the respondents on 17 th

January 2007 when they agreed to sell property in question to the

petitioner. In case they were aware of the order passed by this Court

and still chose not to disclose it and the order was otherwise not in the

knowledge of the petitioner, it would be difficult to accept that there

was no dishonest intention and consequently no cheating on their part.

In any case, this is a matter, which can be ascertained only after

investigation is conducted by the police.

8. It is well settled legal proposition that the defence which may be

open to the accused, is not to be considered at this stage, and the

matter has to be examined solely from the point of view of the

complainant, on the basis of the allegations made in the complaint and

the evidence produced by the complainant.

9. In „Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi‟

1976(3) SCC 736, the Hon‟ble Supreme Court while examining the

scope of Section 202 of the Code of Criminal Procedure, inter alia, held

as under:-

"It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have."

10. For the reasons given in the preceding paragraphs, the

impugned orders are hereby set aside and the learned Metropolitan

Magistrate is directed to pass appropriate orders on the complaint filed

by the petitioner in the light of the observations made in this order.

The petitioner is directed to appear before the learned Metropolitan

Magistrate at 10 AM on 25th January 2010.

One copy of this order be sent to the trial court for information

and necessary action. Dasti also to the respondents, as requested by

their counsel.

V.K.JAIN (JUDGE) JANUARY 06, 2010 AG