Sqn Ldr P J B Khurana (Retd) & Ors vs State & Anr
2010 Latest Caselaw 4512 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.M.C. 4180/2002

                                            Date of Decision: 24.09.2009

       SQN. LDR. P.J.B. KHURANA (Retd.) & ORS.     ..... Petitioners
                        Through   Mr.T.A.Mir, Adv.

                    versus


       STATE & ANR.                                   ..... Respondents

                          Through     Mr.Harish Sharma, Adv. for R-2.

       CORAM:
       HON'BLE MR. JUSTICE MOOL CHAND GARG

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

2. To be referred to Reporter or not?

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

: MOOL CHAND GARG,J(Oral)

Crl.M.A.12128/2009(restoration) The application is allowed the petition is restored to its original number.

CRL.M.C. 4180/2002

1. Heard learned counsel for the parties.

2. The petitioner is seeking review of the order passed by this Court dated 09.09.2009 dismissing Crl.M.A.4180/2002 which was filed by the petitioners under Section 482 Cr.P.C. only on the ground that while disposing of the said matter this Court has observed that no special circumstance were brought to the notice of the Court to show as to why this petition could be entertained which was in the nature of second revision petition filed under Section 482 Cr.P.C. after having filed a revision petition before the ASJ against the order framing the charges which stood dismissed vide order of the ASJ details whereof stands mentioned in para 4 of the order under review dated 09.09.2009.

3. It is the case of the petitioner that the FIR lodged against the petitioner is based upon the complaint made by Sh.Atul Aggarwal who made allegations in the complaint dated 16.06.1998 that he was forced to deliver a cheque of `20,000/- of current date and other post dated

cheques amounting to `40,000/- to the accused persons as the Members of the Managing Committee of Nagarjuna Co-operative Group Housing Society Ltd. for becoming a member of the said society as the entry fee, which was over and above the charges payable for the membership of the said Society. It was not only contrary to law but also to the direction of the Registrar of Co-operative Society. He was virtually threatened of dire consequences if he was not ready to accept the demand. Thus, he filed the complaint in question.

4. The petitioner further submits that a suit was filed by Sh. Atul Aggarwal against the Society, Sh.P.N.Sharma, President of the Society and Sh.G.S.Bedi for mandatory injunction and permanent injunction praying for a decree for mandatory injunction thereby directing the defendants to accept the nomination of the complainant in respect of Flat No.E-403 and also direct them to provide all the facilities as provided for.

5. It is also stated that in the said plaint it was also mentioned that Sh. Atul Aggarwal was not ready to deposit a sum of `60,000/- in the Society as welfare fund. He also moved an application for interim injunction. It is submitted that this suit was compromised between the parties and ultimately it was dismissed as withdrawn vide order dated 01.06.1998. In this regard statement made by the parties were filed before this Court which are available at page 48 of the petition and which reads as under:-

"23.01.2001.

Present: Plaintiff in person with counsel Sh.N.K.Sharma for Plaintiff.

Sh. Arun Batta, Counsel for deft.

File taken up again on the application moved by the pltf. under Order 23 Rule 1 & 3 CPC for withdrawal of the Suit. The plaintiff wants to withdraw the suit. The counsel for defendant has no objection. Let the statement be recorded.

Statement of Sh.Atul Aggarwal s/o Sh. G.R. Aggarwal on S.A.

The dispute with the defendant has been settled and I do not want to proceed with the case and the same may be dismissed as withdrawn.

RO&AC. C.J:Delhi.

Statement of Sh. Arun Batta counsel for defendant without Oath.

I have no objection to the withdrawal of the suit.

RO&AC C.J.:Delhi.

In view of the statement recorded above, the suit is hereby dismissed as withdrawn. Parties shall be bear their own costs. Case file be consigned to record room.

C.J.:Delhi 23.01.2001"

6. It is thus, submitted that once the parties have entered into a settlement and the issue of the demand of `60,000/- was also settled between them, continuation of criminal proceedings by the complainant against the petitioners was misuse of the process of Court and, therefore this Court should have intervened in the matter by exercising powers under Section 482 Cr.P.C.

7. While disposing of the petition this Court has taken note of the allegations made against the petitioners which goes to show that the accused persons were forcing him to deliver a sum of `60,000/- for becoming a member of the said Society as entry fee which was contrary to the circular issued by the Registrar of Societies and in fact in this regard, the complainant had even filed letter dated 14.12.1999 of the Society and in this regard the complainant had lodged protest vide letters dated 05.03.1998 and 09.05.1998 which goes to show that the complainant was being pressurized to deposit the amount of `60,000/- as entry fee and was also threatened with some action against him on his failure to deposit the aforesaid amount and it was in these circumstances, Sh. Atul Aggarwal filed a complaint which resulted into filing of the challan against accused persons under Sections 341/384/34 IPC. Since there was a threat extended to complainant by the accused persons forcing him to meet the illegal demand charge under Section 506 IPC was also made out in terms of the orders passed by the Metropolitan Magistrate dated 05.12.2001. It is a matter of record that the Civil Suit was filed before filing of the complaint. Having carefully examined the compromise order, no assurance was given by the complainant to withdraw criminal proceedings against the petitioner, in fact there was no mention of criminal proceedings initiated by the complainant in the statement recorded by Civil Court.

8. I have also noticed the orders passed by the ASJ in the revision

petition dismissing the revision filed by the petitioners. In the said order reference has been made to Rule 77 which empowers the Registrar to issue such directives for successful conduct of the business of Co- operative Society and in fact vide letter dated 14.12.1999 the Registrar had directed the Society not to charge any entry fee from the persons eligible for taking possession of the flat in the society. It is not understood as to why the issue of compromise arrived at between the parties were not brought to the notice of the M.M. concerned or the Revisional Court at that time, even though the suit was filed on 30.05.1998 and the statement relied upon by the petitioners was made on 23.01.2001.

9. The matter was pending before this Court since 16.12.2002 and was being adjourned from time to time only because parties were requesting time to settle the dispute amicably. It is apparent that despite the statements on which reliance has been placed upon the petitioner settlement has not taken place between the parties and finally this matter was admitted in the presence of the parties on 08.05.2009 for hearing and vide order dated 09.09.2009 the petition was dismissed.

10. It is well settled that civil proceedings and criminal proceedings can go on together. The charge leveled against the petitioners of forcing the complainant to pay additional amount of `60,000/- as entry fee for entry into the flat in the civil suit of which a reference has been made it has been very specifically stated by the complainant that the defendants had been forcing upon the complainant to pay a sum of `60,000/- which was illegal demand and the Society had been threatening to take action otherwise if the deposit would not have been made.

11. It appears that the Society was not permitting the complainant to enter his flat because of which he filed a Civil Suit to get a mandatory injunction to enter his flat which also led to filing of the complaint subject matter of this petition just after about 15 days of the filing of the Suit. Later it appears, the society agreed to allow entry for the flat to the complainant, the complainant entered into a compromise with the Society whereby the suit filed by him was withdrawn. It does not mean that he relieved the petitioners of his allegations which goes to show that the petitioner were indulging in criminal acts of extortion and threatening the complainant of dire consequences if he does not pay `60,000/-. Even if the Society agreed to waive of this claim, this would

not absolve the petitioners of the offence alleged to have been committed by them as complained by the complainant. In the compromise relied upon by the petitioner, there is no mention or assurance that the complainant agreed to withdraw the criminal case also. There is also no assurance given that such complaint or proceedings would be withdrawn by him. The proceedings going on in this Court shows that the complainant had been contesting the matter throughout.

12. In these circumstances, I do not find any reason to exercise powers vested with this Court under Section 482 Cr.P.C. The petition is accordingly dismissed as it has no merits.

13. However, nothing stated hereinabove would affect the merits of the case before the Trial Court.

14. It is further directed that taking into consideration the pendency of this case for a long time the Trial Court will expedite the proceedings and would make best endeavor to dispose of the case within a period of six months from the date of the communication of this order. The Registry would communicate this order to the concerned Trial Court forthwith.

MOOL CHAND GARG,J SEPTEMBER 24, 2009 'anb'