A.P.Narang vs Cbi
2011 Latest Caselaw 227 Del

                  * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Reserve: 13th December, 2010
                                                    Date of Order: 17th January, 2011
+ Crl.Rev. P No. 397/2010
%                                                                  17.01.2011

        A.P.Narang                                                        ... Petitioner
                                 Through: Mr. R.K.Handoo, Advocate &
                                 Mr. I.D.Vaid, Advocate

                Versus


        CBI                                                          ... Respondent
                                 Through: Mr. Vikas Pahwa, Standing Counsel with
                                 Ms. Suchiti Chandra, Advocate
+ Crl.Rev. P No. 398/2010
%                                                                  2011

        K.K.Rampall                                                    ... Petitioner
                                 Through: Mr. R.K.Handoo, Advocate &
                                 Mr. I.D.Vaid, Advocate

                Versus


        CBI                                                         ... Respondent
                                 Through: Mr. Vikas Pahwa, Standing Counsel with
                                 Ms. Suchiti Chandra, Advocate


JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

These two revision petitions have been filed by the two office bearers

of a Group Housing Society viz. M/s IRCON Employees CGHS Ltd. aggrieved by the

order dated 17th February, 2010 directing framing of charge against the petitioners

under Section 420/471/120-B IPC.

2. This Court in Civil Writ Petition No. 10006/2004 had directed CBI to

investigate about the genuineness of societies to whom land had been allotted by the

DDA. On the basis of these directions, an FIR was registered on 7th November, 2006

under provision of Prevention of Corruption Act alleging conspiracy of officials of

Registrar of Cooperative Society and four office bearers of petitioner society

including petitioners. CBI investigated into the affairs of the society and about the

genuineness of the society and gave a finding that all the members of the society

were genuine and no case under Prevention of Corruption Act was made out for

allotment of land by DDA to the society on the basis of fraud or deception. However,

while doing this investigation CBI considered that the resignation letter of one of the

members viz. Mr. V.K.Talwar was not genuine and it was a forged document. There

is no doubt that Mr. V.K.Talwar was a genuine member of the society. There is no

dispute that apart from paying initial membership fee of Rs.100/- he did not make any

payment to the society either towards purchase of land despite demand notices or

subsequently during construction of the flats of the society towards construction.

There is no dispute that there were several other members with similar position and

they had resigned from the society and the Managing Committee of Society had sent

a list of such members who had resigned from the society to Registrar. There is also

no dispute to the fact that society had from time to time sent demand letters to Mr.

V.K.Talwar and Mr. V.K.Talwar contributed "zero" amount towards construction or

towards purchase of land. However, Mr. V.K.Talwar told CBI that the resignation

letter on record of the society did not bear his signatures and was a forged letter. It is

also not in dispute that Mr. V.K.Talwar had not made any complaint either to police or

to any other authority that he was wrongfully not considered for allotment of the flat.

It is on record that society constructed only 110 flats for those 110 members, who

had made payment towards purchase of land as well as towards construction. Under

these circumstances, the petitioner has stated that no offence of cheating was made

out against the petitioners since essential ingredients of offence were not present.

3. Section 415 IPC which defines cheating reads as under:

Section 415. Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit 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, is said to "cheat".

Explanation. A dishonest concealment of facts is deception within the meaning of this section.

4. Presuming that letter of Mr. V.K.Talwar was forged that would show

that Mr. V.K.Talwar had not resigned and had continued to be a member. He had

not paid a single paisa towards cost of land or towards construction. Thus, the issue

of deceiving him fraudulently or dishonestly, so that he delivers any property to any

person or issue of inducement by an act or omission of petitioners does not arise. If

he had not resigned he was liable for expulsion because of non-payment of dues as

per rules and bye-laws of the society. He did not hold any vested right in the society

by being member despite not making payment towards construction of the flats.

Thus, no presumption can be drawn that he was holder of any property. A

membership of a society is not a property. Only that membership of the Group

Housing Cooperative Society matures into property where the member contributes

towards construction of the flats and towards purchase of land for flats. If he does

not contribute either towards purchase of land or towards construction, he does not

hold any property right in the Cooperative Group Housing Society and Group

Housing Society is not bound to allot him any flat. Under these circumstances, I

consider that no offence under Section 415 or 420 IPC was made out against the

petitioners.

5. As far as offence under Section 471 IPC is concerned, it only seems

that this prosecution was motivated. Mr. V.K.Talwar's resignation letter was

forwarded to Registrar of Cooperative Society in 1998. From 1998 till 2006 when

CBI filed its report Mr. V.K.Talwar himself had not complained about his resignation

being forged. He was very well aware that he had not paid a single paisa towards

construction of flats of the society. He knew that flats had come up and he was not

being considered as member of the society. If he was aggrieved that his resignation

was forged one, he would have complained to Registrar of Cooperative Society

about this. It only seems that while CBI was investigating about the genuineness of

the society, Mr. V.K.Talwar found it as an opportunity to claim a flat on the ground of

alleged forgery of his resignation letter and made this complaint that his resignation

letter was forged. Still it is not his case that at any point of time he had offered to the

society the amount as demanded by the society. Under these circumstances, I

consider that his stand of a forged resignation letter after such a long period was only

a change of colours and nothing more.

6. In view of my above discussion, I hereby allow both the petitions. The

order dated 17th February, 2010 passed by learned ACMM-I/East/KKD is hereby

quashed.

Janaury 17, 2011                                     SHIV NARAYAN DHINGRA, J.
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