Delhi High Court
Vinod Kumar Gupta vs State Of Nct Of Delhi on 9 January, 2012
Author: Suresh Kait
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. No.14/2012
% Judgment delivered on: 09th January, 2012
VINOD KUMAR GUPTA ..... Petitioner
Through : Mr.Shahid Anwar &
Mr.Ajay Amrit Raj, Advs.
versus
STATE OF NCT OF DELHI ..... Respondents
Through : Mr.Navin Sharma, APP for
State.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl.M.A.No.254/2012(delay)
For the reasons explained, delay stands condoned.
Criminal M.A. stands disposed of.
+ CRL.REV.P. No.14/2012
1. Notice issued.
2. Mr.Navin Sharma, learned APP accepts notice on behalf of State
/ respondent.
3. With the consent of learned counsel for parties, matter is being
taken up for disposal.
4. Learned counsel for petitioner submits that petitioner being a
member of Roopvilla CGHS Ltd and having its membership No.1, who
remained the president of the said society for the period 2007 to July,
2010 and besides petitioner, Shri Vinay Kumar Jain, who was the
member of the said society was in the managing committee of the said
society as treasurer of the society.
5. He further submits that at the time of appointment of architect of
the society, Vinay Kumar Jain persuaded before the managing
committee of the society to appoint Mr.Manish Jain as an architect of
the society and conceal the fact that Mr.Manish Jain is his nephew
(Bhanja). Besides, Mr.Vinay Kumar Jain was also persuaded for
appointment of Mr.Sharad Jain as contractor of the society by
concealing that Mr.Sharad Jain was brother-in-law of Mr.Manish Jain
and said facts have not been communicated by him to the society.
6. Learned counsel further submitted that all the above named three
persons entered into a conspiracy and cheated the members of the
society as they have cheated for an amount of more than ` 4.00 Crores
to the society and the innocent members thereof. All of them
persuaded to get the costs of constructions at a very escalated price of `
762/- however the market price at that time was ` 475/- approximately.
7. He further submitted that on 29.06.2010, petitioner filed a
complaint to SHO, police station Dwarka, New Delhi to lodge FIR
against all three above named persons namely Vinay Kumar Jain,
Manish Jain and Sharad Jain and to take action against them. However,
no action was taken by the police. On 12.07.2010, the petitioner again
filed a detailed complaint with the police to lodge FIR against all three
persons. When no action was taken, on 11.08.2010, petitioner, filed a
complaint before learned Additional Chief Metropolitan Magistrate,
Dwrka under Section 156 Cr. P.C. for the registration of FIR under
Section 405/406/409/420/441/442/506 read with Section 120 B Indian
Penal Code against above named three persons.
8. On filing the status report by the Investigating Officer, learned
ACMM, while giving detailed reasons same was not accepted by
learned Court, therefore, learned Court was of the opinion that the
present case, does not warrant issuance of summons against the
respondent / accused.
9. Learned counsel for petitioner, submitted that the Court has not
considered the report dated 10.06.2010 prepared by S. K. Adhicary,
Consulting Engineer, who has concluded as under:-
"It is concluded that the awarded covered area
rates i.e. Rs.7,62,000 is about 55% to 60% higher
which means the rates should have been
Rs.4,75,000 approximately. Further, the
Development charges are higher by about 100%
i.e. the rates should have been about
Rs.50,00,000/- only. It is further submitted that this
is only an interim report and conclusive report in
totality can be prepared, if required.
Submitted to Roopivilla C.G.H.S for
information only. Report not to be used for any
legal matter."
10. Mr.Navin Sharma, learned APP has strongly opposed the instant
petition, as there is no merit.
11. Learned APP has further submitted that there is no discrepancy
in the order passed by learned ACMM, who has passed the impugned
order dated 15.09.2011, after considering all the facts and evidence on
record.
12. He further submits that at the time of initial inquiry, one status
report was called from SHO concerned, wherein it was disclosed that
one complaint was filed by members of the society before Registrar of
Co-operative Societies for termination of the petitioner from the post
of the president. Further, the appointment of Mr.Manish Jain and
Mr.Sharad Jain were dated 20.07.2003 and 01.07.2005 which were
prior to the date when the DCS Rules 2007 came into force. It was
also disclosed in the report that the alleged escalated price of
construction was decided at the time when the petitioner was president
and after taking consent of the general body.
13. Learned APP submits that the Trial Court has recorded in its
impugned order that if the evidence as led by petitioner / complainant
is perused in the light of the status report filed by the IO, it becomes
clear that the petitioner has failed to establish prima facie case for any
of the alleged offences. The facts deposed by CW1 and CW2 were
not sufficient to assume the correctness of any of the allegations. The
possibility of an attempt by petitioner to falsely implicate the accused
persons - in view of the resolution of the society regarding termination
of the petitioner- also cannot be ruled out.
14. I note, learned ACMM has relied upon Pepsi Foods Ltd v.
Special Judicial Magistrate VI (1998) SLT 102 wherein it has held by
Apex Court as under:-
"Summoning of an accused in a criminal case is
serious matter. Criminal Law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case
and law applicable thereto."
15. The submission of learned counsel for petitioner that the Trial
Court has not considered the report of Mr.S. K. Adhicary, in my
opinion, is wrong due to the fact that the complaint/petitioner has to
stand on his own feet. Therefore, he was supposed to lead the evidence,
if any in his possession or any document which he latterly fails in the
instant case and no witness in this regard has been produced or
examined before learned Trial Court. Therefore, I find no discrepancy
in the impugned order passed by learned Trial Court. As such, I am not
inclined to interfere with the same.
16. Consequently, Criminal Rev.P.No.14/2012 is dismissed.
17. No order as to costs.
SURESH KAIT, J
JANUARY 09, 2012
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