Delhi High Court

Sudharshan Singh Dhariwal vs R L Kukreja on 15 January, 2013

Author: Kailash Gambhir

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. 3986/2012

      SUDARSHAN SINGH DHARIWAL                   ..... Petitioner
              Through  Mr. Gurvinder Singh, Adv.

                    versus

      R L KUKREJA                      ..... Respondent
                             Through

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR

                 ORDER

% 15.01.2013

1. By this petition filed under Section 482 Cr.P.C., the petitioner

seeks quashing of complaint case NO. 65/1/11 pending before the Court

of learned ACMM, Tis Hazari District Courts, Delhi.

2. Addressing arguments, counsel for the petitioner submits that

the petitioner has been falsely implicated by the complainant/respondent as

the petitioner who was admittedly the owner of the property bearing no.

A-1/200, Janak Puri, New Delhi had cancelled the power of attorney vide

cancellation deed dated 27.9.2002. Counsel also submits that Mr. Tony

Talwar in whose favour the petitioner had earlier executed the special

power of attorney and later on whose power of attorney was cancelled by

the petitioner had died in the year 2005. Counsel further submits that the

petitioner had executed a special power of attorney in favour of the

respondent giving him authority to deal with DDA and other statutory

authorities. Counsel also submits that Mr. Tony Talwar had executed an

agreement to sell dated 29.5.2004 in favour of the daughter-in-law of the

complainant and this fact was never communicated by Mr. Tony Talwar to

the petitioner. Counsel also submits that once the petitioner had cancelled

the power of attorney then he had no right to enter into any sale transaction

with the daughter-in-law of the respondent. Counsel also submits that had

the petitioner not cancelled the power of attorney of Mr. Tony Talwar then

he would not have executed a fresh power of attorney in favour of the

complainant/respondent.

3. Based on the above submissions, counsel submits that no case

of cheating under Sections 406/420/468,469,471/471/500/511, 120B IPC is

made out against the petitioner even if prima facie material placed on

record is taken into consideration.

4. I have heard learned counsel for the petitioner and gone through

the material placed on record.

5. The respondent has filed a complaint against the petitioner under

Section 406/420/468/469/471/500/511/120B IPC inter-alia on the allegation

that the petitioner had executed a Special Power of Attorney on 17 th January,

2002 in favour of one Mr. Tony Talwar thereby authorizing him to execute an

agreement to sell of the aforesaid property in favour of the complainant after

having adjusted various expenses incurred by the complainant and also to

hand over the possession of the property to the complainant. As per the

complainant this attorney and the other two attorneys were executed by the

petitioner in Canada. It is also the case of the complainant that he had filed a

civil writ petition No. 1211/2002 on behalf of the petitioner against the DDA

and in compliance with the direction given by the High Court the complainant

had deposited an amount of Rs. 4 lakhs with the DDA on 18 th March, 2002. It

is also the case of the complainant that the said civil writ petition was finally

decided by the High Court on 22nd January, 2004 and in terms of the said

order composition fees was reduced from 30,00,375/- to Rs. 9,66,319/- and

the time for raising the construction over the plot was also extended. As per

the complainant the balance amount of Rs. 5,66,319/- was also deposited by

him with the DDA. It is also the case of the complainant that Mr. Tony

Talwar, who was attorney of the petitioner had duly executed an agreement to

sell so as to sell the said property in favour of his daughter-in-law Mrs.

Seema Kukreja on 29.5.2004 for a total sale consideration amount of Rs. 45

lakhs. It is also the case of the complainant that Shri Tony Talwar had died on

21st August, 2005 and thereafter the petitioner had executed another Special

Power of Attorney dated 9.9.2005 directly in favour of the complainant. It is

also the case of the complainant that the petitioner had also executed another

Power of Attorney dated 24.2.2007 in favour of the complainant to submit the

building plans to the MCD for the sanction and to take all other steps for

raising construction over the plot in question. It is also the case of the

complainant that a conveyance deed dated 4.6.2008 was executed by the

DDA in favour of Mrs. Seema Kukreja, who further sold the said property

vide registered sale deed dated 3rd March, 2010 in favour of Mrs. Kanchan

Kukreja and Mr. Mukesh Kukreja. It is also the case of the complainant that

he had paid an amount of Rs. 15 lakhs to the petitioner by way of cheqeus

which were duly acknowledged by him apart from making various payments

to the DDA, MCD etc. to clear the liability of the petitioner. It is also the case

of the complainant that the petitioner had sent a notice dated 15.7.2010

through which he had raised a demand of Rs. 45 lakhs towards the final

consideration for the sale of the said property. It is also the case of the

complainant that the petitioner had filed a false and frivolous suit for

declaration, permanent injunction and recovery of possession of the suit

property in the High Court of Delhi wherein the petitioner took a stand that

he had cancelled the Special Power of Attorney executed by him in favour of

Mr. Tony Talwar and, therefore Mr. Tony Talwar had no right to execute the

agreement to sell in favour of daughter-in-law of the complainant.

6. Based on these allegations the complainant has alleged that the

petitioner has played serious fraud upon the complainant by forging the

documents and by challenging the competence of Mr. Tony Talwar in whose

favour he himself has executed a valid Power of Attorney.

7. Learned Trial Court vide order dated 18th January, 2012 directed

issue of process against the petitioner under Section 204 Cr.P.C. after finding

prima facie material against the petitioner for committing the alleged

offences. The operative para of the order dated 18 th January, 2012 is

reproduced as under:-

"The grievance of the complaint is that fraud has been played upon the judicial process by the accused who has concealed number of Power of Attorneys having executed in the name of the complainant and the Attorney dated 20.10.01 executed in the name of Sh. Tony Talwar (deceased) and approached the Court by filing a False Suit on the strength of one forged document/Deed of Cancellation dated 27.09.02. The grievance is that the forgery of the said document is evident in view of the reasons cited in the complaint in para no. 25 thereof. The grievance further is that

there is not even a whisper of the so-called Deed of Cancellation dated 27.09.02, made in the subsequent Power of Attorneys executed in favour of complainant on 09.09.05, 24.02.07 and 10.12.07. It is alleged that even in the notice dated 15.07.2010 sent to complainant, accused did not mention at all, the alleged Deed of Cancellation having ever executed or into existence on 27.09.02.

Having considered the submissions, the documents as well as the allegations in the complaint, prima facie, in view of sufficient material against accused for the alleged offences, this court proceeds to issue process against him under Section 204 Cr.P.C. Issue summons upon accused on PF for offences under Section 420, 468, 471 IPC for 19.04.12."

8. During the course of the arguments, counsel for the petitioner on

being repeatedly asked as to whether the petitioner had received an amount of

Rs. 15 lakhs from the complainant, gave no satisfactory response. Counsel

also gave no convincing reply to the query raised as to how and in what

manner Mr. Tonny Talwar was conveyed about the cancellation of his Power

of Attorney.

9. It is a settled legal position that powers possessed by the High

Court under Section 482 Cr.P.C. although are very wide but the same requires

a great caution in its exercise. In a case where upon considering the material

on record if the Courts finds that no offence is made out or there is a legal bar

to the prosecution of the accused under the provisions of the Code or any

other law for the time being in force or their exists no ground to proceed