Delhi High Court

H.S. Bedi vs Inderjeet Singh on 16 October, 2015

Author: P. S. Teji

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CRL.M.C. 323/2012
                                   Date of Decision : October 16th, 2015
    H.S. BEDI                                         ..... Petitioner
                        Through    Mr.Madhav Khurana, Adv. with
                                   Mr.Aalam Nijjar, Adv.

                        versus

    INDERJEET SINGH                                  ..... Respondent
                  Through          Ms.Sangeeta Jain, Adv.

           CORAM:
           HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The present petition under Section 482 Cr.P.C. has been filed

by the petitioner for quashing of complaint case no.6740/1 titled

"Inderjeet Singh v. Kiran Pal Singh Choudhary & Ors.",pending

before the learned Metropolitan Magistrate, Tis Hazari Courts, Delhi,

and the order dated 25.03.2011 summoning the petitioner under

Section 420 IPC and the proceedings arising therefrom.

2. Factual matrix, emerges from the record, is that the

complainant/respondent, namely, Inderjeet Singh has filed a criminal

complaint against accused persons, namely, Kiran Pal Singh

Chaudhary, IDEB Project (P) Ltd. and the petitioner-herein H.S. Bedi

alleging therein that Kiran Pal Singh represented to the complainant

that he had good relations with the petitioner-herein and he would get

allotted a land measuring 500 sq. meter @ Rs.2200/- per sq. meter in

the name of the complainant in the Industrial Estate, Phase-I,

Kashipur, Uttarakhand. The complainant made a total payment of

Rs.10,94,998/- by way of cheques in favour of Kiran Pal Singh and

IDEB Project (P) Ltd towards allotment and purchase of the said land.

Despite making the payment, neither the allotment letter was issued

nor was land allotted to the complainant. Despite repeated requests,

the accused persons did not pay any heed. The cheques given were

duly encashed by the accused. The complainant sent a legal notice

dated 12.07.2008 to the accused persons, but despite its service, the

accused persons did not allot the land to the complainant.

3. The learned Metropolitan Magistrate vide order dated

25.03.2011, summoned the accused persons while observing that a

prima facie case for commission of offence under Section 420 IPC is

made out against the accused persons.

4. Feeling aggrieved of the complaint and the summoning order,

the petitioner has preferred the present quashing petition. It is

mentioned that the petitioner is the managing director of M/s IDEB

Projects Ltd. (hereinafter referred to as "Company") which is engaged

in the engineering and construction work in various cities and has

executed numerous projects all over India. The Company promoted

an Industrial Estate in Mahua Kheda Ganj, Kashipur. In January

2007, the Company was approached by accused K.P. Singh for

allotment of a plot in the said industrial estate. He represented that

the plot was to be bought in the name of M/s KAI International in

which he, Mr.Ashwani Khanna and complainant Mr. Inderjeet Singh

were the partners. On 31.01.2007, earnest money was deposited by

Mr.K.P. Singh and on 20.02.2007, the Company issued an allotment

letter in favour of Mr. K.P. Singh i.e. partner of M/s KAI

International. On 28.03.2007, the said firm defaulted in paying the

next installment. On 02.04.2008, the Company received a letter from

Mr.K.P. Singh requesting cancellation of allotment. On 14.07.2008, a

legal notice was received by the Company from the complainant,

which was duly replied.

5. The petitioner has taken the ground that the present case is duly

covered by the judgment in case of State of Haryana v. Bhajan Lal,

(1992) Suppl. 1 SCC 335; from the perusal of complaint and

documents, no offence is made out against the petitioner; there was no

fraudulent or dishonest intention at the time of making promise by the

petitioner; there was no inducement on the part of the petitioner; there

is no concept of vicarious liability in criminal law; no overt act has

been mentioned against the petitioner; the Trial Court had not

conducted any enquiry under Section 202 Cr.P.C.

6. Argument advanced by the learned counsel for the petitioner is

that the complainant has suppressed the fact from the Court that the

allotment of plot was never in his name rather it was in the name of

the partnership firm of which the complainant was one of the partners.

Since the complainant and his partners did not pay the balance sale

consideration, they requested for cancellation of allotment which was

cancelled. In support of this contention, he relied upon the judgment

in the case of Samadhan Dhudaka Koli v. State of Maharashtra

2008 (16) SCC 705 in which it was observed that no explanation has

come as to why the prosecution suppressed the dying declaration;

fairness in investigation as also trial is a human right of an accused

and the State cannot suppress any vital document from the court only

because the same would support the case of the accused. On similar

point, judgments in cases of State of Orissa v. Debendra Nath Padhi

(2005) 1 SCC 568 and Harshendra Kumar D. v. Rebatilata Koley

and others (2011) 3 SCC 351 have been relied upon.

7. On the other hand, learned counsel for the respondent has

argued that the complainant was not the partner in firm M/s KAI

International as contended by the petitioner. He has not even made

any partnership firm with the co-accused. The complainant made the

payment of Rs.10,94,998/- to the accused persons for allotment of

land and its transfer, but allotment was never made and thus the

respondent/complainant was cheated.

8. It is nowhere the case of the complainant/respondent that he

was the partner of M/s KAI International. The contention of the

petitioner that co-accused K.P. Singh was one of the partners and the

said partnership firm made payments for allotment of plot, nowhere

finds mention in the complaint made by the complainant. The

allegations leveled by the complainant are specific i.e. that the

petitioner-herein and co-accused K.P. Singh cheated the complainant

in the name of getting the plot allotted in the industrial estate being

developed by the petitioner-herein. So, there is no basis in the

contention of the petitioner that the complainant/respondent

suppressed any material fact. Thus, the judgments in case of

Samadhan Dhudaka Koli (supra), Debendra Nath Padhi (supra) and

Harshendra Kumar (supra) are of no assistance to the petitioner as

the same are distinguishable from the facts of the present case.

9. It was further argued that the petitioner had no intention to

cheat the complainant nor did he ever induce the complainant to part

with his money. The total sale consideration of the plot was

Rs.44,77,600/-. On 20.02.2007, the Company issued allotment letter

to Mr.K.P. Singh along with the payment schedule for the balance

payment. The firm of the complainant defaulted in making the

payment as per schedule. It is further argued that even the

complainant had not made the total payment.

10. In support of the above contentions, judgment in case of

Hridaya Ranjan Prasad Verma and others v. State of Bihar and

another (2000) 4 SCC 168 has been relied upon in which it was

observed that the distinction between mere breach of contract and the

offence of cheating is a fine one. It depends upon the intention of the

accused at the time of inducement which may be judged by his

subsequent conduct. Mere breach of contract cannot give rise to

criminal prosecution for cheating unless fraudulent or dishonest

intention is shown right at the beginning of the transaction, that is, at

the time when the offence is said to have been committed. To hold a

person guilty of cheating, it is necessary to show that he had

fraudulent or dishonest intention at the time of making the promise.

On similar point, judgments in the cases of Inder Mohan Goswami

and another v. State of Uttaranchal and others (2007) 12 SCC 1;

V.Y. Jose and another v. State of Gujarat and another (2009) 3 SCC

78; M/s Thermax Ltd. & ors. v. K.M. Johny & ors. 2011 (11)

SCALE 128; Subhkaran Luharuka & another v. State (Govt. of

NCT of Delhi & another 2010 (3) JCC 1972 and Vesa Holdings P.

Ltd. and another v. State of Kerala & others 2015 SCC Online SC

238 have been relied upon.

11. As per the allegations leveled by the complainant/respondent,

he was inducted by both the accused persons to make payment for

allotment of land in the industrial estate developed by the petitioner-

herein. It has come on record that payments in the name of the

Company of the petitioner-herein and co-accused K.P. Singh were

made by the complainant/respondent. The record further reveals that

the payments made by the complainant by way of cheques were

encashed by the accused persons but despite having received the

payment, the land was never allotted to the complainant, rather the

allotment letter was issued to the co-accused K.P. Singh, which shows

dishonest and fraudulent intention on the part of the petitioner-herein

also to deceive the complainant for making the payment. No

explanation has come on record that despite receiving the payment

from the complainant as to why allotment of land in his favour has not

been made. When it is the specific stand of the complainant/

respondent that he was not the partner in M/s KAI International, the

dishonest and fraudulent intention of the accused persons including

the petitioner-herein is apparent in inducing the complainant/

respondent. Therefore, the judgments in cases of Hridaya Ranjan

Prasad Verma (supra), Inder Mohan Goswami (supra), V.Y. Jose

(supra), M/s Thermax Ltd. (supra), Subhkaran Luharuka (supra) and

Vesa Holdings P. Ltd. (supra) do not render any assistance to the

petitioner as not applicable to the facts and circumstances of the

present case.

12. Next limb of argument advanced by the learned counsel for the

petitioner is that as per Section 202 (1) of the Cr.P.C., it is obligatory

for the Magistrate to either conduct enquiry himself or have it

conducted by a police officer. It is argued that the Trial Court did not

direct the police to check the veracity of the allegations made in the

complaint. In support of this contention, judgment in case of Savera

Sidhu v. Harleen Sidhu and another 2010 Law Suit (P&H) 442 has

been relied upon in which it was observed that the order of the

Magistrate summoning the accused must reflect that he has applied

his mind to the facts of the case and the law applicable thereto. The

Magistrate has to examine the nature of allegations made in the

complaint and the evidence both oral and documentary in support

thereof and that would be sufficient for the complainant to succeed in

bringing charge home of the accused.

Section 202(1) of the Cr.P.C. reads as under:

"Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a

place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquiry into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding."

13. In the present case, it is apparent from the record that the

learned Magistrate conducted the inquiry under Section 202 Cr.P.C.

through a police officer. It was reported by the police that co-accused

K.P. Singh once executed an agreement with the complainant, but the

same was subsequently cancelled as the complainant could not pay

the installments to the Company of the petitioner-herein. It was also

reported by the police that the payments were made by the

complainant. The impugned order passed by the learned Magistrate

also shows that to satisfy himself, the pre-summoning evidence of the

complainant was called. The complainant got himself examined and

made the specific allegations against the accused persons in his

examination. Documentary evidence was also placed on record by