Delhi High Court
Mukul Trivedi vs State & Anr on 4 September, 2018
$~54
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: September 04, 2018
+ CRL.M.C. 496/2016
MUKUL TRIVEDI .... Petitioner
Through: Mr. Arun Francis, Advocate with
petitioner in person
versus
STATE & ANR ..... Respondents
Through: Mr. Mukesh Kumar, APP for the
State
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
O R D E R (ORAL)
1. On the criminal complaint (CC no.543/2012 - new
no.26132/2008) of the respondent (complainant), the Metropolitan
Magistrate, by his order dated 30.08.2013, declined to issue any
process and dismissed the case under Section 203 of the Code of
Criminal Procedure, 1973 (Cr. PC). The said order was challenged
before the court of sessions invoking its revisional jurisdiction
(criminal revision no.120/2013) which was allowed by order dated
26.02.2014 holding, inter alia, that a prima facie case of dishonest
intention had been made out and the complaint merited being
proceeded with further. Against this backdrop, the Metropolitan
Magistrate issued summons to the petitioner (hereinafter referred to
as "the accused") by order dated 10.03.2014.
2. The petition at hand was filed invoking the inherent power of
this court under Section 482 Cr. PC to pray for quashing of the
proceedings in the said criminal complaint case.
3. The petition came up for hearing on 28.08.2018. After some
hearing, the counsel representing the petitioner, on instructions,
sought permission to withdraw the petition reserving the right to raise
all the contentions set out in the petition before the trial court where
the matter has been pending at the stage of pre-charge evidence. The
said prayer was granted and the petition was dismissed as withdrawn.
4. On 30.08.2018, application (Crl. M.A. 31313/2018) was moved
seeking recall of the said order dated 28.08.2018 with the submission
that the prayer for withdrawal was made "inadvertently", it being a
"bonafide mistake", the petitioner being a layman, though present in
the court at the time of hearing on 28.08.2018, having not understood
the implication of such withdrawal of the matter.
5. Though the grounds on which the recall of the order dated
28.08.2018 has been sought do not appeal to reason, the call for
withdrawal having been taken under legal advice, there being no case
of inadvertence, since a decision on the petition on merits is insisted,
the order has been recalled and the petition restored to be decided on
its merits.
6. The background facts leading to the criminal complaint being
filed, simply put, relate to an agreement to sell which was concededly
executed by the petitioner (accused) in favour of the second
respondent (complainant) on 16.11.2005. A copy of the said
agreement has been submitted. It would show that the accused had
agreed to sell one-half share of property bearing no.91, admeasuring
636.2 sq. yd. situate at Jor Bagh, New Deli in favour of the
complainant for a total consideration of Rs.5.5 Crores out of which
Rs.2.05 Crore was received by him as earnest money, the balance
being payable at the time of execution and registration of the sale
deed. The parties had agreed at the said stage that the balance
payment would be made on or before 30.06.2006 against handing
over of the vacant peaceful possession of the property being sold and
also at the time of execution and registration of the sale/ transfer
documents. The said date i.e. 30.06.2006 was extended three times,
lastly for and upto 25.09.2006.
7. The accused by the present petition would rely on
communication dated 25.09.2006 addressed to him by the
complainant calling him upon to execute the documents and complete
the performance of his part under the agreement to sell, stating, inter
alia, that he was ready with the funds and stamp papers. The accused
also places reliance on his reply dated 29.09.2006 in response thereto
indicating that the complainant had failed to perform his part of the
agreement "on or before the stipulated date" and accordingly the
agreement to sell had become unenforceable in law. It is pointed out
that in the said reply dated 29.09.2006 the accused had communicated
to the complainant that the amount paid by him "shall be returned as
and when request is made in this behalf".
8. The impugned orders were passed on the criminal complaint
presented (on 25.03.2008), after a suit for specific performance had
been instituted on 03.10.2006 by the complainant. The complainant
would allege that the accused never had the intention of satisfying the
agreement and refers in this context to not only the agreement to sell
but also the payments which were made from time to time, he having
statedly extended the time for completion of the contract and having
refused to perform his part of the agreement when balance money had
been kept ready and had even been offered. It may be mentioned in
this context that it has been the stand of the complainant, as is more
elaborately set out in the civil suit pleadings whereof are also part of
the material on which the complaint is being pressed, that he had
approached the accused one week prior to the date 25.09.2006
personally and also given reminders telephonically on the following
dates intimating that he was ready and willing to pay the balance sum
against delivery of vacant physical possession inspite of which the
accused would not respond.
9. On first blush, it does appear that the case is primarily of civil
flavor. But then, the allegations of the complainant that the accused
never had the intention of performing his part of the contract and that
he had dishonestly and illegally retained the huge amount of Rs.2.05
Crores after the agreement to sell was executed on 16.11.2005,
cannot be lightly brushed aside. The issues of facts arise which
cannot be properly addressed in the jurisdiction under Section 482 Cr.
PC. [see: Rajiv Thapar and Ors. vs. Madan Lal Kapoor, (2013) 3
SCC 330].
10. The allegations of the complainant that he had made contact
with the accused one week prior to 25.09.2006 to intimate that he was
ready with the balance money cannot be disbelieved at this stage of
the process. In that view of the matter, the contention of the accused
on the basis of select material i.e. notice dated 25.09.2006 and reply
dated 29.09.2006, cannot be accepted without permitting the
petitioner to adduce his evidence, such evidence led at the stage of
pre-charge evidence presently underway being, of course, subject to
being tested, inter alia, through the process of cross-examination.
11. In the given facts and circumstances, the view taken by the
revisional court in the order dated 26.02.2014 leading to the
summoning order being passed by the Magistrate on 10.03.2014
cannot be faulted.
12. The petitioner had chosen the correct course on 28.08.2018
reserving the right to raise all his contentions before the trial court.
The petition being devoid of merits is dismissed with cost of
Rs.25,000/- to be deposited with Delhi High Court Legal Services
Committee within a week.
R.K.GAUBA, J.
SEPTEMBER 04, 2018
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