Fiitjee Ltd. vs Om Prakash Daral
2018 Latest Caselaw 5304 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Decided on: 5th September, 2018
+                          CRL.L.P. 640/2016
       FIITJEE LTD.                                         ..... Petitioner
                           Represented by:      Mr. Neeraj Malhotra, Sr.
                                                Advocate with Ms. Shradha
                                                Karol and Mr.Sarthak Karol,
                                                Advocates.
                           versus

       OM PRAKASH DARAL                                     ..... Respondent
                   Represented by:              Mr. Rakesh Yadav, Ms.
                                                Ruchira Arora, Mr. Dhananjay
                                                Mehlawat and Mr. Rohan
                                                Yadav, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)

1. Having perused the order sheet of the learned trial court this court deems it fit to grant leave to appeal.

2. Leave to appeal petition is disposed of.

Crl. A. No. /2018 (to be numbered)

1. Registry to number the appeal.

2. Admit.

3. Heard learned counsel for the parties.

4. Aggrieved by the order dated 14th September, 2016 dismissing the complaint of the petitioner for non-prosecution and thereby acquitting the respondent, the petitioner prefers the present appeal.

5. Petitioner filed a complaint under Sections 420/120B/34 IPC against the respondent and one Yunus Ali stating that the petitioner was a public

limited company and had been cheated/duped by Om Prakash and Yunus Ali causing wrongful loss to the complainant and wrongful gain to them for a sum of ₹70 lakhs by misrepresenting facts.

6. Case of the petitioner/complainant in the complaint was that Om Prakash Daral and Yunus Ali offered to sell their property bearing No.59A/1, Plot No.10, Kalu Sarai, New Delhi and the sale consideration was fixed at ₹40 lakhs. Though no formal written Agreement to Sell was entered into however ₹8 lakhs was paid as earnest money/part payment towards the purchase price. In June, 2005 the accused persons demanded further sum of ₹10 lakhs which was also paid on 24 th June, 2005. In October, 2005 the complainant was convinced to sign the lease deed for the very same premises stating various problems, whereafter an additional sum of ₹5 lakhs was demanded which the complainant agreed but only at the time of execution of the Sale Deed. It is stated that the complainant had paid initially sum of ₹18 lakhs followed by further sum of ₹53 lakhs however, the accused refused to sign the Sale Deed.

7. The said complaint came up before the learned Metropolitan Magistrate on 13th July, 2010 when the authorised representative of the petitioner namely Manish Anand was examined as CW-1 and discharged. It was noted that learned counsel for the complainant did not want to examine any other witness. Matter was thus listed for arguments on summoning of the accused for 14th September, 2010 and for the said reason it was thereafter adjourned to 8th December, 2010 when both the accused were directed to be summoned on filing of the process fee for 25th February, 2011. On 25th February, 2011 the complainant and the two accused were absent and thereafter on 2nd April, 2011 the complainant was present however, both

the accused were absent and adjournment was sought. The matter was fixed for further proceedings on 17th September, 2011 when both the accused along with their counsel were present. On 19th September, 2011 the learned Trial Court noted that though the presence of the two accused has been noted in the earlier proceedings however, they had actually not appeared and process fee is required to be filed to summon accused. Hence, directions were issued to file process fee to summon the accused for 20 th December, 2011.

8. On 20th December, 2011 learned counsel for the petitioner was present when it was stated that both the parties have filed a petition before the Hon'ble High Court for comprise and sought adjournment. On the pretext that the proceedings were pending before this Court, complaint was adjourned till finally on 5th September, 2012 learned counsel for both the parties were present and it was stated that the matter has been compromised before this Court however, adjournment was sought for clarification. On 20th November, 2012 it was stated that the matter could not be settled before this Court and thus Yunus Ali was directed to be summoned afresh on filing of the process fee. Thereafter thrice the matter had to be adjourned for the reason that process fee was not filed for re-summoning Yunus Ali and when on 26th November, 2013 he was absent despite service, bailable warrants were issued returnable for 5th February, 2014. Again process fee was not filed and thus bailable warrants could not be executed. Vide order dated 2 nd May, 2014 it was observed that settlement qua Yunus Ali was going on who remained to be served and thus the matter was again adjourned 2 nd July, 2014 and thereafter the matter was adjourned for 15 th September, 2014 for recording whether a settlement has been arrived at between the complainant

and Yunus Ali, when learned counsel stated that the matter is likely to be settled before the Mediation Centre of this Court. Finally on 6th February, 2015 learned counsel for the complainant stated that Yunus Ali be dropped from the array of parties as settlement has been arrived at and the statement of the authorised representative of the petitioner in this regard was recorded. The matter was thus listed for pre-charge evidence qua Om Prakash/filing of the amended memo of parties on 22nd April, 2015. On 22nd April, 2015 respondent Om Prakash sought exemption, further the complainant was also not present as was the learned Presiding Officer. The matter thus further lingered for two-three dates for amended memo of parties and pre-charge evidence qua Om Prakash. Finally when the matter was listed for recording of pre-charge evidence on 20th January, 2016, learned counsel for the complainant submitted that CW-1 was not carrying some original documents and the matter was adjourned to 22nd April, 2016. Again on 22nd April, 2016 learned counsel for the complainant submitted that some original documents have been filed before this Court and sought some time to file certified copies and prayed for an adjournment which was granted.

9. On 14th July, 2016 an application was filed by the petitioner seeking time to place on record the original documents and the matter was adjourned to 14th September, 2016 when the Court finally dismissing the complaint for non-prosecution.

10. Case of the petitioner is that since due to various proceedings between the parties, original documents were lying in this Court and thus certified copies were required to be taken to be relied upon before the learned Trial Court and in the absence of certified copies there was no meaning to examine CW-1. Two consecutive applications showing the necessity to

place on record the documents were filed. Recording of statement of CW-1 in the post charge evidence was not an empty formality and at best by imposing cost the learned Trial Court ought to have allowed the applications. Without taking the decision on the two applications the complaint was dismissed for non-prosecution.

11. Certified copies of the documents sought to be filed and which were applied by the petitioner before this Court were original receipts/vouchers along with photocopies of cheques, copy of notice dated 23 rd September, 2009 received from the respondent and copy of reply dated 27 th October, 2009 by the complainant.

12. The above noted documents cannot be said to be non-essential to prove the case of the complainant/petitioner. No doubt the matter lingered on for quite some time on the pretext that settlement talks were going on with Yunus Ali and then for pre-charge evidence however, considering the fact that the petitioner was taking steps to take the certified copies of the documents required to be relied by him, this Court is of the opinion that one more opportunity ought to have been granted by the learned Trial Court to the petitioner to leave evidence along with the documents though subject to cost.

13. Considering the facts noted above, this Court deems it fit to set aside the impugned order dated 14th September, 2016. The complaint being CC No.870/1/09 is restored to its original position.

14. Parties will appear before the learned Trial Court on 4th December, 2018, on which date the petitioner will pay a cost of ₹25,000/- to the respondent.

15. Before concluding this order, it would be appropriate to note the fact

pointed out by learned counsel or the respondent that during the pendency of the complaint before the learned Trial Court, respondent had filed a petition under Section 482 Cr.P.C. being Crl. M.C. No.221/2014 titled as 'Om Prakash Daral vs. State & Anr.' seeking quashing of criminal complaint bearing CC No.870/1/09 filed by the petitioner as also the order summoning respondent as an accused.

16. Crl. M.C. No.221/2014 came up before this Court on 10th February, 2017 when learned counsel for the petitioner submitted to this Court that the petitioner had been discharged/acquitted before the learned Trial Court. Hence the petition was dismissed as infructuous.

17. Learned counsel for respondent points out that this order was passed in the presence of learned counsel for the petitioner herein however, he failed to bring to the notice of the court that a petition for grant of leave to appeal against the impugned order dated 14 th September, 2016 dismissing the complaint and acquitting the respondent had already been filed.

18. Considering that valuable right of the respondent in the process has been lost, this Court deems it fit to grant liberty to respondent to revive its petition being Crl. M.C. No. 221/2014 and Crl. M.A. No. 732/2014.

19. Appeal is disposed of.

(MUKTA GUPTA) JUDGE SEPTEMBER 05, 2018 'vn'