Delhi High Court
Gopal Johari vs The State Govt Of Nct Of Delhi & Ors on 30 May, 2023
Neutral Citation Number 2023:DHC:4028
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order pronounced on :30.05.2023
+ CRL.M.C. 1900/2018
GOPAL JOHARI ..... Petitioner
Through: Mr. J. Sai Deepak, Mr. Varun Dewan,
Mr. Pranav Krishna, Mr. Abvinash
Sharma, Mr. R. Abhishek and Mr.
Harsh, Advocates.
versus
THE STATE GOVT OF NCT OF DELHI & ORS
..... Respondents
Through: Ms. Rachna Agrawal, Advocate for
R-2 and 3.
Mr. Rohit Priya Ranjan, Mr. Sanket
Mishra and Ms. Srishti Sonkar,
Advocates for R-4 & 5.
+ CRL.M.C. 1923/2018
GOPAL JOHARI ..... Petitioner
Through: Mr. J. Sai Deepak, Mr. Varun Dewan,
Mr. Pranav Krishna, Mr. Abvinash
Sharma, Mr. R. Abhishek and Mr.
Harsh, Advocates.
versus
STATE (NCT OF DELHI) & ORS ..... Respondents
Through: Mr. Rohit Priya Ranjan, Mr. Sanket
Mishra and Ms. Srishti Sonkar,
Advocates for R-2 & 3.
CORAM:
HON'BLE MR. JUSTICE TALWANT SINGH
Talwant Singh, J.:
1. The petitions mentioned above had challenged a common order dated
01.12.2017 passed by learned Additional Sessions Judge, South District in
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 1 of 21
Neutral Citation Number 2023:DHC:4028
Criminal Revision Petition Nos. 8451/2016 and 8442/2016. These petitions
were disposed of by this Court on 24.02.2023. Thereafter the
applicant/petitioner moved Crl.M.A.12586/2023 in Crl.M.C.1900/2018 and
Crl.M.A. 12587/2023 in Crl.M.C. 1923/2018 praying as follows:-
"It is, therefore, humbly prayed that this Hon'ble Court may graciously be
pleased to: -
A. Allow the present Application for modification, and modify
Order dt. 24.02.2023 passed by this Hon'ble Court in terms of
para 6 of the present Application;
B. Pass such other order and/or directions as this Hon'ble Court
may kindly deem fit and proper in the facts and circumstances of
the case in favour of the petitioner".
1.1 In brief history, the petitioner/applicants had mentioned as
under:-
"1. The humble petitioner had filed Criminal Misc. Petitions being CRL.
MC. 1900/2018 and CRL. MC. 1923/2018 against the composite Judgment
and Order dt. 01.12.2017 passed by Learned Special Judge (PC Act) CBI-
01, South), Saket Courts, New Delhi in Criminal Revision No. 8451 of
2016 and Criminal Revision No. 8442 of 2016, whereby the Revisional
Court dismissed Revision Petition No. 8451/2016 filed by the Petitioner
challenging the non-summoning of respondents Dinesh Kumar Garg and
Smt. Chitra Garg, and also, allowed Revision Petition No. 8442/2016 filed
by respondents Anup Diwan and Dr. Arun Srivastava, setting aside their
summoning order.
2. The said two petitions were disposed of by a common order dated
24.02.2023, certified copy whereof is annexed herewith and marked as
Annexure-A/1. In Order dt. 24.02.2023, it was observed by the Hon'ble
Court as under:
" "Para 1. Learned counsel for the petitioner in both the petitions,
after some lengthy arguments, submits under instructions of the
petitioner, who is present in person, that he does not intend to
press the present petitions and same may be allowed to be
dismissed as withdrawn, with liberty to initiate proceedings under
Section 423 IPC against the respondents.
Para 4. Learned counsel for the petitioner further submits that the
respondents are liable to be prosecuted under Section 423 IPC but
this Section was never been invoked before the learned
Metropolitan Magistrate or before the Court of learned Sessions
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 2 of 21
Neutral Citation Number 2023:DHC:4028
Judge, where the revision petitions were pending and he is
raising this point for the first time before this Court."
"Para 8. Oder dated 01.12.2017 passed by Learned Special Judge
(P.C. Act) CBI-01, South, Saket Court New Delhi in Crl. Rev. P.
8451/2016 and Crl. Rev. P. No.8442/2016 has become final, as
challenge to the same has been withdrawn."
"Para 9. Leave and liberty is granted to the petitioners to pursue
the civil suit already pending before this Court, and also to take
any steps under Section 423 IPC, if not already agitated before
learned Metropolitan Magistrate or learned Additional Sessions
Judge, at any point of time. It is made clear that this Court has
neither condoned the delay nor has expressed any opinion about
maintainability of any proceeding's u/s 423 IPC, for which leave
has been sought. Learned Trial Court has to take call regarding
maintainability of any such petition, as and when filed, keeping in
view the fact as to whether any similar ground was already raised
or not in any proceedings as well as the ground of limitation."
1.2 As per the petitioner, the correct facts had not been appreciated in the
right context as no fresh proceedings under Section 423 of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC') have to be initiated, as learned
Magistrate as well as learned Sessions Judge had failed to consider the
applicability of Section 423 IPC on the facts of the case, when the same was
pending before them. In fact, the petitioner had invoked Section 423 IPC at
both the stages, i.e., before the learned Trial Court as well as the learned
Sessions Court. Under the above mentioned circumstances, the modification
of order dated 24.02.2023 was prayed for.
1.3 The matter was taken up on 12.05.2023 and the order passed on the
said date is reproduced hereunder:-
"CRL.M.A. 12586/2023 in CRL.M.C. 1900/2018
CRL.M.A. 12587/2023 in CRL.M.C. 1923/2018
1. The petitioner has moved these applications with the following
prayer:
"A. Allow the present Application for modification, and modify
Order dt. 24.02.2023 passed by this Hon'ble Court in terms of
para 6 of the present Application;
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 3 of 21
Neutral Citation Number 2023:DHC:4028
B. Pass such other order and/or directions as this Hon'ble Court
may kindly deem fit and proper in the facts and circumstances of
the case in favour of the petitioner."
2. Mr. J. Sai Deepak, learned counsel for the petitioner has submitted
that at the time when the request for withdrawing the petition was made
by the earlier counsel, inadvertently, it was not brought to the notice of
this Court that Section 423 IPC was already invoked before the learned
Trial Court as well as before the Court of Sessions and later on, it was
noticed that although, it was ordered by this Court that the petitioner is
at liberty to take appropriate steps to proceed further by invoking Section
423 IPC, but the order passed by this Court on 24.02.2023 will come in
the way of the petitioner as Section 423 IPC was already invoked but was
not considered by the Courts below.
3. Issue notice.
4. Ms. Rachna Agrawal accepts notice on behalf of the respondents.
5. Heard.
5.1 Since, the order dated 24.02.2023 was passed on the submission of
the learned counsel for the petitioner that Section 423 IPC was not
invoked till date, which is factually not correct; hence, with the consent
of the parties, the order dated 24.02.2023 allowing the petitioners to
withdraw the petition is hereby recalled and set aside.
5.2 The application is disposed of accordingly.
CRL.M.C. 1900/2018 & CRL.M.C. 1923/2018
6. Part arguments heard.
7. Both the parties shall file two-page synopsis before the next date of
hearing after exchanging copies with each other.
8. List the matter for final arguments on 16.05.2023 in the post-lunch
session".
1.4 The main petitions were revived and final arguments were heard on
16.05.2023, when learned counsel appearing on behalf of the petitioner, who
was also present in person before the Court, under instructions, submitted
that he was confining his challenge to the impugned order only to the extent
of invocation of Section 423 read with Section 120B IPC, meaning thereby
that the order of the learned Session Judge dated 01.12.2017 is admitted as
final as far as findings regarding applicability of Section 406 and Section
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 4 of 21
Neutral Citation Number 2023:DHC:4028
420 read with Section 120-B IPC were concerned. The order dated
16.05.2023 is reproduced hereunder:-
"CRL.M.A. 12586/2023 in CRL.M.C. 1900/2018
CRL.M.A. 12587/2023 in CRL.M.C. 1923/2018
1. At the outset, learned counsel appearing on behalf of the
petitioner, under instructions of the petitioner, who is present in the
Court, has submitted that he is confining his petition to challenge the
impugned order only to the extent of invokation of Section 423 read with
120B IPC, meaning thereby that the petitioner accepts as final the
judgement of the learned Sessions Judge vide impugned order dated
01.12.2017 as far as applicability of Section 406 and 420 read with
Section 120B IPC is concerned.
2. Moreover, it has been brought to my notice by the learned counsel
appearing on behalf of the petitioner that the application moved by the
petitioner under Section 482 Cr.P.C. seeking modification of order dated
24.02.2023 is also confined to Section 423 read with 120B IPC.
3. The parties shall file and ensure that the written submissions, of
not more than two pages each, along with citations, if any, are placed on
record within a period of two days from today.
4. Arguments heard on Section 423 read with Section 120B IPC.
5. Judgement reserved."
1.5 Section 423 IPC, which sought to be invoked by the petitioner herein,
is reproduced hereunder:-
"423. Dishonest or fraudulent execution of deed of transfer containing
false statement of consideration.--Whoever dishonestly or fraudulently
signs, executes or becomes a party to any deed or instrument which
purports to transfer or subject to any charge any property, or any
interest therein, and which contains any false statement relating to the
consideration for such transfer or charge, or relating to the person or
persons for whose use or benefit it is really intended to operate, shall be
punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both."
1.6 Learned counsel appearing on behalf of the petitioner submits that,
since inception, specific allegations against all the respondents have been
made with respect to commission of offence under Section 423 read with
Section120-B IPC but the learned Trial Court as well as the learned Sessions
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 5 of 21
Neutral Citation Number 2023:DHC:4028
Court have failed to take cognizance of the same. It has been submitted that
Agreement to Sell dated 06.01.2006 executed by respondent nos. 4 and 5
(Vendors) and respondent no.2 (Vendee) is a fraudulent and sham document
as the statement regarding consideration in this document is a false
statement and the document has been fraudulently executed under a criminal
conspiracy hatched by respondents to defeat the rightful title of the
petitioner under an earlier Agreement to Sell dated 12.11.2002. The entire
sale consideration is stated to be received by respondent nos. 4 and 5 from
respondent no.2 by way of two cheques, both dated 05.01.2006, being
cheque no. 206017 for Rs. 32 lakhs and cheque no. 206018 for Rs. 22 lakhs.
Out of these cheques, only first cheque of Rs. 32 lakhs was got encashed by
respondent nos. 4 and 5 and second cheque of Rs. 22 lakhs was never
handed over by respondent no.2 to respondent nos. 4 and 5 and the said
amount remained in the account of respondent no.2 till date. Mere
preparation of demand draft dated 01.05.2006 in the name of the petitioner
and its subsequent cancellation on 23.09.2006 does not cure the illegality
with respect to false statement regarding sale consideration recorded in
Agreement to Sell dated 06.01.2006 inasmuch as this amount of Rs. 22 lakhs
was never paid to respondent nos. 4 and 5. The IO has not investigated as to
whether the amount of Rs. 22 lakhs was indeed transferred from respondent
no.2 to respondent nos. 4 and 5. Hence it is to be presumed that necessary
ingredient of Section 423 read with Section 120B IPC in respect of false
statement regarding sale consideration stands satisfied. Moreover, there is
no reason specified as to why the sale consideration of Rs. 54 lakhs was split
into two parts, i.e., Rs. 32 lakhs and Rs. 22 lakhs as the component of Rs. 22
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 6 of 21
Neutral Citation Number 2023:DHC:4028
lakhs was exactly the same as the earnest money paid by the petitioner to
respondent nos. 4 and 5. Since the intended beneficiary was the petitioner,
so the amount of Rs. 22 lakhs was never meant to be part consideration as
intended beneficiaries were not respondent nos. 4 and 5. It has been further
submitted that there is no need by the petitioner, who is stated to be third
party, to be privy to the contract for invoking Section 423 read with Section
120-B IPC particularly, when the contract itself has been executed for
defeating the rights of the third party, i.e., the petitioner. It has been
submitted that the petitioner has locus standi to file the present petition.
1.7 Reliance has been placed on paragraph 6 of the judgment tilted as
'A.R. Antulay vs. Ramdass Sriniwas Nayak & Anr.' 1984, AIR 718, which
is quoted hereunder:-
"It is a well recognised principle of criminal jurisprudence that
anyone can set or put the criminal law into motion except where the
statute enacting or creating an offence indicates to the contrary. The
Scheme of the Code of Criminal Procedure envisages two parallel and
independent agencies for taking criminal offences to court. Even for the
most serious offence of murder, it was not disputed that a private
complaint can, not only be filed but can be entertained and proceeded
with according to law. Locus Standi of the complaint is a concept
foreign to criminal jurisprudence save and except that where the
statute creating an offence provides for the eligibility of the
complaint.... While Sec. 190 of the Code of Criminal Procedure permits
anyone to approach the Magistrate with as complaint, it does not
prescribe any qualification the complainant is required to fulfil to be
eligible to file a complaint. But where an eligibility criterion for a
complainant is contemplated specific provisions have been made such as
to be found in Secs. 195 to 199 of the Cr.P.C. These specific provisions
clearly indicate that in the absence of any such statutory provision, a
locus standi of a complainant is a concept foreign to criminal
jurisprudence. In other words, the principle that anyone can set or put
the criminal law in motion remains intact unless contra-indicated by a
statutory provisions."
1.8 Reliance has been also placed on paragraph 18 and 19 of the judgment
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 7 of 21
Neutral Citation Number 2023:DHC:4028
tilted as 'G. Ramesh vs. State', Crl. O.P. 17701 of 2013 of High Court of
Madras, which is quoted hereunder:-
"Para 18. It is yet another submission of learned counsel for the Petitioner
that presently the property has been sold to one Muthukumar by the
defacto-complainant and his father and therefore, the defacto-complainant
is not the owner of the property as of now, and he has no locus standi to
lodge the complaint
Para 19. But the material available on record would show that, as
contended by the learned counsel for the 2nd Respondent/ defacto-
complainant, that the possession of the property is still with the 2nd
Respondent and the same was not conveyed to the said Muthukumar.
Further, there is an indemnity clause in sale agreement to the effect that
the defacto-complainant should take care of any dispute with regard to
the property. Therefore, it is incorrect to state that the 2nd Respondent
defacto-complainant has no locus standi to lodge the complaint, as he is
not totally alien to the subject property. Under such circumstances, 1 do
not find any force in the submissions made by the learned counsel for the
Petitioner. Absolutely no case has been made out to quash the Complaint
and the present petition is liable to be dismissed".
1.9 Reliance has been placed on paragraph 3 of the judgment tilted as
'Devi Dass vs. Mohan Lal', AIR 1982 SC 213, which is quoted hereunder:-
"Para 3. The appellate authority, rejected the tenant's case on the view
that tenant could not challenge the validity of the sale deed executed in
favour of Mohan Lal because the tenant was not a party to it. We do not
think this was a correct view to take. An allegation had been made that in
reality there was no sale and the sale deed was a paper transaction."
1.10 Reliance has been also placed on paragraph 17 of the judgment tilted
as 'K. Ashoka vs. N.I. Chandrashekar & Ors.', (2009) 5 SCC 199, which is
quoted hereunder:-
"Para 17. Whether the allegations made in the complaint petition are
correct or not have to be considered during trial. The High Court_ in its
impugned judgment _ proceeded inter alia on the premise that the
appellant has no locus standi. It may be true that Gopal and Hanumanth
gowda had not been impleaded as accused but that by itself may not be a
ground for quashing the order of cognizance taken against the
respondents. If the role played by them in regard to that part of the
conspiracy is only to make Gopal a member and got the land allotted in
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 8 of 21
Neutral Citation Number 2023:DHC:4028
his name by way of camouflage, appellant as a member of society had a
locus standi to file a complaint."
1.11 Reliance has been placed on paragraph 8 of the judgment tilted as
'Raj Narain Aggarwal vs. Baij Nath Khanna', 1983 SCC online Del. 177,
which is quoted hereunder:-
"Para 8. Mr. L.R. Gupta, on behalf of the tenant, has mainly relied
on a recent decision of the Supreme Court in Devi Dass v. Mohan Lal,
A.I.R. 1982 S.C. 1213. In that case the plea of the tenant was that the sale
was a sham transaction, The courts below took the view that he could not
raise this objection. So no finding was recorded on that point. The
Supreme Court held that he was entitled to challenge the sale transaction
as sham. The case was remitted for a finding on the point raised by the
tenant. The tenant had alleged that the sale deed is a sham transaction and
that no right. title or interest had passed to the landlord, Mohan Lal,
under that document, The facts of that case were peculiar, One Jugal
Kishore. father of Mohan Lal, the landlord in that case executed a sale
deed in the name of his son Mohan Lal, acting as the mukhtiar of Jagirilal
and Vasdey, The tenant's plea was that this was done in order to create a
ground of ejectment against him because on earlier occasions several
applications filed by Jugal Kishore as mukhtiar of Jagirilal and Vasdev
for ejectment of the tenant had been dismissed against him. On this plea of
the tenant the Supreme Court took the view that there was no sale and the
sale deed was merely "a paper transaction" if the tenant's plea is correct.
Therefore, the lower court was required to record a finding on this point.
9. This is not the case before before me me. The sale deed is of the year
1947. The question of ejectment of the tenant arose only recently when the
petition was filed in 1981. If there is a sham sale in order to create a cause
of action in favour of the so-called landlord so that the tenant can be
evicted from the property forming the subject matter of sale, I think, it is
open to the tenant to allege that the sale is a sham transaction and that the
sale deed was executed merely to eject him from the property. The
Supreme Court seems to be saying that if the sale is sham nothing passes
by the conveyance which is no more than a paper transaction. And if
there is a casual connection between the sham sale and the tenant's
ejectment the court must find out what is the true nature and character
of the sale. All the circumstances, past and present, will have to be seen.
The tenant cannot be turned away merely by saying: "you have no locus
standi". He has a stake. The sham sale is made. to evict him and for no
other purpose. That was the kind of case before the Supreme Court. That
was not a case of benami transaction."
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 9 of 21
Neutral Citation Number 2023:DHC:4028
1.12 There is no dispute regarding the respective ratios of these judgments
but the facts of the present case, which are discussed herein below, are quite
unique; hence these judgments are not appliable to the facts of the case in
hand.
1.13 On behalf of respondent nos.2 and 3, it has been submitted that the
present petition is not maintainable as it is actually a second revision petition
in the garb of a petition under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'). As far as Crl.M.C.
1923/2018 is concerned, it has been submitted that inherent powers cannot
be exercised when the statutory remedy is available. Section 423 IPC can be
invoked only by the parties, who are signatories to the document and not by
a third party. None of the party to the agreement has alleged that there was
any dishonest or fraudulent execution of Deed of Transfer containing false
statement of consideration. Moreover, respondent nos.4 and 5 have never
alleged that they have not received full consideration from respondent no.2.
Total consideration is Rs. 54 lakhs, duly mentioned in the document in
question, with complete details of the two cheques. Moreover, there are two
concurrent findings of facts qua the alleged allegation under Section 423
IPC, so the said findings cannot be disturbed under Section 482 Cr.P.C. and
the petition is liable to be dismissed. There is no illegality or perversity in
the impugned orders qua the findings on the allegation under Section 423
IPC, so the petition, being an abuse of the process of law, is liable to be
dismissed. The petitioner is not the purchaser and hence, he is not entitled to
invoke this section. Section 423 IPC was not the ground initially taken
when the FIR was registered, which was only under Section 420/406/120-B
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 10 of 21
Neutral Citation Number 2023:DHC:4028
IPC. This aspect was duly investigated subsequently by the investigating
officer in terms of directions passed by the learned ACMM vide order dated
08.06.2011 and the investigating officer filed a closure report dated
23.09.2009 stating that no offence was made out. Although the petitioner
has alleged that Agreement to Sell dated 06.01.2006 is a sham document but
in the suit filed by him, he has not sought any relief qua cancellation of the
document or declaration to declare the said document to be null and void
and no such issue has been framed in the civil suit in respect of the said
Agreement to Sell. The petitioner is trying to give a colour of criminal
dispute to a civil dispute and he wishes to arm-twist the respondents, hence
it has been prayed that the petition may be dismissed with costs.
1.14 The arguments on behalf of respondent nos.4 and 5 are also on the
same lines.
2. After hearing all the parties to the petitions, my considered view is as
under:-
2.1 The starting point of the entire dispute is the FIR No. 52/2008 dated
18.03.2008. The relevant portion of the said FIR is reproduced below, where
specific allegation has been made:-
"Thus, Mr. Anoop Diwan and Mr. Arun Srivastava had conspired with
Mr. Dinesh Garg and Mrs. Chitra Garg to illegally sell my property even
when a valid legal agreement was in force/part payment stood made by me
and thereby caused wrongful loss to me. All the accused persons have
tried to cheat me by entering into a conspiracy on 31.01,06. Mr. Prabhaka
Garg is the witness of all illegal document's. I also fear that amount of Rs.
54.00 lacs shown as sale consideration was part of a sham transaction
and the said amount was never, paid by Mr. Dinesh Garg through the
cheques cited in the same. I, therefore, pray chat accused persons may be
brought before the law for the unfawful act of purchasing my property
illegally and on the basis of fabricated documents and false affidavits filed
by them before the L&DO".
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 11 of 21
Neutral Citation Number 2023:DHC:4028
2.2 This FIR was registered in Police Station: Economic Offences Wing
under Section 406/420/120-B IPC. The final report under Section 173
Cr.P.C. was submitted. The said final report contains the finding of the
investigation regarding consideration as under:-
"As per complainant he paid Rs. 22 lacs out of the agreed amount of sale
of Rs. 54 lacs and in fact the complainant took the physical vacant
possession of the 1st and 2nd floor of the building. It is not the case of the
complainant that the alleged persons have never applied for the
permission to sale the property before L&DO. It is admitted by the
complainant that the alleged persons had applied for permission and the
alleged persons kept on contesting for the sale permission of the building
from L&DO for the next three years and in the meantime the alleged
persons handed over the vacant possession of the buildings 1st floor and
2nd floor to the complainant. The withdrawal of the application by the
alleged persons is not amounts to offence of cheating. In these
circumstances, it is clear that offence u/S 420 IPC r/w 120B IPC is not
made out. Basically the allegation of the complainant are seems the matter
of breach of the agreement and complainant has also filed a suit for
specific performance.
There are no allegations that alleged persons dishonestly
misappropriated or converted to their own use the money paid to him in
respect of agreement for sale, in violation of any directions of law or that
the accused dishonestly used or disposed of the money or that accused
acted dishonestly. In the present case the money was given against an
agreement and even the possession of the part portion of the part portion
of building was given to the complainant. Hence in the absence of
particular mens rea no offence u/S IPC is made out.
xxx
...He further alleged that when he was convinced that the complainant has
no intention to pay the balance amount, he (Arun Srivastava) sent the
letter dated 03.01.2006 to the complainant informing about expiry of
Agreement. Further the complainant refused to accept the refund of Rs.
22,00,000/-. A bank draft toward refund of aforesaid amount was also sent
to the complainant by Registered Post which he refused to take and later
the same Bank Draft was offered through written statement in the Hon'ble
Delhi High Court in OMP No.203 of 2006 filed by the complainant which
he again refused to accept. The OMP has already been dismissed by Delhi
High Court vide Order dated 26.8.2008. Thereafter complainant
subsequently filed Suit No. CS (OS) 354/2007. Despite it complainant
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
16:35 1900/2018 & conn. Page 12 of 21
Neutral Citation Number 2023:DHC:4028
continuing in possession of entire first floor.
xxx
During the investigation of this case it is also not proved that accused
dishonestly misappropriated or converted to his own use the money paid
to him in respect of agreement for sale in violation of any directions of law
or that the accused dishonestly used or disposed of the money or that
accused acted dis honestly. Accused persons are also inclined to return
Rs. 22 lakhs and to that effect a draft was also prepared which was not
accepted by the complainant. In the present case the money was given
against an agreement and even the possession of the part portion of
building was given to the complainant and in the absence of particular
mens rea no offence U/s 406 IPC is found to be made out. Further as per
complainant he received a letter where he mentioned that agreement dated
12.11.2002 has been cancelled the letter is dated 03.01.2006 and as per
the complainant the seller had already entered in an agreement of sale
with one Dinesh Garg on 03.01.2006. In these circumstances when
agreement dated 12.11.2002 was only an agreement to sell, hence these
allegations are not covered to connect alleged with commission of offence
u/S 420 r/w 120B IPC. Opinion in the present case was also taken form
the prosecution/legal branch.
xxx
From the investigation conducted and evidence collected (both
oral and documentary), it is evident that the allegations of the complainant
are of civil in nature: Accordingly, this Cancellation u/s 173 Cr.P.C. has
been prepared. It is, therefore, respectfully prayed that the same may
kindly be accepted u/s 173 Cr.P.C. List of documents and witnesses, relied
upon are enclosed herewith for kind perusal"
.
2.3 This closure report was considered by the learned ACMM on
08.06.2011 and he was pleased to pass the following order directing further
investigation as under:-
"FIR No. 52/08
PS EOW
08.06.2011
Present: Ld. APP for the State.
None for the applicant.
On the earlier occasion, I have heard the arguments on an
application U/s 173 (8) Cr.P.C.
Record perused.
After giving due consideration. I think the further
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
investigation is required in terms of para 8 of the said application. IO is
directed to further investigation the matter and file report with reply /
clarification para wise vis a vis para 8 of application U/s 173 (8) Cr.P.C.
Case file be handed over to IO for further investigation.
Copies of order sheets and application be kept for record.
Put up for status report and consideration on 30.08.2011"
.
2.4 Further closure report was filed on 13.12.2013, which was running
into about 2000 pages, including the annexures.
2.5 In this closure report issue no.3 raised by the present petitioner and the
outcome of the investigation regarding the allegation that Agreement to Sell
dated 06.01.2006 is sham document, is as under:-
"Objection No. III: The Investigating Officer has not examined the
conspiracy of the accused persons and more particularly the accused
persons Anup Dewan, Arun Shrivastava, Dinesh Garg and Chitra Garg in
so far as the agreement of sale deed dated 06.01.2006 was a sham
document as the sale consideration said to have been received was
Rs.54,00,000/- (Rupees fifty 'four lacs only) when only Rs.32,00,000/-
(Rupees third two lacs only) was only paid by Mr. Dinesh Garg. The
remaining amount of Rs.22,00,000/- (Rupees twentytwo lacs only) was
always with Dinesh Garg".
Response No. III: In the Agreement to Sell dated 06.01.06, it is
mentioned that Sh. Dinesh Garg and Smt. Chitra Garg (subsequent
purchaser) had made the payment of entire sale consideration to Sh. Anup
Diwan and Sh. Arun Srivastava (Sellers) by way of two cheques i.e cheque
no. 206017 dated 05.01.06 for Rs. 32 lacs and cheque no. 206018 dated
05.06.06 of Rs. 22 lacs. The investigation has revealed that the cheque of
Rs. 32 lacs was got encashed by the sellers. With regard to the other
cheque of Rs. 22 lacs it has been informed by the alleged persons (sellers
as well as; subsequent purchasers) that the same was returned to the
subsequent purchaser within the validity period of the cheque with a
request to give a bank draft of Rs. 22 lacs in favour of the complainant.
The reply received from AXIS Bank has also proved that a bank draft/pay
order no. 017342 dated 01.05.06 amounting to Rs. 22 lacs favouring the
complainant was got issued by the subsequent buyers and the same was
offered to the complainant in OMP No. 203/2006 on 15.05.06 before the
Hon'ble High Court of Delhi but the complainant refused to accept the
same. Thereafter, the owners kept the said pay order with them for about 5
months and when the Complainant did not accept the same and it was
going to expire, the said pay. order was got cancelled by the subsequent
purchaser on 23.09.06. Moreover, the sellers are not denying the receipt
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
of full sale consideration and the complainant has no locus to dispute the
said payment.
The investigation has also revealed that beside the sale consideration of
Rs. 54 lacs, the subsequent buyer had also made the following payments
a. Rs. 4.05 lacs toward the stamp duty
b. Rs. 27.22 lacs paid to L&DO toward misused charges.
c. Rs. 4.85 lacs paid to L&DO towards conversion charges.
d. Rs. 38,800/- toward the stamp duty on conveyance deed.
Therefore, the allegation of conspiracy for execution of a sham sale transaction
could not be substantiated".
2.6 Lastly, the investigating officer has come to the conclusion that no
cognizable offence was made out and a closure report was filed. The
petitioner filed a protest petition before the learned CMM on 29.04.2014,
which was disposed of on 30.09.2016. In the detailed order of the even date,
the learned Judge has observed as under regarding the Agreement to Sell
dated 06.01.2006 and the payment of the sale consideration:-
"20. Regarding involvement of Mr, Deepak Kumar Garg and his wife Smt,
Chitra Garg in this conspiracy angle, I am of the view that it has come on
record that they paid full consideration amount towards property in
question to Anup Diwan through his attorney Dr. Arun Srivastava by way
of two cheques and also paid complete conversion charges to L&DO and
hence they cannot be said to be part of conspiracy with Anup Diwan and
his attorney Dr. Arun Srivastava despite the fact that cheque of Rs. 22 lacs
was not got encashed by Anup Diwan as it is finding of 10 that same was
returned to subsequent purchaser within period of validity of the cheque
with request to give bank draft of the same amount in favour of
complainant and that bank draft/pay order bearing No. 017342 dated
01.05,2006 amounting to Rs. 22 lacs was got issued by subsequent buyers
and same was offered to complainant in OMP No, 203/2006 on
15,05,2006 before Hon'ble High Court of Delhi but the complainant
refused to receive the same, 10 further has stated that thereafter owners
kept the same pay order with them for about five months and when
complainant did not accept the same and it was going to expire the said
pay order was got cancelled by subsequent purchaser on 23.09.2006.
From finding of 10, it appears that cheque of Rs. 22 lacs was returned to
subsequent purchaser within validity period with request to give bank
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
draft of Rs. 22 lacs in favour of complainant, From finding of 10, it does
not appear that there was any role of Mr. Deepak Kumar Garg or his wife
Smt. Chitra Garg in not getting cheque of Rs, 22 lacs not encashed and it
appears that they became aware of earlier transaction when Anup Diwan
/his attorney Dr. Arun Srivastava requested to give bank draft in favour of
complainant as 10 has clearly stated that it was on request of sellers that
draft of Rs. 22 lacs was made in favour of complainant. In view of the fact
that complete payment was made by Mr. Deepak Kumar Garg (except for
Rs. 22 lacs regarding which he got bank draft made later on and also tried
to give the same to complainant which complainant refused), his intention
does not appear to be fraudulent and there does not appear any complicity
vis a vis his role and his wife's-role in conspiracy in question".
2.7 The final outcome of the entire discussion is mentioned in paragraph
24 and 25 in order dated 30.09.2016 passed by learned MM, which is
reproduced hereunder:-
"24. ln view of my aforesaid discussion, I am of the view that prima facie,
it appears that Anup Diwan and his attorney Dr Arun Srivastava are
indulged in offences u/sec 420/120B IPC. I take cognizance for the same.
Let they be summoned to appear as accused in present case for next date
of hearing for the abovesaid offences.
25. No cognizance for any offence is taken on basis of facts in hand
against proposed accused Mr. Deepak Kumar Garg and his wife Smt,
Chitra Garg."
2.8 The above mentioned order was challenged by the present petitioner
as well as the summoned persons, i.e., respondent no.4/Anup Diwan and his
attorney respondent no.5/Dr. Arun Shrivastava before the learned Session
Judge. After hearing both the parties, impugned judgment dated 01.12.2017
was passed by the learned Session Judge in Crl. Rev. Nos. 8442/2016 and
8451/2016. In respect of the Agreement to Sell dated 06.01.2006, the
following was observed:-
"14. In terms of record, simultaneous to the notice of termination,
agreement to sell was entered into between petitioners and the subsequent
purchasers namely Dinesh Kumar Garg and Chitra Garg. The
consideration amount was fixed at Rs. 54 lacs which was paid by the
subsequent purchaser by way of two cheques in sum of Rs. 32 lacs and Rs.
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
22 lacs. The cheque in sura of Rs. 32 lacs was got encashed Whereas-
cheque in sum of Rs. 22 lacs was not got encashed which later on was got
converted to Demand Draf in sum of Rs. 22 lacs. The said amount was
offered to the complainant, as the return of the amount of earnest money
which was refused by the complainant. Subsequent purchasers also paid
the mis-user charges to the L&DO, as is borne out of record. The
agreement to sell with Dinesh Kumar Garg was dated 6.1.2006 and the
stamp paper for the same was purchased on 3.1.2006, simultaneous to the
letter dated 3.1.2006 written by Anup Diwan through his Attorney Arun
Srivastava to the complainant which was posted on 5.1.2006. It may be
noted that agreement to sell dated 6.1.2006 contained the mention that
there was no subsisting agreement with any third party with regard to said
property which was also considered and taken care of by Ld. Trial court
while observing that the stamp paper was purchased on 3.1.2006 with
simultaneous dispatch of letter dated 3.1.2006 which was posted on
5.1.2006. It was rightly noted by Ld. Trial court that as it is not practically
feasible to find customer having sufficient amount for paying towards
consideration amount within a day or two and it appears to be earlier
planning of Anup Diwan and his attorney Dr. Arun Srivastava and date of
6.1.2006 appeared to have been kept by Anup Diwan so as to give no time
to complainant to react and at the same time in order to avert information
regarding earlier transaction to be trickled down to subsequent purchaser
through complainant or someone else on behalf of complainant, thereby
no complicity of Dinesh Garg appeared to the fore".
2.9 The final outcome of both the petitions is described in paragraph 22 of
the order dated 01.12.2017, which is as under:-
"22. The disputed questions of fact regarding valid termination of tenancy
etc. are the subject matter to be decided by the civil court, but considering
the abovesaid, it cannot be even said to be a case of cheating or offence
u/s 403/406/409 IPG etc. Apparently, the disputes between the parties
being civil in nature have-been given the colour of criminality.
Accordingly, the impugned order dated 30.09.2016 qua non summoning of
Dinesh Kumar Garg and Chitra Garg is upheld and the order qua
summoning of petitioners Anup Diwan and Arun Srivastava is set aside.
Revision petition filed by petitioner Anup Diwan and Ors. bearing no.
8442/2016 is allowed, whereas the revision petition filed by
complainant/petitioner Gopal Johri bearing no. 8451/2016 is dismissed.
TCR alongwith copy of this order be sent back to the trial court. Revision
files be consigned to record room.
2.10 The Agreement to Sell dated 06.01.2006 mentions about total
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
consideration being Rs. 54 lakhs as detailed in recital No.1 of the said
Agreement. Apart from Rs. 54 lakhs, the buyer had to pay L&DO
conversion charges. It is stated that entire sale consideration of Rs. 54 lakhs
was received by Vendors through two cheques, first cheque bearing no.
206017 for Rs. 32 lakhs and second cheque bearing no. 206018 for Rs. 22
lakhs; both dated 05.01.2006 and drawn at UTI Bank, Greater Kailash, New
Delhi. The Vendor had acknowledged receipt of the consideration amount
and stated that nothing remained payable.
2.11 It is also an admitted case of the parties that the cheque of Rs. 22 lakh
was later on returned to the Vendee by the Vendor with a request to get
prepared a bank draft of the same amount in favour of the present petitioner,
being the original complainant. The Vendee accordingly obliged the Vendor
and got prepared a demand draft of Rs. 22 lakhs dated 01.05.2006 in favour
of the present petitioner (complainant), which was offered by respondent
nos.4 and 5 to the present petitioner during the proceedings in the OMP No.
203/2006 titled as 'Gopal Johari vs. Shri Anup Dewan & Anr.' filed under
Section 9 of the Arbitration and Conciliation Act, 1996 pending before the
Hon'ble High Court of Delhi. The present petitioner refused to accept the
said bank draft as refund of advance given by him to Vendors. There has
been no evidence on record to prove that the sale consideration mentioned in
Agreement to Sell dated 06.01.2006 is a false statement. As mentioned
earlier, the total sale consideration was Rs. 54 lakhs and apart from this, the
buyer had to pay the L&DO charge. The entire sum of Rs. 54 lakhs was
tendered to the Vendors, i.e., respondent nos.4 and 5 by respondent no.2 in
the form of two cheques. Out of these cheques, one cheque of Rs. 22 lakhs
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
was returned to with a request to prepare a demand draft in favour of the
present petitioner, who refused to accept the same and later on the said bank
draft was cancelled on 23.09.2006.
2.12 There is no complaint from respondent nos.4 and 5 at any point of
time that sum of Rs. 54 lakhs has not been paid by respondent no.2. The
present petitioner cannot espouse the alleged cause of respondent nos.4 and
5 of non-receipt of the full sale consideration.
2.13 The complainant himself has refused to accept the bank draft of Rs. 22
lakhs, when it was tendered to him in the OMP No. 203/2006 proceedings in
the Hon'ble High Court of Delhi and there are concurrent findings of the
learned Metropolitan Magistrate as well as the learned Session Judge on this
ground, based upon the cogent reasoning as detailed in first closure report
and the second closure report, which were based upon the extensive
investigation carried out by the Economic Offences Wing of Delhi Police
and the said findings of investigation have been quoted hereinabove.
2.14 The second allegation of the petitioner is regarding fraudulent, sham
or dishonest execution of instrument of transfer of Property, i.e., Agreement
to Sell dated 06.01.2006. It is an admitted fact that a civil suit covering the
entire dispute has already been filed by the present petitioner, which is
pending adjudication before this Court. Surprisingly, neither a ground
regarding the Agreement to Sell dated 06.01.2006 alleged to be a sham,
fraudulent, or dishonest document has been taken by the present petitioner in
the said suit nor any such issue has been framed in the suit based upon any
such assertion made by the present petitioner. Moreover, the petitioner has
not sought a declaration in the said suit to declare the Agreement to Sell
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
dated 06.01.2006 as fraudulent, dishonest or a sham document in the Civil
Court, where the civil suit filed by the present petitioner is pending.
2.15 Another contention of the petitioner is that the said document has been
prepared with a view to defeat legitimate rights of the present petitioner
under the previous agreement(s). On the one hand, the petitioner is alleging
the said document to be a sham document but on the other hand, he has not
sought any direction to declare the said document as a fraudulent or a sham
document in the civil suit filed by him. It only shows that the petitioner
intends to use the criminal litigation as an arm twisting technique and wishes
to keep the sword hanging on the heads of the respondents, so that they do
not agitate their legitimate rights before the Civil Court.
2.16 The petitioner has himself stated that he accepts the findings of the
learned Session Judge, that no case under Section 406/420/120-B IPC is
made out and the dispute is of the civil nature. If there is no intention to
cheat, as held by the learned Sessions Judge, so there is no ground to now
whip a dead horse, i.e., invocation of Section 423 read with Section 120-B
IPC. Further, in the considered view of this Court, no case under Section
423 read with Section 120-B IPC is made out.
2.17 There are concurrent findings of two courts regarding non-
applicability of Section 423 IPC read with Section 120-B IPC and there is no
ground to disturb the said findings. There is no occasion to invoke the said
section at this stage before this Court against respondent nos.2 to 5.
3. In my view, there is no ground to initiate any proceedings under
Section 423 read with Section 120-B IPC against respondent no.2 to 5 and
the relief claimed in this regard by the petitioner is hereby rejected.
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
Neutral Citation Number 2023:DHC:4028
4. As a result, both the petitions, being Crl.M.C. 1900/2018 and
Crl.M.C. 1923/2018, are hereby dismissed.
TALWANT SINGH, J
May 30, 2023/nk
Signature Not Verified
Digitally Signed
By:AANCHAL TAGGAR
Signing Date:02.06.2023 CRL.M.C.
