Jharkhand High Court
Emaar Mgf Land Limited vs The State Of Jharkhand on 14 November, 2022
1 W.P. (Cr.) No. 328 of 2016 & allied matters
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 328 of 2016
1. Emaar MGF Land Limited, through its Legal Advisor, Shri Rakesh
Kumar Singh, son of Shri Bijay Singh, having its Corporate Office at
Emaar MGF Business Park, MG Road, Sikandarpur Chowk, Sector 28,
P.O. Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
2. Shravan Gupta, Son of Rajiv Gupta, working for gain at Emaar MGF
Business Park, MG Road, Sikandarpur Chowk, Sector 28, P.O.
Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
3. Shilpa Gupta, Wife of Shravan Gupta, working for gain at Emaar MGF
Business Park, MG Road, Sikandarpur Chowk, Sector 28, P.O.
Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
4. Anil Bhalla, Son of Sh. Jagdish Chand Bhalla, working for gain at
Emaar MGF Business Park, MG Road, Sikandarpur Chowk, Sector 28,
P.O. Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
5. Abhiram Seth, Son of Sh. Lekhram, working for gain at Emaar MGF
Business Park, MG Road, Sikandarpur Chowk, Sector 28, P.O.
Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
6. Bharat Bhushan Garg, Son of Sh. Devi Charan Garg, working for gain
at Emaar MGF Business Park, MG Road, Sikandarpur Chowk, Sector
28, P.O. Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
7. Ashish Jerath @ Ashish Jairath, Son of Sh. D.P. Jerath, working for
gain at Emaar MGF Business Park, MG Road, Sikandarpur Chowk,
Sector 28, P.O. Chakkarpur, P.S. DLF Phase-I, District- Gurgaon,
Haryana
8. Avinash Bhagia, Son of Sh. Sri Chand Bhagia, working for gain at
Emaar MGF Business Park, MG Road, Sikandarpur Chowk, Sector 28,
P.O. Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
9. Ajay Nambiar, Son of Sh. TMB Nambiar, working for gain at Emaar
MGF Business Park, MG Road, Sikandarpur Chowk, Sector 28, P.O.
Chakkarpur, P.S. DLF Phase-I, District- Gurgaon, Haryana
... Petitioners
-Versus-
1. The State of Jharkhand
2. Anurag Rudra Tiwari, Son of Ashok Kumar Tiwari, resident of House
No.29, Road No.2, Dimna Town, P.O. MGM Medical College, P.S.
Dimna, Town Jamshedpur, District- East Singhbhum ... Respondents
With
W.P. (Cr.) No. 329 of 2016
1. Mohamed Ali Rashed Alabbar, Son of Ali Rashed Khalifa Alabbar,
Resident of Emaar Properties PJSC, P.O. Box-9440, Dubai, United Arab
Emirates
2. Ahmad Jamal Jawa, Son of Jamal H. Jawa, Resident of Emaar
Properties PJSC, P.O. Box-9440, Dubai, United Arab Emirates
3. Haroon Saeed Siddiqui, Son of Sheikh Mohammad Younas, Resident of
Emaar Properties PJSC, P.O. Box-9440, Dubai, United Arab Emirates
... Petitioners
-Versus-
1. The State of Jharkhand
2 W.P. (Cr.) No. 328 of 2016 & allied matters
2. Anurag Rudra Tiwari @ Anurag Tiwari @ Anurag Rudra, Son of Ashok
Kumar Tiwari, resident of House No.29, Road No.2, Dimna Town, P.O.
MGM Medical College, P.S. Dimna, Town Jamshedpur, District- East
Singhbhum ... Respondents
With
W.P. (Cr.) No. 347 of 2016
Hardeep Bahri, son of Sh. Harpal Singh Bahri, working for gain at
Emaar MGF Business Park, MG Road, Sikandarpur Chowk, Sector 28,
P.O. Chakkarpur, P.S.- DLF Phase-I, District- Gurgaon, Haryana
... Petitioner
-Versus-
1. The State of Jharkhand
2. Anurag Rudra Tiwari, Son of Ashok Kumar Tiwari, resident of House
No.29, Road No.2, Dimna Town, P.O. MGM Medical College, P.S.
Dimna, Town Jamshedpur, District- East Singhbhum ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioners : Mr. Indrajit Sinha, Advocate (In all cases)
Mr. Ankit Vishal, Advocate
Mr. Ankit S. Rana, Advocate
For the State : Mr. Mrinal Kanti Roy, G.A.-I (In Cr.M.P.328/16)
Mr. Rakesh Ranjan, A.C. to G.A.-I
Mr. Ravi Kerketta, S.C.-VI (In Cr.M.P.-329/ 16 & 347/16)
Mr. Piyush Anand, A.C. to S.C.-VI
For Resp. No.2 : Mr. Ashok Kumar Yadav, Advocate (In all cases)
-----
05/14.11.2022. Heard Mr. Indrajit Sinha, learned counsel for the petitioners,
Mr. Ashok Kumar Yadav, learned counsel for respondent no.2 and Mr. Mrinal
Kanti Roy and Mr. Ravi Kerketta, learned counsel for the State.
2. In these petitions, common complaint case and common order taking
cognizance are challenged and that is why all these petitions have been
heard together with consent of the parties.
3. These petitions have been filed for quashing the entire criminal
proceeding including the order dated 11.07.2016 passed by the learned Sub
Divisional Judicial Magistrate, Jamshedpur in Complaint Case No.850/2016,
pending in that court.
4. The complaint case has been filed alleging therein that the
complainant is a non-resident Indian, a Doctor by profession who booked a
commercial unit from the accused who is a Limited Company, engaged in
developing, constructing and building residential and commercial properties,
in one of its project known as Capital Tower-1, Complex located at Sector
26, Gurgaon, Haryana. At the time of launch of the aforesaid project, a wide
promotional campaign was undertaken by the accused by advertisements
and sales promotion employees. It has been further alleged that great
promises were extended to the prospective buyers by assuring high returns
on investment. In such endeavor, two representatives of Ashish Jerath met
the complainant and convinced him to invest in the above project by
promising high returns on the investment. On persistent approached by the
accused persons viz. 10 to 13, in the residence of complainant and the
complainant was allured in investing his hard earned money in the project
and booked a commercial unit bearing no. CT-1-GF-02, measuring 1996
sq.ft. in Capital Tower-1, Sector 26, MG Road, Gurgaon, for a total
consideration of Rs.6,54,54,506/- in joint names of self and his wife. As per
requirement contained in the application form which the complainant was
required to fill he was to pay Rs.25,00,000/- as booking amount. As per
payment schedule annexed with the application form, an applicant was
required to pay a total amount of Rs.65,19,521.43/- towards 50% of IDC,
10% of basic and 50% EDC towards booking. The complainant made the
aforesaid payment by way of two installments i.e. a sum of Rs.25,00,000/-
vide cheque bearing no.577282 dated 29.07.2013 and further sum of
Rs.40,19,521/- vide cheque bearing no.675033 dated 05.10.2013. The
complainant was to make further payments by way of financing a Bank
would approve and release the loan installments on apprised of this
position. None of this amount was towards earnest money. The application
form was a printed form which contained conditions of application
favourable to the accused and were totally arbitrary and constituted unfair
trade practices. The complainant would neither add or delete any of the
conditions mentioned in the form. The application form in conditions (viii)
and (ix) described that the said application did not constitute any offer to
definite allotment or any agreement to sell and the applicant would not
become entitled to the provisional and/or final allotment of the unit,
notwithstanding the fact that the company might have issued a receipt in
acknowledgment of the money tendered with the said application. It was
read that the application shall become definitive only after the execution of
the agreement by an unauthorized signatory of the company. No agreement
was executed by the parties and, thus, the said application had never
become definitive. In case of non-execution of the agreement, the allotment
was to be cancelled at the instance of approached to sign the agreement. It
has been also alleged that the terms of the agreement cannot be forced by
one party upon the second party. Both parties had equal rights to back out
from entering into agreement, if the terms of the same were prejudicial to
one's interest. The application forms further contained conditions which
were beneficial to accused only, but highly prejudicial to the interest of the
complainant. The terms and conditions provides that the so-called earnest
money shall be 15% of the total consideration i.e. Rs.98.00 lacs. Thus, term
against the very concept of earnest money. The earnest money is a definite
sum deposited at the time of entering into a transaction showing good faith
of the buyer. It merges into sale price. The initial deposit made by the
applicant/complainant as mentioned in the payment plan was towards
IDC, Basic and EDC and none was taken as earnest money as the contract
was not finalized. All the acts performed by the accused as mentioned by it
in the application form were provisional and in absence of any agreement
between the parties, no condition in the application form was executable. As
per terms of the application form (condition 16), the possession of the
premises were to be handed over within 36 months of starting construction.
It gives an uncertainty to the terms of contract which was to be entered
later as to when the construction would start. The applicant could not be
kept into dark as to the stipulated date of start of construction. It has been
further alleged that the complainant after booking went several times to the
site of construction in November, 2013 and was shocked to see that he had
been mislead into believing that the construction had already started, as
there was no activity at the site which would faintly suggest that the
construction was to start in near future. There was no mobilization of plant
and machinery or work force at the site. From the things out at the site, it
clearly showed that the project was not going to embark upon in near
future. The complainant worried about his investments, visited the offices
(both the addresses) at several times, but no representative of the accused
was present to answer the queries as to why the construction had not
started. The complainant also tried to contact the Senior Officer of Emaar,
but every time false promises and assurances were given to him that the
construction was likely to start soon. Several correspondences in this regard
initiated by the complainant remained unresponded. The complainant was
told that the building/complex has been approved by the DTCP, Haryana
DTP, Gurgaon, but whenever he wanted to see the Approval Letters and
others related documents, the defendant on one pretext or other denied the
same. The response and behavior of the representatives of the accused who
occasionally met the complainant coupled with no activities at site led him
to firm belief that he has been deceived and mislead by false promises and
assurances of the accused persons in order to gain unfair advantage of
collecting money before the project and commenced. The complainant in
the circumstances demanded his money back, but the accused however,
declined to pay any money. The foundation of the project is yet not
completed. The complainant finding no other way made a request to the
accused to transfer his booking to another project in the same vicinity
known as "Commerce Park" where the construction had started, but the
accused even refused to accommodate the complainant in the named
project though several commercial units in that complex were vacant and
for sale. The sale records of the accused in the complex "Commerce Park"
would show that commercial units were available for sale at the time, the
complainant had forwarded his request for transfer of his booking in this
complex. Subsequent requests as aforesaid met the same fate and were
declined by no reply. In the month of July, 2014, the complainant again
made request through e-mail requesting the accused to move the
complainant's investment to "Commerce Park" from Capital Tower. The
request was sent to all those mattered in Emmar Group. It has been further
alleged that in the same month, the complainant got a mail from the
accused that a meeting had been, but when the complainant went to the
meeting place, he found the usual Mr. Avinash Bhangia and Mr. Hardeep
who had no inkling about the meeting and it resulted in harassment and
waste of time of the complainant. The accused is holding complainant's
money illegally and unjustifiably and is liable to return the same with an
interest of 24% p.a. and all the accused persons made forged documents
for the sake of company's benefit. The accused has persistently refused to
refund the hard earned money of the complainant or to transfer the booking
into another project where the work of construction is going and, therefore,
the complaint case has been filed.
5. Mr. Indrajit Sinha, learned counsel for the petitioners submits that
there is an agreement of purchase and sell of commercial unit GF-002 ad-
measuring 1996 sq.ft. in the Project Capital Tower-I, Sector 26, Village
Sikandur Goshi, Tehsil and District Gurgaon between petitioner-company
and respondent no.2. He further submits that the allegations are made that
sum of Rs.65,19,521.43/- has been defalcated by the petitioners. He also
submits that the petitioners have been arrayed as accused nos. 1 to 5 and 9
to 13 in the complaint case, who are Directors and officials of the company,
as has been disclosed in paragraph 10 of the petition. He also submits that
a provisional allotment letter was issued in favour of respondent no.2 and
sent to his New Delhi address by the company. He further submits that
thereafter a Builder Buyers agreement was also sent to respondent no.2 at
his New Delhi address, provided by him and the said agreement was never
returned to the company with the signatures of respondent no.2. He further
submits that a letter dated 26.12.2013 was also sent to respondent no.2
with a request to make the remaining payment, but no response has been
provided by respondent no.2. He further submits that for recovery of the
amount in question, respondent no.2 has filed the civil suit before the
learned Civil Judge (Senior Division), Gurgaon, which was dismissed vide
judgment dated 11.07.2016. He also submits that after dismissal of the said
suit, respondent no.2 has approached National Consumer Disputes
Redressal Commission, New Delhi in Consumer Case No.2087 of 2016,
which was also dismissed vide order dated 11.09.2019. He further submits
that for civil wrong, complaint case has been filed and the learned court has
taken cognizance against the petitioners. He also submits that there is lack
of territorial jurisdiction. On these grounds, he submits that entire criminal
proceeding including the order taking cognizance is bad in law and the
same deserves to be quashed.
6. On the other hand, Mr. Ashok Kumar Yadav, learned counsel for
respondent no.2 submits that criminality is there and merely because civil
suit and the case before the National Consumer Disputes Redressal
Commission have been dismissed, the entire criminal proceeding cannot be
quashed. He further submits that cheating is made out with respondent
no.2. He also submits that the learned court after looking into the solemn
affirmation and two enquiry witnesses, has been pleased to take cognizance
against the petitioners. There is no illegality in the order taking cognizance.
7. Mr. Mrinal Kanti Roy and Mr. Ravi Kerketta, learned counsel for the
State submit that after looking into the solemn affirmation as well as two
enquiry witnesses, the learned court has taken cognizance against the
petitioners. They further submit that there is no illegality in the order taking
cognizance and, therefore, this Court at this stage may not interfere under
Article 226 of the Constitution of India.
8. In view of the above facts and submissions of the learned counsel
appearing for the parties, the Court has gone through the materials on the
record and finds that admittedly the complaint case has been filed by
respondent no.2 alleging therein that sum of Rs.65,19,521.43/- has not
been returned by the company and for that the Directors and other officials
of the company have been made accused. What are the roles played
independently by these petitioners, has not been disclosed in the complaint
case. For recovery of the amount in question, civil suit was filed by
respondent no.2 which was dismissed by the learned Civil Judge
(Senior Division), Gurgaon vide judgment dated 11.07.2016. It has been
stated in paragraph 16 of the complaint petition that the accused is holding
complainant money illegally and unjustifiably and is liable to return the
same with interest of 24% p.a. and all accused persons made a forged
documents for the sake of company's benefit. Respondent no.2 has also
approached National Consumer Disputes Redressal Commission, New Delhi
in Consumer Case No.2087 of 2016 and after considering all the facts the
Commission has also dismissed the said case vide order dated 11.09.2019.
There is no doubt that if criminality is made out, civil and criminal cases can
go simultaneously, however if the case is purely civil in nature, criminal case
cannot be proceeded. It is no comfortable thought for the petitioners that
the complaint be filed against any person and by way of adducing
witnesses, criminal cases are said to be made in question, as has been held
by the Hon'ble Supreme Court in Pepsi Foods Ltd. & another v. Special
Judicial Magistrate & others; [(1998) 5 SCC 749] . Admittedly
for recovery of the amount in question, the complaint case has been
filed, wherein, cognizance has been taken against the petitioners. The
case is entirely civil in nature for which, criminal case is abuse of process
of law.
9. In view of the above facts, reasons and analysis, the entire criminal
proceeding including the order dated 11.07.2016 passed by the learned Sub
Divisional Judicial Magistrate, Jamshedpur in Complaint Case No.850/2016,
pending before the learned Sub Divisional Judicial Magistrate, Jamshedpur
is, hereby, quashed.
10. Accordingly, these petitions stand allowed and disposed of.
11. Pending I.As., if any, stand disposed of.
12. Interim order, if any granted by this Court, stands vacated.
(Sanjay Kumar Dwivedi, J.)
Ajay/
