Full Text
HIGH COURT OF DELHI
Date of Decision: 10th DECEMBER, 2024 IN THE MATTER OF:
SH. GIAN CHAND & ORS. .....Petitioners
Through: Mr. V.P. Rana, Ms. Bhawana, Ms. Anuja Negi, Advocates.
Through: Mr. Amol Sinha, ASC for the State
SI Sachin, PS Alipur
JUDGMENT
1. The Petitioners have approached this Court seeking quashing of FIR No.849/2023 dated 21.12.2023, registered at Police Station Alipur, Delhi for offences punishable under Section 420 IPC. The said FIR has been registered pursuant to an Order passed by the Ld. CMM, North, Rohini Court, Delhi in a complaint case filed by the Respondent No.2/complainant directing to register an FIR.
2. The facts as stated in FIR reveals that a plot admeasuring 200 square yards bearing Plot No.141, Block A-2, Safdarjung Enclave, New Delhi was allotted by the Delhi Administration in favour of the predecessor of the complainant Late Savitri Devi and Late Shri Ramesh Singh Bhadoriya by executing a perpetual Lease Deed duly registered on 27.01.1965, Serial No.423, Book No.1, Vol No.125, Page No169 to 174. The said plot was 13:04 converted from leasehold to freehold on 20.04.2001 in the name of Late Savitri Devi and Late Shri Ramesh Singh Bhadoriya. It is stated that the Accused No.1/M/s J.V. Mercantile Pvt. Ltd had taken a cash credit facility for a sum of Rs.[1] Crore in its loan account from State Bank of Bikaner and Jaipur (presently State Bank of India). The said loan was secured on the following three properties: i. Plot No.141, Block A-2, Safdarjung Enclave, New Delhi belonging to Late Savitri Devi and Late Shri Ramesh Singh Bhadoriya by deposit of title deeds. ii. Plot measuring one Bigha bearing Khasra No.71/19 min (New Khewat No.919), village Alipur, New Delhi belonging to Accused No.1/ M/s J.V. Mercantile Pvt. Ltd. The said plot was in the name of Sh. Ram Kumar S/o Sh. Gopal Singh. iii. Another Plot measuring one Bigha bearing Khasra No.71/19 (1-0) belonging to JMA Engineering Pvt. Ltd.
3. It is stated that Accused No.1/M/s J.V. Mercantile Pvt. Ltd on whose behalf the abovementioned properties were mortgaged defaulted in repayment of loan to the Bank and, thereafter, proceedings under the SARFAESI Act, 2002 were initiated by the Bank. The Petitioners herein as well as the guarantors, including Late Savitri Devi and Late Shri Ramesh Singh Bhadoriya who stood as a guarantor were called upon to pay a sum of Rs.1,95,01,343.56/- as on 31.03.2004. Proceedings under Section 14 of the SARFAESI Act, 2002 were initiated and a Court Receiver was appointed to take over possession of Plot No.141, Block A-2, Safdarjung Enclave, New Delhi. The said proceedings were challenged before the Debts Recovery Tribunal (DRT) and vide Order dated 27.10.2008, the Ld. DRT set aside the notice issued under Section 13 of the SARFAESI Act, 2002. In the 13:04 meantime, Savitri Devi passed away bequeathing the property to Shri Ramesh Singh Bhadoriya and Respondent No.2 herein. The Ld. DRT came to the conclusion that service of notice under Section 13 of the SARFAESI Act, 2002 was not in accordance with law. It was also observed by the Ld. DRT that since Savitri Devi passed away bequeathing the property bearing Plot No.141, Block A-2, Safdarjung Enclave, New Delhi to Respondent No.2 on the basis of a Will dated 03.02.2001, the action of the bank is not in accordance with law. Since the possession of the said property was taken over under Section 14 of the SARFAESI Act, 2002, a prayer was made before the Ld. DRT for restoration of possession. As far as ground floor and second floor of the property is concerned, liberty was granted to the Bank to take further action in accordance with law to take possession of the ground floor and second floor of the property.
4. The Bank, thereafter, initiated proceedings under the RDB Act for recovery of Rs.2,91,22,438/- It is stated that during the pendency of the proceedings, the Respondent No.2/complainant and one more person deposited a sum of Rs.3.60 crores with the bank which was due and payable to the Bank. By an Order dated 31.07.2012, the bank was directed to deliver the Sale Deed dated 22.12.1995, being Document No.1975[3] (as corrected to Document No.1957[3] vide Order dated 25.10.2013) in respect of the property godown/land of one bigha in Khasra No.71/19 situated at Village Alipur, Delhi in favour of Respondent No.2/complainant.
5. It is this property being godown/land of one bigha in Khasra No.71/19 situated at Village Alipur, Delhi (hereinafter referred to as "property in question") which in question in the FIR.
6. It is stated by the Respondent No.2/complainant that despite the Order dated 31.07.2012 passed by the Ld. DRT, the Accused No.1/ M/s J.V. 13:04 Mercantile Pvt. Ltd. sold the property in question to Petitioner No.1 herein by execution of registered GPA dated 30.12.2014 and Agreement to sell for consideration of Rs.20,00,000/- and the physical possession was also handed over to Petitioner No.1.
7. Material on record indicates that on the basis of GPA dated 30.12.2014 executed by M/s J.V. Mercantile Pvt. Ltd in favour of Petitioner No.1, the Petitioner No.1 offered the property in question to Petitioner No.2. In order to ensure that the property in question is unencumbered, No Objection Certificate and other permission from the Government was taken and Respondent No.2 purchased the property in question from Petitioner No.1 vide registered sale deed dated 20.01.2016. On 20.01.2016, Petitioner No.2 further executed a Lease Deed leasing the property in question to Petitioner No.3 herein.
8. Material on record further indicates that Respondent No.2/complainant along with one Laxman Singh instituted a Civil Suit bearing No.446/2022 for declaration, recovery of possession, permanent injunction etc. in this Court and vide Order dated 03.08.2022 passed by this Court, the plaint was registered as Suit and the parties were directed to a status quo with respect to the title and possession of the property in question. The Order of status quo dated 03.08.2022 was made absolute vide Order dated 28.08.2023 passed by this Court.
9. Thereafter, the Respondent No.2/complainant approached the Magistrate under Section 156(3) Cr.P.C for registration of FIR against the Petitioners and on the direction of the Magistrate, the present FIR has been registered against the Petitioners for offence punishable under Section 420 IPC.
10. The Petitioners have, therefore, approached this Court seeking 13:04 quashing of FIR on the ground that a case of offence punishable under Section 420 IPC is not made out against them.
11. It is the contention of the learned Counsel for the Petitioners that the Petitioner No.1 had purchased the property in question on the basis of a valid GPA dated 30.12.2014 executed by M/s J.V. Mercantile Pvt. Ltd and the Petitioner No.2, thereafter, had purchased the property in question from Petitioner No.1 vide a registered Sale Deed dated 20.01.2016 after taking a No Objection Certificate and other permission from the Government, and Petitioner No.2 further executed a Lease Deed leasing the property in question to Petitioner No.3 herein as a warehouse, and therefore, no case of cheating is not made out against the Petitioners herein. He states that the ingredients of cheating are not made out against the Petitioners for the reason that the Petitioners have not induced the Respondent No.2/complainant to deliver the property in question.
12. Learned Counsel for the Petitioners places reliance upon a Judgment passed by the Apex Court in Lalit Chaturvedi & Ors. vs. State of Uttar Pradesh & Anr., (2024 SCC OnLine SC 171) to contend that this case is at best a case of breach of contract by the bank and selling the property in question to the Petitioner No.1 by M/s J.V. Mercantile Pvt. Ltd cannot give rise to a fraudulent or dishonest intention against the Petitioners. He further states that even as per uncontroverted allegations, no offence of forgery can be made out. It is stated that, similarly, offence under Section 420 IPC cannot be made out since as a consequence of cheating the accused should have dishonestly induced the person deceived to deliver property to the person or alter or destroy in a part a valuable security. It is stated that in this case there has been no inducement by the Petitioners to the complainant for which offence under Section 420 IPC can be made out. He states that a 13:04 bonafide purchaser of the property which was under attachment against the amount due and payable to the depositors, cannot be said to have committed an offence of forgery and cheating. He states that when there are no allegations directly against the Petitioners with regard to misleading or misrepresentation or omission or commission or any fraudulent or dishonest inducement to deliver any property then offence of cheating cannot be made against purchasers.
13. Per contra, learned ASC appearing for the Respondents submits that the property in question has been sold by Accused No.1/M/s J.V. Mercantile Pvt. Ltd to Petitioner No.1 and said sale is in the teeth of the Order dated 31.07.2012 passed by the Ld. DRT. He states that the Respondent No.2/complainant has paid a sum of Rs.3.60 crores and has got the property in question redeemed by the Order dated 31.07.2012. It is stated that the fact that the sale certificate was not issued in favour of the Respondent No.2/complainant, does not authorise the Accused No.1/M/s J.V. Mercantile Pvt. Ltd to sell the property in question to others. It is stated that the investigation is still going on, and therefore, at this juncture, it cannot be ascertained as to whether the other accused persons were or were not aware of the fact that the property in question has been redeemed by the Respondent No.2/complainant. He states that the sale certificate ought to have been issued in favour of Respondent No.2/complainant. He states that the property in question has been sold by Accused No.1/M/s J.V. Mercantile Pvt. Ltd to Petitioner No.1 herein which is completely illegal.
14. Heard learned Counsel appearing for the Parties and perused the material on record.
15. Material on record discloses that M/s J.V. Mercantile Pvt. Ltd, on whose behalf the property in question was mortgaged, defaulted in 13:04 repayment of loan to the Bank and, thereafter, proceedings under the SARFAESI Act, 2002 were initiated by the Bank. The Bank, thereafter, initiated proceedings under the RDB Act for recovery of Rs.2,91,22,438/-. The fact that Respondent No.2/complainant has paid a sum of Rs.3.60 crores and has redeemed the mortgaged property in question is not in dispute. The Order dated 31.07.2012 passed by the Ld. DRT reveals that a sum of Rs.3.60 crores has been paid, loan amount has been settled and the Ld. DRT had directed the bank to deliver the document sale deed in respect of the property in question to Respondent No.2/complainant herein. Paragraph No.7 of the Order dated 31.07.2012 read as under:
16. The Order dated 31.07.2012 has been passed in the presence of Accused No.1/M/s J.V. Mercantile Pvt. Ltd. The question as to whether the petitioner was aware of the Order dated 31.07.2012 or not is a matter of trial and cannot be decided on the basis of material before the Court.
17. The Apex Court in Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, while laying down parameters under Section 482 Cr.P.C, has observed as under: “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few— Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC 13:04 (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. 13:04
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. 13:04 Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636: 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8) “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness 13:04 or ulterior motives on the part of the complainant. Be that as it may.”
18. The aforesaid judgment has been followed by the Apex Court in several judgments which are not being stated.
19. It is well settled that there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable offence without requiring any authority from the judicial authorities and interference from the Courts at the stage of investigation should be minimal. It is also well settled that the power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. [State of Maharashtra v. Arun Gulab Gawali, (2010) 9 SCC 701]
20. The Apex Court, times without number, has held that while exercising powers under Section 482 Cr.P.C, the Courts can neither intervene at an uncalled for stage nor can it “soft-pedal the course of justice” at a crucial stage of investigation/proceedings.
21. In view of the above, on the face it, the sale made by the Accused No.1/M/s J.V. Mercantile Pvt. Ltd. in favour of the Petitioner No.1 herein is completely in the teeth of the Order dated 31.07.2012 passed by the Ld. DRT. The question as to whether Petitioners were or were not aware of the fact that the property in question has been redeemed by the Respondent No.2/complainant cannot be decided at this juncture. The contentions raised by the Petitioners herein can only be decided during trial. As investigation is 13:04 still going on, it appears to this Court, at this juncture, that the Orders of Tribunal have been flouted by Accused No.1/M/s J.V. Mercantile Pvt. Ltd whose loan has been repaid by Respondent No.2/complainant herein. The rights of Respondent No.2/complainant, therefore, has been taken away. Further, in the suit filed by the Petitioners being Civil Suit No.446/2022, a Co-ordinate Bench of this Court has granted status quo vide Order dated 03.08.2022 which has been made absolute vide Order dated 28.08.2023.
22. This Court is, therefore, not inclined to entertain the present petition at this juncture.
23. After the investigation is over and in case, the police files a chargesheet against the Petitioners, it will be always open for the Petitioners, on the basis of material, to raise all their contentions, including the contentions raised in the present petition at time of framing of charges.
24. The petition is dismissed, along with pending application(s), if any.
SUBRAMONIUM PRASAD, J DECEMBER 10, 2024
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