Vijay Kumar Khurana v. Shubham Jain

15. The learned Special Judge held in the impugned order that the petitioner would get an opportunity to raise all arguments before the learned Trial Court and there was no error of jurisdiction or law to justify the exercise of revisional power.

16. The learned counsel for the petitioner submitted that no specific role has been assigned to the petitioner which may constitute the offence under Section 420 of the IPC. He submitted that apart from the averment of the respondent in the pre-summoning evidence that the payment plan of the construction linked progress plan was suggested by the petitioner along with the accused persons, there is no specific allegation qua the role of the petitioner.

17. He submitted that it is the case of the respondent that he had himself visited the office of the accused company and met the marketing team to understand more about the project as he was looking for a residential accommodation.

18. He submitted that no inducement or luring can be alleged on part of the petitioner.

19. He further submitted that to constitute an offence of cheating under Section 420 of the IPC, it is essential that the accused had a guilty intent at the time of making a promise.

20. He relied upon the judgment passed by the Hon’ble Apex Court in RK Dalmia v. Delhi Administration: AIR 1962 SC 1821, to contend that the provisions of Section 409 of IPC are not applicable against the petitioner.

21. He further vehemently submitted that the petitioner was neither a director nor a shareholder in the accused company and is in no manner the beneficiary of any alleged cheated amount and he was a mere salaried employee.

22. He submitted that the petitioner in any case could not have been summoned for offences of cheating and criminal breach of trust together as the same cannot co-exist in regard to the same transaction.

23. The present proceedings are pending since the year 2019, however, despite repeated opportunities, the respondent has not filed the reply.

24. However, during arguments, the learned counsel for the respondent supported the impugned order and submitted that the defence of the petitioner cannot be looked into at this stage. He submitted that the same is a matter of trial.

25. He further submitted that the hard-earned money of the respondent has been misappropriated by the accused persons.

26. He submitted that the accused persons had accepted the major portion of the sale consideration from the respondent despite having no intention to deliver the property.

ANALYSIS

27. A bare perusal of the complaint reflects that the accused persons allegedly have taken a sum of ₹58,15,260/- against the total sale consideration of ₹75,16,012/- from the respondent, however, the possession of the apartment has not been handed over. It is also alleged that a false promise was made that the possession of the apartment will be delivered within 42 months. It is further alleged that on the visit to the construction site, the respondent found that no construction has taken place. It is alleged that the accused persons, from the very beginning, had no intention to handover the possession of the apartment.

28. The petitioner has also filed an affidavit pointing out that he is not a Director in the accused company nor was he an authorized signatory. He was an employee in the year 2014-15 in another company, namely, AB Multiplex Pvt. Ltd., drawing a salary of ₹12,500/-. The document to that effect has been filed. It appears that the petitioner had signed the Unit-Buyer Agreement dated 12.05.2014 executed between the respondent and the accused company. The petitioner has deposed that he had signed the said agreement under the instructions of Mr. Atul Bansal, who was also a Director of AB Multiplex Pvt. Ltd. at that time.

29. In the absence of any reply being filed by the respondent despite an opportunity being given, the facts as stated by the petitioner and the document thus adduced by him are to be accepted as true.

30. The summoning of an accused in a criminal case is a serious matter and the criminal machinery ought not to be set in motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the satisfaction of the Court with regard to the existence of a prima facie case on the basis of the allegations must be recorded. The learned Magistrate while issuing summons vide summoning order dated 22.11.2018 noted as under:- “From the perusal of the pre-summoning evidence adduced by the complainant, a prima facie case for commission of offences U/s 409/420/120B/34 IPC is made out against all the accused persons and there are sufficient grounds for proceeding against them. Complainant is directed to file list of prosecution witnesses and PF. Upon filing of the same, all the 5 accused be summoned. Process be served through SHO, PS Saket.”

31. It is pertinent to note that while no specific allegation was made against the petitioner in the complaint, the respondent in the presummoning evidence also only stated that “the same payment plan was advised to me by accused namely Mr. Atul Bansal, Mr. Ravi Shankar, Mr. Vijay Gupta, Mr. Vijay Khurana and through their representatives also”.

32. From the perusal of the complaint, it is apparent that the allegations have been made against the accused company and other officers. The specific role of petitioner in inducing the complainant on behalf of the accused company to part with the consideration amount has not been mentioned.

33. The name of the petitioner is mentioned in the pre-summoning evidence as one of the persons who had advised the payment plan to the respondent. Merely advising the payment plan sans any other allegation does not constitute an offence of cheating or misappropriation of funds. It is relevant to note that even in the presummoning evidence, it is not mentioned or alleged as to in what capacity the petitioner has represented the accused company. It is not clear from the complaint or the pre-summoning evidence that in what capacity the petitioner has been made vicariously liable for the offences. While only generic and overarching allegations have been made against the petitioner, even if the same are taken to be a gospel truth, the same would not constitute any offence under Section 420 or 409 of the IPC.

34. Although the order issuing summons records that the learned Magistrate is satisfied about the existence of a prima facie case, however, as discussed above, on a bare perusal of the complaint as well as the pre-summoning evidence, the said observation seems to be without any application of mind. As discussed above, the complaint as well as the pre-summoning evidence fail to disclose the role played by the petitioner which would constitute the offences under Sections 420/409 of IPC. The complaint, in the opinion of this Court, lacks the necessary ingredients of Sections 409 and Section 420 of the IPC. No allegation has been made to substantiate the offence of conspiracy either except for a bald generic averment that the accused persons had no intention of giving the possession of the property to the respondent.

35. It is an admitted case that money was paid by the respondent to the accused company. It has also not been pointed out as to in what manner the petitioner is beneficiary of the amount received by the accused company. In the absence of any allegation of the petitioner misleading, inducing or luring the respondent, no liability can be fastened on him. In such circumstances, summons should not have been issued against the petitioner.

36. The Hon’ble Apex Court in Sunil Bharti Mittal v. Central Bureau of Investigation: 2015 4 SCC 609 had set aside the processes issued against the petitioner therein, who was the Director in the accused company, holding that without ascribing any incriminating role, the petitioner could not have been made an accused solely for the reason of being the Director of the company. It was held that when the company is made an accused, its Directors can be roped in only if there is sufficient incriminating evidence against them coupled with criminal intent or when the statutory regime attracts the doctrine of vicarious liability. It was held that in the absence of the same, the processes ought not to have been issued.

37. In the opinion of this Court, the case of the present petitioner stands on a better footing since the petitioner is neither a Director nor a shareholder of the accused company who has accepted the money from the respondent. As noted above, the petitioner has filed an affidavit clearly showing that he was an employee at the relevant time drawing a salary of ₹12,500/- from another company, namely, AB Multiplex Pvt. Ltd.

38. It is also settled law that if the accused is able to furnish incontrovertible material of sterling quality, the same can be accepted and proceedings can be quashed by the High Court in exercise of the inherent power under Section 482 of the CrPC. The accused ought not to be relegated to face the trial in every case when the undisputed evidence points towards his innocence.

39. Therefore, considering the fact that no specific role has been ascribed to the petitioner in regard to the offences under Sections 409 and 420 of the IPC and that the petitioner was not a beneficiary of alleged offence as he was only a salaried employee at the relevant time, I am of the opinion that the present is a fit case for exercising the power under Section 482 of CrPC.

40. In view of the above, the proceedings in relation to Complaint Case no. 15865/2018 are quashed qua the petitioner.

41. The present petition is allowed in the aforesaid terms. AMIT MAHAJAN, J AUGUST 20, 2024