Full Text
HIGH COURT OF DELHI
CRL.M.C. 5077/2022, CRL.M.A. 20347/2022, CRL.M.A. 520/2023
SANJEEV SRIVASTAVA AND ANOTHER ..... Petitioners
Through: Mr.Rishi K.Awasthi, Mr.Piyush Vatsa and Mr.Rahul Kumar Gupta, Advocates with petitioners in person.
Through: Ms, Shubhi Gupta, APP for the State.
SI Vishvendra Singh, PS Mayur Vihar.
Date of Decision: 31.05.2023
JUDGMENT
1. Present petition has been filed for quashing of case FIR NO. 0140/2018 dated 02.05.2018 registered under Sections 420/406/34 IPC at PS Mayur Vihar, PH-1. The said FIR was lodged on the statement of Yogesh Kumar Gupta for non-delivery of possession of a flat in the project of M/s Assotech Ltd. wherein the petitioner No.1 is a director. As per the FIR it has been alleged that the petitioner breached the terms and conditions of the Agreement for allotment of Signing the said flat and also did not make the payment regarding the buy back option as opted for.
2. Briefly alleged the fact are that in the year 2012, the complainant invested in the project of Assotech Ltd. (Company) and was allotted one flat bearing No. F-061 admeasuring 1675 sq. ft. in the project 'The Nest', Crossing Republic, Ghaziabad. The complainant paid the complete investment amount to the tune of Rs. 30,92,700/- against the allotment of the aforesaid flat. Subsequently, the articles of agreement dated 08.05.2012 was executed between the Petitioner No.1 and the complainant for the buyback option which was provided to the complainant. Pertinently, the said agreement dated 08.05.2012 provides that the buyback option was granted to the complainant at the pre-settled and determined amount of Rs. 34,07,994/-. Pertinently, in furtherance of the same, the Petitioner No.1 issued three post-dated cheques for the aforesaid amount, to be paid in the following manner: S.NO. Cheque dated Amount
1. 08.08.2013 2,02,678/-
2. 08.11.2013 2,02,678/-
3. 08.11.2013 30,02,638/- TOTAL 34,07,994/-
3. Thereafter, the Petitioner No.1 was unable to fulfil the commitment of the payment of the buyback option in favour of the complainant and resultantly, the complainant filed a Complaint before the Ld. Delhi State Consumer Forum. Subsequently, a settlement was arrived at between the parties and in consonance of the same a sum of Rs. Signing 8,00,000/- (Rs. Eight Lakhs) was paid to the complainant through Demand Draft and a further sum of Rs. 2.[5] Lakhs was paid by way of cash, and the same was duly acknowledged by the complainant.
4. In the interregnum, the M/s Assotech Limited, went into provisional liquidation and only part payment could be made to the complainant as the Petitioner No.1 was unable to arrange the funds. It has been submitted that this Court in Co. Pet. No. 357/2015 titled as Manmohan Singh Bhalla vs. Assotech Ltd. vide its order dated 08.02.2016 appointed the Official Liquidator as the Provisional Liquidator.
5. It has been submitted that thereafter, M/s Assotech Limited preferred a Scheme of Compromise for its revival and this Court vide its order dated 11.02.2019, inter alia accepted the Action Plan of M/s Assotech Limited and directed Sh. Sanjeev Srivastav Ex-Managing Director of M/s Assotech Limited to supervise the completion of its pending construction of projects and further appointed Mr. Justice N. K. Mody, (Retd.) as the Ld. Court Commissioner to monitor the Action Plan and submit its report. The said Order also provides that no coercive steps be taken against the petitioner company or its management to recover any dues for nine months from the said date.
6. It has been submitted that in the meanwhile, the complainant filed a complaint under Section 156 (3) Cr.P.C. before the Ld. CMM, Karkardooma Courts, Delhi which culminated into the present FIR. Ld. Counsel for the petitioner submits that now the parties have settled the matter vide MOU/settlement agreement dated 16.02.2022 on the following terms and conditions: Signing “1. That in pursuance of the aforesaid Agreement, the Second Party has paid to the First Party a sum of Rs. 30,92,700/- (Rupees Thirty Lac Ninety Two Thousand Seven Hundred only). In return First Party returned Rs. 10,50,000/- (Rupees Ten Lacs Fifty Thousand Only) to the Second Party. In the interregnum, the parties have decided to settle all their disputes and differences, wherein the parties have agreed towards refund of the paid amount through allotment of Flat no; J-411 of 990 Sqft. at Assotech Windsor Court, Noida, as full and final settlement with the Second Party.
2. That the First Party in discharge of its obligations under the aforesaid Agreement and in terms of the present settlement agreement will ensure that the Second Party is compensated by the First Party with the allotment of the above said flat towards full and final settlement.
3. The above mentioned newly allotted flat is fully paid up to the stage of offer for possession and is inclusive of one parking and Club membership. The charges towards dual meter, electricity charges, power back up charges, maintenance etc. are payable by the Second Party. The flat will be handed over to the second party in complete and fully finished condition and fitted with Tube Light, electrical fans and geysers, etc.
4. That the parties have further agreed that the liabilities of the First Party, under the aforesaid Agreement has now been released by the Second Party In favour of the First Party and the Second Party has been left with no rights, title, Interest or concern of any nature in any manner whatsoever and the First Party has now become the exclusive and absolute lawful owner of the said Flat at 'The Nest' mentioned in the aforesaid agreement and the Second Party and/or any person claiming through him shall have no right, title or interest in it.
5. That upon signing of this Settlement Agreement the Second Party shall return all the original documents and all other deeds/documents issued by the First Party with respect to the aforesaid allotment issued by the First Party in favour of the Second Party. Signing
6. That the Second Party has assured the First Party that it has not created any lien, mortgage or charge over Flat No F - 061 at 'The Nest', Crossing Republik, Ghaziabad.
7. That simultaneously, upon allotment and handing of possession of the agreed fiat, the Second Party undertakes to withdraw the following: a) Complaint in State Consumer Disputes Redressal Commission at ITO, New Delhi- 110002 and b) Complaint No. 58772/16 pending in Karkardooma Courts in the court of Ld. MM, titled as Yogesh Gupta vis. Assotech Limited & Drs, and c) OMP (Comm.) No. 14/2019 (pending in the court of ADJ Karkardooma courts against the arbitral award dated 30.01.2019 passed by the Sole Arbitrator Shri S. K. Tandon, who was appointed vide order dated 23.04.2018 by the high court of Delhi in Arb P 819/2016 and d) Get the FIR NO. 0140/2018 lodged in PS Mayur Vihar, Phase - I, Delhi vis. Assotech Limited & Drs. quashed as per law. e) Till the withdrawal of all the complaints / quashing of FIR, all the above matters shall be kept in abeyance. f) Further, the Second Party shall as and when required move the applications for withdrawal of the all other (if any) Complaint(s) / Case(s)/ petition(s) pending and quashing of FIR in accordance with law before the appropriate Court of law, whether they are in the knowledge of the First Party or not.
8. That in addition to the above, immediately upon signing of this Settlement Deed between the parties, the Second Party further undertakes to withdraw all complaints, claims, petitions, quasi judicial proceedings (Civil/Criminal) pending before any Tribunal/Court of law and legal notices/letters/emails and any other actions/claims of any nature whatsoever arising out of the present transaction against Assotech ltd, its promoters /directors /agents/ representatives/employees etc., whether it is/ isn't in the knowledge of the First Party. Signing
9. That the Second Party further undertakes to fully cooperate and facilitate wherever and whenever required or called for completing the formalities/ requirements for withdrawal of the above matters and any other case/s between the parties in this regard.
10. That both the parties agree that all the statutory tax liability arising out of this transaction shall be borne by the respective parties in accordance with the law.
11. The claims/dues if any of the Noida Authority or others in respect of Flat No. J- 411 of 990 sq.ft. at Assotech Windsor Court, Sector - 78, Noida will be paid by the first party. The fiat will be transferred to the second party free from all encumbrances.
12. That the parties agree that this "Settlement Agreement" constitutes the full, final and binding settlement between the Parties, in relation to all claims arising between the parties and the First Party shall stand fully discharged of any and all claims made by the Second Party.
7. The parties are present in person and have been duly identified by the IO. The complainant states that he has been handed over the physical possession of the said property by the petitioners. The complainant states that he has got the physical possession of said property bearing Flat No. J- 411 of 990 sq.ft. at Assotech Windsor Court, Sector - 78, Noida, as full and final settlement with the second party and nothing remains to be paid now. The complainant submits that the petitioner has complied with the above settlement terms and thus he has no remaining grievance against him. He submits that he has entered into the settlement voluntarily, out of his free will, without any fear, force or coercion. He states that he has no objection if the present FIR NO. 0140/2018 and all the consequent proceedings emanating therefrom are Signing quashed. He states that he is making the statement voluntarily, without any fear, force or coercion.
8. I have considered the submissions. Admittedly, the dispute between the parties arose due to non-delivery of possession of a flat which has now been handed over to the complainant. The dispute is predominantly private in nature and has been amicably resolved. The parties have amicably settled all their disputes and differences vide MoU dated 16.02.2022 on the mutually agreed terms and conditions contained therein. Further, in terms of the MoU, the possession of the said flat has already been given. An undertaking dated 28.02.2022 on behalf of the parties to this effect has also been placed on record. The complainant no longer wishes to pursue the present complaint on account of the amicable settlement between the parties. Since, nothing remains in the present dispute, which has been amicably settled, the present FIR and the consequent proceedings emanating therefrom are liable to be quashed as no fruitful purpose would be served by keeping the present FIR and the proceedings arising thereof pending.
9. Section 482 of the Code saves the inherent power of the High Court to prevent abuse of the process of any court or to secure the ends of justice. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the Court must evaluate whether the ends of justice would justify the exercise of the inherent power. The decision as to whether a criminal proceeding or FIR should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case. The main aim is to do real, Signing complete and substantial justice. It has repeatedly been held that if the dispute is private in nature and the parties have entered into a settlement and there is a remote or bleak chance of conviction, it is better to put a quietus to the litigation so as to prevent the abuse of the process of the Court and to secure the ends of justice.
10. The Hon'ble Supreme Court in Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641, inter alia held as under: “16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice;”
11. In view of the totality of facts and circumstances of the case, the present FIR No. 0140/2018 dated 02.05.2018 registered under Sections 420/406/34 IPC at PS Mayur Vihar PH-1 and all criminal proceedings emanating therefrom are quashed. Signing
12. The petition along with the pending applications is disposed of.
DINESH KUMAR SHARMA, J MAY 31, 2023 Signing