Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Decided on: 8 May, 2017
+ CRL.M.C. 2255/2016 & Crl.M.A. 9471/2016 (stay)
RAMAN KUMAR JUNEJA ..... Petitioner
Represented by: Mr. Suhail Dutt, Sr. Adv. with
Mr. Aditya Kr. Chaudhary,
Adv.
versus
STATE NCT OF DELHI & ANR ..... Respondent
Represented by: Mr. Ashok Kr. Garg, APP.
Mr. Vinod Tyagi, Adv. for R-2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By the present petition the petitioner seeks quashing of FIR No.
09/2009 registered at PS Civil Lines for offences punishable under Sections
406/420/120B IPC.
2. In the above-noted FIR after investigation, charge-sheet was filed and
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vide order dated 3 February, 2016 the learned Metropolitan Magistrate
directed framing of charge for offences punishable under Sections
406/420/120B IPC against the petitioner which order was assailed before the
learned Additional Sessions Judge. The criminal revision petition filed
before the learned Additional Sessions Judge was dismissed by the
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impugned order dated 23 April, 2016.
CRL.M.C. 2255/2016 Page 1 of 8
3. The allegations of the respondent No.2 in the FIR were that in
January, 2008 property dealer Bipin Jain contacted him and informed that
one property dealer Anish Kumar Gupta told him that the petitioner is the
owner of double storeyed built-up property bearing No.20/2 with roof rights
measuring 442 sq. yards, situated at Rajpur Road, Civil Lines, Delhi along
with passage ownership rights with freehold rights of the land underneath
and was looking for a buyer. Since the complainant was also interested in
buying a residential property, a meeting was arranged wherein the petitioner
claimed himself to be the absolute owner of the said property and that the
property was free from all encumbrances. The complainant agreed to pay
the property for a total sale consideration of ₹6,74,00,000/-. An agreement
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was entered into on 18 January, 2008 and part payment of ₹20,00,000/- in
cash and ₹60,00,000/- by 2 cheques was paid. Since the agreement did not
include ‘ownership right over the passage’ and only mentioned ‘easement
rights over the passage’, therefore dispute arose. Therefore the payment by
cheque was stopped. A fresh agreement was entered into and at the time of
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entering into the agreement dated 7 July, 2008 the petitioner and the
property dealer Anish Gupta showed photocopies of certain documents,
registered gift deed as well as Will, to show the petitioner’s ownership right
over the entire property as well as the passage, however the photocopies of
the said documents were not provided stating that the same will be provided
at the completion of the sale proceedings. A sum of ₹10,00,000/- in cash
and ₹60,00,000/- by cheque was paid besides ₹20,00,000/- in cash already
paid. Though the sale deed was to be executed as per the agreement to sell
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dated 7 July, 2008 by 15 August, 2008 the time limit for execution of the
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sale deed was extended by 15 September, 2008 and again by 15 October,
CRL.M.C. 2255/2016 Page 2 of 8
2008, when the respondent No.2 came to know that the petitioner was not
the absolute owner of the passage from the house to the Road. The petitioner
misrepresented that he was the owner of the passage of the house on the
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main Road and induced the complainant to deliver ₹1.5 crores in all, till 7
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September, 2008. He served legal notice dated 7 October, 2008 and asked
the petitioner to return ₹3 crores as per the terms of agreement and filed the
complaint on which the above-noted FIR was registered and after
investigation, charge-sheet was filed.
4. Learned counsel for the petitioner contends that admittedly the first
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agreement entered into between the parties was dated 18 January, 2008
wherein only passage rights from the main Rajpur Road to the Kailash
building was mentioned. Further the agreement to sell mentions as to how
the petitioner became the owner of the property for the same belonged to his
grand-father who executed a gift deed in favour of the grand-mother of the
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petitioner who later executed a Will dated 11 July, 1973. Both the gift deed
and the Will were registered documents mentioning that the grand-father had
only right of easement of the passage. Even in the Will this fact stands
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mentioned. Thus, merely because in the second agreement to sell dated 7
July, 2008 the petitioner failed to notice the insertion in a different typing on
the second page wherein unscrupulously the words ‘along with the passage
ownership rights’ were introduced, the petitioner cannot be said to have
cheated or committed criminal breach of trust. Further, even as per the
receipts duly executed between the parties it is clear that only property
bearing No.20/2 Rajpur Road, Civil Lines, measuring 442 sq. yards was
sold. Learned counsel for the petitioner submits that in the present petition
under Section 482 Cr.P.C. this Court can even look into the impeccable
CRL.M.C. 2255/2016 Page 3 of 8
material which is in the form of statement on oath of the respondent No.2 in
the civil suit filed by the respondent No.2 being CS(OS) No.2205/2009
wherein he admits having been shown the title deeds and documents at the
time of execution of the agreement to sell. Hence the above-noted FIR and
the proceedings pursuant thereto be quashed.
5. Learned counsel for the respondent No.2 on the other hand contends
that this Court even in this petition under Section 482 Cr.P.C. will not look
into the statements recorded in the civil suit and appreciate the evidence of
the civil suit. Further on the ingredients of the FIR, offence under Section
406/420/34 IPC is made out and misrepresentation was made by the
petitioner that he was the owner of the passage as well, thus inducing him to
enter into an agreement to sell.
6. Admittedly as noted in the FIR, the first agreement to sell between the
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parties was on 18 January, 2008 wherein the built-up property bearing
No.20/2, with roof rights upto sky, land area measuring 442 sq. yards,
building known as ‘Kailash’ situated at Rajpur Road, Civil Lines, Delhi
along with the passage right from the main Rajpur Road to the Kailash
building was agreed to be sold for a total sale consideration of
₹6,74,00,000/- (Rupees six crores seventy four lacs only). The said
agreement to sell clearly noted how ownership of the property admeasuring
442 sq. yards devolved on the petitioner. It was stated that the property was
acquired by Smt. Kaushalya Devi Pahwa by virtue of a gift deed duly
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registered at document No.8518 on 10 December, 1969 where after Smt.
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Kaushalya Devi Pahwa executed a Will dated 11 July, 1973 in favour of the
petitioner.
CRL.M.C. 2255/2016 Page 4 of 8
7. A perusal of both the documents i.e. gift deed and the Will show that
Dr. Mathra Das Pahwa who donated the property to his wife Smt. Kaushalya
Devi Pahwa and Smt. Kaushalya Devi who executed a Will in favour of the
petitioner only had a right of easement of passage from the main gate. The
sale consideration in both the agreement to sell continue to be 6,74,00,000/-
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and as noted in the first agreement to sell dated 18 January, 2008 earnest
money of ₹80 lakhs was paid out of which ₹20 lakhs was cash and ₹60 lakhs
by way of two cheques one for ₹5 lakhs and the other for ₹55 lakhs.
Admittedly, this amount of ₹60 lakhs was not encashed by the petitioner. At
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the time of agreement to sell dated 7 July, 2008 the total sale consideration
continued to be ₹6,74,00,000/- with a further cash advance of ₹10 lakhs.
The second agreement notes that ₹60 lakhs have been paid vide cheque
No.439881 drawn on Punjab National Bank and the same is typewritten.
This could have been done only by the complainant who had in his
possession the cheque and had drawn the same. Further the receipts also
note that the same was in lieu of earnest money against sale of double
storeyed built-up property bearing No.20/2 with roof rights upto sky land
area, measuring 442 sq. yards, building known as ‘Kailash’ situated at
Rajpur Road, Civil Lines with freehold rights of the land underneath. There
is no mention in the two receipts of the ownership rights in the passage. If
the version of the respondent No.2 is to be accepted that the petitioner
informed him that he owned the passage and thus the same was also a part of
the agreement to sell, the receipt would have mentioned the area of the
passage besides the area of the double storeyed built-up property which
measures 442 sq. yards.
CRL.M.C. 2255/2016 Page 5 of 8
8. As noted above it is not the case of the respondent No.2 that finally
the sale deed was executed and only ₹30 lakhs in cash were paid and the
cheque of ₹60 lakhs. Further the petitioner has placed on record the
statement of the respondent No.2 on oath recorded in CS(OS) 2205/2009
wherein he admitted that he was shown the title deeds at the time of
negotiations. In the said statements he did not state that the title documents
deed shown at the time of negotiations were not the once which are now
recovered during the course of investigation. Hence in view of the admitted
facts in the complaint and the documents collected during the course of
investigation and the impeccable material in the form of statement of
respondent No.2 on oath in the civil suit, this Court finds that the ingredients
of offences punishable under Section 406/420 IPC are not made out.
9. The Supreme Court in the decision reported as (2013) 3 SCC 330
Rajiv Thapar & Ors. Vs. Madan Lal Kapoor while laying down the
guidelines for quashing of a FIR and the proceedings pursuant thereto in
exercise of its power under Section 482 Cr.P.C. by the High Court,
delineated the steps to be taken to determine the veracity of prayer as under:
“29. The issue being examined in the instant case is the
jurisdiction of the High Court under Section 482 CrPC, if it
chooses to quash the initiation of the prosecution against an
accused at the stage of issuing process, or at the stage of
committal, or even at the stage of framing of charges. These are
all stages before the commencement of the actual trial. The
same parameters would naturally be available for later stages
as well. The power vested in the High Court under Section 482
CrPC, at the stages referred to hereinabove, would have far-
reaching consequences inasmuch as it would negate the
prosecution's/complainant's case without allowing the
prosecution/complainant to lead evidence. Such a determination
must always be rendered with caution, care and
CRL.M.C. 2255/2016 Page 6 of 8
circumspection. To invoke its inherent jurisdiction under
Section 482 CrPC the High Court has to be fully satisfied that
the material produced by the accused is such that would lead to
the conclusion that his/their defence is based on sound,
reasonable, and indubitable facts; the material produced is
such as would rule out and displace the assertions contained in
the charges levelled against the accused; and the material
produced is such as would clearly reject and overrule the
veracity of the allegations contained in the accusations levelled
by the prosecution/complainant. It should be sufficient to rule
out, reject and discard the accusations levelled by the
prosecution/complainant, without the necessity of recording any
evidence. For this the material relied upon by the defence
should not have been refuted, or alternatively, cannot be
justifiably refuted, being material of sterling and impeccable
quality. The material relied upon by the accused should be such
as would persuade a reasonable person to dismiss and condemn
the actual basis of the accusations as false. In such a situation,
the judicial conscience of the High Court would persuade it to
exercise its power under Section 482 CrPC to quash such
criminal proceedings, for that would prevent abuse of process
of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashment raised by an
accused by invoking the power vested in the High Court under
Section 482 CrPC:
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the material
is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the charges
levelled against the accused i.e. the material is sufficient to
reject and overrule the factual assertions contained in the
complaint i.e. the material is such as would persuade a
reasonable person to dismiss and condemn the factual basis of
the accusations as false?
CRL.M.C. 2255/2016 Page 7 of 8
30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted
by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result
in an abuse of process of the court, and would not serve the
ends of justice?
30.5. If the answer to all the steps is in the affirmative, the
judicial conscience of the High Court should persuade it to
quash such criminal proceedings in exercise of power vested in
it under Section 482 CrPC. Such exercise of power, besides
doing justice to the accused, would save precious court time,
which would otherwise be wasted in holding such a trial (as
well as proceedings arising therefrom) specially when it is clear
that the same would not conclude in the conviction of the
accused.”
10. Consequently, FIR No. 09/2009 under Sections 406/420/120B IPC
registered at PS Civil Lines and the proceedings pursuant thereto are hereby
quashed.
11. Petition and application are disposed of.
(MUKTA GUPTA)
JUDGE
MAY 08, 2017
‘ga’
CRL.M.C. 2255/2016 Page 8 of 8