Arun Kathura v. State & Ors

V.K. JAIN,J

DECEMBER 21, 2009 'sn'/RS

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 273/2009 % Reserved on: December 17th, 2009 Date of Decision: December 21st, 2009 # ARUN KATHURIA ..... Petitioner ! Through Mr. Vipin Kumar Gupta, Adv. with Mr. Birjesh Singh, Mr. Sichendra Kumar and Mr. Deepak Gupta, Advocates versus $ STATE & ORS. ..... Respondent ^ Through Mr. Amit Sharma, APP for the State. Insp. Anil Samota, EOW/Crime Branch Mr. O.S. Sharma, Advocate for R-2&3 * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? : V.K. JAIN, J. 1. This is a petition under Section 482 of the Code of Criminal Procedure, seeking setting aside of the order dated 29.9.2008, whereby the learned ACMM directed further investigation in respect of an Agreement-cum-Receipt dated 20.4.2000, alleged to have been signed by the complainant and also directed the Investigating Agency to ascertain, whether the complainant had prior knowledge of property No.10/1, DLF Industrial Area, Nazafgarh Road, New Delhi, being mortgaged with Union Bank of India. 2. The respondents No.2 and 3 have been chargesheeted under Section 420/120B of IPC on the allegations that respondent No.2 on behalf of respondent No.3, who is his wife, entered into an Agreement dated 4.4.2000 with the petitioner – Arun Kathuria and his father-in-law late Shri O.P.Khanna, to sell to them, built up property No.10/1, DLF Industrial Area, Nazafgarh Road, New Delhi, and received the entire sale consideration of Rs.5 lakhs from them. They were also put into physical possession of the property. On 29.5.2000, a sale deed was also executed in favour of Shri O.P.Khanna in respect of half undivided portion of the aforesaid property. The sale deed in respect of remaining half portion of the property, however, was not executed, despite demand from the complainant. While executing the sale deed dated 29.5.2000, respondent No.3 specifically averred that the property was free from all encumbrances such as sale, mortgage etc. 3. Since, while seeking bail, the private respondents had claimed that the deal for sale of property in question was struck for a sum of Rs.51 lakhs and they relied upon a document purporting to be a receipt executed by the complainant and late Shri O.P. Khanna for the aforesaid amount, the Investigating Officer sent notice to respondent No.2 requiring him to produce the receipt relied upon by him. He, however, claimed that the receipt had got misplaced. According to the petitioner, in a criminal complaint filed against respondent No.2 under Section 138 of Negotiable Instruments Act, the complainant sought comparison of the signature on the aforesaid receipt with the signature of the petitioner. That request was, however, declined by the trial court and the order of the trial court was upheld by the Court of Sessions. 4. A perusal of the sale deed executed by respondent – Smt. Neeru Seem in favour of late Shri O.P.Khanna, which is an admitted document, would show that she specifically assured the vendee that the abovementioned property under sale is free from all sorts of encumbrances, lien, liability, attachment, surety and security etc. and that there is no legal defect in the title of the vendor. Admittedly, property in question was lying mortgaged with Union Bank of India, when this sale deed was executed. Prima facie, by making the aforesaid misrepresentation in the sale deed, the vendor cheated the vendee by inducing him to part with the agreed sale consideration. If a misrepresentation was made to the vendee while executing the sale deed and the factum of the property being mortgaged with Union Bank of India was not in his knowledge as is claimed by the complainant, the amount of consideration would be immaterial. The offence of cheating would in that case be made out irrespective of whether the property was agreed to be sold for Rs.5 la