Anju Khanna v. State of NCT of Delhi & Ors

J U D G M E N T MANOJ KUMAR OHRI, J.

¶1The present petition has been filed under Section 397 Cr.P.C. by

the complainant assailing the order dated 22.02.2020 passed by the

learned ASJ, South East District, Saket Court, New Delhi in

Cr.No.745/2019 which was filed on behalf of the respondents no. 2 & 3.

¶2Initially, learned MM vide order dated 23.07.2019, had summoned

the accused persons (respondents no. 2 & 3 herein) for the offence

punishable under Sections 420/34 IPC. The summoning order was

challenged by the accused persons by way of a criminal revision

wherein, the learned ASJ by passing the impugned order set aside the

summoning order.

¶3Mr. Jasmeet Singh, learned counsel for the petitioner/complainant

submitted that the impugned order shows complete non-application of

mind. He submits that in present case, the petitioner and the respondents

no. 2 & 3 entered into an agreement to sell with respect to the third floor

of the property bearing no. J-7/14B, Rajouri Garden, New Delhi 110027

for a consideration of Rs.80 lacs. The complainant paid a sum of Rs. 51

lacs to the respondents no. 2 & 3. Out of Rs.51 lacs, Rs. 10 lacs were

paid by way of a cheque no. 357358 dated 05.04.2010 and the remaining

amount of Rs. 41 lacs was paid in cash in three instalments of Rs.15 lacs

on 08.05.2010, Rs.11 lacs on 29.05.2010 and Rs.15 lacs on 23.08.2010.

So far as the two payments of Rs.15 lacs are concerned, the respondents

no. 2 & 3 also issued receipt and promissory note against the same.

However, the respondents no. 2 & 3 did not issue any receipt for the

payment of Rs. 11 lacs.

¶4Learned counsel for the petitioner further submits that the trial

court failed to appreciate that the ingredients of the offence punishable

under Section 420 IPC were clearly spelt out in the complaint. The order

on summoning was set aside only on the ground that in the

pre-summoning evidence, the petitioner failed to state that the accused

had a dishonest intention from the beginning. He further contended that a

combined reading of the complaint as well as the pre-summoning

evidence would show that the necessary ingredients of the offence were

already stated and were available on the record in the complaint. In

support of his submission, learned counsel has placed reliance on the

decision in Rajesh Bajaj v. State NCT of Delhi & Ors. reported as (1999)

3 SCC 259 .

¶5Per Contra, learned counsel for the respondents no. 2 & 3 has

supported the impugned order. It was submitted that the story as put

forward in the complaint is completely unbelievable, as where an

agreement to sell is executed, there is no need to execute a promissory

note. It was also stated that the complainant has failed to explain the fact

that when the property was registered in the name of the first accused

( Sudhir Kumar Chawla ), why cheque of Rs.10 lacs was issued in the

name of the co-accused ( Sunita Chawla , wife of Sudhir Kumar Chawla ) .

It was also submitted that qua the dispute, the petitioner has also filed

civil proceedings in the form of suit for specific performance and

permanent injunction by way of CS(OS)No.575/2016 and further, in the

aforesaid suit also, it has not been pleaded that the respondents no. 2 & 3

had any dishonest intention from the beginning. Lastly, it was submitted

that while the alleged payments have been made in the year 2010, the

present complaint came to be filed only in the year 2015 i.e., after a

period of five years. In support of his submission, learned counsel has

placed reliance on the decision in Sushil Sethi & Anr. v. State of

Arunachal Pradesh & Ors. reported as (2020) 3 SCC 240 .

¶6I have heard learned counsels for the parties have also gone

through the case records.

¶7As per the facts borne out from the records, the complainant, a

lady, is stated to be aged about 70 years. The respondents no. 2 and 3 are

husband and wife. The parties were known to each other. As per the

complaint, in March, 2010, respondents no. 2 and 3 approached the

petitioner and offered to sell the third floor of their house which was

under construction on the plot bearing no. J-7/14B, Rajouri Garden, New

Delhi. Initially, the said offer was declined however, subsequently, on

repeated persuasion, the petitioner agreed to purchase the flat at a price

of Rs.80 lacs by way of an oral agreement to sell. It has been stated that

the initial amount of Rs.10 lacs was paid by cheque bearing no. 357358

in the name of Sunita Chawla as earnest money for which TDS

certificates were also issued by the respondent no. 3. Later, on

08.05.2010, another payment of Rs.15 lacs was made in cash against

which a receipt and promissory note was also executed by respondent

no.2. On 29.05.2010, a sum of Rs.11 lacs was paid in cash however,

admittedly, no receipt/promissory note was issued with respect to this

payment. Lastly, on 23.08.2010, a sum of Rs.15 lacs was paid in cash

against which a receipt and promissory note was executed by the

respondent no.2.

¶8Initially, the complainant had filed a complaint on 04.03.2013 with

the ACP, Lajpat Nagar which was followed by another complaint dated

12.03.2015 addressed to the DCP, South East District, however when the

same were not answered, the petitioner approached the Court of learned

CMM in the year 2015.

¶9The summoning order was issued against respondent nos. 2 & 3

which was set aside by the learned ASJ on the ground that the

pre-summoning evidence of the witnesses does not show that both the

accused persons had any dishonest intention from the beginning, the

necessary ingredient to constitute the offence punishable under Section

420 IPC. In this regard, I deem it appropriate to reproduce the relevant

paras of complaint filed before the learned CMM:-

"5. That from the above it is clear that the accused

persons had a dishonest intention from day one and they

never intended to sell the 3rd Floor to the complainant.

The Accused persons inspite of taking Rs 51,00,000/-

have, neither cared to transfer the flat to the Complainant

nor returned her hard earned money, which Complainant

paid as part of the consideration for the 3rd Floor flat.

Complainant alongwith her husband started pressing

them to transfer the flat in Complainant's name but all in

vain. Had the complainant know the real intentions of the

accused persons, the complainant and her husband would

have never parted with their hard earned money."

¶10To prove her complaint, the complainant examined herself as CW1

along with four other witnesses. Mr. Pankaj Kumar Jaiswal , a

handwriting expert was examined as CW2. He exhibited his report

wherein he had opined that the promissory notes and receipts were

signed by one and the same person. Mr. Anil Dhawan was examined as

CW3. He stated that he was the nephew of the petitioner and had visited

her house on 07.05.2010 and was also present on 08.05.2010 when

respondent no.2 visited the petitioner's house and exchange of Rs.15 lacs

in cash had taken place in his presence. He also signed the promissory

note and the receipt as a witness. Mr. Dipak Khanna, the husband of the

petitioner, was examined as CW4. He supported the complaint in

entirety. Mr. Chandan Lal Verma was examined as CW5. He stated that

after hearing the CD recording of the conversation (stated to be of the

respondent no.2), he prepared the transcript wherein receipt of Rs. 51

lacs was admitted.

¶11Coming to the issue in question, the Supreme Court in Rajesh

Bajaj v. State NCT of Delhi & Ors. (Supra), it was held as follows:- "9. It is not necessary that a complainant should verbatim

reproduce in the body of his complaint all the ingredients of the

offence he is alleging. Nor is it necessary that the complainant

should state in so many words that the intention of the accused

was dishonest or fraudulent. Splitting up of the definition into

different components of the offence to make a meticulous

scrutiny, whether all the ingredients have been precisely spelled

out in the complaint, is not the need at this stage. If factual

foundation for the offence has been laid in the complaint the

court should not hasten to quash criminal proceedings during

investigation stage merely on the premise that one or two

ingredients have not been stated with details. For quashing an

FIR (a step which is permitted only in extremely rare cases) the

information in the complaint must be so bereft of even the basic

facts which are absolutely necessary for making out the offence.

In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 :

1992 SCC (Cri) 426] this Court laid down the premise on which

the FIR can be quashed in rare cases. The following

observations made in the aforesaid decisions are a sound

reminder:

"103. We also give a note of caution to the effect that

the power of quashing a criminal proceeding should

be exercised very sparingly and with circumspection

and that too in the rarest of rare cases; that the court

will not be justified in embarking upon an enquiry as

to the reliability or genuineness or otherwise of the

allegations made in the FIR or the complaint and that

the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the court to act according to

its whim or caprice."

¶10It may be that the facts narrated in the present complaint

would as well reveal a commercial transaction or money

transaction. But that is hardly a reason for holding that the

offence of cheating would elude from such a transaction. In

fact, many a cheatings were committed in the course of

commercial and also money transactions. One of the

illustrations set out under Section 415 of the Penal Code, 1860

[Illustration f] is worthy of notice now:

"(f) A intentionally deceives Z into a belief that A means to

repay any money that Z may lend to him and thereby dishonestly

induces Z to lend him money, A not intending to repay it. A

cheats."

¶11The crux of the postulate is the intention of the person who

induces the victim of his representation and not the nature of the

transaction which would become decisive in discerning whether

there was commission of offence or not. The complainant has

stated in the body of the complaint that he was induced to

believe that the respondent would honour payment on receipt of

invoices, and that the complainant realised later that the

intentions of the respondent were not clear. He also mentioned

that the respondent after receiving the goods had sold them to

others and still he did not pay the money. Such averments would

prima facie make out a case for investigation by the authorities.

¶12The High Court seems to have adopted a strictly

hypertechnical approach and sieved the complaint through a

colander of finest gauzes for testing the ingredients under

Section 415 IPC. Such an endeavour may be justified during

trial, but certainly not during the stage of investigation. At any

rate, it is too premature a stage for the High Court to step in

and stall the investigation by declaring that it is a commercial

transaction simpliciter wherein no semblance of criminal

offence is involved."

¶12It is no longer res integra that civil proceedings can go side by

side the criminal proceedings. [Refer: K. Jagadish v . Udaya Kumar G.S.

& Ors. reported as AIR 2020 SC 936 ]

¶13So far as reliance by learned counsel for the respondents on the

decision in Sushil Sethi (Supra) is concerned, the same is not applicable

in the facts of the present case. It is pertinent to note that the captioned

case relates to a State case wherein, in the complaint/FIR, neither any

specific allegations in terms of Section 420 IPC were made nor the

company was made an accused.

¶14From a combined reading of the complaint as well as the

pre-summoning evidence, it is evident that the necessary averments in

terms of offence punishable under Section 420 IPC are available on the

record in as much as the petitioner clearly and categorically stated in the

complaint that the respondents no. 2 & 3 had a dishonest intention from

day one and never intended to sell the 3 rd floor of the property in question

inspite of payment of Rs.51 lacs by the petitioner.

¶15Learned counsel for the respondents has contended that the

petitioner had failed to explain as to why she made payment in the name

of respondent no.3 when the property is in the name of respondent no.2.

In this regard, it is seen that both respondents no. 2 & 3 have executed

the documents. While the TDS certificates (for two different years) with

respect to cheques were issued by respondent no.3, the receipts and

promissory notes were signed by respondent no.2. The receipts and

promissory notes clearly state that the same were received "as part

consideration for 3 rd floor, J-7/14B, Rajouri Garden, New Delhi". The

petitioner has examined the handwriting expert to prove the aforesaid

receipts and the promissory notes. Furthermore, Mr. Dipak Khanna

(CW-4) had witnessed the transactions and supported the averments in

the complaint. Mr. Anil Dhawan (CW-3) also supported the averments

with respect to transaction of Rs. 15 lacs conducted on 08.05.2010.

¶16Keeping in view the facts and circumstances of the case, the

present petition is allowed. The impugned order passed by learned ASJ is

set aside. The matter is directed to be listed before the concerned Trial

Court on 11.12.2020.

¶17The petition is disposed of in the above terms along with the

pending application.

¶18A copy of this judgment be communicated electronically to the

concerned trial court.

( MANOJ KUMAR OHRI) JUDGE

DECEMBER 01, 2020 na

* IN THE HIGH COURT OF DELHI AT NEW DELHI CRL. REV. P. 265/2020 and CRL. M.A. 10737/2020 (stay) Reserved on : 25.11.2020 Date of Decision : 01.12.2020 IN THE MATTER OF: ANJU KHANNA ..... Petitioner Through: Mr. Jasmeet Singh, Advocate Versus STATE OF NCT OF DELHI & ORS. ..... Respondents Through: Dr. M. P. Singh, APP for State Mr. Vijay Pal Dalmia, Advocate for R2 & R3 CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI (VIA VIDEO CONFERENCING)