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H.K.S. Malik Vs. S.M. Gupta Construction Co. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 1300 of 1984
Judge
Reported in1985(9)DRJ224
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482; Indian Penal Code (IPC), 1860 - Sections 406
AppellantH.K.S. Malik
RespondentS.M. Gupta Construction Co.
Advocates: O.N. Vohra, Adv
Cases ReferredKhacheru Singh v. State of U.P.
Excerpt:
.....at large for booking shops/offices in the proposed building, but he could not do that as the accused persons failed to supply a copy of the alleged sanctioned site plan of the proposed air-conditioned market despite the complainant's repeated requests in that behalf. this judgment clearly shows that an order of summoning a parson as an accused in a case is normally not to be interfered with by the high court in exercise of its inherent jurisdiction unless there are very compelling reasons to do so, as already indicated by me above. public witness 1/a, the accused persons clearly stated that the plot in question was a commercial plot. 406 indian penal code and that the petitioner having been summoned f)r the offence punishable under section 406 ipc also the whole order summoning the..........accused no. 1, the present petitioner, had represented to the complainant that the three accused persons were the joint owners of plot no. c-5.rana pratap bagh, delhi, and that it was a commercial plot. they proposed to build an air-conditioned commercial complex consisting of a basement,ground floor, first floor and a mezzanine floor. they had got a sanctioned plan for the same and they would complete construction on the plot within four months. on the said representation to the complainant an agreement in writing was entered into between the parties on 27/09/1982. the complainant undertook to book shops and offices for sale in the basement,the ground floor and the first floor of the building at the minimum rates as specified in the agreement. the further allegations of the.....
Judgment:

H.C. Goel, J.

(1) Shri Sagar Mal Gupta proprietor M/s. S.M. Gupta Construction Company filed a complaint against Shri H.K.S. Malik and two others accused under Sections 406/420/34 Indian Penal Code It was alleged that Shri H.K.S.Malik, accused No. 1, the present petitioner, had represented to the complainant that the three accused persons were the joint owners of plot No. C-5.Rana Pratap Bagh, Delhi, and that it was a commercial plot. They proposed to build an air-conditioned commercial complex consisting of a basement,ground floor, first floor and a mezzanine floor. They had got a sanctioned plan for the same and they would complete construction on the plot within four months. On the said representation to the complainant an agreement in writing was entered into between the parties on 27/09/1982. The complainant undertook to book shops and offices for sale in the basement,the ground floor and the first floor of the building at the minimum rates as specified in the agreement. The further allegations of the complainant are that he incurred expenditure on giving publicity by advertisement in Hindi and English dailies for sale. On the demand of the accused persons the complainant paid a sum of Rs. 60,000.00 by a demand draft dated 24/09/1982 to the firm M/s.Ch, Harkishan Lal Malik & Company, a partnership firm as constituted by the three accused. The complainant again paid a sum of Rs. 40.000.00 by demand draft dated 27/09/1982to the accused. According to the complainant the accused had represented to him that the plot in question was a commercial plot and they had an approved site plan duly sanctioned for the construction of an air-conditioned commercial complex in the lay-out plan of the Municipal Corporation ofDelhi and that the construction of the building was in progrees. The complainant received a number of enquiries from public at large for booking shops/offices in the proposed building, but he could not do that as the accused persons failed to supply a copy of the alleged sanctioned site plan of the proposed air-conditioned market despite the complainant's repeated requests in that behalf. The complainant felt suspicious about the representation as made by the accused persons. On enquiries from the Delhi Municipal Corporation he found that the accused had only applied for a sanction of the plan which had not been sanctioned till then and further that the plot in question was a residential-cum-commercial plot and shops were permissible to be built only on the ground floor of the plot and the basement could be Used only for storage purposes and the entire first floor was meant for residential purposes and there was no application for a mezzanine floor or for storage purples. According to the complainant the accused persons had thus cheated him of a sum of Rs, one lac by the said false representations besides the expenditure incurred by him on publicity. The complainant gave his own statement in the preliminary enquiry held by the learned Magistrate and proved on record the original agreementEx.PW1/A as entered into between the parties. Shri D.R.Jain, Metropolitan Magistrate by his impugned order dated 6/09/1983 held that there was sufficient ground to proceed against all the three accused persons under Sees. 406/420/34 Indian Penal Code All the three accused were accordingly summoned by him. The accused persons duly put in appearance before the learned Magistrate on 3/10/1983 and joined the enquiry proceedings being conducted by the learned Magistrate. In the pre-charge evidence the complainant gave his further statement and examined twoother witnesses, one of whom was duly cross-examined on behalf of the accused persons. Shri H K S. Malik, one of the three accused persons thereafter filed this petition under Section 482 Cr. P C. before this Court on 5/12/1984 praying that the order of summoning dated 6/09/1983 be quashed and the proceedings against him be ordered to be dropped.

(2) I have heard the petitioner in person who is an advocate byprofession, and Mr. ON. Vohra, learned counsel for the respondents It is a settled law that the High Court in the exercise of its inherent powers Under Section 482 Criminal Procedure Code . shall not ordinarily interfere in interlocutoryorders, pure and simple, and particularly orders at the preliminary stage of'an enquiry or a trial The High court may interfere in the case of an interlocutory and preliminary order only if glaring injustice stares the case in theface. Such case? would be few and far between. The High Court must exercise its inherent powers very sparingly. So was observed by the Supreme Court in the ca e Raj Kapoor and others v. State (Delhi Administration) and others, : 1980CriLJ202 . It was further observed that the one situation in which it may call for interference would be when a criminal proceeding is initiated illegally, vexatiously or as being without jurisdiction.The Supreme Court in a recent case Khacheru Singh v. State of U.P. andothers. : 1982CriLJ629 granted Special Leave Petition against the order of Additional Sessions Judge, Meerut which was affirmed by the HighCourt of Allahabad quashing the order of summoning of an accused person by a Judicial Magistrate and restored the order of the Magistrate summoning the accused persons. The Supreme Court in its short order observed that all that the Magistrate had done was to issue a summons to one of the respo.idents and if, eventually, the learned Magistrate comes to the conclusion that no offence was made out against the respondent it will be open to him to discharge or acquit him, as the case may be. It was further observed that it was difficult to appreciate why the order issuing 'summons'to the accused should be quashed. This judgment clearly shows that an order of summoning a parson as an accused in a case is normally not to be interfered with by the High Court in exercise of its inherent jurisdiction unless there are very compelling reasons to do so, as already indicated by me above. Keeping this legal position in view I see no ground for interference in the impugned order of the learned Magistrate. The complainant made a detailed statement on oath before the learned Magistrate reiterating is aforesaid allegations in the complaint. The agreement Ex. Public Witness 1/Astates that the accused-builders had represented to the complainant that the plot was a commercial plot. It further recites that a sum of Rs. one lack in all was duly paid by the complainant to the accused persons by means of the said two drafts. The complainant in his statement as Public Witness stated that later he found that accused No. 1 had filed an affidavit dated 2/03/1983 before the Municipal Corporation of Delhi wherein he himself stated that one property dealer had contacted them for letting out shops on the ground floor of the plot; that a property broker has released an advertisement without their consent showing the building as commercial complex which is originally commercial-cum-residential in the landuse. The complainant further stared in his statement as Public Witness 1 that on enquiries from the Municipal authorities he found that the plot was not recorded in the municipal records as meant entirely for commercial purposes.In the agreement in question, a copy of which is Ex. Public Witness 1/A, the accused persons clearly stated that the plot in question was a commercial plot. Thus the evidence as adduced by the petitioner also shows that the plot was infact commercial-cum-residential and not a wholly commercial plot. There is also the evidence of the complainant that the accused had represented to him that they had an approved site plan duly sanctioned for air-conditioned commercial complex in the lay out plan of the Municipal Corporation of Delhi relating to the plot in question, which representation of the accused was found to be incorrect. There was thus sufficient material on the basis of which the learned Magistrate could form a i opinion that there was aground for summoning the petitioner as an accused for the offence punishable under Sec 420 Indian Penal Code It was submitted by the p;tition'r that the complainant did not adduce any evidence nor was there any allegation of the petitioner disclosing an offence punishable under See. 406 Indian Penal Code and that the petitioner having been summoned f)r the offence punishable under Section 406 IPC also the whole order summoning the petitioner for the offence under Section 420/34 Indian Penal Code was bad in law. I am unable to see any merit in thissubmission. The mere fact that no case for summoning the petitioner for the offence under Section 406/34 Indian Penal Code was made out does not mean that the order of the learned Magistrate summoning the petitioner for the offence under Section 420/34 Indian Penal Code also becomes bad thereby. The petitioner also submitted that as per the bye-laws of the Municipal Corporation of.Delhimore than 66% of the total built-up area of a building was permissible to be used for commercial purpose, then such a building is considered as a commercial building. It was submitted that more than 66% or the area to be constructed on the plot could be used for commercial purposes and a small portion of the constructed area only was bound to be used for residential purposes as the plot was commercial-cum-residential plot, it was under these circumstances that the petitioner's firm had represented the plot to bea commercial plot, meaning thereby that there was no dishonest intention on their part in describing the plot as a commercial plot. The petitioner was unable to refer me to any bye-law in the bye-laws of the Municipal Corporation of Delhi in that regard. Even otherwise if the plot was a commercial-cum-residential and not wholly commercial the complainant could be so told and ordinarily speaking the same should have been described as a commercial-cum-residential plot in the agreement and as the plot was represented to be a commercial plot it could certainly lead the complainant to believe that the plot in question was a wholly commercial plot.There is no ground for interference. The petition is accordingly dismissed. The parties are directed to appear before the trial court on 22/08/1985.


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