* IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON : January 21 , 2013 DECIDED ON : February21, 2013 + CRL.M.C. 163/2012 & CRL.M.A.613/2012 MUKESH GUPTA & ORS Through : ..... Petitioners Mr.Fanish K.Jain, Advocate VERSUS DALJEET SINGH UBEROI Through : ..... Respondent Mr.Azhar Dayan, Advocate with Ms.Sanjita & Ms.Adity Marvah, Advocates CORAM: MR. JUSTICE S.P.GARG S.P.GARG, J.
1. The present petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of the order dated 04.09.2010 by which they were summoned by the learned Metropolitan Magistrate in complaint case No.1797/01/07 for committing offence under Section 447 IPC.
2. I have heard the learned counsel for the parties and have examined the record. It reveals that the respondent filed complaint case against the petitioners for committing offences under Sections 420/468/470/471/420B read with Section 378/447/446 IPC. The respondent alleged that he and his two brothers applied for an industrial plot with Delhi State Industrial Development Corporation (for short DSIDC) in 1976-1977. He with his brothers R.P.Uberoi and H.S.Uberoi formed a partnership in the name and style of M/s Roop Pal & Brothers. The industrial plot was allotted to M/s Roop Pal and Brothers in 1990. Construction on the plot could not be carried out due to non-availability of water and electricity. Huge amount was spent on raising construction in 1994-95. The complainant further averred that he used to visit the plot earlier but due to some family problems and health reasons, he was unable to regularly visit it. His two brothers used to take care of the plot. He shifted his machinery and equipment from his factory at Rajouri Garden to the industrial plot in question. In 2000, when he visited the plot, he found that some persons were running the factory. They had illegally occupied it. False and fabricated partnership deed was executed by them in the year 1992-93 and they took illegal possession of the plot. The original partnership in the name and style M/s Roop Pal & Brothers was never dissolved. Several complaints were made against the accused/petitioners but in-vain. The Complainant appeared as CW-1 and examined CW-2- R.D.Sharma from DSIDC in his pre-summary evidence. Vide order dated 04.09.2010, the learned Magistrate found that the petitioners had prima facie committed the offence under Section 447 IPC and summoned them.
3. Contention of the learned counsel for the petitioners is that the Industrial plot in question was sold by M/s. Roop Pal and Brothers in 1996 to Ramesh Chander and necessary documents were executed in his favour on 11.03.1996 by Roop Pal Uberoi and Harpal Singh Uberoi. The partnership firm M/s Roop Pal and Brothers consisted only of Roop Pal Uberoi and Harpal Singh Uberoi. An information was given to DSIDC on 28.01.1992. Plot in question changed hands thereafter to different purchasers. The petitioners purchased the plot in question from Mrs.Rajni Ghai who executed necessary documents in their favour. They further sold the said property to Raj Kumar Garg on 28.12.2007 and executed various documents in his favour. Vacant possession of the premises in question was handed over to him. Raj Kumar Garg is in possession of the premises/plot since 21.11.2007.
4. Contention of the counsel for the respondent is that all these disputed facts cannot be taken into consideration in the proceedings under Section 482 Cr.P.C. The matter requires investigation and these facts can be agitated by leading evidence before the learned Metropolitan Magistrate.
5. It is not disputed that the plot in question was allotted in the name of M/s Roop Pal and Brothers which formed a partnership firm consisting of the petitioner, his brothers Roop Pal Uberoi and Harpal Singh Uberoi. However, subsequently, constitution of the partnership firm changed and M/s Roop Pal and Brothers consisted only of Roop Pal Uberoi and Harpal Singh Uberoi. The petitioners have filed on record Form-A, Register of Firm maintained under Section 9 of the Indian Partnership Act where name of the partners have been shown as Roop Pal Uberoi and Harpal Singh Uberoi. Date of registration is 07.02.1992. The respondent did not place on record any document to show that he continued to be the partner in the said firm. In his statement as CW-1 recorded on 04.08.2008, he admitted that the Partnership-Deed showed only two partners. Surprisingly, the respondent did not implead his brothers R.P.Uberoi and H.S.Uberoi as accused. He did not lodge any complaint against them for disposing of the plot in question to the buyers without his consent. The petitioners have placed on record number of documents showing that the plot in question was sold by the two brothers and they executed various documents. The respondent has not denied signatures of his brothers on these documents. The respondent did not produce any document to show if he ever remained in possession of the plot in question. Roop Pal Uberoi and Harpal Singh Uberoi, being partners, had equal authority to deal with the plot in question. The respondent did not challenge change in the constitution of firm M/s Roop Pal & Brothers any time. He did not ask his brothers as to how and under what circumstances without any authority, they had disposed of the plot in question to the buyers for valuable consideration. The respondents also failed to offer any plausible explanation for the delay in filing the complaint case. Nothing is on record to show that on the date when the complaint was filed, the petitioners were in physical possession of the plot in question. They have specifically stated that the plot in question is in possession of Raj Kumar Garg since 28.12.2007.
6. Considering the above facts and circumstances of the case, I am of the view that the complaint case filed by the respondent against the petitioners did not disclose commission of offence under Section 447 IPC. The entire facts in the complaint case are incomplete and hazy. No worthwhile evidence has been collected and produced before the court. There was no sufficient material before the court to proceed against the petitioners for committing offence under Section 447 IPC. The proceedings initiated by the respondent are abuse of the process of the court and liable to be quashed.
7. The petition is allowed and all the proceedings in complaint case No.1797/01/07 are quashed qua the petitioners. Crl.M.A.613/2012 also stands disposed of. (S.P.GARG) JUDGE February 21, 2013 sa