GOKUL KUMAR & ANR. vs STATE OF NCT OF DELHI & ANR.

$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th October, 2023.

+ CRL.M.C. 7290/2023 & CRL.M.A. 27214/2023 (stay), CRL.M.A. 27215/2023 (Exemption)

GOKUL KUMAR & ANR. ….. Petitioners
Through: Mr. Arvind Kr. Gupta and
Mr. Shivank S. Singh, Advocates.

versus

STATE OF NCT OF DELHI & ANR. ….. Respondents
Through: Ms. Shubhi Gupta, APP for State.
SI Mohit Malik, PS EOW, Mandir Marg.
Mr. Rajiv Ranjan, Mr. Awnish Kumar, Mr. Jitender Kumar Singh and Mr. Kundan Kumar Mishra, Advocates for R-2.

CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL
JUDGMENT

AMIT BANSAL, J. (Oral)

1. The present petition has been filed impugning the order dated 9th June, 2023 passed by the learned ASJ, whereby the revision petition against the summoning order dated 2nd May, 2018 passed by learned MM, has been dismissed.
2. The brief facts of the case as per the complaint are stated as under:
2.1 The respondent no.2 along with other co-investors wanted to invest money in the real estate sector in India. On understanding the intentions of respondent no.2 for making investments, the petitioner no.1 approached his friend, Mr. Jasjit Singh Dhami, and induced him along with the respondent no.2 to entrust petitioner no.1 with the task of development of a real estate project in Goa.
2.2 The petitioner no.1 assured that he will use his company, the petitioner no.2, for completion of the project in a time bound manner and will also issue share holdings against each of the investments through his company in favour of the respondent no.2.
2.3 After being influenced by the representations made by petitioner no.l, Mr. Jasjit Singh Dhami, with the consent of the respondent no.2 decided to proceed with the project in goa.
2.4 It was agreed between them that the petitioner no.l would buy a plot for the said project for over Rs. 1 crore and would charge them Rs. 20,000/- per square meter for land cost, building cost and his profit. It was also agreed that petitioner no.1 would build 104 apartments/studios in the plot. In pursuance to the same, the respondent no.2 transferred a sum of GBP 2,40,000 equivalent to Rs.1.91 crores to the account of the petitioner no.2 company.
2.5 Subsequently, the petitioner no.1 coined a new proposal of building a hotel at the same price on the said plot and stated that he would become 50% partner in the entire project and also assured to inject 50% of the funds. The respondent no.2 agreed to build a hotel on a 50:50 basis.
2.6 The petitioner no.1 started demanding more money from the respondent no.2 to finish project as it was costing around 10 crores. However, he never furnished any books of accounts and disclosed expenditures.
2.7 In 2009, the petitioner no.1 took loan of Rs.9 crore 45 lakhs for completing the aforesaid project and also pocketed the huge amount collected in the name of building the hotel. In 2011, when the project was completed, the petitioner no.1 again asked the respondent no.2 to deposit Rs.5-7 lakhs per month till the hotel starts running.
2.8 The petitioner no.1 kept the respondent no.2 in dark regarding the functioning of the hotel and also did not transfer any shares in the petitioner no.2 company in favour of the respondent no.2.
2.9 Later on, a surveyor, Mr. Loyd Mercado, was engaged by the respondent no.2, who informed that the costing of the hotel came to be around 13 crores in 2013. This is when the respondent no.2 realized that he has been cheated by the petitioner no.1.
3. Accordingly, a complaint under Section 156(3) of the Code of Criminal Procedure, 1973 read with Section 200 of the CrPC was filed by the respondent before Trial Court on 4th July, 2015 seeking registration of FIR against the petitioners for the offences under Sections 420/409/467/468/471/120B of the IPC.
4. Cognizance of the offences as stated in the complaint was taken by the learned Metropolitan Magistrate (MM). After conclusions of the pre-summoning evidence, the learned MM held that a prima facie case for summoning the petitioners was made out, hence, the petitioners were summoned vide order dated 2nd May, 2018. Thereafter, the revision petition was filed by the petitioners against the aforesaid summoning order, which was dismissed vide order dated 9th June, 2023 passed by learned ASJ.
5. Counsel for the petitioners submits that the petitioners did not know respondent no.2, being the complaint herein, and did not have any dealing with the respondent no.2. The entire dealing of the petitioners took place with one Mr. Jasjit Singh Dhami. It is further submitted that the respondent no.2 has already filed a civil suit as well as a criminal complaint, which are pending before the competent courts in Goa. Therefore, the present complaint is not maintainable.
6. Per contra, the counsel for the respondent no.2 submits that the payments were made by the respondent no.2 to the account of the petitioner no.2 on three separate occasions. Despite that, the shares were never issued in favour of the respondent no.2 in respect of the petitioner no.2 company. In this regard, the attention of the Court has been drawn to the pre-summoning evidence of the respondent no.2.
7. I have heard the counsels for the parties and perused the material placed on record.
8. As regards the maintainability of the present complaint case against the petitioners, merely because a criminal complaint has been filed by Mr. Jasjit Singh Dhami against the petitioners in Goa, would not imply that the respondent no.2 cannot file the present criminal complaint. The respondent no.2 has a separate cause of action against the petitioner. Further, filing of the civil suit by the respondent no.2 along with Mr. Jasjit Singh Dhami in Goa would also not bar the respondent no.2 from filing the present complaint as per law. This aspect has also been dealt with by the ASJ in paragraph 12 of the impugned order, which is set out below:
“ One of the grounds taken by Ld. Counsel for revisionists for assailing impugned order is that a criminal complaint as well as a civil suit in the facts at hand is already pending before Ld. Court concerned in Goa so the complaint before Ld. Court in Delhi was not maintainable and that same has been so filed just to harass the revisionists. The factum of pendency of criminal complaint and civil suit before Ld. Courts in Goa has not been disputed by the respondent however, it is an admitted fact that those proceedings have been initiated at the instance of Mr. Jasjit Singh Dhami and not at the instance of respondent herein. It is true that the grievances of both of them against the revisionists are somewhat similar, however, the fact remains that the proceedings in Goa and in Delhi have been initiated at the instance of different individuals. It appears that there is no bar in two individuals availing their own legal remedies against a person as per law in similar facts. Ld. Counsel for the revisionists has also failed to bring any such provision to the notice of this Court. The revisionists might be finding it difficult to defend themselves at different forums in two far away places however, that alone cannot be a ground to interfere with the course of justice.”

9. As regards the submission of the petitioners that no dealing took place with the respondent no.2, it is clearly recorded in the summoning order dated 2nd May, 2018 passed by the MM that there was sufficient evidence to show that the petitioners have induced the respondent no.2 to transfer a sum of approximately 1.91 crores. The relevant portion of the summoning order is set out below:
“15. From depositions of witnesses examined by complainant and that of complainant himself there is sufficient evidence against proposed accused no.1 Gokul Kumar and proposed accused no.2 M/s Nirvana Nest Buildcon Pvt. Ltd. of inducing the complainant to transfer Rs. 1.91 crore in the account of proposed accused no.1 Gokul Kumar. The said money has been dishonestly misappropriated by proposed accused no.1 for his own use and has thus caused wrongful loss to the complainant. Proposed accused no.1 has in the said process forged and fabricated various documents to manipulate the accounts. The amount received from the complainant has not been shown in the balance sheets.

16. Hence, prima facie offences u/sec 420/ 403/ 468/ 471 IPC have been committed by accused persons. Accused persons namely Gokul Kumar and M/s. Nirvana Buildcon Pvt. Ltd. are accordingly ordered to be summoned for the said offences.”

10. Further, the Sessions Court has also considered the aforesaid submission made by the petitioners while passing the impugned order dated 9th June, 2023. The relevant paragraph of the impugned order is set out below:
“13.Another ground taken by Ld. Counsel for revisionists is that the entire payment was received by them from Mr. Jasjit Singh Dhami and the respondent was not even known to them, so he cannot have any grievance against them. The respondent has vehemently contested this submission. In his testimony before Ld. Trial Court, he has deposed that he alongwith Mr. Jasjit Singh Dhami had met respondent no.1 in Goa between 01.08.2007 to 05.08.2007 and in between 05.12.2007 to 08.12.2007. As per him, he made investment amounting to GBP 240,000 (INR 1,91,00,700/-) which was transferred from his bank account in London and West Yorkshire to the bank account of respondent no.2 in India at Delhi and Goa. The payment to the tune of GBP 200,000 so made was proved by way of testimony of CW- 5, Mr. Koushik Goswami, Assistant Manager, Standard Chartered Bank and remaining payment of GBP 40,000 was proved by way of testimony of Mr. V.D. Sharma, Senior Officer from ICICI Bank, Connaught Place, Delhi. So, the submissions made in this regard on behalf of revisionists are not supported from record.”

11. A perusal of the impugned order makes it clear that during the pre-summoning evidence, the respondent no.2 had furnished statements of his bank account showing that a sum of GBP 2,40,000 (INR 1.91 crores) was transferred from the account of the respondent no.2 to the account of the petitioner no.2 company for the issuance of shares in their name. Further, e-mail communications made between the respondent no.2 and the petitioner no.1 were also examined during pre-summoning evidence. Therefore, in my considered view, the Sessions Court has passed a well-reasoned order while affirming the order passed by the learned MM.
12. Further, a second revision cannot be filed before the High Court in terms of Section 397(3) of the CrPC. The statutory bar of Section 397(3) of the CrPC cannot be overcome by invoking jurisdiction of this Court for exercise of its inherent powers under Section 482 of the CrPC. Reference in this regard may be made to the judgment passed by the Supreme Court in Rajan Kumar Manchanda v. State of Karnataka¸1990 Supreme Court Cases 132.
13. In any event, when two competent courts below have given concurrent findings after application of judicial mind, the scope of interference by this Court to exercise inherent powers under Section 482 of the CrPC is limited. The petitioner has the burden to prove that the findings of the two competent courts below are contrary to law and suffers with infirmity. In the present case, the petitioners have failed to make out any grounds for interference by this Court.
14. Accordingly, the petition is dismissed.
15. All pending applications stand disposed of.

AMIT BANSAL, J.
OCTOBER 12, 2023
at

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