GURDEEP SINGH SUDAN Vs. STATE

JUDGEMENT

(1.) BY this petition filed under Section 482 of Code of Criminal Procedure (herein after referred to as Cr.P.C), the petitioners seek setting aside of the orders dated 30.11.2010 passed by the learned Additional Sessions Judge, Saket Court, Delhi and order dated 08.08.2011 whereby the learned ACMM, Saket Court, Delhi directed the registration of the FIR No. 152/2011 under Sections 406/420/120-B IPC at P.S. Crime Branch (EOW), South District, New Delhi.

(2.) ADDRESSING arguments on behalf of the petitioners, Mr. Ramesh Gupta, learned Senior Advocate submitted that the order passed by learned ACMM is in utter defiance of the directions given by the learned Additional Sessions Judge vide order dated 30th November 2010, whereby the learned ACMM was directed to examine the report of the Crime Branch, hear the complainant afresh and then pass a reasoned and a speaking order on the application moved by respondent No.2 under Section 156(3) of Code of Criminal Procedure Contention raised by learned Senior Counsel was that ignoring the said direction of the superior court, learned ACMM in great haste gave direction to the police to investigate the matter after registration of the FIR, after taking a view that the prima facie case of cheating is made out against the petitioners. Learned Senior Counsel further submitted that in the said impugned order, no reference is made to the reasoning given by the police in the Closure Report wherein the police took a view that there is no dishonest inducement on the part of the petitioners to entice the complainant to buy the property in question. The Closure Report also mentions that in the Sale Deed, it was specifically mentioned that Ms. Fixwell Pushincords (P) Ltd. will bear all the liabilities prior to the date of the said transaction and further it was the liability of petitioners' company to pay the 'Sales Tax Dues'. Learned Senior Counsel for the petitioners further submitted that the entire sale transaction on behalf of the petitioners' was taken care of by their attorney holder and in the GPA, as per clause 3, the attorney was entrusted the job of honouring the pending sales tax issues with various sales tax authorities. Learned Senior Advocate also submitted that the petitioners did not suppress any fact from respondent No.2, as the said clause in the GPA was well within the knowledge of respondent No.2. Learned Senior Advocate also argued that the petitioners had no knowledge about any order of attachment passed by the sales tax department as the same was never brought to their notice. Learned Senior Counsel further submitted that even in the Sale Deed dated 11.01.2005, it was clearly stipulated that the vendor shall remain responsible for the payment of any dues whatsoever as were found pending prior to the date of execution of sale deed and, therefore, at no stage petitioners had any intention to escape from the liability of the said sales tax dues. Learned senior counsel also submitted that the petitioners had already filed an appeal against the order dated 04.09.2012, passed by the Sales Tax Department and the petitioners will not shirk from their liability if ultimately, they fail to succeed in the said appeal. Learned Senior Counsel also argued that at least three separate complaints were filed by respondent No.2 with the police, and in all the three complaints closure report has already been filed, but these facts were suppressed by respondent No.2 from the court. Had all these facts been disclosed by respondent No.2, the learned ACMM, Saket Court, Delhi would not have given directions to police to register an FIR against the petitioners. In support of his contentions, the learned Senior Counsel has placed reliance on the following judgments:

(3.) LEARNED Senior Counsel for respondent No.2 further submitted that the petitioners were well aware of the said outstanding sales tax dues, the fact that was suppressed from respondent No.2 at the time of execution of the Agreement to Sell dated 30.10.2004, as well as even at time of execution of Sale Deed dated 11.01.2005. Learned Senior Counsel also submitted that neither in the Agreement to Sell, nor in the Sale Deed, any such disclosure was made with regard to the said outstanding liability of the said company towards sales tax dues or with regard to the order of attachment dated 24.12.1997, passed by the Office of Excise & Tax. Learned Senior Counsel further submitted that in fact, the petitioners had played a serious fraud by cheating respondent No.2, not only by suppressing the said vital fact but also by misrepresenting that the property in question being free from all encumbrances, claims, demands, liens, mortgages, decrees, litigations or any order of attachment whatsoever that may affect the marketability and sale of the property. Learned Senior Counsel further submitted that the order of attachment was known to the petitioners can be well exemplified from the fact that in the Power of Attorney executed by the petitioners in the name of Mr.Y.P.Sharma, the authority was conferred upon him to deal with any outstanding dues related to the company.