RAM CHANDER Vs. R K KHATTAR

JUDGEMENT

(1.) The issues sought to be raised in all these petitions are same and, therefore, the same are heard and decided by this common order.

(2.) M/s. Ashoka Land and Finance Corporation, a partnership firm, (hereinafter referred to as 'the firm'), developed a colony with the name 'Ashoka Enclave' in Gurgaon (now vested in Faridabad). It carved out certain plots and offered it to general public for sale. One Shri Baldev Lal Khattar booked a plot with the said firm on 9.4.1963 and the total consideration was fixed at Rs.5,000/-. He deposited Rs.1,250/- at the time of booking and later on paid the remaining installments as well. Shri Baldev Lal Khattar died on 29.9.1996. After his death, his son Mr.R.K. Khattar (hereinafter referred to as 'the complainant') approached the firm and its partners for allotment of plot but no heed was paid. The complainant, therefore, filed a complaint before the learned Magistrate under Section 200 of the Code of Criminal Procedure (for short, 'Cr.P.C.') alleging therein that he was duped by the accused persons. On examination of the complainant, the learned Magistrate took cognizance of the offence under Section 420 of the Indian Penal Code (IPC) vide order dated 12.9.2000 and issued process against the three accused persons, namely Mr. Kulbhushan Sharma, Mr. Gajinder Kumar Jain and Mr. Ramchander. The aforesaid three accused persons appeared before the learned Magistrate and made separate applications for their discharge. These applications were allowed vide order dated 22.9.2004 and the learned MM discharged all the three persons. The complainant filed Criminal Revision No. 102/2004 against the aforesaid three accused persons and vide judgment and order dated 13.7.2005, the learned ASJ has set aside the order of the Magistrate. While allowing the revision petition, the learned ASJ has referred to the judgment of the Supreme Court in the case of Adalat Prasad v. Roop Lal Jindal and Ors., (2004) 7 SCC 338 as per which the Magistrate has no power to review its order after taking cognizance of the offence and issuance of the process. There cannot be any quarrel about the order passed by the learned ASJ and, therefore, the order of the learned MM discharging the three accused persons was rightly passed. However, since in Adalat Prasad (supra), the Supreme Court has held that the remedy lies in invoking Section 482 Cr.P.C., petitions are filed by Mr. Ram Chander, s/o. Raghu Nath (accused No.3) and Mr. Gajinder Kumar Jain (accused No.2) challenging the summoning orders dated 12.9.2000 passed by the learned MM.

(3.) As mentioned above, plot was booked by the father of the complainant in the year 1963 and he made payments towards the said plot. It was booked with the firm. According to the averments made in the plaint, total consideration was Rs.5,000/- for 200 sq. yds. A sum of Rs.1,250/-, i.e. 25% of the amount, was paid at the time of booking the plot on 9.4.1963; balance amount was sent to M/s. Greater Delhi Planners, in view of the fact that vide letter dated 29.6.1963, father of the complainant was intimated that the balance payment is to be made to M/s. Greater Delhi Planners. Till his death on 29.9.1996, father of the complainant had not taken any legal steps against the accused persons. In the complaint, the complainant has mentioned that before his death, his father had written letter dated 3.12.1991 to M/s.Greater Delhi Planners to know the exact position of the site, since he wanted to carry out construction over his plot as he had already paid the entire amount. It is explained that the complainant found the papers relating to the booking of the said plot after the death of his father and then he immediately tried to contact Mr. Kulbhushan Sharma (accused No.1), who is described as the partner/proprietor/managing director of M/s.Greater Delhi Planners. It is alleged that Mr.Kulbhushan Sharma initially refused to talk further and later even threatened the complainant with dire consequences. According to the complainant, it shows that from the very beginning it was the intention of the respondents to extract money from the complainant's father by deceitful means. It is also mentioned that during the lifetime of complainant's father, since there was legal hindrance for transfer of the plot due to a Public Interest Litigation (PIL) pending in the Supreme Court as the Supreme Court had barred the building activities within the radius of 5 kms. from Suraj Kund and Badkhal Lake, which covered the area in question as well, the plot could not have been given at that time. After this restriction was relaxed, the accused persons were liable to make the allotment and their actions in not doing so clearly show that they had intention to cheat the father of the complainant.